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Senador v. Zober Industries

April 28, 2009

WILBERT SENADOR
v.
ZOBER INDUSTRIES, INC.



The opinion of the court was delivered by: O'neill, J.

MEMORANDUM

On October 3, 2007, plaintiff Wilbert Senador filed a complaint against defendant Zober Industries, Inc. alleging race and national origin discrimination, hostile work environment and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and race discrimination and hostile work environment in violation of 42 U.S.C. § 1981. Presently before me are defendant's motions for summary judgment on plaintiff's claims and on plaintiff's request for punitive damages, plaintiff's response and defendant's reply thereto.

BACKGROUND

Plaintiff Senador is of Filipino descent. On referral from his parents, both of whom were employed by defendant, plaintiff initially was hired by defendant Zober in April 1992 as a mechanical assembler in defendant's electrical department. Plaintiff's brothers, Roberto Senador, Jr. and Albert Senador, also worked for defendant. Plaintiff assembled printed circuit boards in the electronics department on the second shift, from 3:30 p.m. to midnight.

On or about September 21, 1992, defendant hired Matthew Philipose as Production Manager. Philipose is of Indian descent. Philipose oversaw the electronics departments and became plaintiff's immediate supervisor.

On November 16, 2001, plaintiff voluntarily ended his employment with defendant, claiming that Philipose would not allow him time off to travel to the Philippines to visit family. In February 2002, Philipose rehired plaintiff. On October 11, 2005, upon plaintiff's recommendation, Philipose hired plaintiff's wife Nova Marie Senador to work in defendant's electronics department.

Plaintiff testified that Philipose called him a stupid, lazy Filipino weekly from 2002 until his termination in 2007. Furthermore, plaintiff asserts that Philipose often criticized his accent, laughed at him when he spoke and told him that he could not understand his accent. Plaintiff alleges that Philipose refused to call him by his name and instead referred to him as "hey Filipino."

Albert Senador, a former employee of defendant and plaintiff's brother, testified in his deposition that Philipose would always say that Filipinos are stupid, lazy and that he and his brother were Filipinos with "big body small brain." He testified that he heard Philipose make these statements weekly. He was employed by defendant from April 7, 1992 to October 1994 and from his rehire on February 4, 2003 until his termination in 2004.

Ricardo Perez, a former employee of defendant, also testified in his deposition that he once heard Philipose call plaintiff a stupid Filipino. He testified that he had forgotten to clock in or out on his timecard on several occasions and that Philipose would fix it for him once he told Philipose. He also testified that he recalled plaintiff forgetting previously and going to Philipose as well. Perez testified that he never saw Philipose scream at Indians but that Philipose would scream at plaintiff in front of him.

Plaintiff testified that John Antony,*fn1 an employee of Indian descent, was paid more money when he was re-hired in 2005 as a part-time employee at $13.00 an hour while plaintiff was paid less. Plaintiff also alleges that he was denied a promotion by Philipose in 2005 for a Surface Mount Machine (SMT) Operator position. Philipose promoted Antony instead.

On January 15, 2007, plaintiff asserts that he received a phone call from his wife informing him that their daughter was ill so, in a panic, he left work hastily to care for his daughter and forgot to clock out. He avers that he had never left the defendant's premises without clocking out before January 15, 2007. John Antony called plaintiff and told him that Philipose wanted him to return to company premises. Upon his return, Philipose showed him his time-card and asked him what happened. Plaintiff asserts that he tried to tell Philipose what happened but that Philipose would not let him explain. Philipose asked if he had done this previously and plaintiff allegedly told him no. Plaintiff also alleges that Philipose said "you Filipino people, you think you're smart, but you don't have no brain." John Antony was there for some of the conversation. The conversation ended with Philipose telling plaintiff to go and that they would talk about it the next day.

On January 16, 2007, plaintiff was summoned to speak to Philipose regarding the previous day's events. Plaintiff alleges that Philipose would not let him explain and terminated him. Plaintiff admits that he knew that leaving company premises without punching out was a violation of defendant Zober's rules and regulations. Plaintiff claims that, in other cases where an employee left defendant's premises without clocking out, Philipose did not discipline the employee but instead merely initialed the employee's timecard to approve their time. At the time of his termination, plaintiff alleges that he was told to sign a document that indicated that he had left defendant's premises on prior occasions or he would not receive his final paycheck. Plaintiff claims that he objected to the document's contents but reluctantly signed it. Defendant's version of the conversations that occurred on January 15, 2007 and January 16, 2007 differ from plaintiff's.

Finally, plaintiff testified that the above events caused him depression and problems sleeping.

STANDARD OF REVIEW

Rule 56(c) of the Federal Rules of Civil Procedure provides, in relevant part, that summary judgment is proper "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). An issue of material fact is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Summary judgment will be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

The party moving for summary judgment has the burden of demonstrating that there are no genuine issues of material fact. Id. at 322-23. If the moving party sustains the burden, the nonmoving party must set forth facts demonstrating the existence of a genuine issue for trial. See Anderson, 477 U.S. at 255. Rule 56(e) provides that when a properly supported motion for summary judgment is made, "an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). The adverse party therefore must raise "more than a mere scintilla of evidence in its favor" in order to overcome a summary judgment motion, and cannot survive by relying on unsupported assertions, conclusory allegations, or mere suspicions. Williams v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir. 1989). However, the "existence of disputed issues of material fact should be ascertained by resolving 'all inferences, doubts and issues of credibility against'" the moving party. Ely v. Hall's Motor Transit Co., 590 F.2d 62, 66 (3d Cir. 1978), quoting Smith v. Pittsburgh Gage & Supply Co., 464 F.2d 870, 878 (3d Cir. 1972).

DISCUSSION

Plaintiff alleges that defendant discriminated against him on the basis of his race and national origin under Title VII and on the basis of his race under § 1981 through denial of a promotion and pay increases and wrongful termination. Plaintiff also argues that defendant created a hostile work environment on the basis of his race and national origin in violation of Title VII and on the basis of his race in violation of § 1981. Additionally, plaintiff alleges that defendant retaliated against him for engaging in ...


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