United States District Court, District of New Hampshire
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.
LANDYA MCCAFFERTY UNITED STATES DISTRICT JUDGE
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., 741 F.3d 310, 319 (1st Cir. 2014) (quoting Cortés–Rivera v. Dept. of Corr., 626 F.3d 21, 26 (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., 736 F.3d 23, 29 (1st Cir. 2013) (quoting Suarez v. Pueblo Int’l, Inc., 229 F.3d 49, 53 (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., 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).
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 Hampshire. Neil Thompson was the District Manager for the New England District.
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 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, 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 ...