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James Dorvil v. Burlington Coat Factory Warehouse Corp. and Michael Fagan

October 14, 2011

JAMES DORVIL,
PLAINTIFF,
v.
BURLINGTON COAT FACTORY WAREHOUSE CORP. AND MICHAEL FAGAN, DEFENDANTS.



The opinion of the court was delivered by: Honorable Joseph E. Irenas

OPINION

IRENAS , Senior District Judge:

This matter comes before the Court on Defendants' Motion for Summary Judgment. (Dkt. No. 25) For the reasons set forth below, the Motion will be denied.

I.

The facts, and inferences drawn from those facts, are largely disputed in this case. For the purposes of this Motion, the Court resolves those disputes in favor of Plaintiff James Dorvil. *fn1

Dorvil is a Haitian immigrant who speaks with a thick accent. (Pl.'s L.Civ.R. 56.1(a) Statement at ¶¶ 1-3) *fn2 In 1998, Dorvil started to work for Defendant Burlington Coat Factory ("BCF"). ( Id. at ¶ 4) Over the next several years, Dorvil climbed the corporate ladder and became the Manager of the Merchandise Accounting Department. ( Id. at ¶¶ 7-10) In this role, Dorvil oversaw approximately 170 employees and reported directly to James Jacob. ( Id. at ¶¶ 6, 78)

In 2006 Bain Capital Partners purchased BCF. (Defs.' L.Civ.R. 56.1(a) Statement at ¶ 28) In September 2008, Defendant Michael Fagan, a white male, started work as Vice President of Retail Control. (Pl.'s L.Civ.R. 56.1(a) Statement at ¶ 17) Fagan supervised the entire Merchandise Accounting Department including Jacob and Dorvil. ( Id. at ¶¶ 18-20)

Over the course of the next year, Fagan and Dorvil's relationship became strained. At first, Fagan could not always

understand Dorvil's accent. ( Id. at ¶ 26) However, Fagan eventually became accustomed to Dorvil's accent and more easily understood. ( Id. at ¶ 27) Nevertheless, on approximately a weekly basis, Fagan teased Dorvil by pretending not to understand, often in front of employees Dorvil supervised. ( Id. at ¶¶ 27-29) On several occasions, Fagan would humiliate Dorvil by calling other employees over to interpret and sarcastically inquire whether Dorvil was speaking French or English. ( Id. at ¶¶ 27-29) This behavior undermined Dorvil's authority and ability to effectively supervise his employees.

Fagan's actions were not limited to off-handed comments about Dorvil's accent. Fagan would refer to Dorvil as the "Haitian Black" or the "Creole". ( Id. at ¶ 30) As the relationship further deteriorated, Fagan would refer to Dorvil with hostile gestures. ( Id. at ¶ 25)

Dorvil emphasizes two particular incidents that are demonstrative of an overall discriminatory trend. First, in August of 2009, several police officers walked into a restaurant while Dorvil, Fagan and Expense Payables Manager Patricia Heussner were at a business lunch. ( Id. at ¶ 32) Fagan exclaimed, "hide James, they might be looking for you." (Pl.'s Br. in Opp. at Ex. J) This was an obvious reference to Dorvil's skin color. Although Fagan explains this incident as an off-color joke that was relevant in the context of a previous conversation, neither Dorvil nor Heussner laughed or found the comment appropriate. (Pl.'s L.Civ.R. 56.1(a) Statement at ¶ 32; Pl.'s Br. in Opp. at Ex. J)

The second incident occurred in October 2009 when Fagan made another racially charged "joke" in front of several co-workers at a business meeting. (Pl.'s L.Civ.R. 56.1(a) Statement at ¶ 33) Fagan declared that if something went missing in the crowded room, the first person that people would accuse would be the black guy and pointed to Dorvil. ( Id. ) Fagan justified this comment as a teachable moment in not making assumptions. (Defs.' Br. at 6)

Other discriminatory events Dorvil alleges did not explicitly involve race, but Dorvil argues had a discriminatory motive. (Pl.'s L.Civ.R. 56.1(a) Statement at ¶¶ 33-41) For example, Fagan neglected to invite Dorvil to meetings he was required to attend and to which all other managers received invitations. ( Id. at ¶ 36) Furthermore, Fagan directly assigned work to Dorvil's employees without informing Dorvil. *fn3 ( Id. at ¶ 37)

Before Fagan started work, Dorvil had been promoted several times and received extremely positive annual reviews. ( Id. at ¶¶ 11-12) In fact, Steven Milstein, a former owner of BCF, commended Dorvil for his work performance. (Pl.'s Br. in Opp. at Ex. M) Despite these prior commendations, Dorvil asserts that, without prior warning, and after recently having received a positive annual review from Jacob under Fagan's supervision, Fagan placed Dorvil on a Performance Improvement Plan ("PIP") on October 6, 2009. *fn4 (Pl.'s L.Civ.R. 56.1(a) Statement at ¶¶ 53-56) The PIP was a disciplinary measure, which gave Dorvil a month long probationary period to improve his work performance or face termination. ( Id. at ¶¶ 55-58) Fagan was to monitor Dorvil's performance during the PIP. ( Id. at ¶ 59)

In response, Dorvil filed a formal written complaint of racial discrimination two days later on ...

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