Espinal v. NATIONAL GRID NE HOLDINGS 2, LLC

Citations: 794 F. Supp. 2d 285; 2011 U.S. Dist. LEXIS 51432; 2011 WL 1833055Docket: Civil Action No. 09-10569-RGS

Court: District Court, D. Massachusetts; May 13, 2011; Federal District Court

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Juan Espinal, a service technician employed by National Grid NE Holdings 2, LLC and Keyspan New England, LLC for nearly ten years, filed an Amended Complaint on June 4, 2009, alleging discrimination, hostile work environment, and retaliation under both state and federal law. He sought damages and equitable relief, including attorney fees. On January 7, 2011, the defendants filed a motion for summary judgment, with a hearing held on March 17, 2011.

Espinal's employment began in December 2001, where he investigated gas leak reports and worked a regular shift from Tuesday to Saturday, 4:00 p.m. to midnight, with additional on-call duties. He received a verbal warning on March 17, 2004, for failing to respond to a page while on-call and was subsequently suspended for five days after another failure to respond on September 1, 2004. 

In July 2005, a dispatcher mistakenly paged Espinal when he was not on-call, leading him to request the Union to obtain records from National Grid. He complained to the Union about discriminatory treatment, but management only learned of this complaint five months later. Mark Eagan, a Manager of Industrial Relations, investigated the July 10, 2005 incident, which included reviewing call records and interviewing involved parties. Ultimately, Eagan found that another technician, Daniel Racki, had failed to respond to the page, resulting in Racki's five-day suspension in October 2006.

On September 27, 2006, Espinal submitted a Charge of Discrimination to the Massachusetts Commission Against Discrimination (MCAD). Following the suspension of a coworker, Racki, in November 2006, Espinal faced harassment from primarily white colleagues during a Union meeting, where he was insulted and accused of betraying Racki. Despite being encouraged to identify the harassers in a meeting with management, Espinal refused and subsequently experienced vandalism to his vehicle, which he reported to management. Espinal was given a manager's contact information for further incidents but did not reach out. A meeting was held to reinforce the company’s harassment policy, yet Espinal continued to be verbally abused by coworkers without reporting further incidents. 

On February 15, 2007, Espinal conducted a gas leak investigation that led to a five-day suspension for improper procedure, later converted to non-disciplinary coaching after a Union grievance. On January 23, 2008, Espinal filed a second charge with MCAD alleging retaliation and harassment. Despite attempts by management to address this, Espinal’s attorney indicated he would not meet with them. In April 2008, Espinal took disability leave, returning in October 2008. A fatal gas explosion occurred on January 25, 2009, prompting inquiries from local authorities about National Grid’s response to prior gas odor reports.

Espinal was assigned to investigate a gas leak at 275 Eastern Avenue but could not locate the address. His dispatcher corrected it to 75 Eastern Avenue and made a phone call to Espinal, which lasted 23 seconds, and issued an electronic order modification that should have alerted Espinal via his van monitor. Espinal claims the dispatcher did not provide the updated address, leading him to go to 224 Eastern Avenue instead, where National Grid indicated there were no gas lines within 3,800 feet. He was subsequently suspended for thirty days for his inadequate response to the leak report. Espinal alleges that his work environment has deteriorated due to taunting from coworkers, resulting in reduced overtime, avoidance of Union meetings, and the need for therapy and disability leave, impacting his family relationships as well.

The discussion on summary judgment states that it is appropriate when there is no genuine dispute of material fact. The legal framework for discrimination claims follows the burden-shifting approach established in McDonnell Douglas Corp. v. Green. To establish a prima facie case, a plaintiff must demonstrate membership in a protected class, adequate job performance, and an adverse employment action. If successful, the employer must provide a legitimate reason for the adverse action. The employer's rationale is assessed for credibility, with the plaintiff needing to show it as a pretext for discrimination. Defendants contend Espinal has not met the burden at the prima facie stage, arguing that he cannot prove he was performing his job adequately, citing prior warnings and suspensions related to his job performance, including the thirty-day suspension for the 2009 incident.

Whether an employee's job performance is satisfactory is generally a factual issue for the jury, as established in Boothby v. Texon, Inc. However, if material facts are undisputed, summary judgment can be granted even with claims of disparate treatment. In this case, Espinal's defense regarding a March 2004 sanction relies on his attorney's assertion that his pager was broken, which is insufficient to create a material fact dispute. In his deposition, Espinal admitted to missing a page. For a September 2004 incident, his affidavit stating he did not receive a page contradicts his deposition, where he could not recall if his pager had gone off; this lack of memory does not constitute a material fact dispute. An interested witness cannot contradict clear prior testimony without a satisfactory explanation. Furthermore, Espinal's explanation of his actions during a 2009 investigation is inconsistent, as he admitted to not reporting to the correct location, raising questions about whether he experienced an “adverse employment action.” Adverse actions include significant workplace changes like discharge or suspension, but negative performance evaluations alone do not qualify as such. Espinal's complaints about discipline, linked to his poor performance—specifically missing pages and mishandling a gas leak investigation—do not support his claim of adequate job performance. As he has not established a prima facie case for job discrimination, the defendants' motion for summary judgment is granted.

A plaintiff can establish a hostile work environment claim if the workplace exhibits severe or pervasive discriminatory behavior that alters employment conditions and creates an abusive atmosphere. To succeed, Espinal must prove he belongs to a protected class, was harassed due to that status, the harassment was significant enough to affect a reasonable person's work environment, and the defendants were aware of the harassment yet failed to act. The assessment of whether an environment is hostile involves considering the frequency and severity of the conduct, its threatening or humiliating nature, and its impact on work performance. Different standards apply for employer liability depending on whether the harasser is a supervisor or co-worker. If the harassment is by co-workers, an employer is liable only if negligence can be shown. 

Defendants contend that the harassment against Espinal is not legally actionable since it mainly occurred off-site and outside work hours, and they acted suitably upon receiving his complaint by enforcing a zero-tolerance policy. Furthermore, Espinal did not cooperate in identifying the harassers despite multiple requests. An employer can only be held liable for co-worker harassment if it fails to take adequate remedial steps after being notified. The First Circuit has noted that a plaintiff's failure to inform the employer of ongoing harassment after initial complaints can negate liability. Espinal did not notify a senior manager, who had provided his personal contact for future complaints, about any continued harassment. As a result, the defendants' motion for summary judgment on Espinal's hostile work environment claim will be granted. 

For a retaliation claim, a plaintiff must demonstrate that he engaged in protected conduct, faced an adverse employment action afterward, and there is a causal connection between the two.

Espinal alleges four retaliatory actions by the defendants: (1) his suspension for a leak investigation in 2007, (2) a supervisory inspection of his work in April 2008, (3) a suspension for a leak investigation on December 26, 2008, and (4) the defendants' inaction regarding harassment from Union members. The defendants contend that the first two actions do not constitute retaliation as they did not result in adverse employment actions. Specifically, the 2007 suspension was withdrawn in favor of non-disciplinary counseling, and the supervisory inspection was a management prerogative that found Espinal's work satisfactory. 

Regarding the December 2008 suspension, defendants argue it was prompted by a mayoral request for records and not retaliatory in nature, citing that Espinal's complaint was filed over a year prior. To establish a causal link between protected activity and adverse action, plaintiffs must provide more than weak inferences, particularly when there is a significant time gap between events. The text references several cases highlighting that a temporal gap of one year or more is insufficient for establishing retaliation.

Espinal also claims that a hostile work environment is a form of retaliatory adverse action. However, an employer is only liable for coworker harassment if it was aware and failed to act. The defendants had taken prompt measures following Espinal's complaint, including warnings to Union members and providing Espinal with a senior manager's contact for further issues. Espinal's lack of cooperation with the investigation complicates the case against the defendants. Consequently, the court granted the defendants' motion for summary judgment, closing the case in their favor.

National Grid, a public utility, sells and distributes natural gas, with two defendants being subsidiaries of Keyspan Corporation. The Massachusetts Department of Public Utilities mandates a response to gas leak reports within sixty minutes. Espinal alleges that a dispatcher called a disconnected phone number and claims he provided a new number, which the defendants dispute. He argues that his suspension was excessively severe, treated as a second offense despite a verbal warning being retracted after a union challenge. Among 120 employees at the Beverly yard, 6% are from racial minority groups. Espinal states that two customers were not home when he visited. He attributes Crooker's failure to find evidence at the scene to environmental factors and Crooker's observation limitations. The two dispatchers on duty do not recall giving Espinal the correct address. Espinal does not remember receiving an address correction via a pop-up message. He suggests there are undisclosed abandoned gas mains nearby. The defendants contend that Espinal must demonstrate that similarly situated, non-minority coworkers were treated better, clarifying that such comparisons are evaluated later in the burden-shifting process, not as part of the prima facie case. An internal memo reveals Crooker found Espinal's explanation for the missed call unconvincing. Defendants argue that even if Espinal establishes a prima facie case of discrimination, he cannot prove that the discipline was pretextual, citing a lack of differing treatment for similar infractions and no comparable misconduct in a related 2009 incident. Verbal warnings are typically the first step in addressing coworker harassment claims, and employers have discretion in choosing appropriate disciplinary actions. Espinal reports being subjected to racial slurs and threats, while defendants assert they were not made aware of the specific racial epithets used against him, although they acknowledge reports of his defaced vehicle.