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Pini v. Staybright Electric of Colorado

United States District Court, E.D. Virginia, Alexandria Division

July 20, 2018

BRICIA ROSLYN PINI, Plaintiff,
v.
STAYBRIGHT ELECTRIC OF COLORADO, Defendant.

          MEMORANDUM OPINION

          T. S. Ellis, III United States District Judge

         At issue in this Title VII[1] employment discrimination case is defendant's motion for summary judgment. Specifically, defendant argues that it is entitled to judgment as a matter of law on pro se plaintiff's hostile work environment, gender discrimination, retaliation, and negligent retention claims and that plaintiff is not entitled to punitive damages pursuant to 42 U.S.C. § 1981a. Plaintiff opposes defendant's motion, arguing that she has adduced record evidence establishing the existence of a genuine dispute of material fact (i) as to whether plaintiff was subjected to a hostile work environment and (ii) as to whether plaintiff was terminated because she is a woman or in retaliation for her complaints about harassment. These issues have been fully briefed and argued and are now ripe for disposition.

         I.[2]

         Plaintiff, Bricia Pini, is a resident of West Virginia and former employee of defendant. Specifically, plaintiff began working for defendant as a Warehouse Attendant at defendant's Chantilly location on July 7, 2016. In her role as Warehouse Attendant, plaintiff was responsible for, among other things, overseeing and managing inventory and company service vehicles. Plaintiff's regular work hours in this role were from 6:00 a.m. until 3:00 p.m.

         On August 1, 2016, approximately three weeks after plaintiff began working for defendant, plaintiff sent her supervisor, Ronald Charpentier (“Charpentier”), an email complaining about the use of profanity in the workplace. Although plaintiff's email did not name the employees alleged to have used profanity, plaintiff advised Charpentier verbally that Elijah Coleman (“Coleman”), Karl Ferguson (“Ferguson”), and Jason Larrick (“Larrick”) used profanity while having a conversation in the workplace concerning stripper parties, sex, and alcohol. Plaintiff testified that she overheard the conversation between Coleman, Ferguson, and Larrick but that plaintiff was not a party to the conversation and the conversation was not directed at her. Later that same day, Charpentier responded to plaintiff's email and told her that he “addressed [the issue] with a few tech's [sic]” and that the matter was “taken care of.” Aug. 1, 2016 Email from Charpentier to Pini.

         On August 15, 2016, plaintiff sent Charpentier another email, stating that Michael Allanson (“Allanson”), another of defendant's employees, had been “hostile” to plaintiff and complaining about three such instances of hostility. Specifically, with respect to the first incident, plaintiff explained in her deposition that Allanson asked Mike Machado (“Machado”), a Hispanic individual, “Habla Ingles?, ” and chastised Machado. Pl. Dep. 67:20-68:7. With respect to the second incident, plaintiff explained that Allanson stood close to plaintiff in her office. Plaintiff also described how Allanson used profanity in the warehouse. With respect to the third incident, plaintiff testified that Allanson called plaintiff “Sweetheart” after plaintiff asked Allanson not to refer to her by that term. Id. at 86:17-87:5.

         That same day, on August 15, 2016, plaintiff, Charpentier, and Roy Bayhi (“Bayhi”), Charpentier's supervisor, met with Allanson to discuss plaintiff's complaints. During the meeting, Bayhi told Allanson that it was unacceptable for Allanson to refer to other employees as “Sweetheart.” Allanson resigned during the meeting.

         A little more than one month later, on September 28, 2016, plaintiff sent Charpentier an email describing an incident that occurred in the warehouse between plaintiff and Ferguson. Specifically, plaintiff reported that Ferguson gave plaintiff a lamp, and after plaintiff asked Ferguson questions about the lamp, Ferguson aggressively grabbed the lamp from plaintiff's hand and said “Fuck it.” Sept. 28, 2016 Email from Plaintiff to Charpentier. Charpentier subsequently forwarded the email to Bayhi stating “This has to be dealt with immediately.” Sept. 28, 2016 Email from Charpentier to Bayhi.

         The same day, on September 28, 2016, plaintiff sent Charpentier an email informing him that plaintiff would take a sick day the next day, September 29, 2016. Charpentier approved plaintiff's absence.

         On September 29, 2016, Louis Lolli (“Lolli”), defendant's Director of Human Resources, sent Ferguson an email telling Ferguson that profanity could not be tolerated in a professional environment and explaining that profanity could “be considered verbal harassment” leading to “a hostile work environment.” Sept. 29, 2016 Email from Lolli to Ferguson. Lolli instructed Ferguson to “refrain from allowing this to happen again.” Id.

         The next day, on September 30, 2016, plaintiff, Lolli, Bayhi, and Raymond Bross (“Bross”), defendant's Vice President, attended a conference call regarding plaintiff's accusations. Following the conference call, plaintiff sent Lolli a summary of the September 28 incident. Plaintiff recounted that after handing plaintiff a lamp, “[Ferguson] grabbed the other end [of the lamp, ] snatched [the lamp] from plaintiff's hand and said fuck it.” Sept. 30, 2016 Email from Plaintiff to Lolli. Plaintiff further explained that in her view (i) an assault occurred when “[Ferguson] took a step towards [plaintiff and] grabbed the lamp out of [plaintiff's] hand in an aggressive manner” and (ii) harassment occurred when “[Ferguson] said ‘fuck it' in the professional workplace.” Id.

         On September 30, 2016, Ferguson also emailed Lolli his account of the September 28 incident. In this email, Ferguson stated that he asked plaintiff about a special lamp, gave plaintiff the lamp, and when plaintiff examined the lamp for additional information, Ferguson said “shit then forget it” under his breath and returned to his truck. Lolli responded to Ferguson and explained that defendant was investigating the situation but that any use of profanity on Ferguson's part would not be tolerated. Thereafter, defendant continued to monitor Ferguson, and on October 4, 2016, issued a verbal warning to Ferguson for his use of profanity in the warehouse.

         Also on September 30, 2016, plaintiff reported that she fell off a ladder in defendant's warehouse. Plaintiff saw a physician that day, who cleared her to return to work on October 4, 2016. On October 4, 2016 at 4:00 a.m., plaintiff sent Charpentier an email saying that she would be late to work because of the pain from her accident. Plaintiff did not arrive to work until 10:30 a.m., more than four hours after her scheduled start time. Plaintiff was issued a verbal warning for reporting late to work. Later that same day, plaintiff emailed Charpentier asking about her personal belongings, which she had left in a company vehicle that was now being used by a new employee.

         The next day, on October 5, 2016, plaintiff emailed Charpentier at 4:33 a.m., telling him that her glasses were in the company vehicle now being used by a new employee and that plaintiff could not drive in the dark without her glasses. Plaintiff did not arrive at work until 8:40 a.m., once it was light enough out for her to drive. Charpentier issued a written warning for plaintiff's tardiness.

         Later that day, plaintiff threatened to call the police if defendant did not return the personal belongings plaintiff left in the company vehicle. Charpentier told plaintiff that he would retrieve plaintiff's belongings for her and instructed plaintiff to wait outside the warehouse while he retrieved plaintiff's belongings. Plaintiff subsequently sent Charpentier and Bayhi an email, saying that she did not know where Charpentier was and that she was leaving for the day. The parties dispute the precise time at which plaintiff sent this email and departed work on October 5. Defendant cites to an email chain purporting to show that plaintiff left work at 2:03 p.m., approximately one hour before the end of her scheduled shift at 3 p.m. See Def. Mot. S.J. Ex. M. Plaintiff, by contrast, argues that defendant altered the time stamp on the email chain and cites to an email chain purporting to show that plaintiff left work at the end of her shift at 3 p.m. See Pl. Opp. Ex. 3.

         The next day, on October 6, 2016, plaintiff was terminated. Plaintiff's termination form cited plaintiff's “excessive absences/tardiness” as the reason for her termination and described the final incident prompting plaintiff's termination. Pini Termination Form. The form explained that plaintiff left before 3 p.m. when plaintiff's shift was scheduled to end.

         The record reflects that around the same time, Charpentier administered discipline to other employees for their tardiness and absenteeism. Plaintiff relies on one of these other employees as a comparator. Specifically, on August 29, 2016, Charpentier gave Chris Henson (“Henson”), another employee of defendant's, a verbal warning for not attending a mandatory meeting on a Monday morning and for missing work on Saturday. The next day, on August 30, 2016, Charpentier gave Henson a written warning for not completing a job correctly. The day after that, on August 31, 2016, Charpentier gave Henson a written warning for Henson's failure to report to work until 8:30 a.m. despite being instructed to arrive at work between 5 a.m. and 6 a.m. And finally, on September 1, 2016, Charpentier suspended Henson when Henson once again reported to work late. The record reflects that although suspended, Henson was not terminated at that time.

         Plaintiff, proceeding pro se, filed the complaint in this action on June 29, 2017, asserting several claims: (i) hostile work environment, (ii) disability discrimination, (iii) gender discrimination, (iv) retaliation, (v) negligent and wrongful hiring, retention and supervision, (vi) negligent failure to prevent sexual harassment, and (vii) intentional infliction of emotional distress. On December 20, 2017, defendant filed a motion to dismiss, arguing (i) that plaintiff's hostile work environment, discrimination, and retaliation claims were time-barred, (ii) that plaintiff failed to exhaust administrative remedies for her disability discrimination claim, and (iii) that plaintiff failed to state claims for negligent hiring and retention. An Order issued on January 22, 2018, granting in part and denying in part defendant's motion to dismiss. See Pini v. Staybright Electric of Colorado, No. 1:17-cv-739 (E.D. Va. Jan. 22, 2018) (Order). Specifically, defendant's motion was granted with respect to plaintiff's disability discrimination, negligent supervision, negligent hiring, negligent failure to prevent sexual harassment, and intentional infliction of emotional distress claims. Defendant's motion was denied in all other respects. Plaintiff did not thereafter file an additional amended complaint, so the parties proceeded to conduct discovery with respect to plaintiff's hostile work environment, gender discrimination, retaliation, and negligent retention claims.

         On May 1, 2018, defendant filed the motion for summary judgment at issue here. Defendant argues it is entitled to judgment as a matter of law on plaintiff's hostile work environment claim because the unwelcome conduct plaintiff endured (i) was not based on plaintiff's membership in a protected class, (ii) was not sufficiently severe or pervasive to alter the conditions of plaintiff's employment, and (iii) could not be imputed to defendant. Defendant also contends that it is entitled to judgment (i) on plaintiff's gender discrimination claim because plaintiff was not performing her job satisfactorily and (ii) on plaintiff's retaliation claim because plaintiff did not engage in protected activity and has not established that defendant's legitimate non-retaliatory reason for terminating plaintiff is pretext for retaliation. Plaintiff opposes defendant's motion, arguing (i) that the conduct ...


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