PONSOR, District Judge.
Plaintiff filed this eight-count complaint against Defendants, who include Holyoke
Under the familiar summary judgment standard, the facts are recited in the light most favorable to the non-moving party, with all reasonable inferences drawn in that party's favor. Klaucke v. Daly, 595 F.3d 20, 24 (1st Cir.2010).
Plaintiff is a Virginia-based, family-owned electrical business that has been doing work in Holyoke since 1997. Plaintiff is not certified as a minority business, and over fifty percent of its employees are Caucasian. (Kwasnik Dep., Ex. 7, 197:19-20.) Plaintiff is owned by Olga Bruce
HG & E is a municipally owned utility. Three commissioners, appointed by the Mayor of Holyoke, select which contracts the utility awards. Pursuant to Mass. Gen. Laws ch. 30, § 39M, HG & E must award a contract to the "lowest responsible and eligible bidder."
Plaintiff first worked with HG & E in 1997 for a short time. In the early 2000s, in response to a request for bids, Bruce sent a letter to HG & E in which she referred to Plaintiff as "one of the only minority-women held" utility companies in America. (Ex. D.) In 2002, Plaintiff was awarded the first of what would be four annual electrical line contracts from HG & E. For the next five years, HG & E either awarded Plaintiff the annual electrical line contract or extended the contract into the following year without a formal bidding process, with the result that Plaintiff and HG & E worked together continuously from 2002 until August, 2007.
During this time, in 2003, at the request of Bruce, Alan Kwasnik provided Defendant Beauregard with a brochure that hailed Plaintiff as a minority-woman-owned business whose president was Olga
In 2004, issues arose between Plaintiff and HG & E regarding the productivity and qualifications of certain laborers, including Kwasnik's Hispanic uncles, Gerardo (Jerry) Perez and Altagege Perez, and the accuracy of Plaintiff's Daily Reports, which were submitted for billing purposes. At some point in 2004, Kwasnik and Costello had a "heated conversation" in which Costello complained about the productivity of four laborers, two of whom were Caucasian and two of whom were Jerry and Altagege Perez. (Kwasnik Dep., Ex. 7, 31:1-33:1.) Kwasnik stated that when he questioned whether Costello's animosity toward his uncles was based on their race, Costello answered, "It is what it is." (Kwasnik Dep., Ex. 7, 34:5.)
Memoranda from Beauregard to Plaintiff during this time, as well as internal HG & E memoranda, demonstrate Beauregard's specific concerns that Plaintiff was overcharging for the work of unlicensed laborers and documenting certain laborers as working when, in fact, they were not actually on site. (Ex. 31, 32.) In an October 13, 2004, e-mail, Costello informed Beauregard that Jerry Perez's productivity had improved and that he was "functioning adequately as a Laborer." (Ex. 33.) Nevertheless, on November 1, 2004, Beauregard sent a memo to Kwasnik with a list of concerns, primarily "the high number of laborers and/or non-qualified linemen" working on the project, and requesting copies of all certificates and licenses for the workers on Plaintiff's crew. (Ex. 34.)
Altagege Perez has submitted a declaration stating, without specifics, that he heard both Costello and Brouillard make disparaging comments about Puerto Ricans when he worked for Plaintiff at HG & E job sites from 2004 through 2007. (Perez Decl., Ex. BL.) According to Michael Sharp, a former foreman for Plaintiff, in early 2007 Costello referred to Kwasnik as a "Puerto Rican gangbanger" and told Sharp to warn Kwasnik that he did not want to see him at any HG & E job sites and that "if he did see Mr. Kwasnik he would make it more difficult for Power-Comm to provide services and may even terminate PowerComm's contract with HG & E." (Sharp Decl., Ex. BK, ¶¶ 10-11.) Sharp stated that after hearing this, Kwasnik went to the job sites with less frequency. (Id. at ¶ 13.)
On June 21, 2007—a period covered by the 2006 contract, which ran from August 27, 2006, through August 25, 2007—an employee of Plaintiff was electrocuted while working at an HG & E site and suffered severe non-fatal burns. (Ex. 22.) On the day of the accident, Plaintiff had two employees working for HG & E, the lineman who was injured and his supervisor. (Kwasnik Dep., Ex. 7, 115:18-24.) As per standard procedure, HG & E instituted a work stoppage, or "stand-down," and locked HG & E's trailer that Plaintiff had been using as an office. (Id. at 95:12-15.) Defendants informed Plaintiff that it could do no work while the stand-down was in effect. (Martel Dep., Ex. 13, 91:8-12; 119:11-14; Lavelle Dep., Ex. 8, 32:14-18.)
OSHA issued its report and citation on July 11, 2007, which included a fine to Plaintiff of $1500.00, and Proteus Engineering issued its report on September 24, 2007. In mid-September, Plaintiff for the first time requested and was granted access to its equipment and trailer. (Kwasnik Dep., Ex. 7: 95:22-96:2.) Although Plaintiff did not receive any communication from HG & E that the 2006 contract ended, the contract expired on August 25, 2007, by its terms. (Id. at 112:18-22.) The stand-down ended on this date as well. (Lavelle Dep., Ex. 8, 37:1-24.)
On August 17, 2007, HG & E invited fourteen potential bidders, including Plaintiff, to submit bids for the 2007 electrical line contract for the period of September 2, 2007, through August 30, 2008 ("2007 contract"). Once the bids were in, HG & E Purchasing Coordinator Yocelyn Delgado
Massachusetts' competitive bidding statute mandates that within ten days of notification of a contract award, a contractor obtain a bond to secure payment for labor, materials, and other charges pursuant to Mass. Gen. Laws ch. 149, § 29. Mass. Gen. Laws ch. 30, § 39M(c). Willco was unable to provide the requisite bond but offered in its place an irrevocable letter of credit. The record does not specify on what date Willco made this offer. However, on October 30, 2007, two months after the Commission had accepted the recommendation to award the contract to Willco, Delgado called Patrick Flaherty in the Bid Protest Unit of the Attorney General's office to inquire whether such a letter satisfied the statute. (Delgado Dep., Ex. BY, 42:23-24.) Flaherty informed Delgado that the letter would suffice. (Id.) Delgado's conversation with Flaherty was limited solely to the issue of the letter of credit
On November 9, 2007, Delgado sent a letter to Flaherty to confirm their conversation and to inform him that she would be relying on his advice in accepting the irrevocable letter of credit. (Ex. 51.) Upon receiving this letter, Flaherty called Delgado and informed her that, on further review, his initial advice was incorrect and that a letter of credit would not satisfy the statute's bond requirement. (Delgado Dep., Ex. BY, 160:5-8.)
In the meantime, Plaintiff was offered and refused the award of the secondary contract. The earliest documentation of this refusal is October 31, 2007, in a letter from Delgado to Plaintiff's attorney, which references several earlier telephone conversations in which Plaintiff's counsel indicated that Plaintiff would not sign the secondary contract.
On December 31, 2007, Delgado sent a memorandum to James Lavelle, informing him that Willco was unable to provide the required bond and recommending that HG & E rebid the project. The Commissioners accepted this recommendation on January 9, 2008. On February 19, 2008, HG & E opened the bidding for what would become the 2008 contract. (Ex. 56). On this same date, Plaintiff's attorney sent a letter to Lavelle to inform him that Plaintiff was declining to bid because it was filing suit against HG & E for discrimination and breach of contract. (Ex. 57.) Plaintiff never approached the Commission or contacted the Attorney General to protest the bidding process. (Dkt. 30, ¶ 46.)
Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56. The moving party bears the initial burden of demonstrating the absence of genuine issues of material fact. The burden then shifts to the opposing party who must demonstrate that a reasonable jury could return a verdict in its favor based on the evidence. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
Plaintiff alleges that Defendants violated 42 U.S.C. § 1981 by prematurely terminating the 2006 contract, failing to accept Plaintiff's bid on the 2007 contract, and creating a hostile work environment, all on the basis of racial animus.
Plaintiff alleges that Defendants' conduct following the 2007 accident was rooted in racial animus. Specifically, Plaintiff contends that the institution of the unusually long stand-down and the retention of the private investigator were adverse employment actions because they resulted in premature termination of the 2006 contract.
It is undisputed that the general purpose of a stand-down is to provide a contractor time to institute measures to prevent the occurrence of a similar accident. (Martel Dep., Ex. 13, 114: 5-8; 94: 22-24.) Stand-downs can last for various
As to the length of Plaintiff's standdown, Defendants have explained, and Plaintiff has offered no evidence to the contrary, that Proteus Engineering did not submit its investigative report with suggestions for preventive measures until after the 2006 contract expired. (Beauregard Dep., Ex. 11, 167: 18-22.) Moreover, Defendants assert that on the date of the accident, Plaintiff was in the process of concluding its work, and no further work was scheduled under the contract. (Beauregard Dep., Ex. 11, 202:21-203:3.) Again, Plaintiff has offered no evidence to the contrary.
As to the hiring of the private investigator, Defendants admit that they had not independently investigated other accidents. However, Beauregard stated that he hired an independent investigator because HG & E has "similarly situated personnel" who do similar work. (Beauregard Dep., Ex. 11, 204:16-205:3.) Because the 2007 accident was directly related to work that Defendants did themselves, namely working on electrical lines, Defendants had a particular interest in conducting their own investigation to prevent further such accidents. Defendants note that the other stand-downs cited by Plaintiff occurred after accidents involving independent contractors doing demolition or tree work, which is work that Defendants never do themselves. Accordingly, Defendants had no need to investigate how to prevent such accidents. (Id.)
"Pretext may be established `by showing weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons.'" Straughn, 250 F.3d at 41 (quoting Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 56 (1st Cir.2000)). Plaintiff has not offered an iota of supporting evidence to support its allegation that Defendants' post-accident conduct was racially motivated. Under these circumstances, no reasonable jury could find that the 2006 contract was terminated early, that its termination was due to racial animus, or that Defendants discriminated against Plaintiff in any way.
As noted, Plaintiff also alleges that Defendants' failure to award Plaintiff the 2007 electrical line contract was a discriminatory act. Specifically, Plaintiff argues that Defendants allowed Willco extra time to provide the requisite bond because of their racial animus toward Plaintiff. Defendants state that their fiduciary duty to their ratepayers required them to give additional time to Willco to provide the bond because of the discrepancy between Willco's bid and Plaintiff's bid, a very significant savings of nineteen percent. (Beauregard Dep., Ex. BT, 173:3-10.)
Plaintiff's argument fails on many levels. As a threshold matter, while there is no question that "compliance with the competitive bidding statute" includes payment of a bid deposit, J. D'Amico, Inc. v. Worcester, 19 Mass.App.Ct. 112, 472 N.E.2d 665, 667 (1984), Plaintiff has identified no case law, nor has this court found any, that suggests that an extension of the ten-day payment period prescribed by Mass. Gen. Laws ch. 30, § 39M(c), is impermissible.
Finally, even if HG & E's extension of time was improper, the only race-based evidence that Plaintiff offers concerning the 2007 contract is that Plaintiff is a minority-owned company and Willco's owner is Caucasian. The record is entirely devoid of evidence that HG & E's conduct was intentionally discriminatory. See Goodman v. Bowdoin College, 380 F.3d 33, 43 (1st Cir.2004) (plaintiff must show that defendant discriminated on the basis of race, the discrimination was intentional, and the discrimination was a substantial factor in the defendant's actions).
Plaintiff's claim that it was subjected to a hostile work environment fails because, even assuming the veracity of all of Plaintiff's allegations of race-based conduct, the harassment was insufficiently "severe and pervasive" to rise to an actionable level. Douglas, 474 F.3d at 15.
While there is no required number of incidents for a successful hostile work environment claim, "a plaintiff must show `more than a few isolated incidents of racial enmity.'" Danco, Inc. v. Wal-Mart Stores, Inc., 178 F.3d 8, 16 (1st Cir.1999) (quoting Snell v. Suffolk County, 782 F.2d 1094, 1103 (2d Cir.1986)). Here, Plaintiff has identified a handful of mainly non-specific comments made by Costello or Brouillard between 2004 and 2007.
In fact, Plaintiff has alleged that only one comment interfered with the work performance of an employee, namely that the comment reported to Kwasnik by Michael Sharp that Costello disliked Puerto Ricans caused Kwasnik to stay away from work sites. Kwasnik stated that he and Plaintiff were both adversely impacted because they each could have benefitted financially if he had been on-site employed as a lineman. (Kwasnik Decl., Ex. BN, ¶ 17.) Without minimizing the offensiveness of Costello's alleged isolated comment, standing alone it "does not provide a sufficient basis from which a reasonable fact finder could conclude that [Plaintiff] was subjected to a hostile work environment." Pomales v. Celulares Telefonica, Inc., 447 F.3d 79, 83 (1st Cir.2006). This is particularly true given that Kwasnik never heard the disparaging statement himself and that he testified that also during this time he used to "chit-chat" and have "friendly conversations" with Beauregard, Costello, and Brouillard. (Kwasnik Dep., Ex. 7, 25:20-26:8.)
For the foregoing reasons, the court will allow Defendants' Motion for Summary Judgment as to Plaintiff's claim of violation of 42 U.S.C. § 1981 (Counts I-III).
Plaintiff's claims of equal protection and due process violations under 42 U.S.C. § 1983 fail because they implicate no final policymakers. "`Section 1983 supplies a private right of action against a person who, under color of state law, deprives another of rights secured by the Constitution or by federal law.'" Redondo-Borges v. United States HUD, 421 F.3d 1, 9 (1st Cir.2005) (quoting Evans v. Avery, 100 F.3d 1033, 1036 (1st Cir.1996)). HG & E is a municipal department of the City of Holyoke.
Plaintiff's sole allegation concerns Lavelle, whom Plaintiff argues "was the final policy maker for HG & E in recommending electrical line contractors" and, in this capacity, established a policy "to prevent HG & E from contracting with minority contractors." (Dkt. 35, Pl. Opp'n. to Defs'. Motion for Summ. J., 9.) Lavelle, however, was not in a position to establish final policy because his recommendations could not become final without approval from the commissioners of HG & E, the final decision makers.
Accordingly, as Plaintiff has neither alleged nor provided any evidence that the commissioners violated Plaintiff's equal protection and due process rights under 42 U.S.C. § 1983, this court will allow Defendants' Motion for Summary Judgment as to Counts IV and V.
The bases for Plaintiff's claim of violation of the Massachusetts Civil Rights Act ("MCRA")
While it is true that conduct need not involve potential physical harm to violate the MCRA, Buster v. George W. Moore, Inc., 438 Mass. 635, 783 N.E.2d 399, 410 (2003), it nevertheless must be objectively threatening or coercive. Sarvis v. Boston Safe Deposit & Trust Co., 47 Mass.App.Ct. 86, 711 N.E.2d 911, 918 (1999) (quotations omitted) ("Evidence of threats, intimidation, or coercion is to be measured by an objective standard, not the state of mind of the person threatened."). Costello's supposed threat was passed on via a third party, and Costello himself was, as Plaintiff knew, without authority to terminate a contract.
A reasonable jury could not find that any of the alleged conduct constituted an actionable threat. Therefore, Defendants' Motion for Summary Judgment as to Plaintiff's claim of violation of the MCRA (Count VI) will be allowed.
Plaintiff alleges that Defendants conspired to deprive them of their civil rights in violation of 42 U.S.C. § 1985(3). "With near unanimity, the courts have rejected complaints containing mere conclusory allegations of deprivations of constitutional rights protected under § 1985(3)." Robinson v. McCorkle, 462 F.2d 111, 113 (1st Cir.1972). A conclusory allegation is precisely what Plaintiff has provided. Although Plaintiff's opposition to the summary judgment motion includes a lengthy explication of the law, Plaintiff has failed to point to any evidence in the record, nor could this court find any, to demonstrate that the named Defendants conspired or acted in furtherance of any conspiracy. See Aulson v. Blanchard, 83 F.3d 1, 3-4 (1st Cir.1996) (citing Griffin v. Breckenridge, 403 U.S. 88, 102-03, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971)) (Plaintiff alleging conspiracy to interfere with civil rights under 42 U.S.C. § 1985(3) "must allege the existence of (1) a conspiracy, (2) a conspiratorial purpose to deprive a person . . . of the equal protection of the laws., (3) an overt act in furtherance of the conspiracy, and (4) either (a) an injury to person or property, or (b) a deprivation of a constitutionally protected right or privilege.").
Even if Plaintiff is correct in contending that a civil conspiracy claim in Massachusetts requires no evidence of agreement, see Taylor v. Am. Chemistry Council, 576 F.3d 16, 34-35 (1st Cir.2009) (identifying "concert of action" and "substantial assistance" as accepted theories of tort liability in Massachusetts), Plaintiff has advanced no argument under either theory and has pointed to no facts to support the claim. Moreover, the record lacks any evidence that Defendants acted with the requisite intention of violating Plaintiff's civil rights. See Powell v. Alexander, 391 F.3d 1, 15 (1st Cir.2004) (distinguishing between an intent to act and an intent to "effect a civil rights violation" in the context of punitive damages).
Defendants' Motion for Summary Judgment as to Plaintiff's claim of violation of 42 U.S.C. § 1985(3) (Count VII) will be allowed.
Plaintiff's Mass. Gen. Laws ch. 93A, § 9 claim ("93A") is based on the alleged premature termination of the 2006 contract and Defendants' failure to award the 2007 contract to Plaintiff. Having determined that Defendants' conduct was not improper in regard to these two contracts,
Given the court's determination that Defendants' Motion for Summary Judgment will be allowed on all counts, the remaining motions (Dkt. Nos. 27, 38, 40, & 45) will be denied as moot.
For the foregoing reasons, Defendant's Motion for Summary Judgment (Dkt. No. 28) is hereby ALLOWED.
It is So Ordered.
(Ex. 47.)
The message goes on to inform David about extensive projects in the near future on which HG & E hopes Plaintiff will bid and ends, "If there's any questions give me a call. Thanks Buddy." (Id.)
Douglas v. J.C. Penney Co., 474 F.3d 10, 15 (1st Cir.2007) (quoting O'Rourke v. City of Providence, 235 F.3d 713, 728 (1st Cir.2001)).
