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Lisa M. Gillems v. Hapag-Lloyd (America) Inc

September 25, 2012

LISA M. GILLEMS, PLAINTIFF,
v.
HAPAG-LLOYD (AMERICA) INC., DEFENDANT.



The opinion of the court was delivered by: Hon. Harry D. Leinenweber

MEMORANDUM OPINION AND ORDER

I. BACKGROUND

On May 5, 2008, the Plaintiff, an African-American female, at the age of 43, was hired by Defendant as a "Customer Service Coordinator" to work in its Rate Department. As a new employee Plaintiff was subject to a 90-day probationary period, during which her suitability for employment was to be evaluated. Plaintiff's direct supervisor and the person responsible for her training was Customer Service Manager, Shannon Smerdon ("Smerdon"). In additional to a supervisor, Plaintiff was assigned a "partner" to act as a mentor. Plaintiff's partner was Amy Ross ("Ross"), a part-time Customer service Coordinator who had been with the company for two years.

The Defendant at relevant times maintained an Employee Handbook which contained various company policies and procedures, including a "Non-Discrimination and Anti-Harassment Policy. Prohibited conduct included use of derogatory remarks or jokes concerning protected characteristics. Employees are instructed by the handbook to report promptly complaints of discrimination, harassment or retaliation. Plaintiff also received a separate company document which stated that an employee could be terminated in the event the employee was found to have engaged in harassment of another employee. The document also advised the employee that if dissatisfied with a decision resulting from a company investigation, an appeal could be taken of the decision.

Two months after Plaintiff started her employment, the Plaintiff engaged in what was described as a "loud and open" conversation about dog bowel movements. A co-employee, Daniel Stodola, complained by e-mail to Smerdon about the conversation which he contended he had to endure for days. Plaintiff was also the subject of complaints by another co-employee, Kimberley Sabillon, who said that Plaintiff made comments about her eye makeup which she viewed as offensive. A third employee, Amy Ross (Plaintiff's partner), reported that Plaintiff, upon observing Ross' tattoo, told her that "black folk don't get tattoos" and "It's a colored thing." Ross reported to Smerdon that these comments offended her. About one week after the dog incident, Ross, Plaintiff's partner, sent her an instant message requesting that Plaintiff come to her work area to discuss a work issue. Plaintiff responded that she would come "in a few minutes." Ross replied, asking why she could not come immediately. Plaintiff responded "Where do I have to answer to you? You're not my boss."

Human Resource Director, Sylvester Burtin ("Burtin"), an African-American, met with Plaintiff and advised her that an employee had complained to him that Plaintiff had made a racial remark. Plaintiff admitted to Burtin that she made the "colored thing" comment. At no time during the meeting did Plaintiff, herself, make any allegation that she had been subjected to any act of discrimination, harassment, or retaliation. Burtin proceeded to conduct an investigation regarding the complaints against Plaintiff, during which he interviewed and obtained statements from several co-employees. He concluded that Plaintiff had indeed made inappropriate remarks, some of which were based on race, and was causing a morale problem with her co-workers. On July 23, 2008, Burtin met with Plaintiff and informed her that the company had decided to terminate her employment. At no time did Plaintiff raise any allegations of discrimination, harassment, or retaliation directed against her. Plaintiff did not appeal the termination of her employment.

Following her termination Plaintiff commenced this action in which she complains that she was discriminated against and harassed based on her race and age, and was retaliated against because of her race. Specifically Plaintiff contended in her deposition that she was discriminated against in the following ways:

1. Certain co-employees were allowed to take two-hour lunches and extended breaks;

2. She would do work for Amy Ross' accounts, but that Ross would receive credit for the work;

3. She was not permitted to walk around the office without notifying someone that she would be away from her desk for that period of time, while Ms. Ross and Mr. Stodola was allowed to do so; and

4. Ms. Ross was permitted to do "other things" while she was supposed to their work and nothing else other than what she was told to do.

Her claim of hostile work environment and age discrimination are based on essentially the same contentions as her claim of discrimination. She further contends that her termination was racially motivated because she was told by Burtin that his investigation had disclosed that she had made a racial remark toward black people.

II. LEGAL STANDARD

"Title VII makes it unlawful for an employer to discharge or discipline an employee because of that person's race or sex, among other grounds. 42 U.S.C. ยง 2000e." Coleman ...


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