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Barlatier v. Local Motion, Inc.

United States District Court, D. Massachusetts

December 3, 2018

LOCAL MOTION, INC., Defendant.



         On 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.

         I. BACKGROUND

         In 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.

         On 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.”[1] Doc. No. 64 ¶¶ 10-14.

         There 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.

         In 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.[2] Doc. No. 76-7.

         Plaintiff 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.


         The 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).


         A. Plaintiff's Claims for Declaratory Judgment

         Plaintiff 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.

         B. Plaintiff's ...

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