Dubuche v . Emery Worldwide Airlines CV-00-556-B 10/09/02

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Karl V . Dubuche

v. Civil N o . 00-556-B Opinion N o .

Emery Worldwide Airlines, Inc.

MEMORANDUM AND ORDER

Karl V . Dubuche brings suit against his former employer,

Emery Worldwide Airlines, Inc. (“Emery”), alleging racial

discrimination based upon claims of a hostile work environment,

failure to promote, and retaliation. See 42 U.S.C. § 2000e-2(a),

3(a) (1994) (Title V I I ) ;

(1994). Emery moves

for summary judgment, contending that Dubuche has failed to

establish a prima facie case of discrimination o r , alternatively,

has failed to demonstrate that Emery’s actions were a pretext for

discrimination. Emery also moves to strike portions of certain

affidavits submitted by Dubuche. For the reasons set forth

below, I grant Emery’s motion for summary judgment as it pertains

to Dubuche’s claims of a hostile work environment and

discriminatory failure to promote, and deny Emery’s motion as it

pertains to Dubuche’s claim of retaliation. I also deny Emery’s motions to strike.1

I. BACKGROUND2

Emery operated a mail processing facility in Nashua, New

Hampshire under the terms of a contract with the United States

Postal Service. Karl Dubuche, who states that he is a

“Carribean-born black,” worked as a mail sorter at Emery

beginning in May 1998. When he applied for the job, Dubuche told

Andrew Teebagy, the supervisor who interviewed him, that he may

be late for work because he depended upon others for

transportation. Teebagy told him that this would not be an

issue, as long as Dubuche worked hard. Soon after he started at

Emery, Dubuche again asked Teebagy whether his lateness would be

a problem. Teebagy reiterated what he had previously told

1 Because they contain hearsay, are insufficiently specific, or are argumentative, conclusory, or speculative, Emery asks the court to strike portions of the affidavits of Dubuche, Jason Kendrick, and Anthony Hanneman. I give the affidavits what credence is due, in light of the rules pertaining to the content of affidavits. See Fed. R. Civ. P. 56(e). On that basis, defendant=s motions to strike the affidavits are denied. 2 I construe the evidence in the light most favorable to Dubuche, the non-moving party, and draw all reasonable inferences in his favor. See Navarro v . Pfizer Corp.,

0 , 94 (1st Cir. 2001) (explaining the operation of Fed. R. Civ. P. 5 6 ) .

-2- Dubuche. Dubuche frequently worked overtime and was a hard

worker. There i s , however, no dispute that he was often late for

work.

During the fall of 1998, Dubuche began applying for various

promotions. He applied for one of two ATAG operator positions.3

Both positions, however, were awarded to other black employees

who, according to Emery, were more qualified than Dubuche.4

Dubuche also applied for one of four seasonal quality assurance

positions, but again the jobs were awarded to employees who

apparently had better credentials than Dubuche.

Dubuche eventually was offered a promotion to ramp clerk.

However, Dubuche did not accept the offer immediately because he

wanted to speak with his wife before accepting the job.

Ultimately, Dubuche was not promoted. According to Emery, it

rescinded the job offer because Dubuche did not respond in a

3 In Emery’s hierarchy, mail sorters were at the bottom. Positions such as “ramp clerk” and “ATAG operator” were coveted because they paid more and involved far less, if any, manual labor. Typically, mail sorters were responsible for lifting and hauling mail bags and packages. 4 Dubuche contends that he was the only person whose parents were both black. Regardless of Dubuche’s description of the two ATAG operators as being “half-black,” Emery’s internal records indicate that both ATAG operators were “black.”

-3- timely manner.

When Scott Sanders became his immediate supervisor, Dubuche

was routinely denied the opportunity to “10-Key.” Essentially,

the “10-Key” operator was responsible for entering information

regarding mail bundles into a computer. “10-Keying” was one of

the duties of a mail sorter. The “10-Key” duty was not a

promotion, but entailed far less physical labor than mail

sorting. Although Dubuche received a high test score on the 10-

Key machine, Sanders would not assign Dubuche to “10-Key.”

Dubuche was, however, assigned to “10-Key” by other shift

managers.

At or about the same time Dubuche was being denied

promotions and the opportunity to “10-Key,” he was exposed to

situations that he found hostile and discriminatory. For

instance, during a discussion among co-workers about Emery’s

tuition reimbursement policy, Dubuche asked Sanders to explain

the policy. In front of Dubuche’s co-workers, Sanders stated

that Dubuche need not worry about the policy, as it only applied

to people who went to school.

In September of 1998, Elizabeth Larrea, a shift manager,

compared Dubuche and Anthony Hanneman, Dubuche’s co-worker, to

-4- the men who shoveled coal in the engine room of the Titanic.

Dubuche construed the comment as comparing him to a slave. On

another occasion, Dubuche and Hanneman overheard a voice on

Teebagy’s hand-radio, which said “[c]ould you send a couple of

black guys to the ball dock?” Hanneman Aff. ¶ 6; Dubuche Dep.

202-03. Unloading trucks at the ball dock was the most labor

intensive job at Emery. Dubuche found the remark somewhat

offensive.

Because he needed his job and did not want to cause

problems, Dubuche did not immediately report the above incidents.

In November 1998, however, he verbally complained to Emery’s

general manager, Michael Bruni. Subsequently, he also spoke with

Teebagy, Robert Knowles, and other members of Emery’s upper

management. Soon after he complained, Sanders began to reprimand

Dubuche for being tardy. Emery contends that Sanders verbally

notified Dubuche that his tardiness was a problem in June 1998.

Dubuche denies receiving such a notice. Regardless, Sanders

issued Dubuche his first written warning for tardiness on January

1 9 , 1999.

Dubuche received a final written warning for tardiness on

-5- January 2 1 , 1999.5 Upset at receiving the final warning, Dubuche

approached Sanders to discuss the issue. During the discussion,

Dubuche told Sanders that he believed Sanders’ actions in issuing

the warnings and denying him the opportunity to “10-Key” were

racially motivated. Sanders became angry, told Dubuche he was

fired, and ordered him to leave the premises. Bruni and other

members of upper management immediately responded to the

situation and, after speaking with Dubuche, Bruni told him not to

return to work until he submitted a written complaint regarding

his claims of racial discrimination. Dubuche was not paid for

the time he missed while he drafted his complaint at home.

In early February, 1999, Bruni concluded his investigation

of Dubuche’s written complaint, determining that it was

unfounded. In a meeting with Dubuche, Bruni told him the outcome

of his investigation. Bruni also told him that he must be on

time for work, and that he would be watching him. Thereafter,

management closely scrutinized Dubuche’s work habits. Unhappy

with the results of the investigation and the scrutiny he found

himself under, Dubuche filed a charge of racial discrimination

5 Dubuche contends that the January warnings were later “rescinded” by human resources.

-6- against Emery with the New Hampshire Human Rights Commission on

February 2 6 , 1999.

Approximately two weeks after filing his Human Rights

Commission complaint, Dubuche received a warning for taking an

extended break. About a week later, Dubuche received a final

written warning for violating Emery’s attendance and punctuality

policy. The warning stated that Dubuche needed to have perfect

attendance and punctuality for 60 days or be subject to

discipline, including termination. Dubuche contends that this

warning was later rescinded.

On March 2 5 , 1999, Emery’s electronic time card system did

not record Dubuche’s hours for the day. Emery kept time records

for its employees by instructing them to “swipe” an electronic

card through a sensor for its computerized time system at the

beginning and end of their shift. A separate security system

also recorded each employee’s time in and out of the Emery

complex. It was not uncommon for the time card system to

malfunction or fail to record an employee’s hours, and Dubuche

had experienced such difficulties prior to March 1999. If the

system failed to record an employee’s hours, a manager would ask

the employee how many hours he or she worked, and the manager

-7- would then manually enter the time into the system. This was

done informally, and employees were not asked to sign a time card

or payroll document attesting to the information they provided

the manager.

On March 2 6 , 1999, Bruni and Judy Guilmette, Emery’s human

resources manager, met with Dubuche to discuss the time system’s

failure to record his work hours for the previous day. Bruni and

Guilmette concealed the fact that the security system had logged

Dubuche’s entry into the building at 4:10 p.m. and had logged him

out at 1:08 a.m. Instead, they told Dubuche that they had no

record of him working the previous day. They asked Dubuche what

time he arrived for work on March 2 5 . Dubuche stated at his

deposition, “I think it was 4:00. I don’t remember exactly the

time.” Dubuche Dep. 1 7 1 , 173. Dubuche admitted that it could

have been past 4:00 p.m. Bruni asked Dubuche to sign a time card

attesting to the fact that he had started work at 4:00 p.m. and

had ended work at “1:05 - 1:07" a.m. After he signed the time

card, Bruni showed Dubuche the security system log, which

indicated that Dubuche had entered the building at 4:10 p.m. and

had left at 1:08 a.m. Bruni informed Dubuche that by signing the

time card, which indicated that Dubuche arrived at 4:00 p.m., not

-8- 4:10 p.m., Dubuche had falsified a payroll document. Dubuche was

terminated on March 3 0 , 1999 for this action.

On August 3 , 1999, Dubuche filed a second charge of

discrimination with the New Hampshire Human Rights Commission,

alleging retaliation. Dubuche was issued a right-to-sue letter

for each complaint filed with the New Hampshire Human Rights

Commission. He filed suit in this court on December 4 , 2000,

alleging that Emery violated Title VII and

by

discriminating against him because he was black. More

specifically, he alleges that Emery refused to promote him and

forced him to work in a hostile work environment. Dubuche also

alleges that Emery violated Title VII’s anti-retaliation

provision when it suspended him without pay, subjected him to

heightened scrutiny, and ultimately terminated him under false

pretenses.

II. STANDARD OF REVIEW

Summary judgment is appropriate only “if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

-9- is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(c). A genuine issue is one “that properly can be resolved

only by a finder of fact because [it] may reasonably be resolved

in favor of either party.” Anderson v . Liberty Lobby, Inc.,

4 2 , 250 (1986). A material fact is one that affects the

outcome of the suit. See id. at 248.

In ruling on a motion for summary judgment, I must construe

the evidence in the light most favorable to the non-movant. See

Navarro, 261 F.3d at 9 4 . The party moving for summary judgment,

however, “bears the initial responsibility of informing the

district court of the basis for its motion, and identifying those

portions of [the record] which it believes demonstrate the

absence of a genuine issue of material fact.” Celotex Corp. v .

Catrett,

1 7 , 323 (1986). Once the moving party has

properly supported its motion, the burden shifts to the nonmoving

party to “produce evidence on which a reasonable finder of fact,

under the appropriate proof burden, could base a verdict for i t ;

if that party cannot produce such evidence, the motion must be

granted.” Ayala-Gerena v . Bristol Myers-Squibb Co.,

6 ,

94 (1st Cir. 1996) (citing Celotex,

; Anderson,

4 9 ) . While courts must exercise restraint in

-10- granting summary judgment in cases “where elusive concepts such

as motive or intent are at issue, this standard compels summary

judgment if the non-moving party rests merely upon conclusory

allegations, improbable inferences, and unsupported speculation.”

Straughn v . Delta Air Lines, Inc.,

3 , 33 (1st Cir.

2001) (quotation omitted, emphasis in original). I apply this

standard in resolving the defendant’s motion for summary

judgment.

III. DISCUSSION

A. The Title VII Claims6

Dubuche alleges that Emery violated Title VII by: (1)

refusing to promote him because he is black; (2) maintaining a

hostile work environment; and (3) retaliating against him because

he complained about the alleged racial discrimination. Emery

challenges the sufficiency of plaintiff’s Title VII claims. I

review each claim in turn.

6 Although Dubuche’s claims are brought under both

and Title V I I , the legal standards that govern both claims are identical. See Conward v . Cambridge School Committee,

2 , 18-19 (1st Cir. 1999). Therefore, I discuss them as if brought solely under Title V I I , and make no distinction between the two statutes. See

-11- 1. Failure to Promote

Dubuche alleges that Emery repeatedly refused to promote him

because he is black. See 42 U.S.C. § 2000e-2(a)(1) (making it

unlawful to “discharge any individual, or otherwise to

discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of employment,

because of such individual’s . . . race”). Specifically, he

alleges that he was denied promotions to ATAG operator and

seasonal quality assurance associate positions.7 Emery responds

by claiming that it took these actions for legitimate,

nondiscriminatory reasons and that Dubuche offers insufficient

evidence to support his assertions that its actions were

7 Dubuche also claims he was denied a promotions to ramp clerk, CART operator and 10-key operator. However, it is undisputed that he was offered the ramp clerk position. Therefore, Dubuche cannot maintain a claim of discriminatory failure to promote based upon a position that was offered to him. Further, the records provided by Emery demonstrate that the job offer was rescinded because Dubuche failed to accept it in a timely fashion, not because he was black. Bruni Aff., Ex. 2 B . Dubuche offers no evidence in rebuttal. As for Dubuche’s claims that he was denied a promotion to CART operator and 10-Key operator, these jobs were not promotions. Dubuche Dep. 199-200. Further, Dubuche was assigned the duties of a CART and 10-Key operator on occasion, and was compensated for the work. See id. at 2 0 0 , 265, 320-21. Based upon the record, CART and 10-Key duties were not promotions. Therefore, I do not address these “positions” in my analysis.

-12- motivated by unlawful bias.

Because Dubuche’s claim that Emery failed to promote him is

based upon circumstantial evidence, I analyze it by applying the

burden-shifting framework established by the Supreme Court in

McDonnell Douglas Corp. v . Green,

(1973); see also

Dominguez-Cruz v . Suttle Caribe, Inc.,

2 4 , 430 (1st

Cir. 2000).

Under the first step of the burden-shifting framework,

Dubuche must establish a prima facie case of discriminatory

failure to promote by proving by a preponderance of the evidence

that: (1) he is a member of a protected class; (2) he applied

for, and was denied, a promotion for which he was qualified; and

(3) after the denial, Emery filled the position with someone with

comparable qualifications.8 See Reeves v . Sanderson Plumbing

Products, Inc.,

(2000); McDonnell Douglas,

; Petitti v . New England Tel. & Tel. Co.,

8 ,

32 (1st Cir. 1990). Dubuche’s burden at this preliminary step is

8 The precise requirements of a plaintiff’s prima facie case will differ depending on the type of discrimination alleged and the specific employment practice at issue. See McDonnell Douglas,

n.13. I have tailored my description of the prima facie case to fit the contours of Dubuche’s failure to promote claim.

-13- “not onerous.” Texas Dept. of Community Affairs v . Burdine,

4 8 , 253 (1981); see Fernandes v . Costa Bros. Masonry, Inc.,

7 2 , 584 n.4 (1st Cir. 1999) (describing the nature of

proof required to establish a prima facie case as “de minimis”).

If Dubuche succeeds in making his prima facie case, he creates a

rebuttable presumption that Emery acted in a discriminatory

manner. See S t . Mary’s Honor Center. v . Hicks,

0 2 , 506

(1993); Burdine, 450 U.S. at 254.

Construing the facts in the light most favorable to Dubuche,

I conclude that he has established a prima facie case of

discriminatory failure to promote. He is black and, therefore, a

member of a class protected by Title VII. There is evidence in

the record from which a reasonable jury could conclude that Emery

failed to promote him, that he was qualified for the positions

for which he applied, and that the positions were given to other

individuals with comparable qualifications. See Dubuche Dep.,

Ex. 1 ; Ex. 11 (Bates stamp D070-072). Given that Dubuche’s

burden is minimal at this initial stage, I find that he has

established a prima facie case.

Once the plaintiff has set forth a prima facie case, the

burden shifts to the defendant, who may rebut the presumption of

-14- discrimination by articulating a legitimate, nondiscriminatory

reason for its actions. See Hicks, 509 U.S. at 506-07; Burdine,

450 U.S. at 253-54. The defendant’s burden is solely a matter of

production; the burden of persuasion remains at all times with

the plaintiff. See Hicks, 509 U.S. at 508; Burdine, 450 U.S. at

257-58, 260. Emery has articulated a nondiscriminatory reason

for not promoting Dubuche and has produced admissible evidence in

support of its position. Emery asserts that it chose other

individuals over Dubuche because they were better qualified and

better suited for the job. See Bruni Aff., Exs. 2A, 2 B , 2 C .

Because both Dubuche and Emery have met their burdens at

steps one and two of the McDonnell Douglas framework, the

presumption of discrimination drops away, and I turn to the

ultimate issue: whether Dubuche has presented sufficient

evidence to prove that Emery intentionally refused to promote him

because of his race. See Reeves,

(“The ultimate

question in every employment discrimination case involving a

claim of disparate treatment is whether the plaintiff was the

victim of intentional discrimination.”); Straughn v . Delta

Airlines, Inc.,

3 , 34 (1st Cir. 2001). There is “no

mechanical formula” for determining whether a plaintiff’s

-15- evidence is sufficient to prove discrimination, Feliciano De La

Cruz v . El Conquistador Resort,

, 6 (1st Cir. 2000);

however, the plaintiff must “present sufficient evidence to show

both that the employer’s articulated reason [for the failure to

promote was] a pretext and that the true reason [was]

discriminatory.” Straughn, 250 F.3d at 34 (quotations omitted)

(emphasis in original).

A “plaintiff’s prima facie case, combined with sufficient

evidence to find that the employer’s asserted justification is

false, may permit [, but does not compel,] the trier of fact to

conclude that the employer unlawfully discriminated.” Reeves,

. Whether such a showing is sufficient to prove

discrimination will depend upon the circumstances of the case,

including “the strength of the plaintiff’s prima facie case,

[and] the probative value of the proof that the employer’s

explanation is false.”

Of course, a plaintiff may choose to

offer additional evidence of discriminatory intent in order to

buttress his claim and satisfy his burden of proof. See

Feliciano De La Cruz,

0 .

Regardless of the type or quantum of proof offered by the

plaintiff, a court, in evaluating a motion for summary judgment,

-16- should consider all relevant evidence of pretext and

discrimination in the aggregate. See Dominguez-Cruz,

; Fernandes,

. In other words, the appropriate

inquiry is whether, based on the totality of the evidence, a

reasonable jury could infer that the defendant’s proffered

explanation was pretextual and that the defendant was actually

motivated by discriminatory animus. See Feliciano De La Cruz,

; Dominguez-Cruz,

. The First

Circuit has cautioned that courts making this inquiry into an

employer’s motivation should be especially reluctant to grant

summary judgment in the employer’s favor. See, e.g., Hodgens v .

General Dynamics Corp.,

5 1 , 167 (1st Cir. 1998).

Applying these legal principles, I conclude that Dubuche has

failed to carry his burden of proffering competent evidence that,

together with all reasonable inferences which may be drawn in his

favor, raises a genuine issue of fact as to whether Emery’s

refusal to promote him was motivated by discrimination.

Straughn, 250 F.3d at 3 4 . In regard to the ATAG operator

position, Emery’s contemporaneously generated records indicate

that Dubuche was not selected due to his lack of “reliability,”

which was a key criteria listed for the ATAG position. See Bruni

-17- Aff. ¶15, Ex. 2 C . This is wholly consistent with Dubuche’s

admission that he was often late to work. Further, any

allegation that Emery refused to promote Dubuche because he was

black is seriously undermined by the fact that Emery promoted

black employees for both ATAG operator openings. See id. Aside

from Dubuche’s belief that he was better qualified for the job,

he presents no relevant evidence that Emery’s reasons for

denying him promotions were a pretext for discrimination.

With respect to the seasonal quality assurance position, the

candidates Emery selected had significant accounting, auditing,

or quality assurance backgrounds, which Dubuche lacked. See

Bruni Aff., Ex. 2A; Dubuche Dep., Ex. 1 . Again, Emery’s

contemporaneously-generated records indicate the nondiscrimina-

tory reasons for its selections, including the specific

qualifications and credentials of each candidate chosen and why

they were the best for the job. See Bruni Aff., Ex. 2A.

In sum, Dubuche presents no evidence from which a reasonable

fact finder could conclude that those involved in selecting the

successful applicants for the ATAG operator and seasonal quality

assurance positions believed that he was the best qualified

applicant but selected another applicant instead. Dubuche has

-18- failed to raise a genuine factual dispute as to whether Emery’s

articulated reasons for failing to promote him to the ATAG

operator or seasonal quality assurance positions were a pretext

for unlawful discrimination. Accordingly, I grant Emery’s motion

for summary judgment with regard to this claim.

2. Hostile Work Environment

Title VII prohibits discrimination caused by a racially

hostile work environment. See Danco, Inc. v . Wal-Mart Stores,

Inc.,

, 13 (1st Cir. 1999). In order to prevail on

such a claim, the plaintiff must “establish that the harassment

was so ‘severe or pervasive’ as to alter the terms of [the

plaintiff’s] employment, creating a work environment that was

both objectively hostile and perceived as hostile by [the

plaintiff].” Marrero v . Goya of Puerto Rico, Inc., N o . 01-1984,

2002, WL 1962144, at *4 (1st Cir. Aug. 2 8 , 2002) (quoting

Faragher v . Boca Raton,

(1998). This is not a

precise test, and “whether an environment is ‘hostile’ or

‘abusive’ can be determined only by looking at all the

circumstances,” including: “the frequency of the discriminatory

conduct; its severity; whether it is physically threatening or

humiliating, or a mere offensive utterance; and whether it

-19- unreasonably interferes with an employee’s work performance.”

Gorski v . New Hampshire Dept. of Corrections,

(1st. Cir. 2002) (quotations omitted). Generally, a hostile work

environment occurs when “there are a series of events which mount

over time to create such a poisonous atmosphere as to violate the

law.” O’Rourke v . City of Providence,

(1st

Cir. 2001). However, “simple teasing, offhand comments, and

isolated incidents (unless extremely serious) will not amount to

discriminatory changes in the terms and conditions of

employment.” Faragher,

(quotations omitted);

accord Clark County School Dist. v . Breeden,

6 8 , 271

(2001) (per curiam). It is against this legal backdrop that I

review Dubuche’s hostile work environment claim.

Dubuche contends that the following events created a

racially hostile work environment: (1) the comment overheard on

Teebagy’s hand-radio stating “could you send two black guys to

the ball dock”; (2) Larrea’s comment that Dubuche and a white co-

worker reminded her of the men who shoveled coal in the engine

room of the Titanic; and (3) Sanders’ comment that Emery’s

tuition reimbursement policy was only for those who went to

school. See Plf’s. Mem. Supp. O b j . to Mot. for Summ. J., p.21.

-20- Dubuche’s own deposition testimony debunks the notion that

these incidents give rise to a poisonous and denigrating

atmosphere charged with racial hostility or abuse. First,

Dubuche was only “somewhat” offended at the comment he overheard

on Teebagy’s radio. Dubuche Dep. 206. Regardless, he still felt

“comfortable” working at Emery. Dubuche Dep. 208. As for

Sanders’ comment that Emery’s tuition policy only applies to

“people that go to school,” Dubuche Dep. 208-09, it lacked a

focused attack against Dubuche’s racial background. Further,

when asked whether Dubuche thought Sanders was joking, he

responded that he was uncertain “how [Sanders] intended [the

remark.” Dubuche Dep. 209. Lastly, Larrea’s comment regarding

the Titanic also lacked a focused attack against Dubuche’s racial

background. Indeed, the comment was directed at Dubuche and a

white co-worker. When asked whether Larrea meant any ill-will by

her comment, Dubuche stated that “[w]ell, she only said it

because I was sweating and . . . when you look at the movie

[Titanic] . . . that’s pretty much [how] those people [looked].”

Dubuche Dep. 217. Larrea contends that her comment was not meant

to compare Dubuche to a slave, but rather to compare the “never

ending work” of Dubuche and his co-worker with the workers of the

-21- Titanic. Bruni Aff., Ex. 3B (Larrea’s statement to Human Rights

Commission).

I conclude that Dubuche has failed to establish that the

alleged harassment was so “severe or pervasive” as to create a

“work environment that was both objectively hostile and perceived

as hostile by [Dubuche].” Marrero,

, at * 4 .

Aside from the comment overheard on Teebagy’s radio, the comments

were isolated, offhand remarks that lacked racial overtones.

Although I do not condone the type of comment overheard on

Teebagy’s radio, this lone, stray remark is not enough to

establish a hostile work environment claim. See Faragher,

. Therefore, Emery is entitled to summary judgment.

3. Retaliation

Emery next argues that Dubuche fails to establish a prima

facie case of retaliation. See 42 U.S.C. § 2000e-3(a) (making it

unlawful for an employer to discriminate against an employee who

has opposed any unlawful employment practice, “or because [the

employee] has made a charge, testified, assisted, or participated

in any manner in an investigation, proceeding, or hearing”

regarding discrimination). In the alternative, Emery argues that

the employment actions it took were not retaliatory.

-22- Once again, I use the burden-shifting framework established

by the Supreme Court to analyze Dubuche’s claim. See McDonnell

Douglas,

. 9 To establish a prima facie case of

retaliation, Dubuche must show by a preponderance of the evidence

that: (1) he engaged in conduct protected by Title VII; (2) he

suffered an adverse employment action; and (3) the adverse action

is causally connected to the protected activity. White v . New

Hampshire Dept. of Corrections,

5 4 , 262 (1st Cir.

2000). If Dubuche establishes his prima facie case, the burden

of production shifts to Emery, who must respond by articulating a

legitimate, nondiscriminatory reason for the adverse employment

action. See King v . Town of Hanover,

(1st Cir.

1997). If Emery meets its burden of production, the presumption

of retaliation falls away and Dubuche must prove that Emery’s

explanation is actually a pretext concealing a retaliatory

motivation. See

I conclude that Dubuche has established a prima facie case

of retaliation. Because reporting or complaining about racial

9 I reject Dubuche’s invitation to analyze this claim under a mixed-motive framework. The evidence presented by Dubuche does not compel such an analysis. See Fernandes,

; Kirk v . Hitchcock Clinic,

5 , 78 (1st Cir. 2001).

-23- discrimination is a protected activity, see 42 U.S.C. § 2000e-

3 ( a ) , Dubuche’s verbal and written complaints most certainly

qualify as protected activity. See White, 221 F.3d at 262;

Hoeppner v . Crotched Mountain Rehab. Ctr., Inc.,

(1st Cir. 1994). After engaging in this protected activity,

Dubuche was warned about his attendance, suspended without pay,

and ultimately discharged. These changes in the condition of his

employment constitute adverse employment actions. See White, 221

F.3d at 262. Therefore, there is no dispute that Dubuche has

established the first two elements of his retaliation claim.

In order to complete his prima facie case, Dubuche must

“point to evidence in the record that would permit a rational

fact finder to conclude that the employment action was

retaliatory.” King,

; Hoeppner,

4 .

“One way of showing causation is by establishing that the

employer’s knowledge of the protected activity was close in time

to the employer’s adverse action.” Wyatt v . City of Boston,

3 , 16 (1st Cir. 1994). Although there is no bright line

rule defining “temporal proximity,” the Supreme Court has stated

that the employer’s adverse action must be “very close” in time

to the protected activity. Breeden, 532 U.S. at 271. I may also

-24- consider such factors as the sequence of events leading to the

adverse action, and whether the employer departed from normal

procedures. Hodgens,

. “In addition, doubts

about the fairness of an employer’s decision . . . while not

dispositive, may be probative of whether the employer’s reasons

are pretexts for [retaliation].”

(quotations omitted).

Here, approximately two months after Dubuche’s November

complaint about Sanders’ alleged racial discrimination, Sanders

began issuing warnings to Dubuche. Further, when Dubuche brought

his complaints directly to Sanders in January 1999, Sanders

contemporaneously attempted to fire Dubuche and remove him from

the building. See Dubuche Dep., Ex. 12 (Bates stamp D073);

Dubuche Aff. ¶ 3 3 ; Kendrick Aff. ¶ 1 8 ; Bruni Aff., Ex. 1 . Bruni

responded to the January confrontation between Dubuche and

Sanders by suspending Dubuche without pay. Dubuche also contends

that Emery engaged in “a campaign of stalking and harassment,”

which culminated in Dubuche’s termination, in response to

Dubuche’s complaints. Drawing all inferences in Dubuche’s favor,

and in light of the relatively low threshold showing necessary to

establish a prima facie case, I conclude that this is enough to

satisfy Dubuche’s burden of establishing a causal connection

-25- between the employment action and the protected activity.

To rebut the inference of discrimination created by

Dubuche’s prima facie case, Emery must articulate a legitimate,

nondiscriminatory reason for the adverse employment action. See

King,

. Emery asserts that Dubuche’s chronic

tardiness and disregard for its attendance and punctuality policy

was the reason for the warnings issued to Dubuche. Further, it

denies that it engaged in a campaign of stalking and harassment

and that its decision to terminate Dubuche was based solely upon

his falsification of a payroll document. While the truth of

these justifications is disputed, Emery has articulated

legitimate, nondiscriminatory reasons for its actions.

As the presumption of retaliation has fallen away, Dubuche

must prove that Emery’s explanation is actually a pretext

concerning a retaliatory motivation. See

In evaluating

Dubuche’s proffer, I examine all the circumstances, including,

but not limited t o : temporal proximity between the adverse

action and the protected activity; the sequence of events; the

employer’s departure from normal procedures; and the fairness of

the employer’s decision. Hodgens,

; King,

; Wyatt,

6 . Whatever the sources of his

-26- proof, Dubuche, in order to survive summary judgment, “must

present evidence from which a reasonable jury could infer that

the [Emery] retaliated against him for engaging in [protected]

activity.” Mesnick v . General Elec. Co.,

(1st

Cir. 1991).

Dubuche, through his deposition testimony and Kendrick’s

affidavit, presents evidence that he first complained of racial

discrimination to Bruni and other members of Emery’s upper

management in November 1998.10 See Dubuche Dep. 196-97, 2 9 7 ,

310; Dubuche Aff. ¶ 3 2 ; Kendrick Aff. ¶ 6. Prior to November,

although Dubuche was late for work over 50 times in 1998, he was

never issued a written warning.11 See Dubuche Aff. ¶ 4 . Two

months after his November complaint, he began receiving written

warnings from Sanders for tardiness. The temporal proximity

10 Bruni contends that Dubuche never spoke to him about discrimination in November. I need not determine whether Dubuche or Bruni is telling the truth, however, because such credibility determinations are for the fact finder at trial, not for me at summary judgement. Simas v . First Citizens’ Federal Credit Union,

7 , 49 (1st Cir. 1999). 11 I note that Emery contends that Sanders spoke with Dubuche about his tardiness in June of 1998. See Sanders Aff. ¶ 8 , Ex. 3 . Dubuche disputes this contention. Again, such a credibility determination is for the fact finder at trial. See Simas, 170 F.3d at 4 9 .

-27- between Dubuche’s November complaint and the tardiness warnings

is circumstantial evidence of retaliation. See Wyatt,

.

Dubuche also presents evidence that an unwritten policy

existed at Emery that employees would not be reprimanded for

tardiness, so long as they worked hard and put in overtime.

Dubuche Aff. ¶ 1 5 ; Dubuche Dep. 100; Kendrick Aff. ¶ 5 . Emery

does not dispute that Dubuche was a hard worker and frequently

put in overtime. Nonetheless, it departed from its alleged

unwritten policy and began reprimanding Dubuche for his tardiness

two months after Dubuche levied his November complaint. Such a

departure from Emery’s normal policies and procedures tends to

support an inference of a retailatory motive. See Hodgens,

.

When Dubuche confronted Sanders on January 2 1 , 1999 and

accused him of racial discrimination, Sanders attempted to fire

him and told him to leave the building. Bruni’s own investi-

gation into the incident states that Sanders “told [Dubuche] to

get out of the building.” Bruni Aff., Ex.1. In response to the

confrontation between Sanders and Dubuche, Bruni told Dubuche

that he would not investigate Dubuche’s complaints of racial

-28- discrimination until he received them in writing. See Bruni

Aff., Ex. 1 . There is no policy requiring an employee to submit

a complaint in writing. See Dubuche Dep., Ex. 7 (Employee

Handbook, Bates stamp D468). Indeed, under the three options

available to an employee alleging discrimination, none indicate

that the employee must submit a written complaint; rather, each

option highlights Emery’s goal of assisting the employee to

resolve the complaint. See

Bruni’s memorandum regarding his investigation, viewed in a

light most favorable to Dubuche, indicates that Dubuche was

suspended without pay until he submitted a written complaint.

See Bruni Aff., Ex. 1 . Such action contradicts Emery’s written

procedures and policies of assisting the employee in resolving

complaints of discrimination. See Dubuche Dep., Ex. 7 (Employee

Handbook, Bates stamp D468). After he filed his internal

complaint, Dubuche contends that Bruni told him that he would be

“watching [him]” and would “get reports on [him].” Dubuche Dep.

285.

Emery’s nondiscriminatory reason for terminating Dubuche for

falsifying a payroll document is suspect when viewed in a light

most favorable to Dubuche. First, Dubuche presents evidence that

-29- if the time system failed to record an employee’s hours, a

manager would ask the employee to provide his or her time. The

manager would then manually enter the time into the system. See

Dubuche Dep. 1 7 8 , 179; Kendrick Aff. ¶ 2 1 . Employees were not

required or asked to sign a time card or payroll document

attesting to their hours. See

Curiously, Emery proffers

nothing to dispute this evidence. Despite this alleged informal

policy, Bruni required Dubuche to sign a payroll document

attesting to the hours he worked on March 2 5 , 1999. Once again,

such a departure from normal procedure lends credence to

Dubuche’s claim of retaliation. See Hodgens,

.

Second, i f , as Emery contends, Dubuche was on final warning for

attendance and punctuality, there was no need for Emery to

conceal the security log. Indeed, Emery could have simply shown

the log to Dubuche and terminated him for failing to meet the

requirements of the final warning (60 days of perfect

attendance). Instead, Emery officials asked that Dubuche sign a

time card and then fired him for falsifying i t . One could infer

that Dubuche was not on final warning and that Emery simply

created a pretextual reason to terminate Dubuche.

After considering the above facts and circumstances, I

-30- conclude that Dubuche has provided evidence from which a

reasonable fact finder could conclude that Emery’s reasons for

issuing warnings to Dubuche, monitoring him, and ultimately

firing him were retaliatory. I therefore deny Emery’s motion for

summary judgment as it pertains to Dubuche’s claim of

retaliation. See 42 U.S.C. § 2000e-3(a).

V. CONCLUSION

For the foregoing reasons, I grant Emery’s motion for

summary judgment (Doc. N o . 13) as it pertains to Dubuche’s

discriminatory failure to promote and hostile work environment

claims, and deny the motion as it pertains to Dubuche’s claim of

retaliation under 42 U.S.C. § 2000e-3(a). I also deny Emery’s

motions to strike Dubuche’s affidavits (Doc. Nos. 1 7 , 1 8 , 1 9 ) .

SO ORDERED.

Paul Barbadoro Chief Judge

October 9 , 2002

-31- cc: David Garfunkel, Esq. Jaclyn Kugell, Esq. Francis Murphy, Esq.

-32-