Diaz v. Jiten Hotel Mgmt. Inc.

762 F.Supp.2d 319

Carmen Llerena DIAZ, Plaintiff,

v.JITEN HOTEL MANAGEMENT, INC., Defendant.

Civil Action No. 08cv10143–NG.

United States District Court, D. Massachusetts.

Jan. 20, 2011.

Lynn A. Leonard, Melrose, MA, for Plaintiff.Ryan C. Siden, Siden & Associates, Boston, MA, for Defendant.

MEMORANDUM AND ORDER RE: MOTION FOR SUMMARY JUDGMENT

GERTNER, District Judge:I. INTRODUCTION

Ms. Carmen Llerena Diaz (“Diaz”) brought an age-discrimination action under 29 U.S.C. §§ 621–634 and M.G.L. c. 151B against her former employer, Jiten Hotel Management (“Jiten”) for their actions during her years as the head housekeeper at the Holiday Inn Express. She alleges the workplace was fraught with age discrimination—abusive conduct and offensive ageist comments to her and others—so as to constitute a hostile environment; and that she suffered disparate treatment and the intentional infliction of emotional distress when she was suddenly denied review and annual raises and then terminated after more than twenty years of service.¹ The matter is presently before this Court on the Defendant's Motion for Summary Judgment (document # 63).

Specifically, the plaintiff alleges that after twenty-two years of excellent service and two “Department Head of the Year” awards, she was suddenly denied review and the corresponding annual raises. Her direct manager, Mitesh Patel (“Mitesh”) ² repeatedly asked her when she was going to retire, told her that she was getting old, and indeed called her an “old pumpkin,” an “old shoe,” and an “old hankie.” When she hired a 52–year old laundry attendant, he told her, “You're going to convert this hotel into a nursing home.” The harassment, she alleges, permeated the environment. Indeed, another manager told her that management thought she was too old for the job and that “old people should remain home.”

Diaz filed a complaint with the Equal Employment and Opportunity Commission (“EEOC”) and Massachusetts Commission Against Discrimination (“MCAD”) on August 4, 2006.

The defendant moves for summary judgment primarily on two grounds. First, it argues that whatever claims Diaz has are directed solely against Mitesh, her direct manager. And, since Mitesh was transferred from the hotel 315 days before Diaz filed her EEOC and MCAD claims (although he was employed at another hotel owned by the defendant), the statute of limitations of 300 days has expired. Second, it would dismiss Mitesh's discriminatory statements as merely “stray remarks,” certainly not indicative of his discriminatory animus or the employment environment as a whole. And without Mitesh, defendant argues, Diaz's claims do not even meet the minimal prima facie standard.

I fundamentally disagree. As I describe below, discrimination is a complex phenomenon, in general, and in particular, in the case at bar. It is about concepts like bias and motivation, precisely the kinds of concepts least suited for resolution by a judge.³ And the evidence that bears on bias and motivation is rarely direct; few decisionmakers will say, for example: I am firing you because you are old (or a woman, or a minority). Rather, discrimination must be inferred not only from the statements of the relevant actors, but also from the context in which they were made, including the relationships between the various actors, the speaker and those around him.

In order to argue for summary judgment in this case, the defendant reduces the work environment to the words of a single man. And it would trivialize that one man's statements about older workers: They did not reflect his real animus to older workers, it argues. They did not create an atmosphere in which such comments were condoned. They did not set an example for others concerning how older workers ought be treated. Finally, they claim that after this one individual was transferred, things suddenly improved; virtually overnight, the workplace was purged of bias.

In effect, what the defendant would have this Court do is to—as one scholar describes it—“slice and dice” the complex phenomenon of discrimination into pieces, and evaluate each piece out of the context of the whole, the real, lived employment environment. See generally Michael Zimmer, Slicing & Dicing of Individual Disparate Treatment Law, 61 La. L. Rev. 577 (2001). See also Elizabeth M. Schneider, The Dangers of Summary Judgment: Gender and Federal Civil Litigation, 59 Rutgers L. Rev. 705, 709 (2007). The approach is not unusual; it is easier to point the finger at the “rogue” actor than to the unconscious and not so unconscious workplace bias that his actions may reflect and encourage.⁴

Nowhere is this reductionist approach more clear than the defendant's characterization of Mitesh's tasteless comments as “stray remarks,” comments that somehow do not matter in the calculus of discrimination. As I describe below, the “Stray Remarks Doctrine” derived from Justice O'Connor's concurrence in Price Waterhouse v. Hopkins, 490 U.S. 228, 276, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) (O'Connor, J., concurring), a gender discrimination case, under a mixed-motive theory, which was very different from the case at bar. And, in my judgment, the Doctrine has been distorted beyond recognition in the subsequent case law.

First, Diaz's claims do not reduce themselves to the statements of Mitesh. She describes comments made with others present, comments echoed by at least one other manager, creating, in effect, an atmosphere of impunity. And Mitesh's evaluations of her, arguably skewed by his bias, were credited by the employer even after he was transferred. Mitesh's departure does not trigger the end of the discrimination, at least on this record.

Second, Mitesh's comments should not be trivialized by characterizing them as merely “stray” remarks. In the past, judges understood the salience of biased comments, particularly when they were racist. The Fourth Circuit in 1988, for example, considered whether offensive statements using the word “nigger” should have been excluded at trial:

The user of such terms intends only one thing: to degrade those whom he describes in the most offensive manner. General use of these words, though obviously not conclusive evidence that a particular decision was made with racial animus, is clearly relevant to determining whether it was. It would be ironic indeed to conclude that use of the language of prejudice is irrelevant in a civil rights suit. Racial slurs represent the conscious evocation of those stereotypical assumptions that once laid claim to the sanction of our laws. Such language is symbolic of the very attitudes that the civil rights statutes are intended to eradicate.

Mullen v. Princess Anne Volunteer Fire Co., Inc., 853 F.2d 1130 (4th Cir.1988).

Consider Mullen in the instant setting: If a manager makes an ageist remark, it could well be a window on his soul, a reflection of his animus, or arguably, just a slip of the tongue somehow unrelated to his “true” feelings. If other managers were nearby, they could well have dismissed the overheard comment as an aberration, or it could have created a new norm of conduct for the company, an atmosphere of impunity. The point is that the inference to be given the remark should not be made by judges, particularly judges who have not heard the entire story.

As described below, I DENY summary judgment on all claims save one. I GRANT summary judgment on Diaz's claim for intentional infliction of emotional distress (Count V) because that claim is barred by the Workers Compensation Act, as the plaintiff has acknowledged. See Doe v. Purity Supreme, Inc., 422 Mass. 563, 564–65, 664 N.E.2d 815 (1996) (common law claims relating to a rape committed by a manager during work hours are barred by the Worker's Compensation Act.)

II. BACKGROUND

The facts are here presented in the light most favorable to the plaintiff, as I am obliged to do on the defendant's motion for summary judgment. Fennell v. First Step Designs, Ltd., 83 F.3d 526, 534 (1st Cir.1996).

Diaz, a sixty-one year old Hispanic woman, worked as a housekeeper in the same hotel building for twenty-two years. She started there in 1982 and continued after Jiten Hotel Management purchased the hotel property in 1997. The hotel is now called the Holiday Inn Express, located at 69 Boston Street in Dorchester, Massachusetts. Pl.'s Am. Compl. ¶ 6 (document # 33). At the time of the events in question, Diaz was the Executive Housekeeper, the head of her department.

For years, Diaz performed well. She earned annual raises, positive written evaluations, and awards for “Department Head of the Year” in 2001 and 2003. She was by all accounts an excellent employee. Bleakney Dep. 38:12–16, Dec. 11, 2008, Def.'s Ex. I (document # 66–4) (admitting Diaz's “stellar performance”). She received consistent positive verbal and written performance evaluations and two minor warnings in her twenty-two years at the hotel. See Diaz Performance Evaluations, Pl.'s Ex. 21 (document # 70–22).

In 2004, however, her situation changed. She started noting changes in the way the General Manager of the Holiday Inn Express, Mitesh Patel, treated her. He began to ask her when she was going to retire and told her that she was “getting old.” Diaz Dep. 49:13–24; 50:1–5; 51:21–24, Jan. 12, 2009, Pl.'s Ex. 11 (document # 70–12). That year, for the first time, Jiten Hotel Management did not evaluate her performance. She states that when she inquired about the irregularity, Mitesh replied, “You're making a lot of money. Thank me that you are working and making this money.” Id. 26:22–24; 27:1–7.

Though Diaz did not ask again about her annual evaluation or raise, her relationship with Mitesh deteriorated during 2004 and 2005. According to Diaz, Mitesh criticized her decisions, belittled her, embarrassed her and was generally verbally and mentally abusive. Diaz Dep. 49–56, Jan. 30, 2009, Pl.'s Ex. 4 (document # 70–5). In December of 2004, Diaz contacted the corporate Vice...