Judge Grants Trial for Former Glass Company Employee

U.S. District Judge Leo Glasser of the Eastern District of New York has granted in part and denied in part a glass company’s motion for summary judgment in a case brought forth by a former employee alleging that the company created a hostile work environment, wrongfully terminated him and retaliated over his sexual orientation.

Christopher Rosalie alleges that, while working as a purchaser at Supreme Glass Co. in Queens, New York, from November 2014 to June 2017, he was harassed and, eventually, wrongfully terminated due to identifying as gay and gender non-conforming.

Judge Glasser granted Supreme’s motion for summary judgment as to Rosalie’s retaliation claims but denied them as to his hostile work environment and wrongful termination claims. A jury will hear the case in regard to the latter two claims.

Background

According to the recent order, Rosalie has described an environment in which Jacqueline Miranda-Lorenzo, the office manager at the time, told him on April 14, 2016 that she believed “being gay is a mental disorder.” Later she allegedly ridiculed his handwriting in front of others and chastised him for “trivial errors.”

Rosalie also alleges that comments were made by company president Mark Eschelbacher in reference to his sexuality. Eschelbacher allegedly asked Rosalie if he thought a customer was gay, if he’d been to his apartment and if he could tell the customer’s sexuality based on his voice. Rosalie also claims that Eschelbacher said, “maybe he didn’t like your package,” in response to UPS failing to pick up a shipment Rosalie prepared. Rosalie says that other employees at Supreme used derogatory slurs and nicknames to refer to him on occasion. One employee supposedly threatened to punch Rosalie. Rosalie reported him to the president but no action was taken.

Eschelbacher issued Miranda a written warning following her April 14 comments after Rosalie complained. However, no other action was taken. She was issued another warning after another employee complained that Miranda referred to someone as “Jew boy.” In that second warning notice, Eschelbacher wrote that if she made a third offense should would be suspended for one week and a fourth violation would result in dismissal.

In April 2017, Rosalie complained once more to Eschelbacher about Miranda’s behavior but did not tell the president that he was being discriminated against because of his sexual orientation. Rather, he said that Miranda was “being nice to everybody in the office except me.”

According to the order, Rosalie was called into a meeting with Eschelbacher and Miranda shortly thereafter and told that he would be terminated unless his performance improved. However, Rosalie alleges that both refused to provide any details about how he could improve and Rosalie had not received a formal evaluation since his 90-day performance review years earlier.

On June 13, 2017, Eschelbacher fired Rosalie, citing a failure to “include notes on various orders.” Rosalie claims that no other employee was ever disciplined for this matter despite it being a common issue. He testified that notes frequently disappeared because anyone could modify orders.

The Order

Judge Glasser wrote that while Supreme claims the alleged harassment did not occur because of Rosalie’s sexual orientation or gender, a reasonable jury could infer that he was subject to a hostile work environment because of his sexual orientation and gender. Thus, he denied Supreme’s motion for summary judgment in relation to this matter.

In regards to the wrongful termination claim, Judge Glasser wrote that because there is evidence suggestive that Supreme created “after-the-fact explanations” of why Rosalie was fired, a jury could infer pretext, where an employer presented a new basis for termination after litigation began.

“Supreme’s uneven enforcement of its employment policies is further evidence of pretext. Supreme’s handbook provided a progressive system of discipline for underperforming employees: a verbal warning for the first offense, a written warning for the second, and termination for the third. According to the handbook, Rosalie should have received a written warning prior to his termination in June 2017. Instead, he was immediately terminated after a verbal warning, in conflict with the procedures set forth in the handbook. Meanwhile, Miranda was afforded greater lenience. Although the handbook called for her suspension and termination after her second and third offenses, she only received warnings. This differential treatment—lenience in one instance and harsh enforcement in another—strengthens an inference of pretext,” reads the order. “It also bears noting that the evidentiary support for Rosalie’s poor performance is thin. Despite Rosalie’s nearly three-year tenure at Supreme, it is somewhat unbelievable that Supreme cannot substantiate its position with further non-testimonial evidence. Instead, Supreme depends almost entirely on Miranda’s and Eschelbacher’s testimony that Rosalie made numerous mistakes. Rosalie’s testimony, of course, contends that his performance was adequate—leaving significant credibility determinations for the jury.”

Finally, Judge Glasser granted Supreme’s motion for summary judgment in regard to Rosalie’s retaliation claim, citing that because Rosalie’s April 2017 complaint to Eschelbacher did not signal that Rosalie was complaining of discrimination, Eschelbacher should not have interpreted as much.

“The onus is on the speaker to clarify to the employer that he is complaining of unfair treatment due to his membership in a protected class and that he is not complaining merely of unfair treatment generally,” reads the order.

Supreme Glass Co. had not responded to USGNN™’s request for comment as of press time.