Dacunha v. SKIP SAGRIS ENTERPRISES, INC.
Filing
38
Judge Denise J. Casper: ORDER entered. MEMORANDUM AND ORDER - The Court ALLOWS IN PART and DENIES IN PART the motion for summary judgment, D. 24. The motion is ALLOWED as to Counts II, III, V and VI and is DENIED as to the hostile work environment claims asserted in Counts I and IV. (Hourihan, Lisa)
Case 1:18-cv-10999-DJC Document 38 Filed 08/31/20 Page 1 of 14
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
__________________________________________
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STEVEN DACUNHA,
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Plaintiff,
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v.
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Civil Action No. 18-10999-DJC
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SKIP SAGRIS ENTERPRISES, INC.,
)
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Defendant.
)
)
__________________________________________)
MEMORANDUM AND ORDER
CASPER, J.
I.
August 31, 2020
Introduction
Plaintiff Steven Dacunha (“Dacunha”) has filed this lawsuit against Defendant Skip Sagris
Enterprises, Inc. (“Skip Sagris”) asserting claims for gender, sex and sexual orientation
discrimination, harassment and retaliation pursuant to Mass. Gen. L. c. 151B and Title VII, 42
U.S.C. § 2000e et seq. D. 1. Skip Sagris now moves for summary judgment. D. 24. For the
reasons discussed below, the Court ALLOWS the motion for summary judgment in part and
DENIES it in part.
II.
Standard of Review
The Court grants summary judgment where there is no genuine dispute regarding any
material fact and the undisputed facts demonstrate that the moving party is entitled to judgment as
a matter of law. Fed. R. Civ. P. 56(a). A material fact is one that “carries with it the potential to
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affect the outcome of the suit under the applicable law.” García-González v. Puig-Morales, 761
F.3d 81, 87 (1st Cir. 2014) (quoting Newman v. Advanced Tech. Innovation Corp., 749 F.3d 33,
36 (1st Cir. 2014)) (internal quotation mark omitted). The moving party “bears the burden of
demonstrating the absence of a genuine issue of material fact.” Rosciti v. Ins. Co. of Pa., 659 F.3d
92, 96 (1st Cir. 2011) (citation omitted). Once that burden is met, the non-moving party may not
rest on the allegations or denials in his pleadings, Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
256 (1986), but, “with respect to each issue on which [he] would bear the burden of proof at trial,”
must “demonstrate that a trier of fact could reasonably resolve that issue in [his] favor.” Borges
ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010) (citations omitted). The Court
views the record in the light most favorable to the non-moving party, “drawing reasonable
inferences” in his favor. Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir. 2009) (citation omitted).
“Conclusory allegations, improbable inferences, and unsupported speculation,” however, are
“insufficient to establish a genuine dispute of fact.” Travers v. Flight Servs. & Sys., Inc., 737 F.3d
144, 146 (1st Cir. 2013) (citation and internal quotation mark omitted).
III.
Factual Background
The following facts are drawn from the parties’ statements of material facts, D. 26; D. 33,
and supporting filings and are undisputed unless noted otherwise. Skip Sagris operates a Dunkin
Donuts franchise in Billerica, Massachusetts. D. 26 ¶ 1; D. 33 ¶ 1. Dacunha began his employment
as a crew member there in June 2017. D. 26 ¶ 5; D. 33 ¶ 5. Natasha Colon (“Colon”), another
crew member at Skip Sagris, D. 26 ¶ 10, often worked the same shift as Dacunha or a shift that
overlapped with his shift. D. 33 ¶ 10.
Dacunha, who identifies as gay and bisexual, D. 33 ¶ 51, attests that on various occasions
Colon, his co-worker, harassed him because of his sexual orientation. On or about June 4, 2017,
Colon called Dacunha a “faggot based on how [Dacunha] took an order.” D. 33 ¶ 52.
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Dacunha
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complained to manager Lisa Gentile (“Gentile”), store manager Matthew Ribeiro (“Ribeiro”) and
shift leader Yamir Rodriguez (“Rodriguez”) throughout his one-month employment at Skip Sagris
about the harassment. D. 33-2 (Dacunha Deposition) at 10.
Dacunha informed Ribeiro and
Gentile about Colon’s June 4, 2017 remarks. D. 33 ¶ 52. Gentile responded that she would need
to personally witness the comment to address it. D. 33 ¶ 52.
Ribeiro told Dacunha that it was
“just the city that [they] live in” and “ just to ignore [Colon].” D. 33 ¶ 52.
In or about mid-June 2017, Colon referred to Dacunha as a “faggot” again in front of other
employees and customers. D. 33 ¶ 54. Dacunha complained about this comment to Gentile,
Rodriguez and Ribeiro. D. 33-2 at 19-20. Dacunha requested a mediation with management and
Colon to discuss how that word offended Dacunha. D. 33 ¶ 54. Gentile agreed to a mediation
session, but Ribeiro and Colon did not agree. D. 33 ¶ 54. Ribeiro again said that Dacunha should
ignore Colon, that they had already discussed the topic and that there was nothing that could be
done because “girls will be girls.” D. 33 ¶ 54. Rodriguez similarly told Dacunha he should ignore
Colon and try to change his schedule. D. 33 ¶ 54; D. 33-2 at 21.
On another occasion, while Dacunha took orders from customers, Colon commented to
Rodriguez, “don’t you think he’s a faggot the way he takes orders?” D. 33 ¶ 55. Dacunha
overheard the comment by Colon to Rodriguez, said “excuse me” to Colon and Rodriguez then
repeated the comment back to Dacunha. D. 33 ¶ 55.
Sometime at the end of June 2017, Dacunha handed Colon the wrong sandwich. D. 33 ¶
56. Colon threw the sandwich at Dacunha and said, “here you go, you stupid ass.” D. 33 ¶ 56.
After the incident, Dacunha asked Gentile if he could leave his shift for the day, which Gentile
allowed. D. 33 ¶ 56. As Dacunha was leaving, he told Ribeiro that he would quit if Colon’s
conduct continued. D. 33 ¶ 56.
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On July 3, 2017, Dacunha prepared a drink for a customer but slightly overfilled the cup,
causing some of the drink to spill above the top of the lid. D. 33 ¶ 57. Colon picked up the drink
and handed it to the customer. D. 33 ¶ 57. When the drink spilled in the customer’s car, Colon
called Dacunha a “faggot” and stated that he did not know how to wipe down cups. D. 33 ¶ 57.
Dacunha announced that he was going to call the Equal Employment Opportunity Commission
(“EEOC”). D. 33 ¶ 57. Dacunha then went into a back room in the store and called the EEOC on
his cell phone. D. 33-2 at 15.
That same day, July 3, 2017, the Multi-Unit Manager David Francisco (“Francisco”), who
was not at the store, received a phone call from Albano, another crew member, that Dacunha and
Colon had gotten into an altercation. D. 26 ¶ 16. Francisco indicated his intention to investigate
upon his return the following day. Id. While Dacunha was on the phone with the EEOC, a fellow
crew member handed Dacunha the store phone to speak to Francisco. D. 33-2 at 23. Francisco
informed Dacunha that he needed to leave the store while management figures everything out.”
D. 33 ¶ 58.
The following day, on July 4, 2017, Dacunha and Colon were scheduled to work the same
shift. D. 33 ¶ 59. Francisco, with Ribeiro present, conducted several interviews including of
Colon, Albano, and two other crew members, Maria Arruda (“Arruda”) and Lucia Muse (“Muse”)
about what occurred the prior day. D. 26 ¶ 17; D. 33 ¶ 61. During the investigation, Albano,
Arruda and Muise told Francisco that Dacunha said that he was going to get two women to come
in to work to beat Colon up and that Dacunha was going to stab Colon. D. 26 ¶¶ 19-21; D. 29; D.
30; D. 31-1. Francisco also interviewed Colon and she also stated that Dacunha threatened to
bring two girls in to beat her up and said he would stab her. D. 26 ¶¶ 22-23. Francisco recalled
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that Colon “was very scared, physically shaken up and seemed truly concerned about whether
[Dacunha] would take action on the threats that he made to her.” D. 26 ¶ 22. Dacunha contends
that he did not threaten Colon or otherwise verbally abuse Colon. D. 33 ¶ 19.
Based upon his investigation, Francisco concluded that Dacunha violated Skip Sagris’s
Workplace Violence policy. D. 26 ¶ 24. On July 5, 2017, Francisco and Ribeiro met with Dacunha
in the Skip Sagris store manager’s office and Francisco informed Dacunha that he was terminated
due to threatening another employee with physical harm, which was witnessed by several other
staff members. D. 26 ¶ 32. The termination notice that Francisco provided Dacunha reflected
that the termination was for threatening another employee with violation. D. 26 ¶¶ 32-36. Even
by Dacunha’s own recounting, he told Francisco about Colon’s statements to him in this meeting
when Francisco was informing him of his termination for violating the Workplace Violence policy.
D. 33 ¶ 36 (citing Dacunha deposition, D. 33-2 at 13). Francisco spoke to Colon who admitted
that she used the derogatory term during the altercation and he gave Colon a written warning. D.
26 ¶ 37.
IV.
Procedural History
Dacunha filed this lawsuit against Skip Sagris on May 17, 2018. D. 1. Skip Sagris has
now moved for summary judgment on all counts. D. 24. The Court heard the parties on the
pending motion and took the matter under advisement. D. 37.
V.
Discussion
A.
Discrimination Claims (Counts II and V)
Dacunha alleges that Skip Sagris discriminated against him based upon his sex/gender
(Count II) in violation of Title VII, 42 U.S.C. § 2000e et seq., and based upon his sex/gender and
sexual orientation under Mass. Gen. L.c. 151B, § 4 (Count V). Both the federal and state
discrimination claims are analyzed under the burden-shifting framework articulated in McDonnell
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Douglas Corp. v. Green, 411 U.S. 792 (1973). See Bulwer v. Mt. Auburn Hosp., 473 Mass. 672,
681 (2016).
1.
Prima Facie Case
Under McDonnell Douglas, an employee alleging discrimination must establish a prima
facie case by showing that: (1) he belonged to a protected class; (2) that he performed his job
satisfactorily; and (3) his employer took an adverse employment decision against him. See Miceli
v. JetBlue Airways Corp., 914 F3d 73, 81 (1st Cir. 2019). If plaintiff satisfies this showing, he is
entitled to “a presumption of discrimination” and the burden shifts to the defendant. Trahan v.
Wayfair Maine, LLC, 957 F.3d 54, 61 (1st Cir. 2020); see Abramian v. Pres. & Fellows of Harvard
Coll., 432 Mass. 107, 116 (2000). Here, it is undisputed that Dacunha is a member of a protected
class as he identifies as gay and bisexual. D. 33 ¶ 51. It is also undisputed that Dacunha was
terminated. D. 26 ¶ 32. Skip Sagris disputes whether Dacunha performed his job satisfactorily.
D. 25 at 5.
The prima facie case, however, is not meant to be an onerous burden. Benoit v. Tech.
Mfg. Corp., 331 F.3d 166, 173 (1st Cir. 2003). Skip Sagris contends that Dacunha cannot establish
his prima facie case of discrimination because Dacunha’s alleged threat to Colon on July 3rd shows
that he did not perform his duties at an acceptable level because he violated the Workplace
Violence Policy. D. 25 at 5. “[C]ourts that have dismissed discrimination claims at the prima
facie stage based on unsatisfactory job performance have tended to do so where the employee’s
poor record was undisputed or unrelated to the alleged discrimination.” Walker v. City of Holyoke,
523 F. Supp. 2d 86, 102 (D. Mass. 2007). Here, Dacunha disputes that he ever threatened Colon,
D. 33 ¶¶ 19-23; 31-32, even as, as discussed below, Francisco’s investigation gave Skip Sagris a
good faith basis to reject that denial in light of the interviews with other employees. For the
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purposes of establishing a prima facie case, particularly in the absence of any record of
unsatisfactory job performance and where the events of July 3rd are at the center of Dacunha’s
claims, see Walker, 523 F. Supp. 2d at 102, Dacunha has met this initial showing. Accordingly,
the Court concludes that Dacunha has established a prima facie case of discrimination.
2.
Legitimate, Nondiscriminatory Reason for Termination
At the second stage of the McDonnell Douglas test, the burden shifts to the employer to
state a legitimate, nondiscriminatory reason for the adverse employment action. Santiago-Ramos
v. Centennial P.R. Wireless Corp., 217 F.3d 46, 54 (1st Cir. 2000) (citing St. Mary’s Honor Center
v. Hicks, 509 U.S. 502, 506-07 (1993)).
“The employer’s burden of articulating a non-
discriminatory reason is only a burden of production, not a burden of persuasion; the burden of
proving unlawful discrimination rests with the plaintiff at all times.” Freadman v. Metro. Prop. &
Cas. Ins. Co., 484 F.3d 91, 99 (1st Cir. 2007). Here, Skip Sagris has stated a legitimate,
nondiscriminatory reason for terminating Dacunha, namely that his threats to Colon violated its
Workplace Violence policy. This policy reflects, in relevant part, that “[t]hreats, threatening
language, or any other acts of aggression or violence made toward or by any employee will not be
tolerated.” D. 26 ¶ 7; D. 27-2 at 46 (noting that “a threat includes any verbal or physical harassment
or abuse, attempts at intimidating or instilling fear in others, menacing gestures, flashing of
weapons, stalking, or any other hostile, aggressive, injurious and/or destructive actions undertaken
for the purpose of domination or intimidation”). Although Dacunha denies making such threats,
Francisco interviewed several employees who witnessed the threats against Colon and, based upon
this investigation, concluded that Dacunha had violated this policy, D. 26 ¶ 17; D. 29 (Muse Aff.)
¶¶ 2-3; D. 30 (Albano Aff.) ¶¶ 2-3; D. 31-1 (Arruda Aff.) ¶¶ 2-3, and provided same as the basis
for termination in the termination notice that Francisco gave Dacunha. D. 27-4 at 2. Accordingly,
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Skip Sagris has satisfied its burden in articulating a legitimate, non-discriminatory reason for
Dacunha’s termination.
3.
Pretext
At the third stage, as to the Title VII claim, Dacunha must “‘present sufficient evidence to
show both that the employer’s articulated reason . . . is pretext and that the true reason is
discriminatory.’” Santiago-Ramos, 217 F.3d at 54 (quoting Thomas v. Eastman Kodak Co, 183
F.3d 38, 56 (1st Cir. 1999)). “At summary judgment, this question reduces to whether or not the
plaintiff has adduced minimally sufficient evidence to permit a reasonable factfinder to conclude
that he was fired because of his [protected status].” Dávila v. Corporación de Puerto Rico para la
Difusión Pública, 498 F.3d 9, 16 (1st Cir. 2007). As to the c. 151B claim, the plaintiff need only
show that the defendant’s articulated reason is pretextual. Verdrager v. Mintz, Levin, Cohn, Ferris,
Glovsky & Popeo, P.C., 474 Mass. 382, 396 (2016). As to either claim, Dacunha has failed to
make his showing as to this stage. Dacunha fails to show that his employer’s stated reason for
termination was false or ‘cover’ for another reason. As to it being pretext for discrimination,
Dacunha has not provided any evidence of discriminatory animus on the part of the sole
decisionmaker, Francisco.1 Dacunha points to the fact that he was regularly called names by
Colon, but there is no dispute that this co-worker was not the decisionmaker in his termination.
See Dávila, 498 F.3d at 16-17 (holding that “[w]hen assessing a claim of pretext in an employment
discrimination case, a court’s focus is necessarily on the motivations and perceptions of the
decisionmaker”); see also Gonzalez v. El Día, Inc., 304 F.3d 63, 69 (1st Cir. 2002) (noting that
1
Dacunha alleges that Ribeiro was also a decisionmaker, but does not point to any specific,
admissible, factual basis to refute Skip Sagris’ undisputed showing that Francisco was the sole
decisionmaker. D. 26 ¶ 29. That Ribeiro may have participated in some of the interviews that
Francisco conducted, D. 33 ¶ 29, does not create a dispute of fact as to the undisputed record that
Francisco was the sole decisionmaker.
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“‘stray workplace remarks,’ as well as statements made either by nondecisionmakers or by
decisionmakers not involved in the decisional process, normally are insufficient, standing alone,
to establish either pretext or the requisite discriminatory animus”). Moreover, the undisputed
record is that Francisco did not know Dacunha’s sexual orientation, D. 26 ¶ 14, and that he was
not aware of Dacunha’s complaints about Colon until his meeting with Dacunha to inform him of
his termination for violating the Workplace Violence policy. D. 26 ¶¶ 36, 44-45; D. 33 ¶¶ 44-45
(citing Dacunha’s deposition, D. 33-2); D. 28 ¶¶ 4, 5.
Given this record, any challenges to the sufficiency of Francisco’s investigation fail to
show that the same was pretextual and the real reason for his termination was discrimination as
Dacunha claims. D. 32 at 11; see Ronda-Perez v. Banco Bilbao Vizcaya Argentaria Puerto Rico,
404 F.3d 42, 47 (1st Cir. 2005) (holding that employer’s investigation deficiencies, including
failure to take adequate notes was not sufficient evidence of pretext); see also Rivas Rosado v.
Radio Shack, 312 F.3d 532, 535 (1st Cir. 2002) (noting that Title VII does not ensure against
inaccuracy by an employer, only gender-based discrimination). Similarly, the absence of any
warning to Dacunha before his termination, on this record, does not provide evidence of pretext.
Although departures from normal procedural sequences may be probative of whether an
employer’s reason for terminating an employee is pretext for discrimination, Hodgens v. Gen.
Dynamics Corp., 144 F.3d 151, 168-69 (1st Cir. 1998), here, there is no suggestion that Dacunha’s
termination, with no prior notice, for violation of the Workplace Violence policy was a departure
from the employer’s normal procedure. To the contrary, the policy indicates that “[i]f an
investigation confirms that a threat of a violent act or violence itself has occurred, [Skip Sagris]
will take swift appropriate corrective action with regard to the offending employee.” D. 27-2 at
46.
Here, the undisputed record is that employees can be terminated for a first offense of this
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policy, that Francisco has terminated other first offenders for violation of same, D. 26 ¶ 28 (citing
Francisco’s deposition), and Dacunha has not pointed to evidence to the contrary in the record.
See Walker, 523 F. Supp. 2d at 104.
Pointing to the fact that Skip Sagris gave Colon a warning when she admitted that she
called Dacunha a “faggot,” but not to him after finding that he had made threats of physical
violence, does not save this claim where “the offense each is accused of is not the same.” Williams
v. Frank, 757 F. Supp. 112, 119 (D. Mass. 1991); see Matthews v. Ocean Spray Cranberries, 426
Mass. 122, 130 (1997) (holding that although offenses of two employees need not be identical, the
offenses must be comparable). Since Dacunha has not shown that a disputed issue of material fact
remains as to rebutting Skip Sagris’s legitimate, non-discriminatory reason for his termination, the
Court ALLOWS the motion for summary judgment as to Counts II and IV.
B.
Retaliation (Counts III and VI)
As to his termination, Dacunha also asserts claims for retaliation under Title VII (Count
III) and Chapter 151B (Count VI). The burden shifting framework under McDonnell Douglas also
applies to these retaliation claims. At the first stage, Dacunha must demonstrate a prima facie case
of retaliation by providing evidence that: (1) he engaged in protected conduct; (2) he experienced
an adverse employment action; and (3) there was a causal connection between the protected
conduct and the adverse employment action. See Noviello v. City of Boston, 398 F.3d 76, 88 (1st
Cir. 2005); see also Calero–Cerezo v. United States Dept. of Justice, 355 F.3d 6, 25-26 (1st Cir.
2004). If Dacunha satisfies this initial burden, the burden shifts to Skip Sagris at the second stage
to articulate legitimate, nondiscriminatory reasons for the adverse action. Bulwer, 473 Mass. at
683. If Skip Sagris satisfies its burden, the burden shifts back to Dacunha, at the third and final
stage, to show that Skip Sagris’ articulated reasons are pretextual. Bulwer, 473 Mass. at 681.
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Skip Sagris does not dispute that Dacunha engaged in protected conduct (complaints to
others regarding Colon’s comments and call to EEOC) or that he suffered an adverse employment
action (namely, his termination), but contests the necessary causal connection between the two.
Although Dacunha alleges that he complained to others about Colon, the undisputed record is that
he did not raise same with Francisco before the meeting in which Francisco called to inform him
of his termination for violating the Workplace Violence policy. D. 26 ¶¶ 36, 44-45; D. 33 ¶¶ 4445; D. 33-2 at 13. Moreover, there is no evidence that Francisco knew that Dacunha had contacted
the EEOC before the decision to terminate him. Francisco attests that he did not learn about this
contact until after he had notified Dacunha of his decision to terminate his employment, D. 28 ¶ 6,
and Dacunha’s argument that Francisco should have known about same where Francisco was not
present when he made such call, does not create a disputed issue of material fact to overcome the
motion for summary judgment. Accordingly, the Court allows Defendant’s motion for summary
judgment on Dacunha’s retaliation claims (Counts III and VI).
C.
Hostile Work Environment Claims (Counts I and IV)
Even as the Court has concluded that Skip Sagris is entitled to summary judgment on
Dacunha’s claims that his termination was discriminatory, the Court must still consider Dacunha’s
claims that he was subject to a hostile work environment during his employment under both Title
VII because of his sex and gender (Count I) and c. 151B because of his sex, gender and sexual
orientation. (Count IV). These state and federal claims are considered under similar standards.
Brissette v. Franklin County Sheriff’s Office, 235 F. Supp. 2d 63, 85 (D. Mass. 2003); Walker,
523 F. Supp. 2d at 106. For such claim, Dacunha must establish that: (1) he is a member of a
protected class; (2) he was subjected to unwelcome harassment; (3) the harassment was based upon
his status in a protected class; (4) “‘the harassment was sufficiently severe or pervasive so as to
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alter the conditions of [his] employment and create an abusive work environment’; (5) the
‘sexually objectionable conduct was both objectively and subjectively offensive, such that a
reasonable person would find it hostile or abusive and the victim in fact did perceive it to be so’;
and (6) ‘some basis for employer liability has been established.’” See Lightbody v. Wal-Mart
Stores E., L.P., No. 13-cv-10984-DJC, 2014 WL 5313873, at *3 (D. Mass. Oct. 17, 2014) (quoting
Ponte v. Steelcase Inc., 741 F.3d 310, 320 & n.9 (1st Cir. 2014)).
A hostile work environment is one that is “pervaded by harassment or abuse, with the
resulting intimidation, humiliation, and stigmatization, [and that] poses a formidable barrier to the
full participation of an individual in the workplace.” Cuddyer v. Stop & Shop Supermarket Co.,
434 Mass. 521, 532 (2001) (quoting College-Town, Div. of Interco, Inc. v. Mass. Comm’n Against
Discrimination, 400 Mass. 156, 162 (1987)) (internal quotation mark omitted). There is no precise
test to determine whether a plaintiff has presented sufficient evidence that he was subjected to
severe or pervasive harassment. See Kosereis v. Rhode Island, 331 F.3d 207, 216 (1st Cir. 2003)
(citations omitted). A court must “examine all the attendant circumstances including the frequency
of the discriminatory conduct; its severity; whether it was physically threatening or humiliating,
or a mere offensive utterance; and whether it unreasonably interfered with an employee’s work
performance.” Pomales v. Celulares Telefónica, Inc., 447 F.3d 79, 83 (1st Cir. 2006) (citation
omitted). In doing so, the First Circuit has warned against applying these considerations and its
precedent “too rigid[ly]” where “the hostility vel non of a workplace does not depend on any
particular kind of conduct.” See Billings v. Town of Grafton, 515 F.3d 39, 48 (1st Cir. 2008). As
such, evaluating a potentially hostile work environment is a fact-intensive inquiry “often reserved
for a factfinder, but summary judgment is an appropriate vehicle for polic[ing] the baseline” for
such claims. See Pomales, 447 F.3d at 83 (alteration in original) (citations and internal quotation
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marks omitted). The essence of this inquiry is “to distinguish between the ordinary, if occasionally
unpleasant, vicissitudes of the workplace and actual harassment.” Rosemond v. Stop & Shop
Supermarket Co., 456 F. Supp. 2d 204, 212 (D. Mass. 2006) (citation omitted).
Skip Sagris does not dispute the first three elements of this claim, but focuses its motion
on Dacunha’s alleged failure to show that Colon’s comments were so severe or pervasive as to
have altered the conditions of his employment and created an abusive work environment, the
fourth, requisite element of a hostile work environment claim. D. 25 at 13. Dacunha, however,
attests that he was called an offensive and derogatory term because of his sexual orientation more
than five to ten times in June and July 2017, D. 33 ¶ 53, and Colon did so in front of other
employees and customers. D. 33 ¶¶ 54-57. Although it is well settled that “offhand comments”
may not sufficiently severe or pervasive to constitute a hostile work environment, Rios-Jimenez v.
Sec’y of Veterans Affairs, 520 F.3d 31, 44 (1st Cir. 2008); D. 25 at 15 and cases cited, context
matters. This is particularly true where Dacunha’s employment had only begun in June 2017, the
same month that the derogatory comments began from his co-worker and continued as he worked
with Colon every day, D. 33 ¶ 10, and as Colon admitted during Francisco’s investigation, until
July 3rd, the date that lead to his termination two days later. Considering the present record, a
reasonable trier of fact may find that the purported conduct Dacunha experienced created a hostile
work environment.
Lightbody, 2014 WL 5313873, at *4 (denying summary judgment in
employer’s favor where a reasonable jury could find that alleged incidents were frequent,
threatening and humiliating); see Billings, 515 F.3d at 48 (discussing how there are no particular
types of behavior necessary to constitute hostile work environment and reversing district court’s
entry of summary judgment in employer’s favor).
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Dacunha, additionally allege that that on multiple occasions Gentile, Rodriguez and
Ribeiro failed to act to prevent Colon’s conduct and placed the onus on Dacunha to ignore her or
switch his shift to avoid her. D. 33 ¶¶ 51-52. These allegations also raise a triable issue as to if
Skip Sagris took reasonable steps to rectify acts of harassment following Dacunha’s complaints.
See Ryan v. Holie Donut, Inc., 82 Mass. App. Ct. 633, 638 (2012). Accordingly, for all of these
reasons, the Court denies Skip Sagris’ motion for summary judgment as to Dacunha’s hostile work
environment claims (Counts I and V).
VI.
Conclusion
For the reasons discussed above, the Court ALLOWS IN PART and DENIES IN PART
the motion for summary judgment, D. 24. The motion is ALLOWED as to Counts II, III, V and
VI and is DENIED as to the hostile work environment claims asserted in Counts I and IV.
So Ordered.
/s/ Denise J. Casper
United States District Judge
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