Petition for Writ of Certiorari — Rogerio S. Tavares, Petitioner v. Enterprise Rent-A-Car-Company of Rhode Island

la

Filed: 12/19/2017

United States Court of Appeals

For the First Circuit

No. 17-1023

ROGERIO S. TAVARES, Plaintiff, Appellant,

V.

ENTERPRISE RENT-A-CAR-COMPANY OF

RHODE ISLAND, Defendant, Appellee.

Before Howard, Chief Judge, Torruella and

Kayatta, Circuit Judges.

JUDGMENT

Entered: December 19, 2017

Plaintiff appeals from the grant of summary

judgment to defendant. Applying de novo review,

we affirm substantially for the reasons stated in

the magistrate judge's 6/16/16 Report and

Recommendation, which was adopted by the

district court in its 11/29/16 decision. See Cruz v.

Mattis, 861 F.3d 22, 24-25 (1st Cir. 2017) (summary

judgment standard of review and general

principles).

Affirmed. See 1st Cir. R. 27.0(c).

By the Court:

Is! Margaret Carter, Clerk

cc: Rogerio S. Tavares William E. O'Gara

Matthew Christopher Reeber

2a

United States District Court,

D. Rhode Island.

Rogerio S. Tavares, Plaintiff,

-

V.

Enterpreise Rent-a-car Company of Rhode Island,

Defendant.

C.A. No. 13-521 S

Signed 11/29/2016

Attorneys and Law Firms

Rogerio S. Tavares, Providence, RI, pro se.

Matthew C. Reeber, William E. O'Gara, Pannone

Lopes Devereaux & West LLC, Providence, RI,

for Defendant.

Opinion

ORDER

William E. Smith, Chief Judge

Magistrate Judge Patricia A. Sullivan filed a

Report and Recommendation ("R&R") on June 16,

2016 (ECF No. 138), recommending that the Court

GRANT Defendant's Motion for Summary

Judgment (ECF No. 117) and DENY Defendant's

Motion for Sanctions (ECF No. 119) as moot. After

careful consideration of the R&R and the objection

of Plaintiff, Rogerio Tavares (ECF No. 139), the

Court hereby accepts, pursuant to 28 U.S.C. §

636(b)(1), the R&R for the reasons that follow. The

relevant facts, procedural background, and analysis

3a

are fully set forth in the R&R. The Court limits its

discussion and presents only those facts pertinent

to Tavares's objection.' Additionally, Magistrate

Judge Sullivan thoroughly explained the applicable

legal framework, burdens of proof and production,

and affirmative defenses in her recommendation

and so this Court will not provide further

explanation on those points here. (See R&R 21-23,

ECF No. 138.)

Magistrate Judge Sullivan read Tavares's pro se

Complaint liberally and analyzed his six discrete

claims as arising under Title VII of the Civil Rights

Act of 1964 ("Title VII") and the Americans with

Disabilities Act ("ADA"). Specifically, she analyzed

the claims under 42 U.S.C. § 2000e-2, which

protects against employment discrimination based

on national origin, race, religion, and sex; 42 U.S.C.

§ 2000e-3(a), which makes it unlawful for an

employer to retaliate against employees for

opposing any practice made unlawful by Title VII,

or because the employee has made a charge,

testified, assisted, or participated in any manner in

an investigation, proceeding, or hearing under Title

VII; and 42 U.S.C. §§ 12111(8), 12112(a), which

forbids a covered employer from discriminating

against a person with a disability who can perform

the essential functions of her job, with or without

reasonable accommodations.

In accordance with Rule 56 of the Federal Rules of

Civil Procedure, the R&R viewed all facts and

drew all reasonable inferences in Tavares's favor.

The R&R found that Defendants successfully

4a

demonstrated that there were no genuine issues of

material fact and that Tavares failed to submit

competent evidence to support the key elements of

his claims. This Court reviews the R&R de novo.2

As a preliminary matter, Tavares organizes his

objection according to the factual findings with

which he takes issue and uses his objection to reargue each of his claims.' However, after thorough

review and accounting for Tavares's pro se status,

this Court finds that Tavares's objections are best

addressed in the following order: (1) objections

asserting that Magistrate Judge Sullivan's R&R

did not view the evidence in the light most

favorable to him; (2) objections asserting that

Magistrate Judge Sullivan's "reliance on

statements of other employees who witnessed

some, but not all [Tavares's] complaints"

constituted a credibility determination that was

inappropriate at the summary judgment stage

(Tavares's Obj. to the R&R 6, ECF No. 139); and

(3) objections asserting that Magistrate Judge

Sullivan improperly considered the effects of his

mental illness and incorrectly relied on Wilson v.

New York City Police Department' in assessing

the legal sufficiency of his claims, in light of that

illness.

I. Magistrate Judge Sullivan Applied the

Correct Legal Standard for a Motion for

Summary Judgment.

Tavares's primary argument is that Magistrate

Judge Sullivan did not view all facts and draw all

reasonable inferences in his favor, as required by

5a

Rule 56 of the Federal Rules of Civil Procedure.

Tavares repeatedly avers that "Plaintiff's version

of the facts must be accepted," and that "[t]he only

matter that should have been considered was

whether the sworn statements and other

statements provided by Plaintiff if they are taken

as true and all favorable inferences are drawn from

those facts could a reasonable jury find for

Plaintiff." (Tavares's Obj. to R&R 6, 7, ECF No.

139.) Tavares accuses Magistrate Judge Sullivan of

ignoring this legal standard when she considered

other record evidence contrary to Plaintiffs own

testimony and version of events, arguing that she

should have "simply accept[ed] Plaintiffs

statements as true as required by law." (Id., ECF

No. 139.) In essence, Tavares argues that

Magistrate Judge Sullivan improperly granted

summary judgment because she considered record

evidence other than Plaintiffs testimony. This

argument reflects a misunderstanding of the

standard applicable at the summary judgment

stage.

The requirement that a judge must take all facts

and draw all reasonable inferences in the plaintiffs

favor dictates how the judge must review the

record evidence when reviewing a motion for

summary judgment; it does not dictate what record

evidence she may review. At the summary

judgment stage, a judge must review all of the

record evidence. Fed. R. Civ. P. 56(c)(3).5 Thus, the

Court may find that "a particular piece of evidence

standing alone was insufficiently probative to

6a

justify sending a case to the jury" without

"undermin[ing] the doctrine that all evidence must

be construed in the light most favorable to the

party opposing summary judgment." Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 261 n.2 (1986).

This is precisely what Magistrate Judge Sullivan

did in this case: after diligently reviewing all of the

evidence before her, including statements from

other employees and Enterprise personnel, she

found that the particular pieces of evidence that

Tavares presented were not sufficiently probative

to warrant sending the case to a jury. Based on this

review, Magistrate Judge Sullivan concluded that

Tavares had not presented a genuine dispute as to

any material fact for any of his claims.6

*3 Similarly, Tavares argues that Magistrate Judge

Sullivan's failure to draw all inferences in his favor

was "[c]ontrary to law." (Tavares's Obj. to the

R&R 9, ECF No. 139.) However, the fact that

there are conceivable inferences that could be

drawn in Plaintiffs favor does not mean that those

inferences are "reasonable" enough to justify

sending the case to the jury. Here, the inferences

Tavares urges the Court to draw in his favor are

simply not reasonable inferences in light of all the

evidence.7

II. Magistrate Judge Sullivan Did Not Make

Impermissible Credibility Determinations.

Tavares next argues that Magistrate Judge

Sullivan made impermissible credibility

determinations when she considered the

statements of other employees and other evidence

7a

in the record, all of which contradicted Tavares's

testimony. For example, Tavares states that

"[t]here are many times that [Magistrate Judge

Sullivan] describes the statements of other

employees as though they are not disputed even

though they disputed Plaintiffs testimony in whole

or in part. Rather than simply accepting Plaintiffs

statements as true as required by the law,

[Magistrate Judge Sullivan] weighed the conflicting

testimony of [Defendant's] witnesses in reaching

[her] conclusion." (Tavares's Obj. to R&R 7, ECF

No. 139.) However, Tavares has mischaracterized

the nature of Magistrate Judge Sullivan's findings

and the bases of her recommendation. Where

Magistrate Judge Sullivan credited evidence that

was contrary to Tavares's testimony, she explained

that Tavares had offered no evidence to support his

testimony and that the record evidence neither

supported nor verified Tavares's version of events.

(See R&R 30, ECF No. 138.)8

At the summary judgment stage, the non-movant

bears the burden of identifying some evidence in

the record indicating that there are genuine issues

of material fact in dispute. See Curl v. Int'l Bus.

Machs. Corp., 517 F.2d 212, 214 (5th Cir. 1975)

("[T]he party opposing summary judgment must be

able to point to some facts which may or will entitle

him to judgment, or refute the proof of the moving

party in some material portion, and the opposing

party may not merely recite the incantation,

'Credibility,' and have a trial on the hope that a

jury may disbelieve factually uncontested proof.")

...

8a

(quoting Rinieri v. Scanlon, 254 F. Supp. 469, 474

(S.D.N.Y. 1996)). Additionally, a statement,

unsupported by record evidence, that the

Defendant's witnesses are not credible is not

sufficient to establish that there are material facts

in dispute. See Trentadue v. Redmon, 619 F.3d 648,

652 (7th Cir. 2010). Here, Tavares simply has not

produced any evidence to support his version of

events, and as a result there are no material facts

in dispute.

III. Magistrate Judge Sullivan Did Not

Improperly Consider the Effects of Tavares's

Mental Illness in Assessing the Legal

Sufficiency of His Claims.

*4 Tavares argues that Magistrate Judge Sullivan

"tries to use Plaintiffs mental health illness as a

basis for ignoring the legal requirement [to view

facts in the light most favorable to the plaintiff] and

making credibility determinations," and goes on to

argue that her reliance on Wilson v. New York

City Police Department9 was inappropriate

because there are factual differences between the

plaintiff in that case and Tavares. (Tavares's Obj.

to the R&R 5, ECF No. 139.) We need not compare

the facts of Wilson to the facts here, however,

because nowhere in the R&R did Magistrate Judge

Sullivan rely on Tavares's mental illness, or the

holding in Wilson, to conclude that there were no

genuine disputes of material fact. Rather, she

merely acknowledged the reality that "Tavares's

mental illness is a factor complicating this Court's

9a

consideration of the facts he has presented ...."

(R&R 23, ECF No. 138.>

It seems that Magistrate Judge Sullivan's purpose

in citing Wilson was to establish that courts may

acknowledge the influence of a diagnosed mental

illness when considering the record evidence and

determining whether the plaintiff has presented

genuine issues of material fact. (See R&R 23, ECF

No. 138.)10 Because Magistrate Judge Sullivan did

not rely on Tavares's mental illness when

determining whether there was a genuine dispute

of any material fact, her reference to Wilson was

neither inappropriate nor misplaced and does not

constitute

an

impermissible

credibility

determination.

For the reasons discussed above, the Court hereby

accepts the R&R pursuant to 28 U.S.C. § 636(b)(1).

The R&R is ADOPTED; Defendant's Motion for

Summary Judgment is GRANTED; Defendant's

Motion for Sanctions is DENIED; and FINAL

JUDGMENT will enter in favor of Defendant.

IT IS SO ORDERED.

Footnotes

iBecause this Court accepts the R&R in its

entirety, it will not review Tavares's objection as it

relates to Defendant's Motion for Sanctions.

2Rule 72 of the Federal Rules of Civil Procedure

provides that this Court shall review a Magistrate

Judge's R&R de novo. While the term "de novo"

l0a

signifies that the magistrate judge's findings are

not protected by the clearly erroneous doctrine, it

does not indicate that a second hearing is required.

See United States v. Raddatz, 447 U.S. 667 (1980);

Fed. R. Civ. P. 72(b).

3Tavares organizes his Objection as follows: (1)

Sexual Harassment and Hostile Work

Environment, (a) No complaints about

accommodation after June 3, 2008 Doctor Letter,

(b) Credibility Determinations, (c) Disclosure of

Plaintiffs Medical Information, (d) Conduct

Resulting in Termination; (2) Analysis, (a) Post

Leave Retaliation, (b) Harassment by Co-workers

and Religious Practice, (c) Failure to

Accommodate, (d) Exhaustion of Administrative

Remedies.

4No. 09—Civ. 2632 (ALC) (HPB), 2013 WL 878585

(S.D.N.Y. Feb. 6) 2013), report and

recommendation adopted, No. 09 CIV. 2632 ALC

HBP, 2013 WL 929654 (S.D.N.Y. Mar. 11, 2013).

5111 fact, when assessing whether there is a genuine

dispute as to a material fact, the judge is required

to look beyond a plaintiffs testimony. See Simas v.

First Citizens' Fed. Credit Union, 170 F.3d 372 50

(1st Cir. 1999) ("[T]he court [may not] accept the

nonmovant's subjective characterizations of events,

unless the underlying events themselves are

revealed. ...") (citations omitted); see also Fed. R.

Civ. P. 56(e).

6At its core, Tavares's objection is rooted in his

misunderstanding of the legal term of art "material

facts." "[A] fact is 'material' only when it possesses

11a

the capacity, if determined as the nonmovant

wishes, to alter the outcome of the lawsuit under

the applicable legal tenets." Roche v. John Hancock

Mut. Life Ins. Co., 81 F.3d 249, 253 (1st Cir. 1996)

(emphasis added) (citing Blackie v. Maine, 75 F.3d

7161 721 (1st Cir. 1996)). The facts Tavares argues

are in dispute are simply not "material facts" that

preclude a grant of summary judgment.

For example, whether there were five incidents of

harassing behavior (Mem. in Supp. of Pl.'s Resp. in

Opp. to Mot. Summ. J. ¶f 20-24, ECF No. 126-1) or

just the three incidents the R&R discusses

explicitly (R&R 26, ECF No. 138), does not change

the outcome of this case because "these incidents

[ ... ] are insufficient as a matter of law to create the

abusive work environment that is actionable under

Title VII." (R&R 27, ECF No. 138.) Likewise,

whether the supervisor, Whyte, knew of Tavares's

disability for the first thirty days of his

employment at Enterprise but nonetheless refused

to provide him an accommodation until he provided

a doctor's note (Tavares's Obj. to R&R 7, ECF No.

139) is not material to the disposition of the case

because the ADA entitles an employer to request a

doctor's note before providing that accommodation.

7For example, Tavares argues that, because he

disputes one of several statements in the

"Immediate Correction Notice," the only

"reasonable inference" Magistrate Judge Sullivan

could legally draw was that the entire Notice was

"a complete fabrication designed to set Plaintiff up

for termination." (Tavares's Obj. to the R&R 11,

12a

ECF No. 139.) This inference does not logically

flow from the inconsistencies in the Immediate

Correction Notice or from any other facts in the

record. This example is representative of the other,

equally unreasonable inferences that Tavares urges

this Court to draw.

8For example, Tavares alleges that Whyte

disclosed his mental illness to his co-workers, but

he does not have personal knowledge of this and

offers no evidence to support this allegation, other

than his own beliefs. (Tavares's Obj. to the R&R 7,

ECF No. 139.) He then argues that Magistrate

Judge Sullivan made an impermissible credibility

determination when she relied on conclusions and

documentary evidence from the Human Resources

Manager who investigated Tavares's allegation

because "[t]he only matter that should have been

considered was the sworn statements and other

statements provided by Plaintiff." (Tavares's Obj.

to the R&R 7, ECF No. 139.)

9No. 09—Civ. 2632 (ALC) (HPB), 2013 WL 878585

(S.D.N.Y. Feb. 6, 2013), report and

recommendation adopted, No. 09 CIV. 2632 ALC

HBP, 2013 WL 929654 (S.D.N.Y. Mar. 11, 2013).

lOIn its discussion of Wilson, the R&R restates a

number of Tavares's more bizarre claims, as well as

statements from Tavares's psychiatrist that

Tavares's perceptions of his work environment

were not necessarily "grounded in reality"; the

R&R provides these examples only as evidence

that Tavares's mental illness has, in fact, impacted

his perception of and participation in this case.

...

Ma

(R&R 23, ECF No. 138.) This does not constitute

error.

14a

United States District Court,

-D. Rhode Island.

Rogerio S. TAVARES, Plaintiff,

V.

ENTERPRISE RENT-A-CAR COMPANY OF

RHODE ISLAND, Defendant.

C.A. No. 13-521S

Signed 06/16/2016

Attorneys and Law Firms

Rogerio S. Tavares, Providence, RI, pro Se.

Matthew C. Reeber, William E. O'Gara, Pannone

Lopes Devereaux & West LLC, Providence, RI,

for Defendant.

Opinion

REPORT AND RECOMMENDATION

Patricia A. Sullivan, United States Magistrate

Judge

Pending before the Court are two motions

challenging the viability of the pro Se1 Amended

Complaint' of Plaintiff Rogerio S. Tavares

("Tavares") charging his former employer

Defendant Enterprise Rent-A-Car Company of

Rhode Island ("Enterprise") with sexual

harassment and discrimination based on his

national origin (Cape Verde), religion (Islam) and

mental disability (depression and psychosis) and

with retaliation for his complaints of harassment

and discrimination. First, Enterprise has moved for

15a

summary judgment, arguing that there is no

genuine issue as to any material fact and that it is

entitled to judgment as a matter of law. ECF No.

117. Second, Enterprise seeks the sanction of

dismissal, arguing that Tavares fraudulently

altered a material document and failed timely to

produce certain documents. ECF No. 119. Both

motions have been referred to me for report and

recommendation.

For the reasons that follow, I recommend that

Enterprise's motion for summary judgment be

granted and that its motion for sanctions be denied

as moot. To the extent that this Court does not

adopt my recommendation on the motion for

summary judgment, I recommend that the motion

for sanctions be granted in part as follows: that

Tavares, at his option, may either submit to being

deposed regarding the untimely-produced

documents or forego their use at trial, that an

evidentiary hearing be conducted to determine

whether this case must be dismissed as a sanction

for the fraudulent alteration of a material document

and that a limited purpose pro bono attorney (or

engaged counsel if he is not financially eligible for

pro bono counsel) be appointed to advise Tavares in

light of the risk of perjury posed by such a hearing.

I. MOTION FOR SUMMARY JUDGMENT

A. Facts'

1. Introduction

Tavares, born in the Cape Verde Islands, has a

light but non-white complexion. He is a practicing

Muslim who, at all relevant times, has worn to

16a

work a traditional Muslim head covering called a

kufi as part of his religious practice. ECF No. 126-1

at 1-2, It 2, 4. According to the medical records

that he attached to his Complaint,4 throughout the

relevant period, Tavares suffered from major

depressive disorder and psychotic disorder and was

being treated by a psychiatrist for those illnesses.

ECF No. 4-1 at 29-33. Enterprise does not dispute

Tavares's claim that he had completed his

bachelor's degree at Rhode Island College before

applying for a job at Enterprise. ECF No. 126-1 at

1-2, ¶11 3, 5. Nor does Enterprise dispute his claim

that, prior to applying for a position at Enterprise,

from 2003 until 2007, Tavares worked as a manager

at Brooks Pharmacy.5 ECF No. 126-1 at 2, ¶ 5;

ECF No. 126-2 at 3.

Enterprise is in the business of automobile rental,

leasing, and sales. ECF No. 118 at 1, ¶ 1. Its

Business Ethics & Personnel Policies ("Personnel

Policies") include an "open door policy" that lays

out how employees may bring up issues, problems

or complaints relating to working conditions and

directs that the manager may be approached, but if

the issue is not resolved, employees may go to the

group general manager or the Human Resources

department. ECF No. 118-1 at 29. The Policies also

include a separate policy banning sexual

harassment and making clear that a sexual

harassment complaint may be brought directly to

Human Resources if the employee does not feel

comfortable raising it with the manager, as well as

that retaliation for making such a complaint is

17a

prohibited. Id. at 32. The Policies similarly ban any

discrimination, harassment or retaliation arising

from race, color, religion, sex, national origin or

disability, to which the "open door policy" of

reporting complaints also applies. Id. at 28. It is

undisputed that, on the day he started working at

Enterprise (April 30, 2008), Tavares signed both

the standalone sexual harassment policy and an

acknowledgement that he had received and read

the company's Personnel Policies. ECF No. 118-2

at 2-3. Tavares signed another acknowledgment

that he had received and read the Personnel

Policies on August 6, 2009. Id. at 4. There is a third

acknowledgment form in the record, but it is

undisputed that Tavares did not sign it. Id. at 5.

On April 30, 2008, Tavares applied for a

management trainee position at Enterprise. ECF

No. 126-2 at 2. With respect to whether he

completed college, his application form

inconsistently states that he has a "B.S." degree,

but also states that he had not yet graduated from

college and that he had earned an associate's

degree .6 ECF No. 126-3 at 2-3. Enterprise offered

Tavares a part-time position as a driver, which he

accepted. ECF No. 118 at 1, 11 2-3; ECF No. 118-3

at 3. In his affirmation, Tavares avers that he is

now suspicious that discrimination is the reason he

was not hired for a management position: "I have

come to believe that the discrimination against me

because of my religion commenced from my

application for employment." ECF No. 126-1 at 2, ¶

9. This allegation appears to be based only on the

18a

unexplained inconsistency in his job application

regarding his level of higher education. Id.

*3 The parties dispute when Tavares first made

Enterprise aware of his mental health disability

and his need for an accommodation in the number

of hours he could work per week. Tavares avers

that, shortly after he was offered the driver

position, he "informed Enterprise" that he "was

diagnosed with a mental disability for cognitive and

emotional impairment" and Enterprise agreed to

accommodate him by allowing him to work twenty

to twenty-four hours per week. ECF No. 126-1 at 3,

¶f 11-12. Enterprise contends that it did not

become aware of the disability and the need for an

accommodation until a month after Tavares started

work when he was asked to work full-time and he

responded with a June 3, 2008, letter from his

psychiatrist, Dr. Ragheb, who wrote that Tavares

"is currently receiving treatment

[and] is in

complete remission with no residual symptoms";

the letter states that Tavares had been "advised

to work part-time (20-24 hrs/wk) jobs only to

prevent relapses." ECF No. 4-1 at 26.

2. Sexual Harassment and Hostile Work

Environment—June 2008 until October 2010

Tavares's initial supervisor was an AfricanAmerican woman named Michelle Whyte. ECF No.

126-1 at 3, ¶[ 13, 27; ECF No. 126-5 at 3. He

clashed with her over a wide range of matters,

beginning with her demand soon after he started

that he work thirty to forty hours per week. He

claims this was contrary to what had been agreed

...

19a

upon when he was hired and that he had to procure

the June 3, 2008, letter from Dr. Ragheb as a result

of Whyte's demand that he document his need for a

specific accommodation. ECF No. 126-1 at 3-4, 111

13-15; ECF No. 126-4 at 2. Enterprise claims that

this was the first time that it was placed on notice

of his disability and the need for an accommodation

in terms of hours worked per week. Once

Enterprise received Dr. Ragheb's letter, it

provided the requested accommodation; there is no

evidence suggesting Tavares was ever required to

work past the recommended number of hours.

Tavares made no further complaint about being

required to work more than the number of hours

recommended by his physician.

Tavares believes that Whyte disclosed details of

the content of the letter to his coworkers; the facts

he presents to buttress this claim are Whyte's

possession of Dr. Ragheb's letter and conversations

between Tavares and coworkers who asked him

about the nature of his illness and the medications

he was taking. ECF No. 126-1 at 4, 1 17. However,

the Ragheb letter says nothing about the nature of

Tavares's illness; when Whyte was questioned by

Enterprise during its investigation of Tavares's

complaints about her, she claimed to have no

knowledge of why Tavares needed to be

accommodated and denied having shown his

doctor's letter to coworkers. ECF No. 118-6 at 18;

ECF No. 126-4 at 2. Beyond Tavares's suspicions,

there is no evidence establishing either that any

20a

coworker ever saw the letter or that any learned

about Tavares's illness from Whyte.

At approximately the same time, also in June 2008,

Tavares alleges that Whyte committed the first act

that he claims amounts to sexual harassment: she

showed him pictures of herself when she was

younger and thinner. ECF No. 126-5 at 2; ECF No.

126-10 at 3. This made him believe she was

"advertising herself as available"; he "felt

uncomfortable." ECF No. 126-5 at 2. There is no

evidence that he said or did anything about this

discomfort.

Tavares's next clash with Whyte arose from an

incident almost a year later, in April 2009, when

Whyte changed Tavares's duties from driver to

"car prep." ECF No. 126-1 at 4, ¶ 18. Tavares

considered this change a demotion, because the

only other person working that job had a mental

disability, it was a less responsible position and it

involved working under harsher conditions. Id. ¶[

18-19. Whyte told him she gave him the assignment

because he was "young, physical fit, efficient and

accountable." ECF No. 126-5 at 3. Tavares insisted

on being restored to his old job and presented

Whyte a letter from his psychiatrist, stating that

"over the past weeks, some symptoms re-emerged

[which] appears to be connected to a change in

his job where he was assigned more intricate work

duties that overtaxed his fragile cognitive and

emotional system." ECF No. 4-1 at 27. Enterprise

provided the requested accommodation; Tavares

was moved back to the driver position he

21a

preferred. ECF No. 126-5 at 3-4; see ECF No. 12610 at 3 ("After receiving this letter, [Whyte] then

fully cooperated.").

Meanwhile, also in 2009 and in 2010, there were a

series of seven incidents involving Whyte and

conduct that Tavares found to be sexually

harassing. First, on an occasion when her sixteenyear-old sister and others were in her office, Whyte

put her hand on her hip, started to dance

seductively and asked, "[clan you handle my ass?"

ECF No. 126-1 at 5, ¶ 21; ECF No. 126-5 at 2; ECF

No. 126-10 at 3-4. Second, on an occasion when

Whyte was talking to another worker in a hallway,

she deliberately bumped her body into Tavares as

he tried to pass and asked if he was trying "to

touch my ass." ECF No. 126-1 at 5, 121; ECF No.

126-5 at 2; ECF No. 126-10 at 4. Third, Whyte

showed Tavares her wedding pictures; when

Tavares asked if a light skinned person was her

husband, she said she does not like light skinned

people and asked Tavares if he considers himself

black. ECF No. 126-5 at 3; ECF No. 126-10 at 4.

Fourth, in the presence of other workers, Whyte

hugged Tavares for doing a good job and asked a

coworker who was present whether her action

constituted sexual harassment. ECF No. 126-5 at 3.

Fifth, at a time when four other employees were

present, Whyte looked at Tavaress (unzipped)

pants zipper and said, "That is big! Is that all

yours?" Id. at 2; ECF No. 126-10 at 4. Sixth, "[o]n

several occasions," Whyte touched his muscles;

according to his testimony, after the third time, he

22a

asked her to stop and she did. ECF No. 118-4 at 7;

ECF No. 126-1 at 4 ¶ 20; ECF No. 126-5 at 2.

Seventh, she called him "eye candy," which he

considered "a nice compliment, but, again, I'm not

sure what her intention was, so...." ECF No. 118-4

at 10.

In September 2010, Tavares sat down with Whyte

to talk. According to one description of the

meeting, authenticated by Tavares in his

affirmation, ECF No. 126-1 at 5, ¶ 24, their

discussion focused on the issues that he believed

she was facing as a result of misconduct by his

coworkers (such as cheating on time cards and

engaging in personal activities while long-distance

driving); based on what he had learned from

earning his management degree, he offered to help

her with these issues. ECF No. 126-5 at 6 ("I sat

down with Michelle and discussed some of these

issues that were happening among the employees. I

tried to help her correct the problems since I had a

degree in Management I was trying to give her

some management advice."). According to the

version in another of Tavares's statements, this

discussion was "about issues that had came up

between involving Michelle [Whyte] and coworkers about harassment in the work field" and

"was meant resolve the current issues"; during the

meeting, Tavares claims that Whyte "admitted 'I

have done evil things to employees!' " and "as a

woman of faith I wonder if I would be going to

heaven or hell for what I've done." ECF No. 119-5

at 2. According to Whyte, at their meeting, Tavares

...

23a

asked "if any of the drivers were speaking about

him." ECF No. 118-6 at 17.

After this meeting with Whyte, Tavares believed

that he was being harassed by all of his coworkers.8 ECF No. 126-5 at 6. As a result, finally

invoking the procedure in the Policies, he brought

his concerns to Kristen Piccolo, a Human

Resources Manager, with whom he met on October

6 and 7, 2010. Id. at 2; ECF No. 126-7 at 2. Until the

meetings with Piccolo, according to the statement

prepared on October 7, 2010, Tavares never

brought Whyte's actions to anyone's attention

because he felt badly for Whyte who was a single

parent and "is a role model a minority leader."

ECF No. 126-5 at 5.

At the October 6, 2010, meeting, Tavares told

Piccolo about Whyte's conduct that he considered

harassing, as well as about the issues he had with

coworkers, such as a group of workers who once

joked about "hunting" and referred to a bystander

as a "black piece of shit." Id. at 4. ECF No. 126-10

at 5. In another version of what he told Piccolo,

Tavares claimed that he complained that, "the

harassment not only came from select Co-workers

but also both Michelle [Whyte] and her superior

Franco [and] consisted of direct/indirect Namecalling, inappropriate conversations about

guns/shooting/violence, sexual harassment, and

direct threat on and off the work field." ECF No.

126-10 at 2-5. Yet another version of what he told

Piccolo was submitted to Rhode Island Commission

for Human Rights ("RICHR"). ECF No. 126-7 at 2

...

24a

("there was too much of unethical gossiping going

on between co-workers that evolved in a personal

matter and I did not want to take part of it").

Piccolo tried to prepare a typed summary of his

statement to use as a basis for her investigation but

Tavares continued to edit it over several days and

then refused to sign it. See ECF No. 126-5. Piccolo

told Tavares she would investigate all of his

complaints, which she started to do immediately,

ultimately interviewing and getting statements

from Whyte and ten other workers (four women

and six men) between October 7 and 21, 2010. ECF

No. 118-6 at 8-32.

During the investigation interviews, one male

worker confirmed that he had seen Whyte drape an

arm over a driver's shoulder and give a pat on the

back, saying, "you're my favorite driver," which the

worker did not find to be out of the ordinary. Id. at

10. One female worker confirmed that she had

heard Whyte make inappropriate comments about

her "butt," but these were not directed to a specific

person. Id. at 8. Another female worker reported

that she, Whyte and Tavares spoke about families

and girlfriends, "nothing out of the ordinary," and

denied hearing anything she considered

inappropriate. Id. at 14. A male worker confirmed

that the "drivers mak[e] comments to Michelle

Whyte. Such as

saying you are taking up too

much room in the doorway" to which she responds

with a comment about the size of her "butt," and

that workers of color, including Whyte, Tavares

and others, joke about "being black." Id. at 16. He

...

25a

did not consider any of these comments

inappropriate and said he believed the working

environment was "very comfortable." Id. at 16.

Otherwise, the coworkers denied saying or hearing

the racial and sexual remarks described by

Tavares. See, e.g., id. at 21, 23.

Whyte's statement to Piccolo confirms that

Tavares had met with her in September 2010 but

she said that he wanted to ask if other drivers were

talking about him and to discuss an incident when a

driver showed Tavares a knife while they were

socializing at the other's home. Id. at 17. She also

confirmed that she had "felt his muscles," but

thought he wanted her to do so; she confirmed that

she had participated in conversations in the

"general setting," when he and other workers were

present, regarding relationships and girlfriend

complaints and that these may have included

"inappropriate" subject matter. Id. at 17-18.

Otherwise, she denied his version of their

interactions. Id.

Based on this investigation, Piccolo concluded that

Whyte had used inappropriate and offensive

language, required her to attend sexual harassment

training and directed her to be proactive in

managing employees under her supervision with

respect to language. Id. at 20. Nevertheless, Piccolo

also concluded that Tavares's claim of sexual

harassment directed at him was not substantiated

and that Whyte had not released Tavares's medical

information. ECF No. 118-7 at 2; ECF No. 126-1 at

5, 1 26. Rather, based on what Tavares himself told

26a

her, Piccolo concluded that the source of whatever

coworkers knew about Tavares's illness was likely

whatever Tavares himself had told them. ECF No.

118-7 at 2. In "an abundance of caution," Piccolo

advised Tavares that a harassment and

discrimination prevention training would be

conducted for the entire group of workers. Id. Her

letter reminded Tavares that Enterprise would not

tolerate any retaliation against employees like him,

who had lodged complaints. Id. at 3.

Before Piccolo's investigation was completed, on

October 12, 2010, buttressed by a letter from Dr.

Ragheb, ECF No. 118-9 at 3, Tavares requested

and was granted a medical leave of absence. ECF

No. 118 at 2, ¶ 10. Tavares avers that he needed

the medical leave because "[t]he sexual harassment

from Whyte was so disturbing to me." ECF No.

126-1 at 6, ¶ 29. Almost three months later, in a

letter written on January 4, 2011, Dr. Ragheb

released Tavares to return to "his original work

duties" on January 10, 2011, with the same

limitation on total hours worked per week. ECF

No. 4-1 at 28. By the time Tavares's medical leave

was over, Whyte was no longer employed at

Enterprise; Tavares's new supervisor was Evan

Hail. ECF No. 118-4 at 17-18; ECF No. 126-7 at 3.

Once Tavares complained in October 2010 about

sexual harassment, he was never troubled by

Whyte again. ECF No. 118-4 at 18. After Tavares

returned from the medical leave of absence, he was

restored to his former position and never

complained again of sexual harassment.

27a

3. Post-Leave Retaliation for Sexual Harassment

Complaint

and

Racial

and

Religious

Discrimination—January 2011 until November

2011

Immediately following Tavares's complaint to

Piccolo about Whyte on October 6 and 7, 2010, (and

before Piccolo completed her investigation) the

medical record reflects Tavares's belief that

Enterprise was retaliating against him because of

the Whyte complaint. Specifically, less than a week

later, on October 12, 2010, the day Tavares went

out on medical leave, Dr. Ragheb wrote:

Not doing as good this time, more problems at

work, some appeared reasonable, but others seems

less grounded in reality. Pt is feeling he is being

constantly harassed, discriminated against,

colleagues talking about him, and trying to

instigate him, even feels police patrol cars are

being sent to follow him on the road to bother him

by connected people at work.

-

ECF No. 4-1 at 29. Two weeks later, on October 25,

2010, a psychiatric evaluation includes the

following:

The patient states he has been feeling very angry

& confused. He states his main stressors include

what he states as both verbal & sexual harassment

in the workplace. He states he has filed complaints

[with] human resources but feels his co-workers

are retaliating. He has also become increasingly

worried that if he returns to work from his leave of

absence, they will turn against him even more.

28a

Id. at 33. Shortly after Tavares's return to work, at

a January 26, 2011, appointment, Dr. Ragheb

noted, he has been noticing subtle 'mental testing'

by people making remarks and innuendoes at him."

Id. at 30. Dr. Ragheb wrote that he "gently tried

challenging [Tavares's] assumptions about the

illness and symptom origins, but without success."

Id. On February 9, 2011, Tavares told Dr. Ragheb

that he is avoiding his co-workers "but is certain

that they are talking about him, but does not know

what they are saying." Id. at 31.

Consistent with these medical references that

Tavares incorporated into his Complaint, Tavares

avers that he believed that coworkers and his

supervisors began to retaliate for the complaint to

Piccolo about Whyte's sexual harassment

immediately after his return from leave. ECF No.

126-1 at 6, 1 30. On February 20, 2011, he emailed

Piccolo to complain about being asked to move a car

contrary to protocol and to work in proximity to coworkers suffering from colds, as well as to report

his observation that "since January 13th (medical

leave of absence) I have been experiencing direct

and subliminally irrigated retaliation." ECF No.

126-6 at 2-3. In response, Piccolo suggested that

Tavares meet with her and her superior, which

occurred on March 9, 2011. ECF No. 118-11 at 4. In

a statement filed with RICHR, he describes the

complaints that he made at that meeting: other

employees not handling time cards correctly,

harassing phone calls at home from a coworker, a

coworker who asked the name of Tavares's doctor,

29a

"so I can get the winters off too," being assigned to

drive without an E-Z pass so he had to take a

longer route than other workers, and his belief that

"[m]y job is specifically structured with several

mixed messages such as using psychological tactics

using colors as ways to convey a message

subliminally." ECF No. 126-7 at 2-7. On March 15,

2011, Tavares filed a police report' complaining

that an unknown male came to his home; he linked

this to a complaint he had made to Enterprise

about a coworker. ECF No. 4-1 at 35. He told the

police that he overheard coworkers saying that "I

was traitor, because I am a Muslim, and that I

deserve to be killed" and that one of his coworkers

has a "connection with the Providence Police

Department" so that "everything I have stated on

my phone has been brought up indirectly [t]he

reality is that because of the complaint that I made,

the retaliation is in fact present." Id. at 36.

Two weeks later, on May 31, 2011, Tavares filed his

first Charge of Discrimination with RICHR.'° ECF

No. 117-2 at 2. It alleges discrimination based on

race, color, national origin, religion and mental

disability and retaliation for opposing unlawful

employment practices; the charge highlights

Whytes behavior from the pre-October 2010

period, harassing phone calls at home from

coworkers, the incident when he was asked to drive

without an E-Z pass and remarks about shooting

and guns by coworkers. Id. at 3. Tavares claims

that, after he filed the charge, the "acts of

...

30a

retaliation by co-workers and Enterprise

supervisors increased." ECF No. 126-1 at 7, ¶ 33.

In June 2011, Tavares resumed the stream of

complaints to Piccolo; as with every complaint she

received from Tavares, she investigated each one

by interviewing the accused worker and any

witnesses and getting signed statements from each.

ECF No. 126-6 at 4. For example, Tavares accused

a coworker of joking about his religious head cover

and asking if he "even learn Islam or Arabic and

thought [he] was Muslim." Id. at 6-7. The accused

coworker told Piccolo that he had simply asked

whether Tavares had converted to Islam in what

he thought was friendly conversation, but that

Tavares took umbrage, saying, "save your

derogatory comments for later." ECF No. 118-11 at

5. Tavares accused another worker of "flicking his

middle finger," ECF No. 126-6 at 7, while the

worker adamantly denied that he had done so. ECF

No. 118-11 at 9-10. In August 2011, Tavares

emailed Piccolo to complain about what he believed

was coworker misconduct in connection with the

lunch break. ECF No. 126-6 at 9. In September, he

complained again about lunch policy, about time

card protocols, about an incident where other

drivers failed to pick him up, forcing him to walk,

and about a coworker who he said compared him to

an extremist with a threatening appearance. Id. at

11-13. The workers accused of not picking him up

(until several were sent to get him after he called)

told Piccolo that they had either not seen him or

not realized he needed a ride. ECF No. 118-11 at

31a

151 20, 24. The coworker accused of the terrorist

comment denied saying that, but did report that

another worker had said that Tavares tended to be

friendly if he wore a baseball cap, but became a

different person when wearing a kufi. Id. at 17.

In October 2011, Tavares complained that a branch

manager told him she hoped his wife would die,

that another worker referred to dead bodies at a

lake, that his name was spelled incorrectly on his

time card, that another worker called him a

terrorist, that a worker said he must be punished

for good deeds, that he had been asked to complete

an employee survey, and that he had come to the

conclusion that "upper management are involved."

ECF No. 126-6 at 18-19. For the complaints about

Enterprise, such as the employee survey, Piccolo

gently tried to assure Tavares that nothing

nefarious was intended. Id. at 16. For the

complaints against coworkers, each one denied the

accusations, although in some instances the accused

coworker described a similar incident that the

worker believed Tavares had misinterpreted. For

example, the coworker whom Tavares heard saying

that he (Tavares) must be punished for good deeds

recalled making a similar statement, albeit with

very different meaning, that the worker speculated

Tavares overheard and misinterpreted. ECF No.

118-11 at 31 (worker claims he said to someone else

"[n]o good deed goes unpunished," which comment

had nothing to do with Tavares). Throughout the

extensive written communications between Piccolo

and Tavares, her responses to Tavares are

32a

consistently courteous, patient, informative and

appropriate. Nevertheless, without asserting any

factual basis for his belief, Tavares now challenges

Piccolo's many investigations, arguing that she

consistently resolved the conflicting versions of

each complaint in favor of the non-Muslim, white

perpetrator. ECF No. 128-1 at 7.

In addition to the complaints documented in the

email and statements that Tavares made or wrote

as the events were unfolding, during the litigation,

Tavares has added new facts that he believes

evidence discrimination and retaliation. For

example, at some unspecified point in time, while

conceding that Enterprise had no policy barring

him from wearing his kufi and that he wore it every

day, ECF No. 118-4 at 13-14, Tavares claimed that

his supervisor Hall tried to discourage him from

wearing it, that coworkers made derogatory

remarks that it made them uncomfortable, and that

Hall offered him a cap or a "hoodie" with an

Enterprise logo because coworkers felt threatened

by the kufi. Id.; ECF No. 126-1 at 8, ¶ 38. In

addition, Tavares claims that another form of

continuing discrimination was Enterprise's ongoing

questioning of his mental disability. ECF No. 126-1

at 7-8, ¶[ 36-37. As evidence, he points to an

October 2011 email from Piccolo expressing her

concern that Tavares was working more hours than

his psychiatrist had recommended and asking for a

note from the treating physician confirming

Tavares's claim that his increased hours were not

in excess of what was medically appropriate. ECF

33a

No. 126-6 at 10. Tavares claims that this request

amounted to "continued questioning of my medical

disability" and religious discrimination in that no

other non-Muslim person was asked to produce a

letter from a doctor whose opinion had not

changed. ECF No. 126-1 at 7-8, ¶11 36-37. Soon

after Piccolo made this request, Tavares supplied a

letter from one of his treating physicians. ECF No.

136 at 49. Contrary to what Tavares claims, the

letter reveals that doctor's medical opinion did

change. Compare ECF No. 4-1 at 26 (letter of June

39 2008, states work limited to "part-time (20-24

hrs/wk)"), with ECF No. 136 at 49 (letter of

October 17, 2011, states that limit "increased to (2226 hours per week) as of this date").

Another newly developed claim is Tavares's

argument that Enterprise's pattern of "trying to

hide their discriminatory conduct toward [him]" is

evidenced by its "Workforce Profile," a list of its

employees produced in discovery at ECF No. 12612 at 2, which classifies each racially as "White,"

"Hispanic/Latino" or "Black/African American."

Tavares finds relevant the fact that he is listed on

this document as "White." ECF No. 126-1 at 10, ¶

47. Human Resources Manager Kristen Piccolo

testified that this was "an error." ECF No. 131-1 at

3. And finally, at the hearing on these motions,

Tavares represented that, at trial, he plans to use

certain late-produced records" to buttress his

claim that a photograph of bullet holes in a car and

the theft of his wife's car tires from outside their

home are both "somehow connected" to

34a

Enterprises discrimination and retaliation against

him. ECF No. 119-3, 119-6, 119-8.

Conduct Resulting in Termination

On May 26, 2011, Tavares received an employment

review from Enterprise prepared by his

supervisor, Evan Hall. ECF No. 126-8 at 3-7. While

he scored "meets requirements" for most

categories on the form, for "vehicle operation (safe

driver, acceptable MVR, etc.)," the review

concluded that he "requires improvement," which it

defines as "employee often fails to meet job

requirements" and "improvement needed." Id. at 3The review writer illustrated the criticism with

an example: "there have been a couple of instances

where you 'chirped' the tires of vehicles when

exiting a branch." Id. Tavares signed the review,

though he denied any recollection of "the incident,"

but also complimented his supervisor. Id. at 6 ("you

do show potential of a good manager in the

future").

A second incident raising concerns about safe

vehicle operation occurred on June 23, 2011, when

Tavares received an "Immediate Correction

Notice" from his supervisor for driving erratically,

almost hitting a coworker, hitting another vehicle

(although without causing damage) and driving

over freshly painted lines; the Notice warns that

failure to correct the incident could lead to

termination. ECF No. 118-13 at 2. This incident

was treated as serious enough that it was

immediately reported to Piccolo, who spoke to

Tavares about it. ECF No. 118-3 at 11. Tavares

35a

complained that he should not have been

disciplined because he only tapped the other

vehicle and caused no damage; otherwise he did not

dispute that the incident occurred as described.'2

ECF No. 126-1 at 7, ¶ 33. In his next email to

Piccolo, Tavares told her that it is consistent with a

"personal vendetta" for him to be criticized for

"tapping" another car without causing damage.

ECF No. 118-11 at 7-8. Piccolo investigated this

charge; a witness to the incident affirmed that

Tavares had driven erratically and became so

argumentative afterwards that he was asked to

stay in the office for the rest of the work day. Id. at

12.

The incident that led to Tavares's termination also

gave rise to serious safety concerns. On November

9, 2011, Tavares was in an Enterprise vehicle

driven by a co-worker. According to Tavares,

because the co-worker was speeding (over 90 miles

per hour) on 1-195, a busy highway, Tavares forced

him to pull over by threatening to call the police,

grabbed the car keys and ran away from the car,

leaving both workers and the car stranded on an

embankment of the interstate. The incident

resulted in Massachusetts State Police

intervention. ECF No. 126-1 at 8-9, It 40-45.

Tavares further avers that the State Police officer

told him that, if contacted, he (the officer) would

say that he believed the other worker's story "that

he had pulled over on the highway so that

[Tavares] could urinate." ECF No. 117-3 at 3.

36a

Piccolo and another Human Resources manager

performed an immediate investigation of this

incident, which included an interview with Tavares,

the other driver, an Enterprise employee sent to

the scene and the Massachusetts State Police

officer. ECF No. 118-3 at 18-19. During her

investigation, as she testified, Tavares told her that

he had directed the driver of the vehicle to pull

over so he could urinate but also gave

contradictory versions of what happened, causing

her to find that he was not being truthful. Id. at 18,

22-23. Based on the investigation, Enterprise

concluded that the other driver had pulled over to

allow Tavares to urinate and that Tavares had

grabbed the keys, stuck up his middle finger and

run from the car onto the embankment. Id. at 23;

ECF No. 118-15 at 3. Piccolo decided that

Tavares's conduct was inappropriate and created a

serious safety risk; following consultation with the

general manager and local counsel, she determined

that both Tavares and the other driver should be

terminated. ECF No. 118-3 at 23; ECF No. 126-1 at

9, 1 44. The decision to terminate was implemented

immediately and Tavares's employment with

Enterprise ended on November 10, 2011. ECF No.

4 at 3-4; ECF No. 118-14 at 2.

B. Standard of Review

Under Fed. R. Civ. P. 56, summary judgment is

appropriate if the pleadings, the discovery,

disclosure materials 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

37a

matter of law." Taylor v. Am. Chemistry Council,

576 F.3d 16,24 (1st Cir. 2009); Commercial Union

Ins. Co. v. Pesante, 459 F.3d 34, 37 (1st Cir. 2006)

(quoting Fed. R. Civ. P. 56(c)). A fact is material

only if it possesses the capacity to sway the

outcome of the litigation; a dispute is genuine if the

evidence about the fact is such that a reasonable

jury could resolve the point in the favor of the nonmoving party. Estrada v. Rhode Island, 594 F.3d

56,62 (1st Cir. 2010); Santiago-Ramos v. Centennial

P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir. 2000)

(quoting Sanchez v. Alvarado, 101 F.3d 223, 227

(1st Cir. 1996)). The evidence must be in a form

that permits the court to conclude that it will be

admissible at trial. See Celotex Corp. v. Catrett,

477 U.S. 317, 323-24 (1986). In ruling on a motion

for summary judgment, the court must examine

the record evidence "in the light most favorable to,

and drawing all reasonable inferences in favor of,

the nonmoving party." Feliciano de la Cruz v. El

Conquistador Resort & Country Club, 218 F.3d 1, 5

(1st Cir. 2000) (citing Mulero-Rodriguez v. Ponte,

Inc., 98 F.3d 670, 672 (1st Cir. 1996)). There are no

trial-worthy issues unless there is competent

evidence to enable a finding favorable to the

nonmoving party. Goldman v. First Nat'l Bank of

Bos., 985 F.2d 1113, 1116 (1st Cir. 1993). In

considering Enterprise's motion for summary

judgment, the Court must be mindful that

employment discrimination cases involve elusive

concepts such as motive or intent; nevertheless,

summary judgment is appropriate if Tavares rests

38a

merely upon conclusory allegations, improbable

inferences, and unsupported speculation. Bonilla v.

Electrolizing, Inc., 607 F. Supp. 2d 307, 314 (D.R.I.

2009); see Mariani-Colan v. Dept of Homeland Sec.,

511 F.3d 2169 221 (1st Cir. 2007); Rathbun v.

Autozone, Inc., 361 F.3d 621 66 (1st Cir. 2004).

C. Analysis

Reading his pro se Complaint liberally, it seems

that Tavares has brought six discrete claims. The

first is his claim that Whyte's sexual harassment,

racial remarks and improper disclosure of medical

information created a hostile work environment so

severe as to alter the conditions of his employment,

forcing him to take a medical leave of absence. The

second, and equally serious, claim is the post-leave

allegation that Enterprise supervisors retaliated

against him for complaining about Whyte's sexual

harassment and the related RICHR Charge,

culminating in his termination. Third, also postleave of absence, he alleges that Enterprise

coworkers created a hostile work environment both

because of his complaints about Whyte and because

of his religion, race and national origin. Fourth, he

contends that his supervisor discriminated against

him by refusing to accommodate his religious

practice. Fifth, he seems to allege that Enterprise

failed properly to accommodate his disability. Last

is Tavares's newly-minted claim, based on what he

learned in discovery, that Enterprise's decision to

offer him the position of driver instead of the

management training position for which he claims

39a

he applied, was motivated by discriminatory

animus.

As Enterprise suggests (and Tavares does not

disagree),13 these claims may be analyzed as arising

pursuant to Title VII of the Civil Rights Act of

1964 ("Title VII"), including 42 U.S.C. § 2000e-2,

which protects against employment discrimination

based on national origin, race, religion and sex, and

42 U.S.C. § 2000e-3(a), which makes it unlawful for

an employer to retaliate against employees for

opposing any practice made unlawful by Title VII,

or because the employee has made a charge,

testified, assisted, or participated in any manner in

an investigation, proceeding, or hearing under Title

VII. In addition, Enterprise suggests that

Tavares's claims should be reviewed pursuant to

the Americans with Disabilities Act ("ADA"), 42

U.S.C. § 12111(8), 12112(a), which forbids a

covered employer from discriminating against a

person with a disability "who, with or without

reasonable accommodation, can perform the

essential functions" of her job. Lang v. Wal-Mart

Stores E., L.P., 813 F.3d 447, 454 (1st Cir. 2016).

For a prima facie Title VII case, in addition to the

undisputed facts that he is a member of a protected

class and was qualified for his job, Tavares must

show that he suffered an adverse employment

action that is either causally connected to his

membership in a protected class or in retaliation

for protected conduct. Bhatti v. Trs. of Bos. Univ.,

659 F.3d 64, 70-711 73 (1st Cir. 2011). In a case

where there is an adverse employment action and

-

40a

no direct evidence of discrimination, the Court

must deploy the familiar decisional framework set

out in McDonnell Douglas Corporation v. Green,

411 U.S. 792 (1973), which examines whether a

plaintiff has made out a prima facie case, then

shifts the burden of production to the defendant to

articulate a legitimate nondiscriminatory reason for

the action, and finally back to the plaintiff to

demonstrate facts sufficient to establish that the

reason is pretextual. Id. at 802-04; Pina v.

Children's Place, 740 F.3d 7857 796 (1st Cir. 2014).

And for his Title VII claim grounded in a hostile

work environment to survive summary judgment,

Tavares must present competent evidence that the

environment was so objectively hostile and abusive

as to permit a fact finder to conclude that the

employer tolerated severe or pervasive harassment

motivated by protected conduct. Rivera-Martinez

v. Puerto Rico, No. 05-2605, 2007 WL 16069, at *3.4

(1st Cir. Jan. 4, 2007) ("Title VII was not intended

to be a 'general civility code'; therefore, conduct

must be extreme to be actionable."). Hostile work

environment claims are subject to the employer's

affirmative defense that it exercised reasonable

care to prevent and promptly correct the harassing

behavior and that the employee failed to avail

himself of the opportunities provided by the

employer. Burlington Indus., Inc. v. Ellerth, 524

U.S. 742, 765 (1998); Faragher v. City of Boca

Raton, 524 U.S. 7759 807-08 (1998); see Equal Emp.

Opportunity Comm'n, Enforcement Guidance:

Vicarious Employer Liability for Unlawful

41a

Harassment by Supervisors, 1999 WL 33305874

(E.E.O.C. Guidance June 18, 1999).

To state an ADA claim, Tavares must point to

sufficient evidence showing that (a) he is disabled

within the ADA's definition; that (b) he could

perform the job's essential functions either with or

without a reasonable accommodation; and that (c)

the employer knew of his disability, yet failed to

reasonably accommodate it. Lang, 813 F.3d at 454.

Like a Title VII claim, a claim arising under ADA

may be based on evidence of pervasive harassment

arising from the disability or retaliation for the

exercise of ADA-based rights; courts considering

such claims rely on the law developed under Title

VII. See Nunes v. Mass. Dep't of Corr., 766 F.3d

136, 144 (1st Cir. 2014); Gonzalez v. Sears Holding

Co., 980 F. Supp. 2d 170, 209 n.18 (D.P.R. 2013);

Marquez-Ramos v. Puerto Rico, No. CIV. 11-1547

SEC, 2012 WL 1414302, at *9 n.7 (D.P.R. Apr. 2,

2012); Higgins v. TJX Cos., Inc., 328 F. Supp. 2d

122, 124 (D. Me. 2004). Enterprise does not dispute

that Tavares suffers from a serious mental

disability or that he sought reasonable

accommodation both in limiting the number of

hours to be worked per week, and in retaining him

in the driver's position instead of placing him in a

position whose duties would "overtax[ ] his fragile

cognitive and emotional system." ECF No. 4-1 at

27.

Tavares's mental illness is a factor complicating

this Court's consideration of the facts he has

presented in support of his opposition to the

42a

summary judgment motion. The Complaint itself

includes medical observations by a treating

psychiatrist suggesting that at least some of

Tavares's perception of how Enterprise was

treating him derives from his diagnosis of

psychosis. Id. at 29 ("more problems at work, some

appeared reasonable, but others seems less

grounded in reality"); id. at 31 (he is "certain that

[coworkers] are talking about him, but does not

know what they are saying"). Some of his factual

assertions are so bizarre as to suggest that they are

the product of a distorted perception of reality or

delusion. See, e.g., ECF No. 126-6 at 2-3 ("I have

observed that since January 13th I have been

experiencing direct and subliminally irrigated

retaliation"); ECF No. 126-7 at 7 ("[m]y job is

specifically structured with several mixed

messages such as using psychological tactics using

colors as ways to convey a message subliminally");

id. at 6 (alleging harassment based on statement by

coworker that "he is in fact the Devil and showed

that his phone number displayed 666"). Others,

when examined against the explanation procured

by Piccolo's investigation, appear to be based on

paranoia; for example, Tavares claims that he was

harassed with the threat that he must be punished

for his good deeds, while his coworker said he used

the familiar phrase, "[n]o good deed goes

unpunished," which Tavares must have overheard.

ECF No. 118-11 at 31. As one court addressing a

similar challenge has noted, "[s]adly, these

statements leave little doubt that plaintiffs mental

43a

illnesses are at the root of her allegations of sexual

assault." Wilson v. N.Y.C. Police Dep't, No. 09-Civ.

26632(ALC)(HBP), 2013 WL 878585, at *20

(S.D.N.Y. Feb. 6, 2013) (summary judgment

granted because all of pro se plaintiffs claims of

hostile work environment either legally insufficient

or delusional).

I next proceed seriatim through each of Tavares's

six Title Vu/ADA claims; because none of them are

supported by trial-worthy facts, this analysis leads

to my recommendation that summary judgment

should enter disposing of the entire Complaint.

1. Hostile Work Environment Caused By Whyte, a

Supervisor

Tavares alleges that his supervisor, Whyte,

engaged in sexual and racial harassment

sufficiently severe as to support a claim for a

hostile work environment resulting in his October

2010 leave of absence. He also asserts that Whyte

showed his coworkers the psychiatrist's letter

asking for accommodation, causing them to

question him about his diagnosis and medication,

exacerbating the hostile work environment.

When a hostile work environment claim is based on

the harassing conduct of a supervisor like Whyte,

the employee must establish that he was subject to

uninvited, severe and pervasive harassment by his

supervisor that was both objectively and

subjectively offensive; the conduct must have

created a work environment that would be

intimidating, hostile or offensive to reasonable

people. See Murray v. Warren Pumps, LLC, No.

44a

13-21331 2016 WL 1622833, at *5 & n.1 (1st Cir.

Apr. 25,2016); Crowley v. L.L. Bean, Inc., 303 F.3d

3871 394-95 (1st Cir. 2002); Wolf v. Nw. Ind.

Symphony Soc'y, 250 F.3d 1136, 1143 (7th Cir.

2001). Employer liability is automatic when

supervisor harassment results in a negative

employment action, subject only to the employer's

affirmative defense that, when no tangible

employment action is taken, it exercised reasonable

care to prevent and promptly to correct the

harassing behavior and that the employee failed to

avail himself of the opportunities provided by the

employer. Burlington Indus., Inc., 524 U.S. at 765;

Faragher, 524 U.S. at 807-08. The test for whether

the working environment has been made

objectively and subjectively abusive is not

"mathematically precise"; it requires a balancing of

factors such as the frequency of the conduct, its

severity, whether it was physically threatening or

humiliating or a mere offensive utterance, and

whether it unreasonably interfered with an

employee's work performance. Harris v. Forklift

Sys., Inc., 510 U.S. 17, 22 (1993); Colon-Fontanez v.

Municipality of San Juan, 660 F.3d 17, 44 (1st Cir.

2011). A hostile work environment is not created by

teasing, offhand or vulgar comments and isolated

incidents. Kosereis v. Rhode Island, 331 F.3d 207,

216 (1st Cir. 2003).

The first flaw in Tavares's claim about Whyte is

that, even if his version of Whyte's sexual conduct

is accepted, most of it does not amount to

discrimination based on sex. As the Supreme Court

45a

has emphasized, "[w]e have never held that

workplace harassment, even harassment between

men and women, is automatically discrimination

because of sex merely because the words used have

sexual content or connotations." Oncale v.

Sundowner Offshore Servs., Inc., 523 U.S. 75, 80

(1998). As described by Tavares and fleshed out in

the statements of coworkers procured by Piccolo

during her investigation," most of Whyte's vulgar

or sexual remarks were directed equally to other

men and to women. Therefore, they are not

discriminatory and fail to substantiate a Title VII

hostile work environment claim. Fontanez-Nunez

v. Janssen Ortho LLC, 447 F.3d 50, 57 (1st Cir.

2006) (vulgar remarks directed to many employees

may be inappropriate and unprofessional, but mere

offensive utterances do not amount to actionable

harassment); Burns v. Johnson, 18 F. Supp. 3d 67,

75 (D. Mass. 2014) ("if a defendant's conduct is

equally harsh towards men and women, there is no

hostile work environment based on sex"); Garcia v.

V. Suarez & Co., 288 F. Supp. 2d 148, 160 (D.P.R.

2003) (salesmen touching each other's buttocks and

making sexually explicit remarks may be

inappropriate but such conduct does not

substantiate Title VII claim). Whyte's selfdeprecating comments to male and female workers

alike about the size of her "butt," hugging or

putting an arm over the shoulder of various

workers to praise good work, swinging her hips

when her sister (and others) visited her office and

the use of a vulgar remark to tease Tavares about

46a

an unzipped pants zipper (in the presence of others)

all fail into this category. Kosereis, 331 F.3d at 216

(hostile work environment generally is not created

by simple teasing, offhand comments, and isolated

incidents); Russell v. Enter. Rent-A-Car Co. of

R.I., 160 F. Supp. 2d 239, 261 (D.R.I. 2001)

(offensive utterances and offhand comments do not

amount to discriminatory changes in the terms and

conditions of employment nor do isolated sexual

advances, without more, constitute an abusive

environment under Title VII) (citing Faragher, 524

U.S. at 788, and Chamberlin v. 101 Realty, 915 F.2d

7771 783 (1st Cir. 1990)).

The balance of what Tavares claims is Whyte's

sexual misconduct—touching Tavares' s muscles

three times and (as perceived by Tavares) flirting

with him by calling him "eye candy" and showing

him pictures of her younger, thinner self—is

inappropriate as Enterprise concluded when

Whyte was disciplined for it, but is legally

insufficient to be labeled as "extremely serious."

Faragher, 524 U.S. at 788; see Mann v. Lima, 290 F.

Supp. 2d 190, 198 (D.R.I. 2003) (two touches and

series of compliments may be tasteless and

inappropriate but do not come close to level of

severity or pervasiveness for claim to survive

summary judgment). While Tavares may have

experienced subjective discomfort, Tavares' s

descriptions of this conduct does not amount to

evidence sufficient to allow a reasonable jury to

find that he was subjected to an objectively hostile

work environment. Rivera-Martinez, 2007 WL

47a

16069, at *34• Indeed, the evidence of flirtation is

at best speculative, since Whyte never said or did

anything to suggest she was trying to coerce

Tavares into an unwanted sexual encounter;

Tavares himself dispels the specter of an

unwelcome flirtation with another complaint he

makes about Whyte—that she told him that she did

not find light-skinned men of color attractive.

Similarly, three unwelcome muscle touches—

Whyte promptly stopped when Tavares asked her

to—simply do not come close to the frequency and

severity of conduct that is actionable. See Harris,

510 U.S. at 21-23. Accepting that a fact finder

would credit Tavares's version of these incidents,

they are insufficient as a matter of law to create

the abusive work environment that is actionable

under Title VII. Rivera-Martinez, 2007 WL 16069,

at *3.4 (two incidents of touching neither severe

nor pervasive); Crespo v. Schering Plough Del

Caribe, Inc., 231 F. Supp. 2d 420, 425, 428-30

(D.P.R. 2002) (isolated incidents that included

hugging from behind and telling plaintiff she looks

sexy in skirts insufficient to support hostile work

environment claim).

Tavares's claim that Whyte engaged in conduct

amounting to discrimination based on his

race/national origin is even more lacking in merit.

Her only racial remarks were the comment about

Tavares's skin not being very dark and one

occasion when she asked him if he considered

himself to be black. The first remark seems to do no

more than dispel Tavares's impression that Whyte

48a

was sexually attracted to him, while it is utterly

implausible to posit that the latter is the result of

discriminatory animus or created a hostile working

environment. Inconsistently, Tavares described

Whyte as "a role model a minority leader." ECF

No. 126-5 at 5.

Similarly, Tavares's claim that Whyte

discriminated against him based on his disability

fails for the lack of any admissible facts to buttress

the allegation. His claim that she told his coworkers

the details of his mental illness in Dr. Ragheb's

accommodation letter is belied by the text of the

letter, which states only that he is "in complete

remission with no residual symptoms" but that he

cannot work more than a specified number of hours

per week. ECF No. 126-4 at 2. Further, Tavares

has not disputed Piccolo's conclusion that whatever

coworkers knew was likely based on what Tavares

himself told them. ECF No. 118-7 at 2. Moreover,

as described by Tavares, the coworker comments

about his mental health are far from severe and

pervasive—Tavares claims that one worker with a

disabled child asked Tavares about medication and

another worker joked about wanting a diagnosis so

he could get the winter off. ECF No. 126-1 at 4, ¶

17; ECF No. 126-5 at 4; ECF No. 126-7 at 6. These

do not come close to establishing a hostile work

environment that was both objectively and

subjectively offensive to reasonable people.

Murray, 2016 WL 1622833, at *6 (isolated, stray

remarks about disability cannot provide adequate

foundation for a hostile work environment claim).

49a

In addition to the utter absence of trial-worthy

facts establishing a hostile work environment

caused by Whyte's conduct, this aspect of Tavares's

claims falters because the undisputed facts also

establish that Enterprise can sustain its burden of

demonstrating the availability of the FaragherEllerth affirmative defense. This defense posits

that the employer cannot be liable under Title VII

if it can show that there was no tangible

employment action (such as discharge, demotion or

undesirable reassignment)" and that (1) the

employer "exercised reasonable care to prevent

and correct promptly" any harassing behavior; and

(2) the plaintiff "unreasonably failed to take

advantage of any preventative or corrective

opportunities provided by the employer or to avoid

harm otherwise." Burlington Indus., Inc., 524 U.S.

at 765; Faragher, 524 U.S. at 807-08.

Here, it is undisputed that Enterprise implemented

the Personnel Policies and that the content of those

Policies had been communicated to Tavares. It is

undisputed that Tavares failed to take advantage of

the Policies in that he claims he suffered for almost

a year and a half under Whyte's alleged

harassment without bringing his complaints about

her either to Whyte herself or to the Human

Resources department, as provided by the Policies.

Rigau v. Pfizer Caribbean Corp., 525 F. Supp. 2d

2721 286 (D.P.R. 2007) (plaintiffs six month delay in

reporting series of incidents demonstrates failure

to take advantage of corrective opportunity). Nor

is there any "concrete reason" to justify the delay;

50a

Tavares stated that he did not report the

harassment because he felt badly for Whyte. See

Reed v. MBNA Mktg. Sys., Inc., 333 F.3d 27, 35-37

(1st Cir. 2003) (summary judgment vacated

because employee inaction based on threats by

perpetrator creates fact issue to be resolved by

jury). The effectiveness of Enterprise's Policies is

also undisputed in that, as Tavares concedes, as

soon as his complaint about Whyte's harassment

was communicated to Enterprise's Human

Resources department, an immediate investigation

was instigated resulting in prompt discipline of

Whyte for inappropriate comments and harassment

and discrimination training for his coworkers. After

the complaint was communicated to the Human

Resources department, Tavares continued as an

employee of Enterprise for more than a year, never

worked with Whyte again and never again was

subjected to sexual harassment. Moore v.

Dartmouth Coll., No. CIV. 99-37-M, 2001 WL

1326584, at *940 (D.N.H. Sept. 28, 2001) (stoppage

of harassment shows effectiveness of employer's

remedial action). This evidence is more than

sufficient to establish that, however Whyte's

conduct is classified, employer liability does not lie

because Enterprise is protected by FaragherEllerth. Agusty-Reyes v. Dept of Educ. of P.R.,

601 F.3d 45, 55 (1st Cir. 2010) (defense designed to

protect responsible employers with effective sexual

harassment policies and responsive grievance

processes); Lee-Crespo v. Schering-Plough Del

Caribe Inc., 354 F.3d 34, 45-46 (1st Cir. 2003)

51a

("Prompt remedial action that eliminates the

allegedly intolerable working conditions operates

as a complete defense to a claim of constructive

discharge.").

A final loose end before closing the book on

Tavares's claims about Whyte: Tavares alleges

that, in April 2009, almost a year after Whyte

showed him a picture of her younger, thinner self,

making him uncomfortable, she "demoted" him.

Tavares does not claim that he rebuffed any

overture by Whyte in the months preceding the

"demotion" so this claim is not one that requires an

analysis of whether Whyte engaged in quid pro quo

sexual harassment or whether the "demotion" was

in retaliation for Tavares's negative reaction to her

flirtation. Nor does Tavares present any other

evidence suggesting or permitting the inference

that the transfer was the result of discriminatory

animus. Rather, the factual evidence that Tavares

has presented establishes that Whyte told him she

was transferring him to different duties for positive

reasons (because he was "young, physical fit,

efficient and accountable") and that she transferred

him right back to the driver position he preferred

as soon as he presented the note from Dr. Ragheb.

I find nothing about this incident that is

conceivably actionable. See Richardson v.

Whitmarsh Corp., No. CA 07-309 ML, 2009 WL

5178075, at *16 (D.R.I. Dec. 29, 2009) (mere

transfer from the first to the third shift,

unaccompanied by a reduction in pay or

52a

significantly diminished job responsibilities, does

not constitute adverse employment action).

Based on the foregoing, I recommend that this

Court enter summary judgment in favor of

Enterprise with respect to all claims based on

harassment or discrimination by Whyte.

2. Employer Retaliation for Complaints about

Whyte's Harassment

After he returned from the medical leave of

absence in January 2011, Tavares claims that he

became the victim of retaliation both by

Enterprise, acting through his supervisor and its

management, and by his coworkers, all based on his

protected conduct in complaining about Whyte and

in filing the first Charge with RICHR. I focus now

on the claim of retaliation committed by his

supervisor and Human Resources,16 which consists

of a performance review critical of his safe driving,

a Correction Notice for dangerous and erratic

vehicle operation and termination for creating a

hazardous condition on the highway involving

himself, a coworker and an Enterprise vehicle.

To state a Title VII claim for retaliation, Tavares

must prove by a preponderance that he undertook

protected conduct, that Enterprise took a material

adverse action against him and that there is a

causal nexus between its actions and his protected

conduct. Planadeball v. Wyndham Vacation

Resorts, Inc., 793 F.3d 169, 175 (1st Cir. 2015).

Tavares claims that his October 2010 complaint

about Whyte's harassment and the resulting

RICHR Charge, both unquestionably protected

53a

conduct, led to criticism by his new supervisor and

ultimately to termination. With the customary

assumption that Tavares can make out a prima

facie case, and with no direct evidence that these

adverse employment actions were in retaliation for

his complaints about Whyte, the analysis proceeds

under the McDonnell Douglas burden-shifting

framework. Galvao v. Gillette Co., 121 F.3d 695, at

*3 (1st Cir. 1997). Under McDonnell Douglas,

Enterprise has articulated a non-retaliatory reason

for the negative review, the discipline and the

termination (its legitimate concerns about safety),

placing the ultimate burden of proof on Tavares to

prove by a preponderance that the adverse actions

were in retaliation for the exercise of protected

rights. Colburn v. Parker Hannifin/Nichols

Portland Div., 429 F.3d 325,332 (1st Cir. 2005).

To sustain his burden of presenting probative

evidence to dispute Enterprise's legitimate,

nondiscriminatory explanation for its actions,

Planadeball, 793 F.3d at 175, Tavares attempts to

rely on temporal proximity. Relatedly, Tavares

argues that the reasons given for terminating his

employment are pretextual because all of the

criticism of him pertaining to safe vehicle

operation—his May 26, 2011, review, the June 23,

2011, Correction Notice, and the November 10,

2011, termination—happened after he began to

complain." This argument is unavailing. First,

temporal proximity is lacking: the Whyte complaint

was initially made on October 6-7, 2010, and the

RICHR Charge issued on May 31, 2011, while the

54a

critical review was dated May 26, 2011, the

discipline notice was not given until June 23, 2011,

and Tavares was not fired until November 10, 2011.

ECF No. 118-4 at 21-22. Further, Tavares presents

no evidence to establish that his supervisor was

aware of the meeting with Piccolo in October 2010

or of the RICHR Charge either when he prepared

Tavares's review or when he disciplined Tavares

for unsafe driving. See id. at 22. In any event,

evidence of temporal proximity alone is insufficient

to establish pretext. Reilly v. Cox Enters., Inc., No.

CV 13-785 S, 2016 WL 843268, at *3 (D.R.I. Mar. 1,

2016) (citing Calero-Cerezo v. U.S. Dept of Justice,

355 F.3d 6, 26 (1st Cir. 2004)).

Tavares also tries to sustain his McDonnell Douglas

burden with the arguments that the discipline

notice is a pretext because his admittedly erratic

driving did not cause any vehicle damage and that

his termination is a pretext because Enterprise

should have believed Tavares's version of the

incident (that he forced a coworker speeding at

over 90 miles per hour to stop) and concluded that

he acted appropriately in that it would have been

more dangerous to allow the other worker to

continue to speed. Finally, he argues that a fact

finder could conclude that Enterprise's

investigations were pretextual because it

consistently concluded each by disbelieving the

Cape Verdean Muslim (himself) while crediting the

Caucasian non-Muslims (other employees). In

analyzing the viability of these arguments, this

Court must maintain focus on the ultimate issue:

55a

whether, viewing the record as a whole and taking

all inferences in his favor, a reasonable jury could

find that Enterprise's stated reason for each action

was a pretext for unlawful retaliation. Collazo v.

Bristol-Myers Squibb Mfg., Inc., 617 F.3d 39, 50

(1st Cir. 2010); Calero-Cerezo, 355 F.3d at 26.

Viewed through this lens, Tavares's facts are

simply insufficient to support an inference of

pretext.

Focusing first on supervisor Hall's critical review

and the discipline notice, in addition to the lack of

proof that Hall knew about the Whyte complaints,

Tavares has also failed to present a scintilla of

evidence that Hall knew Whyte nor had any reason

to avenge Tavares's criticism of her vulgar

workplace language, criticism in which other

employees joined, as the Piccolo investigation

revealed. Moreover, Tavares has not even

attempted to challenge the factual underpinnings

for Hall's criticism of his driving in the May 2011

review, except to point out that his prior reviews

were favorable. More importantly, Tavares has

effectively admitted that he engaged in the

dangerous behavior for which Hall disciplined him

in June 2011; his only argument that the discipline

notice is a pretext is the illogical contention,

unsupported by any facts, that Enterprise normally

does not punish dangerous driving unless it results

in actual damage.'8 There is simply no evidence to

buttress the proposition that the reasons for Hall's

adverse actions were a pretext to cover up his real

goal of retaliating for the Whyte complaint. See

56a

Arroyo v. Colvin, No. 14-1855, 2016 WL 850952, at

*2.4 (1st Cir. Mar. 4, 2016).

Tavares's contention that Enterprise's November

2011 decision to terminate him was pretextual is

equally unavailing. The termination decision was

properly based on information learned by Piccolo

and another Enterprise manager during a prompt

and thorough investigation of the incident; nor is

there any suggestion that the termination process

was a departure from Enterprise's usual

procedures. Kendrick v. Penske Transp. Servs.,

Inc., 220 F.3d 1220, 1231 (10th Cir. 2000) (no

pretext if no evidence that employer's investigation

was inadequate or sham); Cook v. CTC Commc'ns

Corp., No. CIV.A. 06-CV-58-JD, 2007 WL 3284337,

at *8 (D.N.H. Oct. 30, 2007) (evidence of pretext

present when chief executive told in-house counsel

to investigate plaintiff because he wanted him

fired). There also is no evidence that Piccolo or

other managers involved in the decision to

terminate ever demonstrated any discriminatory

animus towards Tavares; to the contrary, the

ample record of Piccolo's dealings with Tavares

evince that she acted with patience, with respect

and with an attitude of careful attention to each of

his many complaints. See Webber v. Int'l Paper

Co., 417 F.3d 229, 236 (1st Cir. 2005) (lack of

evidence that decision-maker harbored or

demonstrated any discriminatory animus

undermines showing of pretext). Finally, there are

simply no facts to support Tavares's claim that

Piccolo had a pattern of resolving the issues raised

57a

by his complaints not on the merits but rather by

automatically disbelieving the only Muslim

(himself) while accepting the statements of

Caucasian non-Muslims.19

Tavares's challenge to the termination decision

rests principally on his contention that his version

of what happened should have been accepted by

Enterprise. However, it is well settled that the

employee cannot show pretext by demonstrating

that the employers foundation for the decision to

terminate was incorrect or unwise, as long as the

employer believed its stated reason. Id. at 238

(employer may terminate employee for

nondiscriminatory reason even if decision seems

unwise); Goldman, 985 F.2d at 1118 (in assessing

pretext, court must assess whether employer

believed its stated reason); Morgan v. Mass. Gen.

Hosp., 901 F.2d 186, 191 (1st Cir. 1990) (plaintiff

fired for starting fight could not prevail by

questioning accuracy of employer's belief). The

court may not act "as super personnel

departments, assessing the merits—or even the

rationality—of employers' nondiscriminatory

business decisions." Fennell v. First Step Designs,

Ltd., 83 F.3d 5261 537 (1st Cir. 1996). Here, it is

undisputed that Piccolo conducted interviews and

relied on information obtained from two coworkers,

corroborated by the Massachusetts State Police

officer and Tavares's inconsistent statements,

before making the finding that Tavares's conduct

was inappropriate, created a safety risk and

warranted termination. Whether her factual

58a

conclusion was right or wrong, this unrebutted

evidence is more than sufficient to establish that

Tavares has not sustained his burden of showing

that Enterprise's reason to terminate was

pretextual.20 See Reilly, 2016 WL 843268, at *4

(when employer interviews corroborated

allegations of misconduct, despite plaintiff's denial

that she did "yell," reason for termination not

pretextual; summary judgment granted).

Cumulatively, the death knell of Tavares's claim of

retaliatory criticism, discipline and firing is

sounded by the complete dearth of any competent

facts to establish that Enterprise's decisions to

criticize, discipline and then terminate Tavares for

conduct that endangered people and property were

pretextual, coupled with the absence of any

foundation for an inference of a nexus between the

adverse decisions and Tavares's complaints about

Whyte. Murray, 2016 WL 1622833, at *7 (record

bereft of evidence of connection between protected

activity and firing; summary judgment on

retaliation claim granted). Accordingly, I find that

Enterprise is entitled to summary judgment on

Tavares's claim that his critique, discipline and

termination were retaliatory and recommend that

this Court grant that aspect of its motion.

3. Retaliation/Hostile Work Environment Caused

by Coworkers

Tavares claims that his return from medical leave

opened the flood-gates of retaliatory actions

against him by his coworkers; while he appears to

allege that the motivating animus for all of them

59a

was his sexual harassment complaint about Whyte,

the claims themselves appear to be based on

religious, racial, national origin and disability

discrimination that effectively created a hostile

work environment. I analyze them from every

perspective.

When the hostile work environment is created by a

coworker, rather than a supervisor, the employer

can only be liable if "the employer knew or should

have known about the harassment, yet failed to

take prompt action to stop it." Novieflo v. City of

Boston, 398 F.3d 761 95 (1st Cir. 2005); Danco, Inc.

v. Wal-Mart Stores, Inc., 178 F.3d 81 16 (1st Cir.

1999). In addition, if the employer takes prompt

and reasonable action to address the harassment, it

cannot be found liable; an "employer who has taken

reasonable steps under the circumstances to

correct and/or prevent racial harassment by its

nonsupervisory personnel has not violated Title

VII." DeGrace v. Rumsfeld, 614 F.2d 7967 805 (1st

Cir. 1980); see Moore, 2001 WL 1326584, at *940

("[o]nce an employer has in good faith taken those

measures which are both feasible and reasonable

under the circumstances to combat the offensive

conduct we do not think he can be charged with

discriminating on the basis of race") (quoting

DeGrace, 614 F.2d at 805); see also Espinal v. Nat'l

Grid NE Holdings 2, LLC, 794 F. Supp. 2d 285, 294

(D. Mass. 2011) (in coworker cases, "an employer

can only be liable if the harassment is causally

connected to some negligence on the employer's

part").

60a

Here, the record undisputedly establishes that

every complaint about his coworkers' behavior that

Tavares brought to Piccolo resulted in her prompt

response with an investigation whether anything

inappropriate had occurred and with corrective

action if she concluded that it had. She arranged at

least two meetings with Tavares to discuss his

concerns and reminded him of his right to work in

"an environment free from intimidation and

harassment of any sort." ECF No. 126-6 at 4. When

he told her he was thinking of quitting, she urged

him not to, reminding him that she was continuing

to work on reviewing the incidents he raised. Id. at

5. When Tavares wrongly believed that he was

being asked to do something for a retaliatory

reason, such as when he was asked to fill in the

form to update the company's emergency plan, she

explained what the form was and why he should fill

it out; similarly, when he became suspicious about

being asked to do a survey, she assured him that he

was not required to complete it. Id. at 8, 16. While

Tavares disputes the results of her many

investigations, that is not the test for imposing

liability. Rather, the employer can be held liable

under Title VII for coworker harassment only if its

responses indicate an attitude of permissiveness

that amounts to discrimination in that it failed to

act reasonably under the circumstances. Moore,

2001 WL 1326584, at *940. Here, Tavares presents

no concrete reasons to doubt the sincerity of

Piccolo's conclusions about each of the incidents she

investigated.21 See Hepburn v. Brown Univ., C.A.

61a

No. 14-368 S, 2016 WL 1384818, at *2.4 (D.R.I. Apr.

7, 2016) (with no reason to doubt sincerity of

conclusion of investigation involving interviews of

employees telling different version from version

told by black male who was fired, summary

judgment granted).

Although Enterprise was not able to rid the

workplace of comments and incidents that Tavares

perceived as harassment, the undisputed facts

establish that it responded promptly and in a

manner reasonably calculated to address each of his

specific complaints and designed to prevent any

systemic harassment. See DeGrace, 614 F.2d at 805

(imposing on employers the obligation to take

"reasonable steps under the circumstances to

correct and/or prevent racial harassment");

Rutledge v. Macy's E., Inc., No. 01-12-P-H, 2001

WL 1117108, at *9 (D. Me. Sept. 17, 2001) (to avoid

liability, employer need not prove success in

preventing harassing behavior, just that it

exercised reasonable care). Accordingly, I

recommend that this Court enter summary

judgment in favor of Enterprise on the claims of

harassment and retaliation by coworkers.

4. Refusal To Accommodate Religious Practice

Tavares complains that Hall, his supervisor, gave

him a hoodie or a ball cap with an Enterprise logo

and urged him to wear it in lieu of the kufi that

Tavares alleges is his religious practice. This fails

as a Title VII claim because Tavares's version of

the incident makes clear that Hall was making a

mere suggestion, which Tavares did not accept in

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that he continued to wear the kufi every day that

he worked at Enterprise. ECF No. 118-4 at 13-14.

While Title VII requires that an employee's

religious practice must be reasonably

accommodated as long as that is possible without

undue hardship on the conduct of the employer's

business, 42 U.S.C. § 2000e(j), Tavares presents

nothing permitting the inference that Enterprise

somehow missed the mark. Enterprise allowed his

religious practice and imposed no requirements to

deter or prevent it. Hall's rejected suggestion that

Tavares try wearing a different hat does not

amount to discrimination based on religion. Rivera

v. P.R. Aqueduct & Sewers Auth., 331 F.3d 183,

189 (1st cir. 2003) (to be discriminatory, remarks

must be more than merely tinged with content

abhorrent to religion); cf. Murray, 2016 WL

1622833, at *6 (stray "snide comments" without

more are "minor instances of employment

skirmishes" that do not move the meter). Because

Tavares fails to present facts sufficient for a prima

facie case in that the undisputed evidence

establishes that his religious practice was

accommodated, Sanchez-Rodriguez v. AT & T

Mobility P.R., Inc., 673 F.3d 1, 12 (1st Cir. 2012), I

recommend that the Court grant summary

judgment on this claim.

5. Failure to Accommodate Disability

Enterprise does not dispute that Tavares suffers

from a serious mental disability or that he sought

reasonable accommodation both in limiting the

number of hours to be worked per week, and in

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retaining him in the driver's position instead of

placing him in a position whose duties would

"overtax [ ] his fragile cognitive and emotional

system." ECF No. 4-1 at 27. And Tavares does not

dispute that he received the requested

accommodations once he provided medical

documentation. Tavares's only ADA claim appears

to be based on his perception that the requests by

Whyte and Piccolo for two letters from his

physician documenting his need for an

accommodation were unreasonable. He seems to

inject this claim with an element of Title VII

discrimination in that he alleges, with no factual

foundation, that no non-Muslim with a similar

disability was asked to submit two letters.

Failing reasonably to accommodate a disabled

person is a form of disability discrimination. Lang,

813 F.3d at 454. However, the burden of

demonstrating the need for an accommodation

rests on the employee and it is specifically

contemplated that the employer may, indeed

should, require appropriate documentation from a

qualified medical provider so that the requested

limitations are clear. See Murray, 2016 WL

1622833, at *4 (when need for accommodation not

obvious, employer may require that employee with

disability provide documentation of need for

accommodation); Stewart v. St. Elizabeths Hosp.,

589 F.3d 1305, 1309 (D.C. Cir. 2010) (failure to

accommodate not actionable where employee failed

to provide medical documentation that it was safe

to return to work). As the EEOC regulations

Ma

confirm, an employer can ask an employee for

documentation when he requests a reasonable

accommodation as long as the request is job-related

and consistent with business necessity. Equal Emp.

Opportunity Comm'n, Enforcement Guidance:

Disability-Related Inquiries and Medical

Examinations of Employees Under The Americans

with Disabilities Act (ADA), 2000 WL 33407181, at

*9 (July 27, 2000); see 42 U.S.C. § 12112(d)(4)(A)

(inquiries into disability appropriate when "jobrelated and consistent with business necessity");

Gajda v. Manhattan & Bronx Surface Transit

Operating Auth., No. 03 civ. 1642 (JSR), 2003 WL

22939123, at *2 (S.D.N.Y. Dec. 12, 2003) (employer

"requests for medical information were consistent

with business necessity").

Here the undisputed evidence establishes that both

of Enterprise's requests for a doctor's note were

made for job-related reasons and were consistent

with business necessity. While there is plainly a

factual dispute as to what was discussed at

Tavares's hiring regarding his need for

accommodation, as soon as he advised Whyte that

he needed to work part-time to accommodate his

disability, she properly asked for medical

documentation and, when it was received,

Enterprise fully accommodated his request.

Notably, Tavares does not complain about the next

doctor's note, which he supplied sua sponte to get

himself transferred from the "car prep" position

that he did not like back to the position of driver.

Nor did he complain about providing the third and

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fourth doctors notes, which formed the basis for

his taking and returning from medical leave. And

the last, about which he does complain, was

reasonably requested by Piccolo because Tavares

wanted to work more hours than his physician had

previously recommended. See Templeton v.

Neodata Servs., Inc., 162 F.3d 617, 618-19 (10th Cir.

1998) (request for updated medical information was

reasonable in light of treating physician's letter

indicating doubt as to employee's ability to return

to work as scheduled).

I find nothing actionable in Enterprise's request for

two doctor's letters and recommend that the Court

enter summary judgment in its favor on this claim.

6. Discrimination in Hiring

Tavares claims that the fact that his April 2008 job

application reflected that he had not earned a fouryear college degree, while it is undisputed that he

had, is evidence that Enterprise would have hired

him as a management trainee, but failed to do so

because of discriminatory animus. This claim—

wrongful denial of a management trainee

position—was raised for the first time after this

case had been pending and Tavares received a copy

of the job application in discovery. It does not

appear in either of the Charges of Discrimination

that Tavares filed with RICHR. ECF No. 131-4.

Nor is it mentioned in the Complaint. ECF No. 4.

A bedrock principle of employment law is that

causes of action based on claims not brought before

the Equal Employment Opportunity Commission

or RICHR are barred for failure to exhaust

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administrative remedies. Martinez-Rivera v.

Puerto Rico, 812 F.3d 691 77 (1st Cir. 2016);

Thornton v. United Parcel Serv., Inc., 587 F.3d 271

31 (1st Cir. 2009). It is also well settled that the

filing of a charge asserting other, only tangentially

related, claims is not a reason to sidestep the

exhaustion requirement; while "[a]n employee may

bring to a court a claim of retaliation under Title

VII without first presenting that claim to the

agency if the retaliation is reasonably related to

and grew out of the alleged discrimination that the

employee did report," an unlawful employment

practice that preceded the filing of the charge must

be included in it or be barred for the failure to

exhaust. Sellers v. U.S. Dept of Def., No. C.A. 07418S, 2009 WL 559795, at *13 (D.R.I. Mar. 4, 2009)

(quoting Mosely v. Potter, Docket No. 07-96—P—S,

2008 WL 877787, at *7 (D. Me. Mar. 27, 2008)). As

this Court held in Russell v. Enterprise Rent-ACar Company of Rhode Island, 160 F. Supp. 2d 239

(D.R.I. 2001), "[t]o allow plaintiff to litigate a claim

only tangentially related to those in her

administrative charge would thwart the EEOC's

ability and authority to facilitate the investigation

and resolution of Title VII disputes." Id. at 258.

Here, there is nothing in the "language used by

[Tavares]" in setting out the factual basis for either

of the Charges that comes close to suggesting

discrimination in hiring. Id. at 257-58.

I find that Tavares should be barred from pursuing

the claim that he was wrongfully denied a

management trainee position based on his failure to

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comply with the applicable exhaustion

requirements.22 Accordingly, I recommend that

summary judgment on this claim, operating

without prejudice, enter for Enterprise. Franceschi

v. U.S. Dept of Veterans Affairs, 514 F.3d 81, 86

(1st Cir. 2008) (summary judgment without

prejudice when based on failure to exhaust).

II. MOTION FOR SANCTIONS

Enterprise's motion for sanctions is brought

pursuant to Fed. R. Civ. P. 26 and 37. There is no

need to consider it if this case ends based on

Enterprise's motion for summary judgment; if my

summary judgment recommendation is adopted, I

also recommend that the sanctions motion be

denied as moot. However, to the extent that any

issues remain for trial, the sanctions motion must

be determined. The analysis that follows is focused

on the two discrete issues that it raises, one very

serious and the other less so. It is important to note

that this sanctions decision is not being written on

a clean slate—this Court has already imposed

sanctions on Tavares for conduct that included false

statements under oath and misrepresentations in

court filings. Tavares v. Enter. Rent-A-Car Co.,

C.A. No. 13-521S, 2015 U.S. Dist. LEXIS 122401, at

*24, 30-31 (D.R.I. Jan. 16, 2015). Because of his pro

se status and the complications of his mental illness,

the Court was lenient during the first round of

sanctions and did not dismiss the matter; however,

the lesser sanctions were imposed with a strong

caution that similar conduct in the future could

result in the sanction of dismissal. Id. at *3940

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A. Late Production of Relevant Documents

The less serious issue is Tavares's production of

certain documents called for by discovery

propounded well in advance, but not produced until

after his deposition was completed on August 20,

2014. Enterprise contends that some of the new

documents were supplied in September 2014 in a

supplemental document production, while others

were not produced until Tavares questioned

Enterprise deposition witnesses about them during

various depositions held in October 2015. The

remedy that Enterprise seeks is limited—it

requests only that the Court permit it to reopen

Tavares's deposition and inquire about the newly

produced documents. In response, Tavares argues

that, as a pro se litigant, he mistakenly believed

that documents supplied to RICHR did not need to

be produced because they were in Enterprise's

possession as a party to that proceeding. As this

litigation has proceeded, he has come to understand

that he had to produce such documents; he did so

(in part) in making the September 2014

supplemental production.

This aspect of the motion for sanctions is easily

solved. If this case proceeds to trial, I recommend

that the Court impose the curative sanction of

ordering that Tavares, at his option, may either

submit to being deposed regarding the untimely

produced documents or forego their use at trial. If

he opts to be deposed, the supplemental deposition

shall be limited to two hours, during which

Enterprise may examine him only regarding those

69a

late-produced documents that Tavares opts to have

available for use at trial. Le v. Diligence, Inc., 312

F.R.D. 245 (D. Mass. 2015) (renewed deposition

necessitated by production of documents after first

deposition). Morrison v. Stephenson, No. 2:06-CV02831 2008 WL 145017, at *2 (S.D. Ohio Jan. 10,

2008) ("if, after a witness is deposed

new

documents are produced, the witness may be redeposed with respect to these new developments").

To the extent that Enterprise's motion for

sanctions seeks any other remedy with respect to

the late produced documents, I recommend that it

be denied. See Official Comm. of Unsecured

Creditors of Exeter Holdings, Ltd. v. Haltman, No.

CV135475JSAKT, 2016 WL 1180194, at *4

(E.D.N.Y. Mar. 25, 2016) (in general, re-opening

depositions "limited to particular documents");

Kotas v. Eastman Kodak Co., No. CIV.A. 95-CV1634, 1997 WL 570907, at *17 (E.D. Pa. Sept. 4,

1997) (renewed depositions "limited to the area of

these newly-produced corporate documents"); cf.

Joachim v. Straight Line Prods., LLC, No. 2013149-APPEAL, 2016 WL 2609557, at *16 (R.I. May

61 2016) (when document produced for first time at

trial on re-direct examination, sanction of dismissal

is appropriate).

B. Use of Fraudulently Altered Document

The other aspect of the sanctions motion is very

serious indeed. Enterprise contends that the

document that Tavares marked as Piccolo Exhibit

18 (ECF No. 126-10) is a forgery.

...

70a

*21 The background to this troubling claim may

briefly be stated. In October 2010, Tavares had a

series of meetings with Enterprise's Human

Resources Manager Kristen Piccolo during which

he complained about the conduct of his supervisor

Whyte and about the conduct of various coworkers.

Tavares's description of the specific facts he laid

before Piccolo during these meetings is

foundational both to his claim of a hostile work

environment preceding the meetings and of

retaliatory adverse employment actions

(culminating in termination) after the meetings.

The accused forgery purports to be a written

factual statement laying out his complaints that he

claims he gave to Piccolo on October 7, 2010—

Tavares has sworn under oath that Piccolo signed

the document in his presence that day to

acknowledge that she had received it. ECF No.

125-2 at 4-5. She adamantly denies that she ever

saw it until he marked it as an exhibit and handed

it to her at her deposition. ECF No. 119-9 at 6-7.

Enterprise denies that it was produced by either

party until the Piccolo deposition when Tavares

marked it; it also argues that it is illogical that

Piccolo would have worked so hard to finalize the

statement (ECF No. 126-5) that she agrees she did

sign on October 7, 2010, if the other statement

(ECF No. 126-10) had already been prepared and

presented to her by Tavares.

If Tavares's version of these events is false, it

amounts to a falsehood that directly impacts core

allegations of the complaint, justifying the

71a

imposition of the sanction of dismissal. Aoude v.

Mobil Oil Corp., 892 F.2d 1115, 1118-19 (1st Cir.

1989) (sanction of dismissal appropriate when

misconduct directly impacts the core allegations of

the complaint). When a plaintiff both perjures

himself and forges a document critical to the

prosecution of the case, the conduct so impugns the

integrity of the court that there is no need to

consider sanctions lesser than dismissal. Jackson v.

Murphy, 468 Fed.Appx. 616, 620 (7th Cir. 2012); see

Combs v. Rockwell Int'l Corp., 927 F.2d 486,488-89

(9th Cir. 1991) (alteration of deposition testimony

on key aspect of case warrants dismissal). Courts

specifically find that dismissal is appropriate in

employment cases when the manufactured

evidence and perjured testimony goes to the heart

of the discrimination claim. Pope v. Fed. Express

Corp., 974 F.2d 982, 983-84 (8th Cir. 1992).

What follows is detailed exposition of the facts

relevant to this component of the sanctions motion,

beginning with the facts that are-undisputed. These

facts focus on the many (five in all) versions of

written statements by Tavares describing the

harassment and discrimination that he believes was

inflicted by Whyte. Because the content and

provenance of the first four statements (whose

authenticity is not in issue) intertwine with the

content and provenance of the statement

challenged as a forgery, with apologies to the

reader, the description of each is somewhat

granular.

72a

As Human Resources Manager, Piccolo

investigated employee complaints and prepared

statements to record what she learned. Consistent

with this practice, as Piccolo testified, on October 6,

2010, she met with Tavares at his request "to

discuss complaints." ECF No. 118-3 at 5. After that

meeting, she took the time to prepare a

typewritten six-page draft statement based on her

notes of what Tavares had told her. ECF No. 126-5

("Statement I"). On October 7, 2010, she met again

with Tavares to go over this draft statement. ECF

No. 118-3 at 5. During the October 7 meeting,

Tavares declined to sign the foot of Statement I;

however, at Piccolo's request, she and Tavares both

signed and dated the top of every page. Id. at 7. On

October 7 and again on October 13, 2010, Piccolo

worked with Tavares as he continued to make

handwritten edits to Statement I. Despite the

additional time invested, Tavares refused to agree

to acknowledge that Statement I was complete by

signing at its foot. Id. at 6-7; ECF No. 126-5 at 6-7.

Tavares's averment that Statement I is a true copy

of his written complaint "in verbal and in writing to

Piccolo about the sexual harassment" is not

disputed by Enterprise. ECF No. 126-1 at 5, 1 24.

Meanwhile, on October 7, 2010, Piccolo commenced

her investigation of the complaints in Statement I

by interviewing and taking statements from other

employees.

Chronologically, the next two undisputedly

authentic versions of Tavares's complaint about

Whyte appear in statements that he supplied five

73a

months later to RICHR in connection with the

initiation of the filing of the Charge of

Discrimination. First, a typed statement headed

"Rogerio Tavares Statement 3/7/11," with an

RICHR date-stamp indicating that it was received

on March 8, 2011, is attached to Tavaress

affirmation; Tavares describes it as a copy of his

"complaint [filed] with Rhode Island Human Right

Commission"; Enterprise does not challenge the

authenticity of this statement. ECF No. 126-1 at 7;

ECF No. 126-7 ("Statement II"). Neither party

suggests that Statement II was given to Piccolo.

Second, also date-stamped as received by RICHR

on March 8, 2011, is a typed document headed,

"Rogerio Tavares statment," with the subheading,

"Oct 67 2010 8am Rogerio Tavares speaking with

HR Manager Kristen Piccolo Informal Resolution."

ECF No. 117-11 ("Statement III"). Enterprise

attached Statement III to its summary judgment

motion describing it as the statement that Tavares

submitted to the Commission; Tavares does not

dispute that contention. ECF No. 117-1 at 13.

There is no suggestion that Piccolo was given

Statement III.

The fourth statement first appears in the record as

an attachment to Tavares's "Amended

Complaint/Corrected," ECF No. 13, which he filed

on December 10, 2013, in a failed attempt to amend.

ECF No. 13-1 ("Statement IV"). The purported

pleading describes the attachment: "[a]ttached

additional documents for informal resolution

speaking with (details of complaint) Kristen Piccolo

74a

HR Manager with Enterprise Holding on October

61 2010." ECF No. 13 at 5, ¶ 4. Statement IV is

headed "Roger Tavares v. Enterprise Rent a Car,"

with a subheading that states, "Oct 6, 2010 8am

Roger Tavares speaking with HR Manager Kristen

Piccolo Informal Resolution." ECF No. 13-1 at 1.

Statement IV is verbatim identical to Statement

III, which was submitted to RICHR on March 8,

2011, except that the latter is in the first person

while the former has been edited to speak in the

third person. In addition, the titles are different,

with the March 2011 Statement III entitled

"Rogerlo Tavares statment" and the December

2013 Statement IV entitled "Roger Tavares v.

Enterprise Rent a Car." Compare ECF No. 117-11,

with ECF No. 13-1 at 1. Tavares does not explain

how or why Statement IV came to be copied from

Statement III; the parties do not dispute the

provenance of Statement IV. There is no

suggestion that Enterprise became aware of

Statement IV until it was filed in December 2013

when Tavares tried to amend his complaint.

The accused statement ("Statement V") is identical

to Statement IV, with a material distinction: at the

top of the first page appears a copy of the

signatures of Tavares and Piccolo and of the

handwritten date, October 7, 2010, while at the

bottom of the first page is a handwritten note

stating "facts that were missing." ECF No. 126-10.

In his affirmation in support of his opposition to the

motion for summary judgment, Tavares both

affirms Piccolo's testimony that Statement I is the

75a

version that he and she worked on for several days

during October 2010, but also swears that the

accused statement, Statement V, is a "[c]opy of the

statement dated Oct. 6, 2010 given to Piccolo."

ECF No. 126-1 at 7, ¶ 35. In his affirmation in

support of his opposition to the motion for

sanctions, Tavares is more specific: he avers that

the accused statement is a copy of Statement IV

(the version filed in December 2013) and that

Piccolo's signature and the date (October 7, 2010)

were placed on the document by Piccolo at a

meeting with Tavares on that day to go "over

additional facts about which I was complaining I

was presenting the document to Piccolo to make

clear that these were additional complaints that I

wanted her to consider in her investigation." ECF

No. 125-2 at 4-5, ¶ 8. He swears that Piccolo

"signed her name at the top and dated it to show

when she first saw the document"; he explains his

possession of only a copy of Statement V with his

sworn averment that Enterprise has the original of

this document and produced it in response to

Tavares's discovery requests.23 ECF No. 125-2 at 5,

¶ 9.

Piccolo's deposition tells an entirely different story:

she testified that she had never seen Statement V

until it was handed to her at her deposition on

October 5, 2015. ECF No. 119-9 at 6. While

agreeing that the copy of her signature on the top

of the first page appears to be her handwriting, id.

at 7, she adamantly denied that she signed

Statement V. Id. Piccolo testified that, when she

...

76a

uses the convention of asking an employee to sign

the top of the page to confirm that the page was

discussed, her practice is to have both herself and

the employee sign every page; Statement I reflects

this protocol, while Statement V does not in that

the copies of the signatures appear only on the first

page. See id. at 6. Consistent with Piccolos

testimony and contrary to Tavares's averments,

the two signatures (those of Tavares and Piccolo)

and the date appearing at the top of the first page

of Statement V appear to the casual observer to be

photographically exact copies of the signatures and

date appearing on the top of the fourth page of

Statement I. Compare ECF No. 126-5 at 5 (page

four of Statement I), with ECF No. 126-10 at 2

(page one of Statement V).

When these facts are examined in light of the

totality of the evidence, they permit the inference

that Statement V is a forgery. It makes little sense

that Piccolo and Tavares would have worked so

hard over three meetings to try to complete

Statement I if that effort was obviated by

Tavares's presentation to Piccolo of Statement V.

Similarly, the title of Statement V—"Roger

Tavares v. Enterprise Rent a Car"—makes little

sense in the context of the October 2010 meetings

when Tavares was making his first complaint about

Whyte and did not yet know how Enterprise would

respond; put differently, in October 2010, no

adverse proceeding between Tavares and

Enterprise existed. It also makes no sense that

Piccolo would lie about Statement V; the

77a

undisputed evidence establishes that she was

trying to hear and understand the full scope of

Tavares's complaints so that she could commence a

meaningful investigation and it is illogical for her to

lie to suppress the existence of Statement V if she

really saw it. It is far more likely that Statement V

was created from Statement IV, which was

attached to the December 2013 Amended

Complaint. The troubling identicality of the

signatures on Statement V's first page to those

that appear on page four of Statement I permits

the inference that Statement IV was fraudulently

altered by cutting out a copy of those signatures

from Statement I and taping or pasting them onto

the first page of Statement IV, which was copied to

create Statement V. This inference is corroborated

by Piccolo's testimony that, if she uses the protocol

of signing the top of a statement, then all pages are

signed, not just the first page, as well as by her

adamant denial that she signed Statement V.

All of these inferences are more than enough to

launch this sanctions issue to an evidentiary

hearing at which the Court can evaluate the

credibility of the individuals involved, particularly

Tavares and Piccolo, and consider whether the

evidence supporting such troubling findings clears

the bar by the clear and convincing standard that

must be applied before imposing a case-ending

sanction. Secrease v. W. & S. Life Ins. Co., No.

1:15-CV-00742-SEB, 2015 WL 7096295, at *2 (S.D.

Ind. Nov. 12, 2015) (fraud on the court by alteration

of document determined at evidentiary hearing);

78a

Paniagua v. Max 18, Inc., No. 11 C 03320, 2013 WL

5907893, at *1 (N.D. Ill. Nov. 4, 2013) (courtconducts evidentiary hearing on sanctions to

determine if signature forged); Zimmerman v. Poly

Prep Country Day Sch., No. 09 CV 4586 FB, 2012

WL 2049493, at *34 (E.D.N.Y. June 6, 2012) (court

has inherent authority to conduct evidentiary

hearing to determine if it has been the victim of

fraud, citing cases).

Based on the foregoing, to the extent that the

sanctions motion is not mooted by my

recommendation on summary judgment, I

recommend that this Court direct that an

evidentiary hearing be conducted regarding

whether Statement V is a forgery. Further,

because testimony by Tavares at such a hearing

implicates his rights pursuant to the Fifth

Amendment,24 I recommend that, if such a hearing

is needed, the Court appoint a special purpose pro

bono attorney from the Court's Pro Bono Panel (or

engaged counsel if he is not financially eligible" for

pro bono counsel) for the limited purpose of

advising Tavares regarding his right to remain

silent and the consequences arising from the

invocation of the Fifth Amendment by a plaintiff in

a civil case.

III. CONCLUSION

Based on the foregoing, I recommend that

Enterprise's motion for summary judgment (ECF

No. 117) be granted. I further recommend that its

motion for sanctions (ECF No. 119) be denied as

moot. To the extent this Court does not adopt my

79a

recommendation on the motion for summary

judgment, I recommend that the motion for

sanctions be granted in part as follows: that

Tavares, at his option, may either submit to being

deposed regarding the untimely produced

documents or forego their use at trial, that an

evidentiary hearing be conducted to determine

whether this case must be dismissed as a sanction

for the alteration of a material document and that a

special purpose attorney (either pro bono or

engaged) be appointed to represent Tavares at that

hearing in light of the risk of perjury posed by such

a hearing.

Any objection to this report and recommendation

must be specific and must be served and filed with

the Clerk of the Court within fourteen (14) days

after its service on the objecting party. See Fed. R.

Civ. P. 72(b)(2); DRI LR Cv 72(d). Failure to file

specific objections in a timely manner constitutes

waiver of the right to review by the district judge

and the right to appeal the Court's decision. See

United States v. Lugo Guerrero, 524 F.3d 5, 14 (1st

Cir. 2008); Park Motor Mart, Inc. v. Ford Motor

Co., 616 F.2d 603, 605 (1st Cir. 1980).

Footnotes

iTavares's pro se status was extensively addressed

in this Court's decision imposing sanctions on him,

inter alia, because he made filings that had been

written by an attorney, yet represented that he

had written them himself. ECF No. 79; Text Order

80a

of Sept. 14, 2015. Despite that history, in

connection with these motions, I have applied to his

filings the usual leniency that is appropriate for a

pro se litigant. See Hughes v. Rowe, 449 U.S. 5, 9

(1980); Haines v. Kerner, 404 U.S. 519, 520-21

(1972) (per curiam); Instituto de Educacion

Universal Corp. v. U.S. Dept of Educ., 209 F.3d 18,

23 (1st Cir. 2000).

2The operative complaint is the "Amended

Complaint Pursuant to 28 USC § 1915(e)(2)," filed

on July 25, 2013. ECF No. 4 (hereinafter, the

"Complaint"). In December 10, 2013, Tavares

attempted to amend by filing a new pleading that

was different from the version attached to an

uncontested motion to amend; the pleading was

stricken. Text Order of Jan. 14, 2014. Tavares made

two more motions to amend on January 15, 2014,

and April 1, 2014; both were denied. Text Order of

Mar. 17, 2014; ECF No. 47.

3These facts come from the parties' statements of

disputed and undisputed facts, together with the

documents attached to them, the Complaint and its

attachments, the affirmation submitted by Tavares

with its attachments, deposition excerpts and

certain uncontroverted documents attached to

Enterprise's motion for summary judgment. For

ease of reference, the textual citations are to the

electronic case file number. These translate as

follows:

Complaint

ECF No.4

Attachments to Complaint

81a

ECF No. 4-1

Attachments to Motion for Summary Judgment

ECF No. 117-2 through 117-13

Enterprise's Statement of Undisputed Facts

("SUF")

ECF No. 118

Attachments to Enterprise's SUF

ECF No. 118-1 through 118-15

Piccolo Deposition Excerpts

CF Nos. 118-3, 131-1

Tavares Deposition Excerpts

ECF No. 118-4

Hall Deposition Excerpt

ECF No. 118-12, ECF No. 131-3

Tavares Affirmation (Sanctions)

ECF No. 125-2

Attachment to Tavares Affirmation (Sanctions)

ECF No. 125-3

Tavares Affirmation (Summary Judgment)

ECF No. 126-1

Attachments to Tavares Affirmation (Summary

Judgment)

ECF No. 126-2 through 126-12

Tavares's Undisputed and Disputed Facts

ECF No. 128-1

Attachments to Enterprise's Summary Judgment

Reply

ECF No. 131-1 through 131-4

Enterprise's Statement of Disputed Facts ("SDF")

ECF No. 133

Attachments to Enterprise's SDF

ECF No. 133-1 through 133-2

82a

The recited facts are undisputed unless they are

described as disputed in the text.

4The only medical records considered in this report

and recommendation are those placed in the record

by Tavares himself, who attached them to his

Complaint. ECF No. 4-1 at 29-33. Numerous other

medical records have been produced and filed

under seal by Enterprise; with one exception, I

have not considered any of them because they are

neither authenticated nor explained. The exception

is a doctor's note regarding Tavares's need for an

accommodation in the number of hours worked per

week. ECF No. 136 at 49. I have considered it

because Tavares referred to it specifically in his

affirmation. ECF No. 126-1 at 8, 137.

5Tavares himself placed in the summary judgment

record at least three references suggesting that his

prior employment was not at Brooks Pharmacy but

rather was at Kelly's Carwash or at a Shell gas

station/retail store for MVC Enterprises. See, e.g.,

ECF No. 126-3 at 3 (Tavares's "new hire sheet"

lists Kelly's Carwash/Mobil for prior work

experience); ECF No. 126-7 at 3 (Tavares's

statement refers to "previous employer Kelly's

Mobil"); ECF No. 125-3 at 6 (Tavares's

interrogatory answer states that in 2007 he worked

at Shell gas station/retail store for MVC

Enterprises). Because, for purposes of summary

judgment, Enterprise does not dispute the claim

that Brooks was the prior employer, I accept it as

undisputed.

83a

6The summary judgment record does not reveal

who filled in each of these inconsistent portions of

the application form.

7As discussed in detail in connection with the

sanctions motion, infra, Tavares has provided an

array of not-entirely-consistent descriptions of the

incidents he perceived as sexual harassment and

discrimination, resulting in a hostile work

environment at Enterprise through October 2010.

One of those statements, which is attached to

Tavares's affirmation, is the accused "forgery,"

ECF No. 126-10, whose provenance is placed in

issue by the sanctions motion. ECF No. 119-5 at 25. For purposes of summary judgment, I have

disregarded Enterprise's claim that it is a fraud

and considered its contents, assuming that Tavares

showed it to the Enterprise Human Resources

Manager on October 7, 2010.

8Tavares has supplied only one example of

coworker conduct that he believes reflects the

retaliation that he claims occurred after the

meeting with Whyte and before the meeting on

October 7, 2010, with Human Resources: on

October 1, 2010, he claims he approached a

coworker with a question and was told to leave his

office "because we cant trust you." ECF No. 126-10

at 3. The same coworker spoke of killing people. Id.

9The summary judgment record does not reveal

what, if anything, happened as a result of this

police report.

lOTavares claims he filed the Charge on March 8,

2011, based on a statement he prepared that is

84a

date-stamped as received at RICHR on March 8,

2011. See ECF No. 126-1 at 7, 1 32; ECF No. 1264

at 2. The formal Charge itself is dated May 31,

2011. ECF No. 117-2 at 2.

liThese are the documents that are the subject of

one aspect of Enterprise's motion for sanctions. See

ECF No. 119-2 through 119-5 and 119-8. At the

hearing on the motions, Tavares represented to the

Court that he believes that these documents

evidence additional discriminatory or retaliatory

conduct by Enterprise.

12Tavares argues that it is disputed whether

"tapping" other vehicles is a cause for discipline

when there is no damage, pointing to the testimony

of his supervisor Hail, who answered one question

at his deposition with "I cannot recall." ECF No.

118-12 at 4. Read in context, it is clear that Hall

actually testified that hitting another vehicle is

contrary to Enterprise policy, whether or not there

is damage, and that Hall had disciplined other

workers for doing so. Id. at 3-7. Hall also testified

that he knew that there had been no damage to the

vehicle at the time he prepared the Correction

Notice; he added a note to that effect when he

wrote the Notice because Tavares was so upset. Id.

at 7-8.

13The Complaint does not name the statutory

bases for Tavaress claims, leaving this Court to

hypothesize what laws may be implicated.

Enterprise's motion lists the obvious federal causes

of action and Tavares has not argued that he

asserts other causes of action. The obvious missing

85a

set of statutes are the state laws protecting against

employment discrimination, such as the Rhode

Island Fair Employment Practices Act, R.I. Gen.

Laws § 28-5-7(1)(i)-(ii), the Rhode Island Civil

Rights Act, R.I. Gen. Laws § 42-112-1, and the

Rhode Island Civil Rights of Peoples with

Disabilities Act, R.I. Gen. Laws § 42-87-1. Because

the summary judgment standard applicable to

these state law claims is substantially the same as

the standard applicable to Title VII and ADA, if

they were considered, my recommendation would

remain unchanged. See Reilly v. Cox Enters., Inc.,

No. CA 13-785S, 2014 WL 4473772, at *7 (D.R.I.

Apr. 16, 2014); Izzi v. United Parcel Serv., Inc., No.

04-321T, 2005 WL 3739295, at *6 (D.R.I. Oct. 287

2005) (citing Kriegel v. Rhode Island, 266 F. Supp.

2d 288, 297 (D.R.I. 2003)); Russell v. Enter. RentA-Car Co. of R.I., 160 F. Supp. 2d 239, 265 (D.R.I.

2001).

14While Tavares disputes Piccolo's conclusion that

he was not the victim of sexual harassment, he has

presented no evidence to controvert the

statements of other employees about their

perceptions of Whyte's conduct.

15Tavares does claim to have been "demoted"

briefly; the reason why this is not an adverse

employment action is discussed infra.

16The coworker retaliation, which allegedly

created a hostile work environment but is factually

unrelated to any tangible adverse employment

action, is discussed separately in the next section of

this report and recommendation.

86a

17The factual foundation for this argument is

partially flawed in that the formal Charge did not

actually issue until May 31, 2011. See n.10 supra.

18Tavares's factual predicate for this conclusion is

Hail's response that he "cannot recall" to Tavares's

question about discipline imposed for "tapping"

other vehicles. This testimony does not support

Tavares's interpretation of it. See n.12 supra.

19For example, the record provides no information

about the religion of the many individuals

interviewed by Piccolo to follow up on Tavares's

complaints; therefore, it is impossible to compare

her findings regarding the statements from

Muslims and those regarding statements from nonMuslims. As to race, Tavares complains most

bitterly about Piccolo's failure to credit his claim

that Whyte sexually harassed him; however, the

evidence establishes that Whyte is also nonCaucasian. In any event, and most importantly,

review of the record reveals that Piccolo did

believe that Tavares was upset about the conduct

of which he perceived himself to be the victim.

Contrary to Tavares's claim, the undisputed facts

establish that, over the course of Tavares's

employment, Piccolo accepted many of Tavares's

assertions that did not sound delusional and, where

appropriate, took action, including the discipline of

Whyte and the requirement that harassment and

discrimination prevention training be conducted.

20Gilding the lily is the undisputed evidence that

Enterprise's decision to terminate did not arise in a

vacuum of an unblemished record; the prior

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discipline notice warned Tavares that any

recurrence -of unsafe behavior in handling vehicles

would result in termination. See Colon v. United

States, No. CIV. 05-1478(GAG), 2006 WL 23459551

at *4 (D.P.R. Aug. 10, 2006) (summary judgment

appropriate when no evidence that prior warnings

were pretextual). Also pertinent is that it was

Piccolo to whom Tavares addressed his complaint

about Whyte; she initiated an extensive

investigation, credited the allegation that Whyte's

workplace behavior was unacceptable and

disciplined Whyte. It belies common sense to

conclude that the same individual who credited

Tavares's factual complaint and disciplined Whyte

would terminate Tavares for his role in bringing

Whyte's misconduct to her attention. See Barboza

v. Town of Tiverton, C.A. No. 07-339-ML, 2010 WL

2231995, at *9 (D.R.I. June 2, 2010) (illogical that

sexual harassment complaint was real cause of

decision to terminate when termination decisionmaker was also initiator of sexual harassment

investigation).

21Tavares's conclusory accusation that Piccolo

consistently credited the non-Muslim Caucasian's

statements over his version of events lacks. any

factual support. See n.19, supra.

221t must be noted that, if not barred because of

the failure to exhaust, this claim also would founder

on the complete absence of any facts to support it.

23Enterprise adamantly denies that it has the

original of Statement V or that it produced

Statement V in discovery; in addition, it proffers a

88a

copy of Tavares's entire production to establish

that he did not produce it either. See ECF No. 1183 at 7 (counsel objects to Statement V at Piccolo

deposition because it had never been produced in

discovery and counsel has never seen it before).

Beyond his sworn statement, Tavares has not

presented anything to establish that Statement V

was produced by Enterprise or was produced by

him before the Piccolo deposition.

24The first sanctions motion concluded with the

finding that Tavares's lies did not amount to

perjury pursuant to 18 U.S.C. § 1621. This time, the

subject matter of the testimony that would be

required at an evidentiary hearing appears to be

"material" to these proceeding, raising the risk of

the crime of perjury. United States v. Diaz, 670

F.3d 3321 351 (1st Cir. 2012).

25Despite the caption of his Complaint, which

invokes 28 U.S.C. § 1915(e)(2) (permitting civil

litigant to proceed informa pauperis), Tavares's in

forma pauperis ("IFP") application was denied

without prejudice to refiling supported by more

detailed financial information. ECF No. 3. It was

never refiled so his eligibility for IFP status, and

therefore for pro bono counsel, has never been

determined. See Tavares v. Enter. Rent-A-Car Co.,

C.A. No. 13-521S, 2015 U.S. Dist. LEXIS 122401, at

*78 n.4 (D.R.I. Jan. 16, 2015)

89a

STATE OF RHOSE ISLAND AND

PROVIDENCE PLANTATIONS

PROVIDENCE, SC.

WORKERS' COMPENSATION COURT

ROGER TAVARES

)

)

VS

) W.C.C. NO. 11-06691

)

ENTERPRISE RENT A CAR

)

DECREE

This cause came on for trial and upon trial

thereon and in consideration thereof, the following

findings of fact are made:

That the employee has proven by a fair

preponderance of the credible evidence that he

suffered an injury, specifically a neck strain, head

contusion, and a right shoulder strain, on

November 3, 2011, arising out of and in the course

of his employment with this employer, connected

therewith and referable thereto, of which the

employer had notice.

That the employee has failed to prove

by a fair preponderance of the credible evidence

that he suffered an injury to his mid back on

November 3, 2011.

That the employee became partially

disabled as a result of this incident from November

11, 2011, through March 4, 2012, after which time

90a

his disability ended.

That there is a TDI lien.

That the employee received medical

treatment to cure, receive and rehabilitate himself

from the effects of this injury.

That the employee has an average

weekly wage of $203.07.

It is, therefore, ordered:

That the employer shall pay the

employee benefits for partial disability from

November 11, 2011 through March 4, 2012.

That file respondent-employer and/of

its insurance carrier shall reimburse the Director

for the Rhode Island Temporary Disability

Insurance Fund in accordance with the provisions

of Sec. 28-41-6(3), and shall be entitled to credit to

the extent of such reimbursement against its

liability to the petitioner under this decree.

That the employer shall pay for the

employee's medical treatment which was

reasonable and, necessary to cure, relieve and

rehabilitate the employee from the effects of this

injury. Said payments shall be made per the fee

schedule.

That the employee's claim for a midback injury is denied and dismissed with prejudice.

That the employer shall pay a counsel

fee to Attorney Domenic Carcieri in the amount of

$3,500, and shall reimburse his reasonable costs

associated with the filing of this petition and the

affidavits obtained in this matter.

Entered as the decree of this Court this 26th

-

91a

day of March, 2013.

ENTER:

PER ORDER:

Connor, J.

I hereby certify that copies were mailed to

Domenic Carcieri, Esq. and Loraine Motola-Davis,

Esq. on March 19, 2013.

92a

STATE OF RHODE ISLAND AND

PROVIDENCE PLANTATIONS

PROVIDENCE, SC.

WORKERS' COMPENSATION COURT

ROGER TAVARES

)

)

VS

) W.C.C. NO. 11-06691

)

ENTERPRISE RENT A CAR

)

DECISION

CONNOR, J. This matter is before the Court

on an employee's original petition seeking workers'

compensation benefits for a November 3, 2011

injury to the employee's neck, right shoulder and

mid back. The employee is seeking a closed period

of partial or total disability benefits from January

41 2011 through March 4, 2012. A pretrial, order

was entered in this matter denying the employee's

request for benefits, and from this pretrial order

the employee claimed a timely trial.

There is a TDI lien.

The employee testified that on November 3,

2011, he worked for the employer as a part-time

driver. He stated that his job required him to

transport cars from different locations in and out of

the state and into New York, Pennsylvania,

Maryland and New Jersey. He stated that he had

been working for this employer since April 2008 in

93a

this capacity. He stated that he earned $8.50 per

hour. He stated that there were times where he

would have the assistance of another driver in

performing his job, and he would be a passenger in

the vehicle.

The employee stated that on November 3,

2011, he was sent out with a "chase driver". He

stated that this driver was bringing him to a

location to pick up a car. He stated that they had

dropped someone off in East Providence, and then

they were going to Pawtucket to pick up a vehicle.

He stated that the vehicle in which he was a

passenger drove onto 195 West to go to East

Providence. He stated that Larry Lawrence, who

was the driver of the vehicle, was new to the area.

He stated that as they were merging onto 95

North, the driver was talking to the employee and

collided with another vehicle. He stated that as a

result of this incident, the right side of his vehicle

struck the other vehicle. He stated that the driver

of his vehicle jerked the wheel in order to avoid a

more significant impact.

The employee stated that upon impact the

right side of his head hit the side of the door, and

his right shoulder hurt from the seatbelt.

The employee stated that after the impact

the cars pulled over and exchanged information. He

stated that he was the one who obtained

information from the other driver. He stated that

the police were not called to the scene; they simply

exchanged the pertinent information regarding the

car's registration and insurance. He stated that the

94a

driver of his vehicle called the employer's Loss

Prevention Unit. He stated that after this

exchange of information and the call to Loss

Prevention, both vehicles left the scene of the

accident, and the employee and driver went back to

the employer's facility and gave the information

regarding the accident to Evan Hail, who is the

manager of their facility.

The employee stated that after the collision

he took pictures of the vehicle that he was in, which

had a Vermont license plate. The employee, during

the course of his testimony, identified two photos

that were marked into evidence as photos that he

took regarding the vehicle that he was a passenger

in on the date of this accident.

The employee stated that the day following

the accident he not only had pain in his right

shoulder, but he also had pain in his neck, and he

also had a migraine headache. He stated that he

reported his condition to Evan. He stated that on

November 11, 2011, he sought treatment at Roger

Williams Hospital for right shoulder pain and a stiff

neck. He stated that he received follow-up

treatment with Dr. Tannuccilli in the form of

chiropractic therapy, and he treated with Dr.

lannuccilli through March 4, 2012, after which time

Dr. Tannuccilli released him to return to work.

The employee stated that he has since

returned to work with a new employer. He then

explained to the Court that he was terminated by

this employer on November 9 or November 10,

2011, because he pressed his manager, Evan, for

95a

information for a workers' compensation claim. He

claims that it was this conduct that caused him to

be fired.

The employee went on to explain another

incident that occurred on November 9, 2011, with

another driver in a vehicle in which he was the

passenger. The employee stated that the driver

was speeding, and the employee told him to

slowdown, and the driver failed to adhere to the

employee's command. The employee stated that he

then called the dispatcher, and at the same time

told the driver of the vehicle to pull over. He stated

that he then took the keys from the driver of the

vehicle, and the two of them got into an altercation.

He stated that as a result of this altercation, he

called the State Police. The employee stated that

after his employer was made aware of this incident,

the employer told him that his actions were

hazardous, and he was suspended and then

terminated from employment.

The employee explained that he did not get

medical treatment as a result of the November 3,

2011 incident until such time as he was fired

because he wanted to keep his job. He stated that

after he was terminated, he didn't care about

keeping his job, so he sought medical treatment.

The employee stated that since he has been

released from his treating doctor, he now works for

Federal Express.

On cross-examination, the employee stated

that this is his first workers' compensation claim

against any employer he has ever worked for. He

96a

stated that he never told the hospital that the

airbag deployed in the vehicle in which he was

injured. He reaffirmed that he did not want to

jeopardize his job, and that is why he did not

receive immediate medical treatment for the

effects of his November 3, 2011 injury.

The employee acknowledged filing a Human

Rights petition against this employer for sexual

harassment and discrimination by a former

supervisor in February 2011. He also

acknowledged taking a leave of absence in May

2011 to get counseling. He stated that he was out of

work for 91 days and then returned to work, and

then this event occurred on November 3, 2011. The

employee stated that the date of the incident with

the second driver was on November 9, 2011. The

employee acknowledged that the driver chased him

on foot when the employee took the keys from the

driver. He stated that the driver of the vehicle was

Lenny Russo. The employee acknowledged that

Lenny was also terminated as a result of this

incident.

The employee stated that in April 2011, he

was written up because he drove over wet lines

that were on the ground at the airport. The

employee stated that he has filed a Human Rights

petition against this employer as a result of his

November 9, 2011 termination. He stated that he

also has a third party case against the driver of the

other vehicle involved in the November 3, 2011

accident.

The Court reviewed the documents that

97a

were marked into evidence during the employee's

testimony, and they are the photographs that he

took of the vehicle that was involved in the accident

on November 3, 2011. The Court notes damage to

the front left side of the vehicle, and notes that

above the front tire there is certainly evidence of

damage to the car.

The parties stipulate to an average weekly

wage of $203.07.

The employer presented Evan Hall to

testify. Mr. Hall stated that he has worked for the

employer since October 2007, as a vehicle

acquisition supervisor. He stated that his job is to

order and register rental vehicles. He stated that

he is also in charge of the drivers who assist him in

picking up and delivering these vehicles. He stated

that he knows the employee as a former driver.

Mr. Hall stated that on November 3, 2011, a

dispatcher came into his office telling him about a

motor vehicle accident. He stated that he was made

aware that the employee was a passenger in this

vehicle, and Larry was the driver of the vehicle. He

stated that Larry reported the accident but stated

that he was not hurt. He stated that the employee

never reported an injury. He stated that the

employee continued to work his regular job for

approximately one week.

Mr. Hall stated that another incident

occurred in Providence on 195, between the

employee and another driver. He stated that an

altercation occurred and both were terminated. He

stated that in the past the employee has brought

98a

other lawsuits against this employer for

discrimination, but these lawsuits did not involve

this incident.

Mr. Hall stated that there is a policy for

reporting injuries, and employees need to let either

their immediate supervisor or him know about

motor vehicle accidents or any injuries. Mr. Hall

stated that he investigated this claim, and no air

bag deployed in this motor vehicle. He stated that

there was front driver's side damage to the vehicle

that was involved in this incident. On crossexamination Mr. Hall stated that he learned of the

employee's injury through their workers

compensation carrier. He stated that had the

employee reported the injury to him, he would

have asked him if he wanted to see a doctor, and, if

so, he would notify the risk manager, Adam Senno,

who is an employee within the company, and Mr.

Senno would handle the matter further. He stated

that their insurance carrier for workers'

compensation

manages

their

workers'

compensation claims from that point forward.

The employer presented Kristen Piccoli to

testify. Ms. Piccoli stated that she has worked for

the employer as the Human Resources manager for

11 years, and has been with the company 17 years

in total. Ms. Piccoli explained the employer's

workers' compensation notification procedure. She

stated that employees are required to report

injuries to their immediate supervisor, and if the

supervisor is not there, they must contact either

another manager or Human Resources. She stated

99a

that she never received a report of the November

37 2011 injury from the employee, and only learned

of this incident on November 11, 2011, when the

employee was terminated. Ms. Piccoli

acknowledged that as a result of the incident that

occurred on November 9, 2011, both employees

were fired.

Following the testimony of these two

witnesses, the employee was called back onto the

stand for rebuttal testimony. He was shown a

document that is entitled "termination", and is

from the pages of the employer's personnel

handbook. The employee stated that he had never

seen this document before. The page entitled

termination was marked as Employee's 10, and the

page entitled "Acknowledgement of Terms and

Conditions" was marked as Employee's 9. The

employee stated that he could not recall signing the

document that bears his name and his alleged

signature. He stated that in this document his

name is not spelled correctly, and this is not his

signature. He stated that the date on this

document, June 3, 2011, was after he filed his

harassment suit against the company. The

employee stated that the policy for reporting

workers' compensation injuries was never brought

up to him during the course of his employment with

this employer. The employee claimed that he did in

fact report this incident to his supervisor, Evan.

The employee stated that when he was

terminated he was sent home on November 9, 20119

and his first medical treatment was with Roger

100a

Williams Hospital on November 11, 2011. He stated

that he never told the hospital that the air bag

deployed in the vehicle, and he never told them

that his car was towed. He stated that he did treat

with Dr. lannuccilli in the past for motor vehicle

accidents in 2003 and 2002.

The employee stated that he did return to

work as a package handler at Federal Express

beginning in March or April 2012, and on July 3,

2012 he was injured and is now receiving workers'

compensation benefits for a neck, thoracic and low

back strain. He stated that he is once again

treating with Dr. lannuccilli.

On further cross-examination the employee

stated that he never mentioned to Dr. lannuccilli

being treated in 2003 and 2004 as a result of

injuries suffered in a motor vehicle accident

because it was so long ago and because the injuries

did not affect his shoulder.

The employee's statement of a workplace

injury was introduced as an exhibit for the

employee. This document was completed by the

employee on January 4, 2012. It should be noted

that the signature on this document differs from

the signature on Employee's Exhibit 9, wherein the

employee's name is signed as acknowledging

receipt of the employer's employee manual. The

employee's statement of the workplace injury

indicates that the employee described tire injury as

follows, "I was a passenger when a coworker,

Larry, intentionally collided, striking the vehicle on

the left front side of the vehicle merging from 195

101a

West to 95 North, and then fled the scene with no

police called." It indicates that the employee

reported this incident to Evan Hall after the

accident. He described the injury as having

occurred on November 3, 2011. He describes the

employee's injury as a neck and shoulder strain. He

indicates that the name of the driver is Larry Coen.

A medical history questionnaire is attached to the

employee's statement indicating that he was

complaining of neck and shoulder injuries, as well

as migraine headaches. He listed his treating

physician as Dr. Arianna lannuccilli, and his family

doctor as Dr. Mitchell Pressman. He completed this

form on January 4, 2012.

The employer introduced the affidavit with

attached medical reports form Roger Williams

Hospital. The report attached to the affidavit is

from the Emergency Room at Roger Williams

Hospital and is dated November 11, 2011. The

history in this report indicates that the employee

was a passenger in the front seat of a motor

vehicle. It indicates that the employee was seat

belted, and the airbag deployed. The reports show

that the employee was complaining of a sprain in

his neck and head with no loss of consciousness. He

gave a past medical history that was not significant

for neck or head pain. He complained of a sharp

pain in his head and neck provoked by movement.

He described the impact as hitting his head against

the ceiling or door of the vehicle. He described the

impact between the two vehicles as affecting the

driver's front and side of the vehicle in which he

102a

was a passenger. He was diagnosed with a head

contusion and a cervical sprain/strain. He was

discharged from the hospital with an order to stay

out of work until November 15, after which he

could return to his regular work.

The employee presented the affidavit with

attached reports from Dr. Arianna Tannuccilli who

saw the employee for the first time on November

16, 2011. The doctor wrote that the employee

presented to her office due to a November 3, 2011

motor vehicle accident. He described the accident

to the doctor as occurring when the driver of his

vehicle tried to merge into a different lane and

struck another vehicle, causing a left frontal

collision, and causing him to strike the right side of

his head and right shoulder on the door window.

The employee stated that he did not lose

consciousness but noted some dizziness. He claims

he reported the injury to his supervisor but

finished working and did not seek medical attention

until a few days later when he presented to Roger

Williams Hospital. His chief complaints at the time

of this visit were pain in his neck, upper back and

right shoulder region, as well as headaches. The

employee was treated and diagnosed with a

cervical sprain/strain, a thoracic sprain/strain, a

right shoulder sprain/strain, and cephalgia. He was

ordered to undergo chiropractic treatment, and

was considered to be totally disabled. The records

indicate that the employee underwent chiropractic

treatment at least-two times weekly, and

sometimes more. Throughout the course of his

103a

treatment improvement was noted. As of March 7,

2012, the employee stated that he was feeling

better overall. The doctor found that the employee

was at maximum medical improvement. He was

discharged to a home care plan pm. It was noted

that his upper back and neck pain had essentially

resolved, as had his right, shoulder pain, and he

denied any recent headaches.

The employer presented records from the

Department of Labor and Training, Unemployment

Insurance Division. These records were presented

pursuant to a subpoena that was issued upon the

Department, and the records pertain to the

employee with regard to his receipt of

unemployment benefits. Some of these records date

back to 2002, 2003 and 2004, when the employee

received benefits that were not applicable to this

claim. With regard to this claim, the employee did

make an application for unemployment benefits, as

well as TDI benefits. With regard to the application

for benefits relating to the employee concerning his

last day of work on November 8, 2011, he explained

that he was injured due to a coworker driving the

company vehicle and striking another vehicle on

Route 95 North on November 3, 2011. He explained

that he reported the injury to his supervisor, Evan.

He also stated that on the same day that he

reported the injury, he had an incident with

another driver that led to his termination from

work. At the same time he was applying for

unemployment benefits he mentioned that he had

seen a lawyer for workers' compensation benefits

104a

with regard to the November 3, 2011 accident. The

employee was allowed to receive unemployment

benefits provided he met other eligibility

requirements. It would appear that the employee

also applied for temporary disability benefits with

regard to the incident that occurred on November

3, 2011, and these records are also contained in this

exhibit. There is also a TDI lien that has been

marked into evidence with regard to this matter. It

would appear that once the employee was released

to return to work on March 5, 2012, at that point he

was eligible for unemployment benefits upon being

cleared to return to work. According to the note of

Dr. lannuccilli attached to this exhibit and dated

February 29, 2012, the employee could return to

normal full time full duty work with no restrictions

as of March 5, 2012. She had treated the employee

for a cervical sprain/strain, as well as a shoulder

sprain/strain.

The employer presented the affidavit of

Kerri Germano, who is a senior claims adjuster at

Avizent Risk Management. In her affidavit she

states that she was assigned the claim of the

employee and that neither she nor anyone else

employed by Avizent received notice of the

employee's November 3, 2011 injury within 30 days

of the incident. She stated that Avizent requires

employees to complete an employee's statement of

workplace injury immediately after an alleged

injury, and the statement of injury that she

received was signed and dated by the employee on

January 4, 2012, and was received over a month

105a

after she received the notice of the pretrial

conference. She claims in her affidavit that she did

not receive further notice or communication from

either the employee or his representatives or their

insured within 30 days of the alleged incident.

Attached to her affidavit is the January 4, 2012

exhibit that was previously marked into evidence

in this matter concerning the employee's statement

of the workplace injury. His signature is contained

on same and dated January 4, 2012.

This concludes a review of the evidence

presented in this matter.

A petitioner in a workers' compensation

proceeding has the burden of producing credible

evidence of a probative force to support his petition

for benefits. DeLage v. Imperial Knife Company,

Inc. 121 R.I. 146, 396 A.2d 938 (1979). An employee

must also prove that there is a causal connection

between the injury that he sustained and his

employment Natale v. Frito-Lay, Inc. 119 R.I. 713,

382 A.2d 1313 (1978). After carefully considering

the evidence presented in this matter, it is the

opinion of the Court that the employee has

sustained his burden of proof with regard to his

claim for a November 3, 2011 injury to his neck and

right shoulder. The employee, therefore, is

awarded workers' compensation benefits at the

rate for partial incapacity from November 4, 2011

through March 4, 2012, after which time his

incapacity for work ended.

The employee testified that he sustained an

injury as the result of a motor vehicle accident

106a

wherein he was a passenger and was in the course

of in his employment on November 3, 2011. He

stated that the vehicle he was riding in collided

with another vehicle. Although the impact from the

collision was not significant, the employee testified

that he did injure his right shoulder and his neck as

a result of the impact. The employee worked as a

part time driver for the employer, and had been

performing this type of work since April 2008. The

employee testified credibly that he informed his

supervisor, Evan Hall, of the accident, and the

employee even took photos of the vehicle following

the accident. There is damage to this vehicle that

can be seen in the photos.

The employee continued to work following

the motor vehicle accident until such time as there

was an incident at work that resulted in his

termination as well as the termination of a coemployee. It was only after his termination from

employment on November 9, 2011 that he

presented for medical treatment at Roger Williams

Hospital and then with Dr. lannuccilli. The

employee stated that the reason that he delayed

getting medical treatment was that he wanted to

continue to work and did not want to lose time out

of work by going for medical treatment. The

employee stated that once he was terminated from

work, it gave him an opportunity to seek medical

treatment in order to cure, relieve and rehabilitate

the pain that he had in his right shoulder and neck

as a result of this incident The employee does have

a third party claim with regard to this incident. The

107a

employee treated at Roger Williams Hospital, and

the history indicates that the employee reported

that the air bag deployed and the car was towed

from the scene. The employee testified that these

statements are both incorrect, and the Court

believes the employee's testimony that he never

represented these facts to the hospital, as these

facts are not represented in the statements that he

made in his report of injury to the employer and

their insurance carrier.

The employer denied this claim based on the

fact that they were never notified that the

employee suffered an injury as a result of this

incident until January 2012. Their insurance carrier

also denied receiving any information from their

insured, this employer, of the employee's injury as

a result of this incident. The Court does believe the

employee's testimony that he notified his

supervisor regarding this incident. As to what

happened after his supervisor was notified in terms

of the supervisor notifying Human Resources or

the employer's workers' compensation insurance

carrier, this Court is uncertain, but the Court does

accept as a fact and as truthful that the employee

did give notice of this incident to his supervisor on

the date that this incident occurred. It is also

evident from the exhibits presented that the

employee was diligent with regard to faking photos

of the damage to this vehicle after the vehicle was

back on the employer's premises.

During the course of this litigation, the

employee was shown certain documents containing

108a

his name and one containing his signature with

regard to the employer's manual, and the

information in the manual concerning workers'

compensation injuries and the reporting of same.

The employee denied that it was his signature that

appeared on the final page of the employer's

manual. In fact, the employee's name is misspelled

on the document, both in the printed and signature

portion of this exhibit. When the Court compares

the employee's signature on the employee's report

of injury form, it clearly differs from the signature

that appears on the receipt of the employer's

manual.

The employee had medical treatment at

Roger Williams Hospital and then had follow-up

treatment with Dr. Arianna lannuccilli. Dr.

lannuccilli found spasm in the employee's neck and

also some limited range of motion in his neck and

right shoulder. She treated the employee on a

regular basis from November 2011 through March

2012; after which time the employee stated that he

had improved and was feeling better with regard to

both his neck and his right shoulder and had not

been experiencing any headaches, and the doctor

discharged the employee as of March 4, 2012 to

return to his regular work without restrictions.

The doctor found the employee to be disabled from

work from November 16, 2011 through March 4,

2012. The employer did not have the employee

examined, and there is no medical testimony that

refutes the employee's treating physician's

opinions in this regard.

-

109a

Our Supreme Court has held that a trial

judge is uniquely qualified to both assess the

credibility of a witness and to determine what

evidence to accept and what evidence to reject,

because she is in the best position to observe the

appearance of a witness, his demeanor, and the

manner which he answers questions. Davol. Inc. v.

Aguiar 463 A.2d 170 (R.I. 1983). After listening to

the employee's testimony and the testimony of the

witnesses that appeared before the Court, and also

in reviewing the employee's medical records and

those statements that were provided to the

employer by the employee regarding this incident,

the Court finds the employee's testimony to tie

credible and believes that he was injured as a

result of the incident that occurred on November 3,

2011. The Court also accepts the medical records

from Roger Williams Hospital and Dr. lannuccilli

with regard to the employee's treatment for the

effects of this accident, and finds that the employee

suffered a closed period of disability during which

he was unable to perform his usual work.

Certainly, initially, the employee filed for

unemployment benefits, but upon realizing that he

could not collect unemployment benefits, as he was

claiming a disability, he switched his application

over to an application for TDI benefits, and the

employee did receive TDI benefits with regard to

his lost time from work. A TDI lien has been filed

in this matter in that regard. Dr. lannuccilli

diagnosed the employee with a cervical

sprain/strain, as well as a right shoulder

llOa

sprain/strain, and determined that he was partially

d-isabled from November 16, 2011 through March 4,

2012. Dr. lannuccilli did not diagnose the employee

with any injury to his mid back. The employee

submitted medical records from Roger Williams

Hospital Emergency Room indicating that they

disabled the employee beginning on November 11,

2011, which is the date that he presented to them

for treatment The diagnosis at Roger Williams

Hospital was one of a head contusion, as well as a

cervical sprain/strain.

In light of the foregoing, I hereby find as a

feet:

That the employee has proven by a fair

preponderance of the credible evidence that he

suffered an injury, specifically a neck strain, head

contusion, and a right shoulder strain, on

November 3, 2011, arising out of and in the course

of his employment with this employer, connected

therewith and referable thereto, of which the

employer had notice.

That the employee has failed to prove

by a fair preponderance of the credible evidence

that he suffered an injury to his mid back on

November 3, 2011.

That the employee became partially

disabled as a result of this incident from November

112 2011, through March 4, 2012, after which time

his disability ended.

That there is a TDI lien.

That the employee received medical

treatment to cure, receive and rehabilitate himself

lila

from the effects of this injury.

6;

That the employee has an average

weekly wage of $203.07.

It is, therefore, ordered:

That the employer shall pay the

employee benefits for partial disability from

November 11, 2011 through March 4, 2012.

That the respondent-employer and/or

its insurance carrier shall reimburse the Director

for the Rhode Island Temporary Disability

Insurance Fund in accordance with the provisions

of Sec. 28-41-6(3), and shall be entitled to credit to

the extent of such reimbursement against its

liability to the petitioner under this decree.

That the employer shall pay for the

employee's medical treatment which was

reasonable and necessary to cure, relieve and

rehabilitate the employee from the effects of this

injury. Said payments shall be made per the fee

schedule.

That the employee's claim for a midback injury is denied and dismissed with prejudice.

That the employer shall pay a counsel

fee to Attorney Domenic Carcieri in the amount of

$3,500, and shall reimburse his reasonable costs

associated with the filing of this petition and the

affidavits obtained in this matter.

In accordance with Sec. 2.20 of the Rules of

Practice of the Workers' Compensation Court, a

decree, copy of which is enclosed, shall be entered

on March 26, 2013 at 10:00 a.m.

112a

Filed: 01/23/2018

United States Court of Appeals For the First Circuit

No. 17-1023

ROGERIO S. TAVARES, Plaintiff, Appellant,

V.

ENTERPRISE RENT-A-CAR-COMPANY OF

RHODE ISLAND, Defendant, Appellee.

Before; Howard, Chief Judge, Torruella and Kayatta,

Circuit Judges.

ORDER OF COURT

Entered: January 23, 2018

The petition for panel rehearing is denied. By the

Court: /s/ Margaret Carter, Clerk

cc:

Rogerio S. Tavares William E. O'

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