Opinion
Civil Action No. 03-10306-DPW.
August 13, 2004
MEMORANDUM AND ORDER
In this extraordinarily sad case, Paula J. Cerqueira, administratrix of the Estate of Joseph H. Cerqueira, presses an action against her late husband's employer, defendant Corning Net Optix ("Corning"), alleging that Corning violated Mr. Cerqueira's rights under the Massachusetts Anti-Discrimination Statute, Mass. Gen. Laws c. 151B, § 4, by creating a hostile work environment in which he was sexually harassed by a male coworker before he committed suicide. Corning has moved for summary judgment. Because I find as a matter of law that Corning took appropriate action under the circumstances to investigate and remedy the harassment complaint, the motion will be granted.
I. BACKGROUND
A. FactsOn April 7, 2000, Cerqueira started working at Corning as a fiber optic technician. For his initial six weeks, Cerqueira worked the first shift, 7:00 a.m. to 3:00 p.m., while he received job training, including instruction on Corning's sexual harassment policies. In late May, Cerqueira was transferred to the second shift, working from 3:00 to 11:00 p.m.
On Friday, July 14, 2000, around 8:30 p.m., Paul Samsen, Cerqueira's immediate supervisor, observed Cerqueira pacing back and forth in the dimly lit parking lot. Concerned, Samsen approached him; he observed that Cerqueira's voice was nervous and shaken, although Cerqueira told Samsen he was all right. That same night, Cerqueira told coworker Sarah Lewis that he was having a hard time at work.
At approximately 9:30 p.m., Cerqueira asked to speak in private with Jonathan Sipin, the shift technician who was responsible for handling employee complaints in Samsen's absence. Off the manufacturing floor in a conference room, Cerqueira reportedly declared "I can't take it anymore" and related that he was being sexually harassed by Eric Gonzalez, a coworker who worked near his station. Specifically, Cerqueira complained that Gonzalez was teasing him and calling him "gay." Sipin tried to get Cerqueira to elaborate, but, on the verge of tears, Cerqueira appeared too upset to provide further details.
Sipin told Cerqueira that he would inform Samsen, the supervisor responsible, and requested that Cerqueira speak with Samsen the next day, Saturday, July 15, when Cerquiera would be working an overtime shift and Gonzalez would not be working. At 10:16 p.m., Sipin sent Samsen an email, apprising him of Cerqueira's complaint. The subject line read "Important!" and contained the following message:
Joe Cerqueira talked to me last night at around 9:30 pm about verbal harassment that he has been getting from Eric Guevarra [sic]. This has been going on for some time now. He will be coming at 12:00 noon tomorrow (saturday) and I told him to talk to you about it. I think it is very serious.
Sipin affixed a note to Samsen's computer, instructing him to read his email immediately upon his arrival to work.
Later, at some point before the end of the shift, Sipin went onto the manufacturing floor and "just looked" to ensure nothing inappropriate was occurring. He observed no remarkable conduct, but checked back with Cerqueira, who said he was doing fine.
On Saturday, July 15, shortly after arriving at work and reading Sipin's email, Samsen approached Cerqueira to discuss the complaint. Cerqueira seemed reluctant to provide detailed answers, responding that he didn't want to cause trouble and was worried about losing his job. When asked to describe the harassment, Cerqueira reportedly answered, "I know they are making fun of me. I know they are telling jokes about me." When asked to identify his harassers, Cerqueira replied, "I don't want to get anyone in trouble." He did indicate that the individuals worked near his station. When asked specifically about Eric Gonzalez, Cerqueira again responded, "I'm not mentioning any names. I don't want any trouble."
Seeking a solution, Samsen offered to move Cerqueira to another work station in a different section of the manufacturing floor, change his shift, or transfer him to another building. Cerqueira expressed concern over changing work benches, saying "I would still be in the same building with these people and I don't know if I can do that." Samsen then proposed that they both meet with Forrest Roush, Samsen's supervisor, on Monday, July 17, to further discuss the complaint and to find a location where Cerqueira would be more comfortable working. Assuring Samsen that he was able to finish the remainder of his shift, Cerqueira returned to work.
On Monday, July 17, Samsen reported to work four hours early to discuss Cerqueira's complaint with Roush. He showed Roush the email he had received from Sipin and relayed his Saturday conversation with Cerqueira. Roush and Samsen met with Sipin that afternoon, eliciting further details about Cerqueira's original conversation with him. Roush and Samsen then sought Cerqueira, hoping to meet with him privately to discuss the allegations. Cerqueira, however, had not reported to work. Consequently, they decided to delay the meeting until the next day.
But this meeting did not occur because Cerqueira was absent from work again on Tuesday. Pursuant to company policy, Roush and Samsen did meet with Frank Pine, Human Resources Manager, to inform him of Cerqueira's allegations.
Cerqueira did not report to work again on Wednesday, July 19; this was unusual for Cerqueira, whose prior attendance record was perfect. Samsen, with the permission of his supervisors, called Cerqueira at home to inquire about his unexcused absences. Cerqueira reported that he was tired, weak, and unable to sleep. Asked if he planned on returning to work, Cerqueira answered "I don't think I can come back, you know and work with those people."
Pressed to identify "those people," Cerqueira explicitly named Eric Gonzalez as his harraser. Cerqueira described being teased about his sexuality: "Eric thinks I am gay, but I'm not. He is telling the other guys this and I know they are making fun of me." As proof, Cerqueira told Samsen of an email Gonzalez had sent him in early June "wanting me to do gay things to him." Cerqueira indicated that other employees, possibly John Foster and Kingsley Osei, might have been copied on the email.
At the end of their conversation, Samsen asked to speak with Mrs. Cerqueira, who confirmed that Cerqueira hadn't been able to sleep and was too tired to care for their children. She reported that Cerqueira had told her Gonzalez and others were bothering him at work, but didn't know details. Samsen and Mrs. Cerqueira scheduled a conference call between both Cerqueiras and the Corning supervisors for Friday, July 21, between 4:00 and 5:00 p.m., to further discuss the harassment claim.
That afternoon, Samsen relayed to Roush and Pine that Cerqueira had identified Gonzalez as his harasser and that proof might be found in an inappropriate email Gonzalez had sent in early June. Pine said he would contact Corning's technology department about retrieving all of Gonzalez's emails.
It is unclear from the record when the emails were retrieved and reviewed, although it may have been Wednesday afternoon or Friday after the conference call. Pine scrolled through about two weeks of Gonzalez's email traffic, uncovering the "lewd" message, "JOE GIVES HEAD," followed later by one containing just "HEAD." These emails were sent June 8, 2001. Although approximately five weeks of messages were saved to the technology department's tapes, Pine reviewed only those sent during the first weeks of June, as Cerqueira had identified in his conversation with Samsen.
On Thursday, July 20, Cerqueira, at his wife's encouragement, visited his primary care physician. Dr. Robert A. Wainer examined him and noted he was "depressed and anxious since 2 weeks, workplace issues with co-workers." Dr. Wainer recommended a "psych referral ASAP." That afternoon, Daniel Kane, LISCSW, of the Southeastern Psychiatric Associates, evaluated Cerqueira, submitting:
Client reports that at work, a person started calling him "gay." He claims that this person, as well as others, harass him at work. He states that he receives insulting emails, and show him disrespect at work. He feels very anxious about his difficulties at work, and is finding it difficult to cope [with] it . . . The client seems very angry and anxious by his current situation.
Mr. Kane arranged to meet with Cerqueira weekly for psychotherapy, identifying "workplace harassment as a primary theme."
On Friday afternoon, July 21, Pine, Samsen, Roush, and Barbara Serating, Corning's nurse, consulted with Cerqueira and his wife via conference call. During this conversation, Cerqueira detailed many of his complaints, alleging that beginning two weeks after he moved to the second shift, his coworkers made jokes about him being a "homo," made obscene gestures at him, played games, and questioned his sense of humor. Cerqueira did not name any participants in the behavior except for Gonzalez, who he described as the person who "drew the crowd." He reported that Gonzalez had sent him and another employee, John Foster, inappropriate emails containing messages such as "BORING" and "JOE GIVES HEAD." Cerqueira alleged that at one point, Gonzalez came up behind him and made "humping" motions.
In response, Pine reemphasized that if Cerqueira returned to work, Corning would be flexible in making any accommodations necessary to ensure his comfort, offering to move him to another position, shift, or building. Cerqueira responded that he was on the verge of a nervous breakdown, and stated he could not bring himself to go back to work because the "game had been played too far."
On Monday, July 24, Corning learned of Cerqueira's death. Cerqueira had committed suicide in his home on Saturday afternoon, July 22.
Continuing their investigation, on Tuesday, July 25, Roush and Pine interviewed several technicians who worked near Cerqueira on the second shift: Sarah Lewis, Kingsley Osei, and Eric Gonzalez. Lewis did not recall ever witnessing any inappropriate conduct between Gonzalez and Cerqueira, nor did she remember any instances of teasing. Osei, a friend of Gonzalez, described Cerqueira as becoming more quiet and distant in the recent weeks but didn't identify teasing as a contributing factor.
Gonzalez was "candid" and "forthcoming" during his interview; according to Pine, Gonzalez "readily admitted to just about everything." Roush agreed, observing Gonzalez "basically admitted everything that Joe had complained about." Gonzalez explained that he and Cerqueira were "friends" for a few weeks after Cerqueira's transfer to the second shift, but that they stopped speaking thereafter because of differences in their senses of humor. Gonzalez conceded that he questioned Cerqueira's sexuality, used sexually explicit language, made obscene gestures, and joked about sex in his presence, and sent him lewd emails, including a film clip showing a woman and a dog engaged in sexual intercourse.
The next day, July 26, Corning disciplined Gonzalez for creating a hostile work environment, thereby violating the company's sexual harassment policy. Corning suspended Gonzalez for two days without pay, issued him a final written warning, and revoked his email privileges for one month.
B. Procedural History
On December 29, 2000, Mrs Cerqueira filed a complaint against Corning with the Massachusetts Commission Against Discrimination (MCAD) alleging violations of Mass. Gen. Laws c. 151B § 4(16A), sexual harassment, and § 4(d), aiding and abetting. Pursuant to 804 CMR 1.15(2)(b), on June 6, 2001, the MCAD granted Mrs. Cerqueira leave to file a complaint in state court.
Mrs. Cerqueira instituted this action against Corning, a corporation incorporated under the laws of New York, on January 2, 2003, in the Middlesex Superior Court. She brings this suit individually, as administratrix of the Estate of Joseph H. Cerqueira, and as next friend of her two minor children. On February 18, 2003, Corning removed the action to this court pursuant to the diversity jurisdiction of the federal courts. 28 U.S.C. §§ 1332 1441.
Corning moved for summary judgment at the completion of discovery.
II. DISCUSSION
Corning argues it is entitled to summary judgment on three distinct grounds: first, as a matter of law, it cannot be liable for Gonzalez's conduct because it took immediate and effective action to rectify Cerqueira's complaint; second, even if its response was inadequate, the claim fails because Mrs. Cerqueira cannot prove Gonzalez's behavior rose to the level of severity necessary to establish a hostile work environment claim; and third, because the action was filed with the MCAD more than six months after the last act of harassment, the claim should be dismissed as untimely. Corning separately moves that Mrs. Cerqueira and her children, individually, should be dismissed as plaintiffs to the complaint because they lack standing to assert a harassment claim under Chapter 151B. Because I grant summary judgment on the first ground, I do not reach the remaining contentions.
A. Standard of Review
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). All facts are to be viewed, and all inferences drawn, in the light most favorable to the nonmoving party. Leahy v. Raytheon Co., 315 F.3d 11, 17 (1st Cir. 2002).
Summary judgment may enter when a plaintiff fails to produce sufficient evidence to establish an essential element of his case on which he bears the burden of proof at trial. See Celotex Crop. v. Catrett, 477 U.S. 317, 322 (1986). "Once a movant avers an absence of evidence to support the nonmoving party's case, the latter must adduce specific facts establishing the existence of at least one issue that is both 'genuine' and 'material.'"Sheinkopf v. Stone, 927 F.2d 1259, 1261 (1st Cir. 1991).
A fact is "material" if it has the "potential to affect the outcome of the suit under the applicable law." Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.2d 46, 52 (1st Cir. 2000). For an issue to be "genuine," the evidence relevant to the issue must be "sufficiently open-ended to permit a rational factfinder to resolve the issue in favor of either side." Nat'l Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1st Cir. 1995). To establish a genuine issue of material fact, "[t]he evidence illustrating the factual controversy . . . must have substance in the sense that it limns differing versions of the truth which a factfinder must resolve." Mack v. Great Atl. Pac. Tea Co., 871 F.2d 179, 181 (1st Cir. 1989).
B. Sexual Harassment Claim for Hostile Work Environment
Massachusetts General Laws c. 151B, § 4(16) makes it unlawful "for an employer, personally or through its agents, to sexually harass any employee." Sexual harassment includes workplace misconduct such as "verbal or physical conduct of a sexual nature" having the "purpose or effect of unreasonably interfering with an individual's work performance by creating an intimidating, hostile, humiliating or sexually offensive work environment." Id. at § 1(18). Massachusetts courts have held that this definition comprehensively includes claims for sexual harassment by an employee of the same gender, even where the harassment is not motivated by sexual desire. See Melnychenko v. 84 Lumber Co., 424 Mass. 285, 290 (1997) (finding liability for crude joking, although conduct was not sexually motivated);Cf. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998) ("Harassing conduct need not be motivated by sexual desire to support an inference of discrimination").
I recognize that in certain respects Massachusetts law under Chapter 151B is more generous to plaintiffs than is federal law under Title VII. See, e.g., Brissette v. Franklin County Sheriff's Office, 235 F. Supp. 2d 63 (D. Mass. 2003); Messina v. Araserve, 906 F. Supp. 34 (D. Mass. 1995). In the circumstances of this case the differences between state and federal law, however, are not material.
A hostile work environment claim is a unitary cause of action based on the cumulative effect of harassing acts over time.Cuddyer v. Stop Shop Supermarket Co., 434 Mass. 521, 533 (2001). To establish a hostile work environment claim, the plaintiff must show that he was subjected to unwelcome sexual conduct objectively and subjectively severe and pervasive enough, considering the totality of the circumstances, "to interfere with a hypothetical reasonable person's work performance." Lewis v. Gillette, 1993 WL 291771 at *7 (D. Mass. 1993).
The Cuddyer court recognized that "[i]t is also possible to have an actionable hostile work environment claim based on a single act of sexual harassment." Cuddyer, 434 Mass. at 538 n. 21.
However, even when such a hostile work environment is shown to exist, an employer is not strictly liable for acts of harassment perpetrated by a coworker. An employer's potential liability is negated if, upon receiving actual or constructive notice of the harassment, the employer responds with immediate and effective remedial action. See College-Town v. Mass. Comm'n Against Discrimination, 400 Mass. 156, 166-67 (1987);see also White v. New Hampshire Dept. of Corrections, 221 F.3d 254, 261 (1st Cir. 2000).
Under Chapter 151B, an employer is unconditionally liable for sexual harassment by its supervisors. College-Town, 400 Mass. at 165. It is undisputed that Gonzalez was not Cerqueira's supervisor, nor did he wield any supervisory authority. Hence, Corning cannot be held strictly liable for his alleged conduct.
In the instant case, there is no showing that Corning knew or should have known of Gonzalez's conduct prior to July 14, 2000, when Cerqueira first informed a Corning employee that he was being verbally harassed. Cerqueira's supervisors, who spent nearly 90% of their time on the manufacturing floor, testified to never witnessing any inappropriate conduct; similarly, employees working near Cerqueira's bench reportedly observed nothing unusual between Cerqueira and Gonzalez. There is no evidence supporting Mrs. Cerquiera's assertion that "Corning's supervisors did not adequately monitor" its workers, failing to discover the harassment occurring "right under their nose;" the fact that such activity may in fact have been taking place is insufficient on its own to impute knowledge or notice to Corning's management.See Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990). From the record, the earliest Corning can be said to have knowledge, direct or constructive, was when Cerqueira approached Sipin about being teased on July 14.
After obtaining this information on July 14, Corning "had an affirmative obligation to remedy the situation," College-Town, 400 Mass at 167. Corning contends that it discharged this duty by immediately and effectively responding to Cerqueira's complaint. The evidence of record supports that contention as a matter of law.
Given that an investigation began within one day of being informed of the harassment, Corning's response was, by any measure, prompt. Less than an hour after his initial discussion with Cerqueira, Sipin contacted his supervisor, Samsen, via email to alert him to the complaint. Within hours of receiving this email the next day, Samsen approached Cerqueira to elicit further details and to offer solutions. The next business day (Monday), following company protocol, Samsen met with his supervisor, Roush, and instituted a formal investigation. Only twelve days passed between Cerqueira's first report of harassment and Corning's reprimand of Gonzalez. Those twelve days were filled with meetings between supervisors, communications with Cerqueira and his wife, interviews of witnesses, and a review of email records, all actions designed to pin down and corroborate a reluctant victim's allegations and to prevent future harassment by offering solutions and punishing the perpetrator. The fact that Gonzalez was not confronted immediately does not mean the investigation was not prompt. Sound investigative strategy reasons existed for deferring that confrontation. It cannot be said that Corning's response was sluggish or lackadaisical: it appears Corning's desire was to solve the problem quickly, as evidenced by the supervisors' intention to meet with Cerqueira on Monday, July 17 to explore solutions. Those efforts were complicated by Cerqueira's absence from work and his reluctance to provide substantive details for several days.
See, e.g., Foley v. Proctor Gamble Distribut. Co., 2003 WL 21696544 at *2 (D. Mass. July 21, 2003) ("Remedial action within one month of plaintiff's complaint is, by all standards, prompt.") (emphasis added); Tutman v. WBBM-TV, Inc./CBS, Inc., 209 F.3d 1044, 1048 (7th Cir. 2000) (defendant's reprimand of harassing coworker within one week of complaint prompt); Saad v. Stanley St. Treatment Res., Inc., 1994 WL 846911, at *9 (D. Mass. May 20, 1994) (initiation of investigation two days after complaint lodged immediate);Roderick v. New Hampshire Hospital, 2000 U.S. Dist. LEXIS 1143 at *19 (D.N.H. Jan. 28, 2000) (requiring three months to fully investigate complaint does not preclude finding of immediacy as a matter of law).
I find on this record that Corning's remedial efforts were immediate. I turn to the question of whether those efforts were effective. "[T]he chief measure of adequacy of an employer's response is not the victim's own personal sense of justice, but rather — particularly where there is no prior history of workplace harassment — whether the behavior that gave rise to the complaint has ceased and does not threaten to reoccur." Saad, 1994 WL 846911 at *10 (citing Ellison v. Brady, 924 F.2d 872, 881 (9th Cir. 1991) (remedy should be reasonably calculated to end the harassment and proportionate to the offense)); Sarin v. Raytheon, 905 F. Supp. 49, 53 (D. Mass. 1995) (prompt responses, warnings, and interviews, sufficient).
Applying that standard to the instant case, I encounter a set of facts which took a tragic turn: there was no possible continuation of the harassment because Cerqueira did not return to work and then took his own life. Corning's remedial action consequently was never fully developed. However, as the First Circuit has observed, "where an employer has in good faith taken those measures which are both feasible and reasonable under the circumstances to combat the offensive conduct" it cannot be charged with discrimination. See DeGrace v. Rumsfeld, 614 F.2d 794, 805 (1st Cir. 1980).
The record reveals such a good faith effort by Corning to resolve Cerqueira's complaint. As detailed in the chronology above, Corning undertook a prompt investigation, complicated by Cerqueira's initial reluctance to provide details and his absence from work. Corning was quick to volunteer solutions, offering to move Cerqueira's work station, change his shift, or transfer him to another building: all such solutions are "reasonably calculated" to prevent a reoccurrence. Following Mr. Cerqueira's death, Corning continued with the investigation, interviewing witnesses and formally reprimanding Gonzalez. Because Cerqueira was at all times during the investigation missing from work, there was no threat that the harassment could continue; had he returned, Corning's proposed alternative corrective actions were not so inadequate as to threaten recurrence of the harassment.
Corning's response was not ineffective because it did not approach Gonzalez, the alleged harasser, until Tuesday, July 25, eleven days after Cerqueira's initial complaint. Due in part to Cerqueira's absence from work the week following the complaint, Corning's supervisors did not receive details of the allegations until Wednesday, July 19, when Samsen called Cerqueira at home. Gonzalez was not at work that Thursday or Friday, so was unavailable for interview. The Corning management was justified in choosing to have their formal conference call with Cerqueira on Friday before approaching Gonzalez, so as to clarify the details of the allegations. While certainly Corning could have made arrangements to interview Gonzalez earlier, their decision under the circumstances to proceed in an orderly fashion to investigate the events and develop a remedial plan over a few days when Cerquiera and Gonzalez were not at work together does not render their remedial effort inadequate.
Nor does any delay in Corning's review of Gonzalez's emails or its failure to review the entire email history constitute an inadequate response. It is immaterial whether the emails were reviewed on Wednesday or Friday: given that Corning did not become aware of the offensive emails until Wednesday afternoon, their response was prompt under either scenario. Further, Corning's search of Gonzalez's email was appropriately narrowed by the information Cerqueira had provided: he indicated that the emails were sent in early June. Retrieving the messages as Cerqueira described them, Corning had no pressing reason to search further.
Corning's legal obligation was to develop, in a timely manner, a remedial program reasonably calculated to end established harassment. Corning met this obligation. Accordingly, it is entitled to summary judgment on Cerqueira's claim of a hostile work environment.
III. CONCLUSION
For the foregoing reasons, defendant's motion for summary judgment is GRANTED.