LaRocca v. Precision Motorcars, Inc.

• Decision Date: 26 March 1999
• Docket Number: No. 4:98CV3195.,4:98CV3195.
• Citation: 45 F.Supp.2d 762
• Parties: Robert LaROCCA, Plaintiff, v. PRECISION MOTORCARS, INC., d/b/a Rhoden Used Cars, d/b/a Acura of Omaha, Defendant.
• Court: U.S. District Court — District of Nebraska

45 F.Supp.2d 762

Robert LaROCCA, Plaintiff, v. PRECISION MOTORCARS, INC., d/b/a Rhoden Used Cars, d/b/a Acura of Omaha, Defendant.

No. 4:98CV3195.

United States District Court, D. Nebraska.

March 26, 1999.

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Kathleen Neary of Vincent M. Powers & Associates, Lincoln, NE, for plaintiff.

James C. Zalewski of DeMars, Gordon, Olson & Shively, Lincoln, NE, for defendant.

MEMORANDUM AND ORDER ON MOTION FOR SUMMARY JUDGMENT

URBOM, Senior District Judge.

This case comes before me on the defendant's Motion for Summary Judgment, filing 17, aimed at the plaintiff's claims of unlawful employment discrimination — hostile work environment, disparate treatment, intentional discrimination based on association, constructive discharge and retaliation — under both Title VII of the Civil Rights Act of 1964 and section 1981 of the Civil Rights Act of 1866, as amended by the Civil Rights Act of 1991. After careful consideration, I shall grant in part the defendant's motion for summary judgment on the plaintiff's Title VII and section 1981 claims of discrimination. As for the plaintiff's claims that survive this motion, I believe that only after hearing the full slate of evidence at trial will I be in a position to make a definitive ruling on their sufficiency.

Standard of Review

A motion for summary judgment shall be granted when, viewing the facts and reasonable inferences in the light most favorable to the nonmoving party, "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." FED. R.CIV.P. 56(c). A genuine issue of material fact exists when there is sufficient evidence favoring the party opposing the motion for a jury to return a verdict for that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In determining whether a genuine issue of material fact exists, the evidence is to be taken in the light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). If the moving party meets the initial burden of establishing the nonexistence of a genuine issue, then the burden shifts to the opposing party to produce evidence of the existence of a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The opposing party "may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there — is a genuine issue for trial" and "must present affirmative evidence in order to defeat a properly supported motion for summary judgment." Anderson, 477 U.S. at 256-57, 106 S.Ct. 2505 (citations omitted).

Background

According to the evidence most favorable to the plaintiff, the following are the facts.

In August of 1996, the defendant ran an employment advertisement in the local newspaper seeking full-time, used car sales help. The plaintiff, an Italian male, with dark brown skin and dark eyes, responded to that ad and was eventually hired after a brief five to ten minute interview. As a used car salesman, the plaintiff earned a thousand dollars a month draw that applied against his commission on the cars he was able to sell during that period.

It was not long before the plaintiff got his first taste of the discriminatory attitude that saturated his work environment. During his initial sales training, the plaintiff was instructed by two supervisory personnel, as well as a fellow salesman, that "if a `Gook' comes on the lot to raise the price [of the car] upwards of 2000." Ex. 1, 29:7-16. Unfortunately, such derogatory comments were not isolated. Instead, the plaintiff endured a steady stream of such discriminatory behavior throughout his term of employment with the defendant.

For example, on one occasion, the defendant's supervisor, disgusted with a black customer, screamed "fucking niggers" in the presence of the plaintiff. Ex. 1, 32:20-33:1. On another, the defendant's finance and general sales manager accused a white co-worker of being part black because of his affinity for Cadillacs. Ex. 1, 34:11-35:3. Furthermore, the defendant's employees made a multitude of derogatory ethnic jokes about a Mexican family that had come to the defendant's lot to buy a van. Ex. 1, 35:12-21. Specifically, the defendant's employees referred to the Mexican family, in lewd fashion, as "wet-backs" and "bean dip." Id. Finally, the defendant's employees crudely painted a white toy doll the color black and placed it in a black co-workers chair just to get a rise out of him. Ex. 1, 35:25-36:21. Again, these were not isolated incidents. Rather, the plaintiff's work environment was replete with such discriminatory conduct. Ex. 1, 33:13-34:3.

The plaintiff also found himself as the focal point of some unwelcome discriminatory animus. During the course of his employment, the plaintiff was called a "spic" on at least three separate occasions by the defendant's finance and general manager, Lu Friend. In the first instance, at least, Ms. Friend's derogatory comment appears to stem from her misperception of the plaintiff's Italian characteristics. Ex. 1, 14:19-15:5. Her misperception, however, was quickly corrected when the plaintiff reported the derogatory remark to his immediate supervisor, Pat Scally, who confronted Ms. Friend with the plaintiff's displeasure with the disparaging epithet and reminded her that the plaintiff was of Italian descent. Ex. 1, 15:6-24.

But despite these efforts, the plaintiff would be assaulted with the derogatory ethnic slur on two subsequent occasions. Some weeks later, the plaintiff found himself trying to sell a car to a group of customers of Mexican origin that had come to the defendant's sales lot. The problem was that not one of them spoke any English. To sell a car, then, the plaintiff needed the services of someone who spoke Spanish; he needed an interpreter. Learning of his dilemma, Ms. Friend commented to the plaintiff, "Well, what do you need a translator for? You're a `Spic.' Don't you speak Spanish?" Ex. 1, 30:14-16.

Then, one fall Saturday afternoon, Ms. Friend again called the plaintiff a "spic." Ex. 1, 31:1-10. Upset, the plaintiff finally confronted Ms. Friend about her unwithered use of the derogatory term, "spic," toward him despite her knowledge of his true national origin. Ex. 1, 31:11-14. Her response: she intentionally called the plaintiff a "spic" because she knew it upset him. Ex. 1, 31:15-16.

Beyond the derogatory comments and insults, the plaintiff also claims that he was denied access to certain benefits afforded to other employees. For example, the defendant provided its & "star" salesman, Jason Svoboda, a white employee, with a three-to-four-page list of prospective buyers generated from a toll-free number. Ex. 1, 23:9-18. Without the list, the plaintiff contends that he was denied the same opportunity to make sales and earn money as Mr. Svoboda. Ex. 1, 56:15-25. Furthermore, the plaintiff was not permitted the same use of a demo car as Mr. Svoboda and other white employees. Ex. 1, 26:7-29:1.

Frustrated, the plaintiff filed a timely charge of unlawful discrimination against the defendant with the Lincoln Commission on Human Rights, the Nebraska Equal Opportunity Commission, and the Equal Opportunity Commission. Soon thereafter, Ms. Friend came into the office pretty upset. And although the plaintiff was not certain that she had received the charges of discrimination, he assumed so from her statement, "Boy, I hate people that don't want to work for their money." Ex. 60:2-7. Moreover, the plaintiff, even though he had arrived late for work on other occasions, was written up twice by Ms. Friend for tardiness despite the fact that she took such liberties with her own work schedule. Ex. 1, 17:21-18:10; 44:11-45:22. Also, during this time, after a terrible day at the office, the plaintiff sat and laid his head down at his desk. "It was just kind of a `get me out of here' type of thing." Ex. 1, 60:8-11. Ms. Friend could have just let it pass, but instead she questioned the plaintiff's need for a pillow. Id. In short, the plaintiff felt harassed and ridiculed by Ms. Friend's actions subsequently to his discrimination charge.

On November 30, 1996, the plaintiff terminated his employment with the defendant. The plaintiff had been in negotiations to sell a Honda that entire week, as well as the week before. So that day, when the plaintiff walked into the office and learned that all his hard work was for naught, because the Honda was on its way to Omaha, the plaintiff was, to say the least, disenchanted. He immediately went to his sales manager, Todd Adamson, and asked if the car was on its way to Omaha, and if he knew that he had a cash deal on that car. Mr. Adamson apparently had no idea about the plaintiff's cash deal, as no posting of any such deal on the board had been made. Consequently, Mr. Adamson denied the plaintiff's request to keep the car on the lot; the car was going to Omaha. At that point, apparently, Mr. Adamson started "yelling and screaming and waving at the door and waving his fist in [the plaintiff's] face, he was yelling, about that if they wanted to get rid of me they would have already [done so.]" Ex. 1, 42:10-13. Troubled by Mr. Adamson's behavior, the plaintiff went to Ms. Friend, who told him that she'd handle it. With Mr. Adamson behind her, Ms. Friend reiterated to the plaintiff that "if they had wanted to get rid of [him], they would have" already done so. Ex. 1, 42:19-20. She then apologized for Mr. Adamson's conduct. Ex. 1, 39:6-8. Unfortunately, Mr. Adamson "stood behind her with a little grin." Ex. 1, 39:9-10. For the plaintiff that was the last straw, "[he] could tell then that nothing would ever be done there." Ex. 1, 39: 10-11. The plaintiff immediately left the office, never to return.

Analysis

The law in the Eighth Circuit is that "summary judgment...