Delia v. Verizon Communications Inc.

United States Court of Appeals
For the First Circuit

No. 09-2667

CAROLINE DELIA,

Plaintiff, Appellant,

v.

VERIZON COMMUNICATIONS INC.,

Defendant, Appellee,

VERIZON INFORMATION SERVICES INC.; VERIZON SUPERPAGES;
IDEARC MEDIA CORP.; VERIZON DIRECTORIES SERVICES - EAST INC.,
n/k/a Idearc Media Services - East Inc.; MALVERN SMALLWOOD;

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before

Lynch, Chief Judge,
Boudin and Howard, Circuit Judges.

John A. Kiernan, with whom Bonner Kiernan Trebach & Crociata,
LLP was on brief, for appellant.
Windy R. Catino, with whom John D. Hughes, Thomas H. Winter
and Edwards Angell Palmer & Dodge, LLP were on brief, for appellee.

August 24, 2011
 HOWARD, Circuit Judge. This employment discrimination

case presents a threshold question: Was plaintiff-appellant

Caroline DeLia the defendant's employee? The district court

answered in the negative and granted summary judgment to defendant-

appellee Verizon Communications, Inc. on DeLia's state and federal

statutory claims. The court also granted summary judgment to

Verizon on various common law claims. After careful review of the

record, we affirm.

I.

The basis of this lawsuit was Caroline DeLia's claim that

she was sexually harassed in the workplace by a co-worker, and that

her employer responded inadequately. Her complaint names as

defendants Verizon Communications Inc., Verizon Directories

Services - East Inc., n/k/a Idearc Media Services - East Inc.

("Idearc"), and the co-worker, Malvern Smallwood. The complaint

alleges sexual harassment, in violation of Mass. Gen. Laws ("MGL")

ch. 151(B) and Title VII, 42 U.S.C. § 2000e-2; retaliation, in

violation of Title VII; violation of the Americans with

Disabilities Act; and state common law claims of negligent and

intentional infliction of emotional distress, negligent failure to

provide a safe working environment, and breach of contract. Most

of the counts were asserted against all defendants; the remainder

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only against Idearc and Verizon Communications Inc. ("Verizon").1

Verizon is the only defendant in this appeal.

II.

We first sketch the background facts, which are

undisputed unless otherwise indicated.2 For roughly sixteen years,

DeLia worked as an artist for Idearc. Known during almost all of

DeLia's time of employment as Verizon Directories Services - East

Inc., Idearc was a wholly-owned subsidiary of Verizon Directories

Corp., which was itself a subsidiary of GTE Corp., itself a

subsidiary of defendant Verizon. During the relevant time period,

DeLia was based in Idearc's Middleton, Massachusetts, office, where

she was involved in the production of art for advertisements to be

included in telephone directories.

Defendant Smallwood was DeLia's supervisor in the

Middleton office. DeLia worked in a cubicle next to Smallwood's

1
We note a few housekeeping details. First, this suit was
originally filed in Massachusetts Superior Court in January 2008,
and removed to federal court shortly thereafter. Next, the
operative Complaint is DeLia's Third Amended Complaint, which, for
simplicity's sake, we refer to as "the complaint." Also, Verizon
Directories Services - East Inc. changed its name to Idearc in
October 2006. We use "Idearc" to avoid confusion. Finally, in
April 2009, during the pendency of what had originally been a joint
motion for summary judgment, Idearc filed a voluntary petition for
bankruptcy and the case against it was stayed. See 11 U.S.C. §
362(a).
2
We deem many of the facts recounted here as undisputed
because DeLia disclaimed any knowledge about certain subjects,
among them the corporate relationships of Verizon and its
subsidiaries, including Idearc.

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office. She alleged that over a period of several months in 2005

Smallwood engaged in several acts of harassment. The final alleged

incident took place on September 12, 2005, upon Smallwood's return

from vacation. In response to DeLia's handling of a customer

problem while he was away, Smallwood screamed at her in a

threatening way, and berated her such that she feared for her

safety and left work. DeLia never returned to the Idearc office.

The next day, DeLia informed her union representative and

her department's supervising manager that she could not go to the

office because she feared Smallwood. Following an investigation by

its human resource and security departments, Idearc was unable to

substantiate DeLia's complaint and requested that she return to

work. On October 11, 2005, DeLia reported Smallwood's behavior to

Verizon's employment and ethics hotline. This triggered an

investigation conducted by Verizon's Equal Employment Opportunity

("EEO") personnel, who conducted interviews, reported their

findings, and made recommendations for corrective action. The EEO

investigators determined that Smallwood had engaged in

unprofessional conduct, albeit not sexual harassment. Idearc

issued Smallwood a final warning, notifying him that further

unprofessional conduct would result in his termination.3

3
Idearc fired Smallwood after learning that he had
transgressed the final warning by making inappropriate comments to
a male co-worker.

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 Various attempts at finding DeLia suitable alternative

working arrangements failed. In October 2005 she began receiving

short-term disability benefits. When those expired one year later,

DeLia began receiving long-term disability benefits. In addition,

in October 2006, DeLia applied for Social Security Disability

benefits. The application was approved in early 2007, effective

March 2006. Both the long-term disability and Social Security

approvals were premised on DeLia's demonstration that she had been

unable to work since September 12, 2005. The final piece of the

historical puzzle is that in November 2005, DeLia filed a charge

with the Massachusetts Commission Against Discrimination (MCAD) in

which she alleged a hostile work environment, sexual harassment and

retaliation under state and federal employment laws. DeLia

eventually removed the matter from the MCAD in order to file this

action in state court. Verizon seasonably removed the action to

federal court and subsequently moved for summary judgment. The

district court granted Verizon's motion and this timely appeal

followed.4

III.

We review the district court's grant of summary judgment

de novo. Roberts v. Delta Air Lines, Inc., 599 F.3d 73, 77 (1st

4
After granting the motion, the district court also granted
Verizon's motion, under Fed. R. Civ. P. 54(b), for entry of a
separate and final judgment. Thus, only the claims against Verizon
are before us on appeal.

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Cir. 2010). Summary judgment is proper where there is no genuine

issue of material fact and the moving party is entitled to judgment

as a matter of law. Fed. R. Civ. P. 56(c). As did the district

court, we must take the record evidence in the light most favorable

to DeLia, against whom summary judgment was entered, and draw all

reasonable inferences in her favor. Farmers Ins. Exch. v. RNK,

Inc., 632 F.3d 777, 779-80 (1st Cir. 2011). "A properly supported

motion for summary judgment cannot be defeated by relying upon

conclusory allegations, improbable references, acrimonious

invective, or rank speculation." Ahearn v. Shinseki, 629 F.3d 49,

54 (1st Cir. 2010). Against this backdrop, we analyze DeLia's

substantive legal claims.

A. Sexual Harassment, Retaliation & ADA Violation

DeLia claims that Smallwood's actions constituted sexual

harassment for which Verizon is liable, asserting claims under both

federal and Massachusetts law. 42 U.S.C. § 2000e; MGL ch. 151B.

Verizon argues that it cannot be held liable under either statute

because it is not DeLia’s "employer," within the meaning of either

statute. The district court agreed, and so do we.

Both Title VII and chapter 151B protect "employees" from

harassment. See Alberty-Velez v. Corporacion de Puerto Rico Para

La Difusion Publica, 361 F.3d 1, 6 (1st Cir. 2004) (Title VII);

Modern Continental/Obayashi v. Mass. Comm'n Against Discrimination,

833 N.E. 2d 1130, 1138 (Mass. 2005) (ch. 151B). But neither the

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federal nor state statutes contain definitions of "employee" that

are of much use here. See Nationwide Mut. Ins. Co. v. Darden, 503

U.S. 318, 323 (1992) (noting that statutory definition of

"employee" in Title VII is "completely circular and explains

nothing"); Comey v. Hill, 438 N.E. 2d 811, 814 (Mass. 1982)

(recognizing that ch. 151B defines "'employer' and 'employee' only

in the negative").5

We have construed Supreme Court decisions as establishing

the proposition that "the terms 'employer' and 'employee' under

Title VII are to be defined with reference to [ ] common law agency

principles." Lopez v. Massachusetts, 588 F.3d 69, 83 (1st Cir.

2009). As a further refinement, we have held that "the common-law

element of control [by the putative employer over the putative

employee] is the principal guidepost that should be followed . . .

." Id. at 84-85. Similarly, we have noted that Massachusetts

cases have determined that an employer can be defined by "'who has

direction and control of the employee and to whom . . . [the

employee] owe[s] obedience in respect of the performance of his

work.'" Roberts, 599 F.3d at 78 (1st Cir. 2010) (quoting Fleming

5
Title VII defines "employee" as an "individual employed by an
employer" and an "employer" as a "person who is engaged in an
industry affecting commerce who employs fifteen or more persons .
. . ." 42 U.S.C. § 2000e(b), 2000e(f). Chapter 151B lists
several types of entities and individuals who are not "employers"
or "employees," respectively. MGL ch. 151B § 1(5), (6).

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v. Shaheen Bros., Inc., 881 N.E. 2d 1143, 1147 (Mass. App. Ct.

2008)).

In this case, DeLia claims there are "multiple" issues of

material fact regarding Verizon's control of her workplace. First,

citing an affidavit that she submitted to the district court, DeLia

claims "she was an employee of Verizon for 16 years." Such a

conclusory statement is of little utility in trying to determine

the nature and extent of the parties' legal relationship. We do

not doubt that DeLia may have thought Verizon was her employer, but

her subjective belief alone is insufficient to create a triable

issue of material fact. Cf. Wilson v. Moulison N. Corp., 639 F.3d

1, 10 (1st Cir. 2011) (rejecting plaintiff's subjective belief that

co-worker was her supervisor, upon which claim against her employer

was based); Lee-Crespo v. Schering-Plough Del Caribe Inc., 354 F.3d

34, 45 (1st Cir. 2003) (observing that, in constructive discharge

case, "an employee's subjective perceptions [of working conditions]

do not govern").

Next, DeLia premises an employment relationship with

Verizon on her assertion that she worked in Verizon's Middleton,

Massachusetts, office and that her "key card," which electronically

controlled access to the office, bore Verizon's logo. But, as to

the building, DeLia does not dispute that it was Idearc's office,

her own subjective belief notwithstanding. Nor is the logo on the

key card -- indicating that the card itself is property of Verizon

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-- probative of an employment relationship with Verizon. While the

key may literally "control" access to the building, it bears no

relevance to the type of control necessary to establish the

identity of DeLia's employer. See Camacho v. P.R. Ports Auth., 369

F.3d 570, 576-78 (1st Cir. 2004) (rejecting claim that Port

Authority was harbor pilots' employer even though it issued pilots'

licenses because it "did not behave as pilots' employer in any

practical sense").

DeLia next claims that Verizon's "Code of Business

Conduct" ("the Code") established various terms of her employment,

and thus makes her a Verizon employee. This claim does not

withstand serious scrutiny. First, the Code explicitly states that

"Verizon does not supervise or control the employment terms and

conditions of its subsidiaries' employees." Next, the introductory

text of the Code fails to support the argument presented. Under a

section headed "Use of 'Verizon,'" the Code states, "Throughout

this code, 'Verizon' refers to all subsidiaries and affiliates of

Verizon Communications Inc., except Verizon Wireless (which has its

own code)." Thus, whatever "terms of employment" the Code may be

said to establish, the above language suggests nothing more than

that those terms are just as likely to have been established by the

subsidiary (in this case, Idearc) as by Verizon.

Additionally, DeLia points to the undisputed fact that

Verizon administers her benefits as further support for her claim

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that Verizon is her employer. In so doing, she relies on Alberty-

Velez, in which we noted that providing employee benefits is an

indicum of employee status. 361 F.3d at 7. This reliance is

misplaced, however, because in Alberty-Velez the fact that the

defendant did not pay benefits to the plaintiff suggested that the

plaintiff was not an employee. Id. at 8. The same is true here.

While Verizon administered (but did not fund) DeLia's benefits, she

was paid by Idearc, which maintained its own accounts, records and

payroll, and which issued DeLia an annual W-2 form. See Camacho,

369 F.3d at 577 (rejecting claim that entity was plaintiffs'

employer where it did not provide benefits and did not treat

plaintiffs as employees for tax purposes).6

DeLia's final contention is that a congratulatory letter

that she received from Verizon's President and CEO in appreciation

of her 15 years of service is an indication of Verizon's "control"

because a fact-finder could determine that the authority to

congratulate is co-extensive with the authority to terminate. She

provides no record support for this assertion, however.

DeLia argues, fairly enough, that her evidence should not

be considered piecemeal. See Dykes v. DePuy, Inc., 140 F.3d 31, 37

(1st Cir. 1998) ("all of the incidents of the relationship must be

assessed and weighted with no one factor being decisive" (quoting

6
Although, as DeLia points out, her pay stubs contain the
Verizon logo, the name "Verizon Dir. Services - East Inc."
(Idearc's former name) appears above the "authorized signature."

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Darden, 503 U.S. at 324))). But even taken together, DeLia has

failed to demonstrate that Verizon had any control over the "manner

and means" by which she performed her job. Alberty-Velez, 361 F.3d

at 7.

Our conclusion that Verizon is not DeLia's employer is

also fatal to her claim for retaliation under Title VII.

Similarly, her ADA claim that Verizon did not accommodate the

disability brought about by her workplace experience suffers from

the same legal defect. See Faiola v. APCO Graphics, Inc., 629 F.3d

43, 47 (1st Cir. 2010) (noting that accommodation claims requires

plaintiff to establish that employer knew of her disability but did

not reasonably accommodate it upon a request).

B. Infliction of Emotional Distress

DeLia next argues that Verizon is responsible for

intentional as well as negligent infliction of emotional distress.7

These claims are waived. Although DeLia's opening brief includes

a section entitled "Verizon is Liable for its Independent Acts of

Negligence," there is nothing of consequence in that section

devoted to her emotional distress claims.8 Instead, the entire

7
DeLia necessarily asserts these claims as an alternative to
her statutory claims, as they would be barred by Massachusetts'
workers compensation law if Verizon were her employer. Doe v.
Purity Supreme, Inc., 664 N.E.2d 815, 818 (Mass. 1996).
8
One sentence in DeLia's opening brief states that Verizon's
negligent investigation caused her "economic and emotional injury."
No more is said about the emotional distress claims.

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section addresses only the efficacy of Verizon's investigation,

which may only have some bearing on a different count. Even in her

reply brief, after Verizon presented its waiver argument, Delia

states only that "they have been preserved for appellate review by

this Court as they were briefed by Verizon in its Motions for

Summary Judgment . . . ." Suffice it to say, whether a claim was

raised below is not the issue. An appellant bears the "obligation

to spell out its arguments squarely and distinctly, or else forever

hold its peace." Harriman v. Hancock Cnty., 627 F.3d 22, 28 (1st

Cir. 2010) (internal quotation marks omitted) (citing United States

v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues adverted to

in a perfunctory manner, unaccompanied by some effort at developed

argumentation, are deemed waived.")).9

C. Failure to Provide a Safe Working Environment

Although originally styled as an allegation that Verizon

negligently failed to provide a safe working environment,

specifically, one free from harassment, DeLia's claim now appears

to be that the Verizon EEO investigation was negligent. Although

it is not entirely clear either that this theory was presented to

the district court or that it is actionable, and the appellate

9
This is not to say that raising the issue only in reply would
have been sufficient. See Braintree Labs., Inc. v. Citigroup
Global Mkts. Inc., 622 F.3d 36, 44 (1st Cir. 2010) ("The slight
development in the reply brief does nothing to help matters, as
arguments raised there for the first time come too late to be
preserved on appeal.").

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briefing is sparse, the theory stumbles in any event. First, DeLia

fails to articulate how Verizon's investigation was negligent. Her

brief states that four witnesses whom she disclosed were not

interviewed by Idearc, but she then notes that they were

interviewed by Verizon. She expounds in her reply brief, noting

that the four female witnesses corroborated her version of events,

that Smallwood issued a denial, and that she was told to return to

work in close proximity to Smallwood. But she offers no argument

as to how Verizon should have investigated differently.

Next, to the extent that the appellant takes issue with

the resulting discipline meted out (or lack thereof), she

nevertheless concedes in her brief that Idearc, not Verizon,

responded to the information obtained during the investigation and

imposed the corrective measures that she deems insufficient. Her

claim thus fails on this ground as well.

Finally, the record indicates that DeLia did not contact

Verizon's EEO until approximately one month after she left her job,

yet she informed both her disability carrier and the Social

Security Administration that she had earlier become permanently

disabled as of her last day at work, September 12, 2005. Such a

temporal landscape belies any connection between Verizon's

allegedly negligent investigation and injury to DeLia.

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D. Breach of Contract

DeLia claims that the Code of Business Conduct, discussed

earlier, formed a contract which Verizon breached by failing to

provide an appropriate response to her complaint; a work

environment free from harassment; "reasonable accommodation" as

required by law; a safe and healthy work environment; and a

workplace free of threatening or hostile behavior.

Under Massachusetts law, an employee handbook can, under

some circumstances, form a binding contract. O'Brien v. New

England Tel. & Tel. Co., 664 N.E.2d 843 (Mass. 1996). But DeLia's

claim of breach of contract suffers from the same fatal flaw as

several of her other claims. Even assuming that the Code of

Conduct formed a contract, and that certain contractual rights were

breached, the alleged breach was committed by Idearc, not Verizon.

DeLia provides no support for her apparent theory that an employee

can be a party to an employment contract with an entity other than

her employer. Therefore, her breach of contract claim fails as a

matter of law.

IV.

The judgment of the district court is affirmed.

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