Opinion
No. 01-0890
December 21, 2001
MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
INTRODUCTION
On December 13, 2001, these parties were before the court for hearing on defendants' motion to dismiss the complaint of plaintiff Ruth Bossi, the former head of the Building Department of the Town of Billerica ("Town"). Plaintiff alleges hostile work environment sexual harassment and retaliation against defendants Town and Town Manager Richard Montuori ("Montuori") and interference with contractual relations, negligent infliction of emotional distress and intentional infliction of emotional distress against defendants Montuori and William Callahan ("Callahan"). For the reasons that follow, defendants' motion is ALLOWED .
At hearing, plaintiff acknowledged that her claim for negligent infliction of emotional distress was barred by the Wroker's Compensation Act. Consequently, the court does not address that claim.
BACKGROUND
The following facts are not disputed. Plaintiff was hired by the Billerica Building Department in 1987. In 1989, she became the Town's Inspector of Buildings, supervising a department of seven people, including defendant Callahan, who has been a plumbing and gas inspector for the Town since 1995. In the spring of 1998, plaintiff and Callahan had a dispute as to how much vacation time Callahan was owed. Callahan wanted plaintiff to approve his request for additional vacation time based on his prior state service, but plaintiff declined to do so without proper documentation. The relationship deteriorated and Callahan told several Town employees that he was going to "get rid of Bossi."
Plaintiff alleges that from the time of the vacation dispute until December 1998, when she was placed on a paid administrative leave of absence ("PLOA"), Callahan openly insulted her and refused to carry out her directives. He would not account for his whereabouts, would not wait on people who came to the office for assistance and used offensive language, calling plaintiff a "broad" and responding with expletives when she assigned him tasks.
In June of 1998, Callahan began sending his supervisors letters criticizing plaintiff's management of the Department. At that time, he wrote to Acting Town Administrator, Evelyn Haines, to complain about plaintiff's performance. Callahan stated in the letter that he fully understood the repercussions and ramifications of such a communication and the possibility of retaliation and retribution by plaintiff. Connolly stated, in part, that (i) plaintiff allowed personal matters to take precedence over her professional responsibilities, (ii) the Department was run like a "kindergarten," (iii) plaintiff treated her staff like children and (iv) the Department had become a hostile work environment and a "demoralizing" place in which to work. On September 18, 1998, Connolly wrote to the newly installed Town Manager, Montuoro, that plaintiff had threatened Connolly and two other employees with retribution for filing a grievance against her concerning an error in wage adjustments. In that letter, Connolly also addressed his vacation dispute with plaintiff, accusing her of "creative bookkeeping." Finally, on October 23, 1998, Connolly wrote to Montuori to complain about an incident that he thought illustrated the hostile work environment in the Department.
In September of 1998, an inspector for the Building Department, Chris Clement ("Clement"), who was leaving the Department to work for another Town, had an exit interview with Montuori. During that interview, Clement criticized plaintiff's performance, stating that she demeaned employees and created a hostile work environment. He also showed Montuori two invoices totaling over $1000 for a camera and related equipment for the Department. Clement told Montuori that he had found the invoices in a pile of folders on his desk, but had never seen the camera equipment at or in use by the Department.
On or about October 5, 1998, Montuori issued a memorandum to all department heads, advising them that "all employees are to treat each other with respect and courtesy," and stating that all problems that could not be solved in a civil manner should be forwarded to his attention. On October 15, 1998, plaintiff had a meeting with Montuori to present an overview of her Department and its functions. At that meeting, Bossi identified ten subject areas that required attention, including reporting authority, telephone calls, absenteeism, compensatory time, ventilation, an Inspector vacancy and an ADA issue. Plaintiff also mentioned the vacation dispute, stating that vacation was an ongoing issue with Callahan, that it had been causing dissension and that Callahan would not listen to her. Plaintiff asked Montuori to have a meeting with her and Callahan to resolve the issue. Montuori responded that he would meet with Callahan first. At that time, plaintiff made no mention of any other concerns about Callahan or any sexual harassment issues. Bossi 1/15/01 deposition at 140-143.
On October 21, 1998, plaintiff composed a handwritten letter to Montuori complaining about "offensive and abusive behavior from an employee" who sought to "provoke and discredit (her) as a department head." The letter did not identify the employee. On November 4, 1998, plaintiff delivered the letter to Mandara. Bossi Affidavit at 147. She told Montuori that Callahan and other employees responded to her requests with statements such as "Go fly a f-in' kite; you run this place like a kindergarten" and that Callahan had sat on her desk swinging a golf club and had also given her the "silent treatment". Bossi Affidavit at 92-94. She further stated that Callahan undermined her authority, corrected night school papers while he was on duty and let plumbers use the Department office to complete their paperwork for state license applications. Following this conversation, Montuori met with members of the Department to investigate plaintiff's charges and heard several complaints, including a report that plaintiff was suspected of misusing public funds and of giving favored treatment to family members.
Although the date upon which Montuori actually received plaintiff's complaint is in dispute, that does not affect this analysis.
On December 1, 1998, Mandara had a meeting with plaintiff at which he informed her that he was investigating her for the alleged misuse of public funds.
Plaintiff was suspended with pay on December 7, 1998, pending an investigation into the allegations against her, including mistreatment of Building Department employees, neglect of customers, failure to perform in a professional manner, improper use of Town funds to purchase personal items, conducting personal business on Town time and unethical and irregular practices, including transacting business for personal gain.
On December 21, 1998, plaintiff filed a grievance alleging that Mandara had failed to respond to the letter she drafted on October 21 and discussed with him on November 4, 1998. Bossi Affidavit at 177. On January 21, 1999, plaintiff filed a complaint with the Massachusetts Commission on Discrimination ("MCAD"), alleging that Mandara had violated the Town's sexual harassment policy by failing to investigate her October 21 letter of complaint. The MCAD complaint alleged that Callahan had (i) used expletives in referring to plaintiff in the presence of other employees and the public, (ii) refused to take telephone messages, (iii) refused to acknowledge new policies or procedures implemented by plaintiff, (iv) refused to comply with work schedules implemented by plaintiff and (v) had fits of rage in the office. In reference to the vacation issue, plaintiff alleged that Callahan told other employees "forget that broad . . . she is going to screw you out of the time."
On April 24, 1999, the Town held a hearing on the charges, and plaintiff was terminated on September 3, 1999. Plaintiff grieved the termination and an arbitrator found "evidence of appropriation of Town funds for personal purposes . . . sufficient on its own to sustain the penalty of termination."
Plaintiff then filed this action against the Town, the members of the Town Board of Selectmen, Mandara and Callahan.
The action against the individual Selectmen was dismissed without prejudice by this court (McEvoy, J.) on November 2, 1999, in return for a stipulation that in the event a judgment for the plaintiff entered in this matter and that the judgment included an order that plaintiff be reinstated, the members of the Board of Selectmen would take no action to veto that reinstatement.
DISCUSSION
Summary judgment is granted where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991);Cassesso v. Commissioner of Correction, 390 Mass. 419, 422 (1983); Mass.R.Civ.P. 56(c). The moving party bears the burden of affirmatively demonstrating that there is no triable issue of fact. Pederson v. Time, Inc., 404 Mass. 14, 17 (1989). A party moving for summary judgment who does not have the burden of proof at trial may demonstrate the absence of a triable issue either by submitting affirmative evidence negating an essential element of the nonmoving party's case or by showing that the nonmoving party has no reasonable expectation of proving an essential element of its case at trial. Kourouvacilis at 716.
Here, defendants contend that plaintiff will be unable to prove essential elements of her claims. The court addresses each claim in turn.
1. Sexual Harassment/Hostile Work Environment
Pursuant to G.L. c. 151B, § 4(16A), it is unlawful for an employer to "sexually harass an employee." "Any physical or verbal conduct of a sexual nature which is found to interfere with an employees work performance through the creation of a humiliating or sexually offensive work environment can be sexual harassment under G.L. c. 151B."Melnychenko v. 84 Lumber Co., 424 Mass. 285, 290 (1997) (emphasis added). See also G.L. c. 151B, § 1(18) (sexual harassment defined, in part, as "sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature" which has "the purpose or effect of unreasonably interfering with an individual's work performance by creating an intimidating, hostile, humiliating or sexually offensive work environment").
To establish her claim based on work environment (G.L. c. 151B, § 1 [b]), the plaintiff was required to demonstrate that she worked in a sexually hostile environment that unreasonably interfered with her work performance. To sustain that burden, she needed to establish that the conduct alleged was sufficiently severe and pervasive to interfere with a reasonable person's work performance. This 'objective' reasonable person standard has been interpreted to mean that the evidence of sexual harassment is to be considered from the "view of a reasonable person in the plaintiff's position." Muzzy v. Cahillane Motors, 434 Mass. 409, 411 (2001) (quotations and citations omitted). The "reasonable woman" test to be applied in such cases has both a subjective and an objective component. Muzzy, supra at 412 n. 2. It is not sufficient to allege that the defendants' conduct was offensive or annoying, nor is it sufficient that the allegedly hostile or abusive conduct be regarded as sexual harassment by the plaintiff without regard to the application of an objective test.Id. at 414.
Plaintiff contends that Callahan used profanity toward her and demeaned her because she was a woman, publicly calling her a "broad" and responding to her directives with comments such as "what would she know . . ." and "you're beginning to sound like my wife." Comments such as these, while offensive and inappropriate, are not evidence of sexual harassment. Neither the complaint, the concerns plaintiff discussed with Montuori about her Department, the letter plaintiff wrote on October 21, 1998, nor the allegations in plaintiff's affidavit contain even a breath of evidence that Callahan engaged in verbal or physical conduct of a sexual nature toward plaintiff. Id. at 290.
The use of profanity alone may not constitute harassment in the workplace, even where those words have "an explicit sexual connotation." See Prader v. Leading Edge Products, Inc., 39 Mass. App. Ct. 616, 619, n 2 (1996) (plaintiff complained that supervisor referred to her as a "cocksucker" and "a fucking. . . . .) See also Ramsdell v.Western Massachusetts Bus Lines, Inc., 415 Mass. 673, 678 (1993). Here, plaintiff establishes at most that Callahan's behavior toward her was insubordinate, rude and offensive. Neither federal nor state law mandates polite behavior or clean language in the workplace. Prader,supra at 619.
In Prader, the court explained: "Although the words used by Cardamone do have an explicit sexual connotation their meaning and usage is not limited to that connotation. Her words amounted to no more than crass garden-variety expletives; they were not sexual commands or lurid innuendoes. While scenarios can exist in which explicit sexually charged language alone constitutes harassment, the 'culture of profanity' in existence at the defendant's work place, although offensive to the plaintiff, simply was not a form of sexual harassment." Prader, supra at 619.
Because Callahan's physical and verbal conduct, however offensive, was not of a sexual nature, plaintiff will be unable to show that Callahan's actions interfered unreasonably with her work performance through the creation of a humiliating or sexually offensive work environment. Moreover, as Callahan's superior, plaintiff was not in a position where she was forced to tolerate unwelcome behavior or language from a subordinate.
The exact date on which Montuori received plaintiff's October 21 letter does not alter the analysis. Because plaintiff's letter did not allege physical or verbal conduct of a sexual nature, and did not identify the particular employee allegedly engaging in inappropriate conduct toward plaintiff, there was no evidence of sexual harassment for Montuori to investigate. Moreover, plaintiff's deposition testimony is that, at the October 15, 1998 meeting, where she presented an overview of the Department, she told Montuori that her concerns about Callahan were related to the vacation dispute. At that meeting, she apparently made no claims of sexual harassment against Callahan. Once Montuori had placed plaintiff on paid leave, he thoroughly investigated all complaints relating to her Department, including the sexual harassment claim.
Where there is no evidence that Callahan engaged in verbal or physical conduct of a sexual nature or interfered unreasonably with plaintiff's work performance by creating a sexually offensive environment, plaintiff has failed to establish an essential element of her sexual harassment claim and defendant is entitled to summary judgment on Counts I and II.
Because G.L. c. 151B is limited to employers with more than six employees, G.L. c. 214, § 1C permits an individual whose employer employs fewer than six people to bring a claim for sexual harassment.Green v. Wyman-Gordon Co., 422 Mass. 551, 557 (1996). Where, however, as here, an employer has more than six employees, "G.L. c. 151B provides an exclusive remedy for sexual harassment claims." Guzman v. Lowinger, 422 Mass. 570, 572 (1996). See G.L.c. 151B, § 9. Consequently, plaintiff has no cause of action under G.L. c. 214, § 1C.
2. Retaliation
To establish a prima facie case for a retaliation claim, a plaintiff must prove that she reasonably believed that the protested conduct violated G.L. c. 151B, that she suffered an adverse employment action and that there was a causal connection between the protected conduct and the adverse action. See Ligenza v. Genesis Health Ventures of Mass., Inc., 995 F. Supp. 226, 232 (1998). "At a minimum, there must be competent evidence that the alleged retaliator knew of the plaintiff's protected activity and that a retaliatory motive played a part in the adverse employment action alleged." See Goguen v. Quality Plan Administrators No. 975874 , Middlesex Superior Court (February 11, 2000) (Gershengorn, J.). Here, plaintiff contends that she was placed on paid administrative leave in December of 1998 in retaliation for making a sexual harassment claim against Callahan. The plaintiff has failed to offer any evidence to substantiate this claim.
The court assumes, arguendo, that plaintiff reasonably believed that Callahan's insubordinate conduct constituted sexual harassment. There is no evidence, however, that even if Montuori received the letter prior to plaintiff's suspension, he could reasonably have believed that general allegations about "offensive and abusive behavior from an employee" who sought to "provoke and discredit (her) as a department head" constituted a sexual harassment claim against a particular individual. On October 15, 1998, less than a week earlier, plaintiff had indicated to Montuori that the vacation issue was her only complaint against Callahan.
Even when viewed generously in favor of the plaintiff, the evidence in the summary judgment record simply would not permit a reasonable fact finder to conclude that the charges in the October 21 letter rose to the level of sexual harassment. The record is clear that Montuori placed plaintiff on paid leave because of allegations that she used Town funds for personal purchases, a charge that was later substantiated by the arbitrator's decision. There are no genuine issues of material fact as to whether Montuori's decision to place plaintiff on paid leave constituted retaliation for plaintiff's October 21 letter. Accordingly, defendants are entitled to summary judgment on Count III.
4. Intentional Interference with Contractual Relations
Plaintiff alleges that Callahan and Montuori "wrongfully interfered" with her contractual relations with the Town. The claim fails for two reasons. First, to the extent that the contract claim is based on unlawful discrimination, the count is barred by the exclusivity provision of G.L. c. 151B, § 9. See Green v. Wyman-Gordon Co., 422 Mass. 551, 558 (1996).
Second, even if the claim were not so barred, plaintiff has failed to prove the elements of a claim of intentional interference with contract relations. Such a claim requires that plaintiff prove (i) that she had an employment contract with the Town, (ii) that Montuori and/or Callahan knowingly induced the Town to breach the contract, (iii) that Montuori and/or Callahan's conduct was improper in motive or means ["actual malice" standard] and (iv) that plaintiff was harmed by defendants' actions. See Shea v. Emanuel College, 425 Mass. 761, 764 (1997). Here, it is not disputed that plaintiff had no employment contract with the Town. Consequently, plaintiff will be unable to prove an essential element of her claim.
Nor is there any evidence that Mandara or Callahan attempted to interfere with the grievance procedure under the CBA, the only contract affecting plaintiff's rights. See Azzi v. Western Electric Co., 19 Mass. App. Ct. 406, 409, rev. denied 394 Mass. 1103 (1985) (employee may bring action against employer for violation of collective bargaining agreement if he alleges and shows that union has failed in its duty to represent him fairly, or that his employer repudiated or otherwise nullified the grievance procedures). Plaintiff fully availed herself of the grievance procedure both in pursuing her sexual harassment claim and in challenging her termination. There is no evidence that Montuori or Callahan attempted to interfere in any way with plaintiff's right to pursue these grievance procedures.
Finally, plaintiff concedes that a finding of retaliation is an essential ingredient in proof of actual malice. For the reasons stated above, however, the record before the court does not permit a finding of unlawful retaliation.
6. Intentional Infliction of Emotional Distress
Ordinarily, common law claims against an employer are barred by the exclusivity provision of the Worker's Compensation Act. G.L. c. 152,§ 25. Where, however, there is a claim for intentional infliction of emotional distress against a co-employee, to establish a valid claim, the plaintiff must show that the actions were not committed within the course of the worker's employment or in furtherance of the employer's interest. See O'Connell v. Chasdi, 400 Mass. 686, 690-91 (1987). Here, there is no question that Montuori's and Callahan's actions arose in the course of employment. See Fusaro v. Blakely, 40 Mass. App. Ct.120, 124 (1996). InFusaro, defendants investigated a hospital pharmacy technician for possible drug dealing. The defendants threatened to have someone plant drugs in the technician's car and told him that he would be fired if he did not confess to the charges. Under those circumstances, the Appeals Court held that the technician's claim was barred by G.L. c. 152, § 25, because "however distorted the defendant's understanding of the proper performance of their job may have been, we cannot say that they were acting outside the scope of their employment". Contrast, Brimage v. City of Boston, No. 97-1912 (Suffolk Superior Court) (January 24, 2001) (Fremont-Smith, J.) (Plaintiff's injuries as a result of a sexual assault by her supervisor held outside scope of supervisor's employment where conduct occurred outside workplace, during personal time, and in personal residence).
There can be no dispute over the fact that reporting and investigating allegations of employee theft furthers the employer's interest. SeeTenedios v. Wm. Filene's Sons Co., 20 Mass. App. Ct. 252, 256 (1985) (security guard's improper seizure of sales clerk furthered employer's interest in resisting pilferage). Here, moreover, where the charges against plaintiff were supported in full by an independent arbitrator's decision, there are no genuine issues of fact as to whether Callahan and Montuori were acting to further their employer's interest. The claims are barred by the exclusivity provision of the Worker's Compensation Act.
Even if the claims were not so barred, plaintiff has failed to offer evidence that would permit a finding that the defendants acted in an extreme and outrageous manner. See Mello v._Stop and Shop Cos., Inc., 402 Mass. 555 (1988) (one of elements of claim of intentional infliction of emotional distress is conduct that is "utterly intolerable in a civilized society"). Accordingly, Callahan and Mandara are entitled to summary judgment on plaintiff's claims for intentional infliction of emotional distress.
CONCLUSION
Based on the summary judgment record, plaintiff will be unable to prove essential elements of all of her claims against defendants, and defendants are entitled to summary judgment.
ORDER
For the foregoing reasons, it is hereby ORDERED that defendants' motion for summary judgment is ALLOWED .
___________________________ Peter W. Agnes, Jr. Justice of the Superior Court Dated: December 21, 2001