Summary
dismissing constructive discharge claim because plaintiff resigned four months after the last alleged discriminatory act
Summary of this case from Ara v. Tedeschi Food Shops Inc. D/B/A Store 24Opinion
CIVIL ACTION NO. 01-11314-RWZ.
July 21, 2003.
MEMORANDUM OF DECISION
In 1999, Robert Foley worked at Bristol-Meyers Squibb Company ("BMS") and was supervised by Marla Cranston. Cranston and Foley had a sexual relationship defined by two major interactions, the nature and extent of which are disputed. In 2000, Foley resigned and enrolled in business school.
The Proctor Gamble Distributing Company is being sued as the successor-in-interest to Bristol-Meyers Squibb Company.
On June 6, 2001, he filed a thirteen count complaint against BMS and Cranston in Massachusetts state court, which defendants removed to this Court. The Court allowed defendant BMS's Motion to Dismiss as to one count, and plaintiff withdrew three others. The remaining counts allege sexual harassment and retaliation against both defendants (Counts I-V), as well as intentional and negligent infliction of emotional distress (Counts VII and IX), defamation (Count XI), and assault and battery (Count XII) against defendant Cranston. Defendants have filed a Motion for Summary Judgment. Where the facts are disputed, the Court accepts plaintiff's version.
Plaintiff's sexual harassment claims are premised on two major incidents. First, on July 7, 1999, plaintiff offered to drive Cranston back to her car after a team meeting and dinner. He alleges that Cranston kissed him in the car and continued to forcibly kiss him even after he protested. The second incident occurred on August 18, 1999, in Kennebunkport, Maine, while both were on a business trip. On this occasion, Cranston allegedly came to plaintiff's hotel room, lunged at him and groped his genitals as he protested and tried to stop her. In addition, plaintiff alleges that Cranston called and emailed him a few times and sent him a card containing a personal message.
On September 18, 1999, plaintiff complained to Cranston's supervisor, John Nosek, about her. Nosek contacted Margherita Sciarrotta, head of the Human Resources Department, who met with plaintiff shortly thereafter so he could file a formal report. After investigating, BMS concluded that Cranston and Foley had engaged in consensual sexual activity, but nonetheless, decided to take action against Cranston for violating the company's harassment policy.
As a result, BMS removed Cranston from her supervisory role, effective October 15, 1999; denied her stock options and any salary increase for at least one year; required her to attend sensitivity training; reassigned her to an e-commerce position; and transferred her to California at her own expense. (Ex. 6 of Pl.'s Stat. of Disputed Mat. Facts). In the spring of 2000, BMS announced its zero tolerance sexual harassment policy.
Although Cranston was no longer his supervisor, plaintiff states that she continued to try to supervise him by leaving a voicemail message advising him to alert her when he left the office. Even though she was no longer associated with his team, she was invited to its holiday dinner. Plaintiff asserts that Cranston influenced his new supervisor, Ed Trapani, resulting in negative remarks on his 1999 performance review. In view of his 1998 outstanding employee award, plaintiff contends that the negative remarks were unwarranted. Finally, plaintiff states that he continued to work in the same office as Cranston until her transfer.
Plaintiff filed his discrimination charge with the Massachusetts Commission Against Discrimination in early July of 2000. On August 25, 2000, plaintiff resigned from his position at BMS, effective August 29, 2000, and went to business school. The only subsequent interaction he had with Cranston was in October 2000, when she called and asked to talk about the lawsuit, a request that he declined. On December 22, 2000, plaintiff withdrew the charge so he could file this lawsuit.
I. Sexual Harassment Hostile Work Environment
"It is well settled that in order to eradicate discrimination in the workplace, harassment based on gender must be prohibited." Ruffino v. State Street Bank Trust Co., 908 F. Supp. 1019, 1035 (Mass. 1995). To establish a sexual harassment hostile work environment claim, plaintiff must show that he was subjected to unwelcome sexual harassment objectively and subjectively severe enough to create an abusive work environment and that his employer failed to respond meaningfully. O'Rourke v. City of Providence, 235 F.3d 713, 728 (1st Cir. 2001). An employer is not liable if it takes prompt, effective, remedial action. Hayes v. Henri Bendel, Inc., 945 F. Supp. 374, 380 (Mass. 1996).
Although plaintiff has alleged two separate incidents with Cranston, any adverse effect they may have had on his work environment, was substantially alleviated in October 1999, when BMS took exceedingly strong action against Cranston. Although plaintiff contends in his memorandum of law that BMS's actions were not prompt because "no action was taken until the end of January 2000" (Pl.'s Mem. of Law in Support of His Opp. at 7), in his factual statement, he agrees that Cranston was removed from her supervisory position as of October 15, 1999. (Pl.'s Stat. of Disputed Mat. Facts at 9). He also acknowledges BMS's October 18, 1999, memo to Cranston, which lists the disciplinary actions it took against Cranston and warns her that any retaliatory or further inappropriate conduct by her will result in her termination. (Ex. 6 of Pl.'s Stat. of Disputed Mat. Facts). Thereafter, BMS implemented a company-wide zero tolerance sexual harassment policy. Remedial action within a month of plaintiff's complaint is, by all standards, prompt.
The actions of BMS decisively changed plaintiff's work environment; Cranston was no longer his supervisor and he knew that she was being transferred to an office across the country. Nonetheless, he complains that after Cranston was disciplined, she left him a voicemail message telling him to inform her when he left the office, asked his coworkers about his whereabouts, corrected him at meetings and sighed loudly, and walked by his office area and gave him looks that he interpreted to mean "I'm still infatuated with you." (Pl.'s Stat. of Disputed Mat. Facts at 8). The question then becomes whether BMS's intervention was effective. This determination entails an assessment of all the circumstances after BMS took remedial measures, including "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." National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 117, 122 S.Ct. 2061, 2073 (2002) (quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 371 (1993)). In this case, Cranston's voicemail message, occasional criticism, sighs, and looks of infatuation cannot give rise to an actionable claim. Such behavior during the brief period before Cranston's transfer may have been offensive, but it was simply not severe enough. It was neither so pervasive that it interfered with plaintiff's work, nor was it physically threatening. Because BMS took prompt, effective, remedial action, it is not liable for plaintiff's sexual harassment hostile environment claims.
Count III of plaintiff's Complaint alleging sexual harassment in violation of Title VII inexplicably includes 42 U.S.C. § 1983 in the heading. However, § 1983 is neither discussed in the count nor in plaintiff's opposition papers. To the extent that plaintiff is alleging a violation of § 1983, it is dismissed.
Plaintiff's c. 151 B claim against Cranston also fails. Massachusetts law requires that plaintiff file his administrative claims within 180 days of the alleged harassment. M.G.L. ch. 151B, § 5. The statute of limitations began in the fall of 1999, when BMS intervened and effectively ended any potential hostile environment, and had unquestionably run by the time plaintiff filed his administrative claim in July of 2000.
II. Retaliation Causing Constructive Discharge
Proof of a hostile work environment is also a prerequisite to prove constructive discharge by retaliation. Smith v. Bath Iron Works Corp., 943 F.2d 164, 166 n. 4 (1st Cir. 1991). However, hostility for these purposes means a work environment so extreme that staying on the job while seeking redress would have been unbearable. Marrero v. Goya of Puerto Rico, Inc., 304 F.3d 7, 28 (1st Cir. 2002) (citing Keeler v. Putnam Fid. Trust Co., 238 F.3d 5, 10 (1st Cir. 2001)). This is an objective standard and cannot be triggered by the employee's subjective beliefs.Tavares de Almeida v. Children's Museum, 28 F. Supp.2d 682, 686 (Mass. 1998). As a corollary, an employee who does not leave his job within a reasonable time after the last instance of harassment cannot prevail. See Smith, 943 F.2d at 167.
Plaintiff alleges that retaliation by BMS and Cranston after he filed his internal sexual harassment complaint forced him to resign. Specifically, he contends that an unwarranted negative job evaluation, "coupled with all of the harassment and humiliation that he had endured," led him to conclude that he could no longer work at BMS. (Pl.'s Mem. of Law in Support of His Opp. at 8).
But contrary to plaintiff's assertion, his job evaluation was strongly positive by any measure. Among the many comments praising his work, there were two suggestions of constructive criticism. In any case, an unfavorable performance review, without more, is generally insufficient to support a constructive discharge claim. GTE Products Corp. v. Stewart, 653 N.E.2d 161, 169 (Mass. 1995).
Furthermore, the long temporal lapse between the alleged retaliatory acts and plaintiff's resignation undermines, indeed defeats, his constructive discharge claim. Any harassment by Cranston necessarily occurred before her March 2000 departure. Plaintiff states that he received his job evaluation on April 28, 2000. His resignation, some four months later in August 2000, belies any assertion that the job evaluation or any alleged harassment made his work conditions so intolerable that he was forced to leave. See Smith, 943 F.2d at 167 (resignation six months after the last act of discrimination cannot support plaintiff's constructive discharge claim). Furthermore, his decision to resign was based not only on the conditions at BMS, but on his desire to attend business school "to strengthen his skills in hopes of gaining other opportunities in his career." (Pl.'s Statement of Disputed Mat. Facts at 12). Significantly, his letter of resignation focused solely on his opportunity to attend business school: "While I have made numerous positive contributions to the company during the past three and a half years, I have found a substantial opportunity elsewhere." (Exh. 13 at Pl.'s Statement of Disputed Mat. Facts). Defendants' Motion for Summary Judgment is granted as to the retaliatory constructive discharge claims.
III. Defamation
Plaintiff appears to claim that Cranston defamed him by two alleged statements: one stating "I hate that fucking guy" and the second, questioning plaintiff's commitment to his job. "The elements of a defamation claim include (1) a false and defamatory communication (2) of and concerning the plaintiff which is (3) published or shown to a third party." Dorn v. Astra USA, 975 F. Supp. 388, 396 (Mass. 1997). Statements of opinion are not actionable. King v. Globe Newspaper Co., 512 N.E.2d 241, 243 (Mass. 1987). The claim fails because Cranston's first statement is protected opinion, and plaintiff did not allege that her second statement was published to a third party.
IV. Negligent and Intentional Infliction of Emotional Distress and Assault and Battery
Plaintiff asserts a claim of assault and battery against Cranston because she "intentionally threatened Foley with immediate unconsented physical harm by grabbing and kissing him and, in fact, placed Foley in reasonable apprehension of physical harm." (Complaint at ¶ 73). He also alleges negligent and intentional infliction of emotional distress against Cranston. Defendant argues that these claims are barred by the Massachusetts Workers' Compensation Act and the exclusivity provisions of Chapter 151B.
The Workers' Compensation Act provides an "exclusive remedy against coemployees who engage in tortious conduct within the course of their employment and in furtherance of the employer's interest." Brown v. Nutter, McClennen Fish, 696 N.E.2d 953, 956 (Mass.App.Ct. 1998). "Common law actions are barred [by the Workers' Compensation Act] only where: the plaintiff is shown to be an employee; his condition is shown to be a 'personal injury' within the meaning of the compensation act; and the injury is shown to have arisen 'out of and in the course of . . . employment.'" Foley v. Polaroid Corp., 413 N.E.2d 711, 714 (Mass. 1980) (quoting G.L. c. 152, § 26); Green v. Wyman-Gordon Co., 664 N.E.2d 808, 813 (Mass. 1996). Intentional torts which are "in no way within the scope of employment furthering the interests of the employer" are not barred by the Act because they are not an accepted risk of doing business.O'Connell v. Chasdi, 511 N.E.2d 349, 351-52 (Mass. 1987);Morehouse v. Berkshire Gas Co., 989 F. Supp. 54, 65 (Mass. 1997) (because a claim for intentional infliction of emotional distress stemming from sexual harassment is not related to the employers interest, it is not barred). But see Green v. Wyman-Gordon Co., 664 N.E.2d 808, 814 (Mass. 1996) (finding that plaintiff's intentional infliction of emotional distress claim stemming from on-the-job sexual harassment is barred by the Workers' Compensation Act).
At this early stage, any judgment as to plaintiff's ability to prove any set of facts demonstrating that Cranston was acting neither within the course of her employment nor in furtherance of her employer's interest is premature. Brown v. Nutter, McClennen Fish, 696 N.E.2d 953, 957 (Mass.App.Ct. 1998). In addition, causes of action such as assault and battery and intentional infliction of emotional distress, which existed before the adoption of Chapter 151B, are not barred by its exclusivity provisions. Chapin v. University of Mass., 977 F. Supp. 72, 83 (Mass. 1997).
In contrast, plaintiff's negligent infliction of emotional distress claim does not fit into the exception articulated for intentional torts; and, therefore, is barred by the Workers' Compensation Act. Green, 664 N.E.2d at 814 ("There is no question that an action for negligent infliction of emotional distress that is not the result of a bona fide personnel action is barred by the exclusivity provisions of the workers' compensation act."); Morehouse v. Berkshire Gas Co., 989 F. Supp. 54, 65 (Mass. 1997). See Doe v. Purity Supreme, Inc., 664 N.E.2d 815, 818 (Mass. 1996). Therefore, defendant Cranston's Motion for Summary Judgment is allowed as to negligent infliction of emotional distress, but denied as to the assault and battery and intentional infliction of emotional distress claims.
Accordingly, defendants' Motion for Summary Judgment is ALLOWED as to Counts I, II, III, IV, V, VII and XI and DENIED as to Counts IX, and XII.