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Chery v. Sears, Roebuck & Co.

United States District Court, D. Massachusetts

March 24, 2015


Ordered Filed March 9, 2015

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For Philippe Chery, Plaintiff: David I. Brody, Joseph L. Sulman, LEAD ATTORNEYS, Law Office of Joseph L. Sulman, Esq., West Newton, MA.

For Sears, Roebuck and Co., Jeff Merrifield, Armand Musto, Defendants: Christine M. Netski, Sugarman, Rogers, Barshak & Cohen, Boston, MA; Joshua D. Nadreau, Sugarman, Rogers, Barshak & Cohen, P.C., Boston, MA.

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George A. O'Toole, Jr., United States District Judge

The magistrate judge to whom this matter was referred has recommended that the defendants' motion for summary judgment (dkt. no. 24) and motion to strike (dkt. no. 34) be denied. The defendants have filed an objection to the Report and Recommendation (" R& R" ).

The defendants' six objections to the R& R are essentially reargument of the points made in support of their motions. Many of them simply insist on the defendants' version of the facts. I agree with the magistrate judge's disposition of those issues.

I also note that denial of the motion for summary judgment does not resolve disputed factual issues in the plaintiff's favor, but rather permits them to be explored at trial. Thus, for example, whether the Philbrick incident could lead to disrespect and insubordination among Chery and his colleagues may be a matter that turns on particular facts. But where there are alternatives, summary judgment is not warranted where the result may depend on which facts are proven at trial. The defendants' objection in this respect is not persuasive.

Accordingly, having carefully reviewed the pleadings, the parties' submissions, the R& R, and the defendants' objections, I

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ADOPT the magistrate judge's recommendation in its entirety. The defendants' motion for summary judgment (dkt. no. 24) is DENIED.

The decision on the defendants' Motion to Strike (dkt. no. 34) was within the magistrate judge's authority under 28 U.S.C. § 636(b)(1)(A) and was neither clearly erroneous nor contrary to law.




MARIANNE B. BOWLER, United States Magistrate Judge.

Pending before this court is a motion for summary judgment (Docket Entry # 24) filed by defendants Sears, Roebuck and Co. (" Sears" ), Jeff Merrifield, (" Merrifield" ) and Armand Musto (" Musto" ) (collectively " defendants" ). Defendants also seek to strike certain portions of plaintiff's response to their LR. 56.1 statement of undisputed facts and a number of exhibits plaintiff filed to avoid summary judgment. (Docket Entry # 34). Plaintiff Philippe Chery (" plaintiff" ) opposes both motions. (Docket Entry ## 28 & 41). After conducting a hearing on November 6, 2014, this court took the motions (Docket Entry ## 24 & 34) under advisement.


The parties' dispute arises out of plaintiff's employment with Sears where Merrifield and Musto work as managers. The three count complaint sets out the following causes of action: (1) creation and toleration of a racially motivated hostile work environment in violation of Massachusetts General Laws chapter 151B (" chapter 151B" ) (Count I); (2) retaliation for protected activity under chapter 151B (Count II); and (3) retaliation for protected activity under the Family and Medical Leave Act (" FMLA" ), 29 U.S.C. § § 2601 et seq. (Count III). (Docket Entry # 1).


Summary judgment is designed " 'to pierce the boilerplate of the pleadings and assay the parties' proof in order to determine whether trial is actually required.'" Davila v. Corporacion De Puerto Rico Para La Difusion Publica, 498 F.3d 9, 12 (1st Cir. 2007). It is appropriate " if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). It is inappropriate " if the record is sufficiently open-ended to permit a rational factfinder to resolve a material factual dispute in favor of either side." Pierce v. Cotuit Fire Dist., 741 F.3d 295, 301 (1st Cir. 2014).

" Genuine issues of fact are those that a factfinder could resolve in favor of the nonmovant, while material facts are those whose 'existence or nonexistence has the potential to change the outcome of the suit.'" Green Mountain Realty Corp. v. Leonard, 750 F.3d 30, 38 (1st Cir. 2014). The evidence is viewed " in the light most favorable to the non-moving party" and " all reasonable inferences" are drawn in his favor. Ahmed v. Johnson, 752 F.3d 490, 495 (1st Cir. 2014). Where, as here, the nonmovant bears the burden of proof at trial, he " must point to facts memorialized by materials of evidentiary quality and reasonable inferences therefore to forestall the entry of summary judgment." Geshke v. Crocs, Inc., 740 F.3d 74, 77 (1st Cir. 2014); see Woodward v. Emulex Corp., 714 F.3d 632, 637 (1st Cir. 2013) (as to

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issues on which nonmovant bears burden of proof, he must " 'demonstrate that a trier of fact reasonably could find in his favor'" ). " Even in employment discrimination cases 'where elusive concepts such as motive or intent are at issue,' this standard compels summary judgment if the non-moving party 'rests merely upon conclusory allegations, improbable inferences, and unsupported speculation.'" Feliciano de la Cruz v. El Conquistador Resort & Country Club, 218 F.3d 1, 5 (1st Cir. 2000).

" Unsupported allegations and speculation do not demonstrate either entitlement to summary judgment or the existence of a genuine issue of material fact sufficient to defeat summary judgment." Rivera--Colón v. Mills, 635 F.3d 9, 12 (1st Cir. 2011); see Serra v. Quantum Servicing, Corp., 747 F.3d 37, 39--40 (1st Cir. 2014) (" allegations of a merely speculative or conclusory nature are rightly disregarded" ). That said, a court " 'should exercise particular caution before granting summary judgment for employers on such issues as pretext, motive, and intent.'" Adamson v. Walgreens Co., 750 F.3d 73, 83 (1st Cir. 2014).

Defendants submit a LR. 56.1 statement of undisputed facts. Uncontroverted statements of fact in the LR. 56.1 statement comprise part of the summary judgment record. See Cochran v. Quest Software, Inc., 328 F.3d 1, 12 (1st Cir. 2003) (the plaintiff's failure to contest date in LR. 56.1 statement of material facts caused date to be admitted on summary judgment); Stonkus v. City of Brockton Sch. Dep't, 322 F.3d 97, 102 (1st Cir. 2003) (citing LR. 56.1 and deeming admitted undisputed material facts that the plaintiff failed to controvert). Finally, in reviewing a summary judgment motion, a court may examine " all of the record materials on file," Ahmed, 752 F.3d at 495, " including depositions, documents, electronically stored information, affidavits or declarations . . . or other materials." Fed.R.Civ.P. 56(c)(1).


I. Plaintiff's Vocational History with Sears

The facts in the light most favorable to plaintiff are as follows. Plaintiff is a black male from Haiti. (Docket Entry # 29-86, p. 2).[1] In January 2008, Sears hired plaintiff as a customer service associate (" CSA" ) at its automotive center in Natick, Massachusetts. (Docket Entry # 26, pp. 5-7). As a CSA, plaintiff received positive feedback on his performance. (Docket Entry # 29-86, p. 11). In or about October 2009, plaintiff was promoted to assistant auto center manager (" AACM" ) for the auto center in Saugus, Massachusetts (" Saugus" ). (Docket Entry # 29-86, p. 10). AACMs are responsible for the direct supervision of CSAs and mechanics and are tasked with ensuring the day-to-day execution of the selling, service and support teams to provide fast and effective assistance to each customer. (Docket Entry # 26-9, p. 9) (Docket Entry # 26-1, p. 13).

After working approximately six months as an AACM at Saugus, plaintiff was given a raise. (Docket Entry # 29-6). In September 2010, plaintiff was transferred to the auto center in Burlington, Massachusetts (" Burlington" ) which is one of the busiest stores in the entire company. (Docket Entry # 26-1, p. 158) (Docket Entry # 29-88, pp. 5-6). As an AACM at Burlington, plaintiff reported to Merrifield

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who was the Burlington auto center manager (" ACM" ). Merrifield was initially satisfied with plaintiff as he was happy with plaintiff's attitude and motivation. (Docket Entry # 29-89, p. 10). When it came time for plaintiff's 2010 review, Merrifield rated his work ...

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