Melvin v. Vercelli's , Inc. CV-97-104-SD 07/23/98 UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Willie Melvin

v. Civil No. 97-104-SD

Vercelli's , Inc.

O R D E R

In this civil action, plaintiff Willie Melvin alleges

federal claims of race discrimination under Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e. Specifically,

Melvin contends that (1) he received unequal pay because of his

race, (2) he was subjected to a racially hostile work

environment, and (3) he was constructively discharged (Count I).

In addition to his federal claims, Melvin alleges a state law

claim of wrongful discharge (Count II).

Presently before the court is defendant's motion for summary

judgment pursuant to Rule 56, Fed. R. Civ. P., to which plaintiff

objects.

Background

Defendant Vercelli's hired plaintiff, a 38-year-old black

male, in July 1992 through the New Hampshire State Prison work

release program. Vercelli's owner/manager, Randy Jones, knew at

the time of hiring that Melvin was a convicted felon. Melvin

worked at Vercelli's from July 1992 until February 1996. After

starting at a pay rate of $4.50 per hour, Melvin received six pay increases, reaching $9.50 per hour by the termination of his

employment in February 1996.

Melvin alleges that he was paid less than his white co­

workers who performed similar work. For example, Melvin contends

that as a cook he was paid $9.50 per hour, while other employees

with that title were paid $10.00 to $12.50 per hour. Melvin also

contends that he performed the same duties and had the same

responsibilities as the head chef, yet he was paid a

significantly lower wage.

Melvin further alleges that Jones racially harassed him on

at least four occasions. The harassment included comments made

to plaintiff's wife, who is white. Jones allegedly said to her,

"I wonder what color the baby's going to be, white with black

spots or black with white stripes." Further, Melvin alleges that

Jones called him a "black nigger," and told another employee, in

reference to Melvin, that he was going to "chew his black ass

out." Plaintiff also alleges that Jones yelled at, intimidated,

and humiliated him on a regular basis. Plaintiff claims that as

a result of the environment created by Jones, he had no choice

but to terminate his employment.

Discussion

1. Standard of Review

Summary judgment is appropriate when there is no genuine

issue of material fact and the moving party is entitled to

judgment as a matter of law. Rule 56 (c), Fed. R. Civ. P.;

2 Lehman v. Prudential Ins. Co. of A m . ,

, 327 (1st Cir.

1996). The court's function at this stage is not to "weigh the

evidence and determine the truth of the matter but to determine

whether there is a genuine issue for trial." Stone & Michaud

Ins, v. Bank Five for Savinas,

(D.N.H.

1992) (quoting Anderson v. Liberty Lobby, Inc.,

(1986) ) .

The moving party has the burden of establishing the lack of

a genuine issue of material fact. Finn v. Consolidated Rail

Corp.,

(1st Cir. 1986). The courtviews the

record in the light most favorable to the non-moving party,

granting all inferences in favor of the non-moving party. Caputo

v. Boston Edison Co.,

(1st Cir. 1991).

To survive summary judgment, the non-moving party must make

a "showing sufficient to establish the existence of an element

essential to that party's case," Celotex Corp. v. Catrett,

(1986), and cannot merely rely on allegations

or denials within the pleadings. LeBlanc v. Great Am. Ins. Co.,

(1st Cir. 1993), cert, denied,

(1994) (quoting

). The non­

moving party may not rest on allegations and hearsay, but rather

the response, "by affidavits or as otherwise provided in this

rule, must set forth specific facts showing that there is a

genuine issue for trial." Rule 56(e), Fed. R. Civ. P.

3 2. Title VII Claims

This case alleges three distinct violations of Title VII,

which provides that it is "unlawful employment practice for an

employer . . . to discriminate against any individual with

respect to his compensation, terms, conditions, or privileges of

employment, because of such individual's race . . . ." Melvin

first alleges that Vercelli's paid him less than other, white

workers for performing similar work. Melvin next alleges that

Vercelli's subjected him to a racially hostile work environment.

Finally, Melvin alleges that he was constructively discharged due

to racially motivated harassment. Defendant moves for summary

judgment on all three claims.

a. Title VII Claim of Unequal Pay

Melvin claims that Vercelli's discriminated against him

based on his race in setting his wage level. Under Title VII, a

plaintiff can establish a prima facie case of discrimination by

showing that he was paid lower wages than white employees

performing equal work. However, the evidence establishes that

Melvin was paid equal (or in some cases greater) wages than white

employees performing equal work. See Hatton v . Hunt,

(W.D. Tenn. 1991).

In September 1992 Vercelli's paid Melvin $5.00 per hour as a

dishwasher. Likewise, Vercelli's paid seven other dishwashers

employed at that time at an hourly rate between $4.50 and $5.00.

By the end of 1993, Vercelli's paid Melvin $6.50 per hour as he

4 began performing some duties of a preparation cook, but he

remained primarily a dishwasher. The other

dishwasher/preparation cook was paid $6.00 per hour. In 1994

Melvin became a preparation cook/junior line cook, and his salary

accordingly increased from $6.50 to $8.50 per hour. During the

same year, the three other junior line cooks earned between $6.00

and $7.50 per hour. By February 1996, when his employment at

Vercelli's ended, Melvin was earning $9.50 per hour, which made

him the highest-paid employee at Vercelli's , with the exception

of supervisors David McDonald and Randall Jones, the

owner/manager.

Melvin argues that during his last year at Vercelli's he

performed tasks and responsibilities equal to those of Phillip

Blazon, who worked at Vercelli's from February 1994 through

January 1995. Further, Vercelli's paid Blazon $550 per week, and

Melvin never earned more than $395 per week. However, the court

finds that Blazon and Melvin did not perform equal work. For a

finding of equal work, the evidence must show that the employees

performed "work requiring equal skill, effort, and

responsibility." Keziah v. W.M. Brown & Son, Inc.,

(4th Cir. 1989). For the purposes of Title VII, "equal

skill" includes such factors as "experience, training, education

and ability." 45A A m . J u r . 2 d § 732 (1993). Blazon came to

Vercelli's with more than fifteen years' experience in the

restaurant field. His experience included culinary work at

Bennigan's Tavern in Florida, as well as work as a sous-chef at

5 the Ramada Inn in Concord, New Hampshire. The management tasks

performed by Blazon--ordering meats, controlling the inventory of

food supplies, and preparing the menu--required this culinary

experience and training. In contrast, Melvin came to Vercelli's

with no pervious experience or education in the culinary arts.

Melvin became a preparation cook and junior line cook in 1994,

giving him two years of culinary training under the tutelage of

Randy Jones, Richard Dennison, and Phillip Blazon. Thus it is

clear that Blazon and Melvin did not have equal skills.

For the purposes of Title VII, "equal responsibility" is

primarily concerned with the "degree of accountability required

in the performance of the job."

. In 1994

Blazon was hired to act as head chef when Randy Jones was absent.

On April 4, 1994, Blazon was approved by the State Liquor

Commission as the evening chef for Vercelli's . This approval is

necessary for an employee who will be in charge of restaurant

operations during any period of time. Any employee left in

charge of a restaurant has a very high degree of accountability.

In addition. Blazon's duties included ordering meats, taking

inventory of food supplies, and supervising the line cooks.

Ultimately, Blazon would be accountable if there was a problem in

the kitchen.

On the other hand, Melvin was never approved by the State

Liquor Commission and therefore could not be left in charge of

the restaurant. Further, Melvin did not perform managerial

duties, as there was some question as to whether he had the

6 knowledge or experience to perform management functions. In his

affidavit, Melvin states that he performed many tasks which

Blazon did not perform. At the same time. Blazon performed tasks

which Melvin did not perform. Thus Blazon and Melvin did not

share equal responsibility and accountability.

This court therefore finds that plaintiff has not shown a

violation of the standard of equal pay for equal work.

Accordingly, defendant's motion for summary judgment on the

unequal pay claim is granted.

b. Title VII Claim of Hostile Work Environment

Melvin claims that his supervisor, Jones, harassed him on

account of his race. Title VII guarantees "employees the right

to work in an environment free from discriminatory intimidation,

ridicule, and insult." Meritor Sav. Bank v. Vincent,

(1986). Offensive race-based conduct that is "'severe or

pervasive enough to create an objectively hostile or abusive work

environment,'" Lattimore v. Polaroid Corp.,

(1st

Cir. 1996) (quoting Harris v. Forklift Systems, Inc.,

(1993)), constitutes harassment and actionable

discrimination.

Courts have held that a single incident of offensive racial

conduct may be sufficiently severe. See Torres v. Pisano,

, 631 n.4 (2d Cir. 1997) ("Of course, even a single

episode of harassment, if severe enough, can establish a hostile

work environment."), cert, denied,

(1997); Rocha

7 Vigil v. City of Las Cruces,

(10th Cir. 1997)

("If sufficiently severe, harassment is actionable under Title

VII--regardless of its pervasiveness or frequency."); (Daniels v.

Essex Group, Inc.,

, 1274 n.4 (7th Cir. 1991)

(indicating a single instance of racial harassment can establish

a hostile work environment); Reid v . O' Leary, No. 96-401,

(D.D.C. July 15, 1996) (holding that use of one epithet

created an issue of material fact regarding whether plaintiff's

work environment was hostile). This is especially true when

racial epithets are used because possibly "no single act can more

quickly alter the conditions of employment and create an abusive

working environment than the use of an unambiguously racial

epithet such as 'nigger' by a supervisor . . . ." Rodgers v.

Western-Southern Life Ins. Co.,

(7th Cir. 1993);

see Bailey v. Binyon,

(N.D. 111. 1984)

("The use of the word 'nigger' automatically separates the person

addressed from every non-black person; this is discrimination per

se .") .

In the present case, Melvin alleges that his supervisor

Jones on several occasions used racial epithets in referring to

Melvin, such as "black ass" and "black nigger." Thus Melvin has

created a material issue of fact whether Jones' use of

unmistakably racist language was severe enough to create a

hostile work environment.

8 c. Title VII Claim of Racially Motivated Constructive

Discharge

Melvin claims that Jones treated him so badly on account of

his race that Melvin was forced to resign from Vercelli's . The

First Circuit has adopted an "objective standard" to determine

whether an employer's actions have forced an employee to resign.

See Serrano-Cruz v. DRI Puerto Rico, Inc.,

(1st

Cir. 1997); Calhoun v. Acme Cleveland Corp.,

(1st Cir. 1986). Constructive discharge occurs when continuing

employment "will result in work so arduous or unappealing, or

working conditions so intolerable, that a reasonable person would

feel compelled to forsake his job rather than to submit to

looming indignities." Vega v. Kodak Caribbean, Ltd.,

(1st Cir. 1993. See Calhoun, supra,

; Alicea

Rosada v. Garcia Santiago,

(1st Cir. 1977).

A plaintiff alleging constructive discharge must show

"'"aggravating factors," such as a "continuous pattern of

discriminatory treatment."'" Watson v. Nationwide Ins. Co.,

(9th Cir. 1987) (quoting Satterwhite v. Smith,

(9th Cir. 1984) (quoting Clark v. Marsh,

(D.C. Cir. 1981))). The determination as to whether

conditions were so intolerable that a reasonable person would

feel compelled to resign is a factual question left to the trier

of fact. Id. at 361; see Loiek v. Thomas,

(9th Cir. 1983). The same facts that support Melvin's hostile

work environment claim; namely, Jones' use of racial epithets

9 directed at Melvin, also support his constructive discharge

claim. Other courts have held that four incidents of

discriminatory treatment over a period of two years was

sufficient to create a genuine issue of material fact for trial.

Id. at 361. Accordingly, defendant's motion for summary judgment

on the issue of constructive discharge is denied.

3. State Law Claim of Unlawful Discharge

The First Circuit has stated that under New Hampshire law,

"the existence of . . . a [statutory] remedy . . . precludes

. . . a common law claim for wrongful discharge." Smith v. F.W.

Morse & Co.,

(1st Cir. 1996). In this case.

Title VII applies and provides a remedy for plaintiff's

allegations of employment discrimination based on race. This

court is bound by First Circuit law and will apply its decision

accordingly. Therefore, plaintiff is precluded from bringing a

common law claim for unlawful discharge because Title VII

provides a private cause of action to remedy the conduct of which

Melvin complains. Defendant's motion for summary judgment on the

state law claim of unlawful discharge is granted.

Conclusion

For the foregoing reasons, defendant's motion for summary

judgment is denied in part as to Count I as it pertains to

hostile work environment and constructive discharge, and granted

10 in part as to Count I as it pertains to unequal pay. Said motion

is granted as to Count II.

SO ORDERED.

Shane Devine, Senior Judge United States District Court July 23, 1998 cc: Michael J. Sheehan, Esq. Biron L. Bedard, Esq.

11