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Gedeon v. Northern Construction Services, LLC

United States District Court, D. Massachusetts

November 18, 2016

MICHAEL J. GEDEON, Plaintiff,
v.
NORTHERN CONSTRUCTION, SERVICES, LLC, Defendant.

          MEMORANDUM AND ORDER REGARDING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          KATHERINE A. ROBERTSON, UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         Pro se plaintiff Michael J. Gedeon (“Plaintiff”) was employed as a carpenter by Defendant Northern Construction Service, LLC (“Defendant”), for one day before he was laid off. Plaintiff alleges in his amended complaint that Defendant discriminated against him and terminated his employment on the basis of his race and in retaliation for his having filed claims of discrimination against his union in the past. Defendant denies that it discriminated against Plaintiff or otherwise acted improperly and contends that Plaintiff was terminated because Defendant had already hired another carpenter to fill the role on the project when the site superintendent, acting outside of his authority, hired Plaintiff.

         The matter is before the court on “Defendant, Northern Construction, LLC's Motion for Summary Judgment” (Dkt. No. 52). By its motion, Defendant contends that there are no disputed issues of fact and that it is entitled to judgment as a matter of law with respect to Plaintiff's claims of unlawful discrimination. Plaintiff has not filed an opposition, and the time for him to do so has elapsed. The parties have consented to this court's jurisdiction (Dkt. No. 21). See 28 U.S.C. § 636(c); Fed.R.Civ.P. 73. For the reasons detailed below, this court finds that Plaintiff has failed to present sufficient facts to create a trial-worthy issue, and, therefore, Defendant's motion for summary judgment is ALLOWED.

         II. Statement of Facts[1]

         Defendant is a Massachusetts-based general contractor specializing in bridge construction, site work, marine construction, concrete work, and utilities (DF ¶ 1). Most of Defendant's construction services are for publicly funded projects for federal, state, and municipal agencies (DF ¶ 2). Defendant was and is a party to a collective bargaining agreement (“the CBA”) with the New England Regional Council of Carpenters - United Brotherhood of Carpenters and Joiners of America - Local 108 (“the Union”) (DF ¶¶ 4-5). Pursuant to the CBA, after being awarded a project, Defendant contacts the Union regarding its carpentry needs, and, through the Union, it hires members to fill the available positions (DF ¶ 12). General Superintendent John Rahkonen and Senior Project Manager & Operations Coordinator Shawn Clark are in charge of the hiring and firing of all employees for Defendant (DF ¶¶ 10-11). Both Rahkonen and Clark are part of Northern Operations, the entity with responsibility for monitoring Defendant's worksite needs (DF ¶ 15).

         During the late winter and early spring of 2009, Clark met several times with Mike Twining, a Caucasian carpenter and Union member, in Defendant's Palmer, Massachusetts office, to discuss work opportunities (DF ¶ 46). During these meetings, the two discussed Twining's carpentry techniques and past employment experience (DF ¶ 47). In the spring of 2009, the Massachusetts Highway Department (“MassHighway”) awarded Defendant a construction contract for the rehabilitation of the Liberty and Armory Street bridges over Interstate 291 in Springfield, Massachusetts (“Liberty/Armory Project” or “the Project”) (DF ¶ 20). Clark concluded that Twining would be a good fit for the Project (DF ¶ 48).

         Around the time Defendant was awarded the Project, Plaintiff, an African-American carpenter and Union member, went to Defendant's Palmer office to talk to Rahkonen about work opportunities, including on the Project (DF ¶¶ 17-19, 23). Rahkonen advised Plaintiff that Defendant “had nothing right now, ” but told him to “come back” at a later date and referred him to other construction companies for possible job openings (DF ¶¶ 26-27, 29). Sometime later, Plaintiff saw a trailer belonging to Defendant at the Liberty/Armory Project job site, and Plaintiff approached Defendant's job superintendent, Robert Nelson, to speak about work on the job (DF ¶¶ 21, 31). Nelson lacked the authority to hire employees, but, believing that hiring Plaintiff would help Defendant fulfill certain diversity goals with MassHighway, Nelson told Plaintiff, “I can use you, ” and he took Plaintiff's phone number (DF ¶ 10-11, 32-33, 55). Sometime later, Plaintiff returned to Defendant's office to speak with Rahkonen about work once again (DF ¶ 34). This time the two spoke for two-to-three minutes in the hallway, and Rahkonen told Plaintiff that he was not going to hire him (DF ¶¶ 36-37). Plaintiff did not tell Rahkonen about his meeting or communications with Nelson (DF ¶ 35).

         In early June 2009, Nelson contacted Clark and advised him that he would need additional carpenters for the Liberty/Armory Project (DF ¶ 50). Clark made arrangements for Twining to be the next carpenter hired out of the Union and for him to begin work on the Project on June 19, 2009 (DF ¶ 50). Nelson was unaware that Clark had hired Twining, and, on June 16, 2009, Nelson called Plaintiff and told him to report to the Liberty/Armory Project job site for work the following day (DF ¶¶ 38, 49). Neither Clark nor Rahkonen were aware Nelson was hiring Plaintiff (DF ¶¶ 49, 52-53). Plaintiff reported to the job site as instructed by Nelson on June 17, 2009, filled out the requisite employment paperwork, and worked a full day (DF ¶ 43, 51). The following morning, Rahkonen was on the job site and recognized Plaintiff (DF ¶ 52). Upon speaking with Nelson, Rahkonen learned that Nelson had hired Plaintiff without his or Clark's approval and without going through Northern Operations or the Union (DF ¶ 53). At Rahkonen's direction, Nelson called Plaintiff into his office and laid him off (DF ¶ 54).

         At the time of Plaintiff's termination, Defendant employed 92 African-American workers, of whom 54 were carpenters (DF ¶ 9). On the Liberty/Armory Project as a whole, 14.36% of employment work hours were completed by minority employees, well exceeding the 5.00% goal for the Project (DF ¶ 9). The position for which Nelson hired Plaintiff was form carpenter, a role that entailed constructing concrete forms, temporary wood supports, and temporary form work that would span over the Interstate (DF ¶¶ 39-40). Nelson hired Plaintiff without obtaining information about Plaintiff's qualifications and experience relating to this specialized form of carpentry (DF ¶ 41). Defendant's lead carpenter, Scott Pascale, expressed concerns about Plaintiff's qualifications and skill level (DF ¶ 57).

         In 1995, 2003, and 2009, Plaintiff filed claims against the Union in the Massachusetts Commission Against Discrimination (“MCAD”) (DF ¶ 58). There is no evidence in the summary judgment record that Defendant knew of Plaintiff's claims at the time he was fired (DF ¶ 60). Plaintiff's testimony in his deposition establishes that he “assume[d]” that his Union business agent, Jason Garand, contacted Defendant and instructed that Plaintiff be fired because of his earlier complaints of discrimination against the Union, and that his “inclination [is] to know that it happens” (DF ¶ 61).

         III. Discussion

         A. Summary Judgment Standard

         Summary judgment is appropriate where “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). In the summary judgment context, “[a] factual dispute is ‘genuine' if ‘it may reasonably be resolved in favor of either party' and, therefore, requires the finder of fact to make ‘a choice between the parties' differing versions of the truth at trial.'” DePoutot v. Raffaelly, 424 F.3d 112, 117 (1st Cir. 2005) (quoting Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990) (citations and internal quotation marks omitted)). “[A] fact is ‘material' ‘if its existence or nonexistence has the ...


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