United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT (DOC. NO. 30)
Sorokin United States District Judge
Mohamed El-Sayed (“El-Sayed”) filed this
employment discrimination action against Defendants Garda CL
New England, Inc. and Garda World Security Corporation
(collectively “Garda”), alleging three violations
under Mass. Gen. Laws ch. 151B, § 4(1). See
Doc. No. 1-1. Garda has moved for summary judgment. Doc. No.
30. El-Sayed opposed the motion, Doc. No. 38, Garda filed a
reply brief, Doc. No. 40, and the Court held a hearing. Doc.
No. 43. After careful consideration of the parties’
briefs and arguments, the motion is ALLOWED IN PART and
DENIED IN PART.
August 2011, El-Sayed began working for Garda as an Armored
Driver/Messenger at Garda’s Needham, Massachusetts
location. Doc. No. 32 ¶¶ 1, 2. El-Sayed emailed two
superiors-Regional Director Jaime Lopez and Corporate
Security Manager Brian Wilkins-on February 4, 2014,
expressing interest in “grow[ing] within the
organization and lead[ing] a successful branch.”
Id. ¶ 3. El-Sayed particularly wanted a job at
Garda’s Needham branch which did not involve driving
armored trucks. Id. ¶ 16. He had expressed
interest in getting a supervisory branch job as early as
April 2013. See Doc. No. 32-2 at 27-28. Later in February
2014, Associate Director William Chouinard
(“Chouinard”) interviewed El-Sayed, among others,
for a new “Supervisor of Operations” role. Doc.
No. 32 ¶ 4.
March 2014, a snowplow struck the armored car El-Sayed was
driving on Interstate 95. Id. ¶ 5. Afterwards,
El-Sayed requested a medical leave of absence, and, in
support of his request, “submitted documents from his
health care providers indicating that he was suffering from
medical conditions that rendered him unable to perform any of
his job functions.” Id. ¶ 6. Sometime
after March 31, 2014, Garda placed El-Sayed on Family and
Medical Leave Act leave. See Doc. No. 32-2 at 70-77.
While nobody at Garda precluded El-Sayed from returning to
work, he never did. Doc. No. 32 ¶¶ 8-10. As of July
14, 2015, medical reasons still prevented El-Sayed from
working. Id. ¶ 11.
ultimately decided not to add, let alone fill, the new
Supervisor of Operations position. Doc. No. 32-5 ¶ 5. In
or around February 2014, Garda reassigned Brandon Rodriguez,
a Driver/Messenger and Crew Leader, from driving armored
trucks to working in the Needham branch’s vault. Doc.
No. 32-6 ¶¶ 4, 5. Rodriguez remained classified as
a Driver/Messenger and Crew Leader, and his compensation did
not change. Id. ¶ 5. However, Rodriguez did
receive a badge normally reserved for supervisors, and
employees at the Needham branch regarded Rodriguez as, at the
least, a de facto supervisor to turn to when necessary. Doc.
No. 32-2 at 147.
filed a complaint, dated July 1, 2014, with the Massachusetts
Commission Against Discrimination (“MCAD”). Doc.
No. 39-1. El-Sayed’s MCAD complaint contained a single
count of discriminatory failure to promote. Id. at
4. “Specifically, ” it alleged, “on at
least two different occasions, Garda promoted employees who
are not members of Mr. El-Sayed’s protected class,
instead of [him], a Muslim Egyptian-American employee,
despite the fact that [he] was sufficiently qualified for the
position.” Id. ¶ 18. Earlier in the MCAD
Complaint, in a paragraph incorporated within Count I,
see id. ¶ 16, El-Sayed alleged that shortly
after he began at Garda, “coworkers and managers . . .
would make derogatory comments and jokes about [his] Egyptian
heritage, and following the Boston Marathon Bombings on April
15, 2014 [sic], Garda employees targeted [him] with
disparaging comments about his religion and Muslims in
general.” Id. ¶ 6.
subsequently filed the instant Complaint in Superior Court on
October 17, 2014. Doc. No. 1-1. Garda then removed the case
to this Court on December 24, 2014. Doc. No. 1.
judgment is appropriate when “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). Once a party “has properly
supported its motion for summary judgment, the burden shifts
to the non-moving party, who ‘may not rest on mere
allegations or denials of [its] pleading, but must set forth
specific facts showing there is a genuine issue for
trial.’” Barbour v. Dynamics Research
Corp., 63 F.3d 32, 37 (1st Cir. 1995) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 256 (1986)). The Court is “obliged to review the
record in the light most favorable to the nonmoving party,
and to draw all reasonable inferences in the nonmoving
party’s favor.” LeBlanc v. Great Am. Ins.
Co., 6 F.3d 836, 841 (1st Cir. 1993). Even so, the Court
is to ignore “conclusory allegations, improbable
inferences, and unsupported speculation.” Prescott
v. Higgins, 538 F.3d 32, 39 (1st Cir. 2008) (quoting
Medina-Muñoz v. R.J. Reynolds Tobacco Co.,
896 F.2d 5, 8 (1st Cir. 1990)). A court may enter summary
judgment “against a party who fails to make a showing
sufficient to establish the existence of an element essential
to that party’s case, and on which that party will bear
the burden of proof at trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986).
Complaint brings three claims for relief: a discrimination
claim on the basis of religion and national origin “by
failing (repeatedly) to promote him, ” Doc. No. 1-1
¶ 20; a hostile environment claim stemming from
“El-Sayed’s coworkers and managers engag[ing] in
a pattern and practice of harassing, humiliating and
embarrassing him about his Muslim religion, ”
id. ¶ 23; and a similar hostile environment
claim, stemming from “El-Sayed’s coworkers and
managers engag[ing] in a pattern and practice of harassing,
humiliating and embarrassing him about his Egyptian national
origin.” Id. ¶ 26. Garda raises multiple
arguments which, if all correct, require dismissal of the
whole Complaint. See Doc. No. 31. The Court
addresses these arguments by count, grouping (as the parties
have in their briefs) the two hostile environment claims
Count I-Failure to Promote Claim
first claims that Garda discriminated against him by
promoting people from driving armored trucks to working in
Garda’s Needham branch who were neither Egyptian nor
Muslim. Doc. No. 1-1 ¶ 20. In cases such as this one,
where El-Sayed has not produced an explicit acknowledgment
from Garda that it declined to promote him because of his
religion and/or national origin, the Court utilizes the
three-step burden-shifting framework the Supreme Court
promulgated in McDonnell Douglas Corp v. Green, 411
U.S. 792, 802-05 (1973). See Ray v. Ropes & Gray
LLP, 799 F.3d 99, 113 (1st Cir. 2015) (“Because
[the plaintiff] has not offered ‘direct proof’ of
[the defendant’s] alleged discriminatory animus,
‘we allocate the burden of producing evidence according
to the now-familiar three-step framework set forth in
McDonnell Douglas Corp. v. Green.’”)