Hubbard v. Tyco Integrated Cable Sys., Inc.

• Decision Date: 03 December 2013
• Docket Number: No. 10–cv–365–LM.,10–cv–365–LM.
• Citation: 985 F.Supp.2d 207
• Parties: Greg HUBBARD v. TYCO INTEGRATED CABLE SYSTEMS, INC.
• Court: U.S. District Court — District of New Hampshire

985 F.Supp.2d 207

Greg HUBBARD

v.TYCO INTEGRATED CABLE SYSTEMS, INC.

No. 10–cv–365–LM.

United States District Court,

D. New Hampshire.

Dec. 3, 2013.

Lisa Hall, Michael S. McGrath, Upton & Hatfield LLP, Concord, NH, for Greg Hubbard.

Danielle Y. Vanderzanden, Nicole S. Corvini, Ogletree, Deakins, Nash, Smoak & Stewart, PC, Boston, MA, for Tyco Integrated Cable Systems, Inc.

ORDER

LANDYA McCAFFERTY, United States Magistrate Judge.

Greg Hubbard, a former employee of Tyco Integrated Cable Systems, Inc. (“Tyco”) who was born and raised in England, is suing Tyco in five counts. He asserts: (1) two claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; and (2) three claims under New Hampshire's Law Against Discrimination, N.H.Rev.Stat. Ann. (“RSA”) ch. 354–A.¹ Hubbard claims that he was subjected to a hostile work environment because of his national origin, and that Tyco terminated his employment because of his national origin and in retaliation for his complaints about discrimination in the workplace. Before the court are: (1) Tyco's motion for summary judgment; (2) Tyco's motion to strike certain material from Hubbard's Supplemented Memorandum of Law in Support of Objection to Defendant's Motion for Summary Judgment; and (3) Hubbard's Motion to Correct the Record. Each motion is duly opposed. The court heard oral argument on the motion for summary judgment on November 1, 2013. For the reasons that follow, Tyco's motion for summary judgmentis granted in part and denied in part, its motion to strike is denied as moot, and Hubbard's motion to correct the record is granted.

Motion to Strike

Tyco moves “the Court [to] strike from the summary judgment record all conclusory allegations and improbable inferences that Plaintiff ... has failed to substantiate with competent evidence.” Def.'s Mot. to Strike (doc. no. 51) 1. In support of that request, Tyco asserts that: (1) Hubbard's Supplemented Memorandum of Law in Support of Objection to Defendant's Motion for Summary Judgment, document no. 56, includes factual references that lack any record citations; and (2) in various places where the memorandum does include record citations, the record does not support the proposition for which Hubbard has cited it. The court shares many of Tyco's concerns. However, because the background section in this order draws from Hubbard's memorandum only facts that are adequately supported by the record, Tyco's motion to strike is denied as moot.

Motion to Correct the Record

Hubbard also moves the court to take note of: (1) several corrections of erroneous citations to the record in his supplemented memorandum of law; and (2) one correction to a statement he made at oral argument. With respect to Hubbard's correction of citation errors, his motion is granted. In his second request, Hubbard asks the court to allow him to replace his representation, at oral argument, that he had not previously challenged the authenticity of a statement purportedly written by Christopher Long, and produced by Tyco in support of its motion for summary judgment, with a representation that he had, in fact, challenged the authenticity of that statement. Hubbard's second request is also granted, but in light of Tyco's submission of an affidavit from Long that authenticates his written statement, see doc. no. 68, Hubbard's authenticity challenge is, in the end, unavailing.

Motion for Summary Judgment

A. Summary Judgment Standard

“Summary judgment is warranted where ‘there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’ ” McGair v. Am. Bankers Ins. Co. of Fla., 693 F.3d 94, 99 (1st Cir.2012) (quoting Fed.R.Civ.P. 56(a); citing Rosciti v. Ins. Co. of Penn., 659 F.3d 92, 96 (1st Cir.2011)). “In determining whether a genuine issue of material fact exists, [the court] construe[s] the evidence in the light most favorable to the non-moving party and make[s] all reasonable inferences in that party's favor.” Markel Am. Ins. Co. v. Díaz–Santiago, 674 F.3d 21, 30 (1st Cir.2012) (citing Flowers v. Fiore, 359 F.3d 24, 29 (1st Cir.2004)).

“The object of summary judgment is to ‘pierce the boilerplate of the pleadings and assay the parties' proof in order to determine whether trial is actually required.’ ” Dávila v. Corp. de P.R. Para La Difusión Púb., 498 F.3d 9, 12 (1st Cir.2007) (quoting Acosta v. Ames Dep't Stores, Inc., 386 F.3d 5, 7 (1st Cir.2004)). “[T]he court's task is not to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir.2009) (citations and internal quotation marks omitted).

“The nonmovant may defeat a summary judgment motion by demonstrating, through submissions of evidentiary quality, that a trialworthy issue persists.” Sánchez–Rodríguez v. AT & T Mobility P.R., Inc., 673 F.3d 1, 9 (1st Cir.2012) (quoting Iverson v. City of Bos., 452 F.3d 94, 98 (1st Cir.2006)). “However, ‘a conglomeration of conclusory allegations, improbable inferences,and unsupported speculation is insufficient to discharge the nonmovant's burden.’ ” Sánchez–Rodríguez, 673 F.3d at 9 (quoting DePoutot v. Raffaelly, 424 F.3d 112, 117 (1st Cir.2005)). “Rather, the party seeking to avoid summary judgment must be able to point to specific, competent evidence to support his [or her] claim.” Sánchez–Rodríguez, 673 F.3d at 9 (quoting Soto–Ocasio v. Fed. Ex. Corp., 150 F.3d 14, 18 (1st Cir.1998)) (internal quotation marks omitted).

B. Background

Unless otherwise indicated, the following facts are undisputed.

Hubbard spent his childhood in England and speaks with a British accent. In the fall of 2007, he began working for Tyco as a T3 Operator, which was an entry-level position. While working as a T3 Operator, Hubbard experienced no discrimination based upon his national origin.

In November of 2007, Hubbard was promoted to the position of T1 Inspector. In that position, he inspected the work of operators in Tyco's Repeater Assembly Building (“RAB”). Before he accepted the promotion, some of his co-workers advised him not to accept it, and warned him that inspectors were generally given a hard time by the operators whose work they inspected. After Hubbard was promoted, he became the target of hostile comments from several operators who referred to his national origin in the following ways:

• After Hubbard rejected a part made by Derek Thompkins, Thompkins called him an “English mother” and a “limie fuck.” Def.'s Statement of Undisputed Material Facts (hereinafter “Def.'s Facts”), Ex. D, Hubbard Dep. (doc. no. 32–4) 122:4, 11.

• Linda Tarnawski told an employee Hubbard was training: “[Y]ou don't want to learn anything from him. He's an English fuck up. He don't know what he's talking about. What would he know if he's English anyway.” Id. at 126:14–17.

• Tarnawski left notes on parts saying “have the English guy not inspect this,” id. at 126:23, and “[d]on't let the English guy touch it,” id. at 127:17–18.

• Katherine Merrill once told an employee Hubbard was training: “you don't want to listen to that English faggot because he doesn't know what he's talking about.” Id. at 129:11–13.

• After Hubbard called out Bill Rogers for his conduct toward a co-worker of Asian descent, Rogers said: “Mind your fucking business ... you English faggot.” Id. at 135:1–10.

• Rogers said things about Hubbard's national origin daily, see id. at 135:14–15, once wrote “English faggot” in the condensation on a window in a door that Hubbard frequently used, id. at 135:20, and once referred to Hubbard as “that English faggot right there,” id. at 136:17.

Some Tyco employees resented Hubbard because he was new, had been promoted quickly, held authority, was good at his job, was a hard worker, and worked a large amount of overtime. Moreover, the operators who made comments that included references to Hubbard's national origin often did so in the context of challenges to his status and performance as an inspector.

In late December of 2008, Hubbard was involved in an altercation with Bill Rogers, an operator. Both Hubbard and Rogers were suspended, and Hubbard was issued an Employee Warning Notice (“Warning”) that provided, in pertinent part:

On Wednesday, 12/24/2008 you were suspended for one (1) week after an altercation with Bill Rogers on Tuesday, 12/23/2008 that resulted in you having inappropriate conversations with fellow inspectors and operators regarding the incident after you spoke with your manager and HR. Whenever you are privy to certain information, especially information regarding an ongoing investigation, you need to keep those facts to yourself and not spread that information to fellow employees. This type of behavior creates animosity with fellow employees.

Vanderzanden Aff., Ex. 7 (doc. no. 34–7), at 2. The Warning was signed by: (1) Hubbard; (2) his supervisor, Frank Faria; and (3) two managers: Craig Murphy, who was Tyco's director of quality and testing, and Joe DeRoy, Tyco's human resources manager. See id. Finally, the Warning provided that it would remain in effect until June 28, 2009. See id.

On January 11, 2009, Hubbard sent Faria an e-mail in which he withdrew a previous request for a transfer to a different department. That e-mail stated, in pertinent part:

I love my job and always have, I would love to stay here and continue my job, as long as if any situation comes along and I continue to do the right thing and tell the appropriate people it gets taken care of. It is not fair that I have to deal with some of these situations due to being very open minded, and blunt with people.... The only concern I have is others trying to get me out of here and its going to be hard to deal with that on a daily basis, but I can handle it and always have been able too.

Pl.'s Mem. of Law, Ex. 6 (doc. no. 39–7), at 13.

On February 4, 2009, Hubbard met with DeRoy and Murphy. While the purpose of that meeting is...