Curtis v. Sullivan Tire, Inc., No. 07-cv-196-P-S.

584 F.Supp.2d 204

Jason CURTIS, Plaintiff, v. SULLIVAN TIRE, INC., Defendant.

No. 07-cv-196-P-S.

United States District Court, D. Maine.

October 27, 2008.

Guy D. Loranger, Nichols & Webb, P.A., Saco, ME, for Plaintiff.

Robert C. Brooks, Verrill & Dana, Portland, ME, for Defendant.

ORDER AFFIRMING THE RECOMMENDED DECISION OF THE MAGISTRATE JUDGE

GEORGE Z. SINGAL, Chief Judge.

On August 26, 2008, 2008 WL 4057152, the United States Magistrate Judge filed with the Court his Recommended Decision on Defendant's Motion for Summary Judgment (Docket # 27). On September 15, 2008, Defendant filed its Objection to the Recommended Decision (Docket # 28). On October 2, 2008, Plaintiff filed his Opposition to Defendant's Objection to the Recommended Decision (Docket # 29).

I have reviewed and considered the Magistrate Judge's Recommended Decision, together with the entire record; I have made a de novo determination of all matters adjudicated by the Magistrate Judge's Recommended Decision; and, with the exception of one recommended finding regarding the underlying record,¹ I concur with the recommendations of the United States Magistrate Judge for the reasons set forth in his Recommended Decision, and determine that no further proceeding is necessary.

1. It is therefore ORDERED that the Recommended Decision of the Magistrate Judge is hereby AFFIRMED.

2. It is hereby ORDERED that Defendant's Motion for Summary Judgment (Docket # 14) is GRANTED IN PART and DENIED IN PART.

RECOMMENDED DECISION ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

JOHN H. RICH, III, United States Magistrate Judge.

In this employment action alleging a hostile work environment and unlawful retaliation that was removed from the Maine Superior Court (York County), the defendant, Sullivan Tire, Inc., moves for summary judgment. I recommend that the court grant the motion in part.

I. Summary Judgment Standards

A. Federal Rule of Civil Procedure 56

Summary judgment is appropriate only if the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Santoni v. Potter, 369 F.3d 594, 598 (1st Cir.2004). "A dispute is genuine if the evidence about the fact is such that a reasonable jury could resolve the point in the favor of the non-moving party." Rodriguez-Rivera v. Federico Trilla Reg'l Hosp. of Carolina, 532 F.3d 28, 30 (1st Cir.2008) (quoting Thompson v. Coca-Cola Co., 522 F.3d 168, 175 (1st Cir.2008)). "A fact is material if it has the potential of determining the outcome of the litigation." Id. (quoting Maymi v. P.R. Ports Auth., 515 F.3d 20, 25 (1st Cir.2008)).

The party moving for summary judgment must demonstrate an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In determining whether this burden is met, the court must view the record in the light most favorable to the nonmoving party and give that party the benefit of all reasonable inferences in its favor. Santoni, 369 F.3d at 598. Once the moving party has made a preliminary showing that no genuine issue of material fact exists, the nonmovant must "produce specific facts, in suitable evidentiary form, to establish the presence of a trialworthy issue." Triangle Trading Co. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir.1999) (citation and internal punctuation omitted); Fed.R.Civ.P. 56(e). "As to any essential factual element of its claim on which the nonmovant would bear the burden of proof at trial, its failure to come forward with sufficient evidence to generate a trialworthy issue warrants summary judgment to the moving party." In re Spigel, 260 F.3d 27, 31 (1st Cir.2001) (citation and internal punctuation omitted).

B. Local Rule 56

The evidence the court may consider in deciding whether genuine issues of material fact exist for purposes of summary judgment is circumscribed by the Local Rules of this District. See Loc. R. 56. The moving party must first file a statement of material facts that it claims are not in dispute. See Loc. R. 56(b). Each fact must be set forth in a numbered paragraph and supported by a specific record citation. See id. The nonmoving party must then submit a responsive "separate, short, and concise" statement of material facts in which it must "admit, deny or qualify the facts by reference to each numbered paragraph of the moving party's statement of material facts[.]" Loc. R. 56(c). The nonmovant likewise must support each denial or qualification with an appropriate record citation. See id. The nonmoving party may also submit its own additional statement of material facts that it contends are not in dispute, each supported by a specific record citation. See id. The movant then must respond to the nonmoving party's statement of additional facts, if any, by way of a reply statement of material facts in which it must "admit, deny or qualify such additional facts by reference to the numbered paragraphs" of the nonmovant's statement. See Loc. R. 56(d). Again, each denial or qualification must be supported by an appropriate record citation. See id.

Failure to comply with Local Rule 56 can result in serious consequences. "Facts contained in a supporting or opposing statement of material facts, if supported by record citations as required by this rule, shall be deemed admitted unless properly controverted." Loc. R. 56(e). In addition, "[t]he court may disregard any statement of fact not supported by a specific citation to record material properly considered on summary judgment" and has "no independent duty to search or consider any part of the record not specifically referenced in the parties' separate statement of fact." Id.; see also, e.g., Cosme-Rosado v. Serrano-Rodriguez, 360 F.3d 42, 45 (1st Cir.2004) ("We have consistently upheld the enforcement of [Puerto Rico's similar local] rule, noting repeatedly that parties ignore it at their peril and that failure to present a statement of disputed facts, embroidered with specific citations to the record, justifies the court's deeming the facts presented in the movant's statement of undisputed facts admitted.") (citations and internal punctuation omitted).

II. Factual Background

The statements of material facts submitted by the parties pursuant to Local Rule 56 include the following undisputed material facts.

The defendant hired the plaintiff as an automotive technician in its Biddeford, Maine location in May 2005. Statement of Material Facts in Support of Defendant's Motion for Summary Judgment ("Defendant's SMF") (Docket No. 16) ¶ 1; Plaintiff's Opposition to Defendant's Separate Statement of Material Facts ("Plaintiff's Responsive SMF") (Docket No. 21) ¶ 1. His job duties included performing alignments, oil changes, preventive maintenance, tires, and some sales. Id. ¶ 2. At the time the plaintiff was hired, Stephen Kitchen was the manager of the Biddeford shop. Id. ¶ 3. In January 2006, the plaintiff was transferred to the defendant's Portland store. Id. ¶ 4. In July 2006, the plaintiff was transferred back to the Biddeford store. Id. ¶ 6. His duties were the same at both locations. Id. ¶ 7. David Dow was the manager of the Biddeford store when the plaintiff was transferred back in July 2006. Id. ¶ 8.

The assistant manager of the Biddeford store was Keith Shirley. Id. ¶ 9. He did not have the authority to hire or fire employees. Id. ¶ 11. Jody David was the shop foreman or production manager at the time the plaintiff was transferred back to Biddeford. Id. ¶ 13. He too did not have the authority to hire or fire employees. Id. ¶ 15. Wayne Funder was, during the relevant time frame, the defendant's human resources manager. Id. ¶ 16. Billy Sullivan was, during the same time frame, the defendant's district manager for Maine. Id. ¶ 17.

In the time the plaintiff worked with Shirley, between July and December 2006, the plaintiff spent about 90% of each work day in the bays. Id. ¶ 19. The door between the showroom and the workshop bays was closed approximately 50% of the time. Id. ¶ 18. The only time the plaintiff would go into the showroom would be at the end of the day when he clocked out and to take a repair order to the desk. Id. ¶ 20. He delivered approximately 8 repair orders a day to the showroom. Id. ¶ 21. Shirley spent approximately 80% of his working time at the service desk in the showroom. Id. ¶ 23.

"Garage talk" was common in the Biddeford shop. Id. ¶ 27. The plaintiff defined "garage talk" as having a "bad mouth," "the F bomb, ... and all the swears." Id. ¶ 28. There was a certain level of joking between employees in the Biddeford store, and the plaintiff teased his coworkers. Id. ¶¶ 29-30. The plaintiff and other Biddeford employees, including Shirley and David, would use the expression "L.O.F.," which stands for "Look Out Front." Id. ¶ 31. This expression was used to get everyone's attention when there was a woman on the street outside or in the office. Id. ¶ 31. The plaintiff was not offended by the use of this expression. Id. ¶ 35.

Shirley never propositioned the plaintiff for sexual activity. Id. ¶ 36. The plaintiff never felt physically threatened by Shirley. Id. ¶ 41. Approximately two months after his transfer back to Biddeford, the plaintiff began keeping notes of things said by Shirley that the plaintiff did not like hearing. Id. ¶ 49. Shirley thought the things he said were joking, but the plaintiff did not. Id. ¶ 50. In September 2006, Shirley started making comments to the plaintiff about the way the plaintiffs girlfriend looked. Id. ¶ 51. He said something once about the plaintiffs girlfriend's "rack," referring to her breasts. Plaintiffs Sep[a]rate Statement of Facts ("Plaintiffs SMF") (Docket No. 22) ¶ 21; Defendant's Objections to Plaintiffs Opposition to Defendant's Separate Statement of Material Facts ("Defendant's Responsive SMF") (Docket No. 24) ¶ 21. Shirley's comments occurred when the...