Employment – Harassment – Sexual orientation

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Where a defendant employer has moved for summary judgment on claims asserted by a plaintiff employee, the motion should be (1) denied as to hostile work environment claims asserted in Counts I and IV but (2) allowed with respect to discrimination claims, as the plaintiff has not shown that the employer’s decision to enforce a workplace violence policy against him was pretextual.

“Plaintiff Steven Dacunha (‘Dacunha’) has filed this lawsuit against Defendant Skip Sagris Enterprises, Inc. (‘Skip Sagris’) asserting claims for gender, sex and sexual orientation discrimination, harassment and retaliation pursuant to Mass. Gen. L. c. 151B and Title VII, 42 U.S.C. section2000e et seq. …

“… Skip Sagris operates a Dunkin Donuts franchise in Billerica, Massachusetts. … Dacunha began his employment as a crew member there in June 2017. …

“Dacunha alleges that Skip Sagris discriminated against him based upon his sex/gender (Count II) in violation of Title VII, 42 U.S.C. section2000e et seq., and based upon his sex/gender and sexual orientation under Mass. Gen. L.c. 151B, section4 (Count V). …

“… Here, Skip Sagris has stated a legitimate, nondiscriminatory reason for terminating Dacunha, namely that his threats to [Natasha] Colon violated its Workplace Violence policy. …

“… Dacunha fails to show that his employer’s stated reason for termination was false or ‘cover’ for another reason. As to it being pretext for discrimination, Dacunha has not provided any evidence of discriminatory animus on the part of the sole decisionmaker, [Multi-Unit Manager David] Francisco. Dacunha points to the fact that he was regularly called names by Colon, but there is no dispute that this co-worker was not the decisionmaker in his termination. … Moreover, the undisputed record is that Francisco did not know Dacunha’s sexual orientation, … and that he was not aware of Dacunha’s complaints about Colon until his meeting with Dacunha to inform him of his termination for violating the Workplace Violence policy. …

“Given this record, any challenges to the sufficiency of Francisco’s investigation fail to show that the same was pretextual and the real reason for his termination was discrimination as Dacunha claims. … Similarly, the absence of any warning to Dacunha before his termination, on this record, does not provide evidence of pretext. Although departures from normal procedural sequences may be probative of whether an employer’s reason for terminating an employee is pretext for discrimination, Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 168-69 (1st Cir. 1998), here, there is no suggestion that Dacunha’s termination, with no prior notice, for violation of the Workplace Violence policy was a departure from the employer’s normal procedure. To the contrary, the policy indicates that ‘[i]f an investigation confirms that a threat of a violent act or violence itself has occurred, [Skip Sagris] will take swift appropriate corrective action with regard to the offending employee.’ … Here, the undisputed record is that employees can be terminated for a first offense of this policy, that Francisco has terminated other first offenders for violation of same, … and Dacunha has not pointed to evidence to the contrary in the record. …

“… Since Dacunha has not shown that a disputed issue of material fact remains as to rebutting Skip Sagris’s legitimate, non-discriminatory reason for his termination, the Court allows the motion for summary judgment as to Counts II and IV. …

“As to his termination, Dacunha also asserts claims for retaliation under Title VII (Count III) and Chapter 151B (Count VI). …

“… Although Dacunha alleges that he complained to others about Colon, the undisputed record is that he did not raise same with Francisco before the meeting in which Francisco called to inform him of his termination for violating the Workplace Violence policy. … Moreover, there is no evidence that Francisco knew that Dacunha had contacted the EEOC before the decision to terminate him. Francisco attests that he did not learn about this contact until after he had notified Dacunha of his decision to terminate his employment, … and Dacunha’s argument that Francisco should have known about same where Francisco was not present when he made such call, does not create a disputed issue of material fact to overcome the motion for summary judgment. Accordingly, the Court allows Defendant’s motion for summary judgment on Dacunha’s retaliation claims (Counts III and VI). …

“Even as the Court has concluded that Skip Sagris is entitled to summary judgment on Dacunha’s claims that his termination was discriminatory, the Court must still consider Dacunha’s claims that he was subject to a hostile work environment during his employment under both Title VII because of his sex and gender (Count I) and c. 151B because of his sex, gender and sexual orientation. (Count IV). …

“Skip Sagris … focuses its motion on Dacunha’s alleged failure to show that Colon’s comments were so severe or pervasive as to have altered the conditions of his employment and created an abusive work environment, the fourth, requisite element of a hostile work environment claim. … Dacunha, however, attests that he was called an offensive and derogatory term because of his sexual orientation more than five to ten times in June and July 2017, … and Colon did so in front of other employees and customers. … Although it is well settled that ‘offhand comments’ may not sufficiently severe or pervasive to constitute a hostile work environment, … context matters. This is particularly true where Dacunha’s employment had only begun in June 2017, the same month that the derogatory comments began from his co-worker and continued as he worked with Colon every day, … and as Colon admitted during Francisco’s investigation, until July 3rd, the date that led to his termination two days later. Considering the present record, a reasonable trier of fact may find that the purported conduct Dacunha experienced created a hostile work environment. …

“Dacunha additionally allege that that on multiple occasions [Lisa] Gentile, [Yamir] Rodriguez and [Matthew] Ribeiro failed to act to prevent Colon’s conduct and placed the onus on Dacunha to ignore her or switch his shift to avoid her. … These allegations also raise a triable issue as to if Skip Sagris took reasonable steps to rectify acts of harassment following Dacunha’s complaints. … Accordingly, for all of these reasons, the Court denies Skip Sagris’ motion for summary judgment as to Dacunha’s hostile work environment claims (Counts I and V).”

Dacunha v. Skip Sagris Enterprises, Inc. (Lawyers Weekly No. 02-354-20) (14 pages) (Casper, J.) (Civil Action No. 18-10999-DJC) (Aug. 31, 2020).

Click here to read the full text of the opinion.