UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Gaius Dipigney

v. Civil No. 13-cv-304-LM Opinion No.

AutoZoners, LLC

O R D E R

In a case that has been removed from the Merrimack County

Superior Court, Gaius Dipigney has sued his former employer,

AutoZoners, LLC, in two counts, asserting claims under both

state and federal law for national-origin discrimination.

Before the court is AutoZoners’ motion for summary judgment.

Dipigney objects. For the reasons that follow, AutoZoners’

motion for summary judgment is granted.

Summary Judgment Standard

“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.” Ponte v. Steelcase Inc.,

(1st Cir. 2014) (quoting Cortés–Rivera v. Dept. of

Corr.,

(1st Cir. 2010)); see also Fed. R. Civ.

P. 56(a). When ruling on a motion for summary judgment, the

court must “view[ ] the entire record ‘in the light most hospitable to the party opposing summary judgment, indulging all

reasonable inferences in that party’s favor.’” Winslow v.

Aroostook Cnty.,

(1st Cir. 2013) (quoting Suarez

v. Pueblo Int’l, Inc.,

(1st Cir. 2000)).

“The object of summary judgment is to ‘pierce the

boilerplate of the pleadings and assay the parties’ proof in

order to determine whether trial is actually required.’” Dávila

v. Corp. de P.R. para la Diffusión Púb.,

(1st

Cir. 2007) (quoting Acosta v. Ames Dep’t Stores, Inc.,

(1st Cir. 2004)). “[T]he court’s task is not to weigh the

evidence and determine the truth of the matter but to determine

whether there is a genuine issue for trial.” Noonan v. Staples,

Inc.,

(1st Cir. 2009) (citations and internal

quotation marks omitted).

Background

Unless otherwise indicated, the following facts are

undisputed. Dipigney is African American. He was born in St.

Lucia, West Indies, and speaks with an accent. AutoZoners hired

him as a part-time sales clerk in September of 2009. In April

of 2011 he received a promotion to the position of Parts Sales

Manager and a transfer to AutoZoners’ store in Hooksett, New

2 Hampshire. Neil Thompson was the District Manager for the New

England District.1

As a Parts Sales Manager, Dipigney was responsible for

answering telephone calls from commercial customers when those

who had primary responsibility for that task were unavailable.

As a result, Dipigney answered about one call per day from a

commercial customer. In April or May of 2011, Thompson learned

that some commercial customers had reported having difficulty

understanding Dipigney on the telephone because of his accent.

In May of 2011, Thompson spoke with Dipigney about that issue.

Dipigney says that Thompson said: “Gaius, I would like you not

to answer the commercial calls because customers don’t

understand your accent.” Def.’s Mem. of Law, Billok Decl., Ex.

G, Dipigney Dep. (doc. no. 16-9) 61:18-20. Thompson describes

his conversation with Dipigney a bit differently: “I did not

tell him not to – nor ask him not to – answer commercial calls.

Instead, I simply suggested that if a commercial customer

complains of difficulty understanding him on the phone, he

should pass off the call to someone else at the store.” Def.’s

1 There may be some minor disagreement over whether Thompson was Dipigney’s District Manager for the entire time he was employed at the Hooksett store, but whether that was the case does not appear to be a material fact. See Daniels v. Agin,

(1st Cir. 2013) (“A fact is material if it could affect the outcome of the suit under governing law.”) (citation omitted).

3 Mem. of Law, Thompson Decl. (doc. no. 16-26) ¶ 22. For purposes

of ruling on AutoZoners’ motion for summary judgment, the court

adopts Dipigney’s version.

“On May 22, 2011, Dipigney was promoted to full-time status

and received [a] pay raise [from $10.50 per hour] to $11.35 per

hour.” Def.’s Mem. of Law, Haluga Decl. (doc. no 16-12) ¶ 11.

In October of 2011, five months after Thompson told Dipigney not

to answer calls from commercial customers, Dipigney received a

positive performance review and an increase in pay that he

characterizes as one of the highest raises given to any employee

in the Hooksett store. See Dipigney Dep. 76:23-77:1.

The incident that led to Dipigney’s discharge occurred on

March 30, 2012, eleven months after Thompson told Dipigney not

to answer calls from commercial customers. On that day, after

his shift was over, Dipigney spent approximately 45 minutes

inside the Hooksett store, waiting to be picked up, while

wearing a hip holster containing a visible handgun. In 2012,

the AutoZoners company policy regarding workplace security, of

which Dipigney was aware, provided in pertinent part:

• AutoZoners must never

. . . .

- bring a gun, knife that has a blade over 3 inches in length, or other weapon into the workplace. Workplace includes all AutoZone property,

4 buildings, facilities, vehicles and parking areas unless otherwise authorized by state law.

Def.’s Mem. of Law, Haluga Decl., Ex. H (doc. no. 16-20), at

Bates 0421. Later in the day on which Dipigney carried his gun

inside the Hooksett store, Thompson received a complaint from a

customer concerning an employee at the Hooksett store named

Gaius who was carrying a gun on his waist. Thompson directed

the Regional Human Resources Director, Nick Haluga, to

investigate. Haluga subsequently reported to Thompson that

Dipigney had admitted to bringing his gun inside the store, and

recommend that Dipigney be discharged. Thompson concurred, and

on April 11, 2012, AutoZoners terminated Dipigney’s employment.

This suit followed.

In his complaint, Dipigney claimed that the change in his

job duties in May of 2011 and his discharge in April of 2012

were acts of racial discrimination by AutoZoners. Dipigney now

characterizes his claim as one for national-origin

discrimination based upon his discharge, and the court proceeds

on that basis. At various points Dipigney also characterizes

Thompson’s directive not to answer calls from commercial

customers as an illegal act. But, it does not appear that he is

basing a legal claim on that directive and, even if he were, the

court would readily rule that directing Dipigney not to answer

calls from commercial customers does not qualify as a

5 sufficiently adverse employment action to support a Title VII

claim. As the First Circuit has explained:

An adverse employment action “typically involves discrete changes in the terms of employment, such as ‘hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits.’” Morales–Vallellanes v. Potter,

(1st Cir. 2010) (quoting Burlington Indus., Inc. v. Ellerth,

(1998)). To be adverse, an employment action “must materially change the conditions of plaintiffs’ employ.”

(quoting Gu v. Bos. Police Dep’t,

(1st Cir. 2002)) (internal quotation marks omitted).

Cham v. Station Operators, Inc.,

(1st Cir.

2012) (parallel citations and subsequent history omitted).

Telling Dipigney not to answer calls from commercial customers

was not a material change in the conditions of Dipigney’s

employment. See

(“The loss of a shift on holiday weeks

. . . does not rise to the level of an adverse employment

action.”).

Discussion

Dipigney asserts claims for national-origin discrimination

under both New Hampshire’s Law Against Discrimination, N.H. Rev.

Stat. Ann. ch. 354-A (Count I), and Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Count II).

“Because the New Hampshire Supreme Court relies on Title VII

cases to analyze claims under RSA 354–A, the court will address

[Dipigney’ state and federal] claims together using the Title

6 VII standard.” Hubbard v. Tyco Intg. Cable Sys., Inc.,

(D.N.H. 2013) (quoting Hudson v. Dr. Michael

J. O’Connell’s Pain Care Ctr., Inc.,

(D.N.H. 2011)).

A. Relevant Law

Under Title VII, it is unlawful for an employer to

discriminate against an employee because of the employee’s

national origin. See 42 U.S.C. § 2000e-2(a)(1). Because there

is no direct evidence of discrimination in this case, the court

must “apply the burden-shifting analysis of McDonnell Douglas v.

Green,

(1973), to help ‘sharpen the inquiry into

the elusive factual question’ of the employer’s motivation.”

Hicks v. Johnson,

(1st Cir. 2014) (quoting

Tex. Dep’t of Cmty. Affairs v. Burdine,

, 256 n.8

(1981); citing Johnson v. Univ. of P.R.,

, 53–54 (1st

Cir. 2013)) (parallel citations omitted).

Under that framework, if the plaintiff establishes a prima facie case of discrimination, an inference of discrimination arises, and the burden of production shifts to the defendant to produce evidence that the challenged employment action was taken for a legitimate, non-discriminatory reason. Johnson,

. If the employer supplies such evidence, the plaintiff is left with the burden to prove “by a preponderance of the evidence that the employer’s proffered reason is pretextual and that the actual reason for the adverse employment action is discriminatory.”

; see also Pearson v. Mass. Bay Transp. Auth.,

(1st Cir. 2013).

7 Hicks,

. Under the circumstances of this case,

to make out a prima facie case, Dipigney “must show that: (1)

[he] is a member of a protected class; (2) [his] employer took

an adverse employment action against [him]; (3) [he] was

otherwise qualified; and (4) [his] position remained open or was

filled by a person with qualifications similar to [his].”

Johnson,

n.6 (citing García v. Bristol–Myers

Squibb Co.,

, 30 n.2 (1st Cir. 2008); Rodriguez–

Cuervos v. Wal–Mart Stores, Inc.,

(1st Cir.

1999)).

B. Prima Facie Case

It is not entirely certain that Dipigney has established a

prima facie case. There is no problem with the first three

elements. Dipigney’s West Indian heritage places him in a

protected class for purposes of a claim for national-origin

discrimination, and his discharge was an adverse employment

action. AutoZoners does not contest the third element, and all

the evidence suggests Dipigney was otherwise qualified for his

position. The difficulty arises with the fourth element.

Dipigney has produced no evidence concerning what happened

to his position after he was discharged, i.e., whether the

position remained open or was filled by a person outside his

8 protected class. But, the real gravamen of the fourth element

concerns whether the adverse employment action took place under

circumstances that would give rise to an inference of

discrimination. In cases involving employment actions other

than discharge, courts have turned to evidence of disparate

treatment, see, e.g., Sellers v. U.S. Dep’t of Defense,

, 91 n.65 (D.R.I. 2009), and that appears to be

Dipigney’s approach to establishing the fourth element of his

prima facie case. He points to evidence that one AutoZoners

employee (John Burrows) carried a knife at work without being

discharged and another (Iggy Farcone) carried a gun. Leaving

aside AutoZoners’ challenges to the admissibility of this

evidence, Dipigney’s attempt to establish disparate treatment

suffers from a more fundamental problem; the lack of

comparability.

When making an argument based upon disparate treatment, “a

plaintiff must show that others similarly situated to him in all

relevant respects were treated differently by the employer.”

Cham,

(quoting García,

; citing

Kosereis v. Rhode Island,

(1st Cir. 2003))

(emphasis, internal quotation marks, and brackets omitted).

Here, assuming for the sake of argument that Dipigney has

produced sufficient evidence that two fellow employees outside

9 his protected class were not discharged for carrying weapons at

work, he has fallen short of showing that he was similarly

situated to those employees in all relevant respects.

Specifically, he has not shown that those violations of company

policy were the subject of customer complaints or were known to

Thompson or any other AutoZoners District Manager. Moreover,

with regard to Burrows, Thompson has stated under oath that

“[d]uring Burrows’ employment, [he] was never aware and never

heard of Burrows having knives or other weapons with him on

store premises – nor did [he] ever receive a customer complaint

regarding Burrows alleged possession of a weapon.” Def.’s Mem.

of Law, Thompson Decl. (doc. no. 16-26) ¶ 18. If Thompson knew

about the violations of company policy by other employees that

Dipigney identifies, and did not discharge the employees

involved, that might well be enough to establish the fourth

element of Dipigney’s prima facie case. But, it is Dipigney’s

burden to establish the requisite similarity between himself and

his purported comparators, and he has not done so.

In sum, the court is not at all certain that Dipigney has

established a prima facie case of national-origin

discrimination. But, as the burden of doing so is a modest one,

see Ahmed v. Johnson,

(1st Cir. 2014) (quoting

Lockridge v. Univ. of Me. Sys.,

(1st Cir.

10 2010)), the court assumes that Dipigney has established his

prima facie case and, as a consequence, will continue with the

McDonnell-Douglas analysis. AutoZoners has produced evidence of

a legitimate non-discriminatory reason for discharging Dipigney,

his possession of a firearm on company property, in violation of

company policy. When, as here, “the defendant proffers

legitimate reasons for the adverse action, the plaintiff must

then prove by a preponderance that the proffered reasons by the

defendant are a pretext for unlawful discrimination.” Aly v.

Mohegan Council, Boy Scouts of Am.,

(1st Cir.

2013) (citing St. Mary’s Honor Ctr. v. Hicks,

(1993)).

C. Pretext

“Where a plaintiff makes out a prima facie case and the

issue becomes whether the employer’s stated nondiscriminatory

reason is a pretext for discrimination, courts must be

particularly cautious about granting the employer’s motion for

summary judgment.” Kelley v. Corr. Med. Servs., Inc.,

(1st Cir. 2013) (quoting Hodgens v. Gen. Dynamics

Corp.,

(1st Cir. 1998); citing Stepanischen v.

Merchants Despatch Transp. Corp.,

(1st Cir.

1993) (internal quotation marks and alterations omitted).

Still, “summary judgment may be appropriate even where elusive

11 concepts such as motive or intent are at issue.” Kelley,

(quoting Vives v. Fajardo,

(1st Cir.

2007); citing Benoit v. Tech. Mfg. Corp.,

(1st

Cir. 2003)) (internal quotation marks omitted). This is one of

those cases in which summary judgment in favor of the defendant

on the issue of pretext is appropriate.

“[T]here is no mechanical formula for finding pretext.”

Kelley,

(quoting Che v. Mass. Bay Transp. Auth.,

(1st Cir. 2003)).

Instead, “[i]t is the type of inquiry where ‘everything depends on the individual facts.’” [Che, 342 F.3d at] at 40 (quoting Thomas v. Eastman Kodak Co.,

(1st Cir. 1999)). The inquiry focuses on whether the employer truly believed its stated reason for taking action adverse to the employee. See Feliciano de la Cruz v. El Conquistador Resort & Country Club,

(1st Cir. 2000).

Kelley,

(parallel citations omitted); see also

Gray v. N.E. Tel. & Tel. Co.,

, 256 (1st Cir. 1986)

(explaining that “in assessing pretext . . . [the court’s] focus

must be on the perception of the decisionmaker, i.e., whether

[the decisionmaker] perceived the plaintiff as violating . . .

company policies and whether this perception was credible and

reasonable”).

No reasonable jury could conclude that Thompson did not

reasonably believe that he terminated Dipigney because he

brought a gun to work in violation of AutoZoners’ company

12 policy. Thompson received a complaint from a customer that

Dipigney was carrying a gun in the Hooksett store. Dipigney

admitted to Haluga that he had done so. The security provision

of AutoZoners’ Store Handbook and Code of Conduct, quoted above,

may be reasonably construed as barring employees from bringing

guns onto company property.

Dipigney devotes considerable attention to explaining why

it was reasonable for him to believe that his possession of a

gun on company property was permissible. That Dipigney

reasonably believed that company policy allowed him to carry his

gun on company property does not preclude Thompson from having a

reasonable belief that such conduct was prohibited. The sine

qua non of ambiguity is the ability of a single word, phrase, or

sentence to support more than one reasonable interpretation, cf.

United States v. Suarez-Gonzalez,

(1st Cir. 2014);

United States v. Okoye,

(1st Cir. 2013)), and

Dipigney’s principal criticism of AutoZoners’ policy on weapons

is its ambiguity. In short, because no reasonable jury could

conclude that Thompson did not believe the reason he gave for

discharging Dipigney, AutoZoners is entitled to judgment as a

matter of law on Dipigney’s discrimination claims.

That said, the court turns, briefly, to Dipigney’s three

arguments against summary judgment. First, he argues that

13 AutoZoners’ inconsistent statements in discovery regarding who

made the decision to discharge him are sufficient to render its

explanation for his discharge unworthy of credence. To the

contrary, AutoZoners has consistently maintained that Dipigney

was discharged for carrying a gun on company property, in

violation of company policy. The company’s statements, during

discovery, concerning who made the decision to discharge

Dipigney have no bearing on the relevant inquiry and,

furthermore, notwithstanding Dipigney’s apparent contention that

AutoZoners tried to hide Thompson’s role as the ultimate

decisionmaker, this order proceeds on the assumption that

Thompson did make the decision to discharge Dipigney.

Second, Dipigney argues that pretext is established by the

disparate treatment he received. “Disparate treatment may be

‘competent proof that the explanation given for the challenged

employment action was pretextual.’” Aly,

(quoting Straughn v. Delta Air Lines, Inc.,

, 43–44

(1st Cir. 2001)). But, as the court has already explained,

Dipigney has identified no comparators who were “similarly

situated . . . in all relevant respects,” Aly,

.

Accordingly, his disparate-treatment argument fails.

Finally, Dipigney points to Thompson’s comment about his

accent in May of 2011 as a fact that precludes summary judgment

14 because a reasonable jury could find that to have been an

expression of discriminatory animus. Dipigney frames his

argument this way:

Given the evidence that District Manager Thompson illegally discriminated against Mr. Dipigney based on his accent, and the evidence . . . that District Manager Thompson made the ultimate decision to fire Mr. Dipigney, a rational jury could find that national origin discrimination motivated Mr. Dipigney’s termination.

Pl.’s Mem. of Law (doc. no. 25-2) 12. Dipigney relies upon

Kelley for the proposition that “[o]ne well-established method

of demonstrating pretext is ‘to show that discriminatory

comments were made by the key decisionmaker or those in a

position to influence the decisionmaker,”

(quoting Santiago–Ramos v. Cent’l P.R. Wireless Corp.,

(1st Cir. 2000); citing Domínguez–Cruz v. Suttle Caribe,

Inc.,

, 433 n.6 (1st Cir. 2000); Palasota v. Haggar

Clothing Co.,

(5th Cir. 2003).

In Kelley, a case involving a retaliation claim under the

Americans with Disabilities Act, the decisionmaker made numerous

comments and took numerous actions that “were consistently

linked to [the plaintiff]’s disability and her need for

accommodation,”

. Those comments and actions, in

turn, established retaliatory animus. Here, by contrast, the

decisionmaker made a single comment about Dipigney’s accent

15 eleven months before Dipigney’s discharge and made that

comment in response to statements from customers that they had

difficulty understanding Dipigney on the telephone. And, in the

accent-animus case upon which Dipigney relies, the court ruled

that discriminatory animus was demonstrated by a supervisor’s

harassment and negative treatment of the plaintiff coupled with

her remark to the plaintiff that “people would be offended by

his accent.” Liberman v. Brady,

(E.D.N.Y. 1996). Here, by contrast, Thompson did not suggest

that there was anything offensive about Dipigney’s accent, only

that some of AutoZoners’ commercial customers had difficulty

understanding it. Animus against unsuccessful telephone

communications is hardly the same thing as animus against people

from the West Indies. Under the circumstances of this case, no

rational jury could find that Thompson’s comment in May of 2011

demonstrated animus that was the basis for Dipigney’s discharge.

That conclusion is bolstered by the following additional

undisputed facts: (1) after Thompson made his comment about

Dipigney’s accent, he received a promotion, two pay raises, and

a positive performance review, notwithstanding Thompson’s

purported discriminatory animus; and (2) Thompson made his

decision to discharge Dipigney after an investigation conducted

by, and a recommendation for Dipigney’s termination that came

16 from, Nick Haluga, to whom Dipigney ascribes no discriminatory

animus.

Conclusion

For the reasons described above, AutoZoners’ motion for

summary judgment, document no. 16 is granted. The Clerk of the

Court shall enter judgment in accordance with this order and

close the case.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

October 2, 2014

cc: Michael D. Billok, Esq. Nicholas F. Casolaro, Esq. John J. Kennedy, Esq. Benjamin T. King, Esq. Jason R.L. Major, Esq. Jennifer L. Parent, Esq.

17