Bonilla v. Electrolizing, Inc.

• Decision Date: 15 April 2009
• Docket Number: C.A. No. 07-331 S.
• Citation: 607 F.Supp.2d 307
• Parties: Enid BONILLA, Plaintiff v. ELECTROLIZING, INC., Alan Godin and Dave Richards, Defendants.
• Court: U.S. District Court — District of Rhode Island

607 F.Supp.2d 307

Enid BONILLA, Plaintiff v. ELECTROLIZING, INC., Alan Godin and Dave Richards, Defendants.

C.A. No. 07-331 S.

United States District Court, D. Rhode Island.

April 15, 2009.

COPYRIGHT MATERIAL OMITTED

Mark P. Gagliardi, Esq., Law Office of Mark P. Gagliardi, Brandon S. Bell, Esq., McOsker-Bell Law Office, LLP, Providence, RI, for Plaintiff.

Geoffrey W. Millsom, Esq., Adam M. Ramos, Esq., Richard R. Beretta, Esq., Adler Pollock & Sheehan P.C., Providence, RI, for Defendants.

DECISION AND ORDER

WILLIAM E. SMITH, District Judge.

Before the Court is Defendants' motion for summary judgment on all counts. Enid Bonilla ("Plaintiff'), a former employee of Defendant Electrolizing, Inc., claims a violation of rights under Title VII of the Civil Rights Act of 1964, 42 U.S.C § 2000e et seq. ("Title VII") and the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq. ("FMLA"). Plaintiff maintains that she was fired because she is a woman, subjected to a hostile work environment from harassment based on sex and ancestral origin, and retaliated against for complaining about harassment and for taking time off to care for her ill children. Having conducted a thorough review of the record in this highly factintensive case, the Court concludes that Defendants are entitled to judgment on Plaintiff's Title VII claims but not the FMLA claim.

I. Factual Background

The Court reviews the record in the light most favorable to the non-moving party, making all reasonable inferences in her favor. Mellen v. Trs. of Boston Univ., 504 F.3d 21, 24 (1st Cir.2007). Plaintiff is a Hispanic female who moved to the United States from Puerto Rico at age ten.¹ Electrolizing is a Rhode Island corporation that applies a unique chrome plating to metal pieces and equipment. Customers send pieces to Electrolizing's Providence plant for coating and, once complete, items are returned via Electrolizing's shipping system.

In March of 2004, Plaintiff was hired as a part-time plant employee. In early 2005, she replaced an outgoing (female) employee in the receiving department and began to work full-time. Plaintiff opened and processed incoming packages each morning, and in the afternoon worked as a "back up shipper" preparing items for return to customers. It is in the shipping department where she worked with Defendant Alan Godin ("Godin"), a Caucasian male employed by Electrolizing for approximately twenty-six years. Godin's daily shift ran Monday through Friday from 7:00 a.m. to 3:30 p.m. Plaintiff usually worked with him in shipping during the afternoon and, once Godin left, Plaintiff finished all remaining shipping projects. In April of 2005, Electrolizing hired Anilsa Soriano as a receiving clerk. Ms. Soriano assisted Plaintiff with receiving packages in the morning and usually moved with her to shipping in the afternoon around 3:00 p.m. to provide additional help. Ms. Soriano, Plaintiff and Godin were supervised by Defendant Dave Richards ("Richards"), a Caucasian male and Electrolizing's former Operations Manager.² The vast majority of employees at Electrolizing's plant are of Hispanic origin (Plaintiff herself estimates 90 percent).

According to Plaintiff, Godin made derogatory remarks about women and Hispanics. Plaintiff claims that when Godin believed she worked too slowly, he said "I told Dave [Richards] not to hire women . . . you shouldn't be working here ... all you women do is talk ... I don't know why they keep sending me women." She also claims Godin swore and made remarks such as "you people come to this country and get all the benefits ... If I had my way, none of you people would be here ... you should all go back to your country" and disparaged Salsa music in front of her.

Plaintiff claims she verbally complained to Richards about Godin on many occasions, "maybe every single day." At first, she complained about "the hostility in the area, how everything I did bothered him, how he would throw things around and swear and yell, and how it made me feel very uncomfortable and threatened by his actions." Plaintiff identifies one specific complaint to Richards during a meeting with him in December 2005. At this meeting, Plaintiff claims to have requested written assurance that Electrolizing would respond to Godin's behavior because she thought Richards was ignoring her. Plaintiff made no written complaints and no oral complaints to anyone else. Richards denies Plaintiff ever complained to him of harassment by Godin, much less harassment based on sex or national origin, or that she requested any investigation and written report. Plaintiff submitted an affidavit of co-worker Diana Bonilla (no relation), who says on some unspecified date she overheard Plaintiff tell Richards that Godin made sexist and racist comments. Diana Bonilla claims Plaintiff cried and told Richards she wanted to quit because of Godin, and that Richards said he did not want her to quit and would talk to Godin.

Relevant sections of Electrolizing's written company policy, entitled "Company Information," state as follows:

All complaints of possible discrimination should be submitted, in written form, to the Human Resources Manager within 20 days of the alleged discriminatory act. The complainant must sign the complaint. All employees have a right to utilize the complaint procedure without jeopardizing their current or prospective employment status. All complaints of discrimination will be fully investigated.

The company shall strive to provide equal opportunity to all applicants and employees without regard to race, color, sex, religion or national origin, disability, or age.

Electrolizing ... shall prohibit sexual and other harassment of any employees, whether it is by a co-worker, a manager, a customer, or a vendor. Because [it] believes that all employees should treat one another with respect for the individual's dignity, all forms of sexual harassment are prohibited, including sexual advances, requests for sexual favors and gender-specific remarks. In addition, any harassing behavior that is considered offensive or threatening (though not sexually explicit) and/or interferes with an individual's work performance should be reported to management for investigation.

Additionally, the "Harassment Prohibited" section provides that reports should be directed to the Human Resources Manager (though Plaintiff's counsel stated in response to the Court's inquiry during argument that no HR department existed at the relevant time). Another section directs employees to discuss concerns with supervisors but if that is not "satisfactory," to take concerns to the Operations Manager, HR Manager or other manager "openly and without fear of reprisal." At her deposition, Plaintiff said she was not aware of any policies or procedures at Electrolizing pertaining to complaints about harassment or other conduct in the workplace. According to Electrolizing's co-owner Chris Bejbl, the Company Information document is provided to all employees and was provided to Plaintiff.

Plaintiff's attendance and job performance are in play in this case. Plaintiff describes her's as a flexible work schedule with fluctuating start and finish times depending on the company's production. She says she needed to be at the plant by 10:00 a.m. unless Richards asked her to arrive early to help and earn extra hours (which she often did), and that she was never required to work a 40 hour week.³ The picture Electrolizing paints, however, is of a 40 hour work week requirement with daily hours from approximately 8:30 a.m. to 4:30 p.m. and possible overtime. The company manual states that the first shift is from 7:00 a.m. to 3:30 p.m., Monday through Friday, with a 30 minute lunch break and occasional overtime required "due to the nature of this business." Ms. Soriano testified that she worked from 8:00 a.m. to about 4:30 p.m.

From Electrolizing's viewpoint, Plaintiff was not a particularly good employee. It claims through the second half of 2005 and early 2006 she consistently left the plant or missed parts of the day on an unscheduled or emergency basis with, according to Richards, "a myriad of excuses." Electrolizing submitted a chart reflecting Plaintiffs time records, which (argues Electrolizing) show that from October 16, 2005 through February 10, 2006 she missed at least one unscheduled partial or full day during each pay period and regularly fell short of the 40 hour mark. Plaintiff denies this. An "Employee Evaluation Sheet" reflects that she received (from Richards) a score of 45 out of a possible 60 on a review.⁴ Richards noted with respect to a "in on time/work full days" category on the evaluation that Plaintiff "exceeded allowable days," and was "talking too much, noted by co-workers."

Richards claims Plaintiff requested time off for various things "throughout her career" and would not regularly stay late when needed. He claims he did his best to be flexible, such as allowing her to leave the plant during lunch to drive her sisterin-law to work, but that eventually he told her to stop once the extended breaks became constant. Richards says he often advised Plaintiff that she was "in excessive absenteeism" and risked being fired. Godin recalled her missing "a lot of work" but said she was a "pretty good" employee. Electrolizing apparently hired Ms. Soriano as a receiving clerk "helper" to assist Plaintiff because, it claims, she often left projects incomplete. Plaintiff does not dispute that Ms. Soriano assisted her with projects for most of the day and helped her in shipping in the late afternoon.

Plaintiff denies being counseled about what she describes as "trumped-up" attendance issues before a February 6, 2006 meeting with Richards (see below), but acknowledged Richards spoke to her in 2005 about complaints that she talked too much on the job. She says she missed work or took extended breaks in accordance with company policy and/or when approved by Richards.⁵...