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Duran v. Environmental Soil Management, Inc.

United States District Court, D. New Hampshire

July 18, 2017

Pedro M. Florez Duran
Environmental Soil Management, Inc. Opinion No. 2017 DNH 142


          Andrea K. Johnstone United States Magistrate Judge

         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, 42 U.S.C. §§ 2000 et seq. and 42 U.S.C. § 1981, 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., 821 F.3d 206, 215 (1st Cir. 2016). “An issue is ‘genuine' if it can be resolved in favor of either party, and a fact is ‘material' if it has the potential of affecting the outcome of the case.” Xiaoyan Tang, 821 F.3d at 215 (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., 844 F.3d 307, 312 (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, 821 F.3d 164, 170 (1st Cir. 2016) (citation and quotation marks omitted) cert. denied, 137 S.Ct. 627 (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., 817 F.3d 849, 853 (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.'” Id. (citation omitted). “This demonstration must be accomplished by reference to materials of evidentiary quality, and that evidence must be more than ‘merely colorable.'” Id. (citations omitted). “At a bare minimum, the evidence must be ‘significantly probative.'” Id. (citation omitted). The nonmoving party's failure to make the requisite showing “entitles the moving party to summary judgment.” Id.


         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.

         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, “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 ...

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