Mendez v. Puerto Rican Int'l Cos.

Juan MENDEZ, et al., Plaintiffs, v. PUERTO RICAN INTERNATIONAL COMPANIES, INC., et al., Defendants,

Civ. No. 05-174

C/w No. 05-199

UNITED STATES DISTRICT COURT DISTRICT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX

Date: October 8, 2013

NOT FOR PUBLICATION

MEMORANDUM OPINION

THOMPSON, U.S.D.J.¹

The above-captioned consolidated matter² is before the Court on the joint motion of Defendants Fluor Corporation ("Fluor"), Fluor Enterprises, Inc. ("FEI"), Plant Performance Services, LLC ("P2S"), Plant Performance Services International, Ltd ("PPSI"), (collectively, the "Fluor Defendants"), and Hovensa, LLC (Hovensa and the Fluor Defendants are collectively referred to herein as "Defendants"),³ for summary judgment on the merits pursuant to Federal Rule of Civil Procedure 56.⁴ (Doc. Nos. 618, 619). Plaintiffs⁵ have opposed. (Doc. No. 655).

The Court has issued the Opinion below based upon the written submissions of the parties and without oral argument pursuant to Federal Rule of Civil Procedure 78(b). For the reasons stated herein, the Court will grant in part and deny in part Defendants' motion.

PROCEDURAL HISTORY

This matter, which was assigned to the undersigned New Jersey District Court judge on May 20, 2013, (Doc. No. 761), has undergone significant changes over the span of its seven year pilgrimage through the court system in terms of parties and procedural posture. Given the extensive nature of the docket and the assured familiarity of the parties with its many and varied particulars, the Court will provide here only a brief summary of the relevant procedural history.

In late 2005, a combined 48 Plaintiffs filed the two complaints underpinning the present consolidated action, asserting claims of discrimination based upon race, color, and national origin. (Mendez, Doc. No. 1; Smith, Doc. No. 1). After consolidation and amendment, the final iteration of the pleadings contains allegations of: (1) violations of Title VII of the Civil Rights Act of 1967 ("Title VII"), 42 U.S.C. §§ lOOOe, et seq.; (2) violations of the Virgin Islands Civil Rights Act ("VICRA"), 10 V.I.C. §§ 1-10, §§ 64, et seq., 24 V.I.C. § 451; (3) breach of the implied covenant of good faith and fair dealing; (4) violations of the Virgin Islands WrongfulDischarge Act, 24 V.I.C. §§ 76-79; (5) intentional and/or negligent infliction of emotional distress; (6) tortious interference with an employment relationship; and (7) punitive damages. (Doc. No, 558, Second Amended Complaint).

In the intervening period between initiation of suit and the present motion for summary judgment, 41 Plaintiffs and 4 Defendants have been dismissed from this action. Eight Plaintiffs settled following the Court's August 2007 partial grant of a motion to stay proceedings pending arbitration. (Mendez, Doc. Nos. 26, 110, 781, 785; Smith, Doc. No. 19). An additional 22 Plaintiffs settled following mediation proceedings in March 2012. (Doc. Nos. 781, 785). Three Plaintiffs were subsequently dismissed for failure to prosecute their claims under Federal Rule of Civil Procedure 41(b), (Doc. No. 839); and summary judgment was granted in favor of Hovensa, Fluor, FEI, and P2S based upon a lack of joint employer status. As of the writing of this Opinion, the Court has received word that a further eight Plaintiffs have settled, stipulations pending. (Doc. No. 785, 840).

For the purposes of this motion, then, only PPSI of the moving Defendants, and Bienvenido Carrasco, Raquel Concepcion, Jose Gonzales, Orlando Pagan, Michael Bynoe, Shawn Smith, and Juan Mendez of the opposing Plaintiffs, remain active in this litigation.

FACTUAL BACKGROUND

The discrimination claims at issue in this suit stem from Plaintiffs' work at the Hovensa Refinery. Specifically, in or around 2004, Hovensa contracted with General Electric ("GE") to manage the FCC expander project (hereinafter, "the project") at its refinery in St. Croix. (Doc. No. 620, Statement of Undisputed Material Facts ("SUMP"), ¶¶ 1, 2). GE, as Hovensa's agent, contracted with PPSI to serve as general contractor for the project's mechanical work and construction services. (Doc. No. 620, SUMF, ¶¶ 3-4, 12). PPSI in turn sub-contracted with acompany called Puerto Rican International Companies ("PIC") for general mechanical work services, including the installation of valves and pipes and minor electrical work, (Doc. No. 620, SUMF, ¶ 19).

Legally. PIC was not a subsidiary of PPSI and, in fact, was contractually designated an independent contractor. (Doc. No. 620, SUMF, ¶¶ 20-21). According to the subcontract, PIC was to be responsible for the supervision of all PIC employees on the project, (Doc. No. 620, SUMF, ¶ 20), and was to be "solely responsible for determining the means and methods of performing the work." (Doc. No. 620, SUMF, ¶ 20). On the other hand, PPSI reserved the right to either reduce or expand the size of PIC's work scope, (Doc. No. 620, Att. 12, Ex. L, PPSI-PIC Subcontractor Agreement, ¶ 6.1), and the subcontract specified that the "Contractor [PPSI], agent, and/or Hovensa shall have the option, at their sole discretion, to require [PIC] to remove and/or replace personnel at [PIC's] expense." (Doc. No. 620, Att. 12, Ex. L, PPSI-PIC Subcontractor Agreement, ¶ 22.1). After contracting with PPSI, PIC hired Plaintiffs for the purposes of welding, pipefitting, and other labor, (see Doc. No. 620, SUMF, ¶¶ 19, 28), and each Plaintiff admits that he or she was PIC's employee.⁶ (Doc. No. 620, SUMF, ¶ 28).

Plaintiffs assert that during their employment, they suffered various types of discrimination at the hands of PIC and PPSI. The most significant of these claims involves a particular incident between a PPSI supervisor and a PIC employee (referred to herein as the "Saucier-Pagan Incident" or the "Incident") and the events subsequent.

At some point in September 2004, Bobby Saucier, a PPSI supervisor in charge of rigging, made allegedly derogatory racial comments to PIC employee and Plaintiff Orlando Pagan and other members of Pagan's team. (Doc. No. 620, SUMF, ¶¶ 45, 46). In his deposition, Pagan, whose wife is black, testified that Saucier used the word "niggers" in the following context:

A. From his mouth it came out, "where are those black riggers?"

Q. . . . Did Bobby say the word niggers?

A. At a certain time, yes.

Q. When did he say that word?

A. And when I said, "Why riggers"; and he said, "Because they're niggers. In my country they're called colored boys."

(Doc. No. 644, Att.l, Responsive Statement of Facts ("RSOF"), ¶47). This incident was allegedly overheard by, inter alia, Smith and Bynoe.

Pagan immediately reported the Incident to onsite PIC Manager Juan Mendez via radio, who then reported it to PPSI management. (Doc. No. 620, SUMF, ¶¶ 25, 48). Although there is some dispute as to the number and timing of the meetings that then followed to address the Incident, it appears that there was at least one public meeting at which Pagan publicly complained, (Doc. No. 664, Defs.' Resp. to CSOF, ¶ 25), and one public meeting at which Saucier apologized, (see Doc. No. 644, Att. 1, RSOF, ¶ 47 ("Saucier admitted to using the term 'nigger' at the refinery when he was forced to apologize to the PIC employees in the safety meeting."); Doc. No. 664, Defs.' Resp. to CSOF, ¶ 32 ("During the meeting, Saucier was asked to apologize, which he did."). There is also testimony that at a certain public meeting, the management in attendance cut short the public dialogue about Saucier's racist statements. (Doc.No. 644, Att. 1, CSOF, ¶ 33; Doc. No. 645, Att. 13, Ex. 25, Pagan Dep. at 33:18-21 ("and the big boss from. P2S[/PPSI] said that [Sander's racist statements] wasn't a problem for resolving there because everybody was there present and they didn't want any problems."); see also Doc. No. 646, Att. 12, Ex. 37, Gonzalez Dep. 21-22) ("one of the bosses" or the "big boss" from P2S[/PPSI]" stated "let[s] not talk about it [the complaints of racism] here . . . or let's not talk about it further here.")).

It is undisputed that Hovensa, PPSI, and GE held a smaller, private meeting the same day as the Incident. (Doc. No. 620, SUMF, ¶ 55). Those present at the meeting included Mendez and Pagan, as well as PPSI's Clay Redford, Plant Manager, and PPSI's Andy Herrera, Construction Manager. (Doc. No. 644, Att. 1, CSOF, ¶ 27; Doc. No. 664, Defs.' Resp. to CSOF, ¶ 27). According to Mendez, management from Hovensa and PPSI indicated they would take care of the problem. (Doc. No. 644, Att. 1, CSOF, ¶ 28). However, Mendez also testified that, after the meeting, Redford stated, "PIC was going to go before Bobby [Saucier]." (Doc. No. 644, Att. 1, RSOF, ¶ 55).

According to Plaintiffs, the Saucier-Pagan Incident was not the first such incident of racially discriminatory comments. Bynoe contends he heard comments from stateside workers and Puerto Ricans to the effect that, "those guys, these black men, they don't know what they're doing and Cruzian guys don't know what they're doing" and "these black Cruzian men;" he also purportedly heard Saucier exclaim, "God damn it, 1 can't work with these colored guys." (Doc. No. 620, SUMF, ¶ 65c). Similarly, PIC employee Hernandez testified that he overheard Saucier make racist remarks, such as commenting that one of the guy's wives was "black and all of that" and "we don't need these f-ing Puerto Ricans here," (Doc. No. 620, SUMF, ¶ 68d), and that PPSI's Herrera made statements such as, "they should let me bring all my people in[from] Louisiana] so we could get rid of all these f-ing people" and "we don't need these f-ing Puerto Ricans." (Doc. No. 620, SUMF, ¶ 68d).

Smith, echoing the testimony of Bynoe and Hernandez, testified that Saucier at one point stated that he "d[idn't] want to work with those colored boys," (referring to Smith and Bynoe), (Doc. No. 620-60, Excerpts Smith Dep., 52:12-53:7), and that while Saucier might not have always used explicit racial slurs, he would use the word "boy," or would say things like "Hey you," or "stupid...