Summary
granting summary judgment for employer on retaliation claim under ADA, Title VII, and 151B because "[p]laintiff relies purely on speculation to connect his complaints about discrimination to the disciplinary action and his ultimate termination"
Summary of this case from Mekonnen v. OTG Mgmt., LLCOpinion
Civil Action No. 00-12528-DPW
September 3, 2002
MEMORANDUM AND ORDER
Plaintiff Ahmed Sekamate ("Sekamate") alleges that defendants Newton Wellesley Hospital ("the Hospital") and Rudy Viscomi ("Viscomi") terminated him and took other adverse employment actions against him because of his race, national origin, and disability. Defendants move for summary judgment.
I. Background
Ahmed Sekamate, a native of Uganda, was hired by the Hospital in March 1997 to work in a Housekeeping position in the Environmental Services department. He began working the night shift, from 11:00 p.m. to 7:00 a.m., at $7.21 per hour. The night shift group leader was Jean David, a Haitian black.
Rudy Viscomi, a native of Italy, has worked at the Hospital since 1972. At the time of Sekamate's hiring until October 1998, Viscomi was the Manager of Housekeeping Services. In October 1998, he also became the manager for Laundry, and in July 1999, he became the Director of Environmental Services, assuming management over the Transportation area too.
In July 1997, Sekamate began working a Housekeeping shift from 10 a.m. to 6:30 p.m., covering for another worker out on leave. During this period, Sekamate was supervised by Charlostin Albertrice ("Albertrice"), a Haitian black, from 7 a.m. to 3 p.m., and by Victor Monney ("Monney"), a Guatemalan Hispanic, from 3 p.m. to 6:30 p.m. In August 1997, Sekamate was hired by the Hospital for a second, per diem job, as a patient safety companion. He worked at this job as needed for between six and forty hours per week until his termination in September 1999.
In January 1998, Sekamate was assigned to a normal Housekeeping shift from 7 a.m. to 3:30 p.m. This change allowed Sekamate to clean the Central Sterile Supply Room (CSR) earlier in the morning and get to his second job earlier. Consequently, he worked solely under the supervision of Albertrice. Later Sekamate's schedule was changed to 6:30 a.m. to 3:00 p.m.
From August 15, 1997 through October 9, 1999, Sekamate also worked a part-time Housekeeping job at Deaconess-Waltham Hospital on the weekends. Immediately following his termination from the Newton Wellesley Hospital, he began working full time in a transportation job for Deaconess-Waltham Hospital for $7.95 per hour. In March 2000, Sekamate left Deaconess-Waltham Hospital for another job elsewhere.
The following incidents occurred during the two and a half years in which Sekamate was employed by the Hospital.
A. July 27, 1997 Meetings
This information is taken from an email from Viscomi to HR which contains Viscomi's personal notes documenting the July 27 meeting. Plaintiff has moved to strike as inadmissible under FRE 802. As will become clear from review of this Memorandum, my disposition of the defendants' motion does not turn on the challenged evidence; and, consequently, I have denied plaintiff's motion to strike as moot. I do note there does not appear to be any deposition testimony to corroborate these encounters, which are referenced in this Memorandum for background purposes.
Within a few months of being hired, Sekamate grew frustrated with his working conditions. He reported to Viscomi's office on the morning of July 27, 1997 to register several complaints including discriminatory treatment by his shift leader Monney, insufficient training, and inability to receive overtime. Viscomi asked Sekamate to return after his shift to speak with him and Monney, and he did so.
The notes contained in Viscomi's email suggest the following occurred at the meeting. Monney stated that he did not treat Sekamate differently and that he had spent three days training him and would continue to train him to help him succeed in his new position. In addition, he said that there had been little overtime available, but offered Sekamate overtime for that weekend in anticipation of a hospital inspection. Sekamate refused the overtime because it was not convenient. After nearly two hours, Viscomi ended the meeting and referred him to his supervisor. Sekamate denies that he refused overtime and points to records indicating that he worked the two weekend days in question.
B. November 6-7, 1997 Incident
On November 6, 1997, Viscomi, accompanied by Monney, inspected Sekamate's work area. According to a Written Improvement Warning issued on November 13, 1997, they discovered several deficiencies in plaintiff's work including a failure to clean the bathrooms, elevators, locker rooms, vents and a floor in the CSR adequately. Sekamate testified that he believed that Viscomi had fired him after the November 6 inspection, that he attempted to meet with someone from Human Resources (HR) after work who was not available, and that he contacted a lawyer. Following the inspection, Viscomi instructed his secretary to initiate a verbal warning, which is the first step in the Hospital's progressive discipline policy and becomes part of the employee's HR file.On the morning of November 7, 1997, Sekamate met with an attorney and then with Maura Coburn in HR to discuss his termination and his allegations of discrimination. Ms. Coburn told him that he had not been fired and suggested that he return to work and report on Monday, November 10 to meet with Viscomi. Sekamate insisted that he had been fired and did not report to his assignment. After leaving HR, Sekamate encountered Viscomi who was on his way out and therefore would not speak to him about the prior day's events. Sekamate then met with Sharon Crimmins, Viscomi's supervisor, to discuss the termination, his lack of overtime and transfer denials, and Monney's discriminatory behavior including the allegation that he had called Sekamate "a stupid African." He also told her that he had contacted an attorney and would sue the Hospital.
On November 10, Ms. Crimmins wrote Sekamate to acknowledge his complaints and to notify him that he was not eligible for transfer due to his failure to meet job expectations and his lack of physical qualifications for the job of transporter (due to a bad back). On November 13, Viscomi, with the approval of Ms. Crimmins, issued a Written Improvement Warning, step two on the progressive discipline policy, citing poor work quality and an unauthorized absence on November 7, instead of the previously discussed verbal warning.
C. Satisfactory Performance
Sekamate received training from Monney between December 16, 1997 and February 14, 1998. In April 1998, Sekamate received a satisfactory performance evaluation and a merit pay raise of 2.5% out of a possible 4%, lifting his wage to $7.39. In May 1999, he received a second satisfactory performance evaluation and a market adjustment raising his wage to $7.68.
Sekamate contends that this was the first training he received as a Housekeeping employee at the Hospital whereas defendants contend that he was trained during his first several weeks on the job.
D. Bleach Accident
On March 5, 1999, Sekamate experienced a bleach splash to his eyes while working and was treated by Employee Health. On March 8, 1999, Sekamate took a previously scheduled five week Family Medical Leave Act leave of absence in Uganda to care for an ill family member. He returned to work on April 13 and reported to Employee Health where he was evaluated by Marie Jessup, the Employee Health Coordinator. The evaluation determined that his vision had returned to normal and focused on Sekamate's nosebleeds, high blood pressure, sinus pressure, and itchy eyes experienced during the leave period. Sekamate returned to work under the restriction that he not use bleach products for two weeks, which was extended three times to a total of five weeks. Albertrice instructed Sekamate to use general purpose cleaners during this time.
On May 20, 1999, Sekamate returned to his regular Housekeeping duties having been cleared by his primary physician. Sekamate continued to receive medical attention for his reaction to bleach products and for other ongoing medical concerns through September 1999. As part of his treatment, Sekamate was seen by two separate specialists, an otolaryngologist and an allergy and asthma care physician.
The Hospital provided Sekamate with a series of different masks and protective eyewear to wear while working to reduce/prevent exposure to chemical irritants. The first was a cloth face mask covering the nose and mouth; the second was a half-mask worn with eye goggles; and the final, in September 1999, was a full-face respirator. Sekamate did not find any of the masks satisfactory, complaining of dizziness, discomfort, and failure to block the smell of the chemicals.
E. Transfer Applications
Under Hospital transfer policy, open positions are posted and any interested employee can submit a Request for Transfer form to Human Resources. In order to be eligible for transfer, an employee must have been working in his current position for a minimum of six months and must have no disciplinary action within the past six months. An employee who meets these criteria will receive a screening interview conducted by HR to determine whether he possesses the minimum qualifications for the position. An applicant who passes both interviews is scheduled for an interview with the potential new manager who ultimately makes the hiring decision in consultation with HR. Hospital policy provides that current employees be considered for transfer by HR and the hiring manager before filling the position with an external candidate.
Sekamate submitted multiple transfer applications for various positions in the Environmental Services and other departments while employed at the Hospital. Between October 1997 and August 1999, he submitted eight Request for Transfer forms for various full-time positions, but was not selected for any of them.
F. Termination
On September 29, 1999, Sekamate refused to wear his respirator mask and to use the cleaning solutions. When Albertrice tried to assign him to the laundry folding area, Sekamate refused to go and requested that he be transferred to Transportation. After consultation with Viscomi, HR, and Employee Health, Albertrice instructed Sekamate to go home for the rest of the day and to report for his shift again the next day. After HR provided a letter documenting his suspension with pay, he left the Hospital. The next day, Viscomi met with Sekamate in the presence of Godinho of HR, and terminated him for failure to fulfill the requirements of his job and for insubordination. Sekamate began to picket outside the Hospital entrance and to hand out fliers bearing the words "Strike for discrimination by Rudy Viscom[i], Human Resource and Employee Services."
G. Administrative Procedures
Following the written warning in November 1997, Sekamate filed a pro se charge of discrimination based on national origin (African) with the Massachusetts Commission Against Discrimination (MCAD), dated December 11, 1997. Sekamate specifically identified Monney as the supervisor who treated him differently. Sekamate was represented by counsel during the proceedings. The MCAD found a lack of probable cause of discrimination in June 1999. Sekamate appealed the determination, and the MCAD affirmed its finding and dismissed the claim in April 2000.
In May 2000, Sekamate filed a complaint with the Equal Employment Opportunity Commission (EEOC) naming the Hospital and Viscomi as respondents and alleging discrimination based on race and national origin as well as retaliation. His complaint included a section describing the bleach incident and his contact with Employee Health, alleging that Viscomi was opposed to the accommodations provided by Employee Health. The complaint did not include checkmarks in the box indicating that he was alleging discrimination under the Americans With Disabilities Act (ADA) or the box indicating disability as the basis for discrimination.
He did mark Title VII as the legal basis for his charge and race, national origin, and retaliation as the bases for discrimination. (Def. Ex. 30)
H. Federal Court Litigation
Sekamate filed this action in December 2000 alleging race and national origin discrimination as well as retaliation for protected activity. Sekamate filed an amended complaint in May 2001 adding new factual allegations and claims of disability discrimination under the ADA and Massachusetts law. A second amended complaint was filed in February 2002, adding new factual allegations, a breach of contract claim, and a retaliation claim under the Massachusetts Workers' Compensation Act, Mass. Gen. Laws ch. 152.II. Summary Judgment Standard
I begin with a recitation of the familiar standard for summary judgment. Summary judgment is appropriate when "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." Fed.R.Civ.P. 56(c). All facts are to be viewed, and all inferences drawn, in the light most favorable to the nonmoving party. Reich v. John Alden Life Ins. Co., 126 F.3d 1, 6 (1st Cir. 1997). "Even in employment discrimination cases 'where elusive concepts such as motive or intent are at issue,' this standard compels summary judgment if the non-moving party 'rests merely upon conclusory allegations, improbable inferences, and unsupported speculation.'" Feliciano de la Cruz v. El Conquistador Resort Country Club, 218 F.3d 1, 5 (1st Cir. 2000) (quoting Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990)).
III. ADA/151B — Disability Discrimination
Plaintiff presents several different theories of disability discrimination in violation of the ADA and Mass. Gen. Laws ch. 151B. First, he alleges disparate treatment based on the fact of his disability, citing a variety of allegedly adverse employment actions ranging from a failure to train, a written warning, lower raises, less overtime, denial of transfers and ultimately the decision to terminate. Sekamate also contends that the Hospital violated the ADA by failing to provide a reasonable accommodation to his disability in the form of a transfer to another position. His claims stumble at the threshold because he failed to follow proper procedures for bringing them to this court.
It is unclear from plaintiff's pleadings which forms of disparate treatment are allegedly due to disability and which are due to race or national origin. Since his alleged disability did not appear until March 1999, there is no basis for disability claims premised on a failure to train, insufficient overtime, the November 1997 warning, and lower raises, all of which occurred prior to that date. This leaves the termination and denial of transfer claims as arguably the result of disability discrimination.
In order to bring an action in federal court for violation of Title I of the ADA the plaintiff must, absent special circumstances, first exhaust his administrative remedies by filing a claim with the EEOC or a comparable state agency. Bonilla v. Muebles J.J. Alvarez, Inc., 194 F.3d 275, 277 (1st Cir. 1999). Similarly, one must file a complaint before the MCAD in order to bring suit in court under Mass. Gen. Laws ch. 151B. See Mass. Gen. Laws ch. 151B, §§ 5, 9. The purpose of the exhaustion requirement is to provide the employer prompt notice of the claim and to allow for the possibility of early conciliation. Lattimore v. Polaroid Corp., 99 F.3d 456, 464 (1st Cir. 1996). In order for the exhaustion requirement to fulfill its purpose, the plaintiff is required to exhaust each claim of discrimination. Davis v. Lucent Tech. Inc., 251 F.3d 227, 231 (1st Cir. 2001).
The scope of investigation rule provides "that the scope of a civil action is not determined by the specific language of the charge filed with the agency, but rather, may encompass acts of discrimination which the [agency] investigation could reasonably be expected to uncover." Id. at 233. Pro se complaints are to be construed liberally, giving the complainant the benefit of the doubt. Lattimore, 99 F.3d at 464. However, "even a pro se complainant is required to describe the essential nature of the claim and to identify the core facts on which it rests." Id. "To be within the investigatory scope, the agency must be informed of the claim in the complaint or during the period of investigation." Ianetta v. Putnam Investments, Inc., 142 F. Supp.2d 131, 134 (D.Mass. 2001)
Nothing in Sekamate's MCAD or EEOC complaint alleges discrimination on the basis of a disability. There is no evidence that either agency actually investigated allegations of disability discrimination. Neither does Sekamate's appeal of the MCAD decision, while specifically mentioning medical issues, in any way allege disability discrimination. Rather, the notice of appeal — which was drafted by an attorney — clearly reiterates Sekamate's sole claim of discrimination: national origin. Sekamate's allegation of disability discrimination, while premised on some of the same adverse employment actions as the race and national origin discrimination charge, is not so close as to come within the scope of investigation of either the MCAD or EEOC charge. See Antol v. Perry, 82 F.3d 1291, 1295-96 (3d Cir. 1996) (sex discrimination not within scope of disability discrimination claim where same failure to promote was basis for claim) (cited in Clockedile v. New Hampshire Dept. of Corrections, 245 F.3d 1, 4 (1st Cir. 2001)).
Accordingly, I find that Sekamate did not exhaust his claim of disability discrimination, having failed to raise the charge to either the MCAD or the EEOC. Absent compelling circumstances, failure to exhaust administrative remedies in an ADA case is fatal. Bonilla, 194 F.3d at 277. Finding no compelling circumstances here, I grant defendants' motion for summary judgment on all ADA claims.
IV. Title VII — Race and National Origin
Sekamate alleges that the Hospital and Viscomi unfairly undertook to criticize Sekamate's work, refuse him overtime and transfers to more desirable positions, and ultimately terminate him out of a discriminatory animus against him as an African. Plaintiff alleges both racial and national origin discrimination, and contends that as an African he is of a different race than those of Haitian descent. While this presents a complex question about the nature of race, I need not confront it as such because the category of national origin maps adequately onto Sekamate's claim. Since claims of both types of discrimination were made before the EEOC, I will consider Sekamate's claims together under the rubric of national origin.
Sekamate was one of only three Africans employed by the Hospital's Environmental Services department. Many black Haitians were also employed there. To the extent that black Africans may be said to constitute a different grouping from black Haitians, the racial category of black Africans matches the national origin category of Africans in the Hospital's Environmental Services department.
Because plaintiff presents no direct evidence of discrimination, he must proceed under the familiar McDonnell Douglas-Burdine-Hicks burden-shifting analysis. Straughn v. Delta Air Lines, Inc., 250 F.3d 23, 33 (1st Cir. 2001). Plaintiff thus bears "'the initial burden . . . of establishing a prima facie case of . . . discrimination." Id. (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). "[O]nce the plaintiff has met the low standard of showing prima facie discrimination, the employer must articulate a legitimate nondiscriminatory reason in response." Zapata-Matos v. Reckitt Colman, Inc., 277 F.3d 40, 44 (1st Cir. 2002). At that point, the presumption of discrimination vanishes, and the plaintiff retains the ultimate burden of establishing that he was "'treated differently because of [his national origin].'" Id. (quoting Thomas v. Eastman Kodak Co., 183 F.3d 38, 56 (1st Cir. 1999)).
To satisfy plaintiff's initial burden in an employment discrimination case, he must present evidence establishing that: (1) the plaintiff is within a protected class; (2) the employer took an adverse employment action against him; (3) he was qualified for his job; and (4) his position remained open or was filled by a person whose qualifications were similar to his. Straughn, 250 F.3d at 33 (race); Feliciano de la Cruz v. El Conquistador Resort Country Club, 218 F.3d 1 (1st Cir. 2000) (national origin). Because the prima facie case is largely the same for each discriminatory incident alleged, I will consider plaintiff's prima facie case as a whole first and then will examine each particular incident individually in steps two and three.
Sekamate easily demonstrates the first two elements. As a black African, Sekamate is within protected classes for race and national origin. Sekamate's termination qualifies as an adverse employment action. Defendants concede that the denial of multiple transfer applications and the written disciplinary action also constitute adverse employment actions, however they dispute whether the alleged failure to train, denial of overtime, and disparate wage increase constitute adverse employment actions sufficient to make out independent claims of discrimination.
The First Circuit looks to the actual effect on the employee to determine whether an employment action is "materially adverse" and therefore sufficient to make out a disparate treatment case. See Blackie v. Maine, 75 F.3d 716, 725 (1st Cir. 1996) (FLSA); Cancel de Rugg v. West, 106 F. Supp.2d 289, 297 (D.P.R. 2000) (applying Blackie to Title VII). Under Blackie, "the employer must either (1) take something of consequence from the employee, by discharging or demoting [him], reducing [his] salary, or divesting [him] of significant responsibilities, or (2) withhold from the employee an accoutrement of the employee relationship." Id. I find that plaintiff's allegations of disparate wages and denial of overtime both qualify as adverse employment actions, the former being equivalent to reducing salary while the latter constitutes both a reduction in salary and a withholding of an accoutrement of employment. See Shannon v. BellSouth Telecommunications, Inc., 292 F.3d 712, 716 (11th Cir. 2002) (denial of overtime is an adverse employment action); Ericson v. Meriden, 205 F.R.D. 75, 79 (D.Conn. 2001) (same); Kause v. Alberto-Culver Co., 2000 WL 875742, *6 (N.D.Ill. 2000) (same); Allder v. Daniel O'Connell's Sons, 20 F. Supp.2d 210, 219 (D.Mass. 1998) (denial of choice regarding overtime is adverse employment action, notwithstanding continued overtime opportunities). However, the effect of the alleged failure to train, which plaintiff alleges set the stage for later criticisms and discipline, is too remote in its affect on Sekamate to be materially adverse.
I also find that Sekamate can satisfy the third and fourth prongs of the prima facie case. With respect to the third prong, defendants object that Sekamate was not adequately performing his job. Sekamate's multiple satisfactory job performance reviews and his undisputed qualifications for the job, however, are sufficient to clear the low hurdle of the prima facie case. Defendants appear to concede this fact for purposes of this motion. Finally, it appears that Sekamate's job was either left open or filled by someone with similar credentials. With respect to the failure to hire claims, plaintiff establishes that he is either similarly qualified or more qualified than those actually hired.
I next turn to defendants' stated reasons for their adverse employment actions. I will also consider plaintiff's contention that each of the reasons is pretextual and that the real reason for defendants' actions was discriminatory animus. In order for Sekamate to survive summary judgment he must "produce sufficient evidence that he was discriminated against due to his national origin to raise a genuine issue of material fact." Zapata-Matos, 277 F.3d at 45. This requires a case by case weighing, and in some instances may be satisfied by disproving the asserted non-discriminatory reasons combined with the prima facie case. Id. "Ultimately, the question is one of the sufficiency of plaintiff's evidence." Id.
1. November 11 Written Warning
The written warning issued to Sekamate on November 13, 1997 cited numerous performance deficiencies discovered during the November 6 inspection and plaintiff's failure to report to work on November 7, the day on which he thought he was fired. The warning also states that there had been prior related warnings including two coaching sessions (July 29 and October 2), a discussion of quality issues, and a duty list provided on July 29. The warning also states that Viscomi had received "numerous complaints from the Central Sterile Supply room" about "the poor quality of work" provided by Sekamate. Both poor work quality and absenteeism are non-discriminatory reasons that justify a written warning.
The July 27 "coaching session" may refer to plaintiff's meeting with Viscomi about issues with his supervisor, Monney. There is no independent record of an October 2 coaching session.
Plaintiff challenges the veracity of several statements contained in the warning.
First, plaintiff testified that prior to November 6, 1997 Viscomi had not inspected his work area. (This testimony is placed in dispute by Viscomi's testimony that he regularly inspected the CSR every two weeks by himself.)
Second, plaintiff states in his affidavit that he did not receive coaching sessions on the dates indicated on the warning. (Viscomi did not recall who administered the coaching sessions and Albertrice denies having done so.)
Third, Sekamate contests whether Viscomi in fact received complaints regarding the cleanliness of the CSR. (In his deposition, Viscomi recalls complaints about the CSR, but does not recall by whom or when those complaints were made. Barbara Baumeister, the manager of CSR, stated that she did not remember complaining to Viscomi about the cleanliness of the CSR before Sekamate had the bleach incident (March 1999), that her staff did not have complaints during that time, and that if they had, they would have made her aware of them. She did, however, recall registering a complaint in 1999 when Sekamate no longer used the same cleaning supplies.)
Fourth, Sekamate notes Viscomi's critique regarding soap spots on the floor involved an area under soap dispensers, where Viscomi states "old soap" had accumulated.
Sekamate also cites to numerous non-African employees who he contends were similarly situated but received less harsh discipline.
Evidence that an employer administered disparate treatment to similarly situated employees may be competent proof that the explanation given for the challenged employment action was pretextual, provided the plaintiff-employee can make a preliminary showing 'that others similarly situated . . . in all relevant respects were treated [more advantageously] by the employer.'
Straughn, 250 F.3d at 43-44 (emphasis in original) (quoting Conward v. Cambridge Sch. Comm., 171 F.3d 12, 20 (1st Cir. 1999)). None of Sekamate's examples are sufficiently similar to be probative of anything relevant to Sekamate's case.
Sekamate does not refute Viscomi's findings of a failure to clean multiple sites within his assignment properly or that Viscomi perceived him to be performing at a subpar level. Feliciano de la Cruz, 218 F.3d 1, 7 (employer's perception of reality relevant for purposes of pretext); Hoeppner v. Crotched Mountain Rehabilitation Ctr., Inc., 31 F.3d 9, 17-18 (1st Cir. 1994) (evidence contesting factual underpinnings insufficient to present jury question). Furthermore, Sekamate concedes that he did not report to his assignment on November 7, 1997, although he explains that he believed that Viscomi had terminated him the previous night following the inspection. While Viscomi could have treated this absence differently than a "normal" no-show, that is not relevant to the issue of discrimination. "Title VII was not designed to transform courts into 'super personnel departments, assessing the merits — or even the rationality of — employers' non-discriminatory business decisions." Feliciano de la Cruz, 218 F.3d at 8 (internal quotations omitted).
Based on the foregoing evidence viewed in the light most favorable to Sekamate, I find that no reasonable jury could determine the November 13 written warning was issued because of a discriminatory animus on the part of Viscomi, individuals at Human Resources, or Viscomi's boss Sharon Crimmins. While a reasonable jury could disbelieve elements of the warning — whether Viscomi had received prior complaints about Sekamate and whether Sekamate received two counseling sessions on the dates indicated — there is no credible evidence that would support a jury finding that the written warning was an act of intentional discrimination. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147 (2000).
2. Merit Raises
In 1998, Sekamate received a satisfactory performance review and a merit raise of 2.5%, out of a range of 0 to 4%. Sekamate contends that his raise was smaller than others who received comparable reviews, asserting that the only explanation for this disparate treatment is race or national origin.
Among the thirty two performance reviews cited by Sekamate, the majority of them received the same overall rating of satisfactory performance but received raises of 3% or 3.5%. Because there were only three possible overall ratings (does not meet expectations, meets expectations, and exceeds expectations, it is logical that a manager might give two employees the same overall ranking and then refine the distinction further between the two in the amount of raise. However, on four occasions, employees received an overall rating of "does not meet expectations," yet received a raise of 2.5% or 3.0%. Plaintiff does not otherwise establish that these employees were similarly situated to Sekamate; however, this disparity raises a colorable question as to the underlying basis for the level of raise awarded.
Defendants explain that the level of raise awarded is generally determined by the employee's direct supervisor who conducts the evaluation. Viscomi, as the department manager, merely reviews the recommendation and generally approves the level suggested by the supervisor. However, because Sekamate had recently changed shifts and supervisors, Viscomi personally conducted his review and determined the level of raise. Thus, different individuals were responsible for the respective decisions about what level raise to award, thereby undermining the basis for comparison. The fact that a jury may find that Sekamate's raise level "was unfair . . . is not sufficient to state a claim under Title VII." Feliciano, 218 F.3d at 8. Absent any other evidence of discrimination with respect to wages, only pure speculation by a trier of fact would support a finding of discrimination.
3. Overtime
Sekamate contends that he repeatedly requested and was denied overtime in 1997 while several non-African employees regularly received overtime assignments. In 1997, and during his deposition, Viscomi explained that prior to July 1997, no overtime had been available. In fact, the record indicates that during multiple weeks between April and November several workers in the Environmental Services department did work overtime. The record does not, however, support Sekamate's claim that "everybody . . . got the overtime they wanted."
The individuals who received the bulk of the overtime assignments during the time period in question were of Haitian and South American descent, as were most of the employees in the Environmental Services department. Defendants do not contend that the individuals who received overtime assignments in the Environmental Services department were not similarly situated to Sekamate.
In July 1997, additional overtime did become available in preparation for a federal HCFA inspection of the hospital.
The precise method for allocating overtime to employees is disputed by the parties. Regardless of this factual dispute however, the record does not provide sufficient evidence that Sekamate actively sought and was denied specific overtime for which he was available and had the required skills.
Sekamate also charges Viscomi with lying that Sekamate would not accept overtime that was offered to him on August 2 and 3, 1997, presenting time sheets from those dates indicating that he worked. Defendants' claim that Sekamate was not available for overtime because of a second and third job is not relevant because during the period of time in question — March 1997 through August 1997 — Sekamate had not yet been hired for his second and third jobs. Taken together, Sekamate casts some doubt on the veracity of Viscomi's explanation of how he dealt with plaintiff's request for overtime.
The record establishes that Viscomi had delegated to individual shift supervisors the responsibility for assigning overtime shifts. In support of his argument that he was discriminated against in the awarding of overtime, Sekamate alleges that his supervisor Monney called him a "stupid African." Sekamate contends that the defendant's motion for summary judgment should be defeated because Monney, as his supervisor, had the authority to allocate overtime and because Monney was allegedly biased against Sekamate due to his national origin. The allegations of bias by Monney, together with the Viscomi's misstatements regarding the availability of overtime and the hundreds of hours of overtime logged by other employees raise the possibility that the Hospital's overtime scheme was not fair in general.
Nevertheless, the plaintiff fails to meet his burden of demonstrating some specific overtime opportunity he was denied. In reviewing the facts for the purposes of the defendants' motion for summary judgment, I view them in the light most favorable to Sekamate as the nonmovant. But I do not credit contentions when they are not supported with "competent and reasonably definite evidence actually contained in the summary judgment record." Roche v. John Hancock Mutual Life Ins. Co., 81 F.3d 249, 253 (1st Cir. 1996). There is no indication in the record that Sekamate was denied overtime for which he had in fact applied, and which he could, and would, have accepted. Indeed, Sekamate apparently received overtime on the sole specific occasion described in the record on which he requested it.
4. Transfers
Sekamate alleges that he was discriminated against when he applied for and was denied multiple transfer positions. His theory is that Viscomi did whatever was in his power to block a transfer including issuing the November 13 warning and giving negative recommendations regarding Sekamate to other Hospital managers. I find no evidence to support this claim and therefore grant summary judgment on it.
Sekamate's claim is essentially a failure to hire claim. The prima facie case requires that he show that he was in the protected class, that he applied for and was qualified for the job, that he was not hired, and that the Hospital continued to look for someone to hire for the job. Cf. Gillen v. Fallon Ambulance Service, Inc., 283 F.3d 11, 30 (1st Cir. 2002). Sekamate satisfies the prima facie case for transfer applications made after May 1998. However, prior to May 1998, Sekamate was barred from transferring by a hospital policy prohibiting transfers by employees who are in their first six months in a new position or have received a job performance or disciplinary action within the last six months.
Sekamate's written warning was given on November 13, 1997, thereby disqualifying him for transfer for the subsequent six months.
Sekamate contends that this policy was pretextual because it was not applied uniformly, citing individuals who allegedly were allowed to transfer before they had spent six months at their previous position. However, he only presents evidence regarding two individuals, Jesus Arias and Marvin Coronado, who transferred within less than six months. Jesus Arias transferred multiple times, each time within less than six months from when he had started working at his previous job. Viscomi was the supervisor for both employees in each of their positions. The Hospital recognizes limited exceptions to its general rule requiring six months tenure in a position before transfer, including when a department manager oversees multiple departments and approves a transfer between his departments, as was the case with Mr. Arias. The Hospital also notes that Sekamate was allowed shift transfers within less than six months. That Sekamate was not afforded a limited exception to the rule against the Hospital's official policy on transfers between positions, without more, does not raise an inference of discrimination with respect to those positions for which Sekamate applied prior to May 1998. Moreover, having found that the November 13, 1997 written warning was bona fide, there is no support for plaintiff's allegation that any transfer denial based on the warning was discriminatory.
Sekamate applied for an Equipment Technician position in October 1997 and a Surgical Aid position in March 1998.
After May 1998, Sekamate was eligible for transfers. Based on the somewhat convoluted record before me, it appears that plaintiff submitted six requests for transfer. Of those, the notes on two indicate that there were no 40 hour positions available. Two others indicate that a meeting with Sekamate was scheduled on August 25, 1999, and that subsequent meetings with the supervisor were being set up. Sekamate was terminated on September 30, 1999, presumably before any action was taken on the transfer applications. The remaining two applications were filed at the end of July 1999 and do not have any notes in the comments section. Based on this evidence, no reasonable jury can draw an inference of discriminatory transfer hiring on the part of defendants.
Sekamate also recalls an instance in which the manager for a pharmacy job for which he was applying spoke to Viscomi. Based on that alleged conversation taken with the fact that Sekamate was not hired, Sekamate charges that Viscomi "blocked this transfer." Plaintiff's charge is mere speculation and cannot support an inference of discrimination.
Finally, Sekamate contends that after the accident he consistently requested transfers to Transportation in 1999, an area which Viscomi managed. Employee Health supported Sekamate's request for a transfer. However, plaintiff presents no evidence that there were any openings in the Transportation department during that time for which he was rejected. Therefore, I cannot find that Viscomi acted wrongly by not transferring Sekamate to a non-existent transportation job.
5. Termination
Finally, Sekamate contends that his September 30, 1999 termination constituted discrimination. He disputes the veracity of the underlying termination letter which states that Sekamate refused to use chemicals, refused to wear his respirator, and refused to work in the laundry. Sekamate cannot present a jury question merely by contradicting the underlying facts. Hoeppner, 31 F.3d at 17. It is the perception of the decision-maker, not the objective factual situation, that is relevant when maintaining a charge of pretext. Feliciano de la Cruz, 218 F.3d at 7. Moreover, the testimony plaintiff cites confirms that he would not wear his mask, would not use the chemicals to clean the CSR, and that his supervisor believed that he was refusing to work in the laundry.
Plaintiff's reference to other workers who allegedly committed policy violations and did not get fired or committed worse violations and were fired is no more probative of discrimination. There is no evidence demonstrating that these individuals were similarly situated to Sekamate. Accordingly, I find no evidence that would support a jury finding of discriminatory termination.
V. Retaliation
I turn next to plaintiff's contention that the various adverse employment actions cited above constitute retaliation on the part of defendants against plaintiff because of his meetings with HR, his filing a complaint with the MCAD, and his requests for transfer. To establish a claim for retaliatory discharge under Title VII, Sekamate must show that: (1) he engaged in a protected activity as an employee; (2) he was subsequently discharged from employment; and (3) there was a causal relationship between the protected activity and the discharge. Hoeppner, 31 F.3d at 14.
A similar provision is found in Mass. Gen. Laws ch. 151B, § 4(4).
Sekamate contends that he engaged in protected activity when he met with Viscomi and individuals from HR about his allegation of discriminatory treatment by Monney. Assuming that such meetings constitute protected activity under either state or federal law, plaintiff fails to present any evidence linking such meetings to either the written warning in November 1997 or his termination two years later.
As the foregoing analysis shows, each of the adverse employment actions is supported by independent, non-discriminatory and non-retaliatory justifications. Plaintiff claims that Viscomi's decision to issue a written warning rather than a verbal warning as indicated in an email to his secretary the previous week was in response to Sekamate's meeting with Human Resources and his threat to sue the Hospital. However, this completely overlooks the fact that in the intervening week, Sekamate had failed to report to work, thereby compounding the issue of performance failure and justifying the written warning. Plaintiff relies purely on speculation to connect his complaints about discrimination to the disciplinary action and his ultimate termination. Williams v. Raytheon Co., 220 F.3d 16, 21 ("'There must be competent evidence that . . . a retaliatory motive played a part in the adverse employment actions alleged.'") (quoting Lewis v. Gillette Co., 22 F.3d 22, 24 (1st Cir. 1994)).
Plaintiff also alleges that his termination was caused by his request for accommodation. However, this claim ignores the fact that Sekamate refused to do the work he was assigned and refused to accept an alternate assignment in laundry that day. Neither Title VII nor the ADA is "a license for insubordination at the workplace." Reed v. LePage Bakeries, Inc., 244 F.3d 254 262 (1st Cir. 2001).
VI. Breach of Contract
In his second amended complaint, Sekamate added a claim for breach of contract based on defendants alleged failure to abide by its transfer policy and its alleged disregard for its Progressive Discipline Policy. Plaintiff points to two different versions of the Employee Handbook to ground his claim of breach of contract.
A personnel manual may form the basis of an express contract. O'Brien v. New England Tel. Tel. Co., 422 Mass. 686 (1996). In O'Brien, the SJC discussed the practice of using employment manuals, noting that "[m]anagement distributes personnel manuals because it is thought to be in its best interests to do so. Such a practice encourages employee security, satisfaction, and loyalty and a sense that every employee will be treated fairly and equally." Id. at 694. "'It would be unfair to allow an employer to distribute a policy manual that makes the workforce believe that certain promises have been made and then to allow the employer to renege on those promises.'" Ferguson v. Host Intl., Inc., 53 Mass. App. Ct. 96, 103 (2001) (quoting Woolley v. Hoffman-LaRoche, Inc., 99 N.J. 284, 309, modified on other grounds, 101 N.J. 10 (1985)).
The O'Brien Court stated that "'the context of the manual's preparation and distribution is . . . the most persuasive proof" of whether the manual contains legally binding promises. 422 Mass. at 694 (quoting Woolley, 99 N.J. at 299). Thus, even where a manual contains unambiguous language disclaiming the formation of any contractual obligation, the overall context may sufficiently suggest a legally enforceable contract as to overwhelm the effect of the specific disclaimer. Ferguson, 53 Mass. App. Ct. at 103. The interpretation of a written policy manual as to whether it establishes a contract is a legal matter for the court. See Derrig v. Wal-Mart Stores, Inc., 942 F. Supp. 49, 54 (D.Mass. 1996).
The employee manuals here provide no basis for either breach of contract theory presented by the plaintiff. The transfer policy theory hardly makes sense. Neither manual makes any specific promises about transfers and promotions. It does, however, state a general practice of considering present employees for promotion or transfer before filling the position with an outside candidate. In addition, the transfer eligibility policy in both handbooks states that the applicant must have been employed in his present position for at least six consecutive months, and in the New Employee Orientation version, that the applicant must be meeting performance expectations in his present position for at least six consecutive months. Plaintiff cannot state a claim for breach of this provision. I see no other grounds on which plaintiff could base a breach of contract claim for the transfer and promotion policy
Sekamate also alleges that his receipt of a written warning rather than a verbal warning in September 1997 and his termination in 1999 violated the Performance Improvement and Progressive Discipline policy. However, there is no contractual promise made in either manual with respect to application of the discipline policy. The earlier manual states that "[n]ormally, progressive discipline involves four basic steps: Verbal Counseling, Written Improvement Warnings, and a Final Written Improvement Warning, Probation, Suspension, or Discharge." However, the very next line states: "The Hospital reserves its right to waive any or all progressive steps as it deems necessary." Furthermore, the entire next paragraph clearly reiterates that the worker is employed at will and that the existence of the progressive discipline process in no way alters that fact. The New Orientation Manual does not discuss a "normal" progression of discipline, but rather states that the manager can employ various disciplinary actions "at his/her discretion" such as "Performance Improvement Plans, warnings, counselings, and other disciplinary and/or performance improvement actions."
Beyond the disclaimer in the introduction to the manual, the progressive discipline section itself contains clear disclaimers of any contractual right to a linear application of the progressive discipline policy. No reasonable employee could believe that the employee manual gives him a right to receive a verbal warning prior to a written warning or that he can't be terminated without first being placed on probation or receiving a performance improvement plan. O'Brien, 422 Mass. at 694; Derrig, 942 F. Supp. at 55.
VII. Workers' Compensation
In the Opposition to Defendant's Reply Memorandum, plaintiff's attorney strings together allegations of several independent claims under Mass. Gen. Laws ch. 152, the Workers' Compensation Act. These claims are entirely baseless.
Plaintiff first alleges that he did not receive individual notification about his rights under the workers compensation law in violation of Mass. Gen. Laws ch. 152, § 22. However § 22 only requires the employer to give each new employee printed notice of workers compensation coverage when first hired or when there is a change in the policy. Nothing in the statute or case law requires that individual notice be provided after a work injury.
Second, plaintiff contends that the Hospital violated chapter 152 by refusing to pay plaintiff's medical expenses. This argument is entirely disingenuous given the significant amount of health care resources expended on Sekamate by the Hospital through its Employee Health Services. Plaintiff has not presented any bill or record of health care expenditure for which he was responsible.
Finally, there is no evidence that Sekamate was terminated in retaliation for asserting rights under chapter 152. See Mass. Gen. Laws ch. 152, § 75B(2). To the contrary and inconsistently, plaintiff argues that he never asserted any rights under the Workers' Compensation Act because he had not been notified of those rights.
CONCLUSION
For the reasons set forth more fully above, I hereby GRANT Defendants' motion for summary judgment with respect to all counts.