Dacunha v. Skip Sagris Enters.

STEVEN DACUNHA, Plaintiff, v. SKIP SAGRIS ENTERPRISES, INC., Defendant.

Civil Action No. 18-10999-DJC

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

August 31, 2020

MEMORANDUM AND ORDER

CASPER, J.

I. Introduction

Plaintiff Steven Dacunha ("Dacunha") has filed this lawsuit against Defendant Skip Sagris Enterprises, Inc. ("Skip Sagris") asserting claims for gender, sex and sexual orientation discrimination, harassment and retaliation pursuant to Mass. Gen. L. c. 151B and Title VII, 42 U.S.C. § 2000e et seq. D. 1. Skip Sagris now moves for summary judgment. D. 24. For the reasons discussed below, the Court ALLOWS the motion for summary judgment in part and DENIES it in part.

II. Standard of Review

The Court grants summary judgment where there is no genuine dispute regarding any material fact and the undisputed facts demonstrate that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A material fact is one that "carries with it the potential to affect the outcome of the suit under the applicable law." García-González v. Puig-Morales, 761 F.3d 81, 87 (1st Cir. 2014) (quoting Newman v. Advanced Tech. Innovation Corp., 749 F.3d 33, 36 (1st Cir. 2014)) (internal quotation mark omitted). The moving party "bears the burden of demonstrating the absence of a genuine issue of material fact." Rosciti v. Ins. Co. of Pa., 659 F.3d 92, 96 (1st Cir. 2011) (citation omitted). Once that burden is met, the non-moving party may not rest on the allegations or denials in his pleadings, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986), but, "with respect to each issue on which [he] would bear the burden of proof at trial," must "demonstrate that a trier of fact could reasonably resolve that issue in [his] favor." Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010) (citations omitted). The Court views the record in the light most favorable to the non-moving party, "drawing reasonable inferences" in his favor. Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir. 2009) (citation omitted). "Conclusory allegations, improbable inferences, and unsupported speculation," however, are "insufficient to establish a genuine dispute of fact." Travers v. Flight Servs. & Sys., Inc., 737 F.3d 144, 146 (1st Cir. 2013) (citation and internal quotation mark omitted).

III. Factual Background

The following facts are drawn from the parties' statements of material facts, D. 26; D. 33, and supporting filings and are undisputed unless noted otherwise. Skip Sagris operates a Dunkin Donuts franchise in Billerica, Massachusetts. D. 26 ¶ 1; D. 33 ¶ 1. Dacunha began his employment as a crew member there in June 2017. D. 26 ¶ 5; D. 33 ¶ 5. Natasha Colon ("Colon"), another crew member at Skip Sagris, D. 26 ¶ 10, often worked the same shift as Dacunha or a shift that overlapped with his shift. D. 33 ¶ 10.

Dacunha, who identifies as gay and bisexual, D. 33 ¶ 51, attests that on various occasions Colon, his co-worker, harassed him because of his sexual orientation. On or about June 4, 2017, Colon called Dacunha a "faggot based on how [Dacunha] took an order." D. 33 ¶ 52. Dacunhacomplained to manager Lisa Gentile ("Gentile"), store manager Matthew Ribeiro ("Ribeiro") and shift leader Yamir Rodriguez ("Rodriguez") throughout his one-month employment at Skip Sagris about the harassment. D. 33-2 (Dacunha Deposition) at 10. Dacunha informed Ribeiro and Gentile about Colon's June 4, 2017 remarks. D. 33 ¶ 52. Gentile responded that she would need to personally witness the comment to address it. D. 33 ¶ 52. Ribeiro told Dacunha that it was "just the city that [they] live in" and " just to ignore [Colon]." D. 33 ¶ 52.

In or about mid-June 2017, Colon referred to Dacunha as a "faggot" again in front of other employees and customers. D. 33 ¶ 54. Dacunha complained about this comment to Gentile, Rodriguez and Ribeiro. D. 33-2 at 19-20. Dacunha requested a mediation with management and Colon to discuss how that word offended Dacunha. D. 33 ¶ 54. Gentile agreed to a mediation session, but Ribeiro and Colon did not agree. D. 33 ¶ 54. Ribeiro again said that Dacunha should ignore Colon, that they had already discussed the topic and that there was nothing that could be done because "girls will be girls." D. 33 ¶ 54. Rodriguez similarly told Dacunha he should ignore Colon and try to change his schedule. D. 33 ¶ 54; D. 33-2 at 21.

On another occasion, while Dacunha took orders from customers, Colon commented to Rodriguez, "don't you think he's a faggot the way he takes orders?" D. 33 ¶ 55. Dacunha overheard the comment by Colon to Rodriguez, said "excuse me" to Colon and Rodriguez then repeated the comment back to Dacunha. D. 33 ¶ 55.

Sometime at the end of June 2017, Dacunha handed Colon the wrong sandwich. D. 33 ¶ 56. Colon threw the sandwich at Dacunha and said, "here you go, you stupid ass." D. 33 ¶ 56. After the incident, Dacunha asked Gentile if he could leave his shift for the day, which Gentile allowed. D. 33 ¶ 56. As Dacunha was leaving, he told Ribeiro that he would quit if Colon's conduct continued. D. 33 ¶ 56.

On July 3, 2017, Dacunha prepared a drink for a customer but slightly overfilled the cup, causing some of the drink to spill above the top of the lid. D. 33 ¶ 57. Colon picked up the drink and handed it to the customer. D. 33 ¶ 57. When the drink spilled in the customer's car, Colon called Dacunha a "faggot" and stated that he did not know how to wipe down cups. D. 33 ¶ 57. Dacunha announced that he was going to call the Equal Employment Opportunity Commission ("EEOC"). D. 33 ¶ 57. Dacunha then went into a back room in the store and called the EEOC on his cell phone. D. 33-2 at 15.

That same day, July 3, 2017, the Multi-Unit Manager David Francisco ("Francisco"), who was not at the store, received a phone call from Albano, another crew member, that Dacunha and Colon had gotten into an altercation. D. 26 ¶ 16. Francisco indicated his intention to investigate upon his return the following day. Id. While Dacunha was on the phone with the EEOC, a fellow crew member handed Dacunha the store phone to speak to Francisco. D. 33-2 at 23. Francisco informed Dacunha that he needed to leave the store while management figures everything out." D. 33 ¶ 58.

The following day, on July 4, 2017, Dacunha and Colon were scheduled to work the same shift. D. 33 ¶ 59. Francisco, with Ribeiro present, conducted several interviews including of Colon, Albano, and two other crew members, Maria Arruda ("Arruda") and Lucia Muse ("Muse") about what occurred the prior day. D. 26 ¶ 17; D. 33 ¶ 61. During the investigation, Albano, Arruda and Muise told Francisco that Dacunha said that he was going to get two women to come in to work to beat Colon up and that Dacunha was going to stab Colon. D. 26 ¶¶ 19-21; D. 29; D. 30; D. 31-1. Francisco also interviewed Colon and she also stated that Dacunha threatened to bring two girls in to beat her up and said he would stab her. D. 26 ¶¶ 22-23. Francisco recalledthat Colon "was very scared, physically shaken up and seemed truly concerned about whether [Dacunha] would take action on the threats that he made to her." D. 26 ¶ 22. Dacunha contends that he did not threaten Colon or otherwise verbally abuse Colon. D. 33 ¶ 19.

Based upon his investigation, Francisco concluded that Dacunha violated Skip Sagris's Workplace Violence policy. D. 26 ¶ 24. On July 5, 2017, Francisco and Ribeiro met with Dacunha in the Skip Sagris store manager's office and Francisco informed Dacunha that he was terminated due to threatening another employee with physical harm, which was witnessed by several other staff members. D. 26 ¶ 32. The termination notice that Francisco provided Dacunha reflected that the termination was for threatening another employee with violation. D. 26 ¶¶ 32-36. Even by Dacunha's own recounting, he told Francisco about Colon's statements to him in this meeting when Francisco was informing him of his termination for violating the Workplace Violence policy. D. 33 ¶ 36 (citing Dacunha deposition, D. 33-2 at 13). Francisco spoke to Colon who admitted that she used the derogatory term during the altercation and he gave Colon a written warning. D. 26 ¶ 37.

IV. Procedural History

Dacunha filed this lawsuit against Skip Sagris on May 17, 2018. D. 1. Skip Sagris has now moved for summary judgment on all counts. D. 24. The Court heard the parties on the pending motion and took the matter under advisement. D. 37.

V. Discussion

A. Discrimination Claims (Counts II and V)

Dacunha alleges that Skip Sagris discriminated against him based upon his sex/gender (Count II) in violation of Title VII, 42 U.S.C. § 2000e et seq., and based upon his sex/gender and sexual orientation under Mass. Gen. L.c. 151B, § 4 (Count V). Both the federal and state discrimination claims are analyzed under the burden-shifting framework articulated in McDonnellDouglas Corp. v. Green, 411 U.S. 792 (1973). See Bulwer v. Mt. Auburn Hosp., 473 Mass. 672, 681 (2016).

1. Prima Facie Case

Under McDonnell Douglas, an employee alleging discrimination must establish a prima facie case by showing that: (1) he belonged to a protected class; (2) that he performed his job satisfactorily; and (3) his employer took an adverse employment decision against him. See Miceli v. JetBlue Airways Corp., 914 F3d 73, 81 (1^st Cir. 2019). If plaintiff satisfies this showing, he is entitled to "a presumption of discrimination" and the burden shifts to the defendant. Trahan v. Wayfair Maine, LLC, 957 F.3d 54, 61 (1^st Cir. 2020); see Abramian v. Pres. & Fellows of Harvard Coll., 432 Mass. 107, 116 (2000). Here, it is undisputed that Dacunha is a member of a protected class as he identifies as gay and bisexual. D. 33 ¶ 51. It is also undisputed that Dacunha was terminated. D. 26 ¶ 32. Skip Sagris disputes whether Dacunha performed his job satisfactorily. D. 25 at 5.

The prima facie case, however, is not meant to be an onerous burden. Benoit v. Tech. Mfg. Corp., 331 F.3d...