Vincent v. Wells Fargo Guard Services, Inc.

• Decision Date: 10 March 1998
• Docket Number: No. 95-1998-CIV.,95-1998-CIV.
• Parties: Wilner VINCENT, Plaintiff, v. WELLS FARGO GUARD SERVICES, INC. OF FLORIDA, et al., Defendants.
• Court: U.S. District Court — Southern District of Florida

3 F.Supp.2d 1405

Wilner VINCENT, Plaintiff, v. WELLS FARGO GUARD SERVICES, INC. OF FLORIDA, et al., Defendants.

No. 95-1998-CIV.

United States District Court, S.D. Florida, Miami Division.

March 10, 1998.

COPYRIGHT MATERIAL OMITTED

William G. Bell, Miami, FL, for Plaintiff.

Thomas L. Henderson, McKnight Hudson Lewis et al, Memphis, TN, Sherryll Martens Dunaj, Martens Dunaj et al, Miami, FL, for Defendants.

ORDER

K. MICHAEL MOORE, District Judge.

THIS CAUSE came before the Court upon Defendant's Counter-Motion for Summary Judgment ("Counter-Motion") (DE # 80)¹ and Plaintiff's Motion for Summary Judgment as to Certain of Defendants' Affirmative Defenses ("Motion") (DE # 161).²

UPON CONSIDERATION of the Counter-Motion, Motion, responses, supplemental memoranda, materials submitted, the pertinent portions of the record, and being otherwise fully advised in the premises, the Court enters the following Order.

STATEMENT OF FACTS³

Plaintiff, Wilner Vincent ("Vincent"), is a black Haitian born on December 12, 1971. Affidavit of Wilner Vincent ("Vincent Affidavit") at ¶ 2. Vincent was employed by Defendant Wells Fargo Guard Services, Inc. of Florida ("Wells Fargo") from May of 1992 to February 3, 1995. Id. at ¶ 3.

I. § 1981 and Title VII ClaimsDiscriminatory Job Assignments

Vincent posits that there are "undesirable" and "desirable" posts to which Wells Fargo guards are assigned.⁴ See Third Amended Complaint at ¶ 8. Vincent contends that black and Haitian guards are assigned to "undesirable" posts while whites and Hispanics are assigned to "desirable" posts.⁵ Id. Vincent defines "undesirable" posts as posts where there is no rest room or phone access and posts that are "in the middle of nowhere." Deposition of Wilner Vincent of March 4, 1996 ("Vincent Deposition") at 38-39. Vincent considers a construction site to be an "undesirable" post. Id. at 39. Vincent cites Aero Thrust, a post with no water or toilets and which paid $5.00 an hour, as an example of an "undesirable" post to which he was assigned.⁶ Vincent's Second Affidavit in Support of His Motion for Summary Judgment as to Certain of Defendants' Affirmative Defenses ("Second Vincent Affidavit") at ¶ 9.

Vincent defines a "desirable post" as one with a telephone, water and a bathroom. Vincent Deposition at 42. An office building would be considered a "desirable" location. Id. at 44. Vincent provides contradictory testimony as to whether or not he was ever assigned to "desirable" posts. At certain points during his deposition, Vincent admits that he was assigned to what he deemed to be "desirable" posts. Id. at 46, 74. The Mutual of Omaha Building would be an example of a "desirable" post to which Vincent was assigned. Id. at 44; Vincent Affidavit at ¶ 45. However, at another point during his deposition, Vincent states, "every post that I went to was what we called undesirable." Id. at 144. According to a chart prepared by Wells Fargo which sets forth (1) Vincent's assignments from 1992 to 1994, (2) the availability of water and bathroom facilities at certain of those locations and (3) whether certain posts to which Vincent was assigned were indoors or outdoors, Vincent was assigned to several locations which would fall under his definition of a "desirable" post. See Exhibit 1 to Defendants' Supplemental Memorandum in Support of Their Counter-Motion for Summary Judgement Filed Pursuant to This Court's March 28, 1997 Order. A Blockbuster Video store was considered somewhat "undesirable" by Vincent because, although it had water and a bathroom, "you were not allowed to lean" and you had to stand at the door and greet people. Vincent Deposition at 79-80.

According to Vincent, evidence of discriminatory treatment of blacks and Haitians can be found in the fact that he always relieved blacks and Haitians at "undesirable" posts. Id. at 42-43; Vincent Affidavit at ¶ 32. In support of the allegation that whites and Hispanics were sent to "desirable" posts, Vincent testified that one of the employees at the Mutual of Omaha building told Vincent that he was the first black person to stay on the post. Id. at 44.

On May 5, 1992, Vincent signed a Wells Fargo document which stated, "It is clearly understood and agreed that any assignment I accept is temporary and the scheduled shift, pay rate or location of my employment may be changed, at the discretion of Wells Fargo Guard Service or any client to whom I am assigned." See Exhibit 11 to Vincent Deposition. Account managers at Wells Fargo were responsible for making guard assignments. Vincent Deposition at 39; Deposition of Benjamin Blair of May 3, 1996 ("Blair Deposition") at 37. During the course of Vincent's employment at Wells Fargo, the three account managers were Hispanic. Deposition of Hector Jose Ventura of May 3, 1996 ("Ventura Deposition") at 8-9. Vincent claims that Hispanic account managers put Hispanic guards at certain posts while bumping others from those posts. Vincent Deposition at 57-58. Vincent testified that if he was at a good post and an account manager's relative got a license, Vincent would be bumped. Id. Vincent asked his account managers to assign him to more "desirable" daytime posts which paid more money, but the account managers refused. Id. at 161-62; Vincent Affidavit at ¶ 33. Vincent claims that he knew more "desirable" posts were available because he would overhear dispatchers talking about new contracts at "nice places." Vincent Deposition at 40.

At Wells Fargo, there is no system of seniority bidding for particular posts, and there is no policy whereby an account manager takes a guard's seniority into account when making assignments. Blair Deposition at 37. Wells Fargo claims that assignments are made on the basis of the account manager's experience and, in the case of a new hire, the guard's background. Ventura Deposition at 23. When asked how a guard with two years seniority is assigned to a post, Ventura replied, "When the right post comes along, I will know if he is good for that post or not." Id.

Vincent also alleges that black and Haitian guards are assigned to lower paying posts than white and Hispanic guards. See Third Amended Complaint at ¶ 9. Different posts at Wells Fargo pay different amounts. Vincent Deposition at 46. Depending on the particular post, guards at Wells Fargo were paid between $4.25 to $9.00 per hour. Exhibit 19 to Ventura Deposition. Wells Fargo has submitted an affidavit in which its counsel, after reviewing voluminous documents, attests to and summarizes Vincent's average hourly rate of pay from 1992 to 1995. See Exhibit 2 to Defendants' Supplemental Memorandum in Support of Their Counter-Motion for Summary Judgement Filed Pursuant to This Court's March 28, 1997 Order. According to the information submitted by Wells Fargo, Vincent earned between $4.25 and $6.00 an hour during 1995, with the majority of earnings at $6.00 an hour. Id. at ¶ 4. During 1993 and 1994, Vincent earned between $5.00 and $6.00 an hour. Id. at ¶¶ 5, 6. In 1992, Vincent earned between $5.00 and $5.50 an hour. Id. at ¶ 7. In support of his position, Vincent offers the number and overall percentage of black guards assigned to four posts in 1994 and the hourly rate of pay for each of the four assignments. See Attachment A to Vincent's Updated Response to Defendant's Counter-Motion for Summary Judgment. Vincent does not state whether he worked at those four posts during 1994, the year on which the information is based. See id.

II. Americans with Disabilities Act

Vincent suffers from sickle cell anemia. Vincent Affidavit at ¶ 4. Vincent was first diagnosed with sickle cell anemia in 1979 or 1980 while living in Haiti. Vincent Deposition at 15-17. Prior to being diagnosed, Vincent would get sick and have to stay in bed for two or three weeks. Id. at 17. When he arrived in the United States in 1979, Vincent was not treated by a doctor for sickle cell anemia. Id. at 20. When he had a sickle cell crisis, which was usually two or three times a year, Vincent would stay home from school and deal with the pain. Id. at 20, 23. When he was in high school, maybe in tenth or eleventh grade, Vincent was treated by Dr. Jacobson three times a year for sickle cell episodes. Id. at 26-28. Dr. Jacobson would give Vincent a shot, prescribe medication and order Vincent to drink a lot of fluids. Id. at 27.

Vincent claims that being upset, including not being happy at the post to which he is assigned or doing something that he does not want to do, causes him to have a sickle cell crisis. Id. at 28-29, 172. In addition, working past midnight and not getting eight hours of sleep causes swelling in his joints and affects his condition. Id. at 28-29. Vincent testified, however, that the darkness itself does not affect his condition. Id. at 92. According to Vincent's physician, Dr. Blake, there is nothing that would cause someone to suffer a crisis just because they happen to work at night versus during the day. Deposition of Dwight D. Blake, M.D. ("Blake Deposition") of May 30, 1996 at 18, 26 and 37. At times, Vincent's crises strike without warning. Vincent Affidavit at ¶ 48. At other times, Vincent feels the crises coming on. Id. Vincent's crises vary in intensity and are characterized by severe pain in the hips, legs, knees, back and chest wall. Id. at ¶ 11; Blake Deposition at 12. Various factors, including Vincent's hydration level, nutritional state and some social aspects like fatigue, stress and being overworked, may affect the severity of a sickle cell attack. Id. at 15-16. However, there is nothing that either a patient or an employer can do to prevent a sickle cell attack, although following certain regimens could lessen a crisis. Id. at 18-19. If the pain is bad enough, Vincent may be unable to walk and may become incapacitated during a sickle cell attack. Id. at 12. In Dr. Blake's opinion, people are unable to work when they are in a sickle cell crisis. Id. at 14. When treated at a...