Darosa v. Admiral Packaging, Inc. et al
Filing
31
MEMORANDUM AND ORDER granting in part and denying in part 19 Motion for Summary Judgment. So Ordered by Chief Judge William E. Smith on 5/2/2019. (Jackson, Ryan)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
__________________________________
)
JOAQUIM DAROSA
)
)
Plaintiff,
)
)
v.
)
C.A. No. 16-485 WES
)
ADMIRAL PACKAGING, INC.; and
)
ROBERT HUMMEL
)
)
Defendants.
)
___________________________________)
MEMORANDUM AND ORDER
After
twenty-five
years
working
as
an
ink-technician
at
Admiral Packaging, Inc. (“Admiral”), Plaintiff Joaquim Darosa was
terminated
in
June
of
2014
disagreement with a colleague.
for
losing
his
temper
during
a
Although Darosa admits he lost his
temper, he believes Admiral used the incident as a convenient
excuse to fire him and that he was actually terminated because he
suffers from ulcerative colitis, for which he took an extended
leave of absence in 2013 under the Family Medical Leave Act
(“FMLA”), 29 U.S.C. § 2601 et
seq.1
See generally Compl., ECF
No. 1-2.
The Court notes that ulcerative colitis qualifies as a
“disability” under both state and federal law. See Americans with
Disabilities Act (“ADA”), 42 U.S.C. §§ 12102(1); Rhode Island Civil
Rights Act, R.I. Gen. Laws § 42-112-1, et seq.; Rhode Island Fair
Employment Practices Act, R.I. Gen. Laws § 28-5-1 et seq.; see
also Rhode Island Civil Rights of People with Disabilities Act,
R.I. Gen. Laws § 42-87-1(1).
1
1
On August 4, 2016 Darosa filed a Complaint (ECF No. 1-2),
alleging, inter alia, claims for FMLA retaliation (Count I) and
disability discrimination (Count III) and seeking damages for his
allegedly
wrongful
termination.2
Admiral
has
rebutted
these
allegations by arguing that Darosa was a “problem employee” for
years with an extensive disciplinary history and that the June
incident was simply the straw that broke the camel’s back. Defs.’
Mot. for Summ. J. (“Defs.’ Mot.”) 1, ECF No. 19.
Before the Court is Defendants’ Motion for Summary Judgment
(ECF No. 19), to which Plaintiff has objected (ECF No. 24).
For
the following reasons, the Court grants in part and denies in part
Defendants’ Motion.
I.
Factual Background
Darosa worked as an ink technician at Admiral Packaging from
1989
until
June
17,
2014.
In
2006,
he
was
diagnosed
with
ulcerative colitis, for which he took protected FMLA leave three
times: first in 2006 (fifteen weeks), then in 2012 (fourteen days),
and again 2013 (forty days).
Darosa concedes that he cannot prevail on Count II
(Whistleblower violation under R.I. Gen. Laws § 28-50-1) or as
against Robert Hummel individually. See Pl.’s Mem. in Opp’n to
Defs.’ Mot. Summ. J. (“Pl.’s Mem.”) 1, ECF No. 24-1 (“In this
motion, Plaintiff concedes that he cannot meet his burden under
R.I.G.L. § 28-50-1 nor against Hummel individually. Accordingly
he proceeds against Admiral Packaging Inc, under FMLA retaliation
and Disability Discrimination claims.”).
The Court therefore
dismisses Count II and dismisses the Complaint with respect to
Hummel.
2
2
A.
Darosa’s 2013 FMLA Leave
In 2013, while Darosa was supposed to be out of work on FMLA
leave, a video surfaced showing Darosa performing on stage at the
Cape Verdean festival in Providence.
After seeing the video on
YouTube.com and while he was still out on FMLA leave, Darosa’s
supervisors at Admiral called Darosa to ask why he was not at work,
to offer him “light duty” work, and to invite him to the company
picnic at McCoy Stadium. Pl.’s Statement of Undisputed Facts
(“Pl.’s
SUF”)
¶¶
29-30,
ECF
No.
24-2;
Defs.’
Statement
Undisputed Facts (“Defs.’ SUF”) ¶¶ 22-32, ECF No. 20.
of
Darosa
claims that his performance at the festival made his supervisors
“angry,” though nothing in the record suggests that his supervisors
discussed
the
matter
with
him
when
he
returned
disciplined him for the apparent abuse of leave.
to
work
or
Pl.’s Mem. 12-
13, 21; Defs.’ SUF Ex. A (“Darosa Dep.”) 15:18-25:4, ECF No. 201.
B.
Overtime Shifts at Admiral
Throughout his tenure at Admiral, Darosa worked first shift
(7:00 a.m. to 3:00 p.m.) and was occasionally asked to work
overtime by coming in early, around 4:00 a.m.
He testified that
early shifts were hard for him because of his colitis and that he
expressed this difficulty to his supervisors. Darosa Dep. 61:1362:3. However, it is unclear whether he informed his supervisors
that the reason these early shifts were hard for him was because
3
of his colitis, as opposed to the general difficulty of waking up
early and arriving at work on time.
Specifically, he testified as
follows:
Q:
. . . [W]hy don’t you tell me what you
think a hostile work environment is?
A:
Well, if I have colitis and I go to the
bathroom all the time, I have problems
sleeping, and I’m losing weight, do you
think I should be going to work 4:00 in the
morning, 5:00 in the morning?
Q:
Okay. Did you ever ask your employer for
a modified schedule?
A:
I asked many times. The fact that it would
be hard, because one, I had to get my wife
to get up to bring me, and I had to ask
another employee to pick me up. And I had
told them that it would be hard for me to
make it in there on time. Since my schedule
is from 7:00 to 3:00, 4:00 and 5:00 would
be difficult. But I was never given that
opportunity to stay home. It was more like
a must.
Id. Darosa admits that he never asked to be scheduled for Admiral’s
second shift, which occurred in the afternoons, to avoid these
early mornings. Id. 65:1-5.
C. Bonuses, Raises, and Performance Evaluations at Admiral
Admiral provides several kinds of monetary incentives to its
employees, namely, a year-end bonus and an annual raise.3
Both of
Admiral also offers holiday bonuses to all employees
employed on the day of the company holiday party and safety bonuses
to all employees when Admiral finishes a quarter without a “lost
time” incident. Defs.’ SUF ¶¶ 40-43. Employees are automatically
entitled to these bonuses, regardless of the quality of their
3
4
these
are
awarded
performance
based,
evaluation.
in
That
part,
on
evaluation
the
is
employee’s
annual
completed
by
a
supervisor and rates the employee on a scale of 1 to 5 in the
following
categories:
attendance,
attitude,
work
ethic,
work
knowledge, productivity, assisting others, and overtime.
Of the three ink technicians employed at Admiral in 2013,
Darosa received the lowest overall performance rating.
His 2013
evaluation reads as follows:
Darosa: 2 for attendance, 2 for attitude, 2
for work ethic, 5 for work knowledge, 3 for
productivity, 2 for assisting others, and 2
for overtime.
Defs.’ SUF Ex. G (“Disciplinary History”) 60, ECF No. 20-7.
Darosa’s evaluation also included the comment “Not motivated/needs
supervising.” Id. In contrast, the other two ink technicians were
rated as follows:
Paul Amaral:
5 for attendance, 4 for
attitude, 5 for work ethic, 5 for work
knowledge, 4 for productivity, 3 for assisting
others, and 4 for overtime; “very strong A
Player.”
Joe Dionne: 3 for attendance, 4 for attitude,
3 for work ethic, 2 for work knowledge, 3 for
productivity, 2 for assisting others, and 2
for overtime; “Still new and learning.”
Id.
workplace performance and Darosa does not claim he was refused
either award.
5
Based partly on these performance ratings, in 2013, Darosa
received a 3% annual raise and a $500 year-end bonus; Paul Amaral,
in contrast, received a 5% annual raise and, allegedly, a larger
year-end bonus. Pl.’s SUF ¶¶ 4, 8, 21-24.
However, Darosa does
not quantify how much larger or submit any evidence showing that
Amaral’s bonus was, in fact, larger than his own.
Id.
Darosa
also alleges that Admiral’s owner, Harlan Frank, personally handed
him his bonus check for 2013 and told him that the reason he
received a lower year-end bonus for 2013 was because he “didn’t
work the whole calendar year.”
23.
Pl.’s SUF ¶ 27; Darosa Dep. 24:17-
Darosa contends that there is a connection between the size
of his 2013 year-end bonus and the amount of FMLA leave he took.
He argues that he received a $1,350 year-end bonus in 2012 when he
took only fourteen days of FMLA leave while he received a $500
bonus in 2007 and 2013, when he took fifteen weeks and forty days
of FMLA leave, respectively.
Id. ¶¶ 21-23.
However, Darosa has
not submitted any evidence showing his bonus and raise history for
the other twenty-two years of his employment at Admiral.
Darosa also points to several comments made by his direct
supervisor, Robert Hummel, to prove that there is a connection
between his 2013 FMLA leave and his lower year-end bonus and annual
raise. Specifically, he alleges that, after he returned from FMLA
leave in July of 2013, Hummel told him that he had been hired “to
clean house” and “get rid of the . . . bad apples.” Darosa Dep.
6
42:1-15; 45:5-22.
However, Darosa admitted that Hummel made the
same comment to everyone at Admiral and that he and his co-workers
“kind of joked” about how “the new manager’s here to clean the
house.” Id. 44:12-22.
Additionally, Hummel allegedly told him at
some point that he was there to get rid of “the old, the sick, the
people taking a lot of time out from work,” which Darosa understood
as referring to his ulcerative colitis and related FMLA leave. Id.
45:5-22.
D.
Darosa’s Disciplinary History at Admiral
Darosa’s disciplinary history at Admiral reflects chronic
absenteeism and tardiness as well as aggressive, insubordinate,
and inappropriate conduct. See generally Disciplinary History.
However, the last written report documenting Darosa’s misconduct
was dated October 2009.
See Disciplinary History at 58.
John
Wilbur, Admiral’s Vice President and CFO, testified that Darosa
historically
had
attitude
and
attendance
problems
and
that
Darosa’s supervisors generally spoke directly to him when these
issues arose and did not always make a formal record of their
discussions.
Defs.’ SUF Ex. C (“Wilbur Dep.”) 11:21-12:3; 42:11-
44:10. Likewise, Admiral’s owner, Harlan Frank, testified that
many
of
Darosa’s
interim
supervisors
Darosa’s attitude as a problem.
had
previously
reported
Defs.’ SUF Ex. E (“Frank Dep.”)
31:2-32:9, ECF No. 20-5.
7
E.
Termination Incident
On June 17, 2014, Darosa was instructed by a press operator,
Walter Beauchamp, to stop mixing and toning inks until the client
arrived to approve the color on a sample sheet.
45; Defs.’ SUF ¶ 129.
Pl.’s SUF ¶¶ 41-
According to Admiral, Darosa disobeyed that
instruction, yelled at Beauchamp to “let me do my job!” and
continued mixing and toning the inks anyway; the ink was ultimately
wasted, at great cost to Admiral, when the client later rejected
the sample.
Defs.’ SUF ¶¶ 127-137.
Beauchamp stated that he
reported the incident up the chain of command the same day and
that Darosa was fired a week later, on June 25.
138-148.
Defs.’ SUF ¶¶
Darosa’s version of events differs slightly: he admits
that he yelled at the press operator to “let me do my job!” but
contends that disagreements of this sort were common and that he
did not continue to mix or tone inks after he was instructed to
stop.
Pl.’s SUF ¶¶ 49-54.
He also alleges that Admiral is lying
about the ink being wasted because he did not personally see anyone
discard the ink after the customer rejected the sample.
II.
Id. ¶ 55.
Legal Standard
Both
Darosa’s
discrimination
FMLA
claim
are
retaliation
analyzed
claim
under
the
and
his
ADA
burden-shifting
framework articulated in McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802-03 (1973).
initial
burden
of
Under that paradigm, Darosa bears the
establishing
8
a
prima
facie
case.
See
id.
Establishment of a prima facie case creates a presumption that the
employer unlawfully discriminated against the employee, which can
be
rebutted
only
if
the
employer
articulates
a
legitimate,
nondiscriminatory reason for its actions. Id.; see also Oliver v.
Dig. Equip., 846 F.2d 103, 108 (1st Cir. 1988).
If Admiral meets
this burden, then Darosa has the opportunity to demonstrate that
the proffered reason was not the true reason for termination but
was merely a pretext for retaliation and discrimination.
Texas
Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981).
However, even where an employer has a “compelling reason” for
terminating
an
employee
that
is
“wholly
unrelated”
to
that
employee’s disabilities, the employer cannot “use the occasion as
a convenient opportunity to get rid of [a] disabled worker[].”
Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 167 (1st Cir. 1998)
(citing Matthews v. Commonwealth Edison Co., 128 F.3d 1194, 1195
(7th Cir. 1997)).
“Nor can it be an opportunity to get rid of
workers who exercise their FMLA right to take medical leave for
serious medical conditions.” Id. (citing 29 U.S.C. § 2615(a)).
Summary judgment is appropriate when, taking all inferences
in
the
light
most
favorable
to
the
non-moving
party,
“the
pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show that there is
no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.”
9
Fed.R.Civ.P. 56(c);
Hodgens, 144 F.3d at 158. “Even in employment discrimination cases
where elusive concepts such as motive or intent are at issue,
summary judgment is appropriate if the non-moving party rests
merely upon conclusory allegations, improbable inferences, and
unsupported speculation.” Benoit v. Tech. Mfg. Corp., 331 F.3d
166, 173 (1st Cir. 2003) (quotations omitted).
III. Discussion
A.
Count I – FMLA Retaliation
Darosa first alleges that he was terminated in retaliation
for taking forty days of FMLA leave in 2013.
To make out a prima
facie case of FMLA retaliation, Darosa must show that (1) he
availed himself of a protected right under the FMLA; (2) he was
adversely affected by an employment decision; (3) there is a causal
connection
between
employment action.
the
protected
activity
and
the
adverse
See Randlett v. Shalala, 118 F.3d 857, 862
(1st Cir. 1997); McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802-03 (1973).
i. Darosa’s prima facie case
There is no dispute here that by taking FMLA leave, Darosa
“availed himself of a protected right” under the FMLA or that he
was adversely affected by Admiral’s decision to terminate him.
Randlett, 118 F.3d at 862.
However, the parties disagree about
whether Darosa’s $500 year-end bonus and 3% annual raise in 2013
constitute adverse employment decisions and whether Darosa has
10
established a causal connection between his FMLA leave in 2013 and
his ultimate termination a year later.
1. Darosa’s 2013 year-end bonus and annual raise do
not constitute adverse employment decisions
under the FMLA
Darosa
alleges
that
he
suffered
an
adverse
employment
decision when he received a lower year-end bonus and annual raise
for 2013 as compared with 2012.
See Pl.’s Mem. 10.
While he
acknowledges that the bonus and raise at issue were awarded, in
part, based on his poor performance evaluation in 2013, he contends
that
his
supervisors
impermissibly
lowered
his
score
in
the
“attendance” and “overtime” categories because he took so much
FMLA leave that year. Id. at 13-15.
He apparently believes that
his low scores in those two categories (as opposed to his low
scores in virtually every other category) caused him to receive a
reduced bonus and raise.
As an initial matter, Darosa has produced no evidence showing
that his supervisors actually considered his FMLA leave when
evaluating his performance: Admiral has no official policy about
how supervisors should fill out the evaluation form, the form
itself contains no instructions about what supervisors should
consider, and Wilbur testified that none of Admirals’ supervisors
considered FMLA leave when evaluating an employee. See Wilbur Dep.
29:19-31:21; Frank Dep. 25:5-26:11. However, even if Darosa had
proved
that
his
supervisors
considered
11
his
FMLA
leave
when
evaluating his performance, his lower bonus and raise in 2013 still
would not constitute an adverse employment decision in violation
of the FMLA because: (1) the awards were based on specific goals
which Darosa failed to meet, as evidenced by his low scores in
five of the six evaluation categories; and (2) both awards were
discretionary, incentive-based awards to which Darosa was not
automatically entitled.
bonuses
each
year
See Wilbur Dep. 33:10-14 (“Most of our
are
very
subjective.
After
company
profitability, most of it comes down to really the owner and a
meeting one on one with the supervisor and how they performed
during the year.”).
When a bonus or raise is based on a specific goal – such as
hours worked or perfect attendance – an employee who failed to
meet that goal due to FMLA leave may properly be denied payment.
See 29 C.F.R. § 825.215(c)(2) (“[I]f a bonus or other payment is
based on the achievement of a specified goal such as hours worked,
products sold or perfect attendance, and the employee has not met
the goal due to FMLA leave, then the payment may be denied, unless
otherwise paid to employees on an equivalent leave status for a
reason that does not qualify as FMLA leave. For example, if an
employee who used paid vacation leave for a non-FMLA purpose would
receive the payment, then the employee who used paid vacation leave
for an FMLA-protected purpose also must receive the payment.”).
Additionally, when there is no automatic entitlement to the bonus
12
or raise, denial of that award does not constitute an adverse
employment action.
See Rabinovitz v. Pena, 89 F.3d 482, 488–89
(7th Cir. 1996) (“[L]oss of a bonus is not an adverse employment
action
in
a
case
such
as
this
where
the
employee
is
not
automatically entitled to the bonus.”).
Here, Admiral employees were scored on their ability to meet
specific company goals: attendance, attitude, work ethic, work
knowledge, productivity, assisting others, and overtime.
When
compared with his fellow ink technicians, it is clear that Darosa
failed to meet most of these goals, as evidenced by the fact that
he scored lower in almost every category than his colleagues.
Because Darosa has produced no evidence showing that Admiral gave
lower scores (and, consequently, lower bonuses and raises) only to
FMLA-leave taking employees but not to employees who took non-FMLA
leave, Darosa has not established that his year-end bonus or annual
raise were reduced in retaliation for his taking FMLA leave in
2013.
See 29 C.F.R. § 825.215(c)(2) (“[I]f an employee who used
paid vacation leave for a non-FMLA purpose would receive the
payment, then the employee who used paid vacation leave for an
FMLA-protected purpose also must receive the payment.”)
Likewise, because both the year-end bonus and the annual raise
were discretionary, incentive-based awards to which no Admiral
employee was automatically entitled, Darosa did not suffer an
adverse employment action by receiving reduced awards.
13
See Frank
Dep.
24:14-18
(“Jack’s
attendance
performance while he was at work.
in late, leaving early.
rating
is
based
on
Jack’s
Jack was notorious for coming
He’s rated against his peers for the time
that he’s on the job only.”); Wilbur Dep. 33:10-14 (“Most of our
bonuses each year are very subjective.”).
The analysis might be
different had Admiral denied Darosa the safety or holiday bonuses
(see supra note 3) to which all employees were automatically
entitled, regardless of the quality of their performance. However,
Darosa does not dispute the fact that he received those bonuses on
the same terms as every eligible Admiral employee.
Accordingly,
Darosa’s $500 year-end bonus and 3% annual raise do not constitute
adverse employment decisions under the FMLA.
2. Causation
The parties dispute whether Darosa has established a causal
connection between his 2013 FMLA leave and his ultimate termination
almost a year later.
Admiral Argues that Darosa’s FMLA leave is
too attenuated from the termination decision to be related. Darosa
contends, in essence, that the temporal nexus is irrelevant because
several comments from Hummel and Frank indicate that Admiral was
“setting him up for something” – i.e., his ultimate termination.
Darosa Dep. 46:10-11.
Darosa’s
strongest
evidence
showing
a
causal
connection
between his termination and his FMLA Leave is a comment Hummel
allegedly made in February 2014, when he told Darosa that he was
14
there to get rid of “the old, the sick, the people taking a lot of
time out from work.”
Id. 45:5-22.
It is unclear where and when
Hummel made these comments, but Darosa testified that he could
tell from Hummel’s “tone” that Hummel was referring specifically
to him and his disability.
Id. 45:23-46:19.
At around the same
time, Hummel also allegedly told Darosa that “soon he would not
have to worry about” certain internal processes to which Darosa
had objected.
together,
something”
Id.
Darosa believes that these two comments, taken
indicated
and
that
implies
Hummel
(without
was
“setting
stating
[him]
outright)
up
for
that
the
“something” was his ultimate termination several months later.
Id. 46:10-11.
On the one hand, there appears to be no real connection
between the “old and sick” comment and the comment that “soon
[Darosa] would not have to worry about” certain processes, because
Darosa testified that the two comments did not occur in the same
conversation and may have even occurred as far as a month apart.
Id. 45:13-46:24.
On the other hand, Hummel’s comment about “sick”
employees who were “taking a lot of time out from work” certainly
could be a reference to disabled employees taking medicallynecessary leave.
Moreover, because Darosa’s termination occurred
less than six months after this comment was allegedly made, there
is a (very tenuous) temporal connection between the comment and
the termination.
Although it is a close call, taking all of the
15
evidence in the light most favorable to Darosa, Hummel’s comment
about getting rid of “the old, the sick, the people taking a lot
of time out from work” employees is sufficient to establish a
causal connection between his 2013 FMLA leave and his termination
in 2014. Id. 45:5-22.
ii. Pretext
As
Darosa
has
established
a
prima
facie
case
of
FMLA
retaliation, Admiral may rebut the presumption of discrimination
only by articulating a legitimate, nondiscriminatory reason for
its termination decision.
See Oliver, 846 F.2d at 108.
If Admiral
meets this burden, then Darosa can defeat summary judgment only by
demonstrating that the proffered reason was not the true reason
for his termination but was merely a pretext for FMLA retaliation.
Burdine, 450 U.S. at 256.
Admiral has met its burden by contending that Darosa was fired
in response to the June 17 incident, which Frank described as “a
really bad situation of insubordination . . . where he cost us a
lot of money and where the customer was not satisfied.”
Frank
Dep. 31:9-13. However, even though Admiral had a “compelling
reason” for terminating Darosa that was “wholly unrelated” to his
colitis and accompanying FMLA leave, it cannot “use the occasion
as a convenient opportunity to get rid of [a] disabled worker[].”
Hodgens, 144 F.3d at 167 (citing Matthews, 128 F.3d at 1195).
Nor
can it be an opportunity to get rid of workers who exercise their
16
FMLA right to take medical leave for serious medical conditions.”
Id. (citing 29 U.S.C. § 2615(a)).
Admiral argues that Darosa’s history of workplace misconduct
supports the legitimacy of its termination decision because it
proves that Darosa was a problem employee who had finally run out
of goodwill.
Indeed, the record reflects that Darosa had an
extensive history of disciplinary issues and attitude problems
while employed at Admiral.
March
1993
after
an
He was suspended for three days in
aggressive
confrontation
with
supervisors and colleagues over a can of spilt ink.
SUF ¶ 97; see also Disciplinary History at 6-10.
multiple
See Defs.’
Later that same
year, he received a verbal warning for being late nineteen times
and absent six times between January and July.
Id. ¶ 98, Ex. G at
13. Similarly, on April 1, 1996, after months of chronic tardiness
and absenteeism, Darosa received a “First and Final warning” after
he
“[c]reated
a
disturbance
involving
union
and
management
employees on 3/29/96,” pursuant to which he was informed that the
“[n]ext incident will result in discharge.” Id. ¶ 100, Ex. G at
16.
For years thereafter, Darosa’s attendance problems plagued
his employment at Admiral and he was written up many other times
for chronic tardiness and unexplained absenteeism, as well as
violations of safety protocols for stunts like riding an ink cart
down a ramp.
See generally Disciplinary History.
track-record,
Admiral
contends
17
that
Darosa’s
Given this
insubordinate,
aggressive behavior on June 17, 2014 was simply “the last straw.”
Frank Dep. 31:12-14.
However,
the
severity
and
consequences
disagreement are hotly disputed issues of fact:
of
the
June
17
Admiral maintains
that Darosa screamed at another employee and refused to follow
directions, causing Admiral to waste a significant amount of ink,
at great cost; Darosa admits that he lost his temper, but denies
that he refused to follow instructions and argues that the ink was
not, in fact, wasted.
The Court must take these disputed facts in
the light most favorable to Darosa.
Viewed through that lens, it
is
minor
arguably
not
credible
that
a
disagreement
between
employees should suddenly constitute a fireable offense when,
prior to 2014, much more egregious conduct had warranted only a
handful of written warnings or, at worst, a suspension.
Stated
differently, by not firing Darosa for his more egregious conduct
early on, Admiral evidenced its belief that Darosa’s usefulness as
an
ink
technician
outweighed
his
disciplinary
issues;
the
company’s calculus appears to have changed, but only after Darosa
took forty days of FMLA leave in 2013.
The FMLA does not permit employers to rid themselves of
individuals who are “taking a lot of time out of work,” Darosa
Dep. 45:17, by biding their time until the leave-taking employee
commits a minor, if legitimate, infraction.
these
garden-variety
human
errors
18
to
Courts cannot allow
sanitize
an
employer’s
discriminatory employment decision because doing so would defeat
the core purpose of the FMLA: “[T]o help working men and women
balance the conflicting demands of work and personal life [by]
recognizing that there will be times in a person's life when that
person is incapable of performing her duties for medical reasons.”
Hodgens, 144 F.3d at 159 (quoting Price v. City of Fort Wayne, 177
F.3d 1022, 1024 (7th Cir. 1997).
By the same token, as has been
so often repeated, an employer is free to terminate an employee
for a good reason or a bad reason – just not an illegal reason.
Here, the jury will have to decide which it is.
Because the parties dispute the specifics of the June 17,
2014 incident, the Court finds that Darosa has established a
colorable argument that Admiral used the June 17, 2014 incident as
a “convenient opportunity to get rid of [a] disabled worker[].”
Hodgens, 144 F.3d at 167.
Accordingly, there is a genuine dispute
of material fact as to whether Admiral’s proffered reason for
terminating him was merely a pretext for FMLA retaliation.
B.
Count III – ADA Discrimination, Hostile Work Environment
Darosa points to approximately a dozen harassing comments he
received after he returned from his 2013 FMLA leave to support his
allegation that he was subjected to a hostile work environment
based on his disability.
See Compl. ¶¶ 30-34.
Those comments
include the following: three or four comments from a maintenance
worker that the restroom “stinks” and that Darosa “shit like a
19
bird,” Darosa Dep. 36:11-20; three to five comments from a press
operator to the effect of “I know your kind,” “I know your people,”
and
“you
stink,”
comments
from
Beauchamp about Darosa’s frequent trips to the restroom.
Id.
39:22-40:9.
Id.
38:6-25;
and
occasional
Darosa claims that he did not report these comments
because his supervisor at the time was present when the comments
were made and never intervened.
Id. 39:4-14.
To prevail on a hostile work environment claim premised on
his disability, Darosa must show that: he was disabled; he was
subject to uninvited harassment; Admiral’s conduct was based on
his disability; the conduct was so severe or pervasive that it
altered the conditions of his work environment; and the harassment
was objectively and subjectively offensive.
See McDonough v.
Donahoe, 673 F.3d 41, 45 (1st Cir. 2012).
There is no dispute that Darosa suffered from a qualifying
disability under the ADA or that the aforementioned comments were
directed at him and were based on his disability.
However, Darosa
admits that these comments occurred only a handful of times,
indicating that, by definition, the alleged harassment does not
constitute “severe and pervasive” conduct sufficient to establish
a prima facie case of hostile work environment.
See Faragher v.
City of Boca Raton, 524 U.S. 775, 788 (1998) (observing that
“sporadic
occasional
use
of
abusive
teasing”
do
language,
not
suffice
20
gender-related
to
show
a
jokes,
hostile
and
work
environment); Kosereis v. Rhode Island, 331 F.3d 207, 216 (1st
Cir. 2003) (“A hostile work environment generally is not created
by a mere offensive utterance, nor does it arise from simple
teasing, offhand comments, and isolated incidents.”) (citations
and quotations omitted); Morgan v. Massachusetts General Hosp.,
901 F.2d 186, 192 (1st Cir. 1990) (holding that conduct rises to
the level of actionable harassment only when it is “sufficiently
severe or pervasive to alter the conditions of the victim’s
employment and create an abusive working environment”) (citations
and quotations omitted).
Accordingly, Admiral is entitled to
judgment as a matter of law on Count III.
IV.
Conclusion
For
the
aforementioned
reasons,
Defendants’
Motion
for
Summary Judgment (ECF No. 19) is DENIED as to Count I and GRANTED
as to Count III.
Additionally, the Court dismisses Count II.
IT IS SO ORDERED.
William E. Smith
Chief Judge
Date: May 2, 2019
21
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