Higgins v. New Balance Athletic Shoe, Inc.

• Decision Date: 14 October 1998
• Docket Number: No. Civ. 97-273-B.,Civ. 97-273-B.
• Citation: 21 F.Supp.2d 66
• Parties: Robert E. HIGGINS, Plaintiff, v. NEW BALANCE ATHLETIC SHOE, INC., Defendant.
• Court: U.S. District Court — District of Maine

21 F.Supp.2d 66

Robert E. HIGGINS, Plaintiff, v. NEW BALANCE ATHLETIC SHOE, INC., Defendant.

No. Civ. 97-273-B.

United States District Court, D. Maine.

October 14, 1998.

COPYRIGHT MATERIAL OMITTED

Burton G. Shiro, Law Offices of Shiro & Shiro, Waterville, ME, for Plaintiff.

Bernard J. Kubetz, Eaton, Peabody, Bradford & Veague, Bangor, ME, for Defendant.

ORDER AND MEMORANDUM OF DECISION

BRODY, District Judge.

In this civil rights action, Plaintiff Robert E. Higgins alleges that Defendant New Balance Athletic Shoe, Inc. discriminated against him on the basis of his sex, his sexual orientation, his disability, and his whistle-blowing activities. Plaintiff brings this action under Title VII of the 1964 Civil Rights Act ("Title VII"), 42 U.S .C. § 2000e et seq.,¹ Title I of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., the Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U.S.C. § 701 et seq., the Maine Human Rights Act ("MHRA"), 5 M.R.S.A. § 4551 et seq., and the Maine Whistleblower's Protection Act ("MWPA"), 26 M.R.S.A. § 831 et seq. Before the Court is Defendant's Motion for Summary Judgment on all Counts of Plaintiff's Complaint. For the reasons stated below, Defendant's Motion is GRANTED.

I. SUMMARY JUDGMENT

Summary judgment is appropriate in the absence of a genuine issue as to any material fact and when the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). An issue is genuine for these purposes if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A material fact is one that has "the potential to affect the outcome of the suit under applicable law." Nereida-Gonzalez v. Tirado-Delgado, 990 F.2d 701, 703 (1st Cir. 1993). Facts may be drawn from "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits." Fed.R.Civ.P. 56(c). For the purposes of summary judgment the Court views the record in the light most favorable to the nonmoving party. See McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315 (1st Cir.1995).

II. FACTS

Defendant hired Plaintiff to work at its shoe manufacturing plant in Norridgewock, Maine on June 11, 1986 and terminated Plaintiff on January 4, 1996. During the latter part of his tenure with Defendant, Plaintiff was assigned to a production team performing slip lasting (slipping the product up and around a plastic shoe last for production).² Plaintiff is homosexual and has a hearing impairment that has required him to use a hearing aid since 1989. Defendant issued a performance review identifying Plaintiff as a "very good" overall employee on October 2, 1995.

Plaintiff suffered frequent verbal and physical abuse at the hands of numerous co-workers.³ Co-workers would constantly holler, swear, and otherwise verbally demean him. Co-worker Wayne McGowan ("McGowan") on numerous occasions addressed Plaintiff with statements such as "You eat the shit out of men's ass-holes," "You faggot," and "You fag." In addition, McGowan placed a sign on Plaintiff's desk that read "Blow jobs. 25 cents." Co-worker Eric Caouette often referred to Plaintiff as "faggot," "you dumb fuck," and "you stupid fuck." Other employees expressed distaste for working with Plaintiff with comments like "he'll give us AIDS."

One day, while Plaintiff stood at a urinal in the restroom, co-worker Ron Heald came up behind him, shook him violently, and said "I'll kill you." Employees intentionally threw hot cement at Plaintiff, snapped rubber bands on Plaintiff's body, and stomped on strategically placed mustard and ketchup packets causing the substances to spray onto Plaintiff when he walked by.

Many of these incidents occurred either in the presence of, or within earshot of, Plaintiff's production team supervisor, Ronn Plourde ("Plourde").⁴ Plaintiff repeatedly reported these incidents to Plourde and to the Human Resources Office, but no action was ever taken despite the existence of an internal corporate anti-harassment policy prohibiting harassment based on, among other things, an employee's sexual orientation.

Plaintiff claims that he requested a fan for his work station because the conditions of extreme heat in his work area caused him to perspire and the perspiration in turn caused moisture damage to his hearing aid. Plaintiff alleges that Defendant failed to provide him with a fan, despite the fact that other employees had fans. In addition, Plaintiff allegedly requested that Defendant move a nearby loudspeaker because its presence made it harder for him to hear, and Defendant failed to do so. Plaintiff claims that he told Defendant that resolution of these issues was essential because his hearing impairment interfered with his ability to communicate with his co-workers, making it difficult for him to perform his job effectively and efficiently.

Defendant contends that, while it did know of Plaintiff's hearing impairment, Plaintiff requested no form of reasonable accommodation relating to a loudspeaker, a fan, or any other device. Defendant denies that Plaintiff ever stated that his hearing impairment affected his ability to work or to communicate, and asserts that it gratuitously instructed Plaintiff's team members to reposition themselves so they could better communicate with him.

Plaintiff allegedly complained to Defendant about incidents and conditions that he believed were unsafe or illegal, including: (1) Defendant's representations that a product was "Made in the USA" when it was actually made elsewhere; (2) employee alcohol use on the job; (3) employee drug use; (4) employee theft; (5) fires in the roughing machines, steaming machines, and drying machines; (6) defective smoke detectors; (7) frequent power overloads and fires in the electrical outlets; (8) a leaky roof that caused water to fall on electrical equipment; (9) unsanitary bathroom conditions; (10) chemical and cement fumes that interfered with Plaintiff's breathing; (11) defectively timed steamer which caused eye irritation; (12) Defendant's failure to provide Plaintiff with fan or move the loudspeaker; and (13) the abusive behavior of Plaintiff's co-workers. Plaintiff does not indicate when, during his ten year tenure, he made these complaints.

Defendant asserts that Plaintiff never made any complaints to Defendant indicating that the conditions of his employment and/or other activities engaged in by Defendant violated some state or federal law. Defendant claims that it fired Plaintiff for continued poor job performance and insubordination. According to Defendant, on January 4, 1996, Plaintiff refused to communicate with a fellow team member after being instructed by a supervisor to do so. Defendant's version of events is set forth in the following memorandum drafted by Plaintiff's supervisor on the date of Plaintiff's termination:

[] called me over to her work station around 10:00 a.m. to tell me that Robert Higgins refuses to talk to her when she asks him a question concerning work. I went by Roberts [sic] work station and asked him about it. He said he wasn't going to talk to her, she swears at him. I said you guys have to start communicating, and this has got to stop.

I brought [] down to my office and asked her if she swore at him. She said no. I also told her that this has got to stop. She said she's trying.

I along with the Plant Manager and the H.R. Representative to discuss what had taken place [sic]. We reviewed Robert's record as he had received a warning in November and also in May for failing to work effectively as a team. He had been counselled numerously in the past, and today he refused to speak to her. Based on all of this information, the decision was made to terminate Robert immediately.

Defendant contends that Plaintiff's behavior on January 4 was part of a pattern of non-cooperation and argumentativeness that disrupted his team's output.⁵

Plaintiff offers a different version of what transpired on the day of his termination. He alleges that a fellow team member, Melanie Vitalone ("Vitalone"), left her work station to talk with her boyfriend.⁶ In her absence, boxes of shoes piled up at her work station and this caused a disruption in the production line. According to Plaintiff, when Vitalone returned to her work station, she noticed the accumulation of boxes at her station and wrongfully started yelling at and blaming Plaintiff, calling him "Fag Boy" and "You Stupid Fuck." Plaintiff claims he asked Vitalone to stop swearing at him and to try to listen to him, but she walked off. Plaintiff asserts that he resumed regular communication with Vitalone after the incident.

Plaintiff contends that Defendant discriminated against him in the terms and conditions of his employment when it failed to reasonably accommodate his hearing impairment and when he was subjected to hostile work environment sexual harassment. Plaintiff also contends that he was subject to retaliatory discharge because he complained to Defendant about allegedly unsafe and illegal conditions, including his harassment by other employees and problems related to his hearing impairment. Plaintiff additionally argues that Defendant discriminated against him on the basis of his sexual orientation.

III. DISCUSSION

A. Disability Discrimination

Plaintiff alleges that Defendant discriminated against him in the terms and conditions of his employment in violation of the ADA, the MHRA, and the Rehabilitation Act when it failed to reasonably accommodate his request for a fan in his work area and his request that a loudspeaker in his work area be relocated.

1. ADA and MHRA

Plaintiff's ADA and MHRA claims are subject to identical legal analysis. See Abbott v. Bragdon, 107 F.3d 934, 938 (1st Cir.1997) ("The Maine Supreme Court has indicated that analogous federal law informs the interpretation of the MHRA.") (citing Bowen v....