United States Court of Appeals
For the First Circuit
No. 04-1719
CHRISTI NOVIELLO,
Plaintiff, Appellant,
v.
CITY OF BOSTON,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Boudin, Chief Judge,
Selya, Circuit Judge,
and Cyr, Senior Circuit Judge.
Robert S. Mantell, with whom Kevin G. Powers and Rodgers,
Powers & Schwartz LLP were on brief, for appellant.
Karen A. Glasgow, Assistant Corporation Counsel, with whom
Merita A. Hopkins, Corporation Counsel, was on brief, for appellee.
February 16, 2005
SELYA, Circuit Judge. This discrimination case, brought
under both federal and state law, involves charges of sexual and
retaliatory harassment. Faced with a plethora of issues, the
district court entered summary judgment for the defendant. On
appeal, we must sort out which of the plaintiff's claims are
timely; address whether her timeous claims for retaliatory
harassment, cast in the form of a hostile work environment, are
legally cognizable and sufficiently supported; grapple with her one
timely claim of sexual harassment, also cast in the form of a
hostile work environment; and discuss various aspects of the case
relating to employer liability. After careful consideration of
these variegated issues, we conclude (i) that the district court
erred in granting summary judgment on the retaliation claims, as
those claims are timely, cognizable, and supported by sufficient
evidence, but (ii) that the district court correctly entered
summary judgment on the sexual harassment claims: despite the
attempt to recast them in a hostile work environment format, the
state-law claim is time-barred and its federal analogue runs afoul
of an inexpugnable affirmative defense — the employer's swift,
effective, and non-negligent response to the underlying incident.
Accordingly, we vacate in part, affirm in part, and remand for
further proceedings.
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I. BACKGROUND
Because this appeal follows a grant of summary judgment,
we rehearse the facts in the light most favorable to the nonmoving
party (here, the plaintiff), consistent with record support.
Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990). That
approach entails, among other things, giving the nonmovant the
benefit of all reasonable inferences that those facts will bear.
Id.
A. The Facts.
While on the job on September 11, 1999, plaintiff-
appellant Christi Noviello, a parking enforcement officer for the
city of Boston, was riding in a city-owned van with her immediate
superior, José Ortiz. After first announcing his intentions, Ortiz
forcibly unhooked the plaintiff's brassière, ripped it from her
body, hung it on the van's outside mirror, and bellowed a crude
sexual remark to a fellow employee on the street. Over the next
few days, the plaintiff reported the incident to a number of
municipal hierarchs. They promptly investigated the matter,
suspended Ortiz a week after the incident, and ultimately cashiered
him.
Soon after Ortiz's banishment, coworkers began to subject
the plaintiff to sundry indignities, or, in the words of the
employees themselves, to "bust[] her chops." The record contains
evidence of the following incidents (the plaintiff recounts others,
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but we have omitted those that lack any conceivable probative
value):
C On October 5, 1999, Barbara DiGirolamo
accused the plaintiff of throwing a
tampon at a coworker. The charge
fizzled out after several witnesses
attested to its falsity.
C On October 26, 1999, a coworker shouted
that the plaintiff was the "scum of the
earth." Another loudly proclaimed, in
reference to the plaintiff, "I smell a
rat, do you smell a rat?" Yet another
lamented that the parking enforcement
officers' "good" supervisor had been
drummed out of office. The plaintiff
complained to a senior supervisor,
Irene Landry, who took no action.
C On December 8, 1999, a new employee
told the plaintiff that although he had
no problem with her, other coworkers
had advised him to "stay away" because
she was "trouble."
C On December 9, 1999, the entire
department ostracized the plaintiff
during a holiday party. Consequently,
she sat alone for two hours. A deputy
commissioner saw her sitting alone,
acknowledged the ostracism, and
suggested that she change her shift.
The plaintiff took the advice, but the
harassment continued.
C On December 16, 1999, DiGirolamo
informed the plaintiff that all
personnel on her shift had to take
their dinner breaks separately. The
plaintiff later learned that this was
not true and that she was the only
person who had been told to eat alone.
C On December 21, 1999, Bernadette
Gilardi announced in front of the
plaintiff that she would be taking up a
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collection for Ortiz. She proceeded to
do so during working hours.
C On December 23, 1999, the plaintiff
attended a holiday party on the
department's premises. The collection
for Ortiz was in full flower.
Coworkers waved the money they had
amassed in the plaintiff's face,
crowing "look how much money we have
collected!" One of the plaintiff's
superiors, Kathy O'Brien, advised her
to "go to the office" about the
harassment. There is no evidence,
however, that O'Brien intervened to
stop the ongoing conduct.
C On December 30, 1999, the plaintiff met
with a high-level supervisor, Kathleen
Moccia. She described the toll that
the harassment was taking on her and
asked Moccia why management was
tolerating the harassment. Moccia did
not intervene. Moreover, she stated
that she did not think that the
harassment would stop; rather, she
forecast that it would become "ten
times worse" with the plaintiff's
recent shift change.
C In January of 2000, a tow truck driver
told the plaintiff that Gilardi had
begun circulating a petition urging
management to dismiss the plaintiff,
but that he had refused to sign it.
C During a snowstorm that month, Gilardi
refused to pick up the plaintiff from
her route. Although that refusal, duly
reported, was in derogation of
departmental policy, there is no
evidence that Gilardi was sanctioned or
punished in any way.
On March 6, 2000, the plaintiff filed a complaint with
the Massachusetts Commission Against Discrimination (MCAD) and the
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federal Equal Employment Opportunity Commission (EEOC). The
harassment nonetheless persisted. Two examples follow:
C In February of 2001, the plaintiff
approached a van that was used to
transport parking enforcement officers
to their posts. Gilardi was at the
wheel. When she saw the plaintiff
approach, she closed the van's door,
ignored the plaintiff's tapping on the
window, and drove away, nearly striking
the plaintiff. The plaintiff reported
the incident and Gilardi admitted that
she had seen the plaintiff but
nonetheless had pulled away. There is
no evidence that Gilardi was
disciplined for this conduct.
C In March of 2001, Gilardi told a
coworker, in reference to Ortiz's
firing, that the plaintiff's "payday"
was drawing near.
The plaintiff alleges that, as a result of this steady
stream of what she characterizes as retaliatory harassment, she
lost weight, experienced nightmares and panic attacks, became
anxious at work, and was forced to seek medical care.
B. Travel of the Case.
On October 16, 2002, the plaintiff requested withdrawal
of her administrative complaint in order to pave the way for the
institution of suit. The MCAD obliged and the plaintiff commenced
a civil action against the city in a Massachusetts state court.
Her complaint, filed on November 1, 2002, charged the city with
violations of Mass. Gen. Laws ch. 151B, § 4. On April 25, 2003,
the plaintiff received a right-to-sue letter from the EEOC. One
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month later, she amended her state court complaint to include Title
VII claims. See 42 U.S.C. §§ 2000e-2, e-3. At that point, the
city removed the case to the federal district court. See 28 U.S.C.
§§ 1331, 1441.
In due course, the city moved for summary judgment under
Fed. R. Civ. P. 56, arguing (i) that most of the plaintiff's claims
under chapter 151B were time-barred; (ii) that those which remained
were not actionable; (iii) that as to the federal retaliation
claims, the evidence, even when interpreted in the light most
favorable to the plaintiff, did not reveal any actionable conduct;
and (iv) that the city could not be held liable for Ortiz's
behavior because it had taken prompt and effective remedial action.
The plaintiff opposed the motion. Ruling ore sponte, the district
court granted summary judgment for the city. The court concluded
that there was no timely sexual harassment claim under chapter 151B
and that the city's response to the Ortiz incident foreclosed any
sexual harassment claim under Title VII. As to the retaliation
claims, the court acknowledged that, viewing the proof in the
requisite light, the plaintiff had been subjected to a "series of
distasteful, unpleasant, non-empathetic acts . . . by a series of
subordinate officials." Nevertheless, the court concluded that the
retaliation claims must fail because none of the individual
incidents was an "adverse employment action[]" that bore directly
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upon the terms and conditions of the plaintiff's employment. This
timely appeal followed.
II. ANALYSIS
The plaintiff's suit implicates both federal and state
anti-discrimination and anti-retaliation statues. It requires us
to confront — and resolve — two questions of first impression in
this circuit.
As framed, all of the plaintiff's claims are dependent
upon her allegation that the city tolerated a hostile work
environment.1 In general, a plaintiff may recover on such a theory
when "the workplace is permeated with discriminatory intimidation,
ridicule, and insult that is sufficiently severe or pervasive to
alter the conditions of the victim's employment and create an
abusive working environment." Harris v. Forklift Sys., Inc., 510
U.S. 17, 21 (1993) (citations and internal quotation marks
omitted); accord O'Rourke v. City of Providence, 235 F.3d 713, 728
(1st Cir. 2001); Muzzy v. Cahillane Motors, Inc., 749 N.E.2d 691,
694 (Mass. 2001). The plaintiff's hostile work environment claims
are of two types.
Most hostile work environments are bred from an ongoing
series of harassing incidents. The plaintiff's claim of a hostile
1
This is an odd configuration for the claim that Ortiz, on a
single occasion, sexually harassed the plaintiff. We assume that
the plaintiff attempts to force the harassment claim into that mold
in an effort to elude the limitations question under chapter 151B.
See infra Part II(B).
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work environment, based singularly upon Ortiz's assault, is not of
this ilk. However, a single act of harassment may, if egregious
enough, suffice to evince a hostile work environment. See Faragher
v. City of Boca Raton, 524 U.S. 775, 788 (1998) (Title VII); Gnerre
v. MCAD, 524 N.E.2d 84, 88-89 (Mass. 1988) (chapter 151B). The
plaintiff's claims of a retaliatory hostile work environment are
more stereotypical. These claims are based upon the pervasive
retaliation that the plaintiff allegedly experienced after
complaining about Ortiz's assault.
With this brief preface, we proceed to explicate the
summary judgment standard and then examine the anatomy of the
plaintiff's claims.
A. The Summary Judgment Standard.
An order granting summary judgment engenders de novo
review. Serapion v. Martinez, 119 F.3d 982, 987 (1st Cir. 1997).
In conducting that review, we must scrutinize the evidence in the
light most agreeable to the nonmoving party, giving that party the
benefit of any and all reasonable inferences. Cox v. Hainey, 391
F.3d 25, 27 (1st Cir. 2004). For her part, the nonmovant bears
"the burden of producing specific facts sufficient to deflect the
swing of the summary judgment scythe." Mulvihill v. Top-Flite Golf
Co., 335 F.3d 15, 19 (1st Cir. 2003). Those facts, typically set
forth in affidavits, depositions, and the like, must have
evidentiary value; as a rule, "[e]vidence that is inadmissible at
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trial, such as inadmissible hearsay, may not be considered on
summary judgment." Vazquez v. Lopez-Rosario, 134 F.3d 28, 33 (1st
Cir. 1998); accord Garside, 895 F.2d at 49.
Most of the facts presented by the plaintiff, as
recounted above, satisfy this standard. In large part, the
chronicled events are within the plaintiff's personal knowledge.
The insults and taunting that the plaintiff recounts do not create
hearsay problems; those statements are not offered for their truth,
but, rather, to show that the words were spoken (and, thus,
contributed to the hostile work environment). They are, therefore,
admissible. See Mota v. Univ. of Tex. Houston Health Sci. Ctr.,
261 F.3d 512, 526 n.46 (5th Cir. 2001). The statements made by
supervisors are admissible as non-hearsay statements of the
defendant's agents made within the scope of their employment. See
Fed. R. Evid. 801(d)(2)(D).
We note, however, that two statements give us pause. The
first is a statement from an unnamed coworker that other employees
told him to "stay away" from the plaintiff as she was "trouble."
Insofar as the plaintiff is attempting to introduce this statement
as evidence of other coworkers' harassing behavior, it is hearsay;
its probative value ultimately depends on the truth of the
declarant's own unsworn out-of-court utterance. It is, therefore,
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inadmissible.2 See Fed. R. Evid. 801, 802; see also Vazquez, 134
F.3d at 34. A similar problem exists with respect to the
plaintiff's assertion that a tow truck driver said that Gilardi had
been circulating a petition to have the plaintiff fired.
Consequently, we cannot consider the content of either statement in
analyzing the plaintiff's claims. See LaRou v. Ridlon, 98 F.3d
659, 663 (1st Cir. 1996) (branding incompetent on summary judgment
portions of a party's affidavit recounting inadmissible hearsay).
B. Timeliness.
The first question that we must answer pertains to
timeliness. In order to prosecute a harassment claim under either
Massachusetts or federal law, an aggrieved party must first file a
timely administrative complaint. The time parameters for these
filings differ. In 1999, chapter 151B mandated filing with the
MCAD within six months of the alleged violation. See Mass. Gen.
Laws ch. 151B, § 5 (1989) (amended 2002). By contrast, the EEOC
filing had to occur within 300 days of the date of the alleged
violation. See 42 U.S.C. § 2000e-5(e)(1); see also Sabree v.
United Bhd. of Carpenters & Joiners, 921 F.2d 396, 399 & n.5 (1st
Cir. 1990) (discussing timely filing of charges of discrimination
2
Were that statement offered as evidence of the declarant's
contribution to the hostile work environment, it would likely be
admissible. In that event, its effect on the plaintiff would be
the same regardless of the truth of the matter asserted. See Mota,
261 F.3d at 526 n.46. Here, however, the plaintiff's affidavit
takes the air out of any suggestion that the declarant's statement
was itself a product of retaliatory animus.
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with the EEOC in "deferral" states, i.e., states such as
Massachusetts, which have their own civil rights statute and
agency). There is no dispute that the plaintiff met these
administrative deadlines; the earliest incident of alleged
harassment occurred on September 11, 1999, and the plaintiff's
administrative complaint was filed with both agencies on March 6,
2000.
A claimant who wishes to sue under chapter 151B must
allow a waiting period to pass, file her suit, and notify the MCAD
(which is then required to dismiss the administrative proceeding).
Mass. Gen. Laws ch. 151B, § 9. This civil suit must be instituted
no later than three years after the occurrence of the alleged
violation. See id. The federal prototype is different. A Title
VII claimant may sue only after the EEOC issues a right-to-sue
letter. 42 U.S.C. § 2000e-5(f)(1). Once such a letter is
received, the claimant must file her suit within ninety days. Id.
The fact that an analogous state statute of limitations has expired
with respect to a parallel state harassment action does not create
a temporal bar to a Title VII suit. See Burgh v. Borough Council,
251 F.3d 465, 473 (3d Cir. 2001); Kirk v. Rockwell Int'l Corp., 578
F.2d 814, 819 (9th Cir. 1978); Draper v. U.S. Pipe & Foundry Co.,
527 F.2d 515, 522 (6th Cir. 1975).
Here, the plaintiff's Title VII claims are unquestionably
timely: she received a right-to-sue letter on April 25, 2003 and
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added her Title VII claims to her pending suit on May 19, 2003.
The situation is more tenebrous with regard to the chapter 151B
claims. The plaintiff first brought suit on these claims on
November 1, 2002. Based on the three-year statute of limitations
applicable to chapter 151B actions, this would seem to foreclose
recovery for any incidents that occurred prior to November 1, 1999,
including the original sexual harassment and several of the
instances of alleged retaliation.
The plaintiff offers a theory as to why these claims
nonetheless are timely. After reviewing her thesis, we conclude
that her state-law claims based on the Ortiz imbroglio are barred
but that her retaliation claims are not. We explain briefly.
Massachusetts law recognizes that "some claims of
discrimination involve a series of related events that have to be
viewed in their totality in order to assess adequately their
discriminatory nature and impact." Cuddyer v. Stop & Shop
Supermarket Co., 750 N.E.2d 928, 936 (Mass. 2001). Under this
continuing violation doctrine, a plaintiff who ordinarily would be
unable to recover damages for discrete acts of discrimination
falling outside the limitations period may avoid that bar if those
acts are shown to be part of a pattern of discrimination anchored
by acts that occurred within the limitations period. Id. at 936-
37. Hostile environment claims, by their nature, often fall within
this rubric. See id. at 937; Clifton v. Mass. Bay Transp. Auth.,
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815 N.E.2d 614, 624 (Mass. App. Ct. 2004). In such situations,
however, the anchoring event must "substantially relate[] to
earlier incidents of abuse and substantially contribute[] to the
continuation of a hostile work environment." Cuddyer, 750 N.E.2d
at 938.
The application of the continuing violation doctrine
sometimes has the effect of expanding the three-year filing
deadline for suits under chapter 151B. See, e.g., Clifton, 815
N.E.2d at 620-21; Carter v. Comm'r of Corr., 681 N.E.2d 1255, 1261-
62 (Mass. App. Ct. 1997). We thus confront the question of whether
the facts in this case, taken in the light most favorable to the
plaintiff, make out a continuing violation.
On the one hand, we think that reasonable jurors could
find that the distasteful and unpleasant actions undertaken by the
plaintiff's coworkers before and after November 1, 1999 were part
of a pattern of retaliation. For one thing, the harassment began
soon after the plaintiff lodged her initial complaint about Ortiz's
boorishness and surfaced most frequently in the first few months
after Ortiz was dismissed. When harassment follows hard on the
heels of protected activity, the timing often is strongly
suggestive of retaliation. See Oliver v. Digital Equip. Corp.,
846 F.2d 103, 110 (1st Cir. 1988); Mole v. Univ. of Mass., 814
N.E.2d 329, 341 (Mass. 2004). For another thing, the harassment
itself offered circumstantial evidence of causation; coworkers
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referred to the plaintiff as a "rat" (a term that connotes an
informer or snitch), lamented the firing of their "good
supervisor," and took up a collection for his benefit. Even as
late as 2001, Gilardi committed an act of harassment and, shortly
thereafter, made reference to the plaintiff's upcoming "payday."
Up to that point, we believe that reasonable jurors could deem the
listed incidents to comprise a pattern of retaliatory harassment.
Since this pattern includes events within and without the
limitations period, we are free to use incidents from both periods
in deciding whether the plaintiff has made out a prima facie case
of a hostile work environment under chapter 151B.
That said, we find unpersuasive the plaintiff's labored
effort to include Ortiz's solitary act of sexual harassment as part
of the pattern of subsequent retaliatory acts. This attempted
agglomeration relies heavily, but mistakenly, upon the MCAD's
decision in Muise v. Credit Exch., 17 M.D.L.R. 1684 (MCAD 1995), a
case in which the agency said that timely incidents of retaliation
may anchor an untimely incident of sexual harassment if "the charge
of retaliation is inextricably related to the original charge of
sexual harassment." Id. at 1690. The plaintiff overlooks that in
order to invoke this doctrine, a claimant must show at a bare
minimum a series of discriminatory acts that emanate from the same
discriminatory animus. See Provencher v. CVS Pharmacy, 145 F.3d 5,
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14 (1st Cir. 1998); see also Morrisey v. Holiday Inn, 25 M.D.L.R.
74, 86 n.12 (MCAD 2003) (citing Provencher). We explain briefly.
When an individual sexually harasses a victim and then
engages in non-sexual retaliatory harassment, the sexual and non-
sexual harassment arguably may be part and parcel of the same
violation. Cf. O'Rourke, 235 F.3d at 729 (noting that, in such
circumstances, the non-sexual harassment is still charged with the
original animus). But cf. Morris v. Oldham County Fiscal Court,
201 F.3d 784, 790-91 (6th Cir. 2000) (refusing to aggregate sexual
harassment and non-sexual retaliatory harassment undertaken by a
single supervisor). That was the fact pattern in Muise, 17
M.D.L.R. at 1686-87.
The majority of cases are not cut from this seamless
cloth. Even when retaliation is derivative of a particular act of
harassment, it normally does not stem from the same animus. Most
often, retaliation is a distinct and independent act of
discrimination, motivated by a discrete intention to punish a
person who has rocked the boat by complaining about an unlawful
employment practice. See, e.g., Ruffino v. State St. Bank & Trust
Co., 908 F. Supp. 1019, 1040 (D. Mass. 1995); Tinkham v. Flatley
Co., No. 98-BEM-0437, 2004 WL 1746070, at *12 (MCAD July 7, 2004)
(quoting Ruffino). That is a different animus than the sexual
animus that drove the original harassment.
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This case aptly illustrates the disparity of motives.
Ortiz's attack was a one-time incident of sexual harassment. By
contrast, the retaliatory harassment consisted of a series of
discrete acts orchestrated by a cohort of different individuals
(not including Ortiz) and occurring over a period of many months
(beginning only after Ortiz was suspended). Of critical
importance, nothing in the record indicates that these retaliatory
acts were undertaken for reasons related to the plaintiff's gender.
As such, the sexual harassment and retaliatory harassment in this
case must be viewed for what they are: two separate and
independent harms. See Goguen v. Quality Plan Adm'rs, 11 Mass. L.
Rptr. 288, 2000 WL 282485, at *4 (Mass. Super. Ct. 2000) (holding
that sexual harassment by one person and subsequent retaliation by
another are not sufficiently related to add up to a single
continuing violation); cf. Sitar v. Ind. Dep't. of Transp., 344
F.3d 720, 726 (7th Cir. 2003) (noting generally that "retaliation
. . . and sexual harassment charges are not 'like or reasonably
related' to one another to permit an EEOC charge of one type of
wrong to support a subsequent civil suit for another"). The
plaintiff cannot rely on the second to revive the first.
For much the same reason, we decline the plaintiff's
invitation to treat her case as one involving a "mixed-motive"
claim. In support of this entreaty, the plaintiff relies upon Lam
v. Univ. of Hawai'i, 40 F.3d 1551 (9th Cir. 1994), and Hicks v.
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Gates Rubber Co., 833 F.2d 1406 (10th Cir. 1987). Both decisions
held, however, that race and sex may be aggregated under Title VII
where the allegations involved discrimination against a subclass of
people sharing both protected traits but not against those sharing
only one or the other. See Lam, 40 F.3d at 1561-62 (involving
discrimination against a subclass of Asian women); Hicks, 833 F.2d
at 1416 & n.2 (involving discrimination against a subclass of black
women). Such a claim still involves a single wrong and a single
harm, prompted by a single animus. That is clearly not the case
here: Ortiz's assault was not directed at the plaintiff due to her
status as a complaining woman, as she was not yet a member of that
subclass when the assault occurred. Lam and Hicks are, therefore,
inapposite.
To sum up, we find timely the plaintiff's Title VII
sexual harassment claim and her federal and state claims for
retaliatory harassment. We find untimely, however, her state-law
sexual harassment claim (and, therefore, affirm the district
court's entry of summary judgment for the defendant on that claim).
C. Retaliatory Hostile Work Environment: Cognizability.
We turn now to the cognizability of the retaliatory
harassment claims. Both Title VII and chapter 151B contain
provisions that make it unlawful for employers to retaliate against
persons who complain about unlawfully discriminatory employment
practices. See 42 U.S.C. § 2000e-3(a); Mass. Gen. Laws ch. 151B,
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§ 4(4). To engage the gears of either statute, a plaintiff must
show that (i) she undertook protected conduct, (ii) she suffered an
adverse employment action, and (iii) the two were causally linked.
See Dressler v. Daniel, 315 F.3d 75, 78 (1st Cir. 2003) (Title
VII); Sullivan v. Raytheon Co., 262 F.3d 41, 48 (1st Cir. 2001)
(chapter 151B).
Here, there is no dispute that the plaintiff engaged in
protected activity by filing a complaint. The parties instead spar
over the second and third elements, which in this instance collapse
into a single question: did the plaintiff sustain an adverse
employment action in the form of a hostile work environment based
on retaliation for filing a sexual harassment complaint against
Ortiz?
Typically, an adverse employment action involves a
discrete change in the terms and conditions of employment (say, a
discharge, demotion, or reduction in pay). This case is more
nuanced. In order for the plaintiff to survive summary judgment on
this record, she must show that, as a legal matter, the creation
and perpetuation of a hostile work environment itself can
constitute a retaliatory adverse employment action. She also must
show that, as a factual matter, her coworkers' actions furnished a
sufficient basis to ground a finding that a hostile work
environment actually existed.
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As to the legal point, the plaintiff maintains that a
hostile work environment may constitute an adverse employment
action for purposes of both Title VII and chapter 151B. The city
demurs. It notes that the plaintiff has not been cashiered,
demoted, denied promotion, stripped of meaningful duties, or
otherwise materially disadvantaged in the terms and conditions of
her employment. Thus, the city argues, she cannot be said to have
suffered an adverse employment action.
This precise question — whether a hostile work
environment can constitute a retaliatory adverse employment action
— has never been fully addressed either by this court (with regard
to Title VII) or by the Massachusetts Supreme Judicial Court (with
regard to chapter 151B). We look at the federal and state claims
separately.
1. Title VII. The weight of authority supports the view
that, under Title VII, the creation and perpetuation of a hostile
work environment can comprise a retaliatory adverse employment
action under 42 U.S.C. § 2000e-3(a). See, e.g., Von Gunten v.
Maryland, 243 F.3d 858, 864-65 (4th Cir. 2001); Ray v. Henderson,
217 F.3d 1234, 1244-45 (9th Cir. 2000); Morris, 201 F.3d at 791;
Richardson v. N.Y. State Dep't of Corr. Serv., 180 F.3d 426, 446
(2d Cir. 1999); Gunnell v. Utah Valley State Coll., 152 F.3d 1253,
1264 (10th Cir. 1998); Wideman v. Wal-Mart Stores, Inc., 141 F.3d
1453, 1456 (11th Cir. 1998); Knox v. Indiana, 93 F.3d 1327, 1334-35
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(7th Cir. 1996). That view has engendered a circuit split. The
Fifth Circuit has held that a hostile work environment cannot
constitute a retaliatory adverse employment action; instead,
retaliation requires an "ultimate employment decision . . . such as
hiring, granting leave, discharging, promoting, and compensating."
Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir. 1997);
see also id. at 709. The Eighth Circuit also requires an "ultimate
employment decision," Ledergerber v. Stangler, 122 F.3d 1142, 1144
(8th Cir. 1997), but defines that term somewhat more elastically,
see, e.g., Scusa v. Nestle U.S.A. Co., 181 F.3d 958, 968-69 (8th
Cir. 1999).
Although this court has never fully analyzed the
question, our case law tilts noticeably toward the majority view.
The pertinent decisions form a totem pole. At the base of the pole
is Wyatt v. City of Boston, 35 F.3d 13 (1st Cir. 1994) (per
curiam), where, in dictum, we cited a treatise for the proposition
that "toleration of harassment by other employees" might amount to
an adverse employment action. Id. at 15-16 (citing 3 Arthur Larson
& Lex K. Larson, Employment Discrimination § 87.20 (1994)). That
led to a series of epibolies: in Hernandez-Torres v.
Intercontinental Trading, Inc., 158 F.3d 43, 47 (1st Cir. 1998), we
paraphrased the Wyatt dictum; in White v. New Hampshire Department
of Corrections, 221 F.3d 254, 262 (1st Cir. 2000), we noted the
Hernandez-Torres paraphrase with approbation; in Marrero v. Goya of
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Puerto Rico, Inc., 304 F.3d 7, 26 (1st Cir. 2002), we approvingly
cited White's reference; and in Che v. Massachusetts Bay
Transportation Authority, 342 F.3d 31, 40 (1st Cir. 2003), we made
a bow in the direction of Marrero. This totem pole is highly
suggestive. Today, we cap it off and hold explicitly that a
hostile work environment, tolerated by the employer, is cognizable
as a retalitory adverse employment action for purposes of 42 U.S.C.
§ 2000e-3(a). This means that workplace harassment, if
sufficiently severe or pervasive, may in and of itself constitute
an adverse employment action sufficient to satisfy the second prong
of the prima facie case for Title VII retaliation cases.
This conclusion is compelled by the statutory text and
comports with congressional intent. The operative provision of
Title VII makes it unlawful "to discriminate against any individual
with respect to his compensation, terms, conditions, or privileges
of employment, because of such individual's . . . sex." 42 U.S.C.
§ 2000e-2(a)(1). Given Congress's intention "to strike at the
entire spectrum of disparate treatment of men and women in
employment, which includes requiring people to work in a
discriminatorily hostile or abusive environment," Harris, 510 U.S.
at 21 (citation and internal quotation marks omitted), it makes
sense to construe the qualifier (regarding "compensation, terms,
conditions, or privileges of employment") broadly. On that basis,
the verb "discriminate," as used in section 2000e-2(a)(1),
-22-
logically includes subjecting a person to a hostile work
environment. See Morris, 201 F.3d at 791-92.
We move next to Title VII's anti-retaliation provision.
That provision directs an employer not to discriminate against any
employee "because [the employee] has made a charge, testified,
assisted, or participated in any manner in an investigation,
proceeding, or hearing under [Title VII]." 42 U.S.C. § 2000e-3(a).
Here, the term "discriminate" appears without the qualifier. A
familiar canon of construction teaches that "[a] term appearing in
several places in a statutory text is generally read the same way
each time it appears." Ratzlaf v. United States, 510 U.S. 135, 143
(1994). We apply that canon here. The result: the verb
"discriminate" in the anti-retaliation clause includes subjecting
a person to a hostile work environment. See Morris, 201 F.3d at
792; see also Knox, 93 F.3d at 1334 ("Nothing indicates why . . .
retaliating against a complainant by permitting her fellow
employees to punish her for invoking her rights under Title VII .
. . does not fall within the statute.").
Our interpretation of the statutory text is shared by the
EEOC, which finds the lack of any qualifier on the term
"discriminate" in the anti-retaliation context to evince a purpose
to "prohibit any discrimination that is reasonably likely to deter
protected activity." EEOC Compl. Man. (CCH) ¶ 8005, § 8-II.D.3
(2004). This is important because an administrative interpretation
-23-
of a federal statute by the agency charged with its enforcement,
while not controlling upon the courts, constitutes an informed
judgment to which some deference ordinarily is due.3 See Meritor
Sav. Bank v. Vinson, 477 U.S. 57, 65 (1986).
If more were needed — and we doubt that it is — this
capacious reading of section 2000e-3(a) is consonant with its
purpose of "[m]aintaining unfettered access to statutory remedial
mechanisms." Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997).
Harassment by coworkers as a punishment for undertaking protected
activity is a paradigmatic example of adverse treatment spurred by
retaliatory motives and, as such, is likely to deter the
complaining party (or others) from engaging in protected activity.
Ray, 217 F.3d at 1245; Wideman, 141 F.3d at 1456. Reading the
statute to provide a remedy for retaliatory harassment that
expresses itself in the form of a hostile work environment thus
furthers the goal of ensuring access to the statute's remedial
mechanisms.
3
We emphasize that we refer here only to Skidmore deference,
not Chevron deference. Compare Skidmore v. Swift & Co., 323 U.S.
134, 140 (1944), with Chevron U.S.A. Inc. v. Natural Res. Def.
Council, Inc., 467 U.S. 837, 843-44 (1984). After all, statements
in the EEOC's Compliance Manual are neither adjudicatory nor the
product of notice-and-comment rulemaking. See United States v.
City of New York, 359 F.3d 83, 93 (2d Cir. 2004); cf. Navarro v.
Pfizer Corp., 261 F.3d 90, 99 (1st Cir. 2001). They are,
therefore, entitled to deference only to the extent that they have
the power to persuade. See Christensen v. Harris County, 529 U.S.
576, 587 (2000).
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2. Chapter 151B. As for the state-law claim, we believe
that, were the Massachusetts Supreme Judicial Court (SJC) squarely
presented with the question, it would find a retaliatory hostile
work environment to be an adverse employment action cognizable
under chapter 151B, § 4(4). Several factors enter into this
determination.
First and foremost, the statute's anti-discrimination and
anti-retaliation provisions are very similar to the counterpart
provisions contained in Title VII. Where such linguistic
similarity exists, the SJC frequently looks to federal court
interpretations of Title VII for guidance. See Wheatley v. AT&T
Co., 636 N.E.2d 265, 268 (Mass. 1994) ("It is our practice to apply
Federal case law construing the Federal anti-discrimination
statutes in interpreting [chapter] 151B."); College-Town, Div. of
Interco, Inc. v. MCAD, 508 N.E.2d 587, 591 (Mass. 1987) (describing
federal precedents as "helpful"). We are, therefore, confident
that the SJC, if confronted with this precise question, would quite
likely interpret the anti-retaliation provision of chapter 151B
exactly as we have interpreted the counterpart provision of Title
VII.
Second, to the extent that any ambiguity lurks in the
statutory language, Massachusetts law explicitly directs that the
provisions of chapter 151B "shall be construed liberally for the
accomplishment of its purposes." Mass. Gen. Laws ch. 151B, § 9.
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As with Title VII, the purpose of the anti-retaliation provision in
chapter 151B is to allow parties to "seek redress for allegations
of discrimination without fear of retaliation for or interference
with the exercise of that right." Sahli v. Bull HN Info. Sys.,
Inc., 774 N.E.2d 1085, 1090 (Mass. 2002). Construing chapter
151B's text to protect complaining employees from retaliatory
harassment that results in the creation and perpetuation of a
hostile work environment advances that purpose.
Third, although the SJC has not spoken directly to the
subject, the Appeals Court has recognized a claim of retaliatory
harassment based on a hostile work environment. See Clifton, 815
N.E.2d at 618, 624. While this holding is not indisputably
authoritative — the highest court of a state is, after all, the
final arbiter of state-law questions, Acadia Ins. Co. v. McNeil,
116 F.3d 599, 604 (1st Cir. 1997) — the decision of an intermediate
appellate court of the state generally constitutes a reliable piece
of evidence. See West v. ATCT Co., 311 U.S. 223, 237 (1940);
Fortini v. Murphy, 257 F.3d 39, 49 (1st Cir. 2001); Losacco v. F.D.
Rich Constr. Co., 992 F.2d 382, 384 (1st Cir. 1993). This evidence
seems all the more compelling in this case because the MCAD — whose
decisions construing chapter 151B are ceded some deference by the
SJC, Cuddyer, 750 N.E.2d at 938 — has interpreted chapter 151B's
anti-retaliation language to include retaliatory harassment
culminating in a hostile work environment. See MCAD Sexual
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Harassment in the Workplace Guidelines IX.B (2002) ("An employer
takes adverse action under § 4(4) when it materially disadvantages
the complainant with regard to any of the terms or conditions of
her employment. The term 'adverse action' can encompass . . .
hostile or abusive workplace treatment."); Wareing v. New Bedford
Sch. Dep't, No. 99-BEM-3363, 2004 WL 2361016, at *8 (MCAD Oct. 6,
2004) ("Retaliation may . . . take the form of hostile or abusive
workplace treatment.).
To say more on this topic would be to paint the lily.
For the reasons elucidated above, we hold that, under Massachusetts
law as under Title VII, subjecting an employee to a hostile work
environment in retaliation for protected activity constitutes an
adverse employment action (and, thus, triggers the statutory
prophylaxis).
D. Retaliatory Hostile Work Environment: Sufficiency of Proof.
We have established that, as a theoretical matter,
subjecting a party to a hostile work environment in retaliation for
protected activity may be actionable under both Title VII and
chapter 151B. That poses the question whether the evidence in this
case, viewed in the light most favorable to the plaintiff, Garside,
895 F.2d at 48, shows that a hostile work environment existed. We
turn to that question.
1. Elements of the Cause of Action. An allegedly
retaliatory act must rise to some level of substantiality before it
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can be actionable. Wideman, 141 F.3d at 1456; MacCormack v. Boston
Edison Co., 672 N.E.2d 1, 7-8 (Mass. 1996). The hostile work
environment doctrine, as developed in the anti-discrimination
jurisprudence of Title VII, embodies that prerequisite.
In order to prove a hostile work environment, a plaintiff
must show that she was subjected to severe or pervasive harassment
that materially altered the conditions of her employment.
Faragher, 524 U.S. at 786. The harassment must be "objectively and
subjectively offensive, one that a reasonable person would find
hostile or abusive, and one that the victim in fact did perceive to
be so." Id. at 787. In determining whether a reasonable person
would find particular conduct hostile or abusive, a court must mull
the totality of the circumstances, including factors such as the
"frequency of the discriminatory conduct; its severity; whether it
is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an
employee's work performance." Id. at 787-88 (quoting Harris, 510
U.S. at 23). The thrust of this inquiry is to distinguish between
the ordinary, if occasionally unpleasant, vicissitudes of the
workplace and actual harassment. Id. at 788.
This framework is readily transferable to the retaliatory
harassment context. On the one hand, if protected activity leads
only to commonplace indignities typical of the workplace (such as
tepid jokes, teasing, or aloofness), a reasonable person would not
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be deterred from such activity. After all, an employee reasonably
can expect to encounter such tribulations even if she eschews any
involvement in protected activity. On the other hand, severe or
pervasive harassment in retaliation for engaging in protected
activity threatens to deter due enforcement of the rights conferred
by statutes such as Title VII and chapter 151B.
Along this continuum, rudeness or ostracism, standing
alone, usually is not enough to support a hostile work environment
claim. See Manatt v. Bank of Am., 339 F.3d 792, 803 (9th Cir.
2003); Gagnon v. Sprint Corp., 284 F.3d 839, 850 (8th Cir. 2002);
cf. Simas v. First Citizens' Fed. Credit Union, 170 F.3d 37, 52
n.12 (1st Cir. 1999) (noting, in related context, that "social
ostracism alone is rarely actionable"). The anti-discrimination
laws were not enacted to create or enforce a "general civility
code." Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80
(1998). So too the anti-retaliation laws.
2. Applying the Requirements. Having sketched the
contours of retaliatory hostile work environments in the Title VII
and chapter 151B milieus, we reach the central question presented
in this appeal: viewing the totality of the circumstances in the
light most flattering to the plaintiff, is the evidence of
retaliatory harassment adequate to allow a reasonable jury to find
that she was confronted by a hostile work environment?
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At the outset, we take note of a unique difficulty posed
by allegations of retaliatory harassment. When dealing with
discriminatory harassment (e.g., harassment based on gender, race,
or the like), there is seldom, if ever, a defensible purpose behind
the injurious actions. The only question is whether the bad acts,
taken in the aggregate, are sufficiently severe or pervasive to
constitute actionable harassment. See, e.g., Cardenas v. Massey,
269 F.3d 251, 261-62 (3d Cir. 2001); Johnson v. City of Fort Wayne,
91 F.3d 922, 932 (7th Cir. 1996).
Retaliatory harassment, however, requires a more nuanced
analysis. The very act of filing a charge against a coworker will
invariably cause tension and result in a less agreeable workplace.
Von Gunten, 243 F.3d at 870. The target of the complaint likely
will have coworker-friends who come to his defense, while other
coworkers will seek to steer clear of trouble by avoiding both the
complainant and the target. Although admittedly a source of
unpleasantness in the workplace, such behavior should not be seen
as contributing to a retaliatory hostile work environment. Id.
After all, there is nothing inherently wrong either with supporting
a friend or with striving to avoid controversy. We think it
follows that those actions that are hurtful to a complainant only
because coworkers do not take her side in a work-related dispute
may not be considered as contributing to a retaliatory hostile work
environment. It is only those actions, directed at a complainant,
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that stem from a retaliatory animus which may be factored into the
hostile work environment calculus.
Even with these nuances in mind, we conclude that the
evidence in this case, viewed in the light most favorable to the
plaintiff, would permit — although certainly not compel — a
reasonable jury to find that the plaintiff was subjected to a
retaliation-based hostile work environment. In reaching this
conclusion, we take into account the relative ubiquity of the
retaliatory conduct, its severity, its natural tendency to
humiliate (and, on occasion, physically threaten) a reasonable
person, and its capacity to interfere with the plaintiff's work
performance. See Harris, 510 U.S. at 23.
In the months immediately following the plaintiff's
initial series of complaints about Ortiz's actions, she was
subjected to a steady stream of abuse. Much of this was
significant and was of a kind that courts historically have found
persuasive as evidence of a hostile work environment. She was
falsely accused of misconduct (DiGirolamo levied a baseless charge
against her in the tampon-throwing incident) — and the case law
recognizes that false accusations of misconduct can contribute to
the creation of a hostile work environment. See Ray, 217 F.3d at
1245; Aviles v. Cornell Forge Co., 183 F.3d 598, 606 (7th Cir.
1999). DiGirolamo also interfered with the plaintiff's working
conditions by falsely informing her that she was required to take
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her dinner breaks alone — and "work sabotage, exclusion, [and]
denial of support" also may contribute to the creation of a hostile
work environment. O'Rourke, 235 F.3d at 730. The harassing
insults directed at the plaintiff are likewise entitled to some
weight in the decisional calculus. See Bolden v. PRC Inc., 43 F.3d
545, 551 (10th Cir. 1994) (noting that even infrequent harassing
insults should be considered, along with other instances of
harassment). So too the taunting of the plaintiff with the
collection on behalf of Ortiz.4 Marrero, 304 F.3d at 26 (finding
that taunting plaintiff in relation to her filing of an EEOC
complaint was evidence of retaliatory harassment); cf. Oncale, 523
U.S. at 80 (noting that open and direct hostility clearly based on
protected status is evidence of hostile work environment).
Gilardi's continued tormenting of the plaintiff is also
relevant. Soon after the collection incident, Gilardi interfered
with the plaintiff's ability to work by leaving her out in the cold
(literally, not figuratively). This conduct may be seen as having
contributed to the creation of a hostile work environment. See
4
To be sure, the mere fact that coworkers collect money on
behalf of a person accused of discrimination is not actionable.
Such behavior falls outside the realm of conduct undertaken out of
animus toward a complainant and should not be considered for
purposes of determining whether there was a hostile work
environment. The fact that coworkers rubbed the plaintiff's nose
in the collection is a horse of a different hue. If the incident
occurred as the plaintiff suggests (an assumption that we must
indulge at the summary judgment stage), it was a clear indication
of open hostility directed at the plaintiff and would have
deleteriously affected her working conditions.
-32-
Gorski v. N.H. Dep't of Corr., 290 F.3d 466, 472 (1st Cir. 2002);
O'Rourke, 235 F.3d at 730. Gilardi later placed the plaintiff at
risk of physical harm by coming close to striking her with a van;
if that was intentional (and, for now, we must credit the
plaintiff's averment that it was), it is a cogent indicator of an
adverse change in the conditions of the plaintiff's employment.
Cf. White v. BFI Waste Servs., LLC, 375 F.3d 288, 298 n.6 (4th Cir.
2004) (noting that "the presence of physical threats undeniably
strengthens a hostile work environment claim"); Raniola v. Bratton,
243 F.3d 610, 621 (2d Cir. 2001) (similar). To cinch matters, the
plaintiff offered evidence that these incidents contributed to
physical and psychological problems that required treatment, thus
underscoring the negative effect on her work performance.
Of course, no pat formula exists for determining with
certainty whether the sum of harassing workplace incidents rises to
the level of an actionable hostile work environment. See Harris,
510 U.S. at 22. Such a determination requires the trier of fact to
assess the matter on a case-by-case basis, weighing the totality of
the circumstances. Lipsett v. Univ. of P.R., 864 F.2d 881, 898 &
n.18 (1st Cir. 1988). Our function is one of screening, that is,
to determine whether, on particular facts, a reasonable jury could
reach such a conclusion. Rivera-Rodríguez v. Frito Lay Snacks
Caribbean, 265 F.3d 15, 24 (1st Cir. 2001). Taking the aggregate
facts of record in the light most favorable to the plaintiff, we
-33-
believe that a jury rationally could find that the plaintiff was
subjected to a hostile work environment arising out of retaliation
for her complaint against a popular coworker.
E. The Liability Standard.
This conclusion takes us to the liability standard. In
importing the hostile work environment doctrine into the anti-
retaliation context, courts are left to draw the standards for
employer liability from the case law involving hostile work
environments in the anti-discrimination context. The Supreme Court
has divided the universe of employer liability along a line that
separates supervisors from non-supervisors. When a supervisor
creates a hostile work environment, the employer is vicariously
liable for it, subject, however, to a possible affirmative defense.
See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998);
Faragher, 524 U.S. at 807-08.
This defense, familiarly known as the Faragher/Ellerth
defense, consists of two elements which, if proven, permit the
employer to avoid liability. First, the employer must show that it
"exercised reasonable care to prevent and correct promptly" the
harassment. Ellerth, 524 U.S. at 765. Second, the employer must
show that the employee "unreasonably failed to take advantage of
any preventive or corrective opportunities provided by the employer
or to avoid harm otherwise." Id.
-34-
As with Title VII, chapter 151B makes employers
vicariously liable for hostile work environments created by
supervisors. College-Town, 508 N.E.2d at 592. Unlike Title VII,
however, chapter 151B does not afford employers any affirmative
defenses to liability. Based on the legislative mandate that
chapter 151B must be construed liberally to effectuate its
purposes, see Mass. Gen. Laws ch. 151B, § 9, the SJC has endorsed
a rule that holds employers strictly liable for supervisory
harassment. See College-Town, 508 N.E.2d at 591-94 (rejecting a
"reasonable care" standard as a defense to a hostile work
environment claim); see also Blockel v. J.C. Penney Co., 337 F.3d
17, 28 n.3 (1st Cir. 2003) (noting that the Faragher/Ellerth
defense does not apply to chapter 151B actions). Because the
reasoning of College-Town belies any meaningful distinction between
discriminatory harassment and retaliatory harassment where
supervisors are concerned, we conclude that no Faragher/Ellerth
type of affirmative defense is available under chapter 151B to an
employer whose supervisors create a retaliatory hostile work
environment.
When coworkers, rather than supervisors, are responsible
for the creation and perpetuation of a hostile work environment,
Title VII and chapter 151B seem essentially coterminous as they
relate to employer liability. Notwithstanding the absence of a
controlling Supreme Court precedent, several federal courts,
-35-
including this court, have held that, in such situations, an
employer can only be liable if the harassment is causally connected
to some negligence on the employer's part. See, e.g., Wyninger v.
New Venture Gear, Inc., 361 F.3d 965, 976 (7th Cir. 2004);
Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 333-34 (4th Cir.
2003); Crowley v. L.L. Bean, Inc., 303 F.3d 387, 401 (1st Cir.
2002). Typically, this involves a showing that the employer knew
or should have known about the harassment, yet failed to take
prompt action to stop it. See Crowley, 303 F.3d at 401.
Similarly, under chapter 151B, employer liability for coworker
harassment requires a showing that the employer knew or should have
known about the harassment, yet failed to halt it. Messina v.
Araserve, Inc., 906 F. Supp. 34, 37-38 (D. Mass. 1995) (discussing
Massachusetts law); College-Town, 508 N.E.2d at 593.
At the summary judgment stage, these determinations are
complicated. The question of whether an employee is a supervisor
in the relevant sense is itself factual in nature. Hrobowski v.
Worthington Steel Co., 358 F.3d 473, 478 (7th Cir. 2004). Here,
the lower court found only coworker harassment; it declared that
the evidence showed that the retaliation had been undertaken by
"subordinate officials, none of whom had control over terms and
conditions of [the plaintiff's] employment."
The district court's skepticism about the claimed
supervisory status of some of the harassers seems well-founded.
-36-
The key to determining supervisory status is the degree of
authority possessed by the putative supervisor. Joens v. John
Morrell & Co., 354 F.3d 938, 940 (8th Cir. 2004); Parkins v. Civil
Constructors of Ill., Inc., 163 F.3d 1027, 1033 (7th Cir. 1998).
Thus, courts must distinguish "employees who are supervisors merely
as a function of nomenclature from those who are entrusted with
actual supervisory powers." Parkins, 163 F.3d at 1033; accord
Mikels v. City of Durham, 183 F.3d 323, 334 (4th Cir. 1999).
Having in mind both common law agency principles and the purposes
of the anti-discrimination and anti-retaliation laws, we agree with
the Seventh Circuit that "the essence of supervisory status is the
authority to affect the terms and conditions of the victim's
employment." Parkins, 163 F.3d at 1034. This authority "primarily
consists of the power to hire, fire, demote, promote, transfer, or
discipline an employee." Id. at 1034. Without some modicum of
this authority, a harasser cannot qualify as a supervisor for
purposes of imputing vicarious liability to the employer in a Title
VII case, but, rather, should be regarded as an ordinary coworker.5
See id. at 1033-34. We think that the same standard applies under
chapter 151B. See College-Town, 508 N.E.2d at 593 (observing that
5
The Second Circuit takes a somewhat broader view. That court
considers a supervisor to be someone who has actual authority to
direct an employee's work-related tasks in a way that could
increase her workload or saddle her with less desirable tasks.
Mack v. Otis Elev. Co., 326 F.3d 116, 126-27 (2d Cir. 2003). Even
were we to adopt this less demanding test, the nominal supervisors
here would not qualify as supervisors in fact.
-37-
the power wielded by a harassing supervisor may range from
"discharge to assignment of work, particularly exacting scrutiny,
or refusal to protect the employee from coworker harassment").
In this case, the plaintiff has not presented facts
sufficient to show that she was harassed at the hands of persons
who qualify as supervisors. The deposition of Irene Landry
provides the clearest evidence of the organizational structure of
the workplace. The parking enforcement officers are on the lowest
rung of the ladder. On the next rung are the shift supervisors,
who drive the parking enforcement officers to their assigned routes
and pick them up. The third rung is occupied by more senior
supervisors, (each of whom holds the title "senior supervisor II").
The functions of these individuals include dealing with personnel
problems. During the time in question, Landry held the position of
senior supervisor II. She reported to Moccia, a higher-level
official who held the title of senior supervisor of parking
enforcement. Moccia had authority to handle a wide variety of
employee issues and complaints.
The plaintiff uses the word "supervisor"
indiscriminately, referring to people on the second, third, and
fourth rungs as "supervisors" and making no distinctions among
them. That approach elevates nomenclature over actual authority.
When we shift the focus to those persons whose actual authority
-38-
made them supervisors in the relevant sense, a different picture
emerges.
Landry and Moccia each appear to have possessed the
requisite authority, but neither of them were guilty of any
retaliatory harassment. The only two "supervisors" whose actions
rationally can be said to have contributed to the hostile work
environment are Gilardi and DiGirolamo. Gilardi was a second-rung
shift supervisor, and DiGirolamo's level of authority seems no
greater (the record only permits us to speculate on this point, and
the lack of proof counts against the plaintiff). The plaintiff has
presented us with no evidence that either woman had the power to
terminate, discipline, or otherwise affect the terms and conditions
of her employment. In the absence of such evidence, the city
cannot be held vicariously responsible for their harassment.
The plaintiff's claim thus reduces to one of coworker
harassment. The viability of that claim depends on whether there
is sufficient evidence to permit a finding that the employer knew
or should have known about the hostile work environment, yet failed
to stop it. We conclude that sufficient evidence exists.
Plaintiff complained of the harassment to two senior supervisors
(Landry and Moccia). Landry did not deal with the plaintiff's
complaints at all and Moccia, rather than rectifying the situation,
speculated that the harassment would likely become "ten times
worse" with the plaintiff's recent shift change. Moreover, the
-39-
deputy commissioner was aware of the harassment, but did nothing to
dispel it. Since Landry, Moccia, and the deputy commissioner were
appropriate recipients of the plaintiff's complaints, there is
enough evidence to allow a finding of actual notice on the city's
part. See Crowley, 303 F.3d at 403; Breda v. Wolf Camera & Video,
222 F.3d 886, 889 (11th Cir. 2000).
The city's only rejoinder is that the supervisors
responded to the plaintiff's allegations in an appropriate manner.
At best, this presents a factual dispute that is not amenable to
resolution on summary judgment. Consequently, there is a
trialworthy issue as to whether the city was negligent in not
putting a stop to the harassment.
F. Sexual Harassment Under Title VII.
This brings us to the plaintiff's claim that Ortiz's
assault subjected her to a hostile work environment based on her
sex.6 Even if the assault was sufficient, in and of itself, to
create a hostile work environment — a proposition that we regard as
highly dubious — the plaintiff cannot prevail. Though she refers
to Ortiz as her "supervisor," the record contains a paucity of
evidence about his job description and authority. That which does
appear indicates that Ortiz, like Gilardi, was merely a second-rung
shift supervisor. As the plaintiff provided no evidence that such
6
This claim is, of course, limited to Title VII. Insofar as
it might have been brought under chapter 151B, it is time-barred.
See supra Part II(B).
-40-
an employee had the authority to hire, fire, or otherwise dictate
the terms and conditions of employment, vicarious liability is off
the table. It follows that the plaintiff can survive summary
judgment only if she can show that a rational jury could find the
city negligent because it knew or should have known of the
harassment yet failed to take prompt action to stop it. Crowley,
303 F.3d at 401.
The plaintiff cannot carry this burden. There is no
evidence of any prior misconduct on Ortiz's part. The first that
the city knew (or could have known) about his assaultive demeanor
was when it received the initial report of the attack. The
undisputed evidence shows that a mere seven days elapsed between
the time of the assault and the commencement of disciplinary
proceedings (which began with Ortiz's immediate suspension and
culminated in his discharge). Between the assault and the
suspension, the plaintiff says that she "encountered" Ortiz in the
workplace, but there is no evidence that she was forced to work
with him or was exposed to further harassment by him. While we
leave open the possibility that, under certain extreme
circumstances, a delay of seven days in separating a harasser and
his victim might evince negligence, there is nothing to indicate
that the city acted here in a dilatory manner. On this record, a
rational jury could only conclude that, as to the Title VII sexual
harassment claim, the city acted in a professional and appropriate
-41-
manner to resolve the problem. No more was exigible. See, e.g.,
Reed v. MBNA Mktg. Sys., Inc., 333 F.3d 27, 34-35 (1st Cir. 2003)
(noting that investigation of sexual assault by employer, quickly
leading to malefactor's termination, indicates reasonable care on
behalf of employer).
That ends this aspect of the matter. One of the main
purposes of Title VII is to encourage proactive resolution of
workplace harassment. We would undermine that purpose were we to
subject the city to sexual harassment liability despite its prompt
and effective action in investigating the incident and removing the
perpetrator from the workplace.
III. CONCLUSION
We need go no further. To recapitulate, we hold that the
plaintiff has presented sufficient evidence to survive summary
judgment on her retaliatory harassment claims under Title VII and
chapter 151B. As to her sexual harassment claims, however, we
reach a different conclusion. Her chapter 151B claim is time-
barred and her Title VII claim is foreclosed by her failure to
present a trialworthy issue about whether the city was negligent in
its handling of the Ortiz situation.
Affirmed in part, vacated in part, and remanded. No
costs.
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