Martinez v. Pavex Corp.

• Decision Date: 22 March 2006
• Docket Number: No. 8:03-CV-1197T27TGW.,8:03-CV-1197T27TGW.
• Parties: Felix MARTINEZ, et al., Plaintiffs, v. PAVEX CORPORATION, Defendant.
• Court: U.S. District Court — Middle District of Florida

422 F.Supp.2d 1284

Felix MARTINEZ, et al., Plaintiffs, v. PAVEX CORPORATION, Defendant.

No. 8:03-CV-1197T27TGW.

United States District Court, M.D. Florida, Tampa Division.

March 22, 2006.

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Adria Lynn Silva, Harris & Helwig, P.A., Naples, FL, John Scarola, Searcy, Denney, Scarola, Barnhart & Shipley, West Palm Beach, FL, Peter Frederick Helwig, Harris & Helwig, P.A., Lakeland, FL, for Plaintiffs.

Tracey K. Jaensch, Ford & Harrison LLP, Tampa, FL, for Defendant.

ORDER

WHITTEMORE, District Judge.

BEFORE THE COURT is Defendant's Motion for Summary Judgment as to Remaining Claims of Plaintiffs Alejandro Vazquez-Falero, Diosdado Perez, Isbel Perez, Narciso Perez and Raphael Perez (Dkt.32) and Plaintiffs' Memorandum in Opposition to Defendant's Motion for Summary Judgment (Dkt.38).

Introduction

Alejandro Vazquez-Falero, Diosdado Perez, Isbel Perez, Narciso Perez and Raphael Perez (collectively "Plaintiffs") allege that Pavex Corporation (hereafter "Pavex" or "Defendant") discriminated against them on the basis of their race (Hispanic) by subjecting them to a hostile work environment in violation of 42 U.S.C. § 1981. (Dkt. 13 (Substituted Complaint); Dkt. 21 (More Definite Statement)).¹ Plaintiffs also allege Defendant intentionally inflicted emotional distress on them and tortiously interfered with business relationships they enjoyed with various trucking companies, including Manny Transport, Inc. Additionally, N. Perez alleges Defendant negligently retained and supervised its employee, Tony Hill, and should be held vicariously liable for an assault and battery Hill committed at Pavex's asphalt production facility.

Defendant moves for summary judgment on all of Plaintiffs' claims. (Dkt.32). Upon consideration, Defendant's motion is DENIED as to Plaintiffs' claims for hostile work environment and N. Perez's claim for assault and battery. Defendant's motion is GRANTED as to Plaintiffs' claims for intentional infliction of emotional distress, tortious interference with an advantageous business relationship and N. Perez's negligent supervision and retention claim.

Factual Background²

Pavex owned and operated an asphalt production facility in Bartow, Florida. (Turner Aff., ¶ 3). Plaintiffs were not employees of Pavex. Rather, Plaintiffs delivered materials to Pavex's facility by accepting delivery assignments from trucking companies, such as Manny's Transport, Inc. (D. Perez, pp. 27-29; I. Perez, pp. 26-30, 32-34; R. Perez, pp. 36-38, 46; Vasquez—Falero, pp. 37-40; Estrada Aff. ¶ ¶¶ 14, 15). Plaintiffs were either truck owners who leased their trucks to Manny's Transport, Inc. or drivers hired by the truck owners to make the deliveries. (Id; Estrada Aff., ¶¶3, 14, 15).

Manuel "Manny" Estrada, former owner of Manny's Transport, Inc., averred that the truck owners were independent contractors who called Estrada daily to find out if he had delivery assignments. Id. at ¶3. The truck owners decided when and if they wanted to accept a delivery assignment. Id. at ¶8. Estrada paid the truck owners by the load.³ Id.

Unless delayed, a delivery required no more than twenty minutes. (Dkt.38, ¶4). In one twelve hour day, Plaintiffs often delivered loads to Lakeland, Largo, Homosassa, Brooksville, and to Pavex's Bartow facility. (D.Perez, pp. 29-30).

According to Plaintiffs, they were subjected to harassment while making deliveries to the Pavex facility from 1997 until February 1998. (Dkt.38, ¶5). Plaintiffs allege Tony Hill, a Caucasian man named Mike, and others who Plaintiffs could not name, called them "motherfucking Cubans", "Cuban son-of-a-bitch", "Spanish son-of-bitch", "Spanish motherfucker", "fuck you Cuban", "Cuban asshole", "fucking Cuban hens" and "stupid fucking Cuban". (I. Perez, pp. 87, 91-92; N. Perez, pp. 61, 94-95, 131; D. Perez, pp. 144-146; R. Perez, pp. 126-128, 141; Vazquez—Falero, pp. 68-70, 90-91).

According to Plaintiffs, racial slurs were used frequently and were directed at them while they were performing their job. (R. Perez, p. 141) (called him "stupid fucking Cuban" because he took longer to get on the scale); I. Perez, pp. 87, 91-92 (called them "fucking Cuban hens" for speaking Spanish to each other in the coffee break room while waiting to have their tickets signed; N. Perez, pp. 129-132) (called him "son-of-a-bitch Cuban people" because he was delivering materials Pavex did not order). D. Perez testified that Hill used racial slurs "many, many times . [a]lmost every time [they] went". (D.Perez, p. 146). Vasquez—Falero testified Hill humiliated him "almost every day". (Vazquez—Falero, p. 133). While he could not remember exactly how many times Hill directed racial slurs at him, he estimated that it was somewhere between fifty and two hundred. (Vasquez-Falero, pp. 134-135). Juan Carlos Serafin, a Pavex employee, testified that Hill used racial slurs such as "shut up, you mother-fucking Cuban" in front of Plant Manager Frank Andre and Andre did nothing about it. (Serafin, pp. 109-110).

Plaintiffs claim Hill and other unnamed Pavex employees delayed their deliveries by telling them to call the trucking transport companies, making them wait to have their tickets signed, telling them to dump in a different location, or requiring them to weigh their loads more frequently. (R. Perez, p. 132-136; Vazquez-Falero, p. 65-66; N. Perez, pp. 96-99). I. Perez testified that Hill required Plaintiffs to weigh their loads on a regular basis, without cause, resulting in delays of more than an hour. (I.Perez, p. 72-73). D. Perez testified that "several times" Hill would tell them they had to use the back door, otherwise he would not sign their ticket. (D.Perez, p. 123). Vasquez-Falero testified that on one occasion Hill drove a fork lift in front of his truck and dumped a pallet in his path, nearly hitting his truck. (Vasquez-Falero, pp. 84-85, 90-91). R. Perez testified that Hill would throw his hard hat on the floor and spit tobacco at his feet. (R. Perez, p. 128-129). According to D. Perez, Caucasian drivers "got their tickets signed very quickly" while Hispanic drivers did not. (D.Perez, p. 144). The unnecessary delays and refusals to sign tickets occurred approximately twice a week. (R. Perez, p. 129).

Tony Hill was the Plant Operator at the Pavex facility during the relevant time period. Frank Andre was the Plant Manager and Hill's supervisor. Hill monitored and controlled the delivery process. (Hill, pp. 19-21). Hill was responsible for weighing the crushed aggregate and decided which drivers could dump their loads right away and which drivers had to wait to have their loads weighed. (Hill, pp. 20-22; see also Andre, p. 38-40 (Plant Operator was "in charge of receiving the truck and determining whether it, H the amount of aggregate was correct")). Hill was also responsible for signing the drivers' tickets either before or after they dumped the materials. (Hill, p. 20-21).⁴

According to Hill, he did not make drivers wait unnecessarily to have their tickets signed. (Hill, p. 21). Hill testified that he would refuse to sign tickets if he was told Pavex did not order the material. (Hill, pp. 25-26). On these occasions, Hill would stop the driver from dumping, "they would ask why, there was sometimes a language problem but [Pavex] usually had enough [ ] other drivers that were Spanish speaking there to explain to them, they would call their boss, their boss would talk to [Hill's] boss, it was handled from that point on." (Hill, p. 27). Hill testified that some drivers had to wait to have their loads weighed because asphalt loadout took priority over incoming aggregate. (Hill, p. 22). Hill testified that he does not remember using any "epithets about anyone's nationality, such as `fucking Cuban'". (Hill, p. 40-41). In November 1998, Hill voluntarily terminated his employment with Pavex in order to accept a "higher paying position, in a higher field." (Hill, pp. 55-56, 89-90; see also Andre, p. 64).

Vaxquez-Falero testified that he complained about the harassment to his boss, Manny Estrada. (Vasquez-Falero, 92-93). D. Perez testified that he reported the harassment to Estrada "almost on a daily basis". (D.Perez, p. 60-61). R. Perez testified that he complained about the harassment to Estrada and asked Hill's supervisor Frank Andre, to sign his ticket when Hill would refuse to sign it. (R. Perez, p. 130).⁵ According to Estrada, he never received complaints about harassment from any of the Plaintiffs. (Estrada Aff., ¶13).

On February 17, 1998 a physical altercation occurred between Hill and two members of the Perez family. Hill testified that N. Perez and two of his grandsons were trying to deliver materials that Pavex did not want. (Hill, p. 51). According to Hill, he approached N. Perez to tell him not to dump the materials and N. Perez "got right in [his] face and said fuck you." (Hill, pp. 52, 68). Hill then hit N. Perez's right eye. (Hill, p. 53). Hill denied saying anything like "fucking Cuban" to N. Perez. (Hill, p. 51).

On the other hand, N. Perez testified that Hill approached him as he was about to dump his load and said "[s]hut up. Fuck you son-of-a-bitch Cuban people". (N. Perez, p. 131). In response, D. Perez said "I'm sorry, my friend. Take it easy. I'll telephone Manny." (N. Perez, pp. 133-134). According to N. Perez, Hill hit him as he was turning towards the truck to get a cellular phone. (N. Perez, p. 134). As a result of Hill's punch, N. Perez fell to the ground and began bleeding. (N. Perez, p. 135). D. Perez then "jumped on" Hill and they hit each other. (D.Perez., p. 152-53). Frank Andre was promptly notified of the altercation, the police were called, and Andre drove N. Perez to receive medical treatment. As a result of Hill's actions, Pavex suspended Hill for three days without pay. (Hill, p. 56). The Perez family pressed criminal charges against Hill for battery. (N. Perez, p. 169-171; Hill, pp. 55-56).

Plaintiffs admit...