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CV-2022-06-1871 O'BRIEN, TAMMY 09/05/2023 15:07:39 PM BRIO Page 1 of 44
IN THE COURT OF COMMON PLEAS
SUMMIT COUNTY, OHIO
WILFREDO RIOS )
) Case No. CV-2022-06-1871
Plaintiff, )
) Judge Tammy O’Brien
)
)
-vs- )
)
WEATHERCHEM CORPORATION )
)
Defendant. )
)
___________________________________ )
Plaintiff Wilfredo Rios’s Opposition to Defendant’s Motion for Summary Judgment
“You mother f***ing Puerto Rican!”
“You Puerto Ricans are never happy with anything!”
“Trump should have stayed because Trump was doing a good job keeping people from
coming into the United States and that way we wouldn’t be f***ed!”
Mr. Rios – who is Puerto Rican and an 18-year employee – had to endure derogatory
comments like these while working at Mold-Rite. Mr. Rios would complain, but nothing was ever
done. In fact, on his last day of work, Brian Lapikas, Mr. Rios’s supervisor, hurled these exact
words quoted above at Mr. Rios in a closed door meeting, and Mr. Rios complained the next day
to Human Resources. Three hours later, Mr. Rios was terminated.
But none of these comments are directly addressed, or even mentioned, in Mold-Rite’s
summary judgment motion. Instead of addressing the actual bases for Mr. Rios’s claims in this
action, Mold-Rite focuses its entire argument in its motion on Mr. Rios’s complaints about pay,
for himself and others, and claims that it accepted Mr. Rios’s alleged resignation to “allow” him
to make more money elsewhere. Yes, Mr. Rios complained about pay, but that’s not why Mr. Rios
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has sued Mold-Rite. Mr. Rios has sued Mold-Rite for its discriminatory and retaliatory conduct
against him based on his Puerto Rican heritage and for his wrongful termination after he
complained about the discriminatory conduct of his supervisor that culminated with his
termination on March 19, 2021.
To be clear, Mr. Rios did not quit or resign as claimed by Mold-Rite. Mr. Rios has
consistently denied that he would ever do such a thing. He loved his job and cared about his co-
workers. Rather, the purported “resignation” is Mold-Rite’s attempt to cover up its discrimination
and retaliation against Mr. Rios for objecting to his supervisor’s discriminatory conduct. In truth,
Mr. Lapikas knew that Mr. Rios would complain about his discriminatory rant and came up with
his own story he sold to Mold-Rite – that Mr. Rios wanted a pay raise, and if he didn’t get it, he
would leave Mold-Rite. Even though Mr. Rios complained about Mr. Lapikas’s unlawful conduct,
Mold-Rite ignored it and accepted his alleged “resignation,” which Mr. Rios adamantly refuted.
When Mr. Rios returned to Mold-Rite after his termination to get his tools, he asked to talk with
Human Resources, but Mr. Lapikas stopped him: “It doesn’t matter no more. We had enough of
you. We fired you.”
Regardless of whether Mold-Rite wants to acknowledge it, Mr. Rios has sufficient
evidence to support each of his claims for discrimination and retaliation. This Court should reject
Mold-Rite’s continued attempt to silence Mr. Rios and allow a jury to hear the evidence in the
matter.
Therefore, given Mr. Rios’s evidence and the clear factual issues, this Court should deny
Defendant’s motion for summary judgment. A memorandum in support is attached.
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Respectfully submitted,
___/s/ Kami D. Brauer_________________
KAMI D. BRAUER (#0071030)
Employment Law Partners, LLC
4700 Rockside Road, Suite 530
Independence, Ohio 44131
Tel: (216) 474-4715
Fax: (216) 381-0250
Email: kami@employmentlawpartners.com
____/s/ Lydia Floyd _____________
LYDIA FLOYD (#0088476)
The Lydia Floyd Law Firm, LLC
19525 Hilliard Blvd. #174
Rocky River, Ohio 44116
Tel: (216) 659-0871
Fax: (216) 359-8096
Email: lydia@lydiafloydlaw.com
Counsel for Plaintiff Rios
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Table of Contents
Section Page
I. Statement of Facts 1
A. Mr. Rios, a Puerto-Rican American, began his 18-year career at Mold- 1
Rite on March 17, 2003. Throughout his career at Mold-Rite, he received
promotions, awards, and positive performance reviews.
B. On March 18, 2021, Mr. Lapikas met with Mr. Rios to discuss his 3
upcoming raise. When Mr. Rios advocated for higher wages for himself and
other workers in his department, Mr. Lapikas became angry, called him a
“mother f***ing Puerto Rican,” and yelled, “You Puerto Ricans are never
happy with anything!”
C. Mr. Rios, upset by his supervisor’s discriminatory rant, began to feel ill 5
and left work about an hour early using his “OK” hours, as permitted under
Mold-Rite policy.
D. Knowing that Mr. Rios would report his discriminatory comments to HR, 6
Mr. Lapikas intercepted and told Carol Rinder and the new HR Manager that
Mr. Rios was upset over his wage increase and that he had given his two-
week notice. He also convinced Ms. Rinder to discipline him.
E. As of 6:08 p.m. on March 18th, the plan was to see if Mr. Rios showed up 7
for work on Monday, write him up for leaving work without informing
anyone, and not allow him to use his “OK” hours to cover his shift.
F. The next morning on March 19th at 10:03 a.m., Mr. Rios called and 8
complained to Mold-Rite’s HR Manager, Ms. Marshall, about Mr. Lapikas’s
discriminatory behavior. Ms. Marshall told Mr. Rios that she would talk with
Mr. Lapikas and Ms. Rinder, and she scheduled a meeting with Mr. Rios for
Monday, his next workday.
G. Three hours later, after Ms. Marshall met with Mr. Lapikas and Ms. 9
Rinder and told them about her conversation with Mr. Rios, in which he
reported Mr. Lapikas’s discriminatory comments, Mold-Rite terminated him.
H. Mold-Rite immediately posted Mr. Rios’s position in the employee 11
lunchroom.
i
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Table of Contents
Section Page
I. When Mr. Rios returned to Mold-Rite to gather his personal belongings, 13
Mr. Lapikas refused to allow Mr. Rios to meet with Human Resources and
told Mr. Rios: “It doesn't matter no more. We had enough of you. We fired
you.”
J. Mold-Rite replaced Mr. Rios with a non-Hispanic employee. 14
K. Mold-Rite continued giving raises after Mr. Rios’s termination. 14
L. Mold-Rite had previously ignored Mr. Rios’s other complaints concerning 14
derogatory comments and harassment.
II. Law and Argument 17
A. Summary judgment denies a litigant his day in court. Thus, it must be 17
used with extreme caution. When ruling on a motion for summary judgment,
the evidence, and all inferences drawn from that evidence, must be construed
in favor of the non-moving party with all doubts resolved in the non-moving
party’s favor.
B. Mr. Rios can prove his claims through direct or indirect, circumstantial 18
evidence.
C. Mold-Rite discriminated against Mr. Rios based on his Puerto Rican 19
heritage.
1. Mr. Rios can directly prove that Mold-Rite discriminated against him 19
because of his Puerto Rican heritage.
a. Mr. Lapikas’s derogatory comments about Mr. Rios’s Puerto Rican 20
heritage and made the day before Mr. Rios’s termination are not mere “stray
comments” because Mr. Lapikas was Mr. Rios’s supervisor and participated
in the decision to terminate Mr. Rios.
b. Mold-Rite lacks a legitimate justification for its termination of Mr. Rios. 20
c. It is a question for the jury whether Ms. Rinder knew about Mr. Lapikas’s 23
discriminatory comments. Even if she did not know, Mr. Lapikas clearly had
influence over Ms. Rinder’s decision to “change her mind.”
ii
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Table of Contents
Section Page
2. Mr. Rios can “indirectly” prove through additional evidence that Mold 24
Rite discriminated against him because of his Puerto Rican heritage.
a. Mold-Rite does not dispute that Mr. Rios can make out the first 3 prongs 25
of his prima facie case. As to whether Mr. Rios suffered an adverse
employment action, an issue of fact exists.
b. Mold-Rite lacks an overriding, legitimate business justification for its 25
actions, and its story that it accepted Mr. Rios’s alleged resignation because
it did not want to “stand in the way of his happiness and desire to make more
money working elsewhere” is nothing more than sheer pretext.
D. On March 19, 2021, Mold-Rite retaliated against Mr. Rios when it 27
terminated him three hours after he reported and complained about Mr.
Lapikas’s discriminatory remarks the previous day.
1. Mr. Rios engaged in protective activity when he complained to Human 28
Resources that his supervisor made racially derogatory comments.
2. Mold-Rite knew of Mr. Rios’s protected activity. 29
3. Mold-Rite took an adverse employment action against Mr. Rios by 29
terminating him, and a causal link exists between Mr. Rios’s complaint and
Mold-Rite’s adverse action.
a. Mr. Rios can establish a causal connection through temporal proximity 30
alone because his termination occurred within hours after he complained
about Mr. Lapikas’s discriminatory conduct.
b. In any case, Mr. Rios has also put forth additional evidence establishing 31
causation.
4. Mold-Rite’s excuse for terminating him, hours after his complaints, 32
because he complained about money is pretextual.
E. Mr. Rios suffered a hostile work environment. 32
III. Conclusion 34
iii
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MEMORANDUM
I. STATEMENT OF FACTS
A. Mr. Rios, a Puerto-Rican American, began his 18-year career at Mold-Rite on March
17, 2003. Throughout his career at Mold-Rite, he received promotions, awards, and
positive performance reviews.
Mr. Rios was born in Puerto Rico and moved to Cleveland, where he resides today, when
he was 18 years old. Rios Dep. 20:4-7, 21:13-18.
On March 17, 2003, Mr. Rios began his employment with Mold-Rite as a Machine
Operator. Ex. 32, Mold-Rite Offer Letter (MR(PF)012-13). 1 Mr. Rios has always loved to work
with machines. He began working with machines from a very young age while working alongside
his father and family in Puerto Rico in their mechanical shop and grocery store. Rios Dep. 24:1-
14.
His initial reviews at Mold-Rite were outstanding: “Freddie {sic} quality of work is very
good. It is rare for someone that has been here less than a year to have quality at such a high
standard. Not only in catching quality issues, but paperwork errors.” Ex. 33, 2003 Performance
Review (MR(PF)100-101). 2. Mold-Rite promoted Mr. Rios to the position of “B Mechanic,” then
to Maintenance Mechanic, and finally to Crew Mechanic and Preventative Maintenance Mechanic
– the position he held until his termination. Ex. 34, 2006 Promotion (MR(PF)138); Ex. 35, 2006
March Promotion (MR(PF)139); Rios Dep. 33:10-36:12.
As a Maintenance Mechanic in the Preventative Maintenance Department, Mr. Rios
continued to receive positive performance reviews. Lapikas Dep. Ex. 17, 2012 Performance
Review; Ex. 18, 2013 Performance Review; Ex. 19, 2014 Performance Review; Ex. 20, 2015
1
Authenticated in the affidavit of Kami D. Brauer.
2
Authenticated in the affidavit of Kami D. Brauer.
1
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Performance Review; Exhibit 25, 2016/2017 Performance Review; Exhibit 26, 2017/2018
Performance Review; Exhibit 27, 2018/2019 Performance Review (exhibits authenticated at
Lapikas Dep. 30-39). In his 2016/2017 review, Mr. Rios received “Exceeds Expectations” for his
Teamwork and Communication. His supervisor, Brian Lapikas (Caucasian/Non-Hispanic) 3,
wrote: “Freddie is a team player and will go out of his way to assist other coworkers in need
without being asked.” Ex. 25, 2016/2017 Performance Review at (MR(PF)039) (authenticated at
Lapikas Dep. 36-36). Mr. Lapikas also wrote: “Freddie consistently exhibits a positive and
professional demeanor. Freddie pays attention to detail and ensures equipment is setup properly
the first time.” Id. at (MR(PF) 039). Mr. Rios received recognition from supervisor, Todd Hanks
(Caucasian/Non-Hispanic), for staying “3+ hours past his normal quitting time to make sure the
job got done.” Ex. 36, 2017 Instant Recognition (MR(PF) 126. 4 Mr. Hanks wrote: “Without his
determination the press would have sat until morning and incurred at least an extra 12 hours of
downtime.” Id.
Similarly in his 2017/2018 performance review, Mr. Rios received positive comments,
including that: “Freddie is self-directed and takes 100% ownership on all assigned tasks. Freddie
ensures all repairs are completed fully prior to releasing equipment back to production.” Ex. 26,
2017/2018 Performance Review (MR(PF)033) (authenticated at Lapikas Dep. 37-38).
Once again in 2019 (which was the last formal performance evaluation he received), Mr.
Lapikas wrote: “Freddie has excellent communication skills;” “Freddie takes pride in his work and
always completes task[s] with quality in mind prior to releasing back to production.” Ex. 27,
3
The ethnicity of the various individuals identified can be found in Defendant’s response to Interrogatory No.
12, attached as Ex. 43 and authenticated in the affidavit of Kami D. Brauer.
4
Authenticated in the affidavit of Kami D. Brauer.
2
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2018/2019 Performance Review (MR(PF)028) (authenticated at Lapikas Dep. 38-39). Mr.
Lapikas also wrote: “Freddie is a pleasure to work with and I am proud to watch him grow his
mechanical abilities. Freddie has stepped it up over the last year and has worked with Dan on
many facility and molding machine projects.” Id. at (MR(PF)029).
Mold-Rite awarded Mr. Rios a “Certificate of Achievement” for Perfect Attendance for the
years 2017 and 2020. Ex. 37, 2017 Perfect Attendance Certificate; Ex. 38, 2020 Perfect Attendance
Certificate. 5 Mr. Rios was well respected for his work in the Preventative Maintenance
Department, was well liked by his fellow employees, and was considered to be truthful. Rinder
Dep. 33:17-34:10; Hartman Dep. 38:11-12; Ex. 17, 2012 Performance Review (authenticated at
Lapikas Dep. 30-31)(“Freddie is very honest and gets along with all of his peers.”).
B. On March 18, 2021, Mr. Lapikas met with Mr. Rios to discuss his upcoming raise.
When Mr. Rios advocated for higher wages for himself and other workers in his
department, Mr. Lapikas became angry, called him a “mother f***ing Puerto Rican,”
and yelled, “You Puerto Ricans are never happy with anything!”
On March 18, 2021, Mr. Rios arrived at work at 4:37 a.m., a few minutes before his usual
shift, which was 4:45 a.m. to 3:00 p.m. Ex. 15, Rios Time Card (authenticated at Gubanc Dep. 60).
Around noon, Mr. Rios was warming up his spaghetti for lunch when Mr. Lapikas asked him to
come to his office. When Mr. Rios explained he was taking his lunch and waiting for his food in
the microwave, Mr. Lapikas grew angry and said it would only take a minute. Mr. Rios removed
his food from the microwave and followed Mr. Lapikas to his office. Rios Dep. 110:1-115:3; Ex.
39, Plaintiff Supp. Answer Interrog. 21. 6
5
Authenticated in the affidavit of Kami D. Brauer.
6
Authenticated in the affidavit of Kami D. Brauer.
3
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Behind closed doors, Mr. Lapikas asked Mr. Rios if he was aware of what was going on
concerning wage increases with other departments at Mold-Rite. Mr. Rios responded that he heard
other departments received raises, but the Preventative Maintenance Department did not, and that
the other employees were upset. He complained to Mr. Lapikas that he knew the Material Handlers
had received an increase for the third time in the last two and a half years and therefore asked for
a pay increase for everybody in the Preventative Maintenance Department. Rios Dep. 118:3-
128:8; 155:6-158:6; Ex. 39, Plaintiff Supp. Answer Interrog. 21; Lapikas Dep. 58:2-18, 60:12-23.
Mr. Lapikas became angry and yelled that what Mr. Rios said was not true. He then told
Mr. Rios that he would receive a 2% pay increase (which was $.50), but also started talking about
how those “people” were coming into the country. He said that “Biden was f**ing us,” and that
“Trump should have stayed because Trump was doing a good job keeping people from coming
into the United States and that way we wouldn’t be f***ed!” Mr. Rios responded that those
comments have nothing to do with him because he is Puerto Rican. Rios Dep. 118:3- 128:8; 155:6-
158:6; Ex 39, Plaintiff Supp. Answer Interrog. 21; Lapikas Dep. 58:21-59:12
Mr. Lapikas then yelled at Mr. Rios: “You mother f***ing Puerto Rican! You Puerto
Ricans are never happy with anything!” Rios Dep. 155:14-158:6.
Mr. Rios objected, telling Mr. Lapikas that he was wrong and that he was disrespecting
him. He asked Mr. Lapikas to calm down and respect him. Mr. Rios explained to Mr. Lapikas that
he only wanted what was right for him and his coworkers. Mr. Lapikas barked that he should
accept the money because that’s all he was going to get. Ex. 39, Plaintiff Supp. Answer Interrog.
21.; Rios Dep. 118:3- 128:8.
Mr. Rios got up from his chair and told Mr. Lapikas that he felt like Mr. Lapikas wanted
him to put in his two-week notification and wanted him to quit, but Mr. Rios said that he would
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not do that. He told Mr. Lapikas that he would not go that easy, he loved his job, and he had been
there for 18 years. Mr. Lapikas snapped, “go do whatever you want to do” and that he would talk
with Carol Rinder (Caucasian/Non-Hispanic), Vice President of Operations . Mr. Lapikas said he
would look for Mr. Rios later to finish the conversation. Rios Dep: 127:17-128:8; Ex. 39, Plaintiff
Supp. Answer Interrog. 21
C. Mr. Rios, upset by his supervisor’s discriminatory rant, began to feel ill and left work
about an hour early using his “OK” hours, as permitted under Mold-Rite policy.
Mr. Rios returned to the floor around 12:30 p.m. and worked for approximately another
hour. Upset over Mr. Lapikas derogatory rant, he began feeling ill and realized that he had not
taken his blood pressure medicine that morning. Mr. Rios decided to head home for the day to take
his blood pressure medicine and rest. He told his co-workers Andy Bowers and Shaun Kadlowec
(both Caucasian/Non-Hispanic) that he was leaving because he was not feeling well and that he
would see them on Monday. While Mr. Rios was talking to his co-workers, Mr. Lapikas came to
the first floor, looked over at them, turned and went back towards his office. Rios Dep. 136:22-
138:23.
Mr. Rios went to HR to let someone in HR know that he was using an “OK” day 7. He
knocked on the door because the blinds were closed, but no one answered. He also went to Mr.
Lapikas’s office, but the door was closed, and he did not see a light on in the office. Rios Dep.
139:10-22.
7
Mr. Rios is referring to Mold-Rite’s “OK” Hours policy. Under this policy, employees can use “OK” hours
to “avoid attendance points on a day where an employee reports late for work, leaves early, or using it as a personal
day off, at the employee’s discretion.” See pages MR(9HB2017)035-036 (emphasis added) of Ex. B Part3, MRP
Employee Handbook, attached to Defendant’s Motion for Summary Judgment. See also MR(HB2018A)002, attached
as Ex. 40, 2018 Supp. to Handbook, permitting employees to use “OK” hours in 1 hour increments.
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Mr. Rios then went to the locker room, changed clothes, and went downstairs to clock out.
As he headed to clock out, Mr. Rios saw another supervisor, Chirs Dzuroff (Caucasian/Non-
Hispanic), who asked, “amigo, where are you going?” Mr. Rios responded he was going home and
taking the rest of the day as an “OK” day. Mr. Rios then clocked out at 1:32 p.m. (an hour and a
half prior to the end of his usual 10-hour shift), drove home, and took his medication. Rios Dep.
139:10-22, 147:9-148:21; Ex. 15, Time Card.
D. Knowing that Mr. Rios would report his discriminatory comments to HR, Mr.
Lapikas intercepted and told Carol Rinder and the new HR Manager that Mr. Rios
was upset over his wage increase and that he had given his two-week notice. He also
convinced Ms. Rinder to discipline him.
Mr. Lapikas was aware that Mr. Rios would go to Human Resources if he had an issue with
anything. Lapikas Dep. 52:21-53:1. Mold-Rite has a policy against any employee or manager
discriminating or retaliating against an employee who reports discrimination. Ex. B-Part1, MRP
Employee Handbook, attached to Def. Motion for S.J. Ex. B Part 1 at (MR(HB2017)012-13). Any
employee who discriminates or retaliates is subject to discipline, including termination. Id.
Mr. Lapikas understood this. He testified about the type of conduct that can be retaliation:
“Could be try to get them – try to get them fired” or “Talk bad about them” or “Make up false –
false allegations” or “Could be a bunch of different things.” Lapikas Dep. 101:8-25.
After Mr. Rios left Mr. Lapikas’s office on March 18, Mr. Lapikas testified that he waited
in his office for about 20-30 minutes. Lapikas Dep. 63:12-64:2. He then went to look for Mr.
Rios in the maintenance area and was told that Mr. Rios had left. Id. Mr. Lapikas went back to
his office, logged into the company’s time management system, and saw that Mr. Rios had clocked
out. Lapikas Dep. 65:14-23.
Mr. Lapikas did not try to contact Mr. Rios after he left. Lapikas Dep. 68:11-14. Instead,
Mr. Lapikas went to Carol Rinder’s office to tell her what happened. They spoke for about five to
6
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ten minutes. Lapikas Dep. 65:24-66:25. While Mr. Lapikas does not recall what Ms. Rinder said,
he did recall that she did not instruct him to do anything or tell him what she was going to do.
Lapikas Dep. 67:2-19. Ms. Rinder set up a meeting for the next morning, March 19, 2021,
between herself, Mr. Lapikas, and the new HR Manager, Rebecca (“Becky”) Marshall
(Caucasian/Non-Hispanic). Lapikas Dep. 67:17-68:10. Ms. Marshall had only been with Mold-
Rite for less than two weeks and was not familiar with Mr. Rios. Rios Dep. 165:15-25; Rinder
Dep. 125:35-126:12.
E. As of 6:08 p.m. on March 18th, the plan was to see if Mr. Rios showed up for work on
Monday, write him up for leaving work without informing anyone, and not allow him
to use his “OK” hours to cover his shift.
While Mr. Lapikas testified that he could not recall what was said during the meeting or
whether he met with Ms. Marshall on March 18th (Lapikas Dep. 67:2-4; 68:15-21), he sent a text
message to Ms. Rinder at 6:08 p.m. on March 18th confirming that he had in fact met with Ms.
Marshall and outlined their plan for Mr. Rios:
Mr. Lapikas: I got with Becky this afternoon on Freddie and she said at least if he shows
up on Monday we need to write him up. After thinking about it more
because he didn’t say he was leaving we should not allow him to use ok
time and give him points. This needs to stop. Thoughts?
Ms. Rinder: Agree with u.
Mr. Lapikas: Ok thanks. I’m sure he will approach you but we need to hold our ground
this time.”
Ms. Rinder: We absolutely will.
Mr. Lapikas: Thank you.
Ex.41, Lapikas/Rinder Text Message 3/18/2021 (MR SUPP 002489). 8
8
Authenticated in the affidavit of Kami D. Brauer.
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Ms. Marshall also drafted a memorandum regarding the communications between her and
Mr. Lapikas on March 18th . Ms. Marshall explained: “We decided we would see if he [Mr. Rios]
came in on Monday and address his leaving that day.” She further wrote: “Carol Rinder asked me
to reach out to Freddie and see what was going on and if he was coming back on Monday because
he verbally resigned.” Ex. 21, Memo. dated 3/19/2021, (MR(UCRC)032) 9; Rinder Dep. 76-77) .
F. The next morning on March 19th at 10:03 a.m., Mr. Rios called and complained to
Mold-Rite’s HR Manager, Ms. Marshall, about Mr. Lapikas’s discriminatory
behavior. Ms. Marshall told Mr. Rios that she would talk with Mr. Lapikas and Ms.
Rinder, and she scheduled a meeting with Mr. Rios for Monday, his next workday.
On March 19, 2021, at 10:03 a.m., Mr. Rios called Mold-Rite’s human resources
department and spoke with Ms. Marshall. Ms. Marshall did not call him. The call lasted 14
minutes. Ex. 5, Phone Record (authenticated at Rios Dep. 103-104); Ex. 39, Plaintiff Supp. Answer
Interrog. 21; Rios Dep. 155:14-158:6. During that call, Mr. Rios told Ms. Marshall what had
happened the day before and that he had taken an “OK” day for the rest of his shift. Mr. Rios told
Ms. Marshall that Mr. Lapikas interrupted his lunch and had him go to his office. Mr. Rios
explained the two had been talking about a raise when Mr. Lapikas became angry, went off, and
disrespected and offended him with comments about his national origin. Ex. 39, Plaintiff Supp.
Answer Interrog. 21; Rios Dep. 118:3- 128:8; 155:6-158:6.
Ms. Marshall asked Mr. Rios what he meant by Mr. Lapikas disrespecting him. He told her
that Mr. Lapikas said to him: “You mother f***ing Puerto Rican!” “You Puerto Ricans are never
happy with anything!” Mr. Rios told Ms. Marshall that Mr. Lapikas’s treatment of him was making
him feel as though Mr. Lapikas wanted him to quit but he would not do that because he loved his
job and had been there for 18 years. Ms. Marshall responded that Mr. Lapikas had not told her
9
Authenticated in the affidavit of Kami D. Brauer.
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that. She also said “that’s not right,” “that is not the way we treat people here,” and not to worry.
Rios Dep. 104:25-106:4, 155:14-158:6; Ex. 39, Plaintiff Supp. Answer Interrog. 21.
Ms. Marshall told Mr. Rios that Mr. Lapikas had indicated he was upset about the raise and
asked if he was upset about the raise. Mr. Rios said yes but that was not why he was so upset; Mr.
Lapikas had disrespected him. Ms. Marshall asked what Mr. Rios would want for a raise, and he
said he just wanted to make what was right, maybe $30 but he knew that was not going to happen.
Rios Dep. 155:14-158:6.
Ms. Marshall suggested that the two of them sit down and talk about the situation first thing
on Monday morning. Mr. Rios explained that he would get in at 4:45 a.m., his usual start time, and
she stated that she would not be there until 8:00 a.m., but she would look for him when she got
into work. Ms. Marshall further stated that she would talk with Ms. Rinder and Ms. Lapikas and
that she would see Mr. Rios on Monday morning. Rios Dep. 104:25-106:4, 155:14-158:6.
G. Three hours later, after Ms. Marshall met with Mr. Lapikas and Ms. Rinder and told
them about her conversation with Mr. Rios, in which he reported Mr. Lapikas’s
discriminatory comments, Mold-Rite terminated him.
After his call with Ms. Marshall, Mr. Rios continued on with his day. He planned to meet
with Ms. Marshall around 8:00 a.m. on Monday, March 22, during his next regular shift. Rios Dep.
104:25-106:4.
Ms. Marshall, Mr. Lapikas, and Ms. Rinder decided otherwise. After the call with Mr.
Rios, Ms. Marshall noted that she met with Mr. Lapikas and Carol Rinder. Ex. 21, Memo. Dated
3/19/2021. According to Ms. Rinder, the group had planned to let Mr. Rios “cool off” and come
back on Monday. Rinder Dep. 78:3-79:23. But then Mr. Lapikas changed her mind:
Q.· · So just to make sure I'm clear, so in this one conversation it went from let's let him
cool off, have him come in on Monday –
A.· · Yep.
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·Q.· · -- to, well, Becky, Ms. Marshall, why don't you reach out to Mr. Rios, right?·
Correct?
·A.· · Yeah.
·Q.· · And then to, well, we'll just accept his resignation.
·A.· · Have him come back on Monday, and then as I -- we talked about the fi- -- so I
had asked Brian, again, you know, share about -- what did he say about the money, so I
further understood. Then I realized, okay, we can't give him any more money.· So if he
can go somewhere else and get money, because that's what he said to Brian in that
conversation, I changed my mind.· So at first, just have him come in, but then after we
talked more about what the discussion was, then we -- then I said, you know what, we
might as well let him go on his way.
* * *
· * *
··Q.· · Who told you that he said, related to this particular rate/raise increase, that he could
go somewhere else and make more?
··A.· · He has said this before.
· Q.· · But I guess –
· A.· · So in this case it was a discussion with Brian saying, I could go somewhere and
make more money.
· Q.· · Who told you that Mr. Rios said that to Mr. Lapikas?
A.· · Brian.
Rinder Dep. 80:12-83:16 (emphasis added).
Mr. Lapikas testified that he met with Ms. Marshall and Ms. Rinder on March 19, 2021.
Lapikas Dep. 68:22-69:7. Mr. Lapikas explained that “we all agreed we was going to accept his
resignation.” Lapikas Dep. 70:17-71:17.
But Mr. Rios did not resign, verbally or otherwise. Rios Dep. 164:6-2. The person
claiming that Mr. Rios resigned verbally was Mr. Lapikas, who was angry with Mr. Rios for
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objecting to his discriminatory comments towards Puerto Ricans, and who was keenly aware that
Mr. Rios would (and did) report Mr. Lapikas’s discriminatory comments to Human Resources.
At 1:13 p.m., Mr. Rios was at the store when Ms. Marshall called him. Ms. Marshall told
him that she had spoken with Mr. Lapikas and Ms. Rinder and he was no longer an employee of
Mold-Rite. Ms. Marshall said Mold-Rite accepted Mr. Rios’s resignation. Mr. Rios was shocked
and told Ms. Marshall that he did not resign. Rios Dep. 104:34-106:9; Ex. 39, Plaintiff Supp.
Answer Interrog. 21.; Ex. 5, Phone Record; Ex. 21, Memo Dated 3/19/2021. 10 Ms. Marshall told
Mr. Rios that it “doesn’t matter no more. Just call your supervisor to pick up your belongings and
your tools.” Rios Dep. 104:10-21. She roughly hung up the phone. Mr. Rios was devastated:
“From that day, everything change.” Rios Dep. 104:10-106:4; Ex. 39, Plaintiff Supp. Answer
Interrog. 21.
H. Mold-Rite immediately posted Mr. Rios’s position in the employee lunchroom.
At 1:20 p.m. on March 19th, Ms. Marshall emailed Ms. Rinder and Mr. Lapikas advising
them that she spoke with Mr. Rios and “he is aware that we are accepting his resignation effective
immediately and he needs to contact Brian to set up a time to come get his tools. His last day
would technically be yesterday 3/18/21.” Mr. Lapikas responded: “Thanks Becky. Freddie
reached out and I told him to contact me on Monday and I will schedule a time.” Four minutes
later, Ms. Marshall responded: “Job is posted in the lunchroom!” Ex. 28, Email String
(authenticated at Lapikas Dep. 78-79).
Still in shock after Ms. Marshall’s devasting call and believing that Mold-Rite had made
its final decision, Mr. Rios sent a text message to Ms. Rinder just an hour later thanking her for
10
Under Ohio Evid. R. 801(D)(2), Ms. Marshall’s memo constitutes an admission by a party-opponent and is,
thus, an exception to the hearsay rule and admissible.
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having the opportunity to work at Mold-Rite and apologizing if he caused any problems. Mr. Rios
also commented on his concern about possibly having cancer and that he was going through a lot
in his life and didn’t know how to react sometimes. Ms. Rinder wished him luck, but Mr. Rios
responded: “I really need my job but I had to understand.” Ex. G, Text Messages (authenticated
at Rios Dep. 160).
Mold-Rite touts these text messages as alleged confirmation that Mr. Rios resigned, but
they do no such thing. When asked by Mold-Rite’s counsel to explain the “problems” referenced
by Mr. Rios, he testified: “When Rebecca called me and let me know that they accept my
resignation, that I was fired. Obviously, it was a problem, because they’re losing a good
employee.” Rios Dep. 161:7-162:7. Mr. Rios further explained his comment about what he meant
by “I don’t know how to react sometimes.” Mr. Rios explained: “The reaction of letting Brian
know, trying to calm him down. Like I might have raised a voice, like, Stop. You need to stop.
And the way I talked with human resources that day, March 19, letting her know.” Rios Dep.
163:8-22.
Mr. Rios also explained what he meant by, “I really need my job but I had to understand.”
Rios Dep. 167:6-168:16. Mr. Rios testified:
I had to understand the decision they got, the call that I received from Marshall. What am
I supposed to do? So I understand that you got to decide to fire me.
Ms. Marshall said I was done. I said, What resignation? It was real quick. Because she
didn’t even want – I couldn’t even explain myself. She just hang up on me Just hang up.
I got to ask, What resignation? I did not resign from here. Why would I do that? At 10:00
in the morning I just finished talking to you raising my concern that what happened the day
before with Brian Lapikas. And I feel like they just discriminate. Like I feel – I lost
everything. Id.
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I. When Mr. Rios returned to Mold-Rite to gather his personal belongings, Mr. Lapikas
refused to allow Mr. Rios to meet with Human Resources and told Mr. Rios: “It
doesn't matter no more. We had enough of you. We fired you.”
Following Mr. Lapikas’s instructions, Mr. Rios returned to Mold-Rite on March 23, 2021,
to pick up his belongings and toolbox. Lapikas Dep. 74:24-75:6; Ex. 39, Plaintiff Supp. Answer
Interrog. 21. When he first arrived, Mr. Lapikas testified Mr. Rios asked “to get with HR.”
Lapikas Dep. 75-76:1; Ex. 39 Plaintiff Supp. Answer Interrog. 21. But Mr. Lapikas responded:
“I go, Freddie, it really ain’t going to do you any good. I go, I accept your resignation. Obviously
you’re not happy here. It’s really not going to do you any good.” Id. When asked if Mr. Rios
responded, Mr. Lapikas could not recall. Lapikas Dep. 76:8-11.
Mr. Rios, however, recalled that conversation. Mr. Rios told Mr. Lapikas that he did not
quit but that Mr. Lapikas had fired him. Rios Dep. 171:24-173:21. Mr. Lapikas told Plaintiff
it did not matter anymore, “we’ve had enough of you.” Id.
Q. When did Brian Lapikas tell you, you were fired from Mold-Rite?
A. He actually -- when I went to pick up my toolbox, my belongings, I stop on the
ramp and I request to talk to Carol Rinder, to Becky Marshall and himself, because
he knew that I didn't quit. And I didn't put my resignation. Right there he got upset
right away. That was on-site. He started raising his voice once again and told me,
Doesn't matter. You said it by the phone.
By the phone what? No, I didn't say it by the phone. I told you in your office he was
making me feel like you want me to put in the two weeks' notice. I did not resign from
here.
It doesn't matter no more. We had enough of you. We fired you.
Excuse me? I wish I had a recorder machine so I can prove what he just say to me. If
I can prove to Carol or whoever was in charge at that moment, to everybody, I can
prove that he actually admit -- and I told him, I said, So you admit that you fired me.
It don't matter. You think whatever you want. Just hurry up and get your toolbox
and get your stuff from the office and the locker room.
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And I told him to just calm down. I'm no longer employee here. So you have to respect
me. Whether I'm employee or not, everybody deserve respect. We are human beings,
so . . . That was on March 23, 2021.
Rios Dep. 172:2-173:4.
J. Mold-Rite replaced Mr. Rios with a non-Hispanic employee.
In June 2021, Mold-Rite replaced Mr. Rios with Mark Smith, a white, non-Hispanic male. Ex.
42, Def. Answer to Interrog. 9. 11
K. Mold-Rite continued giving raises after Mr. Rios’s termination.
The employees in the Preventative Maintenance Department received multiple wage
increases since Mold-Rite terminated Mr. Rios in March 2021. There was an increase in May 2021,
and then additional increases in October and December 2021 and May 2022. Rinder Dep. 90:2-6;
Lapikas Dep. 103:11-15; Ex. 43, Def. Answer to Interrog. 7. 12 At the time of his termination, Dan
Mancini – another Preventative Maintenance Mechanic who is Caucasian/Non-Hispanic and had
9 years less seniority than Mr.
Preview
CV-2022-06-1871 O'BRIEN, TAMMY 09/05/2023 15:07:39 PM BRIO Page 1 of 44 IN THE COURT OF COMMON PLEAS SUMMIT COUNTY, OHIO WILFREDO RIOS ) ) Case No. CV-2022-06-1871 Plaintiff, ) ) Judge Tammy O’Brien ) ) -vs- ) ) WEATHERCHEM CORPORATION ) ) Defendant. ) ) ___________________________________ ) Plaintiff Wilfredo Rios’s Opposition to Defendant’s Motion for Summary Judgment “You mother f***ing Puerto Rican!” “You Puerto Ricans are never happy with anything!” “Trump should have stayed because Trump was doing a good job keeping people from coming into the United States and that way we wouldn’t be f***ed!” Mr. Rios – who is Puerto Rican and an 18-year employee – had to endure derogatory comments like these while working at Mold-Rite. Mr. Rios would complain, but nothing was ever done. In fact, on his last day of work, Brian Lapikas, Mr. Rios’s supervisor, hurled these exact words quoted above at Mr. Rios in a closed door meeting, and Mr. Rios complained the next day to Human Resources. Three hours later, Mr. Rios was terminated. But none of these comments are directly addressed, or even mentioned, in Mold-Rite’s summary judgment motion. Instead of addressing the actual bases for Mr. Rios’s claims in this action, Mold-Rite focuses its entire argument in its motion on Mr. Rios’s complaints about pay, for himself and others, and claims that it accepted Mr. Rios’s alleged resignation to “allow” him to make more money elsewhere. Yes, Mr. Rios complained about pay, but that’s not why Mr. Rios Sandra Kurt, Summit County Clerk of Courts CV-2022-06-1871 O'BRIEN, TAMMY 09/05/2023 15:07:39 PM BRIO Page 2 of 44 has sued Mold-Rite. Mr. Rios has sued Mold-Rite for its discriminatory and retaliatory conduct against him based on his Puerto Rican heritage and for his wrongful termination after he complained about the discriminatory conduct of his supervisor that culminated with his termination on March 19, 2021. To be clear, Mr. Rios did not quit or resign as claimed by Mold-Rite. Mr. Rios has consistently denied that he would ever do such a thing. He loved his job and cared about his co- workers. Rather, the purported “resignation” is Mold-Rite’s attempt to cover up its discrimination and retaliation against Mr. Rios for objecting to his supervisor’s discriminatory conduct. In truth, Mr. Lapikas knew that Mr. Rios would complain about his discriminatory rant and came up with his own story he sold to Mold-Rite – that Mr. Rios wanted a pay raise, and if he didn’t get it, he would leave Mold-Rite. Even though Mr. Rios complained about Mr. Lapikas’s unlawful conduct, Mold-Rite ignored it and accepted his alleged “resignation,” which Mr. Rios adamantly refuted. When Mr. Rios returned to Mold-Rite after his termination to get his tools, he asked to talk with Human Resources, but Mr. Lapikas stopped him: “It doesn’t matter no more. We had enough of you. We fired you.” Regardless of whether Mold-Rite wants to acknowledge it, Mr. Rios has sufficient evidence to support each of his claims for discrimination and retaliation. This Court should reject Mold-Rite’s continued attempt to silence Mr. Rios and allow a jury to hear the evidence in the matter. Therefore, given Mr. Rios’s evidence and the clear factual issues, this Court should deny Defendant’s motion for summary judgment. A memorandum in support is attached. Sandra Kurt, Summit County Clerk of Courts CV-2022-06-1871 O'BRIEN, TAMMY 09/05/2023 15:07:39 PM BRIO Page 3 of 44 Respectfully submitted, ___/s/ Kami D. Brauer_________________ KAMI D. BRAUER (#0071030) Employment Law Partners, LLC 4700 Rockside Road, Suite 530 Independence, Ohio 44131 Tel: (216) 474-4715 Fax: (216) 381-0250 Email: kami@employmentlawpartners.com ____/s/ Lydia Floyd _____________ LYDIA FLOYD (#0088476) The Lydia Floyd Law Firm, LLC 19525 Hilliard Blvd. #174 Rocky River, Ohio 44116 Tel: (216) 659-0871 Fax: (216) 359-8096 Email: lydia@lydiafloydlaw.com Counsel for Plaintiff Rios Sandra Kurt, Summit County Clerk of Courts CV-2022-06-1871 O'BRIEN, TAMMY 09/05/2023 15:07:39 PM BRIO Page 4 of 44 Table of Contents Section Page I. Statement of Facts 1 A. Mr. Rios, a Puerto-Rican American, began his 18-year career at Mold- 1 Rite on March 17, 2003. Throughout his career at Mold-Rite, he received promotions, awards, and positive performance reviews. B. On March 18, 2021, Mr. Lapikas met with Mr. Rios to discuss his 3 upcoming raise. When Mr. Rios advocated for higher wages for himself and other workers in his department, Mr. Lapikas became angry, called him a “mother f***ing Puerto Rican,” and yelled, “You Puerto Ricans are never happy with anything!” C. Mr. Rios, upset by his supervisor’s discriminatory rant, began to feel ill 5 and left work about an hour early using his “OK” hours, as permitted under Mold-Rite policy. D. Knowing that Mr. Rios would report his discriminatory comments to HR, 6 Mr. Lapikas intercepted and told Carol Rinder and the new HR Manager that Mr. Rios was upset over his wage increase and that he had given his two- week notice. He also convinced Ms. Rinder to discipline him. E. As of 6:08 p.m. on March 18th, the plan was to see if Mr. Rios showed up 7 for work on Monday, write him up for leaving work without informing anyone, and not allow him to use his “OK” hours to cover his shift. F. The next morning on March 19th at 10:03 a.m., Mr. Rios called and 8 complained to Mold-Rite’s HR Manager, Ms. Marshall, about Mr. Lapikas’s discriminatory behavior. Ms. Marshall told Mr. Rios that she would talk with Mr. Lapikas and Ms. Rinder, and she scheduled a meeting with Mr. Rios for Monday, his next workday. G. Three hours later, after Ms. Marshall met with Mr. Lapikas and Ms. 9 Rinder and told them about her conversation with Mr. Rios, in which he reported Mr. Lapikas’s discriminatory comments, Mold-Rite terminated him. H. Mold-Rite immediately posted Mr. Rios’s position in the employee 11 lunchroom. i Sandra Kurt, Summit County Clerk of Courts CV-2022-06-1871 O'BRIEN, TAMMY 09/05/2023 15:07:39 PM BRIO Page 5 of 44 Table of Contents Section Page I. When Mr. Rios returned to Mold-Rite to gather his personal belongings, 13 Mr. Lapikas refused to allow Mr. Rios to meet with Human Resources and told Mr. Rios: “It doesn't matter no more. We had enough of you. We fired you.” J. Mold-Rite replaced Mr. Rios with a non-Hispanic employee. 14 K. Mold-Rite continued giving raises after Mr. Rios’s termination. 14 L. Mold-Rite had previously ignored Mr. Rios’s other complaints concerning 14 derogatory comments and harassment. II. Law and Argument 17 A. Summary judgment denies a litigant his day in court. Thus, it must be 17 used with extreme caution. When ruling on a motion for summary judgment, the evidence, and all inferences drawn from that evidence, must be construed in favor of the non-moving party with all doubts resolved in the non-moving party’s favor. B. Mr. Rios can prove his claims through direct or indirect, circumstantial 18 evidence. C. Mold-Rite discriminated against Mr. Rios based on his Puerto Rican 19 heritage. 1. Mr. Rios can directly prove that Mold-Rite discriminated against him 19 because of his Puerto Rican heritage. a. Mr. Lapikas’s derogatory comments about Mr. Rios’s Puerto Rican 20 heritage and made the day before Mr. Rios’s termination are not mere “stray comments” because Mr. Lapikas was Mr. Rios’s supervisor and participated in the decision to terminate Mr. Rios. b. Mold-Rite lacks a legitimate justification for its termination of Mr. Rios. 20 c. It is a question for the jury whether Ms. Rinder knew about Mr. Lapikas’s 23 discriminatory comments. Even if she did not know, Mr. Lapikas clearly had influence over Ms. Rinder’s decision to “change her mind.” ii Sandra Kurt, Summit County Clerk of Courts CV-2022-06-1871 O'BRIEN, TAMMY 09/05/2023 15:07:39 PM BRIO Page 6 of 44 Table of Contents Section Page 2. Mr. Rios can “indirectly” prove through additional evidence that Mold 24 Rite discriminated against him because of his Puerto Rican heritage. a. Mold-Rite does not dispute that Mr. Rios can make out the first 3 prongs 25 of his prima facie case. As to whether Mr. Rios suffered an adverse employment action, an issue of fact exists. b. Mold-Rite lacks an overriding, legitimate business justification for its 25 actions, and its story that it accepted Mr. Rios’s alleged resignation because it did not want to “stand in the way of his happiness and desire to make more money working elsewhere” is nothing more than sheer pretext. D. On March 19, 2021, Mold-Rite retaliated against Mr. Rios when it 27 terminated him three hours after he reported and complained about Mr. Lapikas’s discriminatory remarks the previous day. 1. Mr. Rios engaged in protective activity when he complained to Human 28 Resources that his supervisor made racially derogatory comments. 2. Mold-Rite knew of Mr. Rios’s protected activity. 29 3. Mold-Rite took an adverse employment action against Mr. Rios by 29 terminating him, and a causal link exists between Mr. Rios’s complaint and Mold-Rite’s adverse action. a. Mr. Rios can establish a causal connection through temporal proximity 30 alone because his termination occurred within hours after he complained about Mr. Lapikas’s discriminatory conduct. b. In any case, Mr. Rios has also put forth additional evidence establishing 31 causation. 4. Mold-Rite’s excuse for terminating him, hours after his complaints, 32 because he complained about money is pretextual. E. Mr. Rios suffered a hostile work environment. 32 III. Conclusion 34 iii Sandra Kurt, Summit County Clerk of Courts CV-2022-06-1871 O'BRIEN, TAMMY 09/05/2023 15:07:39 PM BRIO Page 7 of 44 MEMORANDUM I. STATEMENT OF FACTS A. Mr. Rios, a Puerto-Rican American, began his 18-year career at Mold-Rite on March 17, 2003. Throughout his career at Mold-Rite, he received promotions, awards, and positive performance reviews. Mr. Rios was born in Puerto Rico and moved to Cleveland, where he resides today, when he was 18 years old. Rios Dep. 20:4-7, 21:13-18. On March 17, 2003, Mr. Rios began his employment with Mold-Rite as a Machine Operator. Ex. 32, Mold-Rite Offer Letter (MR(PF)012-13). 1 Mr. Rios has always loved to work with machines. He began working with machines from a very young age while working alongside his father and family in Puerto Rico in their mechanical shop and grocery store. Rios Dep. 24:1- 14. His initial reviews at Mold-Rite were outstanding: “Freddie {sic} quality of work is very good. It is rare for someone that has been here less than a year to have quality at such a high standard. Not only in catching quality issues, but paperwork errors.” Ex. 33, 2003 Performance Review (MR(PF)100-101). 2. Mold-Rite promoted Mr. Rios to the position of “B Mechanic,” then to Maintenance Mechanic, and finally to Crew Mechanic and Preventative Maintenance Mechanic – the position he held until his termination. Ex. 34, 2006 Promotion (MR(PF)138); Ex. 35, 2006 March Promotion (MR(PF)139); Rios Dep. 33:10-36:12. As a Maintenance Mechanic in the Preventative Maintenance Department, Mr. Rios continued to receive positive performance reviews. Lapikas Dep. Ex. 17, 2012 Performance Review; Ex. 18, 2013 Performance Review; Ex. 19, 2014 Performance Review; Ex. 20, 2015 1 Authenticated in the affidavit of Kami D. Brauer. 2 Authenticated in the affidavit of Kami D. Brauer. 1 Sandra Kurt, Summit County Clerk of Courts CV-2022-06-1871 O'BRIEN, TAMMY 09/05/2023 15:07:39 PM BRIO Page 8 of 44 Performance Review; Exhibit 25, 2016/2017 Performance Review; Exhibit 26, 2017/2018 Performance Review; Exhibit 27, 2018/2019 Performance Review (exhibits authenticated at Lapikas Dep. 30-39). In his 2016/2017 review, Mr. Rios received “Exceeds Expectations” for his Teamwork and Communication. His supervisor, Brian Lapikas (Caucasian/Non-Hispanic) 3, wrote: “Freddie is a team player and will go out of his way to assist other coworkers in need without being asked.” Ex. 25, 2016/2017 Performance Review at (MR(PF)039) (authenticated at Lapikas Dep. 36-36). Mr. Lapikas also wrote: “Freddie consistently exhibits a positive and professional demeanor. Freddie pays attention to detail and ensures equipment is setup properly the first time.” Id. at (MR(PF) 039). Mr. Rios received recognition from supervisor, Todd Hanks (Caucasian/Non-Hispanic), for staying “3+ hours past his normal quitting time to make sure the job got done.” Ex. 36, 2017 Instant Recognition (MR(PF) 126. 4 Mr. Hanks wrote: “Without his determination the press would have sat until morning and incurred at least an extra 12 hours of downtime.” Id. Similarly in his 2017/2018 performance review, Mr. Rios received positive comments, including that: “Freddie is self-directed and takes 100% ownership on all assigned tasks. Freddie ensures all repairs are completed fully prior to releasing equipment back to production.” Ex. 26, 2017/2018 Performance Review (MR(PF)033) (authenticated at Lapikas Dep. 37-38). Once again in 2019 (which was the last formal performance evaluation he received), Mr. Lapikas wrote: “Freddie has excellent communication skills;” “Freddie takes pride in his work and always completes task[s] with quality in mind prior to releasing back to production.” Ex. 27, 3 The ethnicity of the various individuals identified can be found in Defendant’s response to Interrogatory No. 12, attached as Ex. 43 and authenticated in the affidavit of Kami D. Brauer. 4 Authenticated in the affidavit of Kami D. Brauer. 2 Sandra Kurt, Summit County Clerk of Courts CV-2022-06-1871 O'BRIEN, TAMMY 09/05/2023 15:07:39 PM BRIO Page 9 of 44 2018/2019 Performance Review (MR(PF)028) (authenticated at Lapikas Dep. 38-39). Mr. Lapikas also wrote: “Freddie is a pleasure to work with and I am proud to watch him grow his mechanical abilities. Freddie has stepped it up over the last year and has worked with Dan on many facility and molding machine projects.” Id. at (MR(PF)029). Mold-Rite awarded Mr. Rios a “Certificate of Achievement” for Perfect Attendance for the years 2017 and 2020. Ex. 37, 2017 Perfect Attendance Certificate; Ex. 38, 2020 Perfect Attendance Certificate. 5 Mr. Rios was well respected for his work in the Preventative Maintenance Department, was well liked by his fellow employees, and was considered to be truthful. Rinder Dep. 33:17-34:10; Hartman Dep. 38:11-12; Ex. 17, 2012 Performance Review (authenticated at Lapikas Dep. 30-31)(“Freddie is very honest and gets along with all of his peers.”). B. On March 18, 2021, Mr. Lapikas met with Mr. Rios to discuss his upcoming raise. When Mr. Rios advocated for higher wages for himself and other workers in his department, Mr. Lapikas became angry, called him a “mother f***ing Puerto Rican,” and yelled, “You Puerto Ricans are never happy with anything!” On March 18, 2021, Mr. Rios arrived at work at 4:37 a.m., a few minutes before his usual shift, which was 4:45 a.m. to 3:00 p.m. Ex. 15, Rios Time Card (authenticated at Gubanc Dep. 60). Around noon, Mr. Rios was warming up his spaghetti for lunch when Mr. Lapikas asked him to come to his office. When Mr. Rios explained he was taking his lunch and waiting for his food in the microwave, Mr. Lapikas grew angry and said it would only take a minute. Mr. Rios removed his food from the microwave and followed Mr. Lapikas to his office. Rios Dep. 110:1-115:3; Ex. 39, Plaintiff Supp. Answer Interrog. 21. 6 5 Authenticated in the affidavit of Kami D. Brauer. 6 Authenticated in the affidavit of Kami D. Brauer. 3 Sandra Kurt, Summit County Clerk of Courts CV-2022-06-1871 O'BRIEN, TAMMY 09/05/2023 15:07:39 PM BRIO Page 10 of 44 Behind closed doors, Mr. Lapikas asked Mr. Rios if he was aware of what was going on concerning wage increases with other departments at Mold-Rite. Mr. Rios responded that he heard other departments received raises, but the Preventative Maintenance Department did not, and that the other employees were upset. He complained to Mr. Lapikas that he knew the Material Handlers had received an increase for the third time in the last two and a half years and therefore asked for a pay increase for everybody in the Preventative Maintenance Department. Rios Dep. 118:3- 128:8; 155:6-158:6; Ex. 39, Plaintiff Supp. Answer Interrog. 21; Lapikas Dep. 58:2-18, 60:12-23. Mr. Lapikas became angry and yelled that what Mr. Rios said was not true. He then told Mr. Rios that he would receive a 2% pay increase (which was $.50), but also started talking about how those “people” were coming into the country. He said that “Biden was f**ing us,” and that “Trump should have stayed because Trump was doing a good job keeping people from coming into the United States and that way we wouldn’t be f***ed!” Mr. Rios responded that those comments have nothing to do with him because he is Puerto Rican. Rios Dep. 118:3- 128:8; 155:6- 158:6; Ex 39, Plaintiff Supp. Answer Interrog. 21; Lapikas Dep. 58:21-59:12 Mr. Lapikas then yelled at Mr. Rios: “You mother f***ing Puerto Rican! You Puerto Ricans are never happy with anything!” Rios Dep. 155:14-158:6. Mr. Rios objected, telling Mr. Lapikas that he was wrong and that he was disrespecting him. He asked Mr. Lapikas to calm down and respect him. Mr. Rios explained to Mr. Lapikas that he only wanted what was right for him and his coworkers. Mr. Lapikas barked that he should accept the money because that’s all he was going to get. Ex. 39, Plaintiff Supp. Answer Interrog. 21.; Rios Dep. 118:3- 128:8. Mr. Rios got up from his chair and told Mr. Lapikas that he felt like Mr. Lapikas wanted him to put in his two-week notification and wanted him to quit, but Mr. Rios said that he would 4 Sandra Kurt, Summit County Clerk of Courts CV-2022-06-1871 O'BRIEN, TAMMY 09/05/2023 15:07:39 PM BRIO Page 11 of 44 not do that. He told Mr. Lapikas that he would not go that easy, he loved his job, and he had been there for 18 years. Mr. Lapikas snapped, “go do whatever you want to do” and that he would talk with Carol Rinder (Caucasian/Non-Hispanic), Vice President of Operations . Mr. Lapikas said he would look for Mr. Rios later to finish the conversation. Rios Dep: 127:17-128:8; Ex. 39, Plaintiff Supp. Answer Interrog. 21 C. Mr. Rios, upset by his supervisor’s discriminatory rant, began to feel ill and left work about an hour early using his “OK” hours, as permitted under Mold-Rite policy. Mr. Rios returned to the floor around 12:30 p.m. and worked for approximately another hour. Upset over Mr. Lapikas derogatory rant, he began feeling ill and realized that he had not taken his blood pressure medicine that morning. Mr. Rios decided to head home for the day to take his blood pressure medicine and rest. He told his co-workers Andy Bowers and Shaun Kadlowec (both Caucasian/Non-Hispanic) that he was leaving because he was not feeling well and that he would see them on Monday. While Mr. Rios was talking to his co-workers, Mr. Lapikas came to the first floor, looked over at them, turned and went back towards his office. Rios Dep. 136:22- 138:23. Mr. Rios went to HR to let someone in HR know that he was using an “OK” day 7. He knocked on the door because the blinds were closed, but no one answered. He also went to Mr. Lapikas’s office, but the door was closed, and he did not see a light on in the office. Rios Dep. 139:10-22. 7 Mr. Rios is referring to Mold-Rite’s “OK” Hours policy. Under this policy, employees can use “OK” hours to “avoid attendance points on a day where an employee reports late for work, leaves early, or using it as a personal day off, at the employee’s discretion.” See pages MR(9HB2017)035-036 (emphasis added) of Ex. B Part3, MRP Employee Handbook, attached to Defendant’s Motion for Summary Judgment. See also MR(HB2018A)002, attached as Ex. 40, 2018 Supp. to Handbook, permitting employees to use “OK” hours in 1 hour increments. 5 Sandra Kurt, Summit County Clerk of Courts CV-2022-06-1871 O'BRIEN, TAMMY 09/05/2023 15:07:39 PM BRIO Page 12 of 44 Mr. Rios then went to the locker room, changed clothes, and went downstairs to clock out. As he headed to clock out, Mr. Rios saw another supervisor, Chirs Dzuroff (Caucasian/Non- Hispanic), who asked, “amigo, where are you going?” Mr. Rios responded he was going home and taking the rest of the day as an “OK” day. Mr. Rios then clocked out at 1:32 p.m. (an hour and a half prior to the end of his usual 10-hour shift), drove home, and took his medication. Rios Dep. 139:10-22, 147:9-148:21; Ex. 15, Time Card. D. Knowing that Mr. Rios would report his discriminatory comments to HR, Mr. Lapikas intercepted and told Carol Rinder and the new HR Manager that Mr. Rios was upset over his wage increase and that he had given his two-week notice. He also convinced Ms. Rinder to discipline him. Mr. Lapikas was aware that Mr. Rios would go to Human Resources if he had an issue with anything. Lapikas Dep. 52:21-53:1. Mold-Rite has a policy against any employee or manager discriminating or retaliating against an employee who reports discrimination. Ex. B-Part1, MRP Employee Handbook, attached to Def. Motion for S.J. Ex. B Part 1 at (MR(HB2017)012-13). Any employee who discriminates or retaliates is subject to discipline, including termination. Id. Mr. Lapikas understood this. He testified about the type of conduct that can be retaliation: “Could be try to get them – try to get them fired” or “Talk bad about them” or “Make up false – false allegations” or “Could be a bunch of different things.” Lapikas Dep. 101:8-25. After Mr. Rios left Mr. Lapikas’s office on March 18, Mr. Lapikas testified that he waited in his office for about 20-30 minutes. Lapikas Dep. 63:12-64:2. He then went to look for Mr. Rios in the maintenance area and was told that Mr. Rios had left. Id. Mr. Lapikas went back to his office, logged into the company’s time management system, and saw that Mr. Rios had clocked out. Lapikas Dep. 65:14-23. Mr. Lapikas did not try to contact Mr. Rios after he left. Lapikas Dep. 68:11-14. Instead, Mr. Lapikas went to Carol Rinder’s office to tell her what happened. They spoke for about five to 6 Sandra Kurt, Summit County Clerk of Courts CV-2022-06-1871 O'BRIEN, TAMMY 09/05/2023 15:07:39 PM BRIO Page 13 of 44 ten minutes. Lapikas Dep. 65:24-66:25. While Mr. Lapikas does not recall what Ms. Rinder said, he did recall that she did not instruct him to do anything or tell him what she was going to do. Lapikas Dep. 67:2-19. Ms. Rinder set up a meeting for the next morning, March 19, 2021, between herself, Mr. Lapikas, and the new HR Manager, Rebecca (“Becky”) Marshall (Caucasian/Non-Hispanic). Lapikas Dep. 67:17-68:10. Ms. Marshall had only been with Mold- Rite for less than two weeks and was not familiar with Mr. Rios. Rios Dep. 165:15-25; Rinder Dep. 125:35-126:12. E. As of 6:08 p.m. on March 18th, the plan was to see if Mr. Rios showed up for work on Monday, write him up for leaving work without informing anyone, and not allow him to use his “OK” hours to cover his shift. While Mr. Lapikas testified that he could not recall what was said during the meeting or whether he met with Ms. Marshall on March 18th (Lapikas Dep. 67:2-4; 68:15-21), he sent a text message to Ms. Rinder at 6:08 p.m. on March 18th confirming that he had in fact met with Ms. Marshall and outlined their plan for Mr. Rios: Mr. Lapikas: I got with Becky this afternoon on Freddie and she said at least if he shows up on Monday we need to write him up. After thinking about it more because he didn’t say he was leaving we should not allow him to use ok time and give him points. This needs to stop. Thoughts? Ms. Rinder: Agree with u. Mr. Lapikas: Ok thanks. I’m sure he will approach you but we need to hold our ground this time.” Ms. Rinder: We absolutely will. Mr. Lapikas: Thank you. Ex.41, Lapikas/Rinder Text Message 3/18/2021 (MR SUPP 002489). 8 8 Authenticated in the affidavit of Kami D. Brauer. 7 Sandra Kurt, Summit County Clerk of Courts CV-2022-06-1871 O'BRIEN, TAMMY 09/05/2023 15:07:39 PM BRIO Page 14 of 44 Ms. Marshall also drafted a memorandum regarding the communications between her and Mr. Lapikas on March 18th . Ms. Marshall explained: “We decided we would see if he [Mr. Rios] came in on Monday and address his leaving that day.” She further wrote: “Carol Rinder asked me to reach out to Freddie and see what was going on and if he was coming back on Monday because he verbally resigned.” Ex. 21, Memo. dated 3/19/2021, (MR(UCRC)032) 9; Rinder Dep. 76-77) . F. The next morning on March 19th at 10:03 a.m., Mr. Rios called and complained to Mold-Rite’s HR Manager, Ms. Marshall, about Mr. Lapikas’s discriminatory behavior. Ms. Marshall told Mr. Rios that she would talk with Mr. Lapikas and Ms. Rinder, and she scheduled a meeting with Mr. Rios for Monday, his next workday. On March 19, 2021, at 10:03 a.m., Mr. Rios called Mold-Rite’s human resources department and spoke with Ms. Marshall. Ms. Marshall did not call him. The call lasted 14 minutes. Ex. 5, Phone Record (authenticated at Rios Dep. 103-104); Ex. 39, Plaintiff Supp. Answer Interrog. 21; Rios Dep. 155:14-158:6. During that call, Mr. Rios told Ms. Marshall what had happened the day before and that he had taken an “OK” day for the rest of his shift. Mr. Rios told Ms. Marshall that Mr. Lapikas interrupted his lunch and had him go to his office. Mr. Rios explained the two had been talking about a raise when Mr. Lapikas became angry, went off, and disrespected and offended him with comments about his national origin. Ex. 39, Plaintiff Supp. Answer Interrog. 21; Rios Dep. 118:3- 128:8; 155:6-158:6. Ms. Marshall asked Mr. Rios what he meant by Mr. Lapikas disrespecting him. He told her that Mr. Lapikas said to him: “You mother f***ing Puerto Rican!” “You Puerto Ricans are never happy with anything!” Mr. Rios told Ms. Marshall that Mr. Lapikas’s treatment of him was making him feel as though Mr. Lapikas wanted him to quit but he would not do that because he loved his job and had been there for 18 years. Ms. Marshall responded that Mr. Lapikas had not told her 9 Authenticated in the affidavit of Kami D. Brauer. 8 Sandra Kurt, Summit County Clerk of Courts CV-2022-06-1871 O'BRIEN, TAMMY 09/05/2023 15:07:39 PM BRIO Page 15 of 44 that. She also said “that’s not right,” “that is not the way we treat people here,” and not to worry. Rios Dep. 104:25-106:4, 155:14-158:6; Ex. 39, Plaintiff Supp. Answer Interrog. 21. Ms. Marshall told Mr. Rios that Mr. Lapikas had indicated he was upset about the raise and asked if he was upset about the raise. Mr. Rios said yes but that was not why he was so upset; Mr. Lapikas had disrespected him. Ms. Marshall asked what Mr. Rios would want for a raise, and he said he just wanted to make what was right, maybe $30 but he knew that was not going to happen. Rios Dep. 155:14-158:6. Ms. Marshall suggested that the two of them sit down and talk about the situation first thing on Monday morning. Mr. Rios explained that he would get in at 4:45 a.m., his usual start time, and she stated that she would not be there until 8:00 a.m., but she would look for him when she got into work. Ms. Marshall further stated that she would talk with Ms. Rinder and Ms. Lapikas and that she would see Mr. Rios on Monday morning. Rios Dep. 104:25-106:4, 155:14-158:6. G. Three hours later, after Ms. Marshall met with Mr. Lapikas and Ms. Rinder and told them about her conversation with Mr. Rios, in which he reported Mr. Lapikas’s discriminatory comments, Mold-Rite terminated him. After his call with Ms. Marshall, Mr. Rios continued on with his day. He planned to meet with Ms. Marshall around 8:00 a.m. on Monday, March 22, during his next regular shift. Rios Dep. 104:25-106:4. Ms. Marshall, Mr. Lapikas, and Ms. Rinder decided otherwise. After the call with Mr. Rios, Ms. Marshall noted that she met with Mr. Lapikas and Carol Rinder. Ex. 21, Memo. Dated 3/19/2021. According to Ms. Rinder, the group had planned to let Mr. Rios “cool off” and come back on Monday. Rinder Dep. 78:3-79:23. But then Mr. Lapikas changed her mind: Q.· · So just to make sure I'm clear, so in this one conversation it went from let's let him cool off, have him come in on Monday – A.· · Yep. 9 Sandra Kurt, Summit County Clerk of Courts CV-2022-06-1871 O'BRIEN, TAMMY 09/05/2023 15:07:39 PM BRIO Page 16 of 44 ·Q.· · -- to, well, Becky, Ms. Marshall, why don't you reach out to Mr. Rios, right?· Correct? ·A.· · Yeah. ·Q.· · And then to, well, we'll just accept his resignation. ·A.· · Have him come back on Monday, and then as I -- we talked about the fi- -- so I had asked Brian, again, you know, share about -- what did he say about the money, so I further understood. Then I realized, okay, we can't give him any more money.· So if he can go somewhere else and get money, because that's what he said to Brian in that conversation, I changed my mind.· So at first, just have him come in, but then after we talked more about what the discussion was, then we -- then I said, you know what, we might as well let him go on his way. * * * · * * ··Q.· · Who told you that he said, related to this particular rate/raise increase, that he could go somewhere else and make more? ··A.· · He has said this before. · Q.· · But I guess – · A.· · So in this case it was a discussion with Brian saying, I could go somewhere and make more money. · Q.· · Who told you that Mr. Rios said that to Mr. Lapikas? A.· · Brian. Rinder Dep. 80:12-83:16 (emphasis added). Mr. Lapikas testified that he met with Ms. Marshall and Ms. Rinder on March 19, 2021. Lapikas Dep. 68:22-69:7. Mr. Lapikas explained that “we all agreed we was going to accept his resignation.” Lapikas Dep. 70:17-71:17. But Mr. Rios did not resign, verbally or otherwise. Rios Dep. 164:6-2. The person claiming that Mr. Rios resigned verbally was Mr. Lapikas, who was angry with Mr. Rios for 10 Sandra Kurt, Summit County Clerk of Courts CV-2022-06-1871 O'BRIEN, TAMMY 09/05/2023 15:07:39 PM BRIO Page 17 of 44 objecting to his discriminatory comments towards Puerto Ricans, and who was keenly aware that Mr. Rios would (and did) report Mr. Lapikas’s discriminatory comments to Human Resources. At 1:13 p.m., Mr. Rios was at the store when Ms. Marshall called him. Ms. Marshall told him that she had spoken with Mr. Lapikas and Ms. Rinder and he was no longer an employee of Mold-Rite. Ms. Marshall said Mold-Rite accepted Mr. Rios’s resignation. Mr. Rios was shocked and told Ms. Marshall that he did not resign. Rios Dep. 104:34-106:9; Ex. 39, Plaintiff Supp. Answer Interrog. 21.; Ex. 5, Phone Record; Ex. 21, Memo Dated 3/19/2021. 10 Ms. Marshall told Mr. Rios that it “doesn’t matter no more. Just call your supervisor to pick up your belongings and your tools.” Rios Dep. 104:10-21. She roughly hung up the phone. Mr. Rios was devastated: “From that day, everything change.” Rios Dep. 104:10-106:4; Ex. 39, Plaintiff Supp. Answer Interrog. 21. H. Mold-Rite immediately posted Mr. Rios’s position in the employee lunchroom. At 1:20 p.m. on March 19th, Ms. Marshall emailed Ms. Rinder and Mr. Lapikas advising them that she spoke with Mr. Rios and “he is aware that we are accepting his resignation effective immediately and he needs to contact Brian to set up a time to come get his tools. His last day would technically be yesterday 3/18/21.” Mr. Lapikas responded: “Thanks Becky. Freddie reached out and I told him to contact me on Monday and I will schedule a time.” Four minutes later, Ms. Marshall responded: “Job is posted in the lunchroom!” Ex. 28, Email String (authenticated at Lapikas Dep. 78-79). Still in shock after Ms. Marshall’s devasting call and believing that Mold-Rite had made its final decision, Mr. Rios sent a text message to Ms. Rinder just an hour later thanking her for 10 Under Ohio Evid. R. 801(D)(2), Ms. Marshall’s memo constitutes an admission by a party-opponent and is, thus, an exception to the hearsay rule and admissible. 11 Sandra Kurt, Summit County Clerk of Courts CV-2022-06-1871 O'BRIEN, TAMMY 09/05/2023 15:07:39 PM BRIO Page 18 of 44 having the opportunity to work at Mold-Rite and apologizing if he caused any problems. Mr. Rios also commented on his concern about possibly having cancer and that he was going through a lot in his life and didn’t know how to react sometimes. Ms. Rinder wished him luck, but Mr. Rios responded: “I really need my job but I had to understand.” Ex. G, Text Messages (authenticated at Rios Dep. 160). Mold-Rite touts these text messages as alleged confirmation that Mr. Rios resigned, but they do no such thing. When asked by Mold-Rite’s counsel to explain the “problems” referenced by Mr. Rios, he testified: “When Rebecca called me and let me know that they accept my resignation, that I was fired. Obviously, it was a problem, because they’re losing a good employee.” Rios Dep. 161:7-162:7. Mr. Rios further explained his comment about what he meant by “I don’t know how to react sometimes.” Mr. Rios explained: “The reaction of letting Brian know, trying to calm him down. Like I might have raised a voice, like, Stop. You need to stop. And the way I talked with human resources that day, March 19, letting her know.” Rios Dep. 163:8-22. Mr. Rios also explained what he meant by, “I really need my job but I had to understand.” Rios Dep. 167:6-168:16. Mr. Rios testified: I had to understand the decision they got, the call that I received from Marshall. What am I supposed to do? So I understand that you got to decide to fire me. Ms. Marshall said I was done. I said, What resignation? It was real quick. Because she didn’t even want – I couldn’t even explain myself. She just hang up on me Just hang up. I got to ask, What resignation? I did not resign from here. Why would I do that? At 10:00 in the morning I just finished talking to you raising my concern that what happened the day before with Brian Lapikas. And I feel like they just discriminate. Like I feel – I lost everything. Id. 12 Sandra Kurt, Summit County Clerk of Courts CV-2022-06-1871 O'BRIEN, TAMMY 09/05/2023 15:07:39 PM BRIO Page 19 of 44 I. When Mr. Rios returned to Mold-Rite to gather his personal belongings, Mr. Lapikas refused to allow Mr. Rios to meet with Human Resources and told Mr. Rios: “It doesn't matter no more. We had enough of you. We fired you.” Following Mr. Lapikas’s instructions, Mr. Rios returned to Mold-Rite on March 23, 2021, to pick up his belongings and toolbox. Lapikas Dep. 74:24-75:6; Ex. 39, Plaintiff Supp. Answer Interrog. 21. When he first arrived, Mr. Lapikas testified Mr. Rios asked “to get with HR.” Lapikas Dep. 75-76:1; Ex. 39 Plaintiff Supp. Answer Interrog. 21. But Mr. Lapikas responded: “I go, Freddie, it really ain’t going to do you any good. I go, I accept your resignation. Obviously you’re not happy here. It’s really not going to do you any good.” Id. When asked if Mr. Rios responded, Mr. Lapikas could not recall. Lapikas Dep. 76:8-11. Mr. Rios, however, recalled that conversation. Mr. Rios told Mr. Lapikas that he did not quit but that Mr. Lapikas had fired him. Rios Dep. 171:24-173:21. Mr. Lapikas told Plaintiff it did not matter anymore, “we’ve had enough of you.” Id. Q. When did Brian Lapikas tell you, you were fired from Mold-Rite? A. He actually -- when I went to pick up my toolbox, my belongings, I stop on the ramp and I request to talk to Carol Rinder, to Becky Marshall and himself, because he knew that I didn't quit. And I didn't put my resignation. Right there he got upset right away. That was on-site. He started raising his voice once again and told me, Doesn't matter. You said it by the phone. By the phone what? No, I didn't say it by the phone. I told you in your office he was making me feel like you want me to put in the two weeks' notice. I did not resign from here. It doesn't matter no more. We had enough of you. We fired you. Excuse me? I wish I had a recorder machine so I can prove what he just say to me. If I can prove to Carol or whoever was in charge at that moment, to everybody, I can prove that he actually admit -- and I told him, I said, So you admit that you fired me. It don't matter. You think whatever you want. Just hurry up and get your toolbox and get your stuff from the office and the locker room. 13 Sandra Kurt, Summit County Clerk of Courts CV-2022-06-1871 O'BRIEN, TAMMY 09/05/2023 15:07:39 PM BRIO Page 20 of 44 And I told him to just calm down. I'm no longer employee here. So you have to respect me. Whether I'm employee or not, everybody deserve respect. We are human beings, so . . . That was on March 23, 2021. Rios Dep. 172:2-173:4. J. Mold-Rite replaced Mr. Rios with a non-Hispanic employee. In June 2021, Mold-Rite replaced Mr. Rios with Mark Smith, a white, non-Hispanic male. Ex. 42, Def. Answer to Interrog. 9. 11 K. Mold-Rite continued giving raises after Mr. Rios’s termination. The employees in the Preventative Maintenance Department received multiple wage increases since Mold-Rite terminated Mr. Rios in March 2021. There was an increase in May 2021, and then additional increases in October and December 2021 and May 2022. Rinder Dep. 90:2-6; Lapikas Dep. 103:11-15; Ex. 43, Def. Answer to Interrog. 7. 12 At the time of his termination, Dan Mancini – another Preventative Maintenance Mechanic who is Caucasian/Non-Hispanic and had 9 years less seniority than Mr.