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Nashawaty v. Winnipesaukee Flagship Corp.

United States District Court, D. New Hampshire

August 11, 2016

Frederick Nashawaty
Winnipesaukee Flagship Corporation Opinion No. 2016 DNH 135


          Joseph DiClerico, Jr. United States District Judge

         Frederick Nashawaty brings a claim of age discrimination in violation of the Age Discrimination in Employment Act (“ADEA”) against his former employer, Winnipesaukee Flagship Corporation (“WFC”). WFC moves for summary judgment. Nashawaty objects.

         Standard of Review

         Summary judgment is appropriate when the moving party “shows that 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). “A genuine dispute is one that a reasonable fact-finder could resolve in favor of either party and a material fact is one that could affect the outcome of the case.” Flood v. Bank of Am. Corp., 780 F.3d 1, 7 (1st Cir. 2015). In reviewing a motion for summary judgment, the court credits the evidence that supports the non-moving party and draws all reasonable inferences in his favor. Burns v. Johnson, ___ F.3d ___, 2016 WL 3675157, at *4 (1st Cir. July 11, 2016). As such, the court’s role is not “‘to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.’” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)).


         Nashawaty worked for WFC from 1988 to 1991 and again from November of 2001 to July of 2013. He began as a chief engineer, and his supervisor was Darryl Watson, the Director of Mechanical Maintenance and Fleet Engineer. In 2004, Nashawaty was promoted to Director of Fleet Maintenance and Marine Operations and Fleet Engineer when Watson retired. He was awarded four stripes, the highest rank at WFC.

         As Director of Fleet Maintenance and Marine Operations and Fleet Engineer, Nashawaty was responsible for the maintenance of all WFC vessels and facilities. He supervised the maintenance staff year round and supervised the engineering staff during the cruising season. He also was responsible for special projects and upgrades, fueling the vessels, budgeting and purchasing for the department, and serving as chief engineer on cruises. He was third in command behind WFC’s president, Edward Gardner, and the general manager, James Morash.

         Generally, like his predecessor as Fleet Engineer, Nashawaty was scheduled to work on week days. If necessary, however, Nashawaty also worked at night and on weekends.

         In the fall of 2011, WFC decided to close during the winter, which had not happened in the past. The staff, including Nashawaty, was laid off for the winter. Nashawaty was allowed to take two weeks of his vacation time during the beginning of the lay off period. Work resumed in March of 2012.

         WFC hired Richard Orzechowski in the fall of 2011 as a contract laborer. When work resumed in the spring of 2012 Orzechowski was hired as a chief engineer who reported to Nashawaty. Nashawaty noticed that Orzechowski would call Morash whenever Nashawaty told Orzechowski to do something.

         In May of 2012, Nashawaty had a conversation with Morash during which Morash told him that he would lose his accrued vacation time that had been earned before WFC decided to close down during the winter.[1] Nashawaty had a little more than 300 hours of vacation time accrued. WFC represents that Nashawaty asked to take Fridays off and that it accommodated his request. Nashawaty states that he offered to take Fridays off to use up his accrued vacation time with as little disruption to WFC operations as possible. In any event, beginning in the 2012 season, Nashawaty was not scheduled to work on Fridays although Nashawaty contends that he remained available as needed.

         Nashawaty was out of work for two weeks in June of 2012 due to an eye injury. When he was ready to return on Tuesday, June 19, Morash told Nashawaty to contact Orzechowski “to see where he wants to put you.” Nashawaty found that direction unusual because he was the one who made those decisions. Nashawaty called Orzechowski and told him that he would work the next day, on the Friday day cruise.

         Nashawaty then received a message to meet with Morash and went to Morash’s office. Morash told him that Orzechowski was taking over and that everything Nashawaty did would have to go through Orzechowski. Morash explained that Nashawaty was not getting any younger and did not need to do that work anymore.[2]He offered Nashawaty a position as a chief engineer at twenty dollars an hour for the next year, which would pay at most $800 per week compared to Nashawaty’s weekly salary of $1, 250. Nashawaty was shocked and angry. Although Gardner told Nashawaty that Morash was wrong about Orzechowski taking over, subsequent events showed that most of Nashawaty’s job responsibilities were transferred to Orzechowski during the summer of 2012.

         Morash directed Nashawaty to teach Orzechowski to refuel the WFC vessels although until then Nashawaty had been the only one to order fuel and refuel the M/S Mount Washington. From then on, Orzechowski ordered fuel and refueled vessels, despite having no training from Nashawaty, so that Nashawaty assumed Morash gave him the information.[3] Orzechowski also took over Nashawaty’s responsibilities for ordering supplies, working with manufacturers on maintenance issues, reporting to Gardner and Morash, communicating with ...

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