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Kevin Frazier v. Bed Bath and Beyond Inc. & Gary

April 29, 2013


The opinion of the court was delivered by: William J. Martini, U.S.D.J.


Plaintiff Kevin Frazier, a database administrator who was fired from his job at Bed Bath and Beyond ("BBB"), brings this employment discrimination case against BBB and Frazier's former supervisor, Gary Newton (together "Defendants"). Defendants move for summary judgment pursuant to Federal Rule of Civil Procedure 56. Defendants also move for an adverse inference based on spoliation. There was no oral argument. Fed. R. Civ. P. 78(b). For the reasons set forth below, summary judgment is GRANTED IN PART and DENIED IN PART. The adverse inference is DENIED.


On May 7, 2007 Plaintiff Kevin Frazier began working as a database administrator for BBB's SQL team. Defs.' Statement of Undisputed Material Facts ("DSF") ¶ 1, ECF No. 46-1. Frazier's manager was Gary Newton; Newton's manager was David Ortiz. Id. ¶ 3. Besides from supervising the SQL team, Newton also supervised the Oracle team and the DB2 team. Id. ¶ 32.

Inappropriate Emails

During his time at BBB, Frazier, who is African-American, received two racially insensitive emails. On August 11, 2008, a co-worker named Denise Del Ray sent Frazier an email containing several offensive images of African-Americans (the "Del Ray Email"). Id. ¶ 7. Frazier did not report the email to his supervisor or Human Resources until February 10, 2009. Id. ¶ 11.

On November 4, 2008, David Rubin, an outside consultant sent Frazier an email with the subject line "Ghetto Spongebob" (the "Rubin Email"). Id. ¶ 16. Frazier's reply, "lmao," indicated amusement. Id. ¶ 17. One day later, Frazier changed his mind. He forwarded the "Ghetto Spongebob" email to Ortiz and told Ortiz that he was offended by the message. Id. ¶ 19. Id. Ortiz said he would direct Rubin to stop sending inappropriate emails. Id. ¶ 20.

Alleged Acts of Retaliation

On December 16, 2008, more than five weeks after Frazier reported the "Ghetto Spongebob" email to Ortiz, Frazier's on-call schedule was changed. Id. ¶ 35. Until that point, Frazier had alternated on-call hours with an outside vendor called Data Futures. Id. ¶ 36. Going forward, Frazier would be on-call 24-7. Id. ¶ 34. It is undisputed that Frazier's predecessor at BBB had the same on-call schedule. Id. ¶ 40. It is undisputed that Frazier's successor at BBB had the same on-call schedule. Id. ¶ 41. And it is undisputed that members of the Oracle team and the DB2 had the same on-call schedule. Id. ¶¶42-43.

Also on December 16, 2008, Frazier was told that his workday, which began at 9 a.m. and ended at 5 p.m., would now begin at 8 a.m. and end at 5 p.m. Pl.'s Statement of Undisputed Materials Facts ("PSF") ¶ 39, ECF No. 51-1; Frazier Transcript 116:24-117:25. At the time, Frazier claims, "everybody else" was working from 9 to 5. Frazier Dep. at 115:1-5, ECF No. 51-4. Specifically, Frazier identified Vinu, Diane, and Lisa as co-workers who worked an eight-hour day. Id. at 115:6-11. It is unclear from the record whether Frazier had firsthand knowledge of his colleagues' work hours. Indeed, the colleagues identified by Frazier submitted declarations stating that they worked from 8 a.m. to 5 p.m. Del Rey Declaration, ECF No. 53-2; Thomas Declaration, ECF No. 53-3; McHugh Declaration, ECF No. 53-4; see also Newton Declaration, ECF No. 53-1.

The record is not clear when, but probably at some point in Fall 2008, Ortiz asked Frazier to perform an SQL 2008 installation. DSF ¶ 44. In preparation for the installation, BBB enrolled Frazier in a training class. Id. ¶ 45. The vendor proceeded to cancel the class a number of times, and BBB told Frazier it planned to find another vendor. Id. ¶ 46. On the day Frazier was required to perform the installation, he had yet to take the class. Id. ¶ 47.

Though Frazier successfully completed the installation, id., he was concerned about not receiving the necessary training. Ortiz told Frazier that it was not Frazier's place to air his concerns. PSF ¶ 40 (quoting Frazier Dep. at 162:24-163:17). In response, Frazier smiled. Id. Ortiz replied: "You know, you need to stop smiling or I'll give you something to smile about." Id.

On February 10, 2009, Frazier reported the November 5, 2008 "Ghetto Spongebob" email to BBB's Human Resources Department. DSF ¶ 24. That same day, Frazier met with Human Resources Manager Denise DiPiano. Id. ¶ 25. DiPiano subsequently spoke with both Ortiz and Del Ray. DiPiano learned that Ortiz had instructed Rubin to stop sending inappropriate emails. Id. ¶ 30. DiPiano told Del Ray that Del Ray would face severe discipline if she continued to send inappropriate emails. Id. ¶ 31.

Not two weeks later, on February 21, 2009, Frazier filed a discrimination charge with the Equal Employment Opportunity Commission ("EEOC") alleging race discrimination. Id. ¶ 51.

Frazier's Performance Review and Subsequent Termination

On Friday, May 8, 2009, Newton sat down with Frazier for a performance review. Id. ¶ 54. Frazier received an evaluation of "Meets Expectations," and he was told his salary was being increased. Id. ¶¶ 55, 56. The next business day, Frazier was terminated. Id. ...

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