United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
DOUGLAS P. WOODLOCK, District Judge.
James Tinory filed this suit against his former employer, AutoZoners, LLC ("AutoZone"), and his supervisor, Ilya Aksman, alleging that while himself employed as a supervisor at Brockton's AutoZone store he was the victim of discrimination and harassment based upon his perceived sexual orientation. Specifically, Tinory asserts that AutoZone and its employees, including Mr. Aksman, violated Massachusetts General Laws Ch. 151B(4)(1) and Title VII of the Civil Rights Act of 1964. Tinory and the Defendants have filed cross-motions for summary judgment on these claims.
A. Factual Background
AutoZone is a car part retailer and distributor based in Memphis, TN, with offices and facilities based in Massachusetts. James Tinory is a resident of Massachusetts who worked at an Autozone store located in Brockton from August 8, 2011 until July 27, 2012 as a store manager. Ilya Aksman is a district manager for Autozoners who had supervisory authority over the store of which Tinory was the manager.
As Store Manager, Tinory supervised approximately twentyfive employees and performed critical tasks, such as hiring and terminating staff, keeping track of inventories and stock, and handling cash. Although some subordinates held the title of "manager, " Tinory was the only store employee at his location authorized to hire and fire other workers and set schedules. He reported directly to Mr. Aksman, the District Manager, who would visit the store once every two weeks to observe its operations and suggest areas for improvement.
There are three incidents to which Tinory points as evidence of harassment and discrimination suffered while at AutoZone.
1. First Incident
The first incident occurred on July 2, 2012, when Tinory had a conversation with Luis Marrero, an AutoZone employee over whom Tinory had supervisory authority, during which he told Marerro that he had taken his teenage son to New York City to visit the Empire State Building. Tinory complained to Marrero that he had received a parking ticket because of parking issues created by the Gay Pride parade in Manhattan. Upon hearing this, William Torres, a Commercial Sales Manager (who was also a subordinate of Tinory's), laughed, and said that he "saw [Tinory] in New York City at the Gay Pride parade" wearing a pink shirt. Mr. Torres then claimed that he saw Tinory walking "like this", putting his hand on his hip, and mimicking a stereotypically gay manner of walking. He then walked away, saying "(all) [sic] I know is that I'm all man." Mr. Torres denies that aspect of the encounter and maintains that Mr. Tinory laughed before agreeing that he had worn a pink shirt at the parade.
That same day, Tinory alleges that he spoke with codefendant Aksman to tell him that Torres had been mocking him for his perceived sexual orientation, and that he was "sick of it." Tinory asked Aksman to intercede on his behalf, and to speak with Torres about the matter. In response, Tinory claims that Aksman told him to talk to Torres himself, even after Tinory noted that he would be uncomfortable doing so. For his part, Aksman claims that he and Tinory never discussed such discrimination.
2. Second Incident
The second incident on which Tinory bases his claim involves a child's bracelet. On or about July 16, 2012, Tinory found a small child's bracelet hung up behind the store counter with a note that said, "James's bracelet, don't touch please." Although all of the other employees referred to Tinory as "Jimmy, " Tinory was the only "James" employed at the store. Tinory asked the other employees about the bracelet. They all denied any knowledge, and other employees, when asked in an internal AutoZone investigation, contended that the bracelet had been left behind by a customer. Believing the bracelet to be an example of his coworkers intimating that he was homosexual, Tinory declared that he would keep it "for evidence." Jose Colon, an AutoZone employee, then protested that Tinory could not prove that the bracelet was for him because the attached note did not contain his last name. Shortly thereafter, the store phone rang, and Marrero informed Tinory that the call was for him. When Tinory picked up the phone, the caller hung up. About two minutes later, the phone rang again, and the caller asked Tinory, "Did you find my bracelet?"
Aksman was visiting the store that day, but Tinory did not inform him of the bracelet or the phone calls. Instead, he told Aksman that he was not feeling well. Aksman encouraged Mr. Tinory to see a doctor, and Tinory was permitted to take a few days off in order to attend to his medical problems.
3. Third Incident
Two days later, the third incident occurred. On July 18, 2012, Tinory was in the back of the store with Marrero and Nathaniel Steele. Tinory heard Marrero exclaim to Mr. Steele, "You're gay! You're gay, Nate!" According to Tinory, Marrero was looking directly at him as he spoke, as if the comments were directed at him. Tinory, feeling uncomfortable, left the room. He did not inform Aksman or any other superior about the incident. After leaving work that day, Tinory never returned to AutoZone.
4. Tinory's Absence from Work
On July 20, 2012, Tinory visited his primary care physician, Dr. Mallick, to determine the cause of his illness. Dr. Mallick determined that Tinory suffered from a polyp and hemorrhoids. She wrote Tinory a doctor's note, excusing him from work for four days.
On July 23, 2012, the day before he was due to return to work, Tinory retained an attorney, Brian Hatch. The following day, Hatch faxed a letter to AutoZone's Human Resources Manager, Nick Haluga, informing him that Tinory had been subject to harassment based upon his sexual orientation and that he could "no longer tolerate" the hostile work environment created by ...