Marchant v. Tsickritzis, Civil Action No. 05-11317-NMG.
| Decision Date | 07 August 2007 |
| Docket Number | Civil Action No. 05-11317-NMG. |
| Citation | 506 F.Supp.2d 63 |
| Parties | Bienvenido I. Lugo MARCHANT, Plaintiff, v. Peter TSICKRITZIS, Kevin Kingston and United Liquors Limited, Defendants. |
| Court | U.S. District Court — District of Massachusetts |
Bienvenido I. Lugo Marchant, Brockton, MA, pro se.
Joan I. Ackerstein, Heather L. Stepler, Jackson Lewis LLP, Boston, MA, for Defendant.
After consideration of plaintiffs opposition thereto, Report and Recommendation is accepted and adopted.
The pro se plaintiff, Bienvenido I. Lugo Marchant ("Marchant") is a former employee of the defendant United Liquors Limited ("UL"). He has brought this action against UL and two of his former supervisors alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a), and Title I of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., on the grounds that the defendants allegedly denied his request for a religious accommodation and that they discriminated against him and harassed him based on his race/color, disability, national origin and/or religion.
The matter is presently before the court on the Defendants' Motion for Summary Judgment (Docket No. 69) by which the defendants are seeking summary judgment in their favor on all counts of the complaint.1 The material facts are not in dispute. For the reasons detailed herein, this court recommends to the District Judge to whom this case is assigned that the motion for summary judgment be ALLOWED.
The defendant UL is a liquor, beer and wine distributor with headquarters in Braintree, Massachusetts. (DF ¶ 4). The defendant Peter Tsickritzis ("Tsickritzis") is the Director of Operations for UL, and the defendant Kevin Kingston ("Kingston") is UL's Operations Manager. (Id. ¶¶ 2-3). The plaintiff, Marchant, was born in the Dominican Republic in 1969 and moved to Puerto Rico at age four. (Id. ¶ 5). He is a citizen of the United States, and has lived in the continental United States, principally Massachusetts, since 1998. (Id.). Marchant has a Bachelor of Arts degree from the University of Puerto Rico and held a variety of employment positions in Puerto Rico. (Id.). As detailed below, Marchant was employed as a "spare employee" at UL from 1999 until 2003. (Id. ¶ 1). Marchant also is a Jehovah's Witness. (Id. ¶ 8).
UL employs workers in its warehouse and road divisions who are responsible for preparing shipments and delivering them to customers. (Id. ¶ 9). These workers are unionized and are represented by the General Teamsters, Chauffeurs, Warehousemen and Helpers of Brockton and Vicinity, Local Union No. 653 (the "Union"). (Id. ¶ 10). There is a collective bargaining agreement ("CBA") between UL and the Union. (Id.).
UL's workers include "regular" employees, who are on the seniority list, and "spare employees" who are assigned to different positions on an "as needed" basis. (Id. ¶ 11). In accordance with the CBA, regular employees bid on a position for each workday either as a driver or driver's helper for a particular delivery route.3 (Id. ¶ 12). This bidding takes place according to seniority. (Id.). Once the bidding is complete, spare employees are used to fill any open positions. (Id. ¶ 13). They may be hired to work as a driver, driver's helper or warehouse employee, and all positions pay the same hourly rate. (See id. ¶ 15). Spare employees are not on any seniority list and call in the evening before they want to work to find out if there are open shifts the following day. (Id. ¶¶ 11, 13). The specific assignments for spare employees are based on UL's needs and the employees' ability and performance. (Id. ¶¶ 11).
Marchant began his employment with UL in June 1999 as a spare employee. (Id. ¶ 16). Kingston was his supervisor. (Id.). Initially Marchant worked most often as a driver's helper. (Id.). He was rarely needed to work as much as five days a week, although on occasion he worked from 6:00 a.m. until 10:00-11:00 p.m. (Id. ¶¶ 16-17). Marchant wanted to become a driver, and Kingston encouraged him to obtain his CDL. (Id. ¶ 18). Marchant passed the written exam in March 2002, and after several unsuccessful attempts eventually passed the driving test. (Id. ¶¶ 18-19).
UL assigned Marchant to work as a spare employee driver on a number of daily shifts, but was not satisfied with his performance. (Id. ¶¶ 20, 21-23). UL contends, but Marchant denies, that Marchant was too slow in making deliveries and that there were customer complaints about the timeliness of the deliveries. (Id. ¶ 21; PF 20). It is undisputed that in February 2003, Marchant was in a minor accident — he hit a parked car, causing less that $1,000 worth of damage. (DF ¶ 22). Marchant contends that such accidents are not uncommon among UL drivers. (PF ¶ 9). Thereafter, UL stopped assigning Marchant as a driver, but assigned him to work in the warehouse, usually on the second shift, which ran from approximately 2:00 p.m. to 10:30 p.m., depending on the workload. (DF ¶ 23; Kingston Aff. ¶ 15). He was not assigned as a driver's helper because that position was reserved for new employees or those training to obtain their CDL. (DF ¶ 23; see supra note 3).
On one occasion, in April 2003, after he had been working in the warehouse, Marchant was assigned as a driver when noone else was available. (DF ¶ 24). He was in another accident when a garage door closed on the truck. (Id.). UL's need for spare drivers decreased in the spring of 2003 when UL hired ten experienced drivers from a competitor, with the assistance of the Union. (Id. ¶ 26).
As noted above, Marchant was assigned to work on the second shift at the warehouse. On March 13, 2003, Marchant submitted a letter requesting that he not have to work on Tuesdays and Thursdays "because it creates a conflict between my work, cultural habits and beliefs" and that he be permitted to stop work at midnight on Friday to avoid working on the Sabbath. (DF ¶ 29; Kingston Aff. Ex. D). This was the first request for any religious accommodation Marchant had made. (Kingston Aff. ¶ 19). Marchant specifically informed Kingston that he needed to leave early on Tuesdays and Thursdays so that he could attend religious classes. (Id. ¶ 20). Apparently Marchant's church holds classes on Tuesdays and Thursdays, while other Jehovah's Witness congregations hold classes on, other days.4 (DF ¶¶ 34-36). Kingston told him that he did not have to accept work on Tuesdays or Thursdays, but he could not leave early. (DF ¶ 30; Kingston Aff. ¶ 21). It is undisputed that according to the CBA any employee who reports for work has to be paid for a minimum of 8 hours of work. Therefore if Marchant left early, UL would have to pay both Marchant and any employee who filled in for him to complete the shift for 8 hours of work each. (Kingston Aff. ¶ 21; DF ¶ 31). Marchant's request to leave work at midnight on Friday nights was not similarly problematic for the company and Marchant was allowed to leave. (DF ¶ 30). He continued to call in and accept job assignments for second shift positions on Tuesdays and Thursdays although he was not obligated to do so. (Id. ¶ 32).
Marchant raises several instances of harassment in his complaint. (Id. ¶ 37). He claims that Kingston told him "not to talk like that" and claims that Kingston asked him if he wanted to get fired for leaving early. (Id.). He also cites to a receptionist asking him if people needed to speak English to work in the warehouse. (Id.). In his statement of facts, Marchant contends that he was told to drop his MCAD complaint, he was mocked for religious reasons,5 and he overheard racial slurs, among other general charges of wrongdoing. In general, Marchant contends that he was ridiculed and harassed as a result of either his accent or a speech impediment/stutter. (See Compl. ¶ 2). While his pleadings are not clear, it appears that Marchant contends that the transfer to the warehouse from being a driver or driver's helper was retaliatory and done for harassment purposes, and that he was paid less as a warehouse worker. The defendants deny any claim of wrongdoing with respect to any of the incidents on which Marchant relies. (See DF ¶ 37-40). In addition, they have attested that all spare employees are paid the same, regardless of the work they perform. (Id. ¶ 15). Marchant has not submitted any evidence in support of his claim of pay disparity.
On June 17, 2003, Marchant was injured at work. (Id. ¶ 41). His physician certified that he could return to work on December 18, 2003. (Id.; Defs. Ex. F). In connection with his workers' compensation claim, Marchant confirmed that he was out of work and disabled through the end of December. (DF ¶ 42). In or about January 2004, after Marchant reached an agreement on his workers' compensation claim, he met with Tsickritzis, Kathleen Mansfield (UL's Human Resource Director) and the Union steward. (Id. ¶¶ 42-43; Tsickritzis Aff. ¶ 7). At the meeting, an offer was made for Marchant to return to work in the position he had worked prior to his injury. (DF ¶ 43; Tsickritzis Aff. ¶ 8). Marchant indicated that he wanted to return to work as a driver — he did not want to return to the warehouse. (Tsickritzis Aff. 9). Marchant also did not believe that the offer was "sincere or truthful" and, therefore, did not return to work. (DF ¶¶ 43-44).
Meanwhile, shortly after his injury, on or about June 27, 2003, Marchant, had filed a charge of religious discrimination and discrimination based on race and national origin against UL with the MCAD. (Id. ¶ 45; Defs. Ex. D). The charge did not name the individual defendants...
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