Benitez v. Susa

          For Plaintiff: Mark P. Gagliardi, Esq.

          For Defendant: Francis A. Gaschen, Esq.; Marissa Janton, Esq.; Charles N. Redihan, III, Esq.; Ryan Hurley, Esq.

          DECISION

          VOGEL, MAGISTRATE J.

         Martha D. Benitez (Benitez or Appellant) brings this appeal from a December 11, 2012 decision and order of the Rhode Island Commission for Human Rights (the Commission) dismissing her complaint. This appeal was first assigned to this Judge for Decision on March 19, 2019, after the parties finally submitted their briefs.^[1] In 2012, the Commission found that Benitez failed to prove a violation of the Fair Employment Practices Act, (FEPA), G.L. 1956 § 28-5-7. This Court exercises jurisdiction over this matter pursuant to G.L. 1956 § 42-35-15(g). For the reasons set forth herein, the Court affirms the decision of the Commission.

         I Facts and Travel

         Martha D. Benitez was born in Ecuador and speaks only Spanish. (Hr'g Tr. at 16-17, Feb. 14, 2012 (Vol. I).) She came to the United States in 1987 and began working at Pyramid Case Company (Pyramid) on March 23, 2003, where she remained continuously employed until temporarily leaving work on sick leave in November, 2007. Id. at 17, 33-34. She returned to work on March 11, 2008, and remained employed until May 9, 2008, when she was laid off allegedly due to lack of work. Id. at 34, 28. Her starting wage was $7.00 per hour which increased to $8.00 per hour by the time she left her employment in 2008. Id. at 18.

         The firm employed workers from various national origins, including Puerto Rico, Guatemala, El Salvador, Bolivia, Honduras, and Ecuador. (Id. at 19, 70; Hr'g Tr. at 79, 104, Feb. 15, 2012 (Vol. II); Hr'g Tr. at 9, Feb. 16, 2012 (Vol. III).) By all accounts, Benitez was a good worker and operated a single needle sewing machine for the company. (Hr'g Tr. Vol. II at 89-90, 109.) Pyramid manufactured eye glass cases to be supplied to optical companies. (Hr'g Tr. Vol. I at 84-86; Hr'g Tr. Vol. III at 18.) Benitez never qualified to work on more complex machinery which would have required the worker to demonstrate greater strength and skill to operate. (Hr'g Tr. Vol. II at 7-8, 89-90, 109, 119; Hr'g Tr. Vol. III at 29.)

         At all times material hereto, Blanca Cruz and Mario Meletz supervised Benitez. (Hr'g Tr. Vol. I at 19-20; Hr'g Tr. Vol. III at 12.) Reynar Vazquez maintained the company machines and may have had managerial responsibilities at Pyramid. (Hr'g Tr. Vol. I at 19-20; Hr'g Tr. Vol. II at 66, 75.) Vazquez, Cruz, and Meletz are of Guatemalan origin.

         Three events allegedly occurred in 2007 pertinent to Benitez's allegations against her former employer. These events predated Appellant's sick leave. First, in August 2007, Benitez purportedly asked Cruz, Meletz, and Vazquez for a raise in pay. (Hr'g Tr. Vol. I at 21.) Apparently, none of those individuals passed her request on to her employer, Joseph Caruso, the owner of the company. Id. at 24, 74. However, it does appear that Cruz and Meletz did communicate similar requests to him on behalf of other employees. Id. On October 19, 2007, Benitez and her daughter, Paola Harris (Harris), who assisted her with English translation and sometimes communicated on her behalf, met with Caruso. Id. at 23-24, 73. He told Benitez that he had not received her request for a pay increase, to which she responded that the failure to pass along her request was due to discrimination against her. (Id. at 28, 75; Hr'g Tr. Vol. III at 26, 44.) She claimed that the supervisors favored Guatemalans, and she was Ecuadorian. (Hr'g Tr. Vol. I at 24-26, 28, 75.) Caruso brought Cruz into the meeting, and he asked her about Benitez's job performance, which Cruz acknowledged was good. Id. at 26.

         According to Benitez, Caruso later spoke to Harris and promised that her mother would receive a $1 wage increase, and that she also would be given an opportunity to work on more complex machines. Id. at 27; 52-53, 76-77. For his part, Caruso maintains that the promised raise was fifty cents, not a dollar. (Hr'g Tr. Vol. II at 6-7.) Caruso claims that he communicated the pay raise to his secretary, Marilyn Martinez (Martinez), but apparently, the raise was not processed. Id. at 7. Benitez did not receive the increase in pay. Id.

         On October 23, 2007, Benitez claims that she was called to Caruso's office where she found Caruso, Vazquez, Cruz, Meletz, and Martinez laughing and speaking in English. (Hr'g Tr. Vol. I at 29-30.) She claims that she thought that their comments and humor were directed at her, and she left the meeting upset. Id. at 30-31.

         Benitez continued working at Pyramid until she took sick leave in November 2007. Id. at 33-34. When she returned on March 11, 2008, her particular station was occupied by someone else, and she claims that she was unable to find personal items she had left at work when she became ill. Id. at 34, 36. Apparently, she was given a different work station and continued working on a single needle machine until May 9, 2008, when she received a letter from the company stating that she was being laid off due to lack of work as of May 12, 2008. Id. at 38-40; see also Complainant's Ex. 1.

         On October 3, 2008, Benitez filed a charge with the Commission against Pyramid, Cruz, Meletz, and Vazquez, alleging discriminatory terms and conditions of employment, harassment and termination based upon her ancestral origin, and retaliation for opposing unlawful employment practices in violation of § 28-5-7. (Compl. ¶ 3).^[2] On February 23, 2009, she amended the charge against the respondents, raising the same allegations. Id. The Preliminary Investigating Commissioner found probable cause that Pyramid, Cruz, Meletz, and Vazquez violated § 28-5-7, as alleged. Id.

         On October 1, 2010, the Commission issued a Notice of Hearing and Complaint. The hearing on the Complaint was conducted on February 14, 15, and 16, 2012. The following persons provided testimony at the hearing: Benitez, her daughter, Harris; two former co-workers who received similar termination letters; and Caruso, Martinez, Meletz, and Cruz. The Commission also received numerous exhibits.

         At the hearing, Benitez appeared as the first witness. She testified that she had worked as a sewer at Pyramid sewing boxes, pockets, Velcro, and zippers. (Hr'g Tr. Vol. I at 18.) Benitez also testified that although she had not received a pay raise in three years, some of her co-workers had received raises. Id. at 22. She stated that she was aware that Vazquez, Cruz, and Meletz had put in for pay raises for her co-workers, so in August 2007, she asked them for a raise. Id. at 21. When Benitez did not receive an immediate response, she repeated her request several times. Id. at 22. They informed her that Caruso was away on a trip. Id.

         Benitez later decided that she should meet with Caruso to discuss a pay raise, and she asked her daughter, Harris, to help with translation. Id. at 23-24. On October 19, 2007, Benitez, Harris, and Caruso met to discuss Benitez's raise. Id. at 24-28. It was at this meeting that Benitez discovered that her supervisors had not forwarded her previous requests to Caruso. Id. at 24. According to Benitez, the supervisors had forwarded pay-raise requests from eight of her co-workers, only two of whom were not Guatemalan. Id. at 25.

         Benitez testified that she told Caruso that she believed she did not receive a raise because she was Ecuadorian and not Guatemalan. Id. at 28. Benitez further testified that her supervisors treated her differently by not fixing her machine in a timely manner after it broke, even though they would timely fix the machines of her Guatemalan co-workers. Id. at 29. She also stated that Guatemalan employees would get the "best jobs" and that any mistakes that they made would be discarded; whereas, she would have to "break the stitches and resew it again." Id. It is unclear from her testimony, however, whether Benitez informed Caruso about this purported differential treatment.

         Caruso summoned the supervisors to his office to make inquiries about Benitez's work performance, but Cruz was the only one to appear. Id. at 26. Cruz told Caruso that Benitez "was a good worker." Id. At that point, Benitez returned to her work station, while Harris remained behind to speak to Caruso. Id.

         Benitez testified that Caruso told Harris that he would check her mother's employment file. Id. at 27. She stated that Harris informed Caruso that her mother "was a very serious person at work and always on time . . . ." Id. Caruso then allegedly told Harris that he would give Benitez a one dollar raise "under the condition that I [Benitez] wouldn't tell anything to any of my co-workers, but for that they were going to change me to another machine." Id. Benitez testified that her understanding was that Caruso would have her try to work on another machine so that she could make more money, but that they never put her on a different machine. Id. at 52-53. Benitez had never graduated from the single needle machine for which she had been hired to operate. See 2003 Appl. for Employment.

         Benitez testified that four days later, on October 23, 2007, Vazquez instructed Benitez to go to Caruso's office for a meeting. Id. at 29. She testified that when she arrived, Cruz, Meletz, Vazquez, Martinez, and Caruso already were present, and that they were speaking in English and laughing. Id. at 30. Benitez stated that she became very upset because she did not understand what they were saying, but that she "kn[e]w they were talking about [her] at that time." Id. Benitez left the room and returned to her work station. Id. According to Benitez, Caruso and Martinez then came to her work station to inquire about her wellbeing, and that "[t]hey were very upset because I had brought in my daughter." Id.

         Benitez testified that her supervisors began to treat her differently after the October 19, 2007 meeting by talking "behind [her] back" and giving overtime to workers who mostly were from Guatemala. Id. at 32-33. On November 23, 2007, Benitez was hospitalized, and did not return to her job until March 11, 2008, at which time another employee was occupying her work station and she discovered that her personal belongings were missing. Id. at 34-36. Benitez testified that she always performed her job in an excellent manner, that she always was punctual, and that she never had received a probation or suspension from work. Id. at 37-38.

         On May 9, 2008, Pyramid laid off Benitez due to an alleged lack of work. Id. at 38. Benitez testified that she had not noticed any slowdown in work at the time. Id. at 40. She also testified that despite her continuous efforts to find a new job (as of the date of her testimony during the February 14, 2012 hearing), she had not succeeded in doing so, and that she suffers from depression following her separation from Pyramid. Id. at 40-46. At the February 14, 2012 hearing, Benitez stated that she was then taking the medication Lexapro to treat her symptoms of depression. Id. at 45.

         Benitez's daughter, Harris, testified next. She stated that she arrived at Pyramid without an appointment to meet with Caruso on October 19, 2007. Id. at 72-73, 79. She did so because she wanted to serve as a translator at a meeting between Benitez and Caruso. Id. at 73-74. Harris testified that Caruso expressed surprise when he learned that Benitez previously had requested a pay raise. Id. at 74. According to Harris, Caruso stated that the supervisors had requested raises for "Juana, Carlos, Elba, Arelis, Martha Garcia, [and] Betty[, ]" and that "[t]hey were the only workers that received a raise." Id. She stated that according to her mother, four of those workers were Guatemalan, one was from Bolivia, and one was from "Salvador." Id. Harris testified that Benitez told Caruso that she believed she was not given a raise because she was from Ecuador rather than from Guatemala. Id. at 75, 77.

         Harris then stated that when Cruz joined the meeting, Cruz reported that Benitez was a good worker. Id. at 75. Harris also stated that Caruso said that he would review Benitez's employment file, and that he later called Harris to inform her that "he agreed to give a $1 raise to [her] mother and [Benitez] need[ed] to be quiet about the raise and she would be working on different machine." Id. at 77.

         Caruso testified that he has owned the forty-year-old Pyramid Case Company since 1989. Id. at 83-84. Traditionally, the company only made cases for optical companies for their designer glasses; however, it since has expanded into contract work such as making bullet proof vests for the government. Id. at 84. Caruso testified that during the time period relevant to this case, Pyramid had a lot of low-end contract work. Id. at 85. He stated that factory employees make between $7.50 and $8.50 per hour, and that Benitez was making $8 when she was laid off. (Hr'g Tr. Vol. II at 17-21, 30.) He further stated that Benitez worked on the single needle machine making the basic case. (Hr'g Tr. Vol. I at 89; Hr'g Tr. Vol. III at 24.) Caruso said that the basic case required great volume in order to render it a viable, worthwhile product to make. (Hr'g Tr. Vol. III at 24.) He also stated that Vazquez was not on the payroll, and that Vazquez provided maintenance work as an independent contractor. (Hr'g Tr. Vol I at 93; Hr'g Tr. Vol. III at 27.)

         Caruso testified that Benitez told him at the October 19, 2007 meeting that her supervisors had discriminated against her based on her national origin. (Hr'g Tr. Vol. III at 44.) He denied considering a person's background in making a hiring decision, because in his opinion, all his employees are "Americans[.]" Id. at 33; see also id. at 53 ("I made it a point, I always looked at them, you know, the same. They're Americans, they have a job to do.").

         Caruso also testified that the October 23, 2007 meeting was "cordial" and "professional." (Hr'g Tr. Vol. III at 28.) He stated that the meeting was "under control . . . I wouldn't let anyone laugh at anybody . . . We were trying to figure out if she can do some other jobs." Id. Caruso further testified that when he asked Meletz and Cruz at the meeting whether they were "discriminating against [Benitez] because she's from Ecuador," they denied the accusation. (Hr'g Tr. Vol. III at 45.) He said Vazquez also denied the same question. Id. Caruso admitted that he agreed to give Benitez a pay raise, but he disputed the amount, testifying that he agreed to a fifty-cent raise rather than one dollar. (Hr'g Tr. Vol. II at 6-7.) He stated that he told his secretary to give Benitez a fifty-cent raise, but that "it didn't happen" and "that was a mistake." Id. at 7.

         Caruso also testified that although Benitez met his legitimate expectations with respect to the particular glasses case that she made, she was unable to run "other machines," because she would break the needles. (Hr'g Tr. Vol. I at 88, 104-105; Hr'g Tr. Vol. II at 5-6; Hr'g Tr. Vol. III at 29.) Thus, he testified when he gave her an opportunity to work on more complex machines, the effort failed. She could not operate them successfully. (Hr'g Tr. Vol. II at 7-8; Hr'g Tr. Vol. III at 29.) Caruso testified that the company lost a contract to manufacture the type of case that utilized a single needle machine-the same open end case that Benitez made on her machine-and that this led to a "lack of work." (Hr'g Tr. Vol. I at 107-111; Hr'g Tr. Vol. III at 30, 39-42.)

         As a result, he testified that "[eleven] employees were terminated around the same time as Ms. Benitez" because of "lack of work. Because of the work they did." (Hr'g Tr. Vol. II at 45.) He further testified that Pyramid's business was shifting during this period, and that it was producing products which required a more "sophisticated" type sewing that Benitez was unable to perform. (Hr'g Tr. Vol. I at 122-123; see also Hr'g Tr. Vol. III at 31, 50, 61-62.)

         Caruso stated that Pyramid did not recall any of the eleven laid-off workers back to work; however, it did hire nine new workers "a few months later" because work increased "in other areas." (Hr'g Tr. Vol. II at 46.) Caruso further stated that he has to keep his "workforce very lean[, ]" and that he only hires people with the requisite skills needed by the company. (Hr'g Tr. Vol. I at 130, 132.) Caruso acknowledged that Pyramid still manufactures the basic case that Benitez was capable of sewing; however, because it lost most of that business to a competitor, Caruso assigns current employees who also can "run the other machines" to manufacture the basic case because such work does not "justify a full-time employee." (Hr'g Tr. Vol. I at 124-25, 128.) Caruso "did not rehire anyone to do single needle work." (Hr'g Tr. Vol. I at 125.)

         Former Pyramid employee Vanessa Echevarria testified at the hearing.^[3] (Hr'g Tr. Vol. II at 61.) She stated that Vazquez hired her and was her supervisor, and that he also performed other tasks such as fixing machines. Id. at 63-66. Echevarria admitted that she did not know Cruz, and only had limited interactions with Meletz. Id. at 70, 72-73. She testified that she believed Pyramid laid her off because "they weren't satisfied with my job anymore[;]" however, she said that her termination letter indicated that the reason for her lay off was because Pyramid "didn't have a lot of work." Id. at 67-68.

         Ruth Hawksley, a Bolivian, testified that she is a former Pyramid employee who held the position of machine operator until she was laid off due to lack of work. Id. at 73-75, 81. She testified that Cruz and Meletz were her supervisors, and that she did not report to Vazquez, who apparently held himself out as a manager. Id. at 76-77. Hawksley testified that she believed that Cruz, Meletz, and Vazquez gave preferential treatment to Guatemalans when assigning overtime work because "[t]he ones not from Guatemala they would send us home." Id. at 78-79. However, when asked if she was claiming that she had been denied overtime due to her ethnicity, Hawksley responded "No." Id. at 83. She also testified that she had never observed Cruz, Meletz, or Vazquez mistreat Benitez. Id. at 79.

         Hawksley stated that on October 23, 2007, she saw Benitez enter the office along with Vazquez, and that shortly thereafter, Cruz and Meletz also entered the office. Id. at 80; see also id. at 85 (stating "the lady went in there, and then after that the other people went in"). Hawksley further stated that when Benitez returned to the factory floor, "she was bad, she was shaking, red, her eyes very, very reddish . . . [s]he couldn't talk to me she was so bad." Id. at 80.

         Cruz, a native of Guatemala, testified next. Id. at 87, 98. She stated that during the time period in question, she worked as a supervisor. Id. at 88. Cruz testified that Pyramid produced three bags during the relevant time period, but that Benitez only sewed the basic single needle case and "wouldn't" do other types of sewing. Id. at 89-90. Cruz stated that Pyramid now produces fewer basic cases than it did before. Id. at 93, 100.

         Cruz testified that she encouraged Benitez to try to learn to use other machines, but that Benitez was unable to productively use those other machines. Id. at 92. She testified that she is not involved in hiring, firing, giving pay raises, or giving overtime work-Caruso makes those decisions based on an employee's worksheets-and that had she seen or heard of anyone harassing Benitez, she would have reported it to Caruso. Id. at 91, 94-95.

         On cross-examination Cruz testified that Caruso would ask both her and Meletz to give him feedback about an employee's performance, and that he would rely on their responses in making decisions. Id. at 97. However, Caruso would make the ultimate decision. Id. at 98. Cruz also testified that she did not recommend that Caruso lay off Benitez, and that Benitez never reported to Cruz that she had been mistreated on the basis of ethnic origin. Id. at 99, 105.

         Supervisor Meletz took the stand next. Id. at 106. He testified that Benitez worked the single needle machine to make basic cases. Id. at 107. He then discussed the different sewing machines that employees use at Pyramid. Id. at 108-113. For example, some machines require more strength to operate. Id. at 109. Meletz testified that Pyramid does very little straight stitching anymore; instead, it has expanded its line to include gloves and hard bags. Id. at 111.

         Meletz further testified that he never complained to Caruso about any worker, never discouraged Caruso from giving a raise to any employee, and that if he had seen anyone harassing Benitez, he would have addressed the issue. Id. at 113. Meletz stated that he does not assign overtime in the sewing department, and that he has never received any complaints about him giving preferential treatment to Guatemalans. Id. at 114. Meletz testified that Caruso would rely upon his recommendation concerning pay raises, but that usually he recommends that an employee directly ask Caruso to give him or her a pay raise. Id. at 121, 123.

         Pyramid's office manager and Caruso's personal secretary, Martinez, also testified. (Hr'g Tr. Vol. III at 4.) Martinez, who is bi-lingual, testified that she attended the October 23, 2007 meeting as a translator. Id. at 6. She stated that Caruso speaks only English while some others, including Benitez, Cruz, and Meletz speak only Spanish. Id. at 8. She testified that the meeting was scheduled to discuss how to justify a pay raise for Benitez, a sewer who worked only on a simple needle machine. Id. at 7.

         Martinez denied the allegation that all were speaking English, laughing or raising their voices. Id. at 7-8. Instead, she described the meeting as "very professional" and "civilized[.]" Id. at 7-8. Martinez further denied Benitez's contention that she and Caruso tried to comfort Benitez after she left the meeting; later, Martinez admitted that she had no recollection of attempting to comfort Benitez. Id. at 13-14.

         Martinez, who acted as translator between Caruso and non-English speaking employees, testified that in her twelve years as office manager, she never had heard an employee complain of discrimination due to ethnic background. Id. at 3-4, 8. She further testified that she maintained employee personnel files, including copies of their green cards, but that until the instant matter arose, she was unaware that Benitez was from Ecuador. Id ...