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Pepin v. General Dynamics-OTS Inc

United States District Court, D. Maine

November 23, 2016

RONALD PEPIN, Plaintiff
v.
GENERAL DYNAMICS-OTS, INC., Defendant

          RECOMMENDED DECISION ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          H. Rich III United States Magistrate Judge

         The defendant, General Dynamics-OTS, Inc., moves for summary judgment as to all claims asserted against it in this age discrimination in employment action. For the reasons that follow, I recommend that the court grant the motion.

         I. Applicable Legal Standards

         A. Federal Rule of Civil Procedure 56

         Summary judgment is appropriate “if 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); Ahmed v. Johnson, 752 F.3d 490, 495 (1st Cir. 2014). “A dispute is genuine if ‘the evidence about the fact is such that a reasonable jury could resolve the point in favor of the non-moving party.” Johnson v. University of P.R., 714 F.3d 48, 52 (1st Cir. 2013) (quoting Thompson v. Coca-Cola Co., 522 F.3d 168, 175 (1st Cir. 2008)). “A fact is material if it has the potential of determining the outcome of the litigation.” Id. (quoting Maymi v. P.R. Ports Auth., 515 F.3d 20, 25 (1st Cir. 2008)).

         The party moving for summary judgment must demonstrate an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). In determining whether this burden is met, the court must view the record in the light most favorable to the nonmoving party and give that party the benefit of all reasonable inferences in its favor. Johnson, 714 F.3d at 52. Once the moving party has made a preliminary showing that no genuine issue of material fact exists, the nonmovant must “produce specific facts, in suitable evidentiary form, to establish the presence of a trialworthy issue.” Brooks v. AIG SunAmerica Life Assur. Co., 480 F.3d 579, 586 (1st Cir. 2007) (quoting Clifford v. Barnhart, 449 F.3d 276, 280 (1st Cir. 2006) (emphasis omitted)); Fed.R.Civ.P. 56(c). “As to any essential factual element of its claim on which the nonmovant would bear the burden of proof at trial, its failure to come forward with sufficient evidence to generate a trialworthy issue warrants summary judgment to the moving party.” In re Spigel, 260 F.3d 27, 31 (1st Cir. 2001) (citation and internal punctuation omitted).

         B. Local Rule 56

         The evidence that the court may consider in deciding whether genuine issues of material fact exist for purposes of summary judgment is circumscribed by the local rules of this district. See Loc. R. 56. The moving party must first file a statement of material facts that it claims are not in dispute. See Loc. R. 56(b). Each fact must be set forth in a numbered paragraph and supported by a specific record citation. See id. The nonmoving party must then submit a responsive “separate, short, and concise” statement of material facts in which it must “admit, deny or qualify the facts by reference to each numbered paragraph of the moving party's statement of material facts[.]” Loc. R. 56(c). The nonmovant likewise must support each denial or qualification with an appropriate record citation. See id. The nonmoving party may also submit its own additional statement of material facts that it contends are not in dispute, each supported by a specific record citation. See id. The movant then must respond to the nonmoving party's statement of additional facts, if any, by way of a reply statement of material facts in which it must “admit, deny or qualify such additional facts by reference to the numbered paragraphs” of the nonmovant's statement. See Loc. R. 56(d). Again, each denial or qualification must be supported by an appropriate record citation. See id.

         Local Rule 56 directs that “[f]acts contained in a supporting or opposing statement of material facts, if supported by record citations as required by this rule, shall be deemed admitted unless properly controverted.” Loc. R. 56(f). In addition, “[t]he court may disregard any statement of fact not supported by a specific citation to record material properly considered on summary judgment” and has “no independent duty to search or consider any part of the record not specifically referenced in the parties' separate statement of fact.” Id.; see also, e.g., Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010); Fed.R.Civ.P. 56(e)(2) (“If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the motion[.]”).

         II. Factual Background

         The parties' statements of material facts, credited to the extent that they are either admitted or supported by record citations in accordance with Local Rule 56, with disputes resolved in favor of the plaintiff as the nonmovant, reveal the following.[1]

         The defendant, which changed its name from General Dynamics Armament and Technical Products to General Dynamics-OTS, Inc. (“GD-OTS”) in August 2013, operates a manufacturing facility in Saco, Maine, where it manufactures military weapons for the United States Department of Defense. Defendant General Dynamics-OTS, Inc.'s Statement of Material Facts in Support of Motion for Summary Judgment (“Defendant's SMF”) (ECF No. 32) ¶ 1; Plaintiff's Opposing Statement of Material Facts (“Plaintiff's Responsive SMF”) (ECF No. 39) ¶ 1. In 2013, hourly production workers at GD-OTS, including the plaintiff, were represented by Local 406 New England Joint Board, UNITE HERE (the “Union”), and were subject to a collective bargaining agreement (“the CBA”) between GD-OTS and the union, dated November 5, 2012. Id. ¶ 2. The hourly workers were also subject to the defendant's Work Rules & Policies and General Dynamic's Standards of Business Ethics and Conduct. Id.

         GD-OTS has an established policy that prohibits all forms of unlawful harassment, discrimination, and retaliation, including on the basis of age. Id. ¶ 3. This policy is distributed to all of its employees. Id. GD-OTS also provides regular training to all of its employees regarding its policy against unlawful harassment, discrimination, and retaliation, including instruction on what constitutes unlawful harassment, discrimination, and retaliation and how to make a complaint of harassment, discrimination, or retaliation. Id.

         Pepin attended ethics training while employed at GD-OTS, which included training on GD-OTS's policy against sexual harassment. Id. ¶ 4. He also received General Dynamics' Standard of Business and Ethics Conduct. Id. Other than Pepin's complaint of age discrimination, GD-OTS has not had a complaint of age discrimination since GD-OTS acquired Saco Defense Corp. in May 2000. Id. ¶ 5.[2]

         Pepin was hired by Saco Defense Corp., GD-OTS's corporate predecessor, o August 13, 1979, as an assembler. Id. ¶ 6. In 1984, he became an NC miller. Id. GD-OTS acquired Saco Defense Corp. on or about May 11, 2000, and Pepin became an employee of GD-OTS. Id. ¶ 7. In 2004, Pepin became a metal removal specialist and remained in that position throughout his tenure with GD-OTS. Id. In June 2013, GD-OTS had a reduction in force and laid off approximately 110 employees at the Saco location. Id. ¶ 8.[3] Pepin was not selected for layoff. Id.

         On August 12, 2013, Pepin had a verbal altercation with a co-worker, Neil Lagasse. Id. ¶ 9. The altercation was loud and profane. Id. As a result of the altercation, on August 15, 2013, GD-OTS gave Pepin and Lagasse each a one-day suspension without pay, for unacceptable workplace behavior. Id. ¶ 11. The union did not grieve the suspension. Id. On August 19, 2013, GD-OTS gave Pepin a three-day suspension without pay for failure, on August 16, 2013, to gauge parts at the required frequency to make sure that they met customer specifications. Id. ¶ 14. The union did not grieve this suspension. Id.

         On August 19, 2013, Lagasse told Chuck Bates, Manager, Staff Development, that Pepin had sexually harassed Sally Bartlett, a former employee, while she was employed at GD-OTS. Id. ¶ 15. On or about August 19, 2013, Bates spoke with Bartlett about the allegations. Id. ¶ 16.[4]Bartlett told Bates that she felt sexually harassed by Pepin while she worked with him, and that he showed her pictures of his penis and of his girlfriend masturbating. Id. She suggested that Bates speak to Patty Borton, one of her former co-workers. Id. She told Bates that she did not complain about Pepin while she worked at GD-OTS because she was afraid that Pepin would retaliate against her. Id. ¶ 17. She decided not to return to work at GD-OTS because of Pepin. Id.

         Bates spoke with Borton on August 19, 2013. Id. ¶ 18. She said that she had felt sexually harassed by Pepin. Id. She said that Pepin would show her pictures of his penis on his cell phone, sat so that his penis was exposed to her, and often made sexual comments or gestures that made her very uncomfortable and caused her a lot of emotional distress. Id. Borton told Bates that she did not complain about Pepin because she was afraid of losing her job and that Pepin would retaliate against her. Id. ¶ 19.

         As part of GD-OTS's investigation into the complaints against Pepin, on August 19, 2013, Bates also interviewed Rick Morin, CNC operator, Lagasse, and Mark Lessard, CNC operator, all of whom had worked in the same area as Bartlett and Borton at the relevant time. Id. ¶ 20. Morin told Bates that he was reluctant to participate in the investigation for fear of retaliation from Pepin, but acknowledged knowing about the sexually explicit photos that Pepin was allegedly showing at work. Id. ¶ 21.[5] He stated that he remembered Bartlett telling Pepin to “get away from me[.] I don't want to see pictures of your penis.” Id.

         Lagasse told Bates that he was aware of the photos that Pepin was allegedly showing at work. Id. ¶ 22.[6] He also said that he knew about Pepin's use of inappropriate language and comments that Pepin made about Bartlett's sexual orientation. Id. Lessard told Bates that he was aware of the sexually explicit photos that Pepin was allegedly showing to people at work. Id. ¶ 23.[7] He also said that Pepin directed inappropriate conduct at Bartlett, who did not deserve it. Id.

         Following his investigation, Bates concluded that Pepin had made inappropriate sexual comments, used inappropriate sexual language and pictures, and made inappropriate gestures in the workplace for several years, through at least December 2012. Id. ¶ 26. Based on his findings, Bates recommended that Pepin be terminated from employment. Id. ¶ 27.[8] On August 20, 2013, Bates prepared a Request for Termination based on the results of his investigation of Pepin's conduct. Id. ¶ 28. He also prepared a memorandum summarizing the results of his investigation and the reason for termination. Id.

         Also on August 20, 2013, Bates notified Denise Bailey, secretary of the union, that a sexual harassment complaint had been filed against Pepin by some of his female co-workers, and that GD-OTS would be suspending Pepin pending discharge. Id. ¶ 29. On August 21, 2013, the operations, human resources, and legal departments of GD-OTS approved the termination of Pepin's employment. Id. ¶ 30. On that day, Bates sent a suspension discharge notice to Pepin by certified mail with a copy to the union. Id. ¶ 31. According to the notice, the suspension became an automatic discharge on the seventh regularly scheduled workday after the date of the notice, unless notification to the contrary was provided by GD-OTS. Id.

         On August 22, 203, Bates and Marc Parent, president of the union, met with Pepin to give him the notice of disciplinary action. Id. ¶ 32. During the meeting, Pepin denied engaging in any of the conduct identified in the notice. Id. Pepin, Parent, and Bates signed the notice. Id. On or about August 26, 2013, the union filed a grievance regarding Pepin's discharge. Id. ¶ 33. Pepin told Parent and the union his side of the story, denied sexually harassing his co-workers, and denied engaging in any of the conduct listed in the notice of disciplinary action. Id.

         On August 28, 2013, Bobbi Courtois, another of Pepin's co-workers, told Bates that, years before, Pepin had reached down her blouse and touched her breast. Id. ¶ 34.[9] Sally Bartlett, Patty Borton, and Bobbi Courtois each later signed an affidavit verifying the information provided to Bates during the investigation of the complaints against Pepin. Id. ¶ 35.[10]

         On or about August 28, 2013, Bailey began an investigation of the allegations of sexual harassment against Pepin, which included vulgar language in the workplace, showing sexual pictures to other employees, inappropriately showing private body parts to another employee, and discussing the sexual orientation of other employees. Id. ¶ 36. On or about September 11, 2013, Bailey spoke with Bartlett, a former machine operator for GD-OTS, about her complaints against Pepin. Id. ¶ 37.[11] Bartlett told Bailey that Pepin routinely used vulgar language, and showed her pictures of his penis and of his girlfriend masturbating. Id. Bartlett told Bailey that she decided not to return to work at GD-OTS because of Pepin's conduct. Id.

         On or about September 12, 2013, Bailey spoke with Patty Borton, an inspector for GD-OTS, about her complaints against Pepin. Id. ¶ 38.[12] Borton told Bailey that Pepin talked about sex all the time and showed her pictures of his penis. Id. She also told Bailey that Pepin showed her his penis through the bottom of his shorts while he sat at his work station. Id. Bartlett and Borton did not report Pepin's conduct sooner because they feared retaliation. Id. ¶ 39.[13]

         Based on the results of Bailey's investigation, the union withdrew the grievance regarding Pepin's discharge. Id. ¶ 40.

         In August 2013, the average age of GD-OTS's employees was 50.25. Id. ¶ 41.[14] In May 2014, nearly 60% of GD-OTS's employees were in their 50s, 60s, and 70s. Id. In May 2014, the average age of GD-OTS's employees was 50.18. Id. ¶ 42.[15] In ...


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