United States District Court, D. Massachusetts
ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
(DOC. NO. 60)
SOROKIN, UNITED STATES DISTRICT JUDGE.
September 22, 2016, Plaintiff Yolene Barlatier filed suit
against Defendant Local Motion, alleging that Local Motion
fired her on the basis of her race, national origin, and
disability. Local Motion now moves for summary judgment, Doc.
No. 60, as well as to strike certain evidence submitted by
Ms. Barlatier, Doc. No. 85. For the reasons set forth below,
the motion for summary judgment is ALLOWED as to Counts II,
III, and IV. The motion to strike is DENIED in its entirety.
August 2011, Plaintiff Yolene Barlatier became an employee of
Defendant Local Motion. Doc. No. 76-14 ¶ 2. On August
11, 2011, Ms. Barlatier signed a policy regarding the use of
cell phone and other electronics. Id. ¶ 3. She
states under oath that the policy she signed provided that an
employee's first offense under the policy would result in
a five-day suspension, id., and submits Exhibit F,
Doc. No. 76-7, to establish the existence of such a policy
(the “two strike” policy). She further states
under oath that she “never received nor did [she] ever
see a Local Motion cell phone policy stating that the first
offense would result in termination until [her] unemployment
hearing.” Id. ¶ 16.
February 24, 2012, Ms. Barlatier, according to her
declaration, was driving a van into the Local Motion yard
with her cell phone clipped to her waist. Id. ¶
12. Ms. Barlatier states that she “removed her cell
phone from [her] waist and it was in [her] hand for a
moment.” Id. She also testified in her
deposition that she “wasn't on the phone…but
the phone was in [her] hands.” Doc. No. 67-1 at 5. In
contrast, Milagros Reyes, a Local Motion employee, has stated
under oath that she “observed Ms. Barlatier holding a
cellular phone to her ear while driving the van towards [her]
in a forward motion.” Doc. No. 66 ¶ 9. Local
Motion has also submitted the incident report completed by
another Local Motion employee, Leah McPhail, who wrote that
she saw Ms. Barlatier “driving van 124 on her cell
phone.” Doc. No. 67-10. Later, Ms. McPhail verbally
reported to Ricardo Joseph, a Local Motion supervisor, that
she “saw Ms. Barlatier back the van into a parking spot
while holding the phone to her ear.” Doc. No. 64 ¶
11. Based on the incident report completed by Ms. McPhail,
conversations with Ms. Reyes and Ms. McPhail, and advice from
a Local Motion Human Rights manager, Mr. Joseph terminated
Ms. Barlatier's employment “for violation of the
Zero Tolerance Policy and federal law.” Doc. No. 64
is no dispute that this was Ms. Barlatier's first
violation of the cell phone policy. However, Ms. Barlatier
alleges that her termination was based not on a violation of
the applicable cell phone policy, which she alleges was a
“two strike” policy, but rather on her race,
national origin, and weight. She alleges that “on a
daily basis, [Ms.] Reyes would make comments about [Ms.
Barlatier] being big, Black, fat, [and] a fat pig, ”
and that Ms. Reyes “told [her] that's why [her]
uniform didn't fit and that she thought Haitians could do
whatever they want.” Doc. No. 76-14 ¶ 9. She also
alleges that she told her manager, Mr. Joseph, about these
comments, but that he responded, “That's just the
way Millie is.” Id. ¶ 10.
contrast, Local Motion argues that Ms. Barlatier was
terminated for violating the effective cell phone policy,
which they assert provided for the immediate termination of
any employee found to have violated the policy (the
“zero tolerance” policy). Doc. No. 67-6. Local
Motion supports this argument with declarations from four
employees, including two Human Resources Managers, Doc. No.
63; Doc. No. 65, one Supervisor, Doc. No. 64, and one
Trainer, Doc. No. 66. Each of the four employees states that
the company had a “zero tolerance” policy in
effect at the time Ms. Barlatier was terminated. The current
Human Resources Manager states that the policy did not change
to a “two strike” policy, providing for a
five-day suspension for the first violation, until June 2012,
four months after Ms. Barlatier's termination. Doc. No.
63 ¶ 10. Local Motion submits a one-page document
reflecting the “zero tolerance” policy, Doc. No.
67-6, and a separate signature page, Doc. No. 67-5, seemingly
to establish that Ms. Barlatier signed the “zero
tolerance” policy upon joining Local Motion. Ms.
Barlatier submits the same signature page associated with a
different one-page policy, which is a “two
strike” policy providing for a five-day suspension on
the first offense. Doc. No. 76-7.
has advanced two discrimination claims: one based on race and
national origin under Title VII of the Civil Rights Act, and
the other based on disability under the Americans with
Disabilities Act (“ADA”). Defendant moves for
summary judgment on the entirety of the amended complaint.
Defendant also moves to strike the Affidavit of Myrlande
Joseph, Doc. No. 76-5, and portions of the Declaration of
Yolene Barlatier, Doc. No. 76-14.
Court applies the familiar summary judgment standard. Summary
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). The Court also applies the familiar
three-part burden-shifting analysis under the McDonnell
Douglas framework. Mc Donnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). In order to establish a
prima facie case, the plaintiff must show that: “(1) he
is a member of a protected class; (2) he was qualified for
the job; (3) the employer took an adverse employment action
against him; and (4) the position remained open or was filled
by a person with similar qualifications.” Kosereis
v. Rhode Island, 331 F.3d 207, 212-13 (1st Cir. 2003).
The burden then shifts to the employer to “articulate
some legitimate, nondiscriminatory reason” for the
adverse employment action. McDonnell Douglas, 411
U.S. at 803. In order to prevail, the plaintiff must then
show “that the legitimate reasons offered by the
defendant were not its true reasons, but were a pretext for
discrimination.” Texas Dep't of Cmty. Affairs
v. Burdine, 450 U.S. 248, 248 (1981).
Plaintiff's Claims for Declaratory Judgment
concedes that that her two claims for declaratory judgment
(Counts II and IV in the Amended Complaint, Doc. No. 47)
“cannot be reviewed under the current circumstances by
this court.” Doc. No. 75. Therefore, Defendant's
motion is ALLOWED as to Counts II and IV.