United States District Court, D. Massachusetts
MEMORANDUM & ORDER
INDIRA TALWANI, District Judge.
Plaintiff Mamnoon Khan filed the instant action against his former employer, Defendant OneBeacon Insurance Company, and individual Defendants Charles Kretschmar and James McKenna, alleging state and federal law claims of retaliation and discrimination based on race, religion, and national origin as well as interference with statutory rights under state law. In Defendants' Motion for Partial Summary Judgment [#91], Defendants seek dismissal of (1) the Complaint in its entirety against Kretschmar, (2) the discrimination claims against OneBeacon as they pertain to Kretschmar's comments and the allegations that Khan was denied the right to obtain certain state insurance licenses and experienced a delay in receiving a laptop computer, and (3) the retaliation claims. As further explained below, the court finds that genuine disputes of material fact exist that preclude the entry of summary judgment.
Local Rule 56.1 requires that motions for summary judgment "include a concise statement of the material facts of record as to which the moving party contends there is no genuine issue to be tried...." Defendants' Local Rule 56.1 statement is not concise. Instead, it identifies 312 facts that Defendants contend are both material to the claims at issue in the motion and undisputed. After Plaintiff Khan came forward with evidence disputing some of these facts (and adding many facts of his own), Defendants responded that many of these facts-including facts originally identified as material by Defendants-are not material. As a consequence of the parties' voluminous statements, the burden of organizing the evidence in this case has been "improperly shift[ed]... to the district court, " Mariani-Colón v. Dep't Homeland Sec., 511 F.3d 216, 219 (1st Cir. 2007), and the purpose behind Rule 56.1 has been defeated.
Looking past this procedural deficiency and after review of the record, the court also finds that the record supports Khan's position that he has properly disputed Defendants' material facts so as to allow all claims to proceed to a jury.
A. Claims against Kretschmar
The Complaint asserts claims under state and federal law against Kretschmar individually based on comments he purportedly made. Defendants argue that Kretschmar made only two comments, and that these comments were not severe or pervasive enough to be actionable.
Defendants concede that in April 2010, Kretschmar introduced Kahn at a regional claim operations meeting stating, "This is Mamnoon Khan. He is recently back from Pakistan. Some of you may recall him from the Foxborough office. He worked there before. He recently has come back, but don't worry, he's not a terrorist. I haven't seen his picture in the paper." Defs.' Statement ¶ 28. Defendants contend that this statement "was a mere offensive utterance that did not alter Khan's work environment." Defs.' Mem. Law Supp. Mot. Partial Summ. J. at 7 [#92] ("Defs.' Mem."). They stress that Kretschmar was nervous when he made the statement, and that he was thinking of something to say when he introduced Kahn. Id. They point out that other employees were not upset by the comment, and that most of the people chuckled or laughed at Kretschmar's remark. Id. They discount Khan's contention that Kretschmar added "so he's ok" or "yet, " Pl.'s Response ¶ 28, because Khan did not include those words in reports he made six months later. Defs.' Mem. at 6. They contend further that Kretschmar subsequently referred to Khan as "Dipanker"-the name of a OneBeacon employee of Indian descent-on one occasion and that this occurred "by accident." Id. at 11.
"[W]hether an environment is hostile' or abusive' can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). Here, Defendants would have the court ignore even the undisputed circumstances relating to the first comment: that it was made when introducing Khan to a large group of co-workers, that Khan's co-workers responded with laughter, and that management, though present, expressed no disapproval whatsoever of what Defendants now concede was offensive.
The court need not, however, answer the question whether these circumstances are sufficient for a jury to find that Kahn was subjected to severe harassment that materially altered the conditions of his employment for the court must not just consider the facts that Defendants concede, but also the record and reasonable inferences in the light most favorable to the nonmoving party. Kahn has asserted that after the comment was made, other employees spat at the floor as he walked by and one employee stated "[t]here goes the terrorist, " Pl.'s Response ¶ 350. He testified that Kretschmar called him "Dipanker" repeatedly, and that when Kahn corrected Kretschmar, Kretschmar would wave Khan off with his hand in a mocking or nonchalant way. Pl.'s Ex. 10, Khan Dep. at 89:22-90:20; Khan Aff. at ¶ 7. Finally, Khan's physical work space was proximate to Kretschmar's, and Khan alleges that on multiple occasions, he overheard Kretschmar make several highly offensive comments to Khan's direct supervisor, Defendant McKenna. One comment that Khan allegedly overheard was Kretschmar stating: "Why don't we bomb that f-cking country and eliminate all the terrorists. I hope my neighbor is visiting at that time." Pl.'s Ex. 10, Khan Dep. at 95:4-7. On this record, a jury could find that Kretschmar created a hostile or abusive work environment.
B. Dismissal of the discrimination claims as they pertain to Kretschmar's comments and the allegations concerning the delayed receipt of state insurance licenses and a laptop computer
Defendants' motion also seeks to dismiss certain allegations as they pertain to the discrimination claims against all Defendants.
First, Defendants argue that they cannot be responsible for Kretschmar's comments because Kretschmar was a co-worker, not a supervisor, and OneBeacon took prompt remedial action after Kahn complained about the statements. The record shows that in April 2010, Ann Bender, the head of the Canton, Massachusetts office, was handing off some of her responsibilities to Kretschmar, who was transitioning to become head of the Canton office while Bender was transitioning to become head of the Denver, Colorado office. Bender testified that she spent most of 2010 in Denver, but "would be back and forth because [she] still had responsibility for that office in Canton, " which is why Kretschmar "was being made the assistant manager." Pl.'s Ex. 3, Bender Dep. at 33:11-22. Moreover, Khan testified that, although Kretschmar was not in his reporting line, "he was the next man in charge of the office." Pl.'s Ex. 10, Khan Dep. at 93:5-12. Defendants admit that OneBeacon's corporate ...