UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Pedro M. Florez Duran

v. Civil No. 16-cv-148-AJ Opinion No.

Environmental Soil Management, Inc.

MEMORANDUM AND ORDER

Plaintiff Pedro M. Florez Duran (“Florez”) brings suit

against his former employer, Environmental Soil Management, Inc.

(“ESM”), alleging claims under Title VII of the Civil Rights Act

of 1964,

et seq. and

, and a

claim for wrongful discharge under New Hampshire law. ESM moves

for partial summary judgment, doc. no. 13, and Florez objects,

doc. no. 14.1 The court held a hearing on the motion on May 26,

2017. For the following reasons, ESM’s motion is granted in

part and denied in part.

Summary Judgment Standard

Summary judgment is appropriate where “there is no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also

Xiaoyan Tang v. Citizens Bank, N.A.,

(1st Cir.

2016). “An issue is ‘genuine’ if it can be resolved in favor of

1 ESM also filed a reply to Florez’s objection. See doc. no. 16. either party, and a fact is ‘material’ if it has the potential

of affecting the outcome of the case.” Xiaoyan Tang,

(internal quotation marks and citations omitted). At the

summary judgment stage, the court “view[s] the facts in the

light most favorable to the non-moving party” and “draw[s] all

reasonable inferences in the nonmovant’s favor . . . .” Garmon

v. Nat’l R.R. Passenger Corp.,

(1st Cir. 2016)

(citation and quotation marks omitted). The court will not,

however, credit “conclusory allegations, improbable inferences,

and unsupported speculation.” Fanning v. Fed. Trade Comm’n,

(1st Cir. 2016) (citation and quotation marks

omitted) cert. denied,

(2017).

“A party moving for summary judgment must identify for the

district court the portions of the record that show the absence

of any genuine issue of material fact.” Flovac, Inc. v. Airvac,

Inc.,

(1st Cir. 2016). Once the moving party

makes the required showing, “‘the burden shifts to the nonmoving

party, who must, with respect to each issue on which [it] would

bear the burden of proof at trial, demonstrate that a trier of

fact could reasonably resolve that issue in [its] favor.’”

(citation omitted). “This demonstration must be accomplished by

reference to materials of evidentiary quality, and that evidence

must be more than ‘merely colorable.’”

(citations omitted).

“At a bare minimum, the evidence must be ‘significantly

2 probative.’”

(citation omitted). The nonmoving party’s

failure to make the requisite showing “entitles the moving party

to summary judgment.”

Background

ESM is in the business of decontamination of soil and runs

a decontamination facility in Loudon, New Hampshire. ESM hired

Florez as a laborer on May 19, 2003.2 Florez, who is Hispanic

and grew up in Cuba, speaks Spanish as his first language, and

was a lawful permanent resident of the United States for the

duration of his eleven-year employment with ESM.

I. Harassment and Differential Treatment

Throughout his time with ESM, Florez was frequently

harassed and physically assaulted by his fellow employees, and

treated differently than his coworkers by his supervisors. For

example, Florez’s coworkers called the police when they found

out that Florez’s car had a false inspection sticker and that he

did not have a valid driver’s license. Florez was also

suspended for a week without pay after he got into a physical

altercation with another employee who had cursed at Florez. In

addition, Florez’s coworkers intentionally injured him with a

welding machine, beat him up, and threatened to kill him.

2 Florez’s work consisted of hand-picking objects out of soil to prepare the soil for treatment. 3 Florez felt that these actions were motivated by ESM employees’

animosity toward him for being Cuban.

Florez’s coworkers also frequently made specific reference

to him being Cuban. Several times during the course of his

employment, Florez found garbage in his locker and notes that

referred to him as a “Cuban ass.” His coworkers also told him

on several occasions to go back to Cuba and called him a “stupid

Cuban asshole.”

Although Florez’s supervisors were aware of all these

incidents, they took little or no action to redress them. In

fact, at some point, Florez’s supervisors told him that any

future arguments with his coworkers would his result in his

termination. Florez felt he could no longer report any

harassment or arguments for fear of being fired.

In addition, Florez’s supervisors themselves treated him

differently than his non-Cuban coworkers. For example, Florez

was singled out for minor safety violations when his non-Cuban

coworkers were not cited for similar violations. Further, his

supervisors frequently denied his requests for time off from

work, but granted his non-Cuban coworkers’ requests.

II. Florez’s Termination from ESM

On June 17, 2014, one of Florez’s supervisors, an Operation

Manager named Andrew Drobat, approached Florez and asked him,

4 “what did you tell the new guy?” Florez did not know what

Drobat was referring to, and responded that he had not said

anything. Drobat told Florez to “take a couple of days off

while I find out what happened.”

On June 19, 2014, Florez came to work to pick up his

paycheck. Florez asserts that Drobat promised him a raise and

told him to return to work on Monday, June 23.

Florez asserts that when he returned to work on June 23,

another supervisor, General Manager Marc Aubrey, terminated him,

telling him that the “other guys” did not want to work with him

and that his physical safety was in danger. Florez states that

he later spoke with Drobat on the telephone, and that Drobat

told him that “the guys told Marc they don’t want you there

anymore.”

III. Florez’s Complaint with the EEOC

On April 15, 2015, Florez filed a charge of discrimination

with the United States Equal Employment Opportunity Commission

(“EEOC”) and filed the same charge with the New Hampshire Human

Rights Commission. In his EEOC charge of discrimination, Florez

listed discrimination on the basis of race, national origin, and

retaliation. See doc. no. 14-2 at 1. Florez also wrote in his

charge of discrimination that he is “of Cuban race and

nationality . . . .” Id. at 2.

5 On January 19, 2016, the EEOC issued Florez a Notice of

Right to Sue. This action followed.

Discussion

Florez brings three claims against ESM: (1) Violation of

Title VII and

for discrimination on the basis

of race and national origin (“Count I”); (2) Violation of Title

VII and

for harassment/hostile work environment

on the basis of race and national origin (“Count II”); and (3)

Wrongful Termination (“Count III”). ESM moves for partial

summary judgment on Counts I and II to the extent those claims

are based on Florez’s race, and moves for summary judgment on

Count III in its entirety.

I. Title VII and § 1981 Claims

Title VII makes it unlawful for an employer to “fail or

refuse to hire or 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 [or] color.” 42 U.S.C. §

2000e–2(a)(1). Similarly,

(a) provides that

“[a]ll persons within the jurisdiction of the United States

shall have the same right . . . to make and enforce contracts,

to sue, be parties, give evidence, and to the full and equal

benefit of all laws and proceedings for the security of persons

6 and property as is enjoyed by white citizens . . . .” Thus,

both statutes prohibit employers from discriminating against an

employee on the basis of race.

Both Title VII and § 1981 allow for a plaintiff to recover

“on a hostile work environment theory when ‘the workplace is

permeated with discriminatory intimidation, ridicule, and insult

that is sufficiently severe or pervasive to alter the conditions

of the victim’s employment and create an abusive working

environment.’” Wilson v. Moulison N. Corp.,

, 6–7

(1st Cir. 2011) (quoting Harris v. Forklift Sys., Inc.,

(1993)); see also Riesgo v. Heidelberg Harris, Inc.,

(D.N.H. 1997) (“A plaintiff alleging a

racially hostile work environment may bring a claim against his

employer under Title VII or § 1981.”). “Title VII closely

resembles § 1981 and generally applies the same analytical

framework.” Dalomba v. Simonsen, No. 15-cv-272-PB,

, at *7 n.8 (D.N.H. Mar. 30, 2016) (citing Conward v.

Cambridge Sch. Comm.,

(1st Cir. 1999)).

ESM argues that it is entitled to summary judgment on

Counts I and II, which allege violations of Title VII and §

1981, to the extent they are based on Florez’s race. ESM

asserts that although Florez believes that ESM employees

discriminated against him for being Cuban, Cuban is not a race.

It also asserts that, regardless, the record evidence

7 demonstrates that none of the incidents underlying Florez’s

claims in Count I or II is based on Florez being Cuban.

A. Cuban as a Race

In support of its argument that Cuban is not a race for

purposes of a Title VII or § 1981 claim, ESM cites Padron v.

Wal-Mart Stores, Inc.,

(N.D. Ill. 2011).

In Padron, the district court granted the defendant’s motion to

dismiss plaintiffs’ Title VII claim based on race because the

plaintiffs alleged they were discriminated against for being

Cuban. The court in Padron noted that “[u]nlike the term

‘Hispanic,’ ‘Cuban’ refers to a specific country of origin, not

an ethnicity.”

. The court held that, therefore,

the plaintiffs had failed to allege a claim for racial

discrimination under Title VII.

ESM’s reliance on Padron is misplaced. In that case, the

court’s analysis focused on whether the plaintiffs’ claims under

Title VII based on racial discrimination were reasonably related

to their EEOC charges. In their EEOC complaint, plaintiffs had

checked only the box for national origin discrimination, and had

listed their national origin as Cuban. The EEOC found that the

defendant had discriminated against the plaintiffs on the basis

of their national origin, which the EEOC described as Cuban.

The Padron court held that, as such, plaintiffs’ race-based

8 discrimination claim was “outside the scope of Plaintiffs’ EEOC

charges.”

.

In contrast, Florez’s complaint with the EEOC asserts

discrimination on the basis of both race and national origin,

and he specifically states in his charge of discrimination that

he is of “Cuban race and nationality.” Doc. no. 14-2 at 2.

Florez alleges in his complaint that he was harassed “due to his

Cuban race and nationality . . . .” Doc. no. 1 at ¶ 14. Viewed

in light most favorable to Florez and drawing all inferences in

his favor, the record evidence could support a claim that ESM

employees discriminated against Florez based on more than his

having been born in Cuba, but instead based on both his place of

origin and his ethnic background. See Saint Francis Coll. v.

Al-Khazraji,

(1987) (Brennan, J., concurring)

(noting that “in the Title VII context, the terms [national

origin, ancestry, and ethnicity] overlap as a legal matter”);

Cuello-Suarez v. Autoridad de Energia Electrica de P.R.,

(D.P.R. 1990) (denying motion to dismiss a

race-based discrimination claim under § 1981 based on plaintiff

being a citizen of the Dominican Republic because “plaintiff’s

race and her national origin are ‘identical as a factual matter’

and the pleadings and the answers to the interrogatories make it

very clear that she is not only alleging discrimination on the

basis of her place of origin without regard for her ethnic

9 background”). Therefore, ESM has not shown that it is entitled

to summary judgment on Counts I and II on that basis.

B. Race-based Discrimination and Harassment

ESM also argues even if the court considers “Cuban” a race

for purposes of Title VII and § 1981, its employees’ actions

toward Florez were not related to him being Cuban and,

therefore, cannot support a race-based discrimination or hostile

work environment claim. That is simply not the case. Florez

testified at his deposition that his coworkers called him a

“Cuban piece of shit” and wrote that phrase on his locker. Doc.

no. 14-6 at 29. He further testified that they left a note in

his locker that said “Cuban ass,” id. at 35, and would tell him

to go back to his country, id. at 40. Viewed generously to

Florez, the record evidence supports a claim that many acts of

discrimination or harassment at ESM were not “neutral,” as ESM

describes them, but were based on Florez being Cuban.3

3 ESM also argues that even if the record evidence could support a race-based hostile work environment claim under Title VII and § 1981 (Count II), no reasonable jury could conclude that Florez was terminated because of racial discrimination and, therefore, ESM is entitled to summary judgment as to Count I. Even assuming without deciding that ESM is correct, Florez’s discrimination claim in Count I alleges, and the record evidence, viewed favorably to Florez, shows, several incidents of racial discrimination by Florez’s supervisors during the course of his employment, including being cited for minor safety violations and having his leave requests denied. Therefore, whether the record evidence could support a claim of racial 10 For those reasons, ESM is not entitled to summary judgment

on Counts I or II.

II. Wrongful Termination

In order to prevail on a wrongful termination claim under

New Hampshire law, “a plaintiff must establish two elements:

one, that the employer terminated the employment out of bad

faith, malice, or retaliation; and two, that . . . the

employment [was terminated] because the employee performed acts

which public policy would encourage or . . . refused to perform

acts which public policy would condemn.” Short v. Sch. Admin.

Unit No. 16,

(1992) (citing Cloutier v. A & P

Tea Co., Inc.,

, 921–22 (1981)). “[O]rdinarily the

issue of whether a public policy exists is a question for the

jury, [but] at times the presence or absence of such a public

policy is so clear that a court may rule on its existence as a

matter of law.”

(internal citation omitted).

“Bad faith or malice on the part of an employer may be

established under New Hampshire law where (i) an employee is

discharged for pursuing policies condoned by the employer, (ii)

the record does not support the stated reason for the discharge,

discrimination based on Florez’s termination is not dispositive of his claim in Count I, as that claim is not based solely on Florez’s termination.

11 or (iii) disparate treatment was administered to a similarly

situated employee.” Straughn v. Delta Air Lines, Inc.,

(1st Cir. 2001) (citing Cloutier,

at 921–

22).

ESM argues that there is no evidence in the record that it

terminated Florez out of bad faith, malice, or retaliation. It

further argues there is no evidence that Florez was terminated

for performing acts that public policy would encourage or for

refusing to perform acts which public policy would condemn.

A. Bad Faith, Malice, or Retaliation

In an attempt to meet the bad faith, malice, or retaliation

element of his wrongful termination claim, Florez cites to the

various harassment, physical abuse, and differential treatment

by his supervisors that he allegedly suffered while at ESM. The

problem for Florez, however, is that the question is not whether

ESM or its employees acted with bad faith, malice, or

retaliation toward him generally, but rather whether ESM

terminated Florez out of bad faith, malice, or retaliation.

See, e.g., Grivois v. Wentworth-Douglass Hosp., No. 12-cv-131-

JL,

, at *1 (D.N.H. Jan. 28, 2014) (holding that a

wrongful termination claim under New Hampshire law “turns on why

the defendant fired the plaintiff”).

12 The record evidence shows, and Florez does not dispute,

that General Manager Aubrey terminated Florez because he felt

his safety was in danger due to his coworkers’ animosity towards

him. Regardless of Florez’s coworkers’ and supervisors’

motivation for their treatment of him throughout his employment,

no evidence in the record suggests that Aubrey’s termination

decision was made in bad faith, with malice, or in an effort to

retaliate against Florez. Therefore, Florez cannot meet the

first element of a wrongful termination claim.

B. Public Policy

Even if the record evidence could support the first element

of a wrongful termination claim, it cannot support the second—

that ESM terminated Florez for performing acts which public

policy would encourage or for refusing to perform acts which

public policy would condemn. Florez raises two arguments in an

attempt to meet this prong.4

First, he asserts that his supervisors were aware that he

was being threatened and, rather than addressing the situation,

terminated him. In doing so, ESM “created a policy that would

discourage employees from reporting when their or others’ safety

The public policy necessary for the second prong of a 4

wrongful termination claim cannot be based on the prohibition against discrimination in Title VII. Smith v. F.W. Morse & Co.,

(1st Cir. 1996). 13 was at risk because the employee whose safety was in danger

would now be at risk of being terminated.” Doc. no. 14-1 at 15.

Even if true, however, any “policy” created by ESM in

terminating Florez is not relevant to his wrongful termination

claim. To survive summary judgment, there must be a disputed

material fact as to whether Florez was terminated for doing

something public policy would encourage or for not doing

something that public policy would condemn. Even if Aubrey’s

termination decision discouraged future employees from reporting

potential harassment or safety violations, that fact is not

relevant to Florez’s claim here.

Second, Florez notes that Drobat told him to take a few

days off in June of 2014 to investigate a possible incident, and

told Florez to return to work the following Monday. He asserts

that ESM subsequently claimed in its response to Florez’s EEOC

complaint that Florez had quit, rather than been terminated. He

argues that ESM “should not be permitted to tell Plaintiff to

take a few days off and then terminate him for doing just that.

This is a violation of public policy.” Doc. no. 14-1 at 15.

Despite Florez’s suggestion, there is no evidence in the

record that Aubrey terminated Florez for taking a few days off.

Instead, viewed favorably to Florez, the record evidence shows

that Aubrey terminated Florez because his coworkers did not like

him and because he could not guarantee Florez’s safety. Thus,

14 Florez has not pointed to a genuine issue of material fact as to

whether he was terminated for doing something public policy

would encourage or for not doing something that public policy

would condemn.5

Accordingly, ESM is entitled to summary judgment on

Florez’s wrongful termination claim.

Conclusion

For the foregoing reasons, defendant’s motion for partial

summary judgment (doc. no. 13) is granted as to Count III and

denied as to Counts I and II.

SO ORDERED.

__________________________ Andrea K. Johnstone United States Magistrate Judge

July 18, 2017

cc: Kathleen A. Davidson, Esq. Beth A. Deragon, Esq. Jennifer L. Parent, Esq.

5In any event, Florez does not allege in his complaint that ESM terminated him for taking time off. 15