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Velez v. Microfibres, Inc.

Superior Court of Rhode Island

January 12, 2017


          For Plaintiff: Patricia E. Andrews, Esq.

          For Defendant: Joseph D. Whelan, Esq. Meghan E. Siket, Esq.


          McGuirl, JUDGE.

         This 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 § 8-2-14.


         Findings of Fact

         Ms. 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.

         During 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.

         At 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.)

         Believing 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 following day.

         What 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.

         At the 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.)

         The 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.

         In 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 § 28-5-24.1(c)(1).

         Meanwhile, 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.

         Additional facts will be provided in the Analysis portion of this Decision.


         Standard of Review

         A 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)).

         Although 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)).



         In 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.

         FEPA 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)).

         As Ms. 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)).

         The 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).


         Plaintiff's Prima Facie Case

         To put 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).

         Ms. 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.

         The 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).

         Considering 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)).


         Legitimate Nondiscriminatory Reason

         The 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.

         The 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).

         Consequently, 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.



         Upon 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).

         There 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.

         Ms. 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").

         Microfibres 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.").

         This 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 ...

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