Florez Duran v. Environmental Soil Management, Inc.
///ORDER granting in part and denying in part 13 Motion for Summary Judgment. Defendants motion for partial summary judgment is granted as to Count III and denied as to Counts I and II. So Ordered by Magistrate Judge Andrea K. Johnstone.(gla)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Pedro M. Florez Duran
Civil No. 16-cv-148-AJ
Opinion No. 2017 DNH 142
Environmental Soil Management, Inc.
MEMORANDUM AND ORDER
Plaintiff Pedro M. Florez Duran (“Florez”) brings suit
against his former employer, Environmental Soil Management, Inc.
(“ESM”), alleging claims under Title VII of the Civil Rights Act
of 1964, 42 U.S.C. §§ 2000 et seq. and 42 U.S.C. § 1981, and a
claim for wrongful discharge under New Hampshire law.
for partial summary judgment, doc. no. 13, and Florez objects,
doc. no. 14.1
The court held a hearing on the motion on May 26,
For the following reasons, ESM’s motion is granted in
part and denied in part.
Summary Judgment Standard
Summary judgment is appropriate where “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”
Fed. R. Civ. P. 56(a); see also
Xiaoyan Tang v. Citizens Bank, N.A., 821 F.3d 206, 215 (1st Cir.
“An issue is ‘genuine’ if it can be resolved in favor of
ESM also filed a reply to Florez’s objection.
either party, and a fact is ‘material’ if it has the potential
of affecting the outcome of the case.”
Xiaoyan Tang, 821 F.3d
at 215 (internal quotation marks and citations omitted).
summary judgment stage, the court “view[s] the facts in the
light most favorable to the non-moving party” and “draw[s] all
reasonable inferences in the nonmovant’s favor . . . .”
v. Nat’l R.R. Passenger Corp., 844 F.3d 307, 312 (1st Cir. 2016)
(citation and quotation marks omitted).
The court will not,
however, credit “conclusory allegations, improbable inferences,
and unsupported speculation.”
Fanning v. Fed. Trade Comm’n, 821
F.3d 164, 170 (1st Cir. 2016) (citation and quotation marks
omitted) cert. denied, 137 S. Ct. 627 (2017).
“A party moving for summary judgment must identify for the
district court the portions of the record that show the absence
of any genuine issue of material fact.”
Inc., 817 F.3d 849, 853 (1st Cir. 2016).
Flovac, Inc. v. Airvac,
Once the moving party
makes the required showing, “‘the burden shifts to the nonmoving
party, who must, with respect to each issue on which [it] would
bear the burden of proof at trial, demonstrate that a trier of
fact could reasonably resolve that issue in [its] favor.’”
“This demonstration must be accomplished by
reference to materials of evidentiary quality, and that evidence
must be more than ‘merely colorable.’”
Id. (citations omitted).
“At a bare minimum, the evidence must be ‘significantly
Id. (citation omitted).
The nonmoving party’s
failure to make the requisite showing “entitles the moving party
to summary judgment.”
ESM is in the business of decontamination of soil and runs
a decontamination facility in Loudon, New Hampshire.
Florez as a laborer on May 19, 2003.2
Florez, who is Hispanic
and grew up in Cuba, speaks Spanish as his first language, and
was a lawful permanent resident of the United States for the
duration of his eleven-year employment with ESM.
Harassment and Differential Treatment
Throughout his time with ESM, Florez was frequently
harassed and physically assaulted by his fellow employees, and
treated differently than his coworkers by his supervisors.
example, Florez’s coworkers called the police when they found
out that Florez’s car had a false inspection sticker and that he
did not have a valid driver’s license.
Florez was also
suspended for a week without pay after he got into a physical
altercation with another employee who had cursed at Florez.
addition, Florez’s coworkers intentionally injured him with a
welding machine, beat him up, and threatened to kill him.
Florez’s work consisted of hand-picking objects out of
soil to prepare the soil for treatment.
Florez felt that these actions were motivated by ESM employees’
animosity toward him for being Cuban.
Florez’s coworkers also frequently made specific reference
to him being Cuban.
Several times during the course of his
employment, Florez found garbage in his locker and notes that
referred to him as a “Cuban ass.”
His coworkers also told him
on several occasions to go back to Cuba and called him a “stupid
Although Florez’s supervisors were aware of all these
incidents, they took little or no action to redress them.
fact, at some point, Florez’s supervisors told him that any
future arguments with his coworkers would his result in his
Florez felt he could no longer report any
harassment or arguments for fear of being fired.
In addition, Florez’s supervisors themselves treated him
differently than his non-Cuban coworkers.
For example, Florez
was singled out for minor safety violations when his non-Cuban
coworkers were not cited for similar violations.
supervisors frequently denied his requests for time off from
work, but granted his non-Cuban coworkers’ requests.
Florez’s Termination from ESM
On June 17, 2014, one of Florez’s supervisors, an Operation
Manager named Andrew Drobat, approached Florez and asked him,
“what did you tell the new guy?”
Florez did not know what
Drobat was referring to, and responded that he had not said
Drobat told Florez to “take a couple of days off
while I find out what happened.”
On June 19, 2014, Florez came to work to pick up his
Florez asserts that Drobat promised him a raise and
told him to return to work on Monday, June 23.
Florez asserts that when he returned to work on June 23,
another supervisor, General Manager Marc Aubrey, terminated him,
telling him that the “other guys” did not want to work with him
and that his physical safety was in danger.
Florez states that
he later spoke with Drobat on the telephone, and that Drobat
told him that “the guys told Marc they don’t want you there
III. Florez’s Complaint with the EEOC
On April 15, 2015, Florez filed a charge of discrimination
with the United States Equal Employment Opportunity Commission
(“EEOC”) and filed the same charge with the New Hampshire Human
In his EEOC charge of discrimination, Florez
listed discrimination on the basis of race, national origin, and
See doc. no. 14-2 at 1.
Florez also wrote in his
charge of discrimination that he is “of Cuban race and
nationality . . . .”
Id. at 2.
On January 19, 2016, the EEOC issued Florez a Notice of
Right to Sue.
This action followed.
Florez brings three claims against ESM: (1) Violation of
Title VII and 42 U.S.C. § 1981 for discrimination on the basis
of race and national origin (“Count I”); (2) Violation of Title
VII and 42 U.S.C. § 1981 for harassment/hostile work environment
on the basis of race and national origin (“Count II”); and (3)
Wrongful Termination (“Count III”).
ESM moves for partial
summary judgment on Counts I and II to the extent those claims
are based on Florez’s race, and moves for summary judgment on
Count III in its entirety.
Title VII and § 1981 Claims
Title VII makes it unlawful for an employer to “fail or
refuse to hire or to discharge any individual, or otherwise to
discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment,
because of such individual’s race [or] color.”
42 U.S.C. §
Similarly, 42 U.S.C. § 1981(a) provides that
“[a]ll persons within the jurisdiction of the United States
shall have the same right . . . to make and enforce contracts,
to sue, be parties, give evidence, and to the full and equal
benefit of all laws and proceedings for the security of persons
and property as is enjoyed by white citizens . . . .”
both statutes prohibit employers from discriminating against an
employee on the basis of race.
Both Title VII and § 1981 allow for a plaintiff to recover
“on a hostile work environment theory when ‘the workplace is
permeated with discriminatory intimidation, ridicule, and insult
that is sufficiently severe or pervasive to alter the conditions
of the victim’s employment and create an abusive working
Wilson v. Moulison N. Corp., 639 F.3d 1, 6–7
(1st Cir. 2011) (quoting Harris v. Forklift Sys., Inc., 510 U.S.
17, 21 (1993)); see also Riesgo v. Heidelberg Harris, Inc., 36
F. Supp. 2d 53, 58 (D.N.H. 1997) (“A plaintiff alleging a
racially hostile work environment may bring a claim against his
employer under Title VII or § 1981.”).
“Title VII closely
resembles § 1981 and generally applies the same analytical
Dalomba v. Simonsen, No. 15-cv-272-PB, 2016 WL
1257891, at *7 n.8 (D.N.H. Mar. 30, 2016) (citing Conward v.
Cambridge Sch. Comm., 171 F.3d 12, 18 (1st Cir. 1999)).
ESM argues that it is entitled to summary judgment on
Counts I and II, which allege violations of Title VII and §
1981, to the extent they are based on Florez’s race.
asserts that although Florez believes that ESM employees
discriminated against him for being Cuban, Cuban is not a race.
It also asserts that, regardless, the record evidence
demonstrates that none of the incidents underlying Florez’s
claims in Count I or II is based on Florez being Cuban.
Cuban as a Race
In support of its argument that Cuban is not a race for
purposes of a Title VII or § 1981 claim, ESM cites Padron v.
Wal-Mart Stores, Inc., 783 F. Supp. 2d 1042 (N.D. Ill. 2011).
In Padron, the district court granted the defendant’s motion to
dismiss plaintiffs’ Title VII claim based on race because the
plaintiffs alleged they were discriminated against for being
The court in Padron noted that “[u]nlike the term
‘Hispanic,’ ‘Cuban’ refers to a specific country of origin, not
Id. at 1048.
The court held that, therefore,
the plaintiffs had failed to allege a claim for racial
discrimination under Title VII.
ESM’s reliance on Padron is misplaced.
In that case, the
court’s analysis focused on whether the plaintiffs’ claims under
Title VII based on racial discrimination were reasonably related
to their EEOC charges.
In their EEOC complaint, plaintiffs had
checked only the box for national origin discrimination, and had
listed their national origin as Cuban.
The EEOC found that the
defendant had discriminated against the plaintiffs on the basis
of their national origin, which the EEOC described as Cuban.
The Padron court held that, as such, plaintiffs’ race-based
discrimination claim was “outside the scope of Plaintiffs’ EEOC
Id. at 1049.
In contrast, Florez’s complaint with the EEOC asserts
discrimination on the basis of both race and national origin,
and he specifically states in his charge of discrimination that
he is of “Cuban race and nationality.”
Doc. no. 14-2 at 2.
Florez alleges in his complaint that he was harassed “due to his
Cuban race and nationality . . . .”
Doc. no. 1 at ¶ 14.
in light most favorable to Florez and drawing all inferences in
his favor, the record evidence could support a claim that ESM
employees discriminated against Florez based on more than his
having been born in Cuba, but instead based on both his place of
origin and his ethnic background.
See Saint Francis Coll. v.
Al-Khazraji, 481 U.S. 604, 614 (1987) (Brennan, J., concurring)
(noting that “in the Title VII context, the terms [national
origin, ancestry, and ethnicity] overlap as a legal matter”);
Cuello-Suarez v. Autoridad de Energia Electrica de P.R., 737 F.
Supp. 1243, 1248 (D.P.R. 1990) (denying motion to dismiss a
race-based discrimination claim under § 1981 based on plaintiff
being a citizen of the Dominican Republic because “plaintiff’s
race and her national origin are ‘identical as a factual matter’
and the pleadings and the answers to the interrogatories make it
very clear that she is not only alleging discrimination on the
basis of her place of origin without regard for her ethnic
Therefore, ESM has not shown that it is entitled
to summary judgment on Counts I and II on that basis.
Race-based Discrimination and Harassment
ESM also argues even if the court considers “Cuban” a race
for purposes of Title VII and § 1981, its employees’ actions
toward Florez were not related to him being Cuban and,
therefore, cannot support a race-based discrimination or hostile
work environment claim.
That is simply not the case.
testified at his deposition that his coworkers called him a
“Cuban piece of shit” and wrote that phrase on his locker.
no. 14-6 at 29.
He further testified that they left a note in
his locker that said “Cuban ass,” id. at 35, and would tell him
to go back to his country, id. at 40.
Viewed generously to
Florez, the record evidence supports a claim that many acts of
discrimination or harassment at ESM were not “neutral,” as ESM
describes them, but were based on Florez being Cuban.3
ESM also argues that even if the record evidence could
support a race-based hostile work environment claim under Title
VII and § 1981 (Count II), no reasonable jury could conclude
that Florez was terminated because of racial discrimination and,
therefore, ESM is entitled to summary judgment as to Count I.
Even assuming without deciding that ESM is correct, Florez’s
discrimination claim in Count I alleges, and the record
evidence, viewed favorably to Florez, shows, several incidents
of racial discrimination by Florez’s supervisors during the
course of his employment, including being cited for minor safety
violations and having his leave requests denied. Therefore,
whether the record evidence could support a claim of racial
For those reasons, ESM is not entitled to summary judgment
on Counts I or II.
In order to prevail on a wrongful termination claim under
New Hampshire law, “a plaintiff must establish two elements:
one, that the employer terminated the employment out of bad
faith, malice, or retaliation; and two, that . . . the
employment [was terminated] because the employee performed acts
which public policy would encourage or . . . refused to perform
acts which public policy would condemn.”
Short v. Sch. Admin.
Unit No. 16, 136 N.H. 76, 84 (1992) (citing Cloutier v. A & P
Tea Co., Inc., 121 N.H. 915, 921–22 (1981)).
issue of whether a public policy exists is a question for the
jury, [but] at times the presence or absence of such a public
policy is so clear that a court may rule on its existence as a
matter of law.”
Id. (internal citation omitted).
“Bad faith or malice on the part of an employer may be
established under New Hampshire law where (i) an employee is
discharged for pursuing policies condoned by the employer, (ii)
the record does not support the stated reason for the discharge,
discrimination based on Florez’s termination is not dispositive
of his claim in Count I, as that claim is not based solely on
or (iii) disparate treatment was administered to a similarly
Straughn v. Delta Air Lines, Inc., 250 F.3d
23, 44 (1st Cir. 2001) (citing Cloutier, 121 N.H. 915 at 921–
ESM argues that there is no evidence in the record that it
terminated Florez out of bad faith, malice, or retaliation.
further argues there is no evidence that Florez was terminated
for performing acts that public policy would encourage or for
refusing to perform acts which public policy would condemn.
Bad Faith, Malice, or Retaliation
In an attempt to meet the bad faith, malice, or retaliation
element of his wrongful termination claim, Florez cites to the
various harassment, physical abuse, and differential treatment
by his supervisors that he allegedly suffered while at ESM.
problem for Florez, however, is that the question is not whether
ESM or its employees acted with bad faith, malice, or
retaliation toward him generally, but rather whether ESM
terminated Florez out of bad faith, malice, or retaliation.
See, e.g., Grivois v. Wentworth-Douglass Hosp., No. 12-cv-131JL, 2014 WL 309354, at *1 (D.N.H. Jan. 28, 2014) (holding that a
wrongful termination claim under New Hampshire law “turns on why
the defendant fired the plaintiff”).
The record evidence shows, and Florez does not dispute,
that General Manager Aubrey terminated Florez because he felt
his safety was in danger due to his coworkers’ animosity towards
Regardless of Florez’s coworkers’ and supervisors’
motivation for their treatment of him throughout his employment,
no evidence in the record suggests that Aubrey’s termination
decision was made in bad faith, with malice, or in an effort to
retaliate against Florez.
Therefore, Florez cannot meet the
first element of a wrongful termination claim.
Even if the record evidence could support the first element
of a wrongful termination claim, it cannot support the second—
that ESM terminated Florez for performing acts which public
policy would encourage or for refusing to perform acts which
public policy would condemn.
Florez raises two arguments in an
attempt to meet this prong.4
First, he asserts that his supervisors were aware that he
was being threatened and, rather than addressing the situation,
In doing so, ESM “created a policy that would
discourage employees from reporting when their or others’ safety
The public policy necessary for the second prong of a
wrongful termination claim cannot be based on the prohibition
against discrimination in Title VII. Smith v. F.W. Morse & Co.,
76 F.3d 413, 429 (1st Cir. 1996).
was at risk because the employee whose safety was in danger
would now be at risk of being terminated.”
Doc. no. 14-1 at 15.
Even if true, however, any “policy” created by ESM in
terminating Florez is not relevant to his wrongful termination
To survive summary judgment, there must be a disputed
material fact as to whether Florez was terminated for doing
something public policy would encourage or for not doing
something that public policy would condemn.
Even if Aubrey’s
termination decision discouraged future employees from reporting
potential harassment or safety violations, that fact is not
relevant to Florez’s claim here.
Second, Florez notes that Drobat told him to take a few
days off in June of 2014 to investigate a possible incident, and
told Florez to return to work the following Monday.
that ESM subsequently claimed in its response to Florez’s EEOC
complaint that Florez had quit, rather than been terminated.
argues that ESM “should not be permitted to tell Plaintiff to
take a few days off and then terminate him for doing just that.
This is a violation of public policy.”
Doc. no. 14-1 at 15.
Despite Florez’s suggestion, there is no evidence in the
record that Aubrey terminated Florez for taking a few days off.
Instead, viewed favorably to Florez, the record evidence shows
that Aubrey terminated Florez because his coworkers did not like
him and because he could not guarantee Florez’s safety.
Florez has not pointed to a genuine issue of material fact as to
whether he was terminated for doing something public policy
would encourage or for not doing something that public policy
Accordingly, ESM is entitled to summary judgment on
Florez’s wrongful termination claim.
For the foregoing reasons, defendant’s motion for partial
summary judgment (doc. no. 13) is granted as to Count III and
denied as to Counts I and II.
Andrea K. Johnstone
United States Magistrate Judge
July 18, 2017
Kathleen A. Davidson, Esq.
Beth A. Deragon, Esq.
Jennifer L. Parent, Esq.
In any event, Florez does not allege in his complaint that
ESM terminated him for taking time off.
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