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Hubbard v. Tyco Integrated Cable Systems, Inc.

United States District Court, First Circuit

December 3, 2013

Greg Hubbard
Tyco Integrated Cable Systems, Inc. No. 2013 DNH 165 P


LANDYA McCAFFERTY, Magistrate Judge.

Greg Hubbard, a former employee of Tyco Integrated Cable Systems, Inc. ("Tyco") who was born and raised in England, is suing Tyco in five counts. He asserts: (1) two claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.; and (2) three claims under New Hampshire's Law Against Discrimination, N.H. Rev. Stat. Ann. ("RSA") ch. 354-A.[1] Hubbard claims that he was subjected to a hostile work environment because of his national origin, and that Tyco terminated his employment because of his national origin and in retaliation for his complaints about discrimination in the workplace. Before the court are: (1) Tyco's motion for summary judgment; (2) Tyco's motion to strike certain material from Hubbard's Supplemented Memorandum of Law in Support of Objection to Defendant's Motion for Summary Judgment; and (3) Hubbard's Motion to Correct the Record. Each motion is duly opposed. The court heard oral argument on the motion for summary judgment on November 1, 2013. For the reasons that follow, Tyco's motion for summary judgment is granted in part and denied in part, its motion to strike is denied as moot, and Hubbard's motion to correct the record is granted.

Motion to Strike

Tyco moves "the Court [to] strike from the summary judgment record all conclusory allegations and improbable inferences that Plaintiff... has failed to substantiate with competent evidence." Def.'s Mot. to Strike (doc. no. 51) 1. In support of that request, Tyco asserts that: (1) Hubbard's Supplemented Memorandum of Law in Support of Objection to Defendant's Motion for Summary Judgment, document no. 56, includes factual references that lack any record citations; and (2) in various places where the memorandum does include record citations, the record does not support the proposition for which Hubbard has cited it. The court shares many of Tyco's concerns. However, because the background section in this order draws from Hubbard's memorandum only facts that are adequately supported by the record, Tyco's motion to strike is denied as moot.

Motion to Correct the Record

Hubbard also moves the court to take note of: (1) several corrections of erroneous citations to the record in his supplemented memorandum of law; and (2) one correction to a statement he made at oral argument. With respect to Hubbard's correction of citation errors, his motion is granted. In his second request, Hubbard asks the court to allow him to replace his representation, at oral argument, that he had not previously challenged the authenticity of a statement purportedly written by Christopher Long, and produced by Tyco in support of its motion for summary judgment, with a representation that he had, in fact, challenged the authenticity of that statement. Hubbard's second request is also granted, but in light of Tyco's submission of an affidavit from Long that authenticates his written statement, see doc. no. 68, Hubbard's authenticity challenge is, in the end, unavailing.

Motion for Summary Judgment

A. Summary Judgment Standard

"Summary judgment is warranted where there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.'" McGair v. Am. Bankers Ins. Co. of Fla. , 693 F.3d 94, 99 (1st Cir. 2012) (quoting Fed.R.Civ.P. 56(a); citing Rosciti v. Ins. Co. of Penn. , 659 F.3d 92, 96 (1st Cir. 2011). "In determining whether a genuine issue of material fact exists, [the court] construe[s] the evidence in the light most favorable to the non-moving party and make[s] all reasonable inferences in that party's favor." Markel Am. Ins. Co. v. Díaz-Santiago , 674 F.3d 21, 30 (1st Cir. 2011) (citing Flowers v. Fiore , 359 F.3d 24, 29 (1st Cir. 2004)).

"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. , 498 F.3d 9, 12 (1st Cir. 2007) (quoting Acosta v. Ames Dep't Stores, Inc. , 386 F.3d 5, 7 (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. , 556 F.3d 20, 25 (1st Cir. 2009) (citations and internal quotation marks omitted).

"The nonmovant may defeat a summary judgment motion by demonstrating, through submissions of evidentiary quality, that a trialworthy issue persists." Sánchez-Rodríguez v. AT&T Mobility P.R., Inc. , 673 F.3d 1, 9 (1st Cir. 2012) (quoting Iverson v. City of Bos. , 452 F.3d 94, 98 (1st Cir. 2006)). "However, a conglomeration of conclusory allegations, improbable inferences, and unsupported speculation is insufficient to discharge the nonmovant's burden.'" Sánchez-Rodríguez , 673 F.3d at 9 (quoting DePoutot v. Raffaelly , 424 F.3d 112, 117 (1st Cir. 2005)). "Rather, the party seeking to avoid summary judgment must be able to point to specific, competent evidence to support his [or her] claim." Sánchez-Rodríguez , 673 F.3d at 9 (quoting Soto-Ocasio v. Fed. Ex. Corp. , 150 F.3d 14, 18 (1st Cir. 1998)) (internal quotation marks omitted).

B. Background

Unless otherwise indicated, the following facts are undisputed.

Hubbard spent his childhood in England and speaks with a British accent. In the fall of 2007, he began working for Tyco as a T3 Operator, which was an entry-level position. While working as a T3 Operator, Hubbard experienced no discrimination based upon his national origin.

In November of 2007, Hubbard was promoted to the position of T1 Inspector. In that position, he inspected the work of operators in Tyco's Repeater Assembly Building ("RAB"). Before he accepted the promotion, some of his co-workers advised him not to accept it, and warned him that inspectors were generally given a hard time by the operators whose work they inspected. After Hubbard was promoted, he became the target of hostile comments from several operators who referred to his national origin in the following ways:

• After Hubbard rejected a part made by Derek Thompkins, Thompkins called him an "English mother" and a "limie fuck." Def.'s Statement of Undisputed Material Facts (hereinafter "Def.'s Facts"), Ex. D, Hubbard Dep. (doc. no. 32-4) 122:4, 11.
• Linda Tarnawski told an employee Hubbard was training: "[Y]ou don't want to learn anything from him. He's an English fuck up. He don't know what he's talking about. What would he know if he's English anyway." Id. at 126:14-17.
• Tarnawski left notes on parts saying "have the English guy not inspect this, " id. at 126:23, and "[d]on't let the English guy touch it, " id. at 127:17-18.
• Katherine Merrill once told an employee Hubbard was training: "you don't want to listen to that English faggot because he doesn't know what he's talking about." Id. at 129:11-13.
• After Hubbard called out Bill Rogers for his conduct toward a co-worker of Asian descent, Rogers said: "Mind your fucking business... you English faggot." Id. at 135:1-10.
• Rogers said things about Hubbard's national origin daily, see id. at 135:14-15, once wrote "English faggot" in the condensation on a window in a door that Hubbard frequently used, id. at 135:20, and once referred to Hubbard as "that English faggot right there, " id. at 136:17.

Some Tyco employees resented Hubbard because he was new, had been promoted quickly, held authority, was good at his job, was a hard worker, and worked a large amount of overtime. Moreover, the operators who made comments that included references to Hubbard's national origin often did so in the context of challenges to his status and performance as an inspector.

In late December of 2008, Hubbard was involved in an altercation with Bill Rogers, an operator. Both Hubbard and Rogers were suspended, and Hubbard was issued an Employee Warning Notice ("Warning") that provided, in pertinent part:

On Wednesday, 12/24/2008 you were suspended for one (1) week after an altercation with Bill Rogers on Tuesday, 12/23/2008 that resulted in you having inappropriate conversations with fellow inspectors and operators regarding the incident after you spoke with your manager and HR. Whenever you are privy to certain information, especially information regarding an ongoing investigation, you need to keep those facts to yourself and not spread that information to fellow employees. This type of behavior creates animosity with fellow employees.

Vanderzanden Aff., Ex. 7 (doc. no. 34-7), at 2. The Warning was signed by: (1) Hubbard; (2) his supervisor, Frank Faria; and (3) two managers: Craig Murphy, who was Tyco's director of quality and testing, and Joe DeRoy, Tyco's human resources manager. See id. Finally, the Warning provided that it would remain in effect until June 28, 2009. See id.

On January 11, 2009, Hubbard sent Faria an e-mail in which he withdrew a previous request for a transfer to a different department. That e-mail stated, in pertinent part:

I love my job and always have, I would love to stay here and continue my job, as long as if any situation comes along and I continue to do the right thing and tell the appropriate people it gets taken care of. It is not fair that I have to deal with some of these situations due to being very open minded, and blunt with people.... The only concern I have is others trying to get me out of here and its going to be hard to deal with that on a daily basis, but I can handle it and always have been able too.

Pl.'s Mem. of Law, Ex. 6 (doc. no. 39-7), at 13.

On February 4, 2009, Hubbard met with DeRoy and Murphy. While the purpose of that meeting is disputed, it is undisputed that: (1) Murphy, DeRoy, and Hubbard discussed a variety of workplace issues of concern to Hubbard; and (2) during the meeting, DeRoy asked Hubbard to put his concerns in writing so they could be investigated and dealt with. DeRoy prepared a memorandum to the file to document the meeting. Most relevant to the claims in this case, DeRoy noted that Hubbard mentioned negative comments directed toward him, disrespectful behavior, off-color jokes in the break area, and failures by management to correct those problems. DeRoy's notes do not indicate that Hubbard complained about discrimination based upon his national origin.

The day after DeRoy and Murphy met with Hubbard, Tyco employee Christopher Long provided a statement, at the request of Tyco management, concerning conversations he had had with Hubbard. Among other things, Long reported:

Greg, has confide[d] in me multiple times associated with work related issues where he seemed to be having problems.... After his recent suspension over the conflict with Bill Rogers, he approached me to give his side of the story.... During that conversation I told him that he is on everyone's radar and that he needed to avoid further confrontations, that he's now the common denominator in multiple issues that have taken place. After I gave him that speech, he started talking about how he is being discriminated against because he's English, and if this were any other company Bill would have been fired. Again I suggested he stay on the straight and narrow for a whole, avoid confrontation.
The last two weeks I have not been able to go into RAB without being confronted by Greg with more gossip associated with this type of perpetual conflict.
Most recently on the evening of 2/4/09, Greg, saw me having a conversation with Kevin Coughlin.... After Kevin walked away Greg asked me if we were talking about him (he appeared paranoid), I replied no. He said that he had to talk to me about something outside and portrayed it as very dramatic, which made me nervous. Once we were outside Greg started talking about Charles Pixley, Scott Williams and how he has documented them keeping things behind closed doors; he also suggested their jobs could be on the line and that he didn't have a lawyer, but was thinking about getting one (something to that effect). I didn't know where the conversation was going or coming from, I was uncomfortable, and I withdrew from the conversation. Within five minutes I went to Kevin Coughlin to let him know what Greg was saying.

Vanderzanden Aff., Ex. 10 (doc. no. 34-10), at 2.

After his February 4 meeting with DeRoy and Murphy, Hubbard prepared an undated statement listing twelve incidents that concerned him. Most relevant to the claims in this case, Hubbard's list included: (1) a January 2008 incident in which Bill Rogers "attacked Putu Widiartha with verbal abuse, " Vanderzanden Aff., Ex. 4 (doc. no. 34-4), at 2; (2) a March 2008 incident in which Derek Thompkins "attacked [him] with verbal abuse after a part was rejected, " id.; (3) a July 2008 incident in which Rogers told ethnic jokes that made an Indonesian woman cry, see id.; (4) a July 2008 incident in which he overheard Linda Tarnawski use profane language while talking about him to another inspector, see id. at 4; (5) an August 2008 incident in which he "was verbally attacked by Derek Thompkins over a rejected part again, " id. at 3; (6) a second August 2008 incident in which Thompkins "attacked [him] with verbal abuse, " id.; (7) a September 2008 incident in which he overheard a conversation between Rogers and another employee in which Rogers "made a couple of (English) remarks as [he] walk[ed] by" and referred to him as "that English faggot, " id.; and (8) the altercation with Rogers that led to his suspension, during which Rogers directed "profane language" toward him, id. at 4.

Hubbard says that he used the generic term "verbal abuse" rather than specifically reporting comments referring to his national origin because "DeRoy instructed [him] to leave out the name calling' or anything about his heritage." Pl.'s Supp. Mem. of Law (doc. no. 56) ¶ V (p. 40) (citing Ex. 3, Hubbard Dep. (doc. no. 39-4) 190:2-6). Hubbard gave his written statement to DeRoy on either Friday, February 6, or Monday, February 9; the deposition testimony offered by both Hubbard and DeRoy is ambiguous on this point.[2] The record includes an undated document authored by DeRoy, titled "Greg Hubbard's charges - 2/09/2009" that addresses, point by point, the incidents listed in Hubbard's written statement. See Vanderzanden Aff., Ex. 21 (doc. no. 34-21).

According to the statement of facts in Hubbard's supplemented memorandum of law, he had another meeting with DeRoy and Murphy. The statement of facts continues: "Deroy alleges that he asked Hubbard to respond in writing to Long's allegations." Pl.'s Supp. Mem. of Law (doc. no. 56) ¶ 61 (citing Ex. 1, DeRoy Dep. (doc. no. 39-2) 98:19-22, 105:7-13).

On February 6, Hubbard met with DeRoy. DeRoy says that at that meeting, he told Hubbard not to contact either Long or Kevin Coughlin. Hubbard says that DeRoy told him no such thing. Either way, it is undisputed by Hubbard that at the February 6 meeting, DeRoy: (1) spoke with him about his relationship with Long, see Pl.'s Supp. Mem. of Law (doc. no. 56) ¶ 68; and (2) immediately after speaking with Hubbard about Long, told Hubbard that he didn't "want... for any pot to be stirred, " Pl.'s Mem. of Law, Ex. 3, Hubbard Dep. (doc. no. 39-4) 109:14.

After his meeting with DeRoy on February 6, Hubbard was involved in a conversation with Long, conducted by telephone and text message.[3] Long described that conversation, in a letter to whom it may concern, dated February 9, 2009, in the following way:

I was at my desk at 6:20 pm last Friday night (2/6/09) when Greg contacted me from an unknown number; he was extremely upset shouting at me and telling me I have "big balls" in regards to my written statement to Joe Deroy from the day prior. I was nervous and hung up the phone. I immediately contacted my manager John Towne at home. He suggested I call Joe Deroy, which I did.
After I notified Joe and John I received a text message from Greg that seemed aggressive and had a threatening tone, the text messages are the following:
"d up not true story I cant believe it and u have the nerve to fucking lie WOW u r a brave man u and the other 1 to sit there and lie u sit there and try" Sent 2/6/09 at 6:37 pm
"to get urself to look good with some bulshit lies against me and my family u have balls please show this to them so we can talk about everything that" Sent 2/6/09 at 6:37 pm "goes on monday: everything" Sent 2/6/09 at 6:38 pm.
After reading the text messages I called him right back to ask if he was indeed threatening me, he said he wasn't, I hung up the phone.

Vanderzanden Aff., Ex. 9 (doc. no. 34-9), at 2.

On February 12, 2009, DeRoy spoke with Hubbard by telephone and informed him that Tyco had decided to terminate his employment. It is undisputed that DeRoy told Hubbard he was being discharged for insubordination. The record includes DeRoy's notes on his telephone conversation with Hubbard. Those notes include the following relevant comments:

I told Greg the decision was to terminate employment based on insubordination by making contact with Chris Long against direct instructions from me not to do so and for inappropriate intimidating remarks to a member of management.
Greg started to explain his side of the story with the communication with Chris Long Friday evening 2/[6]/09. I explained that I had a signed written statement from Chris Long stating it was Greg who made first contact. I went on to explain to Greg, this was the same reason [he was] suspended on 12/24/2008 during the Bill Rogers incident. I explained he was instructed by me after our phone conversation on the 23rd of December not to say anything to anyone as there was an investigation ongoing and he went back to his area and told individuals that Bill Rogers was going to be suspended when he came in to work on the 24th and may even lose his job. Greg replied back "this is the only thing I did wrong during the entire ordeal." I went on to say, you contacted Chris Long Friday night 2/[6]/2009 and gave him an ear full.... I instructed you in my office Friday afternoon specifically not to contact anyone.

Vanderzanden Aff., Ex. 8 (doc. no. 34-8), at 2.

Based upon the foregoing, Hubbard claims that Tyco: (1) discriminated against him based upon his national origin by suspending him in December of 2008 and by discharging him, in violation of RSA 354-A:7, I (Count IV); (2) discriminated against him based upon his national origin by tolerating the existence a hostile work environment in violation of 42 U.S.C. § 2000e-2(a)(1) and RSA 354-A:7, I (Counts II and III); and (3) retaliated against him for opposing discrimination by discharging him, in violation of RSA 354-A:19 and 42 U.S.C. § 2000e-3(a) (Counts V and VI).

C. Discussion

Tyco moves for summary judgment on all five remaining counts of Hubbard's complaint. The court begins with Hubbard's hostile-work-environment claims and then turns ...

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