United States District Court, D. Massachusetts
JUDITH GAIL DEIN UNITED STATES MAGISTRATE JUDGE
The magistrate judge to whom this matter was assigned has recommended that summary judgment enter in favor of the defendant, DTZ, Inc.,  on all of the plaintiffs claims. No objections were filed to the magistrate judge's Report and Recommendation ("R&R"). After reviewing the relevant pleadings, briefing, and papers, as well as the R&R, I ADOPT the R&R (dkt. no. 76) in its entirety. The defendant's Motion for Summary Judgment (dkt. no. 55) is GRANTED. Judgment shall enter for the defendant.
It is SO ORDERED.
REPORT AND RECOMMENDATION ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
March 8, 2016
Plaintiff Alfredo Araujo ("Araujo") has brought this action pro se against his former employer, DTZ-UGL Unicco ("DTZ"), 1 and athenahealth, Inc. Although he did not allege any specific causes of action in his Verified Complaint, it is undisputed that he has asserted claims against the defendants under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et sea. and/or Mass. Gen. Laws ch. 151B. Specifically, the plaintiff is claiming that the defendants discriminated against him on the basis of his race (Hispanic) and national origin (Dominican Republic) when he was employed as a cleaning and maintenance supervisor at the "Arsenal on the Charles" property in Watertown, Massachusetts. He is also claiming that the defendants DTZ, which was previously known as UGL Services Unicco Operations Co., has been named in the plaintiffs pleadings as "UGL Unicco-Unicco Operations." For purposes of this Report and Recommendation, the court will refer to that defendant as DTZ. retaliated against him after he complained about the discriminatory treatment. On September 30, 2014, the action against athenahealth was dismissed. (Docket No. 40). The matter is presently before the court on DTZ's motion for summary judgment by which it is seeking judgment as a matter of law on all claims brought against it. (Docket No. 55).
There is no question that the plaintiff passionately believes that he was wrongfully treated by his employer, who transferred him out of Watertown, and then to other locations. Nevertheless, even assuming, arguendo, that the plaintiff has established a prima facie case of discrimination (which this court does not find), Araujo has failed to establish either that his employer's legitimate, non-discriminatory reasons for its actions were pretextual, or that DTZ acted with discriminatory intent. Therefore, and for the reasons detailed more fully herein, this court recommends to the District Judge to whom this case is assigned that the motion for summary judgment be allowed.
II. STATEMENT OF FACTS
Plaintiff Araujo was employed by defendant DTZ, an outsource provider of custodial, maintenance, and other services. (DF ¶¶ 1-2). He was hired as a cleaner in 2002, and became a shift supervisor in September 2008. (DF ¶¶3-4; PR ¶ 4). As further detailed below, Araujo's employment with the company ended on October 17', 2014. (DF ¶ 5).
In 2008, plaintiff was scheduled to be transferred by DTZ to work as a shift supervisor at the "Arsenal on the Charles" property in Watertown, Massachusetts. (DF ¶ 6). According to the defendant, the transfer was delayed two weeks due to a complaint by a fellow employee, which was eventually found to raise insufficient concerns to prevent the transfer. (DF ¶¶ 7-11). The plaintiff denies having had any knowledge of the alleged complaint, and strenuously denies the substance of the complaint. (See PR ¶¶ 7-11). In any event, it is undisputed that the property manager for Arsenal on the Charles wanted the plaintiff at the property, and that Araujo was assigned as the shift supervisor there. (DF ¶10). His hours were generally 2:00 PM to 10:00 PM, but on occasion he started work at noon. (DF ¶ 12).
Some time prior to September 2010, the plaintiff and his manager, Alex Pena, had their access to athenahealth's space at the Arsenal on the Charles property discontinued, at athena-health's request. (DF ¶13; PR ¶13). According to the plaintiff, he had turned in his access card before DTZ discontinued it, so he was not initially concerned about the matter. (PR ¶ 15). The defendant contends that athenahealth provided two reasons for its request. First, that the plaintiff was seen on a video throwing out confidential documents with the regular trash, which was against athenahealth's policies, and, second, that female cleaners who reported to him had entered male bathrooms while they were occupied and did not leave on at least two occasions. (DF ¶ 14). Plaintiff strenuously denies the accuracy of these charges. He contends that there is no such video, and that any video that exists makes it clear that he is not the one throwing out the trash. He also argues strenuously that the female cleaners did not report to him, and that he was not responsible for their work. (PR ¶ 14; Pl. Mem. (Docket No. 67) at 3-4).
It is plaintiff's contention that athenahealth was discriminating against him because he is dark skinned and Dominican. (PI. Mem. at 3-4). In particular, plaintiff contends that athena-health's Office Manager, Antonio Costa ("Costa"), was motivated by his dislike of Araujo's skin color and deficiency in English. (Compl. (Docket No. 1) ¶¶ 1-5, 9-10). According to plaintiff's MCAD charge, which Araujo filed prior to bringing the instant action, Costa is Portuguese and has fair skin. Araujo contends that Costa was supported by Lou Amaral ("Amaral"), DTZ's Director of Operations. (Compl. ¶¶1-2). Other than his belief as to their motives, however, the plaintiff has not put forth any objective evidence of discriminatory animus on the part of Amaral and Costa. Plaintiff asserts that DTZ's decision to bar him from athenahealth's property, and later to remove him from Watertown entirely, was done to appease athenahealth, DTZ's largest client. (PI. Mem. at 3-4).
According to the defendant, in February 2011, DTZ was notified by the property management company for Arsenal on the Charles that DTZ's services at the property were suffering because the plaintiff and Mr. Pena were not permitted access to athenahealth. (DF ¶ 17). As a result, DTZ had to pull managers in from other accounts to service the athenahealth facility. (DF ¶18; Newcomb Aff. ¶14). Araujo admits that he was denied access to athena- health. (PR ¶ 19). He denies, however, that one shift supervisor had to have access to all of the businesses at the Arsenal on the Charles site. (Id.).
It is undisputed that there was an operational reorganization at the Arsenal on the Charles location, although the plaintiff disputes the facts presented by the defendant. According to DT2, it consolidated the supervisory role into a single position that could be filled by someone who could work on all of the tenants' properties. (DF ¶ 19). It further contends that Mario Guy was selected to serve in the consolidated supervisory role because he had significant relevant experience and could access all of the tenants' properties. (DF ¶ 22). Mr. Guy, who is Hispanic, had at least 20 years of experience managing cleaning services for commercial properties, (Id.). The plaintiff has never met Mr. Guy, and has never even seen him. (DF ¶ 23). Nevertheless, he claims that Mr. Guy was selected to replace Mr. Pena as the area manager, and that a Mr. Nelson became the shift supervisor. (PR ¶ 22). The plaintiff has provided no information about Mr. Nelson other than that he is a light skinned individual. (Id.).
On or about March 4, 2011, DTZ informed Araujo that he would be leaving Arsenal on the Charles, although he did not actually leave until August 29, 2011. Defendant characterizes this as a transfer, while the plaintiff states that he was offered a new position rather than a transfer. (DF ¶ 20; PR ¶ 20). Plaintiff admitted at his deposition that prior to leaving Arsenal on the Charles, he was offered a position for which he would have been paid a higher hourly rate, but he declined that offer. (DF ¶ 21; Pickett Aff. Ex. B at 71-75). On August 29, 2011, Plaintiff was given a letter, in English and in Spanish, which provided in relevant part as follows:
Please be advised that based upon operational needs, effective immediately, you are being reassigned to work as a shift supervisor in the Special Services division of UGL Services which is located at 219 Williams Street, Chelsea MA. Your salary will remain at $16.00 per hour. In this position you will report directly to Vence Pires.
(Pickett Aff. Ex. C). Mr. Pena was also notified on August 29, 2011, that he was being transferred to a different location as well. (DF ¶ 26).
Plaintiff apparently objected to reporting to Mr. Amaral and Mr. Pires, and objected to the way in which the reassignment to Chelsea was handled, especially in that he was allegedly told not to return to the Arsenal on the Charles property. (Compl. ¶ 5K & Ex. 15). At the Chelsea location, Araujo worked from about 1:00 or 2:00 PM until 10 PM. (DF ¶ 27; PR 1) 27). Therefore, his hours were roughly the same as they were when he worked at the site in Watertown. According to the defendant, the plaintiff requested a transfer from Chelsea because commuting to Chelsea was difficult for him. (DF ¶ 29). While Araujo denies requesting a transfer (PR ¶ 29), there is no evidence that he wanted to stay there. In any event, it is undisputed that the plaintiff worked in Chelsea for only a few weeks, and that in or about September 2011, he was transferred to work at a property in Everett where Mellon Bank was located. (DF ¶ 30). The defendant asserts that while he was working in Everett, Araujo remained employed as a supervisor, and ...