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Karim v. H & M International Transportation

September 30, 2009

KHALED KARIM, PLAINTIFF,
v.
H & M INTERNATIONAL TRANSPORTATION, INC., DEFENDANT.



The opinion of the court was delivered by: Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER

Plaintiff, Khaled Karim ("Plaintiff"), filed a first amended complaint [22] alleging that his former employer Defendant H & M Transportation, Inc. ("Defendant" or "H & M") discriminated against him and subjected him to a hostile work environment on the basis of his national origin and religion in violation of Title VII of the Civil Rights Act of 1991, 42 U.S.C. § 2000e-2 et seq. ("Title VII") and on the basis of his race in violation of 42 U.S.C. § 1981 et seq. ("Section 1981"). Plaintiff also claims that he was retaliated against in violation of Title VII and Section 1981.

Defendant filed a motion for summary judgment [35], which currently is before the Court. For the reasons stated below, Defendants'motion for summary judgment is granted in part and denied in part.

I. Background

The Court takes the relevant facts primarily from the parties'Local Rule ("L.R.") 56.1 statements*fn1 Defendant' s Statement of Facts ("Def. SOF") [37], Plaintiff's Statement of Facts ("Pl. SOF") [39], and Defendant' s Response to Plaintiff's Statement of Additional Facts ("Def. Resp.") [44].*fn2

Def. SOF, ¶ 9. From November 2000 until August 2003, Rodney Foster ("Foster") was the supervisor of trailer mechanics at H & M' s Landers facility. Pl. SOF, ¶ 82. Between approximately August 2003 and September 2006, Manuel Monrail ("Monrail") was the supervisor of trailer mechanics. Def. SOF, ¶ 11. In or around March 2005, H & M promoted Chet Stroschine ("Stroschine") to the position of General Manager of Maintenance Operations; as the supervisor of trailer mechanics, Monrail reported directly to Stroschine. Def. SOF, ¶ 18.

While Monrail was Plaintiff's supervisor, Plaintiff and Gilberto Reyes ("Reyes") were both trailer mechanics. Def. SOF, ¶ 15. During that time, Plaintiff made a number of complaints to Monrail about Reyes, including that Reyes did not do his job, stole order numbers, changed work orders, tried to take credit for Plaintiff's work, punched in when he was not working, and refused to assist Plaintiff at work. Def. SOF, ¶ 16. As a result of Plaintiff's complaints about Reyes, the two began to not get along and stopped talking to each other. Def. SOF, ¶ 17.

On or about September 18, 2006, H & M transferred Monrail to a different H & M facility and promoted Reyes to the position of supervisor of trailer mechanics. Def. SOF, ¶ 19. After his promotion to supervisor, Reyes reported directly to Stroschine and was Plaintiff's direct supervisor. Def. SOF, ¶ 18. Plaintiff testified that, after Reyes was promoted to supervisor, Plaintiff was concerned that Reyes was going to fire him because of Plaintiff's previous complaints about Reyes to Monrail. Def. SOF, ¶ 22.

A. Alleged Discriminatory Statements Regarding Plaintiff

Foster testified that during his tenure as supervisor, between November 2000 and August 2003, he witnessed drivers and mechanics at Landers make camel jokes on "[q]uite a few" occasions, and that Plaintiff was "sometimes" present when the jokes were made. Pl. SOF, ¶ 82; Foster Dep. at 26. Foster also testified that he heard Maintenance Manager Steve Schubert ("Schubert") refer to Plaintiff as a "terrorist," a "sand nigger," and a "camel jockey," but that Plaintiff was not present when these comments were made. Pl. SOF, ¶ 82; Foster Dep. at 27-28.

In his deposition, Schubert denied ever referring to Plaintiff as a "terrorist," a "sand nigger," or a "camel jockey." Def. Resp., ¶ 82; Schubert Dep. at 35. Schubert admitted saying "yacka, yacka, yacka" when Plaintiff was speaking. Pl. SOF, ¶ 87; Schubert Dep. at 58-60. According to Schubert, he would say "yacka, yacka, yacka" when Plaintiff was not wearing his teeth, which made him hard to understand, and when Plaintiff did not speak in English. Def. Resp., ¶ 87; Schubert Dep. at 58-59, 60.

Plaintiff testified that co-workers, including Reyes and Monrail, taunted him "a lot of times" about his refusal to eat pork (something that is prohibited by the Muslim religion), saying: "Why don' t you eat pork? You eat camel meat. Why don' t you eat pork meat?" Pl. SOF, ¶ 87; Pl. Dep. at 145-46. Plaintiff also testified that Reyes referred to him as a "terrorist" "a lot." Pl. SOF, ¶ 86; Pl. Dep. at 185. It is undisputed that a photograph of Osama bin Laden was posted in the cafeteria at Landers during Plaintiff's employment. Def. SOF, ¶ 61; Pl. SOF ¶ 85. According to Plaintiff, when he and Reyes were in the cafeteria at the same time, Reyes would "always" point to the picture and call Plaintiff a "terrorist." Pl. SOF, ¶ 86; Pl. Dep. at 185. Plaintiff testified that the last time Reyes called him a "terrorist" was on the last day of his employment at H & M. Pl. Dep. at 92-94 (testifying that Reyes and Plaintiff fought about something Plaintiff told inspector Paul Jasinski on Plaintiff's last day of employment); Pl. Dep. at 127-28 (testifying that the last time Reyes made the "terrorist" comment was "when [Plaintiff and Reyes] had the problem with Paul").

At his deposition, Plaintiff testified that he told Reyes not to call him a "terrorist," and that he complained to Schubert that Reyes referred to him as a "terrorist." Pl. SOF, ¶ 104; Pl. Dep. at 127-28. According to Plaintiff, Schubert responded that Reyes was joking. Pl. SOF, ¶ 104. Reyes denies that he ever referred to Plaintiff as a "terrorist," and Schubert denies that Plaintiff ever made such a complaint to him. Def. Resp., ¶ 104. Plaintiff also testified that he complained to Stroschine that the supervisors and employees "all group against [Plaintiff]" because he was Arab and Muslim. Pl. SOF, ¶ 104. In his deposition, however, Stroschine denied that Plaintiff ever told him that he was being treated differently because of his race. Def. Resp., ¶ 104.

B. Plaintiff's Interactions with Supervisors and Co-Workers

Plaintiff testified that Monrail and Schubert yelled at Plaintiff regarding work-related issues, including the work that he was performing on trailers, while Amador Martinez, another trailer mechanic, was never yelled at by supervisors at the facility during Plaintiff's employment, even though Martinez' s work was criticized by an inspector. Pl. SOF, ¶ 90. Defendant denies that either Schubert or Monrail ever yelled at Plaintiff about his work on trailers. Def. Resp., ¶ 90.

According to Plaintiff, as supervisor, Reyes criticized Plaintiff's work on tasks that Plaintiff had been performing for years. Pl. SOF, ¶ 96. By contrast, when Plaintiff brought errors made by other mechanics to Reyes's attention, Reyes would say "it' s okay." Pl. SOF, ¶ 96. Plaintiff also testified that Reyes refused to give Plaintiff sufficient work orders. Pl. SOF, ¶ 91.

C. Disciplinary Actions Involving Plaintiff

On February 27, 2006, Monrail gave Plaintiff a warning for placing a green tag on equipment (indicating that the repair was complete) because there were numerous errors found in the repair and it should not have been authorized as a complete repair. Def. SOF, ¶ 14.

As discussed further below, on October 12, 2006, Stroschine gave Plaintiff a verbal warning not to threaten other employees, and told Plaintiff that if he threatened anyone in the workplace, Plaintiff would be terminated. Def. SOF, ¶¶ 26, 27.

On May 15, 2007, Plaintiff received a warning letter regarding the five reported injuries that he had sustained since 2000. Def. SOF, ¶ 30. Plaintiff's fifth injury, which prompted the warning, occurred on or about February 19, 2007, while Plaintiff assisted Reyes in lifting a large compressor. Pl. SOF, ¶ 98. Plaintiff blames Reyes for this injury, testifying that Reyes "required" Plaintiff to assist in lifting the heavy compressor, which ultimately resulted in Plaintiff suffering a hernia and shoulder injury. Pl. SOF, ¶ 98. Defendant has no written policy asserting that mechanics will receive discipline based on the number of reported injuries that they sustain during their career for which they were not at fault. Pl. SOF, ¶ 100.

Finally, on September 20, 2007, Plaintiff received a warning for failing to properly weld the leg bracket of a private owner chassis. Def. SOF, ¶ 31. According to Plaintiff, he was unable to properly weld the leg bracket because the equipment at Landers was faulty. Pl. SOF, ¶ 101. Reyes and Monrail testified that there were no problems with the welding equipment. Def. Resp., ¶ 101.

D. The Events of October 12, 2006

On or about October 12, 2006, three weeks after Reyes became supervisor of trailer mechanics, Reyes wrote "Crybaby" on the envelope containing Plaintiff's paycheck. Pl. SOF, ¶ 88. Plaintiff testified that he complained to Stroschine about the incident, Pl. SOF, ¶ 105, although Stroschine denies ever seeing the "Crybaby" writing on Plaintiff's paycheck envelope prior to Plaintiff's discharge, and denies ever receiving a complaint from Plaintiff concerning this incident, and does not recall ever discussing the issue with Reyes, Pl. SOF, ¶ 88.

Also on October 12, 2006, Reyes told Stroschine that Plaintiff had threatened him. Def. SOF, ¶ 23; Stroschine Dep. 41. Stroschine testified that he verified the alleged threat by speaking to trailer mechanic Jimmy Stevenson ("Stevenson"), Def. SOF, ¶ 24; Stroschine Dep. 41-42, who testified that he heard Plaintiff threaten Reyes and that Stroschine interviewed him about this threat, Stevenson Dep. at 52. Plaintiff denies ever threatening to kill Reyes. Pl. SOF, ¶ 112. It is undisputed that on October 12, 2006, Stroschine gave Plaintiff a verbal warning not to threaten other employees, and told Plaintiff that if he threatened anyone in the workplace, Plaintiff would be terminated. Def. SOF, ¶¶ 26, 27.

E. Events of October 17, 2007 and Plaintiff's Alleged History of Threatening Co-Workers

On October 17, 2007 a confrontation occurred between Plaintiff and Reyes. The parties dispute the facts surrounding this encounter.

In Defendant' s version of events, Plaintiff confronted Reyes about the warning that he had received on September 20, 2007, and threatened to kill Reyes if he did not change the warning. Def. SOF, ¶ 34. When Reyes refused to change the warning, Plaintiff responded by saying "I will fucking kill you." Def. SOF, ¶ 35. Immediately after Plaintiff threatened to kill Reyes, Reyes called the Terminal Manager at the Landers facility, Matt Hamilton ("Hamilton"), reported that Plaintiff had threatened to kill him, and asked Hamilton how he should handle the situation. Def. SOF, ¶ 41. At the direction of Hamilton, Reyes contacted the Norfolk Southern police to escort Plaintiff off of the property. Def. SOF, ¶ 42.

Stevenson testified that he was about four feet away from Plaintiff during the October 17 encounter, and that he heard Plaintiff threaten to kill Reyes. Def. SOF, ¶ 37. According to Stevenson, the October 17 incident was the third time that he overheard Plaintiff threaten Reyes. Stevenson Dep. at 38. Stevenson also testified that he heard Plaintiff make a threat against Schubert while Monrail was still supervisor. Stevenson Dep. at 43. Stevenson, who cannot read or write English, testified that in connection with Plaintiff's termination for the alleged October 17 threat, Stevenson directed another mechanic to write a statement regarding the threats that he heard Plaintiff make during his employment at H & M. Pl. SOF ¶ 108. The handwritten statement, dated October 24, 2007, states: "On four separate occasions [Plaintiff] told me if he was to get fired he would kill Steve [Schubert] and Gil [Reyes]." Pl. Dep. Ex. 36. At his deposition, Stevenson clarified that three of the threats were against Reyes and one was against Schubert. Stevenson Dep. at 48. Schubert testified that on two or three occasions during Plaintiff's employment, Stevenson informed Schubert that Plaintiff had threatened violence against Schubert. Schubert Dep. at 68-69.

Plaintiff disputes nearly every aspect of Defendant' s version of events. According to Plaintiff, Reyes initiated the October 17, 2007 encounter, accusing Plaintiff of "speaking against him" to inspector Paul Jasinski. Pl. SOF, ¶ 112. Plaintiff denies discussing the September 20, 2007 warning with Reyes on October 17th, and denies threatening to kill Reyes on that date, or at any other time during his employment at H & M. Pl. SOF, ¶ 112.*fn3 Plaintiff testified that after the initial confrontation, Reyes walked away, and when he returned he told Plaintiff that Stroschine had instructed Reyes to fire Plaintiff for making threats. Pl. SOF, ¶ 114; Pl. Dep. at 90-91. Plaintiff testified that he asked to speak to Stroschine, but that Reyes refused his request. Pl. SOF, ¶ 114; Pl. Dep. at 91. Reyes denies telling Plaintiff that ...


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