Plaintiff: Patricia E. Andrews, Esq.
Defendant: Joseph D. Whelan, Esq. Meghan E. Siket, Esq.
matter came before the Court for a jury-waived trial. The
Plaintiff, Margarita Velez, filed a charge of discrimination
with the Rhode Island Commission for Human Rights
(Commission) against Defendant, Microfibres, Inc.
(Microfibres). Microfibres elected to avail itself of its
right to remove the matter from the Commission and have the
case heard and decided by this Court in accordance with G.L.
1956 § 28-5-24.1(c). Ms. Velez alleges that Microfibres
discriminated against her on the basis of her national origin
in violation of the Rhode Island Fair Employment Practices
Act (FEPA), §§ 28-5-1 through 28-5-42. Jurisdiction
is pursuant to § 28-5-24.1(c) and G.L. 1956 §
Velez, who was born in Puerto Rico and is Hispanic, worked as
a machine operator at the Microfibres factory in Pawtucket,
Rhode Island from 1994 until she was terminated on May 25,
2000. (Velez Dep. 6-7, Oct. 6, 2008 (Velez Dep.); Joint Ex.
4.) As an employee with Microfibres, Ms. Velez was a member
of the Amalgamated Clothing and Textile Workers Union Greater
Northeastern Joint Board Local 1832T (Union), which had a
collective bargaining agreement (CBA) with Microfibres.
(Velez Dep. at 60; Joint Ex. 5.) The CBA forbids Microfibres
from discriminating "against any employee on account of
race, color, creed, sex, age, national origin, or
disability." (Def.'s Ex. A. at 3.) Furthermore,
Article 13 of the CBA requires Microfibres to have "just
cause" in order to "discipline, suspend or
discharge" any employee (other than a probationary
employee). Id. at 16. Prior to her termination, Ms.
Velez had been issued warnings by Microfibres on four
separate occasions. (Velez Dep. at 15-20.) Three warnings
were issued to Ms. Velez in 1995 for job performance issues
including sleeping on the job, and Ms. Velez received a
fourth warning in 1999 for poor quality of work. Id.
the evening hours of May 3, 2000 into the early morning hours
of May 4, 2000, Ms. Velez and her co-worker, Thomas Kodua,
who is black, both were working overtime on the third shift
in the Microfibres Coating Department. Id. at 21-22.
While she was away from the machine she was operating, Ms.
Velez saw Mr. Kodua interfere with the machine. Id.
at 23. After Mr. Kodua touched her machine, the machine began
to malfunction. Id. Ms. Velez reported to a leader,
Robert E. Adamo, Jr., that her machine was malfunctioning and
that she believed Mr. Kodua was responsible. Id.
Thereafter, Ms. Velez and Mr. Kodua began to argue, and
although it is unclear as to who struck whom first, it is
undisputed that the two parties each struck the other in the
face. Id. at 24. Mr. Adamo broke up the fight, and
the two returned to work. Id.
approximately 3:00 a.m., as Ms. Velez was leaving the
Microfibres factory building at the end of her shift, she
passed Mr. Kodua in the hallway and the two exchanged
insults. Mr. Kodua followed Ms. Velez into the parking lot
and the two parties had another confrontation in the parking
lot. Id. at 24 and 26. During said confrontation,
the parties pushed each other and Mr. Kodua again slapped Ms.
Velez in the face. Id. at 24-25. In return, Ms.
Velez slapped Mr. Kodua in the face and tried to bite him.
Id. at 25. Mr. Kodua and Ms. Velez were wrestling on
the ground, pushing and shoving each other, until Mr. Adamo
and another co-worker, Ronald Buisson, separated them. (Tr.
Arbitration Hr'g 21, Aug. 28, 2001.)
that Mr. Kodua had a stun gun on his person and that he would
follow her home (Velez Dep. at 26), Ms. Velez retrieved a
baseball bat from her car. (Tr. Arbitration Hr'g 21, Aug.
28, 2001.) However, Mr. Buisson promptly took the bat from
Ms. Velez. Id. at 21 and 32; Velez Dep. at 27. At
some point during this exchange while Mr. Kodua and Ms. Velez
were outside of the Microfibres factory building, Mr. Kodua
called Ms. Velez a "Spanish slut, " and Ms. Velez
called Mr. Kodua a "nigger." (Tr. Arbitration
Hr'g 38, Aug. 28, 2001.) The parties returned to work the
transpired between Ms. Velez and Mr. Kodua (Velez-Kodua
incident) was not reported to upper management until two days
later on May 5, 2000, when a supervisor, Michael Jezak,
informed the Director of Human Resources, Thomas J. McNamara.
(Pl.'s Ex. 18A.) Mr. McNamara and Microfibres' plant
manager, Peter Volante, decided to suspend Ms. Velez and Mr.
Kodua on May 6, 2000, pending Mr. McNamara's
investigation of the incident. (Pl.'s Ex. 18B) Mr.
McNamara, Mr. Volante and Supervisor Manuel Mota met in
person on the morning of May 8, 2000, to discuss Mr.
McNamara's investigation and the existence of possible
witnesses. (Pl.'s Ex. 18C.) The men agreed that Mr.
McNamara would interview Ms. Velez, Mr. Kodua, Mr. Buisson,
Mr. Adamo, Glenn Audette (the third shift supervisor in the
Coating Department), and Mr. Jezak. Id.
conclusion of Mr. McNamara's investigation, Microfibres
decided to terminate both Mr. Kodua and Ms. Velez. (Joint Ex.
6.) The discharge paperwork stated that Ms. Velez was
discharged for violating Plant Rule
#23—"Threatening or intimidating of fellow
employees on Company Premises" and Plant Rule
#24—"Provoking, Instigating a fight or fighting on
Company premises." Id. According to
Microfibres' rules, the penalty for violating Plant Rule
#23 is a warning while the penalty for violating Plant Rule
#24 is discharge. (Joint Ex. 1.)
Union, through filing a grievance in accordance with the
three step grievance process prescribed by the CBA, sought to
have Ms. Velez's employment with Microfibres reinstated.
(Joint Ex. 5.) At the Step One meeting on May 10, 2000, the
Union's grievance was denied by Mr. McNamara.
Id. At the Step Two meeting on May 12, 2000, the
Union's grievance was denied by Manuel Mota (the Manager
of the Coating Department) and Mr. Volante. Id.
During the final Step Three meeting on May 26, 2000, the
Union's grievance was denied by James R. Fulks, the
Executive Vice President of Microfibres. Id.
addition to the Union's filing of a grievance, Ms. Velez
filed a charge of discrimination with the Commission. (Joint
Ex. 4.) On August 2, 2001, the Commission found probable
cause to believe that Microfibres had violated the FEPA by
treating Ms. Velez differently than other similarly-situated
white employees because of her national origin. On August 24,
2001, Defendant elected to terminate proceedings with the
Commission and to have the matter heard by this Court, which
prompted the Commission to issue to Ms. Velez a right to sue
letter dated September 18, 2001. See §
the Union's challenge of Microfibres' termination of
Ms. Velez proceeded to arbitration. On December 10, 2001, the
arbitrator denied the Union's grievance, finding that
Microfibres had just cause to terminate Ms. Velez and Mr.
Kodua. See Award of Arbitrator at 1. On December 13,
2001, Ms. Velez filed a Complaint with this Court alleging
that Microfibres terminated her employment because of her
national origin. (Compl.) Ms. Velez seeks compensatory and
punitive damages as well as attorneys' fees and costs.
Id. The case proceeded to trial and the parties
later submitted post-trial memoranda.
facts will be provided in the Analysis portion of this
non-jury trial is governed by Super. R. Civ. P. 52(a), which
provides that "[i]n all actions tried upon the facts
without a jury . . . the court shall find the facts specially
and state separately its conclusions of law thereon. . .
." Therefore, in a bench trial, "[t]he trial
justice sits as a trier of fact as well as of law."
Parella v. Montalbano, 899 A.2d 1226, 1239 (R.I.
2006) (citing Hood v. Hawkins, 478 A.2d 181, 184
(R.I. 1984)). Thus, '"[t]he task of determining the
credibility of witnesses is peculiarly the function of the
trial justice when sitting without a jury.'"
Greensleeves, Inc. v. Smiley, 68 A.3d 425, 436 (R.I.
2013) (quoting Bogosian v. Bederman, 823 A.2d 1117,
1120 (R.I. 2003)).
the trial justice is required to make specific findings of
fact and conclusions of law, "brief findings will
suffice as long as they address and resolve the controlling
factual and legal issues." White v. LeClerc,
468 A.2d 289, 290 (R.I. 1983); see also Super. R.
Civ. P. 52(a). As such, a trial justice sitting as a finder
of fact "need not 'categorically accept or reject
each piece of evidence'" or "resolve every
disputed factual contention that may arise during a
trial." Notarantonio v. Notarantonio, 941 A.2d
138, 147 (R.I. 2008) (quoting Narragansett Elec. Co. v.
Carbone, 898 A.2d 87, 102 (R.I. 2006)). Nonetheless, the
trial justice's findings must be supported by
'"competent evidence.'" State v.
Dennis, 29 A.3d 445, 450 (R.I. 2011) (quoting Tim
Hennigan Co. v. Anthony A. Nunes, Inc., 437 A.2d 1355,
1357 (R.I. 1981)).
bringing her claim of disparate treatment, Ms. Velez argues
that several other non-Hispanic Microfibres employees engaged
in conduct similar to her behavior in the Velez-Kodua
incident but were treated more favorably by Microfibres in
that their employment was not terminated. Accordingly, Ms.
Velez contends that Microfibres violated FEPA when it
terminated her employment for engaging in similar conduct.
prohibits employers from discharging or discriminating
against an employee "with respect to hire, tenure,
compensation, terms, conditions or privileges of employment,
or any other matter directly or indirectly related to
employment" because of the employee's "race or
color, religion, sex, sexual orientation, gender identity or
expression, disability, age, or country of ancestral
origin." Sec. 28-5-7. FEPA is Rhode Island's analog
to Title VII of the Civil Rights Act of 1964 (Title VII), 42
U.S.C.A. § 2000e et seq. (2000). The Rhode Island
Supreme Court has applied the analytical framework of Title
VII actions to those cases arising under FEPA. See Bucci
v. Hurd Buick Pontiac GMC Truck, LLC, 85 A.3d 1160, 1169
(R.I. 2014) ("This Court has adopted the federal legal
framework to provide structure to our state employment
discrimination statutes.") (quoting Neri v.
Ross-Simons, Inc., 897 A.2d 42, 48 (R.I. 2006)).
Velez's grievance is one of employment discrimination,
this Court will employ the three-part burden shifting
framework as outlined by the United State Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802-04 (1973) and its progeny. See Bucci, 85 A.3d at
1169 (employing "the now familiar three-part burden
shifting framework as outlined by the United States Supreme
Court in McDonnell-Douglas Corp., 411 U.S. at
802-04, 93 S.Ct. 1817"). The purpose of applying the
McDonnell-Douglas framework is to "'sharpen
the inquiry into the elusive factual question' of the
employer's motivation." Hicks v. Johnson,
755 F.3d 738, 744 (1st Cir. 2014) (quoting Texas
Dep't of Cmty. Affairs v. Burdine, 450 U.S.
248, 256 n.8 (1981) (parallel citations omitted)).
first prong prescribed by the McDonnell-Douglas framework
places the initial burden on the plaintiff to establish a
prima facie case of discrimination. McDonnell
Douglas, 411 U.S. at 802. Once a prima facie
case of discrimination is established, the employer is
presumed to have unlawfully discriminated against the
employee. See Burdine, 450 U.S. at 254.
Then, the burden of production shifts to the employer to
articulate some legitimate, nondiscriminatory reason for the
employee's termination. See Ctr. for Behavioral
Health, R.I., Inc. v Barros, 710 A.2d 680, 685 (R.I.
1998) (citing McDonnell Douglas, 411 U.S. at 802)
(citations omitted)). Provided that the employer "offers
such a justification, the presumption created by the
employee's prima facie case disappears and the focus
shifts back to the employee to demonstrate that the proffered
reasons are a mere pretext for discrimination."
Id. At that point, "[t]he burdens of proof and
persuasion fall squarely upon the plaintiff to demonstrate
that the defendant's tendered explanation is only a
pretext and that discrimination was the true motive
underlying the hiring decision." McGarry v.
Pielech, 47 A.3d 271, 280-81 (R.I. 2012).
Prima Facie Case
forth a prima facie case, the plaintiff must prove,
by a preponderance of the evidence, "(1) membership in a
protected group; (2) qualification for the job in question;
(3) an adverse employment action; and (4) circumstances that
support an inference of discrimination."
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510
(2002) (citations omitted). The burden of establishing a
prima facie case is "easily made, "
Kosereis v. Rhode Island, 331 F.3d 207, 213 (1st
Cir. 2003) (citations omitted) and "not especially
onerous." Bucci, 85 A.3d at 1171; see also
Burdine, 450 U.S. at 253. The threshold necessary to
establish a prima facie case is "relatively
low." Hodgens v. Gen. Dynamics, 144 F.3d 151,
165-66 (1st Cir. 1998).
Velez clearly satisfies the first three prongs of her
prima facie case: as a Hispanic, she is a member of
a protected group; she was qualified for the job in question;
and she received an adverse employment action when she was
terminated from her job. However, Microfibres contends that
Ms. Velez failed to establish a prima facie case
because she has not shown that Microfibres treated similarly
situated non-Hispanic employees more favorably than it
treated her. However, this contention is misplaced.
First Circuit has "explicitly rejected the notion that
plaintiffs in disparate treatment cases are required to
demonstrate that they were treated differently as part of
their prima facie case." Kosereis, 331 F.3d at
213. Furthermore, where an employer asserts a legitimate and
nondiscriminatory reason for terminating an employee, the
United States Supreme Court has held that whether the
employee actually established a prima facie case is
"no longer relevant" and thus disappears and
"drops out of the picture." St. Mary's
Honor Ctr. v. Hicks, 509 U.S. 502, 510, 511 (1993).
that this Court will find that Microfibres has asserted
legitimate and nondiscriminatory reasons for terminating Ms.
Velez, this Court will assume, without deciding, that Ms.
Velez has made out a prima facie case. Thus, because
Ms. Velez's case is one of disparate treatment, this
Court will consider any comparative evidence "as part of
the pretext analysis, and not as part of the plaintiff's
prima facie case." Kosereis, 331 F.3d at 213
(citing Conward v. Cambridge Sch. Comm., 171 F.3d
12, 19 (1st Cir. 1999)).
burden of production falls on the defendant under the
McDonnell Douglas framework "to come forward
with legitimate nondiscriminatory reasons for the
employee's termination" once a plaintiff establishes
her prima facie case. Bucci, 85 A.3d at
1171. The elimination of the presumption of discrimination
established by the prima facie case is contingent
upon the defendant offering these legitimate
nondiscriminatory reasons. See id. Here, "a
defendant need only offer affidavits supporting the
nondiscriminatory reason." Id.
record at hand indicates that Microfibres articulated several
nondiscriminatory reasons why it terminated Ms. Velez.
Microfibres determined that Ms. Velez intentionally engaged
in a physical fight with a co-worker on Microfibres'
premises twice over the course of one shift, including
hitting the co-worker numerous times, trying to bite him,
attempting to go after him with a baseball bat, and calling
him a "nigger." Courts in other jurisdictions have
found that similar reasons satisfy the employer's burden
under the McDonnell-Douglas framework. See
Harris v. Bank of Delmarva, No. MJG-13-2999, 2015 WL
501970, at *6 (D. Md. Feb. 4, 2015) (terminating an employee
who referred to a co-worker as a nigger while performing
job-related duties is a legitimate nondiscriminatory reason
for terminating the employee); Morgan v. Mass. Gen.
Hosp., 901 F.2d 186, 190 (1st Cir. 1990) (terminating an
employee who, in a work-related dispute, struck and seriously
injured a co-worker is a legitimate nondiscriminatory reason
for terminating the employee); RAP, Inc. v. Dist. of
Columbia Comm'n on Human Rights, 485 A.2d 173, 178
(D.C. 1984) (terminating an employee who drew a knife from
her purse and swung it at her husband during a fight on the
employer's premises is a legitimate nondiscriminatory
reason for terminating the employee).
the Court finds and concludes that Microfibres has satisfied
its burden of proffering legitimate nondiscriminatory reasons
for deciding to terminate Ms. Velez. Accordingly, the Court
now must determine whether Ms. Velez has satisfied her burden
of showing that the legitimate nondiscriminatory reasons
proffered by Microfibres were merely a pretext for
discriminating against her.
the employer's articulating legitimate nondiscriminatory
reasons for its decision to terminate the employee, the third
and final prong prescribed by the McDonnell-Douglas
framework "shifts the burden back to the plaintiff to
focus on 'the ultimate question of discrimination vel
non.'" Bucci, 85 A.3d at 1173 (quoting
Neri, 897 A.2d at 50 (citations omitted)). Under
this prong, the plaintiff must prove that the real reason he
or she was terminated was due to the employer's unlawful
animus toward the employee. See Bucci, 85 A.3d at
1173 ("To prove discrimination, a plaintiff need not
provide a 'smoking gun, ' but rather must prove that
'[the] defendants' legitimate, nondiscriminatory
reason for . . . [its decision] was merely pretext (which
would mean that the real reason . . . was unlawful
animus).'") (quoting Casey v. Town of
Portsmouth, 861 A.2d 1032, 1038 (R.I. 2004)). In other
words, the plaintiff must prove that the alleged legitimate
nondiscriminatory reasons offered by the employer for the
employee's termination were "merely pretext"
for discrimination. Casey, 861 A.2d at 1038 (citing
Barros, 710 A.2d at 685).
are two distinct methods by which a plaintiff may establish
pretext: "'either directly by persuading the court
that a discriminatory reason more likely motivated the
employer or indirectly by showing that the employer's
proffered explanation is unworthy of credence.'"
Bucci, 85 A.3d at 1173 (quoting Barros, 710
A.2d at 685). Again, regardless of which method a plaintiff
utilizes in seeking to establish pretext, the plaintiff must
demonstrate "that discrimination was the real
reason" for the employee's termination. Id.
(quoting McGarry, 47 A.3d at 281). Furthermore, the
Rhode Island Supreme Court has pronounced on numerous
occasions that when the reason for the employee's
termination is surrounded by a "suspicion of mendacity,
" then the inference of discrimination is strengthened.
Barros, 710 A.2d at 685.
Velez's primary argument that the legitimate
nondiscriminatory reasons proffered by Microfibres for her
termination were merely pretext for discriminating against
her is that Microfibres treated the non-Hispanic Comparators
more favorably than her. See Garcia v. Bristol-Myers
Squibb Co., 535 F.3d 23, 31 (1st Cir. 2008) (recognizing
that "[a] plaintiff can demonstrate that an
employer's stated reasons are pretextual . . . by
producing evidence that [the] plaintiff was treated
differently from similarly situated employees"). For Ms.
Velez to establish pretext in such a manner, Ms. Velez must
be similarly situated to the Comparators "'in all
relevant respects.'" Lockridge v. The Univ. of
Maine Sys., 597 F.3d 464, 471 (1st Cir. 2010) (quoting
Kosereis, 331 F.3d at 214); see also
Conward, 171 F.3d at 20 (noting that the comparison
cases "must closely resemble one another in respect to
relevant facts and circumstances").
contends that the Comparators that occurred before Mr.
McNamara's tenure at the company are not evidence of
pretext because two different supervisors may handle similar
situations differently, and such differential treatment in
and of itself does not amount to pretext. See
Rodriguez-Cuervos v. Wal-Mart Stores, Inc., 181 F.3d 15,
20 (1st Cir. 1999) (An employee's current supervisor,
having different expectations than former
supervisors—"even if those expectations were
contrary to those of  prior supervisors—does not
support a finding of pretext.").
Court concurs with courts that have held that for an employee
to be similarly situated with other employees in a disparate
treatment claim, each of the employees must "'have
dealt with the same supervisor, [and have] been subject to
the same standards'" Sellers v. U.S. Dep't
of Def., 654 F.Supp.2d 61, 67 (D.R.I. 2009) (quoting
Walker v. Ohio Dep't of Rehab. & Corr., 241
F.App'x 261, 266 (6th Cir. 2007)), because "[w]hen
different decision-makers are involved, two decisions are
rarely similarly situated in all relevant aspects."
Stanback v. Best Diversified Prods., Inc., 180 F.3d
903, 910 (8th Cir. 1999); see alsoIneichen v.
Ameritech,410 F.3d 956, 960-61 (7th Cir. 2005)
(Plaintiff must prove that the alleged similarly situated
employee "reported to the same supervisor.").
Decisions made by different supervisors regarding different
employees "are ...