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Durand v. Fedex

United States District Court, D. New Jersey

May 22, 2014

MANUEL A. DURAND, Plaintiff,
FEDEX, Defendant.


WILLIAM J. MARTINI, District Judge.

This is an employment discrimination case which Plaintiff brings under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. Defendant FedEx filed this motion for summary judgment. Plaintiff pro se Manuel A. Durand opposed and petitioned for the appointment of pro bono counsel. There was no oral argument. L.Civ.R. 78.1(b). For the reasons set forth below, Defendant's motion for summary judgment is DENIED with respect to the Title VII claim and GRANTED with respect to the Americans with Disabilities Act claim. Plaintiff's petition for pro bono counsel is GRANTED.


A. Facts Relevant to Title VII Claim

Plaintiff is a Peruvian-American who has been employed as a Freight Handler at FedEx's Newark Airport facilities since August 1991. (Defendant's Undisputed Statement of Facts ("Def's SOF") at ¶ ¶ 9-10, 16) Plaintiff complains of illegal discrimination, harassment, and retaliation at the hands of various supervisors between 2005 and 2011. The alleged violations of Title VII culminated in Plaintiff's being transferred to a different facility at Newark Airport in 2011.

The hostility began in 2005, when a FedEx superior told him he had to write a witness statement for an investigation of an internal complaint of discrimination that Durand's co-worker, Jose Castaneda, filed against two managers, Michael Fitzpatrick and Jim Fash. (Deposition of Manuel Durand ("Durand Deposition") at 48:12-49:24) Durand's participation in this investigation was supposed to have been confidential, but he believes it was not for two reasons. First, his manager at the time, Charlie Creekmur, told him senior management would retaliate against him for being involved in the investigation. (Durand Deposition at 49:1-6) Second, he noticed that after participating in this investigation, his managers began to scrutinize all his activities more intensely. ( See Durand Deposition at 49:17-23) Moreover, FedEx's own letters about internal complaints note that while the internal investigations are kept as confidential as possible, complete confidentiality is not always possible. ( See, e.g., Durand Deposition, Exhibit 15)

From April 2006 until October 2007, Maria Toscano was Plaintiff's supervisor. (Def's SOF at ¶ ¶ 13-15) Toscano made racially hostile comments to Durand and other Peruvian co-workers. (Durand Deposition at 35:8-24) For example, she told him, "I hate Peruvians. All Peruvians." (Durand Deposition at 35:15-16) She said that Peruvians are comemierda ("eating shit"). ( Id. at 35:17) When Durand told Toscano that he wanted to advance into an engineering position, she told him she would make sure he never advanced because he had been involved in internal complaints about discrimination. ( Id. at 35:8-14) Toscano also issued a reprimand against Durand for insubordination. (Durand Deposition, Exhibit 2) The reprimand prevented him from applying for a new position for twelve months and placed his job in jeopardy. ( Id. ) Although FedEx investigated the reprimand for improprieties and found none, Durand claims he was not insubordinate.

At some point, Durand filed an internal complaint about Toscano, and FedEx transferred her in October 2007. ( Id. at 43:2-4, 94:12-17)

Before FedEx transferred Toscano, she hired a new Team Leader, Douglas Swiney. (Durand Deposition at 94:12-17) Plaintiff claims that he continued to suffer from a hostile environment under Swiney's leadership from 2007 until 2011. Plaintiff testified that his complaints against Toscano inspired Swiney's hostility against him due to the loyalty between Toscano and Swiney. ( See Durand Deposition at 94:12-17, 104:22-23) Durand submitted several individual statements from coworkers stating that Swiney maintained a racially hostile work environment by assigning Hispanics less favorable tasks, calling them "you people, " and through his attitude and body language. ( See Durand Deposition at 98:20-100:20; Statement of Cesar Beltran) Plaintiff testified that Swiney once said, "I will not going to apologize to Spanish people, nor I shake hands with them. I'd rather to be fired." [ sic ] (Durand Deposition at 106:20-22) Durand submitted a statement signed by ten co-workers complaining that Swiney was responsible for "discrimination, retaliation, harassment, favoritism, and hostile environment" at the FedEx EWRRT Warehouse.

In 2008, Durand began obtaining mental health treatment for a condition caused by the hostility in his working environment. (Durand Deposition at 156:12-15)

In 2010, Durand filed an internal complaint against Doug Swiney's discriminatory treatment of the Hispanic workers. (Durand Deposition at 101:1-102:4) A meeting was held where Swiney threatened to get his son to "do something" to the person who filed the complaint if the investigation resulted in Swiney's being terminated. (Durand Deposition at 98:9)

In July 2011, Durand's Senior Manager, Salvatore Sacca transferred Durand to a new building at Newark Airport. (Durand Deposition, Exhibit 17) The transfer was the resolution management reached following the investigation of an internal complaint about racism that Swiney filed against Durand.[1] (Durand Deposition at 112:8-12) In his new position, Durand is paid the same, however, he has not been able to work overtime and has suffered some cutback in the number of hours he can work.

B. Facts Relevant to the Americans with Disabilities Act Claim

Plaintiff alleges that FedEx unreasonably failed to accommodate a disability in violation of the Americans with Disabilities Act. Plaintiff was diagnosed with an "adjustment disorder" in November 2008. (Def's SOF at ¶ 34) Plaintiff's condition was aggravated by certain co-workers on his PM shift, so he applied for a lateral move to an AM shift. ( Id. ) There were no open full-time positions on the AM shift at the time. (Def's SOF at ¶ 35) ...

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