Opinion
Civil Action No. 98-CV-40178-NMG.
October 31, 2000.
MEMORANDUM ORDER
Plaintiff Donald Vienneau ("Vienneau"), a former delivery truck driver for Polar Corporation ("Polar"), filed a complaint against Polar and Richard Kenary ("Kenary"), Vienneau's supervisor and Polar's warehouse manager. On November 29, 1999, Vienneau and Kenary filed a stipulation of dismissal with prejudice as to Kenary (Docket No. 20).
The claims against Polar are as follows: Count I for sexual harassment in that Polar created a sexually hostile work environment in violation of M.G.L. c. 151B, §§ 4(1) and 4 (16A), Count III for sexual harassment in violation of 42 U.S.C. § 2000e (hereafter "Title VII") and 42 U.S.C. § 1983, Count IV for discrimination against Vienneau on the basis of perceived sexual orientation in violation of M.G.L. c. 151B, §§ 4(1) and 4 (16A) and Title VII, Count V for adverse employment action against Vienneau in violation of M.G.L. c. 151B, §§ 4(4) and 4 (4A) and Title VII, and Count VI for constructive discharge of Vienneau.
Pending before this Court is Polar's Motion for Summary Judgment on all claims against it (Docket No. 25), to which Vienneau has filed an Opposition.
I . Background
Polar is a soft drink manufacturer located in Worcester, Massachusetts. Polar's main facility is located on Walcott Street. Its annex warehouse is approximately three miles away on Millbury Street.
Polar hired Vienneau in August of 1994 to work as a truck driver. Vienneau's responsibilities included picking up trailers of full bottles from Walcott Street, delivering them to Millbury Street, and taking trailers of empty bottles from Millbury Street back to Walcott Street. The round trips are known as "shuttles", and the drivers who make them are called "shuttle drivers".
Richard Kenary is Polar's warehouse manager and has been employed by Polar for over nineteen years. At all relevant times, Kenary worked primarily at Polar's Millbury Street location. Until October, 1996, all shuttle drivers, including Vienneau, reported directly to Kenary.
Both Kenary and Vienneau worked the evening shift between 5:00 P.M. and approximately 1:00 A.M. All employees on the evening shift are men.
In October of 1996, Vienneau complained for the first time to Carl Hafford, Polar's production manager ("Hafford"), about some offensive remarks Kenary allegedly made to him. Hafford arranged for Vienneau's complaint to be heard by senior management. Vienneau recalls two such meetings. The first took place in October, the second in November. Over the course of those two meetings, Vienneau met with Ralph Crowley, Sr., Chairman of the Board, and several other members of senior management. A few of Vienneau's co-workers attended the second meeting. At those meetings, Vienneau stated that Kenary had called him derogatory names, and that Kenary had flicked a cigarette butt in his direction on two occasions, hitting him once.
Following the meeting, Polar contends that its management summoned Kenary to Walcott Street, informed him of the allegations, and placed him on administrative leave pending an investigation of Vienneau's charges. Kenary was also told to get a physical examination because management believed he had been under a great deal of stress. The subsequent physical revealed a heart problem and on December 10, 1996, Kenary underwent a quadruple by-pass. For the period between his physical and his surgery in December, Kenary was placed on a reduced work schedule. It was decided that all shuttle drivers would report to Kenary's assistant, John Daubney. During that period, Vienneau complained two more times about Kenary's behavior. Kenary did not work for approximately eight weeks after the surgery and returned to work after the operation on February 2, 1997.
The parties dispute the dates of the alleged offensive conduct. Polar contends that the initial meeting between Vienneau and Polar (after the first complaint) was October 2, 1996. Vienneau argues that Kenary's most egregious statements occurred in "late October of 1996", and that the initial meeting with Polar management occurred within one week after that incident.
As a result of Vienneau's second and third complaints, management convened a meeting between Kenary, Vienneau, and Brian LaForte, Kenary's supervisor, during which an unsuccessful attempt was made to "air things out".
Vienneau's last day of work at Polar was on February 27, 1997. Vienneau alleges the following specific offensive behavior by Kenary: (1) in response to his request for a raise, Kenary told Vienneau to get on his knees and start sucking, while gesturing toward his genitalia; (2) Kenary told him he "looks like a queer", that he "sounds like a faggot", that, on numerous occasions, Kenary called Vienneau a "c***s***er", a "motherf***er" and a "retard"; and (3) he and the other workers on his shift noticed that Kenary had an obsession with male genitals.
Vienneau stated in deposition that he is not particularly sensitive to sexual language, comments or jokes, or that such things offend him more than they offend other people. He also stated that, in general, he is "all for a dirty joke", but that there is a difference between a joke and "when something's directed at you".
Vienneau also alleges that Kenary engaged in a lot of "game playing" at Vienneau's expense, and that he frequently "busted" Vienneau's "chops". Vienneau cites an occurrence when he had asked Kenary, three hours prior to closing, to give him an estimate as to what time closing would occur, so that Vienneau could arrange for a ride home. Kenary did not respond and, upon returning from a shuttle, the building was being locked up and Vienneau was forced to wait outside for his ride. Vienneau contends that Kenary gave him a hard time when Vienneau asked for time off to attend his grandmother's funeral, although he was ultimately allowed to attend.
After Kenary's return from administrative leave and before his heart operation, Vienneau alleges he reported to Kenary for about a week. During that time, Vienneau admits that Kenary did not make any sexual comments or call Vienneau any names, but states that Kenary stared and leered at him and gave him "the evil eye". Vienneau asserts that after Kenary's return, his workload increased. He was given more loading and unloading work than the other drivers who continued to do the "gravy work", i.e. driving shuttles.
Vienneau believes that Kenary was responsible for his increased workload because he would see Kenary prepare work assignments, hand them to Daubney, the designated intermediary, who would then, in turn, assign the work.
Vienneau alleges that during his employment at Polar, he experienced a facial tick, nausea resulting in weight loss of approximately 40 pounds, an inability to sleep, and stress. Additionally, he drank more alcohol during that period. All of those problems decreased after February, 1997.
The last day Vienneau reported to work was February 27, 1997. He decided to leave Polar after learning that Daubney, the intermediary, would be going on vacation. He never inquired of Daubney, Kenary or Polar management about whether he would be working under Kenary's supervision while Daubney was on vacation but he believes someone told him that. Kenary stated in his deposition that he personally notified John Stake and Daubney that Stake would be acting as intermediary while Daubney was on vacation, and that Daubney reported that he had relayed that information to Vienneau.
Vienneau denies that the existence of pornography in the work place contributed to any of the claims or complaints he presents in this action, although pornographic magazines were plentiful in and around the warehouse.
II . Discussion A . Summary Judgment Standard
In accord with Fed.R.Civ.P. 56(c), summary judgment must be granted if "there is no genuine issue as to any material fact" and "the moving party is entitled to a judgment as a matter of law." See Fed.R.Civ.P. 56(c); Magee v. United States, 121 F.3d 1, 3 (1st Cir. 1997).
A genuine issue is one which a reasonable fact finder could resolve in favor of the nonmoving party. Id. Not every genuine factual conflict, however, necessitates a trial. "It is only when a disputed fact has the potential to change the outcome of the suit under the governing law if found favorably to the nonmovant that the materiality hurdle is cleared." Parrilla-Burgos v.Hernandez-Rivera, 108 F.3d 445, 448 (1st Cir. 1997) (internal quotations omitted).
Once the moving party has demonstrated that no genuine issue of material fact exists, the burden of production shifts to the nonmovant to contradict the demonstration, by coming "forward with specific provable facts which establish that there is a triable issue." Matos v. Davila, 135 F.3d 182, 185 (1st Cir. 1998). The role of a summary judgment motion in general "is to pierce the boilerplate of the pleadings and assay the parties' proof in order to determine whether trial is actually required."Coyne v. Taber Partners I, 53 F.3d 454, 457 (1st Cir. 1995).
B . Whether Vienneau's Claims are Time-Barred
Any person seeking relief under Title VII must file a charge with the Equal Employment Opportunity Commission ("EEOC") "within one hundred and eighty days after the alleged employment practice occurred", 42 U.S.C. § 2000e-5 (e)(1), or if a claim is filed with a state or local agency "within three hundred days after the alleged unlawful employment practice occurred". Id.
Before initiating a court action alleging a violation of Section 151B, a plaintiff must file a complaint with the Massachusetts Commission Against Discrimination ("MCAD") within six months after the alleged act of discrimination. Stanislas v.Cigna, 73 F.3d 355, *1 (D. Mass. 1996), citing Christo v. Edward G. Boyle Insurance Agency, Inc., 402 Mass. 815, 817 (1988); M.G.L. c. 151B, §§ 5, 9. "In the absence of a timely complaint to the MCAD, there may be no resort to the courts." Stanislas, 73 F.3d at *1, citing Sereni v.Star Sportswear Manufacturing Corp., 24 Mass. App. Ct. 428, (Mass.App. Ct. 1987).
The last act of sexual harassment alleged by Vienneau involved Kenary's response when Vienneau asked him for a raise ("the raise incident"). Polar contends that incident took place prior to October 3, 1996, the date it offers for the first meeting between Polar's upper management and Vienneau. Vienneau alleges that the raise incident occurred at the end of October. According to the MCAD's date stamp on Vienneau's Charge of Discrimination, the complaint was received on April 11, 1997. At that time, Vienneau requested that his claim be cross-filed with the EEOC.
Vienneau signed the MCAD claim before a notary public on April 7, 1997.
The discrepancy in dates constitutes a genuine issue of material fact as to whether Vienneau's claims are barred by the relevant statutes of limitations. If the raise incident occurred in late October, as Vienneau alleges, then his complaint was filed with the MCAD in a timely manner. Because there is a genuine issue as to the date of the alleged discriminatory act, summary judgment on the statute of limitations question cannot be granted in favor of Polar. Therefore, this Court assumes, for the remainder of this memorandum, that Vienneau's complaint is not time-barred and declines to address Vienneau's arguments with respect to the applicability of equitable tolling or the continuing violations theory.
C . Count III: Sexual Harassment in Violation of Title VII and 42 U.S.C. § 1983
Title VII of the Civil Rights Act of 1964 provides that it is
[an] unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment because of such individual's . . . sex.42 U.S.C. § 2000e-2 (a)(1). The law was intended to provide a "broad rule of workplace equality". Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993). Consistent with that legislative intent, sexual harassment has been found to be one virulent form of sex discrimination in the workplace. Id.
Two kinds of sexual harassment claims have been identified under the federal statute. Morrison v. Carleton Woolen Mills, Inc., 108 F.3d 429, 436 (1st Cir. 1997); College-Town Div. of Interco, Inc. v. Massachusetts Comm'n Against Discrimination, 400 Mass. 156, 162 (1987). One such claim is "quid pro quo harassment" in which a supervisor requires sexual favors from his or her employee as a term or condition of employment. Morrison, 108 F.3d at 436; College-Town, 400 Mass. at 163. The other variety involves the situation wherein an employer fosters or tolerates a hostile work environment. Morrison, 108 F.3d at 436;College-Town, 400 Mass. at 163; see also M.G.L. c. 151B, § 1 (18) (sexual harassment includes "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").
Furthermore, the United States Supreme Court has noted that in same-sex harassment cases, as in all sexual harassment cases, the plaintiff "must always prove that the conduct at issue was not merely tinged with offensive sexual connotations" but in fact constituted discrimination "because of . . . sex." Oncale v.Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998). This statutory "because of . . . sex" requirement is
not met merely because workplace harassment involves sexual matters: the substance of the violation is discrimination based on sex, or as the [Supreme] Court put the matter, "whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed."Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 258-259 (1st Cir. 1999), citing Oncale, 523 U.S. at 80.
1. Hostile Work Environment
In order for a claim of sexual harassment to rise to the level of an actionable Title VII violation under the hostile environment theory, the harassment must be "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Morgan v.Massachusetts General Hospital, 901 F.2d 186, 192 (1st Cir. 1990)quoting Mentor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986).
The determination of whether a work environment is abusive or hostile "can be determined only by looking at all the circumstances." Harris, 510 U.S. at 23. The list of such circumstances
include[s] 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.Harris, 510 U.S. at 23. Conduct which seriously affects a reasonable person's psychological well-being may also violate Title VII. Id. An effect on the employee's mental health is also relevant with respect to whether the plaintiff actually found the environment abusive but even though psychological harm, like any other relevant factor, may be taken into account, no single factor is required. Harris, 510 U.S. at 23.
Furthermore, a plaintiff must allege that the defendant's actions were sufficiently severe or pervasive to create an objectively hostile or abusive work environment, i.e. an environment that a reasonable person would find hostile or abusive. Harris, 510 U.S. at 21. The victim must also subjectively perceive the work environment as abusive. Harris, 510 U.S. at 20-22.
As part of the basis of his claim of a hostile work environment, Vienneau points to the occasion on which Kenary told him he "looks like a queer" and "sounds like a faggot", and to the many occasions Kenary called him a "motherf***er", a "retard" and a "c***s***er". Though profanity and vulgar phrases on their own may not be enough to create a hostile work environment in violation of Title VII, Cf. Prader v. Leading Edge Products, Inc., 39 Mass. App. Ct. 616, 619-620 (1996), Kenary's conduct, if as alleged, went beyond profanity and involved the incident of Kenary's response to Vienneau's request for a raise. In this case, a reasonable jury could conclude that an objectively hostile or abusive work environment existed in violation of Title VII. Therefore, summary judgment on Count III is not appropriate.
Although it is not clear from the complaint whether Vienneau intends to state a claim for quid pro quo harassment, the Court construes the complaint, as presently constituted, as not alleging facts sufficient to support such a claim and therefore will not address the quid pro quo theory in more detail.
Chapter 42 of the United States Code, § 1983, provides a remedy for the deprivation of rights, privileges or immunities granted by the U.S. Constitution or laws, when such a deprivation is caused by any person acting under color of state law.
Vienneau alleges a violation of 42 U.S.C. § 1983 in Count III of his complaint. No facts have been alleged, however, that would demonstrate how Polar may have acted under color of state law. Neither party addresses the § 1983 claim in the summary judgment pleadings and this Court assumes that it was included in Vienneau's complaint in error. In any event, that claim will be dismissed.
D . Count I: Sexual Harassment in Violation of M.G.L. c. 151B, §§ 4(1) and 4 (16)
The Massachusetts civil rights statute is as clear and broadly remedial as Title VII. It provides that it shall be unlawful:
For an employer, by himself or his agent, because of the race, color, religious creed, national origin, sex, sexual orientation, which shall not include persons whose sexual orientation involves minor children as the sex object, or ancestry 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.
M.G.L. c. 151B § 4(1). Sexual harassment is prohibited under that civil rights law as well. College-Town Div. of Interco, Inc. v. Massachusetts Comm'n Against Discrimination, 400 Mass. at 161-162 (1987).
As with the federal statute, two kinds of sexual harassment claims have been identified under the Massachusetts statute: (1)quid pro quo harassment, and (2) hostile work environment harassment. Morrison, 108 F.3d at 436; College-Town, 400 Mass. at 161-162. For the same reasons stated in Section II.C.1. above, this Court will consider Vienneau's claim as one of hostile work environment sexual harassment.
1. Hostile Work Environment
Chapter 151B of Massachusetts General Laws prohibits work environments pervaded by harassment or abuse. Mullenix, 965 F. Supp. at 153; College-Town, 400 Mass. at 161-162. In assessing whether sexually harassing conduct violates Chapter 151B, Massachusetts courts "may look to the interpretations of Title VII" but are not bound by interpretations of the federal statute in construing Chapter 151B. College-Town, 400 Mass. at 162 n. 3.
With respect to hostile work environment claims, Chapter 151B explicitly prescribes sexual advances, requests or conduct which have the effect of "unreasonably interfering with" the victim's "work performance by creating an intimidating, hostile, humiliating or sexually offensive work environment." M.G.L. c. 151B, §§ 4(1) and 1 (18)(b). As summarized by the Supreme Judicial Court,
[a] work environment pervaded by harassment or abuse, with the resulting intimidation, humiliation, and stigmatization, possess a formidable barrier to the full participation of an individual in the workplace.College-Town, 400 Mass. at 162.
The express language of subsection 1 (18)(b) of Chapter 151B speaks to "unreasonably interfering with an individual's work performance", and therefore, just as with Title VII, construes evidence of sexual harassment "from the view of a reasonable person in the plaintiff's position." Gnerre v. Massachusetts Commission Against Discrimination, 402 Mass. 502, 507 (1988). In addition, there must be a showing that the work environment is subjectively offending to the plaintiff. Mullenix, 965 F. Supp. at 154. That is, an employee who alleges sexual harassment must show that "the employer's conduct was intentionally or in effect hostile, intimidating, or humiliating to the plaintiff in a way which affected her performance . . . ." Id.
It is important to recognize that the Massachusetts statute, consistent with Title VII, "does not mandate 'clean language' in the workplace." Prader v. Leading Edge Products, Inc., 39 Mass. App. Ct. 616, (Mass.App.Ct. 1996), citing Scott v. Sears, Roebuck Co., 798 F.2d 210, 213 n. 2 (7th Cir. 1986), and Katz v. Dole, 709 F.2d 251, 256 (4th Cir. 1983). Conduct which is not specifically "sexual in nature" may nonetheless be evidence of sexual harassment. In fact, even vulgar joking may give rise to liability under Chapter 151B. Morehouse v. Berkshire Gas Co., 989 F. Supp. 54, 62 (D. Mass. 1997), citing Melnychenko v. 84 Lumber Co., 424 Mass. 285, 286 (1997) (finding individual liable under Chapter 151B for vulgar joking despite fact that conduct was not sexually motivated).
Vienneau has alleged sufficient facts to support his claim of a hostile work environment in order to survive Polar's motion for summary judgment. Vienneau describes persistent graphic and obscene name-calling by Kenary and the raise incident which went beyond the bounds of decency. In this case, a reasonable jury could conclude that an objectively hostile or abusive work environment existed in violation of Massachusetts law. Summary judgment on Count I is, therefore, inappropriate.
E . Count IV: Discrimination on the Basis of Perceived Sexual Orientation in Violation of M.G.L. c. 151B, §§ 4(1) and 4 (16A) and Title VII 1. M.G.L. c. 151B, §§ 4(1) and 4 (16A):
Section 4(1) of Chapter 151B of the Massachusetts General Laws makes it unlawful
for an employer, by himself or his agent, because of the . . . sexual orientation . . . of any individual . . . to discriminate against such individual in compensation or in terms, conditions or privileges of employment, unless based upon a bona fide occupational qualification.
Section 4 (16A) of the same chapter makes it unlawful for any employer, "personally or through its agents, to sexually harass" an employee. M.G.L. c. 151B, § 4 (16A).
In order to establish a prima facie case of discrimination under Massachusetts law, a plaintiff must show that: (1) he is a member of a class protected by the statute, (2) he performed his job at an acceptable level, (3) he was terminated, and (4) his employer sought to fill the plaintiff's position by hiring another individual with qualifications similar to the plaintiff's. Wheelock College v. Massachusetts Comm'n Against Discrimination, 371 Mass. 130, 134-136 (1976).
In Count IV, Vienneau contends he was discriminated against on the basis of his perceived sexual orientation, i.e. that Kenary discriminated against him because Kenary perceived Vienneau to be a homosexual. Under Massachusetts law, discrimination on the basis of perceived sexual orientation, as well as for sexual orientation itself, is prohibited under M.G.L. c. 151B. See Walsh v. Carney Hospital Corp., 1998 WL 1470698 (Mass.Super. 1998);LaFleur v. Bird-Johnson Co., 1994 WL 878831 (Mass.Super. 1994).
The evidence does not, however, indicate that Kenary perceived Vienneau to be a homosexual. To support that assertion, Vienneau relies on Kenary's repeated, vulgar epithets about gays directed at him and the graphic raise incident. On the other hand, at his deposition, Kenary stated that he has never thought that Vienneau was a homosexual and Polar responds in its Motion for Summary Judgment that it was "common knowledge" at the warehouse that Vienneau had once been married, and had a son and a girlfriend.
In the context of a profane, informal workplace, where employees frequently used coarse and obscene language, where pornographic magazines were ever present, and where employees worked long and late hours, Kenary's alleged conduct and language do not establish his belief that Vienneau is a homosexual. Kenary's actions could have been as easily motivated by some sort of warped sense of bullying or desire to intimidate. The only direct evidence, Kenary's testimony that he had no such belief, indicates that Kenary did not perceive Vienneau to be a homosexual. Therefore, Polar's motion for summary judgment on Vienneau's claim for discrimination under M.G.L. c. 151B on the basis of perceived sexual orientation is allowed.
2. Title VII
Title VII does not recognize a cause of action for any kind of discrimination based on sexual orientation. Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 259 (1st Cir. 1999),citing Hopkins v. Baltimore Gas Elec. Co., 77 F.3d 745, 751-52 n. 3 (4th Cir. 1996), cert. denied 519 U.S. 818 (1996), and Williamson v. A.G. Edwards Sons, 876 F.2d 69, 70 (9th Cir. 1989), cert. denied 493 U.S. 1089 (1990). Moreover, the First Circuit has also pointed out that harassment on the basis of perceived sexual orientation is not actionable under Title VII.Silva v. Sifflard, 215 F.3d 1312 (1st Cir. 2000),citing Higgins.
Therefore, Polar's motion for summary judgment on Vienneau's claim of discrimination on the basis of perceived sexual orientation under Title VII will be allowed.
F . Count V: Retaliation in Violation of M.G.L. c. 151B, §§ 4(4) and 4 (4A) and Title VII
Section 2000e-3(a) of Title 42 of the United States Code prescribes retaliation against employees for opposing unlawful employment practices or for filing EEOC charges or participating in an investigation. 42 U.S.C. § 2000e-3 (a). Because Title VII protects an employee against sexual harassment and discrimination, Title VII also protects the employee for opposing such activities. See Ruffino v.State Street Bank and Trust Co., 908 F. Supp. 1019, 1044 (D. Mass. 1995); Mullenix v. Forsyth Dental Infirmary for Children, 965 F. Supp. 120 (D. Mass. 1996).
An adverse employment action does not need to amount to a discharge to establish a prima facie case of retaliation in violation of Title VII. Rather, an employee must demonstrate that he or she was denied a term, condition or privilege of employment. Ruffino v. State Street Bank and Trust Co., 908 F. Supp. 1019 (D. Mass. 1995).
To succeed on a claim of retaliation under the Massachusetts anti-discrimination laws, a plaintiff must establish the basic fact that he was subjected to an adverse employment action because of his protected activity. Lewis v. Gilette Co., 22 F.3d 22, 24 (1st Cir. 1994). The statute does not actually use the word "retaliation". Rather, it makes it unlawful for
any person . . . to discharge, expel or otherwise discriminate against any person . . . because he has filed a complaint [under this chapter . . . or] for any person to coerce, intimidate, threaten or interfere with another person in the exercise or enjoyment of any right granted or protected by this chapter.
M.G.L. c. 151B, §§ 4(4), 4 (4A).
The plaintiff's burden to establish a prima facie case of retaliation "is not onerous". Hazel v. U.S. Postmaster General, 7 F.3d 1, 3 (1st Cir. 1993). A plaintiff must simply show that (1) she engaged in protected conduct under federal or Massachusetts law, (2) she suffered an adverse employment action, and (3) a causal connection existed between the protected conduct and the adverse action. See Fennell v. First Step Designs, Ltd., 83 F.3d 526, 535 (1st Cir. 1996) (discussing Title VIP's analytical framework); Lewis v. Gillette, Co., 22 F.3d 22, 24-25 (1st Cir. 1994) (observing that Massachusetts retaliation law parallels federal law).
As grounds for his retaliation claim, Vienneau cites the stares and leers Kenary directed at him upon Kenary's return from administrative leave and the increased workload imposed upon him in loading and unloading trailers. At his deposition, Vienneau stated that he is not afraid of hard work and that:
even though I took [the increased workload] as retaliation from Mr. Kenary, it didn't bother me one iota. I was there to work for Mr. Crowley, and I worked and I didn't care what I had to do . . . . It was just one of [Kenary's] little games . . . .
As a final example of retaliation, Vienneau recalls the day Kenary refused to tell him when work would be finished and Vienneau ended up being locked out of the building waiting for a ride home.
Vienneau's examples of retaliatory conduct do not rise to the level of a statutory violation under either Title VII or Massachusetts law. His complaints of Kenary's stares and leers are "the kind of subjective and intangible impressions that must not be considered in making out a case under the [Massachusetts] statute. Bain v. City of Springfield, 424 Mass. 758, 766 (1997). In Bain, the court held that the plaintiff's allegations that the defendant acted coldly toward her at a meeting immediately after she had made serious charges against him, and that defendant's "body language" betokened hostility toward her, could not be allowed to be considered unlawful retaliation. Bain, 424 Mass. at 765. Similarly, "watching", "staring" and "gawking" at the plaintiff are not actionable under Title VII as the basis of a retaliation claim. Lewis v. Gilette, 22 F.3d 22, 23-25 (1st Cir. 1994). According to the court in Bain:
It is simply too easy to imagine such acts in complete good faith, not to mention the possibility of their being concocted. Such vague and impressionistic elements have no place in defining the standards for legal intervention in the often fraught and delicate domain of personnel relations.Bain, 424 Mass. at 766.
Furthermore, Vienneau's complaint about increased workload and Kenary's rude behavior resulting in a cold wait outside do not amount to the sort of "material disadvantage" that is a predicate to a finding of unlawful retaliation. See MacCormack v.Boston Edison Co., 423 Mass. 652, 662 (1996). Vienneau admitted that the change in workload "didn't bother [him] one iota" and offered no evidence that the suffered inconvenience was a form of deliberate retaliation. The evidence offered by Vienneau simply does not rise to the level of actionable retaliation under either Title VII or Massachusetts law.
G . Count VI: Constructive Discharge
It is settled law in the First Circuit that in order to establish a claim of constructive discharge the evidence must support a finding that "the new working conditions would have been so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign." Calhoun v.Acme Cleveland Corp., 798 F.2d 559, 561 (1st Cir. 1986); see also Vega v. Kodak Caribbean, Ltd., 3 F.3d 476, 480 (1st Cir. 1993) (new conditions must make work so "arduous," "unappealing" or "intolerable" that a reasonable person would resign).
The legal standard to be applied when evaluating a claim of constructive discharge is "objective," with the inquiry focused on "the reasonable state of mind of the putative discriminatee."Calhoun, 798 F.2d at 561 (internal quotations omitted). In making the determination, it must be kept in mind that
An employee may not be unreasonably sensitive to his [or her] working environment. Thus the law does not permit an employee's subjective perceptions to govern a claim of constructive discharge . . . . An employee is protected from a calculated effort to pressure him [or her] into resignation through the imposition of unreasonably harsh conditions, in excess of those faced by his [or her] coworkers. He [or she] is not, however, guaranteed a working environment free from stress.Calhoun, 798 F.2d at 561 (internal quptations omitted). An employee may not, therefore, be "unreasonably sensitive to a change in job responsibilities." Serrano-Cruz v. DFI Puerto Rico, Inc., 109 F.3d 23, 26 (1st Cir. 1997).
As the basis of his constructive discharge claim, Vienneau relies on (1) the stares and leers Kenary directed toward him on his return from administrative leave, and on his return from his operation, (2) his alleged increased workload, and (3) his understanding that while Daubney would be on vacation, he would be reporting directly to Kenary.
In this case, a genuine issue of material fact exists as to whether Vienneau was notified that he would be reporting to Kenary or John Stake during Daubney's absence. If the jury believes Vienneau, it could reasonably find that such an intolerable situation, in combination with the stares, leers, and unexplained increased workload, constituted new working conditions so difficult or unpleasant that a reasonable person in Vienneau's position would have felt compelled to resign. Whether the facts alleged truly amount to constructive discharge is a close call but because, in a motion for summary judgment, the Court evaluates such facts in a light most favorable to the nonmovant, Vienneau's claim is found to be marginally sufficient to withstand a motion for summary judgment.
ORDER
For the foregoing reasons,
(1) Polar's motion for summary judgment (Docket No. 25) on Count III (sexual harassment in violation of Title VII and 42 U.S.C. § 1983) is, with respect to the Title VII claim, DENIED, and, with respect to the § 1983 claim, ALLOWED;
(2) Polar's motion for summary judgment on Count I (sexual harassment in violation of Massachusetts law) is DENIED;
(3) Polar's motion for summary judgment on Count IV (discrimination on basis of perceived sexual orientation in violation of Massachusetts law and Title VII) is ALLOWED;
(4) Polar's motion for summary judgment on Count V (retaliation in violation of Massachusetts law and Title VII) is ALLOWED;
(5) Polar's motion for summary judgment on Count VI (constructive discharge) is DENIED; and
(6) Counts IV and V are hereby DISMISSED.
So ordered.