MEMORANDUM & ORDER
GORTON, United States District Judge.
This case involves claims of sexual harassment and retaliation brought by plaintiff Kristin Sauer ("Sauer" or "plaintiff") against defendant Belfor USA Group, Inc. ("Belfor" or "defendant") under both M.G.L. ch. 151B and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e
Plaintiff is a Massachusetts resident and a woman who worked for Belfor as a Warehouse Manager from May, 2011 through July, 2012. During that time her direct supervisor was Gerard McGonagle ("McGonagle"), the General Manager for defendant's Boston-area warehouse. Sauer avers that she also took orders from Corey
According to plaintiff, before she began working at Belfor at least two other women employed there had complained to the company about inappropriate conduct of a sexual nature by Massaro. Those women had filed public charges of discrimination by Massaro with the Massachusetts Commission Against Discrimination ("the MCAD"). Both women also alleged that McGonagle was aware of Massaro's misbehavior but failed to take any action to address it. In November, 2011, after the two complaints were filed, Belfor required Massaro to complete a "Supervisor Anti-Harassment" course. Unfortunately, plaintiff alleges, his conduct did not change after he completed the course.
Sauer avers that throughout her time working at Belfor Massaro made sexually explicit comments on a weekly basis to groups of employees, herself included. She also alleges that in April, 2012 Massaro stood outside her office and pantomimed cunnilingus through the window before entering the office. Plaintiff further claims that a technician who worked for defendant, Sharon Coto, also made similarly offensive sexual remarks and publically posted a sexually explicit status message from her work phone in May, 2012. Plaintiff reported that incident to McGonagle, who told her that he would address the situation.
According to plaintiff, after she reported Coto's behavior, Coto began ignoring her instructions and speaking to her in a hostile manner. Plaintiff reiterated her concerns to McGonagle in a second meeting on May 10, 2012. At that time she also reported Coto's recent behavior toward her as well as Massaro's sexually explicit conduct and comments. After plaintiff's conversation with McGonagle he postponed her annual performance review, which was scheduled for the next day.
When no apparent action was taken to address her concerns, Sauer took her complaints to Diane Barbour, a Human Resources Manager in defendant's corporate office, on May 16, 2012. Thereafter, McGonagle requested that Sauer accompany him on a car ride outside the office during which he allegedly instructed her not to make any further complaints about sexual harassment because her allegations could cause Massaro to be fired.
Plaintiff contends that Massaro subsequently began acting more aggressive and hostile toward her, yelling her at least once per week. Other employees also began reacting negatively toward her by questioning her tone when she gave simple instructions. In late June, 2012 Massaro's stepfather, Ralph Bustin, was hired as the Production Manager for the warehouse. Plaintiff alleges that beginning on his first day of work he attempted to intimidate her by yelling at her and slamming doors. Bustin also instructed an employee whom plaintiff had assigned to guard the warehouse to complete a personal errand for him, leaving the warehouse unguarded.
Such treatment allegedly caused plaintiff severe anxiety and a serious worsening of her psoriasis for which she had to receive phototherapy treatments. The week after Bustin caused the warehouse to be left unguarded, Sauer resigned her position but her medical condition allegedly continued to worsen even after her resignation.
In September, 2012 Sauer filed charges against defendant with the MCAD and the Equal Employment Opportunity Commission ("the EEOC"). Defendant responded to the MCAD claim by filing a "position statement" claiming that it had thoroughly
On May 21, 2015 plaintiff filed this lawsuit, alleging gender discrimination, sexual harassment and retaliation in violation of M.G.L. ch. 151B and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e
Motion to Dismiss
Belfor moves the Court to dismiss the complaint in its entirety both for failure to exhaust administrative remedies and for failure to state a claim. Plaintiff opposes the motion with respect to her claims under M.G.L. ch. 151B but waives her claims under Title VII of the Civil Rights Act. Consequently, plaintiff's federal claims are dismissed and the Court's analysis will address only the claims brought under Massachusetts law. Although the case was removed to federal court on the basis of federal question jurisdiction, the Court retains supplemental jurisdiction over Sauer's remaining state claims pursuant to 28 U.S.C. § 1367.
A. Legal Standard
To survive a motion to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6), a complaint must contain "sufficient factual matter" to state a claim for relief that is actionable as a matter of law and "plausible on its face."
When rendering that determination, a court may not look beyond the facts alleged in the complaint, documents incorporated by reference therein and facts susceptible to judicial notice.
1. Failure to Exhaust Administrative Remedies
Belfor first argues that Sauer's claims should be dismissed because the complaint does not allege that she exhausted her administrative remedies with the MCAD and the EEOC after filing complaints with those agencies. While such exhaustion is required for Title VII discrimination claims filed with the EEOC,
2. Failure to State a Claim for Relief
Plaintiff brings claims for sex discrimination and retaliation pursuant to three provision of M.G.L. ch. 151B. The first, § 4(1), makes it illegal, in relevant part,
M.G.L. ch. 151B, § 4(1). The statute defines discrimination on the basis of sex to include sexual harassment.
Finally, § 4(4) bans employer retaliation by making it illegal
Plaintiff bases her claims for sex discrimination and retaliation upon a hostile work environment theory. To establish a hostile work environment claim based on either sex discrimination or retaliation, plaintiff must allege that 1) she was subject to harassment, 2) the harassment was based on either gender or retaliation, depending on the claim, 3) the harassment was sufficiently severe or pervasive as to materially alter the conditions of her employment, and 4) the employer is liable for the harassment.
a. Application of Federal Law
As an initial matter, defendant contends that although plaintiff has abandoned her Title VII claims, the Court should still apply federal law to her claims. While Belfor is correct that Massachusetts state courts routinely examine Title VII case law when interpreting M.G.L. ch. 151B,
b. Aggregation of Discrimination Claims
Although the SJC does not appear to have addressed the issue, the United States Court of Appeals for the First Circuit has held that claims for sex discrimination and retaliation pursuant to Chapter 151B may be combined to support a plaintiff's claim only when the discriminatory acts "emanate from the same discriminatory animus."
Plaintiff correctly points to cases in which the First Circuit and Massachusetts courts have permitted combination discrimination claims. Such claims have, however, generally involved discrimination based upon a combination of identity characteristics (i.e. sex and race) which intersected to create a discrete protected group, rather than discrimination based upon the combination of a protected characteristic and protected conduct.
Plaintiff also argues that a combination claim should be permitted because the two kinds of harassment she experienced are "inherently tied" to one another. As another session of this Court has noted
c. Gender Discrimination
1. Harassment Based on Sex
Belfor first challenges plaintiff's sex discrimination claim on the basis that she has not alleged that any of the conduct of
Plaintiff responds that the statute explicitly defines its ban on sexual harassment to include "verbal or physical conduct of a sexual nature" without any reference to motive.
On this point both plaintiff and defendant are correct but only because they base their arguments on different prohibitions of Chapter 151B. Plaintiff is correct that she need not allege a discriminatory animus in order to succeed on her claim under M.G.L. ch. 151B, § 4(16A), which specifically bans sexual harassment. By contrast, § 4(1), the provisions which prohibits gender discrimination more generally, only proscribes discriminatory conduct which is engaged in "because of the [plaintiff's] sex." The allegation of a discriminatory animus is, therefore, required to succeed on a claim dependent upon that provision.
Plaintiff has alleged in her complaint that Massaro and Coto harassed her "because of her sex." Given that much of the alleged conduct was directed not just at Sauer but also at other colleagues, that claim is not well-supported by the complaint. Nonetheless, the circumstances of plaintiff's alleged harassment render the allegation at least "plausible on its face."
2. Severe or Pervasive Harassment
To state a claim for a hostile work environment, plaintiff must allege harassment that is
Sauer has alleged that she was subjected to crude and offensive sexual conduct on a weekly basis over the course of six months. She claims that this conduct was intimidating, that it made her feel humiliated, that it interfered with her ability to do her work. She also avers that it caused her significant anxiety and distress leading to a worsening of her medical condition, "thus underscoring the negative effect on her work performance."
The multiple incidents Sauer describes cannot be taken in isolation but rather must be viewed as whole.
3. Employer Liability
Under Massachusetts law, an employer can be subject to liability for a hostile work environment under two circumstances. First, the employer is strictly liable if the acts of harassment were committed by a supervisor who is "vested with authority."
Plaintiff has alleged that Massaro was the Project Manager for the company's Boston-area warehouse and that he supervised up to 50 employees in the course of his job. She also claims that she took orders from Massaro as part of her work. Defendant responds that it is not vicariously liable for Massaro's actions because he did not have the authority to take "tangible employment actions" against Sauer, citing
Chapter 151B is a separate statute from Title VII and was enacted by a different legislature. The statutory text contains no requirement that a direct supervisory relationship exist between the harasser and the victim for liability to attach but rather proscribes gender discrimination against "any individual" and sexual harassment of "any employee."
Plaintiff does not, however, allege that Coto had supervisory authority over her. Accordingly, to determine whether defendant is liable for Coto's actions we proceed to the second theory under which employers may be liable pursuant to Chapter 151B. The statute imposes liability on an employer for acts of co-employees only when the employer
Sauer has alleged that she provided Belfor with ample notice of the alleged harassing conduct by meeting with McGonagle, her supervisor, at least three times as well as by notifying a manager in the corporate human resources department. Plaintiff and defendant dispute whether the MCAD complaints filed by two other Belfor employees could also have placed Belfor on notice of the hostile work environment created by Massaro's sexualized conduct. The Court need not resolve this issue, however, because plaintiff has adequately alleged that she personally notified Belfor of the harassment.
Plaintiff has also adequately asserted that Belfor did not take "prompt and appropriate action" in response to her complaints. While acknowledging that Coto was told she would be suspended without pay for five days, Sauer states that such suspension had not yet occurred by the time she resigned in July. Plaintiff further avers that defendant did not address Massaro's behavior. Defendant responds that it required Massaro to undergo sexual harassment training and that it informed Massaro that further reports of harassment would lead to the termination of his employment.
Sauer claims that the training actually occurred before she complained of Massaro's behavior and in response to previous complaints about Massaro by other employees. Furthermore, it is unclear whether Massaro was threatened with termination before or after Sauer's complaint. Belfor's threat does not, therefore, necessarily constitute an action in response to plaintiff's complaint. Accordingly, plaintiff has sufficiently alleged that defendant failed promptly to take appropriate action when it was notified of harassing conduct and she has, therefore, met the pleading standard with respect to employer liability.
1. Severe or Pervasive Harassment
The standard for demonstrating severe or pervasive retaliatory harassment is the same as that discussed above in the context of sexual harassment. Plaintiff has alleged that, in response to her complaints about the alleged sexual harassment, she
Even accounting for any relationship issues which may have pre-existed between plaintiff and Coto, plaintiff has sufficiently alleged conduct that goes beyond the ordinary "unpleasantness" that results when one complains about a co-worker's conduct.
2. Employer Liability
Plaintiff has also alleged a sufficient basis for employer liability for retaliatory harassment. As discussed above, she has stated a claim that Belfor is vicariously liable for Massaro's acts because Massaro had apparent supervisory authority over Sauer. Furthermore, Belfor is indisputably liable for McGonagle's actions because McGonagle was Sauer's direct supervisor. Sauer has also stated a plausible claim that defendant is liable for Bustin's conduct given that he was a part of management with supervisory duties at least over some employees.
Finally, plaintiff has alleged that she reported Coto's retaliatory conduct to McGonagle, putting Belfor on notice, and that defendant took no substantive action in response to her complaint. Taken together, these allegations show that defendant, via its agents, had adequate notice of the retaliatory conduct and failed to address it.
e. Constructive Discharge
To state a claim for constructive discharge, plaintiff must allege that she
Plaintiff has alleged that both Massaro, through his sexual pantomiming and subsequent entrance into her office, and McGonagle, through his act of making her leave the warehouse with him before he pressured her to withdraw her complaint, directed physically intimidating conduct at her. Bustin also treated plaintiff aggressively, yelling and slamming doors. She has alleged that such conduct, as well as defendant's failure to address it, caused her anxiety, exacerbated her psoriasis and made her so "sick to her stomach" that she
The described circumstances are not as dire as the abuse imposed upon some other plaintiffs.
f. Punitive Damages
Finally, Belfor asks the Court to strike plaintiff's request for punitive damages. The SJC has held that an award of punitive damages in the context of a Chapter 151B claim is appropriate only where the defendant's conduct is "outrageous or egregious."
Here, plaintiff has alleged that she endured conduct creating a hostile work environment for at least six months, that the conduct was directed at her because of her gender, that she reported the conduct and that defendant responded inadequately, that she suffered retaliatory behavior from defendant's supervisors due to her reporting of the conduct and that she suffered harm through constructive discharge and a worsening of her medical condition. It is not up to the Court at this stage to determine whether plaintiff's allegations are persuasive enough to warrant her ultimate success. Plaintiff has alleged sufficient facts to state a claim for punitive damages.
For the foregoing reasons,