Opinion
Civil Action No: 02-10727-DPW.
August 20, 2004
MEMORANDUM AND ORDER
In this action, plaintiff Donna McKenzie alleges that she was unlawfully discriminated against in her employment with the United States Postal Service ("USPS") on the basis of gender in violation of both federal and state law. Additionally, she brings a state law claim for intentional infliction of emotional distress as a result of the alleged discrimination. Defendant John Potter, Postmaster General of the USPS, has moved for summary judgment, and McKenzie has cross-moved for summary judgment. For the reasons stated more fully below, I will grant summary judgment in favor the defendant. While the record suggests lamentable lapses in sound management practices on the part of the USPS, there is insufficient evidence to support the claims of gender discrimination or intentional infliction of emotional distress.
I. BACKGROUND
While Potter has, pursuant to Local Rule 56.1, filed a statement of undisputed facts to accompany his motion for summary judgment, McKenzie has failed entirely to comply with that rule, which requires that "[o]pposition to motions for summary judgment shall include a concise statement of the material facts of record as to which it is contended that there exists a genuine issue to be tried, with page references to affidavits, depositions and other documentation." Under the rule, such a failure is grounds to deem admitted the facts in Potter's 56.1 statement of facts, see Stonkus v. City of Brockton Sch. Dep't, 322 F.3d 97, 102 (1st Cir. 2003), and I do so here. Rather than rehearse the facts admitted for purposes of the pending motions, I simply incorporate by reference Potter's Rule 56.1 statement.
Local Rule 56.1 requires summary judgment movants to include with their motions:
a concise statement of the material facts of record as to which the moving party contends there is no genuine issue to be tried, with page references to affidavits, depositions and other documentation.
Specifically, Local Rule 56.1 states that "[m]aterial facts of record set forth in the statement required to be served by the moving party will be deemed for purposes of the motion to be admitted by opposing parties unless controverted by the statement required to be served by opposing parties."
McKenzie has also failed to submit her own Rule 56.1 statement of facts in connection with her cross-motion for summary judgment.
II. DISCUSSION
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). 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.3d 46, 52 (1st Cir. 2000), and for an issue to be "genuine," the evidence relevant to the issue, viewed in the light most flattering to the non-moving party, 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).
Cross-motions for summary judgment do not alter the basic summary judgment standard, but rather require courts to determine whether either of the parties deserves judgment as a matter of law on facts that are not disputed. See Adria Int'l Group, Inc. v. Ferre Dev., Inc., 241 F.3d 103 (1st Cir. 2001);Wightman v. Springfield Terminal Ry. Co., 100 F.3d 228, 230 (1st Cir. 1996). Thus, in deciding cross-motions for summary judgment, courts must consider each motion separately, drawing inferences against each movant in turn. Reich v. John Alden Life Ins. Co., 126 F.3d 1, 6 (1st Cir. 1997).
Because McKenzie has failed to provide a counterstatement of facts under Local Rule 56.1, I have deemed admitted Potter's statement of facts. McKenzie's failure to provide a counterstatement of facts has thus put her in a position from which it will be difficult, though not impossible, for her to forestall summary judgment because the record now favors Potter. See Kelly v. United States, 924 F.2d 355, 358 (1st Cir. 1991) ("[T]he decision to sit idly by and allow the summary judgment proponent to configure the record is likely to prove fraught with consequence.").
To be sure, the fact that a nonmovant in summary judgment proceedings has failed to submit a counterstatement of facts outlining disputed facts does not alone warrant summary judgment.Id. (even though it deemed movant's facts as admitted, district court was "still obliged to consider the motion on its merits, in light of the record as constituted, in order to determine whether judgment would be legally appropriate"). Nor does the failure to submit a counterstatement preclude the nonmovant from offering additional evidence in opposition to summary judgment — it only prevents the nonmovant from disputing the facts in the movant's statement of facts. See Euromodas, Inc. v. Zanella, Ltd., 368 F.3d 11, 15-16 (1st Cir. 2004) (construing analogous local rule in District of Puerto Rico).
However, to resist summary judgment successfully, a nonmovant must present "definite, competent evidence" on issues for which she bears the ultimate burden of proof, Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991), cert. denied, 504 U.S. 985 (1992), and here, the only substantive record evidence McKenzie has offered as to any of her claims, other than the conclusory allegations in her briefs, is in exhibits accompanying the memorandum. These, however, do not comply with Fed.R.Civ.P. 56(e). Thus, if Potter here can make a preliminary showing that no genuine issue of material fact exists, summary judgment is appropriate given McKenzie's failure even to attempt to identify in proper form specific facts demonstrating a trialworthy issue. See Calero-Cerezo v. United States Dep't of Justice, 355 F.3d 6, 19 (1st Cir. 2004).
McKenzie has submitted an affidavit with attachments in support of her cross-motion for summary judgment, but those materials do not directly address the substance of her claims. I below consider whether they are sufficient to prevent summary judgment.
B. Gender Discrimination
In Count I of her complaint, McKenzie alleges that she was sexual harassed and discriminated against on the basis of gender in violation of both state law and § 703 of Title VII, 42 U.S.C. § 2000e-2(a).
In her complaint, McKenzie lists chapters 151B § 4(1), 93 § 102, 214 § 1C, and 12 § 11I of Mass. Gen. Laws as the bases for her discrimination claims. In Charland v. Muzi Motors, Inc., 417 Mass. 580 (1994), however, the Supreme Judicial Court held that "where applicable, G.L. c. 151B provides the exclusive remedy for employment discrimination not based on preexisting tort law or constitutional protections." Id. at 586; see Clarke v. Kentucky Fried Chicken of Calif., Inc., 57 F.3d 21, 27 (1st Cir. 1995) (extending Charland to chapter 214 § 1st Cir.). Because McKenzie alleges in her complaint that the USPS discriminated against her on the basis of sex "with respect to compensation, terms, conditions or privileges of employment," Amended Complaint ¶ 23, Charland applies, and thus, McKenzie's sole state law cause of action in Count I is under Mass. Gen. Laws ch. 151B.
In her complaint, McKenzie mentions the Rehabilitation Act of 1973 as a basis for jurisdiction in the federal district court. In detailing the substantive causes of action, however, she mentions only alleged discrimination on the basis of gender, not disability. Moreover, she has adduced no evidence whatsoever that she was discriminated on the basis of disability, and thus any claims under the Rehabilitation Act would not survive summary judgment even if McKenzie had properly raised and pursued them.
As a basis for her claims, McKenzie identifies the following as evidence of discrimination on the basis of gender: (1) certain gender specific remarks were made to her; (2) five separate investigations were carried out concerning McKenzie's receipt of excess funds during her maternity leave, and the conduct of the investigations was not equivalent as to her and a male coworker subject to investigation; (3) she was denied a request for mediation; (4) an attorney handling an arbitration matter was replaced by an attorney who McKenzie claims had insufficient experience; (5) she was ordered to undergo a fitness for duty exam; (6) she was dropped as a particular supervisor's "protege" in the USPS's mentoring program; (7) she was threatened by another supervisor; and (8) her FIOA requests were not adequately met.
While McKenzie did not made explicit, either in her complaint or her summary judgment filings, the precise theory of liability under which she pursues her claims as gender discrimination, I will analyze them as both disparate treatment claims and as hostile work environment claims.
In his memorandum supporting his motion for summary judgment, Potter addressed both types of claims; in her opposition, McKenzie did not offer any additional theories of liability.
1. Disparate Treatment
Section 703 of Title VII states that it is unlawful for an employer
to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.42 U.S.C. § 2000e-2(a)(1).
The state law analogue to Title VII, the Fair Employment Practices Act codified at Mass. Gen. Laws ch. 151B ("chapter 151B") states that it is unlawful for an employer
in the private sector, by himself or his agent, because of the age of any individual, to refuse to hire or employ or to bar or to discharge from employment such individual, or to discriminate against such individual in compensation or in terms, conditions or privileges of employment, unless based upon a bona fide occupational qualification.
Mass. Gen. Laws ch. 151B § 4(1)(B).
For cases arising under chapter 151B, Massachusetts courts have adopted the well-established analytical framework used in federal employment discrimination cases arising under Title VII. See Wynn Wynn, P.C. v. Mass. Comm'n Against Discrimination, 431 Mass. 655 (2000), overruled on other grounds by Stonehill College v. Mass. Comm'n Against Discrimination, 441 Mass. 549, 562 (2004). The parties here have framed their legal memorandum under the standards set forth in the federal case law, and for ease of discussion (while recognizing that in certain respects not material here the federal law and the state laws of employment discrimination are not equivalent), I follow their lead in this discussion.
Under the analytical framework set forth for Title VII cases, a court can analyze a disparate treatment case in one of two ways: The first uses the burden-shifting "pretext" framework set forth in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973), and in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). See Weston-Smith v. Cooley Dickinson Hosp., Inc., 282 F.3d 60, 64 (1st Cir. 2002). The second involves the so-called "mixed-motive" analysis established inPrice Waterhouse v. Hopkins, 490 U.S. 228 (1989). See Weston-Smith, 282 F.3d at 64. Here, Potter argues that theMcDonnell Douglas-Burdine pretext framework applies, and McKenzie does not contend otherwise. Thus, I will apply the pretext analysis. See Hillstrom v. Best Western TLC Hotel, 354 F.3d 27, 31 (1st Cir. 2003) (noting in dicta that plaintiff never suggested in district court that he was presenting mixed-motive case).
I note that the Supreme Court's decision in Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003), which held that direct evidence of discrimination is not required to establish liability in a mixed-motive Title VII case, id. at 101-02, has created some uncertainty about the appropriateness of applying theMcDonnell Douglas pretext framework in Title VII cases. Prior to Desert Palace, the choice of analysis — "pretext" or "mixed-motive" — depended on the type of evidence the plaintiff offered to prove discriminatory intent. Weston-Smith, 282 F.3d at 64. If the plaintiff could demonstrate some direct evidence of discriminatory intent, the latter applied, but if the plaintiff could muster only indirect, circumstantial evidence of discrimination the former applied. Id. Because Desert Palace essentially eliminates direct evidence as a prerequisite for mixed-motive analysis, it is unclear what should now determine whether pretext or mixed-motive analysis should apply in a given case — or whether pretext analysis has even survived the decision. This uncertainty has led to several different responses among the various lower courts. See generally Dunbar v. Pepsi-Cola Gen. Bottlers of Iowa, Inc., 285 F. Supp. 2d 1180, 1192-95 (N.D. Iowa 2003) (summarizing responses of lower courts to Desert Palace). The First Circuit has not resolved the issue, but it has hinted that pretext is still a viable mode of analysis. See Hillstrom v. Best Western TLC Hotel, 354 F.3d 27, 31 n. 3 (1st Cir. 2003) (noting that the Supreme Court itself has used pretext analysis in a post-Desert Palace case). In any event, whether pretext analysis is still available does not affect the outcome of this case because, as discussed below, my decision to grant summary judgment as to the disparate treatment claims is based on McKenzie's inability to demonstrate that she suffered an adverse employment action, which she would have to show even under mixedmotive analysis. See Hillstrom, 354 F.3d at 31 ("[E]ven in mixed-motive cases, plaintiffs must present enough evidence to permit a finding that there was differential treatment in an employment action.").
The pretext framework involves a three-stage analysis consisting of a shifting allocation of evidentiary burdens.Reeves v. Sanderson Plumbing Prods., Inc. 530 U.S. 133, 142 (2000). Applying that framework here, McKenzie in the first instance must demonstrate that (1) she is a member of a protected class; (2) the USPS took an adverse employment action against her; (3) she was qualified for the employment she held; and (4) her position remained open or was filled by a person whose qualifications were similar to hers. See Straughn v. Delta Air Lines, Inc., 250 F.3d 23, 33 (1st Cir. 2001).
If McKenzie can establish a prima facie case, a burden of production shifts in the second stage of the analysis to Potter to "articulat[e] some legitimate, nondiscriminatory reason" for the adverse employment action, McDonnell Douglas, 411 U.S. at 802, by "identifying enough admissible evidence to 'support a [rational] finding that unlawful discrimination was not the cause of the employment action.'" Straughn, 250 F.3d at 33 (quotingFeliciano de la Cruz v. El Conquistador Resort Country Club, 218 F.3d 1, 5 (1st Cir. 2000)).
In the third and final stage of the pretext analysis, if Potter proffers a legitimate, nondiscriminatory reason, the burden shifts back to McKenzie who bears the ultimate burden of proof of showing that the USPS intentionally discriminated against her on the basis of gender, and she can do so by "by showing that the employer's proffered explanation is unworthy of credence."Reeves, 530 U.S. at 143 (2000).
McKenzie spends much of her briefing on the present motions by arguing that she has made a sufficient showing that Potter's explanations for the USPS's conduct were pretextual. In doing so, however, she has put the cart before the horse because she has not sufficiently made out a prima facie case by establishing that she suffered an adverse employment action.
I note that while I need not fully reach the question, I find McKenzie's arguments concerning pretext unpersuasive. While she has argued, without an adequate record basis, that her quondam supervisor Pento was manipulating but covering up the instances of gender based discriminatory activity, I find the argument wholly speculative. McKenzie also contends that efforts on the part of Potter's counsel to supplement or alter responses to interrogatories somehow show that the stated reasons for USPS conduct involved pretext for discrimination. Even accepting McKenzie's argumentative characterizations, I do not find such a connection can be made. In any event, I do not accept the characterizations; I disagree with the suggestion that Potter's counsel's attempts to change the interrogatory responses were made in bad faith or that any inconsistencies between the interrogatories and deposition testimony constitute either evidence of pretext or sanctionable conduct in this case.
In her deposition, McKenzie alluded to claims for retaliation for filing an administrative employment discrimination action. She has neither properly pled such claims, nor has she addressed them in any of her filings. In any event, even had she properly pursued such claims, they would suffer the same fate as her disparate treatment claims because, just as with a disparate treatment claim, to prevail on a retaliation claim, a plaintiff must demonstrate that she suffered an adverse employment action. See Gu v. Boston Police Dep't, 312 F.3d 6, 13-14 (1st Cir. 2002).
As the First Circuit has explained, adverse employment actions in the context of Title VII include "demotions, disadvantageous transfers or assignments, refusals to promote, unwarranted negative job evaluations, and toleration of harassment by other employees." Hernandez-Torres v. Intercontinental Trading, Inc., 158 F.3d 43, 47 (1st Cir. 1998). Moreover whether an employment action is "adverse" — and therefore actionable under Title VII — is gauged by an objective standard. Marrero v. Goya of Puerto Rico, Inc., 304 F.3d 7, 23 (1st Cir. 2002); see Blackie v. Maine, 75 F.3d 716, 725 (1st Cir. 1996) ("Work places are rarely idyllic retreats, and the mere fact that an employee is displeased by an employer's act or omission does not elevate that act or omission to the level of a materially adverse employment action."). Typically, for an adverse employment action to lie, "the employer must either (1) take something of consequence from the employee, say, by discharging or demoting her, reducing her salary, or divesting her of significant responsibilities or (2) withhold from the employee an accouterment of the employment relationship, say, by failing to follow a customary practice of considering her for promotion after a particular period of service." Blackie, 75 F.3d at 725-26 (citations omitted).
McKenzie contends that to establish a prima facie case, all she is required to do is to "make claim" that she has suffered an adverse action. Plaintiff's Memorandum in Opposition to Summary of Judgment, at 4. Thus, she argues that allegations that she made in administrative proceedings that she was "bypassed for a promotion by a man" are sufficient to make out a prima facie case. Id. She further argues that the denial of her right to mediation constituted an actionable adverse employment decision for purposes of establishing a prima facie case. Id. at 4-5.
As an initial matter, McKenzie misunderstands the burdens involved in the pretext analysis. As the Supreme Court has stated, a plaintiff in a employment discrimination case must demonstrate the ability to establish by a preponderance of the evidence (and not merely claim) a "prima facie" case of unlawful discrimination. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993); see also Straughn, 250 F.3d at 33 (plaintiff must introduce "sufficient competent evidence to establish prima facie claims"). Thus, it is not enough that McKenzie merely assert that she has suffered an adverse employment action; she must produce evidence to support the assertion. McKenzie's passing reference in her opposition brief to the allegations she made in an affidavit during administrative proceedings is not enough to create a trialworthy question as to whether the USPS failed to promote her — especially given that she has not even offered the affidavit as evidence in this case.
As for the denial of mediation, even if she were entitled to mediation — which she has not established in the record — McKenzie has not sufficiently established that except that it arose in the employment context the denial was related to her employment, much less that it adversely affected her in her employment. Her conclusory allegations that the denial amounted to withholding of an "accouterment of the employment relationship" is not sufficient to make out a prima facie case.
McKenzie's contention that the alleged sexual harassment she endured in her employment constituted constructive discharge does not alter the conclusion that she has failed to make out a prima facie case. While it is true that a constructive discharge can ground an employment discrimination claim, see Suarez v. Pueblo Int'l, Inc., 229 F.3d 49, 54 (1st Cir. 2000), McKenzie, as discussed infra, has not offered sufficient evidence of actionable sexual harassment on the part of the USPS or its agents to establish a constructive discharge. Thus, it follows almost axiomatically that McKenzie cannot demonstrate that she was constructively discharged as a result of a gender based hostile work environment. See Pennsylvania State Police v. Suders, 124 S. Ct. 2342, 2354 (2004) (hostile-environment-based constructive discharge claim "stems from, and can be regarded as an aggravated case of, sexual harassment or hostile work environment").
Finally, one additional matter pertaining to the adverse employment action issue warrants brief discussion. Though she does not mention it in her summary judgment filings, McKenzie indicated in her deposition testimony that following her maternity leave, she was transferred to a different position with lesser responsibilities. However, upon further questioning, McKenzie testified that her position remained essentially equivalent after the transfer: her wage was not changed and she even agreed that the substantive responsibilities in her new position were not lesser than in her previous position. While the First Circuit has stated that "[c]ertainly if an employee suddenly finds herself with dramatically decreased supervisory authority and without a voice in major decisions, this could constitute an adverse employment action," Gu v. Boston Police Dep't, 312 F.3d 6, 14 (1st Cir. 2002), it elaborated in the same case that "[w]hen a general reorganization results in some reduction in job responsibilities without an accompanying decrease in salary, or grade, those changes cannot be dubbed adverse employment actions." Id.
McKenzie does not contend that her transfer involved any actual reduced responsibilities entailed in her position. Rather, it is clear from McKenzie's deposition that her assertion that she was transferred to a position of lesser responsibility was based on her contention that, because of the ongoing investigations of her by the USPS, certain of her supervisees countermanded her authority. Such unsupported allegations are not sufficient to establish an adverse employment action. See id. at 15 ("bald assertions" that plaintiffs were excluded from important meetings and experienced diminished communications regarding office matters were "insufficient evidence of a material change in working conditions").
I thus conclude that McKenzie has failed to establish a prima facie case of discrimination on the basis of gender because she has failed to demonstrate a trialworthy issue as to whether she suffered an adverse employment action during her employment with the USPS.
Because I conclude that summary judgment is warranted on the merits, I need not reach the question whether McKenzie satisfied the administrative timely-filing requirements associated with Title VII.
2. Hostile Work Environment
To succeed on a hostile work environment claim, a plaintiff must demonstrate:
(1) that she (or he) is a member of a protected class; (2) that she was subjected to unwelcome sexual harassment; (3) that the harassment was based upon sex; (4) that the harassment was sufficiently severe or pervasive so as to alter the conditions of plaintiff's employment and create an abusive work environment; (5) that sexually objectionable conduct was both objectively and subjectively offensive, such that a reasonable person would find it hostile or abusive and the victim in fact did perceive it to be so; and (6) that some basis for employer liability has been established.O'Rourke v. City of Providence, 235 F.3d 713, 728 (1st Cir. 2001). I conclude that McKenzie has not sufficiently demonstrated that she satisfies the elements of this test.
To start, except for the remarks by Marinelli and Pento, McKenzie has not demonstrated that the conduct she identifies as harassment was directly based on gender. The bulk of McKenzie's allegations that the alleged harassment was based on gender rests on her contention that she was subjected to treatment that male employees were not. For instance, she contends that the USPS's various investigations of her receipt of excess salary payments during her maternity leave constituted gender based harassment because the investigations did not equally implicate Powers. The following exchange during her deposition is illustrative:
A And specifically, regarding the question that you asked on how I felt I was discriminated against during that investigation and through the investigation is directed right on the front page —
Q Could you explain for me how that —
A — the investigation. It says, "The subject is Donna McKenzie, allegations of misconduct".
Q And you believe that's discriminatory?
A Absolutely.
Q Can you describe for me how that is discriminatory?
A. It doesn't say "allegations" or "misconduct" on Mr. Mike Powers and Supervisor Donna McKenzie. It specifically states just me, who is a female and not Mr. Powers, the male.
McKenzie Deposition, at 68.
McKenzie's contention that the investigations should have been equally directed at Powers because the anonymous letter implicated them equally is unpersuasive. Though the letter certainly indicates that Powers might be engaged in inappropriate conduct, the letter is clearly and fundamentally directed at McKenzie. In any event, the mere absence of Power's name on the investigation report is insufficient to demonstrate that the investigations constituted harassment based on gender.
McKenzie has offered no record evidence to substantiate her allegation that any of the conduct (other than the statements by Marinelli and Pento) which she claims as harassment was based on gender. Thus, while she complains of myriad wrongs — inter alia, being subjected to the investigations, having her request for mediation denied, having her Privacy Act rights violated, getting dropped in the Protege program — she has not shown that the conduct of the USPS or its agents was based on gender. Her conclusory allegations that no male employee had ever been subjected to similar treatment or, in the case of the investigation, other male employees should have been subjected to similar treatment are not sufficient to withstand summary judgment.
As for the comments by Marinelli and Pento, they were clearly gender specific, but I find that do not constitute actionable sexual harassment. Although quite offensive in nature, they are not enough for a reasonable jury to find that they constitute evidence of conduct sufficiently "severe or pervasive so as to alter the conditions of plaintiff's employment and create an abusive work environment." O'Rourke, 235 F.3d at 728. McKenzie's attempt to tie Pento to the remaining conduct of which she complains and thereby imbue the latter with discriminatory intent is unpersuasive and not supported by record evidence.
Accordingly, I conclude that summary judgment is warranted as to the hostile work environment claims.
C. Intentional Infliction of Emotional Distress
To prevail on a claim for intentional infliction of emotional distress, a plaintiff must establish "(1) that the defendant intended to inflict emotional distress, or knew or should have known that emotional distress was the likely result of his conduct, but also (2) that the defendant's conduct was extreme and outrageous, beyond all possible bounds of decency and utterly intolerable in a civilized community, (3) the actions of the defendant were the cause of the plaintiff's distress, and (4) the emotional distress suffered by the plaintiff was severe and of such a nature that no reasonable person could be expected to endure it." Tetrault v. Mahoney, Hawkes Goldings, 425 Mass. 456, 466 (1997) (quoting Payton v. Abbott Labs, 386 Mass. 540, 555 (1982)).
After evaluating McKenzie, Dr. Land concluded that McKenzie was unfit for duty because she had "adjustment disorder" which could be traced back to her difficulties during her employment with the USPS, and he further stated that she may have been suffering from an "episode of Major Depression." Dr. Land's report is sufficient to create a trialworthy issue as to both the severity of McKenzie's emotional distress and whether her distress was caused by the USPS.
However, McKenzie has failed to adduce sufficient evidence that any of the actions of the USPS or any of its agents were intended to cause emotional distress or reasonably likely to cause emotional distress. Moreover, none of the conduct about which McKenzie complains can fairly be characterized as "extreme and outrageous, beyond all possible bounds of decency and utterly intolerable in a civilized community." Tetrault, 425 Mass. at 466. While the vulgarities by Marinelli and the statement by Pento were certainly offensive, liability for intentional infliction of emotional distress cannot be predicated on "mere insults, indignities, threats, annoyances, petty oppressions or other trivialities." Id. at 466 (quoting Foley v. Polaroid Corp., 400 Mass. 82, 99 (1987)). Thus, I find that no reasonable jury could conclude that the USPS or its agents engaged in conduct that would satisfy the elements necessary to prevail on a claim of intentional infliction of emotional distress, and accordingly, I will grant summary judgment for Potter as to the claim.
III. CONCLUSION
For the reasons set forth more fully above, Potter's motion for summary judgment is GRANTED, and McKenzie's cross-motion for summary judgment is DENIED.