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Juan Espinal v. National Grid Ne Holdings 2

August 23, 2012



The opinion of the court was delivered by: Lynch, Chief Judge.

Before Lynch, Chief Judge, Lipez and Howard, Circuit Judges.

Juan Espinal appeals from entry of summary judgment against his claims of race-based disparate treatment and of hostile work environment against National Grid NE Holdings 2, LLC, and Keyspan New England, LLC (collectively, "National"). Espinal v. Nat'l Grid NE Holdings 2, LLC, 794 F. Supp. 2d 285 (D. Mass. 2011). His complaint alleges National punished him more harshly for a rules violation, on the basis of his Hispanic heritage, than it did a similarly situated white co-worker and permitted other National employees to harass him, in violation of Title VII, 42 U.S.C. § 2000e et seq. We affirm.


A. Factual Background

We review the facts in the light most agreeable to plaintiff, drawing all reasonable inferences in his favor, Mulero-Rodriguez v. Ponte, Inc., 98 F.3d 670, 672 (1st Cir. 1996), and limit our discussion to those facts relevant on appeal.

National is a public utility company that sells and distributes natural gas to residential, commercial, and industrial customers. As part of its business, National maintains a large underground gas distribution system, which from time to time leaks. These leaks pose a significant public safety hazard, and the Massachusetts Department of Public Utilities requires National to dispatch a trained employee to any reported leak within sixty minutes.

Since December 2001, Espinal has worked as a Customer Meter Service Technician ("CMST") at National. He is currently a senior technician at the company's Beverly, Massachusetts location ("Beverly yard"). As a CMST, Espinal is responsible for investigating reported gas leaks while "on-duty" (i.e., during his regularly scheduled hours).*fn1 Additionally, one out of every four weeks, Espinal is "on-call." While on-call, Espinal must respond to gas leak pages from midnight to 8:00 a.m. and is the only Beverly yard employee scheduled to do so during these hours.

In 2004, Espinal was twice disciplined for failing to respond to pages while on-call. On March 17, 2004, Espinal did not respond to a page at 6:25 a.m. and National was unable to dispatch an employee within the sixty-minute time frame. Espinal received a verbal warning from his supervisors on the same day. Again, on September 1, 2004, Espinal did not respond to a page at 5:28 a.m. The dispatcher paged Espinal a second time, contacted him via his Nextel phone, and called his home phone number, all to no avail. After a disciplinary meeting on September 3, 2004, Espinal received a five-day suspension.*fn2

The events giving rise to Espinal's discrimination claims began on July 10, 2005, when a dispatcher mistakenly paged Espinal while he was not on-call. Espinal suspected that another CMST had gone unpunished for failing to answer a gas leak page, and asked his union to obtain the "Order Details" (i.e., dispatch records) for that night.

The union requested the Order Details from National on July 19, 2005, to investigate "the potential subject of a grievance," and received them on August 25, 2005. On December 22, 2005, after reviewing the records, the union informed National that a missed page had gone unpunished, and National initiated a full investigation.*fn3

National did not complete its investigation until October 2006, approximately ten months after receiving the email from the union. Espinal alleges that this delay was caused by National's discriminatory purposes, while the company submits it was attributable to scheduling conflicts, illnesses, and other exigencies, including a union rule requiring a showing of "good cause" for any disciplinary action. On the basis of the records and information collected, National determined that Daniel Racki -- a white CMST -- had missed the July 10 page. On November 6, 2006, Racki received a five-day suspension.

On September 27, 2006, Espinal filed a Charge of Discrimination alleging disparate treatment with the Massachusetts Commission Against Discrimination ("MCAD"). At a subsequent union meeting in November 2006, held off National's premises and after company hours, Espinal's co-workers learned of his MCAD filing and of Racki's suspension, and they gave plaintiff a "rough night." Espinal alleges that his co-workers, most of whom are white, called him a "rat" and a "spic" and accused him of "outing" Racki. Following the meeting, National supervisors met with Espinal to discuss these events. Espinal refused to disclose the names of his harassers and, upon further questioning, walked out of the meeting entirely.

On December 25, 2006, Espinal found the words "the rat" scrawled on his company vehicle. Espinal reported the vandalism but again refused to disclose the names of any co-workers who had harassed him. A manager of industrial relations at National gave Espinal his personal cell phone number and instructed plaintiff to call directly if another incident occurred. National also held a meeting with union members and officials on January 5, 2007, to reiterate the company's zero ...

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