Rosemond v. Stop and Shop Supermarket Co.

456 F.Supp.2d 204

Joseph ROSEMOND, Plaintiff v. STOP AND SHOP SUPERMARKET COMPANY, Defendant.

No. C.A. 04-30072-MAP.

United States District Court, D. Massachusetts.

September 28, 2006.

COPYRIGHT MATERIAL OMITTED

Tani E. Sapirstein, Sapirstein & Sapirstein, PC, Springfield, MA, for Plaintiff.

Brigitte M. Duffy, Lisa J. Damon, Seyfarth Shaw, Boston, MA, for Defendant.

MEMORANDUM AND ORDER RE: REPORT AND RECOMMENDATION REGARDING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

(Docket Nos. 31 & 52)

PONSOR, District Judge.

Plaintiff, an African-American, has brought this action against Defendant, alleging that he suffered a racially-hostile work environment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. and Mass. Gen. Laws ch. 151B. Defendant filed a Motion for Summary Judgment, which was referred to Chief Magistrate Judge Kenneth P. Neiman for Report and Recommendation.

On March 22, 2006, Judge Neiman issued his recommendation, to the effect that the Motion for Summary Judgment should be denied, but with the limitation that Plaintiff could pursue his action "only as a co-worker harassment case against Defendant under Title VII and ch. 151B." Dkt. 52 at 26 (footnote omitted).

Both Plaintiff and Defendant filed timely objections to the Recommendation. Plaintiff contended that the Recommendation was incorrect in prohibiting trial of the issue of strict supervisory liability, and Defendant objected to trial under any guise.

Following de novo review, the court will adopt the Report and Recommendation for the reasons set forth in Judge Neiman's well-considered memorandum. In sum, the better view of the law is that neither Title VII nor ch. 151B would recognize a claim for supervisory liability on the undisputed facts of this case. Moreover, with regard to Plaintiff's claim based upon co-worker harassment, the court agrees that "the dispute about Defendant's knowledge and the adequacy of its response involves reasonable assessments not easily amenable to summary judgment." Dkt. No. 52 at 25 (citation omitted). Although Plaintiffs case may have some weaknesses, he is entitled to present his claim to the jury. Certainly, the "joke" of hanging a noose in an African-American co-worker's office is particularly despicable and is far from one of "the ordinary, if occasionally unpleasant, vicissitudes of the workplace . . . ." Noviello v. City of Boston, 398 F.3d 76, 92 (1st Cir.2005), citing Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275,. 141 L.Ed.2d 662 (1998).

For the foregoing reasons, the Report and Recommendation (Dkt. No. 52) is hereby ADOPTED and the Defendant's Motion for Summary Judgment (Dkt. No. 31) is DENIED, with the qualification articulated by Judge Neiman.

The court has denied Defendant's Motion to Strike (Dkt. No. 58) and Plaintiffs Motion to Amend Complaint (Dkt.61) by separate notation. The clerk will set this case for a status conference before this court to set a course for future proceedings.

It is So Ordered.

REPORT AND RECOMMENDATION WITH REGARD TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (Document No. 31)

NEIMAN, Chief United States Magistrate Judge.

Joseph Rosemond ("Plaintiff'), who is African-American, brings this action against his employer, Stop & Shop Supermarket Company ("Defendant"), after discovering a noose hanging from the ceiling in his work area at Defendant's Chicopee store on December 10, 2003. Plaintiffs complaint alleges that he suffered a racially-hostile work environment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), and Mass. Gen. L. ch. 151 B ("chapter 151 B"). He asserts that Defendant, as his employer, is liable for the racially-hostile work environment regardless of whether the harassment was conducted by one of its supervisors or by his co-workers.

Defendant has filed a motion for summary judgment, which motion has been referred to this court for a report and recommendation. See 28 U.S.C. § 636(b)(1)(B). For the following reasons, the court will recommend that Defendant's motion be denied, with the caveat that the action may proceed only as a co-worker harassment case.

I. BACKGROUND

The following background is derived from Defendant's Local Rule 56.1 Statement of Material Facts (Document No. 33, hereinafter "Def.'s Facts") and Plaintiffs Statement of Facts in Dispute (Document No. 40, hereinafter "Pl.'s Facts"). The facts are stated in a light most favorable to Plaintiff, the party opposing summary judgment. Douglas v. York County, 433 F.3d 143, 149 (1st Cir.2005). As necessary, further facts are addressed in the court's discussion below.

Plaintiff has been a manager with Defendant since 1994. He is currently the customer service manager ("CSM") at Defendant's West Springfield store. When initially hired, Plaintiff worked in Defendant's Northampton distribution center. In 2001, he was offered and accepted the position of CSM at Defendant's Chicopee store. In that position, Plaintiff managed between 80 and 110 "front end" employees and reported directly to the store manager, Brian Whalen ("Whalen"). (Def.'s Facts 1, 2.)

A. The Incident

On the morning of December 10, 2003, Plaintiff was the store manager-in-charge since Whalen was not on duty. After arriving at around 7:15 a.m., Plaintiff went to his work area in the upstairs mezzanine. There, he found a rope, cinched in a noose, hanging from the ceiling. Plaintiff was quite upset. Following an investigation, Charles Ingalls ("Ingalls"), the head meat cutter, and Jeramie Rankin ("Rankin"), a seafood clerk, admitted that they had hung the noose in the mezzanine. (Def.'s Facts ¶¶ 2, 21; Pl.'s Facts ¶ 21.)

The mezzanine overlooks the retail shopping floor and contains the store's time clock. For summary judgment purposes, the parties rely on a diagram of the mezzanine created by Plaintiff at his deposition. It shows a stairway leading up to an open area. At the top of the stairway is a water cooler, behind which is a hallway leading to Whalen's office. To the right of the water cooler is the desk of Marcy Wutka ("Wutka"), the store's perishables manager. Plaintiffs desk, the only other desk pictured in the diagram, is positioned next to Wutka's and closer to the stairway. According to the diagram, the noose was hung between the water cooler and Wutka's desk. At the time, Wutka was on vacation. (Def.'s Facts ¶ 3; Pl.'s Facts ¶ 14 n. 4; Document No. 41, Appendix to Pl.'s Ex. 1 (Rosemond Depo.).)

Upon seeing the noose, Plaintiff immediately called Jen Gatto ("Gatto") in the downstairs cash office. Gatto, who would have been among the first to have arrived that morning, told Plaintiff that she had not noticed a rope when she began work at 6:00 a.m. Plaintiff then took some pictures of the hanging noose, took it down, put it in a plastic bag and put the bag in his desk. (Def.'s Facts ¶¶ 5, 6.)

Plaintiff next spoke about the noose with two of the cashiers who had arrived at 7:00 a.m., one of whom told Plaintiff that she was upset because it reminded her of her brother-in-law who had hung himself in a closet. When Isaac Kobodya ("Kobodya"), the general merchandise manager, arrived, Plaintiff informed him about the noose and discussed its racial implications. Kobodya is African-American. Plaintiff also attempted to contact John Vey ("Vey"), the head of store security, but he was not yet at work. Plaintiff also thought about contacting the police, but wanted to first speak with Kathleen Collins ("Collins"), Defendant's district manager and director of operations. (Def.'s Facts 116; Pl.'s Facts ¶¶ 16, 28.)

B. Whalen's Response

Before Plaintiff could contact Collins — and about an "hour or so" after the incident — Plaintiff saw Whalen, the store manager. As it turned out, Whalen had come in on his day off to work on budgets. Plaintiff gave the noose to Whalen and explained that it had been hanging in his work area when he arrived that morning. According to Plaintiff, Whalen said: "Wow, I wonder who did that? Well, we'll get Security to pull the tapes and see what we can find." Then Whalen turned away and resumed working. Plaintiff, who viewed Whalen as impersonal and a poor communicator, was particularly upset by Whalen's low-key response to the incident. Plaintiff felt at the time that Whalen's reaction to the incident was itself a form of racism. Plaintiff later testified at his deposition, however, that Whalen never did or said anything else that would make him believe that Whalen harbored any kind of racial animus. (Def.'s Facts ¶¶ 7-11; Pl.'s Facts ¶¶ 7-11.)

For his part, Whalen testified that he initially thought that the night crew was playing a joke and that Plaintiff was concerned that someone on that crew was going to hang himself. Whalen did not understand Plaintiffs actual concerns until a short while later when the store's head of security, Vey, told him that Plaintiff believed the rope was meant for him. (Def.'s Facts ¶ 12; Pl.'s Facts ¶ 12.)

Following his conversation with Vey — and within a half-hour of his initial encounter with Plaintiff — Whalen apologized to Plaintiff for not initially understanding the significance of the situation. Whalen told Plaintiff that "it didn't click" with him immediately what the rope meant to Plaintiff. Plaintiff viewed Whalen's apology as insincere. Plaintiff also points to Whalen's later statement that "it was difficult for him to see [Plaintiffs] point of view" and that he felt that "the whole thing was being blown out of proportion." (Def.'s Facts ¶ 13; Pl.'s Facts ¶ 13.)

C. The Investigation

There is no dispute that Whalen directed Vey to review the videotapes of the area around the time clock. Nor is there any dispute that, around the same time, Plaintiff put the rope and the pictures he had taken into his car and that Whalen advised Collins, the district manager, about what had occurred. Plaintiff notes, however, that Whalen initially, and incorrectly,...