AGGANIS v. T-MOBILE USA INC

Filing 122

DECISION AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT re 94 Motion for Summary Judgment by T-MOBILE USA INC; and 96 Motion for Summary Judgment by ANGELA AGGANIS. By JUDGE D. BROCK HORNBY. (jib)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
ANGELA AGGANIS,
PLAINTIFF
V.

T-MOBILE USA INC.,
DEFENDANT

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CIVIL NO. 1:15-CV-417-DBH

DECISION AND ORDER ON CROSS-MOTIONS
FOR SUMMARY JUDGMENT
In this employment sex discrimination case, a former employee has moved
for summary judgment on her employer’s affirmative defense that she failed to
mitigate her damages, and the employer has moved for summary judgment on
her claims of hostile work environment and constructive discharge.1 After oral
argument on March 7, 2018, I GRANT the plaintiff’s motion, and I GRANT IN PART
AND

DENY

IN PART

the defendant’s motion.

I conclude that that there is no

mitigation defense remaining in the case, that the plaintiff’s constructive
discharge claim fails as a matter of law, and that there are jury issues raised by
the hostile work environment claim and the defendant’s affirmative defense to
that claim under Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998).

The plaintiff asserts claims under both Title VII of the Civil Rights Act and the Maine Human
Rights Act. The parties agree that state and federal law are the same on the issues presented
here.
1

FACTUAL BACKGROUND
I discuss the relevant facts, disputed and undisputed, as appropriate to
the particular legal issue.
ANALYSIS
The Mitigation Defense

If a former employee “has made some effort to secure other employment,
the burden to prove failure to mitigate normally resides with the defendantemployer.” Quint v. A.E. Staley Mfg. Co., 172 F.3d 1, 16 (1st Cir. 1999). The
employer concedes that this plaintiff “made at least the requisite minimal effort
to obtain new employment after leaving.” Def.’s Opp’n at 4 (ECF No. 101). It
thus must prove that “(i) though substantially equivalent jobs were available in
the relevant geographic area, (ii) the claimant failed to use reasonable diligence
to secure suitable employment.” Quint, 172 F.3d at 16.
The employer cannot carry its burden. After discovery, it has not offered
any evidence regarding Quint’s first requirement, the availability of substantially
equivalent jobs in the relevant area. As a result, it cannot show that the former
employee failed to mitigate her damages,2 and the plaintiff’s motion for partial
summary judgment on mitigation is GRANTED.

(But as appears below, I am

granting the employer’s motion for summary judgment on the constructive

The employer is correct, however, that the duty to mitigate is ongoing. Def.’s Opp’n at 6. If the
plaintiff had a viable constructive discharge claim, my ruling today would not relieve her of that
obligation going forward, nor preclude the employer from offering evidence at trial that she failed
to meet that obligation after November 22, 2017—the day the employer filed its opposition to the
former employee’s motion and the last opportunity it had to present evidence in support of its
position.

2

2

discharge claim, which means that the former employee has no back pay claim
to which the mitigation defense might apply.3)
Hostile Work Environment

To prevail on a hostile work environment claim, an employee must show
that:
(1) she is a member of a protected class; (2) she was subject
to harassment; (3) the harassment was based on her
membership in a protected class; (4) the harassment was
sufficiently severe or pervasive so as to alter the conditions
of her employment and create an abusive work environment;
(5) the harassment was both objectively and subjectively
offensive; and (6) there exists some basis for employer
liability.

Flood v. Bank of America Corp., 780 F.3d 1, 10 (1st Cir. 2015). The parties agree
on only the first element.
“There is no ‘mathematically precise test’ for determining when conduct in
the workplace moves beyond the ‘merely offensive’ and enters the realm of
unlawful discrimination.” Marrero v. Goya of Puerto Rico, Inc., 304 F.3d 7, 18
(1st Cir. 2002) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 22 (1993)).
Rather, “all the circumstances” must be considered, “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.’”

Id. at 18-19 (citations

omitted); accord Flood, 780 F.3d at 11.
“Pervasiveness and severity are questions of fact. Subject to some policing
at the outer bounds, it is for the jury to . . . decide whether the harassment was

The parties agreed at oral argument that the mitigation defense applies only to claims for back
pay or other lost wages.

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of a kind or to a degree that a reasonable person would have felt that it affected
the conditions of her employment.”

Flood, 780 F.3d at 11 (quotations and

alterations omitted).
The parties hotly contest whether this former employee was sexually
harassed at all and if so whether that harassment was objectively offensive and
severe or pervasive. Crediting the plaintiff’s version of events where supported
by the record as I must at summary judgment, Reed v. MBNA Mktg. Sys., Inc.,
333 F.3d 27, 37 (1st Cir. 2003), I conclude that she has raised triable issues of
fact on sexual harassment sufficient to go to a jury. There is nothing to be gained
by recounting the specific assertions and denials; suffice it to say that a
reasonable jury could find the complained-of conduct was “because of” sex,
Burns v. Johnson, 829 F.3d 1, 17-18 (1st Cir. 2016), and was both subjectively
and objectively offensive and sufficiently severe or pervasive so as to alter the
conditions of her employment and create an abusive work environment.
Retaliation

The plaintiff’s brief opposing the defendant’s summary judgment motion
asserts, for the first time, a retaliation claim. Pl.’s Obj. at 25-26 (ECF No. 99).
Fact discovery is closed. The plaintiff did not include this claim in her complaint,
did not raise it in her Local Rule 56(h) statement, and did not mention it at the
Local Rule 56(h) conference with the Court in preparation for summary judgment
practice. Counsel and the court engaged in a thorough discussion of the issues
at that conference. It is too late in the day to add new claims. It would thwart
the purpose of the Local Rule and the 56(h) conference, which are designed to
streamline the summary judgment process.

To the extent this part of the
4

plaintiff’s opposition brief can be construed as a motion to amend her complaint
pursuant to Fed. R. Civ. P. 15(a)(2), I DENY it. See Palmer v. Champion Mortg.,
465 F.3d 24, 30-31 (1st Cir. 2006).
Constructive Discharge

“In order to establish constructive discharge, [the former employee] must
show that conditions were so intolerable that they rendered a seemingly
voluntary resignation a termination.” Torrech-Hernandez v. Gen. Elec. Co., 519
F.3d 41, 50 (1st Cir. 2008); accord Gerald v. Univ. of Puerto Rico, 707 F.3d 7, 25
(1st Cir. 2013) (“A successful constructive discharge claim requires ‘working
conditions so intolerable that a reasonable person would have felt compelled to
resign.’” (quoting Pennsylvania State Police v. Suders, 542 U.S. 129, 147 (2004))).
The former employee must prove that conditions were so objectively intolerable
that “her only option was to quit.” EEOC v. Kohl’s Dept. Stores, Inc., 774 F.3d
127, 134 (1st Cir. 2014).
The following facts are undisputed. The former employee worked as a
customer service representative at the defendant’s call center and was
supervised by a “coach.” Def.’s Statement of Material Facts (DSMF) ¶¶ 1-3, 7
(ECF No. 95); Pl.’s Opposing Statement of Material Facts (PSMF) ¶¶ 1-3, 7 (ECF
No. 100). Toward the end of her medical leave and while still employed, she met
with one of her employer’s “HR Business Partners” (I will use the shorthand HR)
to report the coach’s objectionable conduct. DSMF ¶ 113; PSMF ¶ 113. HR told
the plaintiff her allegations would be investigated, but that the coach would not
be suspended during the investigation. DSMF ¶¶ 133-34, 146; PSMF ¶¶ 13334, 146, 272; Def.’s Reply Statement of Material Facts (DRSMF) ¶ 272 (ECF No.
5

113). HR tried to dissuade the plaintiff from resigning by encouraging her to
take some time to think about the decision and by offering to transfer her to a
different team and/or letting her take at least a “day or two” off with pay during
the investigation.4 DSMF ¶¶ 139-40, 142; PSMF ¶¶ 139-40, 142. The employee
declined to be moved to another team or to take the paid time off, instead
resigning5 immediately on August 5, 2014. DSMF ¶¶ 141, 145, 148-49; PSMF
¶¶ 141, 145, 148-49, 272; DRSMF ¶ 272. After resigning, she wrote out a report
of her coach’s harassing conduct and gave it to HR. DSMF ¶¶ 121-23; PSMF
¶¶ 121-23, 277; DRSMF ¶ 277. Before writing her report, the plaintiff signed a
confidentiality notice that prohibited her from discussing the investigation with
other employees during its pendency.

DSMF ¶ 130, PSMF ¶¶ 130, 278-79;

DRSMF ¶¶ 278-79.6
On these facts, no reasonable jury could find that the plaintiff was
compelled to resign on August 5. It is undisputed that she quit that day despite
being offered at least two alternatives to resignation. DSMF ¶ 149; PSMF ¶ 149.
“[A] reasonable person would simply not feel ‘compelled to resign’ when her
employer offered to discuss other work arrangements with her.” Kohl’s, 774 F.3d

The parties dispute whether HR told the plaintiff how long the investigation would take and
whether the paid time off would last the duration of the investigation. DSMF ¶ 143; PSMF
¶¶ 143, 284; DRSMF ¶ 284. The plaintiff testified at her deposition that HR told her she could
take “a day or two” to think about her decision. PSMF ¶ 284.
5 As noted previously, I credit the plaintiff’s version of events; there is record evidence from which
a jury could conclude that she did not finally decide to resign until the meeting with HR.
6 The parties dispute whether the plaintiff was required to sign the notice before filing her report,
what she was told about possible disciplinary consequences from violating the notice, and what
role the notice played in her decision to resign, PSMF ¶¶ 278-79, 282; DRSMF ¶¶ 278-79, 282,
but do not dispute that the plaintiff signed the notice.
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at 134.

The plaintiff “actively disregarded two opportunities to resolve her

issues.” Id.
The plaintiff argues that the option to transfer to a different team does not
undermine her constructive discharge claim because the coach caused her to
fear for her personal safety and she would have been in the same building at the
same time as he.7 Pl.’s Obj. at 19; PSMF ¶ 283. But the plaintiff still could have
taken the paid leave. It is true that HR concluded after the investigation that
the coach did not violate the employer’s sexual harassment policy, DSMF ¶ 157;
PSMF ¶ 157, and thus ultimately conditions may not have changed if the plaintiff
had taken the paid leave. The plaintiff’s briefing does not argue that I should
take this possibility into account, however, and it appears that I cannot. See
Torrech-Hernandez, 519 F.3d at 50 (“[A]n employee must show, at the time of his
resignation, his employer did not allow him the opportunity to make a free choice
regarding his employment relationship.”) (emphasis added) (citation and
quotation omitted). That principle makes sense, because there is no way to know
at the time the effect of a path not taken.8 The choice to quit must be evaluated
at the time of resignation. At that point, the plaintiff had an apparently viable

The defendant disputes this, arguing that she could have been assigned to a team with a
different, non-overlapping schedule. Def.’s Reply at 5 (ECF No. 112); DRSMF ¶ 377. I do not
consider this argument, as it appears first in the defendant’s Reply Statement of Material Facts,
and there was no opportunity for the plaintiff to respond to the new assertion. The defendant
contended at oral argument that Local Rule 56(d) permits reply statements to include a new
section of additional facts. It does not. Local Rule 56(c), which governs opposing statements of
material facts, allows “a separately titled section” of “additional facts.” Local Rule 56(c). Local
Rule 56(d) contains no such provision. Read in conjunction, it is clear that reply statements
must be limited to responding to (i.e., admitting, qualifying or denying) additional facts contained
in the opposing statement.
8 We do not know whether the plaintiff’s continued status as an employee might have affected
the employer’s assessment of the ongoing risk of the coach’s conduct or the likelihood of it
continuing.
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option before her and chose not to exercise it. She has not offered any evidence
suggesting that she had any basis for anticipating what the outcome of the
investigation (or the resolution of the dispute more generally) would have been
had she stayed. Kohl’s, 774 F.3d at 134 (“An employee is obliged not to assume
the worst, and not to jump to conclusions too quickly.”) (citation and alterations
omitted). If the defendant directed her to come back too soon, or the situation
were intolerable on her return, the time to resign and claim constructive
discharge would have been then.
The same is true of the role of the confidentiality requirement. The plaintiff
asserts (the defendant disputes the assertion) that she was justifiably afraid of
being disciplined if she spoke to anyone about the harassment, PSMF ¶ 279;
DRSMF ¶ 279, and that the prospect of being silenced contributed to her
decision to resign.

PSMF ¶ 282, DRSMF ¶ 282.

But that does not justify

refusing to take the paid leave. Her constructive discharge claim thus fails as a
matter of law, and she cannot recover back pay and associated remedies.
Marrero, 304 F.3d at 28.
Faragher/Ellerth

If the plaintiff succeeds at trial on her hostile work environment claim, she
could be entitled to compensatory damages (not back pay) for the harms she
suffered before resigning. Azimi v. Jordan’s Meats, Inc., 456 F.3d 228, 234-37
(1st Cir. 2006). Employer liability for the acts of a supervisor, however, can be
negated by the affirmative defense announced in Faragher and Ellerth:

8

When no tangible employment action9 is taken, a defending
employer may raise an affirmative defense to liability or
damages . . . . The defense comprises two necessary elements:
(a) that the employer exercised reasonable care to prevent and
correct promptly any sexually harassing behavior, and (b) that
the plaintiff employee unreasonably failed to take advantage
of any preventive or corrective opportunities provided by the
employer or to avoid harm otherwise. While proof that an
employer had promulgated an antiharassment policy with
complaint procedure is not necessary in every instance as a
matter of law, the need for a stated policy suitable to the
employment circumstances may appropriately be addressed
in any case when litigating the first element of the defense.
And while proof that an employee failed to fulfill the
corresponding obligation of reasonable care to avoid harm is
not limited to showing any unreasonable failure to use any
complaint procedure provided by the employer, a
demonstration of such failure will normally suffice to satisfy
the employer's burden under the second element of the
defense.

Faragher, 524 U.S. at 807-08; Ellerth, 524 U.S. at 764-65. The employer bears
the burden of proof on both elements. Reed, 333 F.3d at 34.
“[T]he judgment call as to reasonableness is itself a jury issue unless no
reasonable jury could decide it in the plaintiff’s favor.”

Id.

“[A] sexual

harassment policy must provide for ‘effective grievance mechanisms’ and
therefore the mere creation of a sexual harassment policy will not shield a
company from its responsibility to actively prevent sexual harassment in the
workplace.” Gentry v. Exp. Packaging Co., 238 F.3d 842, 847 (7th Cir. 2001).
As the defendant recognized at oral argument, the question is “whether [the
employer], with its sexual harassment policy in place, took reasonable care to
prevent sexual harassment.” Id.

Whether constructive discharge qualifies as a tangible employment action is a fact-specific
question that depends on whether some official act underlies the constructive discharge. Suders,
542 U.S. at 148-49 (2004); accord Reed, 333 F.3d at 33-34. Because the defendant here is
entitled to summary judgment on the plaintiff’s constructive discharge claim, I do not decide
whether the Faragher-Ellerth defense would also preclude liability on that basis.
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9

It is undisputed that this employer provided annual training to employees
on its sexual harassment policy and had mechanisms for reporting harassment,
and that the relevant employees received the training and were aware of the
policy and reporting mechanisms. DSMF ¶¶ 12-26, 28-35, 45-48; PSMF ¶¶ 1226, 28-35, 45-48.10 As the quotation from Gentry in the preceding paragraph
demonstrates, however, disseminating a boilerplate policy is not enough—mere
knowledge of a policy cannot “prevent and correct” sexual harassment.
Faragher, 524 U.S. at 807 (emphasis added). Unlike the defendant, Def.’s Mot.
at 23, I do not read Chaloult v. Interstate Brands Corp., 540 F.3d 64, 75 (1st Cir.
2008), as changing that principle.
I conclude that there is a jury issue on whether the defendant exercised
reasonable care to prevent and correct promptly any sexually harassing
behavior. A few months before the plaintiff made her complaint about the coach,
his conduct had already come to HR’s attention. It was reported that the coach
made two11 suggestive comments to a different customer service representative
(CSR) about her attire that made her uncomfortable. DSMF ¶ 53; PSMF ¶¶ 53,
318-38; DRSMF ¶¶ 318-38. That CSR reported at least one of the comments to
a manager, who informed HR.

DSMF ¶¶ 53, 55; PSMF ¶¶ 53, 55, 335-36;

DRSMF ¶¶ 335-36.12 HR then met with that CSR about her concerns, including
both comments. DSMF ¶¶ 56-59; PSMF ¶¶ 56-59, 337-38; DRSMF ¶¶ 337-38.

The plaintiff disputes that employees can “confidentially and anonymously” report sexual
harassment using a dedicated company phone line, but not that the line exists. PSMF ¶ 19.
11 The defendant denies that the coach made the second comment. DRSMF ¶ 332.
12 The defendant disputes that this CSR formally “reported” the coach’s behavior to a manager,
describing it instead as “venting.” DRSMF ¶ 335. It is undisputed, however, that the manager
was made aware of a potential problem and reported it to HR. PSMF ¶ 336; DRSMF ¶ 336.
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That CSR told HR that she had stopped wearing the outfit that provoked the
comments, that there had been no further comments, and that she did not want
HR to take further action. DSMF ¶ 58; PSMF ¶ 58.13 HR told the CSR to let her
know if the comments started again or if the coach did anything else that she
felt was inappropriate, but otherwise left it there. DSMF ¶ 59; PSMF ¶ 59. HR
did not speak with the coach about his comments. PSMF ¶¶ 339, 342; DRSMF
¶¶ 339, 342.

After this conversation, the CSR forwarded to HR a sexually

suggestive cartoon that the coach had previously sent to his team. DSMF ¶ 60;
PSMF ¶¶ 60, 345; DRSMF ¶ 345.

The cartoon transmission violated the

employer’s sexual harassment policy. PSMF ¶ 346; DRSMF ¶ 346. HR met with
the coach regarding the cartoon and “counseled” him about it, arguably14 a light
form of discipline.

DSMF ¶ 62; PSMF ¶¶ 62, 348; DRSMF ¶¶ 347-48.

The

coach’s earlier comments about clothing, however, did not trigger the progressive
discipline scheme, despite HR’s acknowledgment that one of the comments, if
made, would be “concerning.” PSMF ¶¶ 341, 347; DRSMF ¶¶ 341, 347. The
coach was never counseled or questioned about those comments. PSMF ¶ 342;
DRSMF ¶ 342. A reasonable jury could conclude that the failure ever to address

The plaintiff says that the CSR did not want HR to take further action in part because she was
worried the coach would retaliate against her if he learned of the complaint. PSMF ¶ 58. She
cites the CSR’s declaration, which was an exhibit to her deposition. The CSR’s statements in the
declaration about this issue are not inconsistent with the relevant deposition testimony cited by
the parties.
14 “Counseling” is apparently akin to a “clarifying discussion,” the lowest level in T-Mobile’s
progressive discipline scheme. PSMF ¶¶ 191, 347; DRSMF ¶¶ 191, 347. Deposition testimony
from HR says both that a clarifying discussion often “takes on the appearance of a coaching” and
that the coaching of the coach triggered by the CSR’s complaints was not “part of the disciplinary
process.” PSMF ¶ 347; DRSMF ¶ 347. There is thus record support for the plaintiff’s version of
events: that the coach was not disciplined at all based on the CSR’s complaints. PSMF ¶ 347.
Even if I credited the defendant’s version—that the coach was disciplined with a “clarifying
discussion” based solely on the cartoon, DRSMF ¶ 347—that would not change the result here.
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the clothing incident showed that the employer’s implementation of its policy
was inadequate.
After the plaintiff here complained to HR about the coach, HR conducted
an investigation, interviewing people that HR thought or that the plaintiff said
might have knowledge of her claims. DSMF ¶¶ 150-53; PSMF ¶¶ 150-53. In the
investigation, two other women reported having issues with the coach’s conduct.
DSMF ¶ 155; PSMF ¶¶ 155, 288; DRSMF ¶ 288.

One reported that she

overheard the coach use the word “cunt” while talking to two male CSRs on the
workplace floor. PSMF ¶ 289; DRSMF ¶ 289.15 HR concluded that the coach
had an issue with “personal boundary space,” but had not violated the
company’s sexual harassment policy. DSMF ¶¶ 157-58; PSMF ¶¶ 157-58, 297;
DRSMF ¶ 297. He was “counseled” about personal space and touching people
(that was one of the plaintiff’s complaints), but received no other discipline or
additional supervision.16 DSMF ¶ 159; PSMF ¶¶ 159, 299-300; DRSMF ¶¶ 299300. A reasonable jury could conclude that this treatment of the plaintiff and
the preceding incident involving a different CSR demonstrated that the

HR made no determination about whether the coach in fact used the “C” word; the coach
denied saying it. PSMF ¶ 292; DRSMF ¶¶ 291-92. Fairly read, the HR deposition testimony
suggests that HR thought it would not necessarily violate T-Mobile’s sexual harassment policy
to use the word in a general way, without speaking or referring to any particular woman. PSMF
¶ 290; DRSMF ¶ 290. A jury could consider this in deciding whether the employer satisfied the
first element of the Faragher-Ellerth defense.
16 The plaintiff claims that the coach was “unsupervised,” while the defendant claims that he
continued to be supervised by his usual supervisor. PSMF ¶ 299, DRSMF ¶ 299. It appears
undisputed, however, that the coach did not receive any additional supervision during the
investigation, a practice T-Mobile had used in the past. In an unrelated incident of sexual
harassment, the complained-of senior representative was supervised by additional “backups”
during the HR investigation in order to minimize the time he was left unsupervised with his team.
PSMF ¶ 199; DRSMF ¶ 199. There is no evidence that such backups were used here.
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employer’s policy implementation was inadequate to satisfy Faragher-Ellerth’s
first element.17
The defendant therefore is not entitled to summary judgment on its
Faragher-Ellerth defense.
CONCLUSION
For these reasons, I GRANT the plaintiff’s motion for partial summary
judgment. I also GRANT the defendant’s motion for summary judgment on the
plaintiff’s constructive discharge claim and retaliation claim and DENY it on the
hostile work environment claim and the Faragher-Ellerth affirmative defense.
SO ORDERED.
DATED THIS 12TH DAY OF MARCH, 2018
/S/D. BROCK HORNBY
D. BROCK HORNBY
UNITED STATES DISTRICT JUDGE

I reach this conclusion without endorsing the plaintiff’s argument that the employer should
be charged with constructive knowledge of the coach’s allegedly sexually harassing behavior
around other women because the coach’s conduct was an “open secret” at the workplace. Pl.’s
Obj. at 23; PSMF ¶¶ 125-26, 156. Although the plaintiff asserts that it was “widespread
knowledge,” PSMF ¶ 156, and occurred “out in the open in front of” other personnel, id., that
may not be enough to establish that supervisors and managers were aware. Higgins v. TJX Cos.
Inc., 331 F. Supp. 2d 3, 6 (D. Me. 2004).
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