Sette v. Honeywell Bldg. Solutions SES Corp.

RAYMOND MORRIS SETTEand CONSTRUCTION PROJECT MANAGERS, LTD. Plaintiffs,

v. HONEYWELL BUILDING SOLUTIONS SES CORPORATION,and HONEYWELL INTERNATIONAL INC. Defendants.

C.A. No. 10-12-ML

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

Dated: August 17, 2011

MEMORANDUM AND ORDER

Plaintiffs filed a complaint against Defendants on December 16, 2009, in the Superior Court of Rhode Island, Newport County. Pursuant to 28 U.S.C. § 1332 and 28 U.S.C. § 1441, Defendants removed the case to federal court on January 12, 2010. After conducting discovery, Defendants moved for summary judgment as to all claims in Plaintiffs' amended complaint. On June 22, 2011, the Court heard argument on Defendants' motion and, at that time, granted summary judgment on the breach of contract and promissory estoppel claims. On July 1, 2011, Plaintiffs voluntarily withdrew their Age Discrimination in Employment Act claim. 29 U.S.C. § 621 (2006). For the reasons set forth below, the Court now grants Defendants' motion as to Plaintiffs' remaining claim, which alleges age discrimination in violation of the Rhode Island Civil Rights Act of 1990 ("RICRA"). R.I. Gen. Laws §42-112-1.

I. Facts

Defendants, Honeywell Building Solutions SES Corporation and Honeywell International, Inc. (collectively "Honeywell") were hired by the Navy to work as a contractor on a construction project at the United States Navy Base in Newport, Rhode Island. Honeywell's contract with the Navy required it to hire a Site Safety Health Officer ("Safety Officer"). In October 2008, Plaintiffs, Raymond Morrissette and Construction Project Managers, Ltd.¹ (collectively "Morrissette") submitted an application to Honeywell for the Safety Officer position. Edward Sienkiewicz ("Sienkiewicz"), Honeywell's on-site project manager, interviewed Morrissette in November 2008. Sienkiweicz ultimately decided to hire Morrissette for the Navy job, and on December 6, 2008, Morrissette and Honeywell entered into a Purchase Order Subcontract Agreement in which Morrissette agreed to work as Honeywell's Safety Officer on the Navy project. Morrissette was 68 years old at the time of contract formation. It is undisputed that, pursuant to the agreement, Morrissette was an independent contractor for Honeywell.

It soon became evident to Honeywell that Navy personnel did not think that Morrissette was a good fit as Safety Officer. The first stirrings of disapproval were voiced by Martin Kawa ("Kawa"). At the time that Morrissette was hired, Kawa was working on the Navy project as the Navy's safety manager. Kawa had previously worked with Morrissette on a different project. After learning that Honeywell had hired Morrissette as its Safety Officer, Kawa informed Sienkiewicz that "Morrissette did not work well with people." Def.'s Statement Undisputed Facts ¶ 9, Docket No. 18. Kawa alsotold Sienkiewicz that he ought to "think twice" about hiring Morrissette. See Sienkiewicz Dep. 20:19-21. In early November, Sienkiewicz wrote an email to Dave Jones, a manager at Honeywell, in which he stated that he was taking Kawa's comments "more or less as a warning." Sienkiewicz Email, Docket No. 18-8.

Morrissette had had a sour experience with Kawa on the prior job. On that job, Kawa allegedly made age-related discriminatory remarks. For example, Kawa told Morrissette that he "should be home in rocking chair" and that he "should be retired," referring to him as a "retiree." Morrissette Dep. 52:9-15, Docket No. 18-3. The frequency with which the comments were made is unclear, but Morrissette alleges that Kawa made the disparaging remarks "from time to time." Id, It is those age-based comments on the previous job that form the basis for Morrissette's present age-related discrimination claim against Honeywell. Morrissette concedes that no Honeywell personnel ever made disparaging age-related comments, id. at 51:5-21, and he likewise admits that no Navy personnel made any such comments on the current job while he was working for Honeywell. Id. at 51:22-52:5.

Kawa's reservations regarding Morrissette eventually reached Raymond Cournoyer ("Cournoyer"), the Navy's project manager for the project. According to Cournoyer, he had reviewed Morrissette's resume but Honeywell had hired Morrissette before he had expressed any opinion to Honeywell as to whether or not Morrissette was qualified for the position. See Cournoyer Dep. 8-9, Docket No. 18-1. Honeywell maintains that, under its contract with the Navy, "approval" by the Navy was required in order to fill the Safety Officer position. Morrissette acknowledges that, with regard to the contract between Honeywell and the Navy, "Honeywell has to make sure the Safety Officer meet[s] contract specifications." Pl.'s Statement Disputed Facts ¶ 2, Docket No. 22.

Ultimately, Cournoyer spoke directly with Sienkiewicz and said that he was concerned with Morrissette's "weak demeanor in enforcing safety rules with subcontractors." Def.'s Mot. Summ. J. 4, Docket No. 17-1. Kawa was present at one or more such conversations and he expressed the view that Morrissette had insufficient EM 385-1-1 Army Corps of Engineers safety document experience. Sienkiewicz Dep. 25:3-11. In addition, a March 3, 2009, email from Cournoyer to Eric Marsh ("Marsh"), the Honeywell project manager for the Navy project, memorializes the Navy's view as to Morrissette's qualifications, stating that "[i]t was the Navy's determination that Mr. Morrissette's credentials and experience did not meet the personnel qualification requirements of the Unified Facilities Guide Specification (UFGS) 01 35 26 GOVERNMENTAL SAFETY REQUIREMENTS for a project of this size and complexity." Cournoyer Email, Docket No. 18-10.

Honeywell maintains that Sienkiewicz understood the Navy's lack of "approval" to mean that Morrissette was ineligible for the position of Safety Officer. Sienkiewicz felt that, due to the lack of Navy approval, he "had no other alternative" than to terminate Morrissette's contract. Siekiewicz Dep. 42:11 -22, Docket No. 18-2. In December, Sienkiewicz began looking for a replacement for Morrissette. Cournoyer's communications with Sienkiewicz had included a discussion as to the possibility of Morrissette staying on as Honeywell's Safety Officer for the duration of the lighting phase of the Navy project, a less complicated phase of the overall job, which was estimated to take up to six months. Cournoyer Dep. 20:2-5. Morrissette alleges that, during this time, Cournoyer requested additional information regarding Morrissette's level of experience and that he provided additional resume information to Sienkiewicz but that Sienkiewicz did not pass that information to Cournoyer. The contents of the resumes and the manner in which they related, if at all, to Cournoyer's concerns regarding Morrissette's qualifications is unclear. Ultimately, Sienkiewiczdecided against keeping Morrissette on for the lighting phase. He terminated Morrissette's contract on December 31, 2008. David Taillon, a 39 year-old man, replaced Morrissette as Honeywell's Safety Officer.

Honeywell was initially untruthful in communicating to Morrissette its rationale for terminating his contract. Charles Coats ("Coats"), a Honeywell construction manager, first informed Morrissette that he was being taken off the Navy job because of a hiring freeze. Morrissette was skeptical and Coats, when pressed, told Morrissette that he was being let off the project because the Navy did not approve of him. After his termination, Morrissette filed a claim in Rhode Island Superior Court alleging, among other things, age-based discrimination in violation of Rhode Island law.

II. Standard of Review

A "court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). It is the moving party's initial burden to demonstrate the absence of any genuine issue of material fact. See Kuperman v. Wrenn, 2011 WL 2714101, at *2 (1st Cir. July 14, 2011) (citing Rivera-Colon v. Mills, 635 F.3d 9, 12 (1st Cir. 2011)). "[T]he opposing party can then defeat the motion by showing that there is a genuine issue of material fact." Rivera-Colon, 635 F.3d at 12. "On issues where the nonmovant bears the ultimate burden of proof, he must present definite, competent evidence to rebut the motion." Mesnick v. General Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991). All reasonable inferences are drawn in favor of the non-moving party. See Cortes-Rivera v. Dept. of Corr. and Rehab. of P.R., 626 F.3d 21, 26 (1st Cir. 2010).

III. Analysis

"The ultimate question in a. . . RICRA action[] is 'discrimination vel non.'" Casey v. Town of Portsmouth, 861 A.2d 1032, 1037-38 (R.I. 2004) (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 518 (1993)). On a motion for summary judgment, the RICRA analysis proceeds under the McDonnell Douglas burden-shifting paradigm. See Casey, 861 A.2d at 1036 (citing Newport Shipyard. Inc. v. R.I. Comm'n for Human Rights, 484 A.2d 893, 898 (R.I. 1984)). In this analysis, the plaintiff must first make a prima facie showing of age discrimination. See Velazquez-Fernandez v. NCE Foods. Inc., 476 F.3d 6,11 (1st Cir. 2007). Where that showing is made, the burden then shifts to the defendant to produce evidence setting forth a legitimate, non-discriminatory reason for termination. Id. If the defendant makes such a showing, the ultimate burden of proof rests upon the plaintiff to show by a preponderance of the evidence that the defendant's rationale for the termination is a pretext for age-based discrimination. Id.

A. Prima Facie Case

The Rhode Island Civil Rights Act of 1990 provides that "[a]ll persons within the state, regardless of . . . age² . . . have . . . the same rights to make and enforce contracts." R.I. Gen. Laws 42-112-1 (a). "[T]he right to make and enforce contracts . . . includes the making, performance, modification and termination of...