Opinion
RE-18-205
08-09-2021
TITO MASONRY & CONSTRUCTION, LLC, Plaintiff, v. PORTLAND HOUSING AUTHORITY, CHERYL SESSIONS, RICHARD BIGGS and MARK B. ADELSON, Defendants
Plaintiffs Counsel: Zachary Brandwein, Esq. Asha Echeverria, Esq. Defendants' Counsel: Jeffrey Edwards, Esq.
Plaintiffs Counsel: Zachary Brandwein, Esq. Asha Echeverria, Esq.
Defendants' Counsel: Jeffrey Edwards, Esq.
ORDER ON DEFENDANT'S MOTION FOR RECONSIDERATION
MARYGAY KENNEDY, JUSTICE
Before the Court is Defendant's Motion for Reconsideration of Defendant's Motion for Partial Summary Judgment. After due consideration, the Defendant's Motion for Reconsideration is denied.
I. Factual Background:
A complete factual overview of this case is more fully set forth in this court's Order on Defendants' Motion for Partial Summary Judgment, dated December 17, 2019. The facts relevant to Defendants' Motion for Reconsideration are as follows:
The Plaintiff company is run by an individual who identifies as an African and Hispanic-American, Moravia Drice (Mr, Drice), and the company is staffed predominantly by people of color. Prior to the contract at issue in this lawsuit, the Plaintiff completed a number of construction contracts for Defendant Portland Housing Authority ("Housing Authority") without issue. In February 2017, the Housing Authority employed Co-Defendant, Richard Biggs, to oversee certain Housing Authority construction contracts. The Housing Authority, through Biggs, contracted with the Plaintiff to complete work at one of the Housing Authority's properties in March, 2017.
The Plaintiff alleges that Mr. Biggs made multiple racially charged comments toward the Plaintiff during the course of the 2017 contract. Plaintiff was ordered to stop all work on the project in March, 2018, and the contract was terminated shortly thereafter. The Housing Authority justified the contract termination on the grounds that there were apparent defects in the Plaintiff's workmanship. The Housing Authority agreed to extend Plaintiff's contract on the condition that Plaintiff correct the noted defects by April 17, 2018.
The Plaintiff notified Mr. Biggs via email on April 17, 2018, that Plaintiff would be unable to complete certain exterior projects due to cold and rainy weather. Mr. Biggs did not indicate that he received the email nor did he otherwise respond to the Plaintiff. Mr. Biggs performed a subsequent inspection of the project site without being accompanied by the project's architect. The Plaintiff challenges whether Mr. Biggs is qualified to form knowledgeable or informed opinions regarding Plaintiff's workmanship. (PRSMF 55 24, 25, 32, 33, 35, 38.) The Plaintiffs contract was again terminated on April 17, 2018. The Housing Authority justified the second contract termination on the grounds that the Plaintiff failed to complete the required corrections by the April 17 deadline.
The Plaintiff brought this lawsuit alleging, among other things, unlawful discrimination under 42 U.S.C. § 1981 (Counts III and IV). The Defendant filed a Motion for Partial Summary Judgment on Counts III and IV. This court denied Defendant's Motion. The Defendant has filed the present Motion for Reconsideration, requesting that this court vacate its previous order and grant Defendant's Motion for Partial Summary Judgment.
II. Reconsideration and Summary Judgment Standards
A motion for reconsideration "shall not be filed unless required to bring to the court's attention an error, omission, or new material that could not previously have been presented." M.R. Civ. P. 7(b)(5). This rule is intended to "deter disappointed litigants from seeking to reargue points that were or could have been presented to the court on the underlying motion." Shaw v. Shaw, 2003 ME 153, J 8, 839 A.2d 714.
A party is entitled to summary judgment when review of the parties' statements of material facts and the record to which the statements refer, demonstrates that there is no genuine issue as to any material fact in dispute. Dyer v. Dep't of Transp 2008 ME 106, J 14, 951 A.2d 821; M.R. Civ. P. 56(c). A contested fact is "material" if it could potentially affect the outcome of the case. Id. A "genuine issue" of material fact exists if the claimed fact would require a factfinder to "choose between competing versions of the truth." Id. (quotations omitted). The court reviews the evidence in the light most favorable to the non-moving party. Id.
III. Discussion:
The Defendant presents three separate arguments as to why the court should vacate its previous order and grant Defendant's Motion for Partial Summary Judgment: (1) the court's reasoning was inconsistent with the First Circuit's jurisprudence involving claims arising under 42 U.S.C. § 1981; (2) the evidence the court cited as grounds for denying Defendant's Motion is insufficient to infer racial animus; and (3) the United States Supreme Court's ruling in Comcast Corp. v. Nat'l. Ass'n of African American-Owned Media, decided after this court's ruling, materially changed the Plaintiff's burden of proof on its Section 1981 claims.
A. Section 1981 Claims
42 U.S.C. § 1981 prohibits racial discrimination in the making and enforcement of contracts and provides a cause of action for those who experience racial discrimination while contracting with a government entity. 42 U.S.C. §§ 1981, 1983; Buntin v. City of Boston, 857 F.3d 69, 70 (1st Cir. 2017), Discrimination claims arising under Section 1981 require a three-part, burden-shifting analysis. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973). In part one, the plaintiff must present prima facie evidence that: (1) the plaintiff is a member of a protected class; (2) plaintiff is qualified for the job at issue; (3) plaintiff suffered an adverse employment action at the hands of his or her employer; and (4) there is evidence of a causal connection between plaintiff's membership in a protected class and the adverse employment action. Id. If the plaintiff makes a sufficient prima facie showing, the burden shifts to the defendant to rebut this presumption of discrimination by presenting evidence of a legitimate, nondiscriminatory reason for the adverse employment action. Id. Then, if the Defendant successfully demonstrates a legitimate, non-discriminatory grounds for the adverse employment action, the plaintiff again has the burden to show mat the defendant's proffered reason was a pretext and that the real reason for the adverse employment action was indeed racial animus. Id. The Defendant here argues that the court misapplied the burden shifting framework of the last two factors in that the court failed to make the requisite finding that Defendant's proffered justification was both a pretext and that Plaintiff's contract was terminated on discriminatory grounds.
In its ruling, this court found that the following facts gave rise to a presumption of discrimination for the purpose of summary judgment; Biggs' racially motivated comments; Biggs' allegedly improper inspections of the Plaintiffs worksite; Defendants' refusal to extend the April 17 deadline despite relevant weather concerns beyond Plaintiff's control; and the fact that the Plaintiff had never been terminated from a Housing Authority contract prior to Biggs' involvement with the Plaintiff's contracts. The court relied on these facts to rule that the Plaintiff had made a prima facie showing of racial animus and that there was a genuine issue of material fact regarding whether the Defendant's purported non-racial motivations for terminating Plaintiff's contract were pretextual.
Upon re-examination of the McDonnell Douglas Corp. burden shifting framework, the court reaffirms its prior ruling. The burden of persuasion at all times remains with the Plaintiff, which means that the Plaintiff must make a sufficient showing that the Defendant's purported nondiscriminatory grounds for terminating Plaintiff's contract was pretextual and that racial discrimination was indeed the motivation for that adverse action. See Thomas v. Eastman Kodak Co., 183 F, 3d 38, 56 (1st Cir. 1999). 'This burden is often broken into two separate tasks. The plaintiff must present sufficient evidence to show both that the employer's articulated reason for laying off the plaintiff is a pretext and that the true reason is discriminatory." Id. "[T]here can be no mechanical formula at the third stage of the McDonnell Douglas/Burdine framework." Id. The evidence to support the prima facie case in step one, "and the significance of the disbelieved pretext will vary from case to case depending on the circumstances." Id. However, the evidence presented to demonstrate that the Defendant's proffered justification was pretextual may be the same evidence used to demonstrate that racial animus was the cause of the adverse action for the purposes of step three. See Id. at 57 ("Plaintiffs may use the same evidence to support both conclusions, provided that the evidence is adequate to enable a rational factfinder reasonably to infer that unlawful discrimination was a determinative factor in the adverse employment action.")
Here, the Defendant's purported reasons for terminating Plaintiffs contract were the Plaintiff's failure to meet deadlines in a timely manner, and alleged defects in the Plaintiffs workmanship. It is undisputed that the Plaintiff did not complete certain contractual obligations in the time permitted. However, the Plaintiff presented evidence that this grounds for termination was pretextual because the Plaintiffs failure to complete the tasks on time was due to weather conditions beyond Plaintiffs control. Additionally, the Plaintiff brought these weather concerns to the attention of Mr. Biggs in Plaintiff's request for an extension of time. Plaintiff's request went unanswered. Moreover, Mr. Biggs, who is also alleged to have made a number of racially charged comments toward the Plaintiff, conducted an inspection of Plaintiff's workmanship outside the presence of the architect actually assigned to the project. Accordingly, the decision to terminate Plaintiff's contract could have indeed rested solely on the opinion of Mr. Biggs, who has demonstrated a pattern of conduct that appears motivated by racial stereotypes.
Indeed, the qualifications of Mr. Biggs to make determinations regarding Plaintiffs workmanship are controverted in the record.
The court ruled that this evidence creates a sufficient issue of material fact regarding whether racial animus was indeed the cause of Plaintiff's contract termination and that issues of witness credibility, including the testimony of Mr. Biggs, is one that should be submitted to a fact finder. This ruling does not absolve the Plaintiff of its burden to present evidence both that the Defendants' purported grounds for terminating Plaintiff's contract was pretextual and that the true motivation for terminating that contract was indeed race discrimination. Instead, the court ruled that Mr. Biggs' failure to accommodate Plaintiff for circumstances outside of Plaintiff's control and issues related to Mr. Biggs' qualifications and inspections, when combined with Mr. Biggs' racially charged comments, create a genuine issue of material fact regarding pretext and discriminatory intent. All inferences must be made in favor of the Plaintiff as the non-moving party, including those that can be made out of the disputed credibility of Mr. Biggs. The court makes no findings as to whether Mr. Biggs was qualified to inspect Plaintiff's workmanship. Because a jury could infer that the decision to terminate Plaintiff's contract rested solely with Mr. Biggs, his disputed credibility and racially charged comments create genuine issues of material fact regarding pretext and discriminatory intent. Summary judgment is inappropriate under these circumstances.
B. Evidence of Racial Animus
The Defendant next argues that the court should reconsider its ruling that the Plaintiff made a prima facie showing of racial animus under the first prong of the McDonnell Douglas Corp. framework because the comments made by Mr. Biggs are insufficient grounds to infer racial bias. Mr. Biggs is alleged to have made the following comments to Mr. Drice, who is a person of color: that Mr. Drice should "give up construction and just play the lottery instead;" that Mr. Drice would "be better off playing sports like football;" and suggested that Mr. Drice "must spend all of [his] time at the gym instead of working." (PRSMF ¶ 13.) It is also alleged that Mr. Biggs refused to provide Plaintiff with keys to the project site, even though such is alleged to be a common practice by the Housing Authority. (PRSMF ¶¶ 17, 19.) It is alleged that Mr. Biggs justified his refusal to entrust keys to the Plaintiff by stating; "[h]ow do I know you or your guys will not try to sleep in the unit?" (PRSMF ¶ 21.)
The Plaintiff argues that Mr. Biggs statements regarding Mr. Drice call upon "well-worn" racial stereotypes to disparage Mr. Price's work ethic. The notion that people of color are either lazy or should be regulated to certain areas of society, such as athletics, is certainly a familiar form of racial stereotyping. Such stereotypes, or other forms of unwritten or implicit assumptions "skew perceptions and judgments" and are incompatible where "the entire spectrum of desperate treatment is prohibited." Thomas, 183 F, 3d at 61. The court previously held that Mr. Biggs' statements, which implicate improper assumptions based upon race, are sufficient evidence of racial animus for the purposes of partial summary judgment. The court has not been presented with evidence that would justify altering that ruling on a Motion for Reconsideration.
C. But-For Causation
Finally, the Defendant argues that, in a decision issued after this court's ruling on Defendant's Motion, the Supreme Court of the United States clarified the applicable standard on Plaintiff's Section 1981 claim such that reconsideration is warranted here. See Comcast Corp v. Nat't. Ass'n of African American-Owned Media, 589 U.S., 140 S.Ct. 1009 (2020). In Comcast, the Supreme Court held that race discrimination must be the but-for cause of the injury alleged. Comcast Corp., 589 U.S., 140 S.Ct. at 1014-15. The Defendant here alleges that this court improperly held that the alleged racial animus could have played a role in the termination of Plaintiff's contract but did not find that the racial animus could have been the but-for cause.
The court finds Defendant's argument unavailing. There remains a genuine issue of material fact as to whether racial animus was indeed the but-for cause of Plaintiff's contract termination. As the court previously observed, there is a question as to whether the decision to terminate Plaintiff's contract rested solely with Mr. Biggs, whose own conduct raises questions of racial animus. Mr. Biggs' credibility, as well as the other factual issues outlined above, are questions of fact that are properly submitted to a trier of fact. The court also notes that the purpose of the McDonnell Douglas framework is to "allow [] plaintiffs to prove discrimination by circumstantial evidence." Thomas, 183 F.3d at 58. Based on the circumstantial evidence presented, a reasonable juror could infer that discrimination was the but-for cause of Plaintiff's contract termination. Accordingly, there is a genuine issue of material fact regarding whether racial animus was the but-for cause of Plaintiff's contract termination and partial summary judgment would be inappropriate on such grounds.
IV. Conclusion:
The standards on a Motion for Reconsideration are designed to discourage disappointed litigants from rearguing issues that either were or could have previously been decided. The court has not been presented with evidence that would compel it to alter or amend its prior ruling on Defendant's Motion for Partial Summary Judgment because there remain genuine issues of material fact regarding whether the grounds for terminating Plaintiff's contract were discriminatory.
Defendant's Motion for Reconsideration is DENIED.
The Clerk is directed to incorporate this Order into the docket by reference pursuant to Maine Rule of Civil Procedure 79(a).