Smith v. Clay Chevrolet, Inc.

Filing 40

Judge Nathaniel M. Gorton: ENDORSED ORDER entered. ORDER ON REPORT AND RECOMMENDATIONS"Report and Recommendation accepted and adopted" Action on motion: ; granting in part and denying in part 20 Motion for Summary Judgment; adopting Report and Recommendations re 36 Report and Recommendations. (Attachments: # 1 Report and Recommendations)(Caruso, Stephanie)

Case 1:14-cv-14027-NMG Document 36 Filed 11/17/16 Page 1 of 47

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

PATRICIA SMITH,
Plaintiff,

v.

CIVIL ACTION NO.
14-14027-MLW

CLAY CHEVROLET, INC. d/b/a
CLAY HYUNDAI,
Defendant.

REPORT AND RECOMMENDATION RE:
DEFENDANT CLAY CHEVROLET’S MOTION FOR SUMMARY JUDGMENT
(DOCKET ENTRY # 20)
November 17, 2016
BOWLER, U.S.M.J.
Pending before this court is a motion for summary judgment
filed by defendant Clay Chevrolet, Inc. (“defendant”).
Entry # 20).

(Docket

Patricia Smith (“plaintiff”) opposes the motion.

(Docket Entry # 33).

After conducting a hearing, this court

took the motion (Docket Entry # 20) under advisement.
PROCEDURAL BACKGROUND
Plaintiff filed a first amended complaint against defendant
(Docket Entry # 1-1) (“the complaint”) setting out the following
causes of action in violation of Massachusetts General Laws
chapter 151B (“chapter 151B”):

(1) discrimination in the form

of disparate treatment on the basis of “national

Case 1:14-cv-14027-NMG Document 36 Filed 11/17/16 Page 2 of 47

origin/race/color/ethnicity” and harassment (Count I); (2)
retaliation for reporting about or resisting discrimination on
the basis of race or, more globally, “national
origin/race/color/ethnicity” (Count II);1 (3) sexual harassment
in the form of a hostile work environment (Count III); (4)
discrimination in the form of disparate treatment on the basis
of “sex/gender” (Count IV); and (5) retaliation for reporting
the sexual harassment, “sex/gender” discrimination and
harassment as well as other discrimination (Count V).

(Docket

Entry # 1-1).2
With respect to Count I, it includes a number of different
claims.

Paragraph seven of the complaint, which Count I

incorporates, alleges that, “Plaintiff was discriminated against
by the Defendant based on her national origin, race, color,
ethnicity and sex/gender and she was sexually harassed.”
(Docket Entry # 1-1, ¶ 7).

Specific to Count I, the complaint

alleges that plaintiff was treated differently “based upon her

1

At the hearing, plaintiff’s counsel wisely agreed to concede
the merits of defendant’s arguments on Count II.
2
In the memorandum in opposition to defendant’s summary
judgment motion, plaintiff argues that defendant is not entitled
to summary judgment with respect to gender discrimination under
“Title VII” as well as under chapter 151B. (Docket Entry # 33,
pp. 18, 22). The complaint, however, fails to refer to Title
VII and the causes of action are framed exclusively as chapter
151B violations. In the event plaintiff wants to include a
Title VII claim(s), it is incumbent upon her to file a motion
for leave to amend the amended complaint. This court expresses
no opinion on the merits or timeliness of such a motion.

2

Case 1:14-cv-14027-NMG Document 36 Filed 11/17/16 Page 3 of 47

national origin/race/color/ethnicity and was subjected to
discrimination and harassment.”
18).

(Docket Entry # 1-1, ¶¶ 17,

It also includes a brevis hostile work environment

allegation based on national origin/race/color/ethnicity (Docket
Entry # 1-1, ¶ 21) that plaintiff fails to develop in her
opposition.3
Defendant’s summary judgment motion seeks summary judgment
“on all claims” and summarizes those claims to include claims
that plaintiff “was subjected to disparate treatment and a
hostile work environment on the basis of her . . . national
origin, . . ., color, and ethnicity.”
(Docket Entry # 21, p. 1).

(Docket Entry # 20)

In response, plaintiff’s opposition

does not address a hostile work environment claim based on race,
color, national origin or ethnicity.

In opposing defendant’s

summary judgment motion, plaintiff also fails to address a
disparate treatment claim based on “color” separate and apart
from the claim based on her race.

In the MCAD charge, plaintiff

grouped the categories of race and color together, alleging
discrimination” on the basis of “race/color.”
22-12).

(Docket Entry #

In addition, the MCAD charge does not reference either

ethnicity or national origin and the complaint does not identify
plaintiff’s Dominican descent.

Accordingly, given these

3

She does mention the allegation in passing.
33, p. 10).

3

(Docket Entry #

Case 1:14-cv-14027-NMG Document 36 Filed 11/17/16 Page 4 of 47

circumstances, plaintiff waived the hostile work environment
claims, if any, based on race, color, ethnicity and national
origin.4

She also waived any disparate treatment discrimination

claim in the complaint based on her “color.”

See Gordon v.

Massachusetts Bay Transp. Auth., 2014 WL 5464093, at *1 (D.Mass.
Oct. 28, 2014) (although retaliation “theory” was “articulated
in” complaint, plaintiff’s brief” opposing “defendants’ summary
judgment motion ignored that theory” and, given that omission,
“any claim of retaliation” is waived), appeal dismissed, (1st
Cir. Sept. 3, 2015) (No. 14-2213); accord Vallejo v. SantiniPadilla, 607 F.3d 1, 7 & n.4 (1st Cir. 2010) (“[p]laintiffs have
not cited a single authority in support of their assertion that
their failure to timely oppose the motion to dismiss did not
constitute waiver” and noting that “[p]laintiffs did not
properly raise their arguments below”); accord Coons v.
Industrial Knife Co., Inc., 620 F.3d 38, 44 (1st Cir. 2010)
(“district court was ‘free to disregard’ the state law argument
that was not developed in Coons’ brief”); see also Merrimon v.
Unum Life Ins. Co. of America, 758 F.3d 46, 57 (1st Cir. 2014)
(“‘[e]ven an issue raised in the complaint but ignored at
summary judgment may be deemed waived’”).

Accordingly, what

4

Because defendant addresses the hostile work environment claim
based on race in the supporting memorandum (Docket Entry # 21,
p. 14), this court addresses it infra to complete the record
even though it is, in the alternative, waived.

4

Case 1:14-cv-14027-NMG Document 36 Filed 11/17/16 Page 5 of 47

remains in Count I are disparate treatment discrimination claims
based on race, ethnicity and national origin.
In light of the concession as to Count II, the only
retaliation claim is based on the reporting of the sexual
misconduct set out in Count V.

As to counts III and IV,

respectively captioned “sexual harassment” and “sex/gender
discrimination and harassment,” the MCAD charge included both
forms of sex discrimination (harassment and disparate
treatment).

Paragraph seven of the complaint also alleges that

plaintiff was discriminated against on the basis of her
“sex/gender and she was sexually harassed.”
1, ¶ 7).

(Docket Entry # 1-

The complaint therefore raises both a claim for

“sex/gender discrimination,” as stated in the caption of Count
IV, and a claim for “sexual harassment,” as stated in the
caption of Count III.

Plaintiff’s opposition addresses each

claim (Docket Entry # 33, ¶¶ IV, V) such that plaintiff did not
waive either claim.

Defendant’s argument that the claims in

Counts III and IV are synonymous and only raise a claim for a
hostile work environment (Docket Entry # 21 n.2) is therefore
misplaced.
STANDARD OF REVIEW
Summary judgment is designed “to ‘pierce the boilerplate of
the pleadings and assay the parties’ proof in order to determine
whether trial is actually required.’”

5

Tobin v. Federal Express

Case 1:14-cv-14027-NMG Document 36 Filed 11/17/16 Page 6 of 47

Corp., 775 F.3d 448, 450 (1st Cir. 2014) (quoting Wynne v. Tufts
Univ. Sch. of Med., 976 F.2d 791, 794 (1st Cir. 1992)).

It is

appropriate “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”

Fed.R.Civ.P. 56(a).

It is

inappropriate “if the record is sufficiently open-ended to
permit a rational factfinder to resolve a material factual
dispute in favor of either side.”

Pierce v. Cotuit Fire Dist.,

741 F.3d 295, 301 (1st Cir. 2014).
“Genuine issues of fact are those that a factfinder could
resolve in favor of the nonmovant, while material facts are
those whose ‘existence or nonexistence has the potential to
change the outcome of the suit.’”

Green Mountain Realty Corp.

v. Leonard, 750 F.3d 30, 38 (1st Cir. 2014) (quoting Tropigas de
Puerto Rico, Inc. v. Certain Underwriters at Lloyd’s of London,
637 F.3d 53, 56 (1st Cir. 2011)).

The evidence is viewed “in the

light most favorable to the non-moving party” and “all
reasonable inferences” are drawn in her favor.
Johnson, 752 F.3d 490, 495 (1st Cir. 2014).

Ahmed v.

In reviewing a

summary judgment motion, a court may examine “all of the record
materials on file including depositions, documents,
electronically stored information, affidavits or declarations .
. . or other materials.”
Johnson, 752 F.3d at 495.

Fed.R.Civ.P. 56(c)(1); see Ahmed v.
“Unsupported allegations and

6

Case 1:14-cv-14027-NMG Document 36 Filed 11/17/16 Page 7 of 47

speculation,” however, “do not demonstrate either entitlement to
summary judgment or the existence of a genuine issue of material
fact sufficient to defeat summary judgment.”

Rivera-Colón v.

Mills, 635 F.3d 9, 12 (1st Cir. 2011); see Serra v. Quantum
Servicing, Corp., 747 F.3d 37, 39-40 (1st Cir. 2014)
(“allegations of a merely speculative or conclusory nature are
rightly disregarded”).
Defendant filed a LR. 56.1 statement of undisputed facts.
Uncontroverted statements of fact in the LR. 56.1 statement
comprise part of the summary judgment record.5

See Cochran v.

Quest Software, Inc., 328 F.3d 1, 12 (1st Cir. 2003) (plaintiff’s
failure to contest date in LR. 56.1 statement of material facts
caused date to be admitted on summary judgment); Stonkus v. City
of Brockton Sch. Dep’t, 322 F.3d 97, 102 (1st Cir. 2003) (citing
LR. 56.1 and deeming admitted undisputed facts material facts
which plaintiff failed to controvert).

Adhering to this

framework, the record sets out the following facts.6
FACTUAL BACKGROUND
A.

Plaintiff’s Employment
Prior to her employment at defendant’s dealership,

plaintiff worked as a waitress and had no prior experience in

5

Statements of law in the statement of undisputed facts are not
considered.
6
Additional facts are included in the discussion section where
relevant to a particular argument.

7

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automobile sales.

(Docket Entry # 22, ¶ 11, p. 3) (Docket Entry

# 32, ¶ 11, p. 3).7

On July 27, 2012, plaintiff, who is Hispanic

and of Dominican descent, was hired as a salesperson at
defendant’s automobile dealership in Norwood, Massachusetts,
Clay Hyundai.

(Docket Entry # 22-6, p. 2) (Docket Entry # 22,

¶¶ 9, 10, p. 3) (Docket Entry # 32, ¶¶ 9, 10, p. 3).
As stated in its employee handbook, defendant:
is an equal opportunity employer. All employment
decisions and personnel actions at the [defendant’s
company] are administered without regard to race,
color, religion, creed, national origin, ancestry, sex
. . . All employment decision and personnel actions,
such as hiring, promotion, compensation, benefits, and
termination, are and will continue to be administered
in accordance with, and to further the principle of,
equal employment opportunity.
(Docket Entry # 22-1, p. 3).
Additionally, defendant’s freedom from harassment policy
states, “All employees have the right to be free from slurs or
any other verbal or physical conduct that constitutes such
harassment.”

(Docket Entry # 22-1, p. 3).

The policy provides

that any employee who believes that he or she is the victim of
workplace harassment should promptly report the act to the
employee’s manager.

(Docket Entry # 22-1, p. 3).

defendant has an anti-fraternization policy.

Additionally,

(Docket Entry #

32, ¶ 95, p. 19).

7

Page numbers refer to the page as docketed rather than the
page of the document itself.

8

Case 1:14-cv-14027-NMG Document 36 Filed 11/17/16 Page 9 of 47

Salespeople at Clay Hyundai typically announced their sale
goals during weekly Saturday meetings, but there was no required
quota.

(Docket Entry # 22-7, p. 17).

Sales leads were received

via defendant’s business development center (“BDC”), which was
located adjacent to defendant’s dealership.

(Docket Entry # 22,

¶¶ 16-18, p. 4) (Docket Entry # 32, ¶¶ 16-18, p. 4).

At the

BDC, employees communicated with potential customers and set up
appointments to visit the dealership.

(Docket Entry # 22, ¶¶

16-20, p. 4) (Docket Entry # 32, ¶¶ 16-20, p. 4).

Salespeople

were expected to approach customers who visited the dealership
without a prior appointment scheduled through the BDC.

(Docket

Entry # 22, ¶¶ 19-20, p. 4) (Docket Entry # 32, ¶¶ 19-20, p. 4).
These customers were referred to as “ups.”

(Docket Entry # 22,

¶ 19, p. 4) (Docket Entry # 32, ¶ 22, p. 4).

The number of

“ups” a salesperson took was recorded in a computer tracking
system at the dealership.

(Docket Entry # 22, ¶ 22, p. 5)

(Docket Entry # 32, ¶ 22, p. 4).

The BDC also received

telephone and online inquiries from potential customers and
assigned those potential customers to salespeople.

(Docket

Entry # 22-5, p. 2).
At the beginning of her employment, plaintiff’s sales were
lower than average because she had no prior experience in
automobile sales.

(Docket Entry # 22, ¶ 13, p. 3) (Docket Entry

# 32, ¶ 13, p. 3).

She sold five, three and six cars during the

9

Case 1:14-cv-14027-NMG Document 36 Filed 11/17/16 Page 10 of 47

months of August, September and October 2012 respectively.
(Docket Entry # 22-8, p. 2).

Her sales increased during 2013

but then decreased in the winter of 2014.
p. 2).

(Docket Entry # 22-8,

Construing the record in plaintiff’s favor, she sold

seven, seven and eight cars during the months of January,
February and March 2014 respectively.
p. 11) (Docket Entry # 22-11).

(Docket Entry # 22, ¶ 66,

Comparatively, the median sales

in January, February and March 2014 were eight, seven and six
cars.

(Docket Entry # 22-11).

During this three-month time

period there were only four instances in which a salesperson
sold more than ten cars.

(Docket Entry # 22-11).

Plaintiff

took less ups than the average salesperson during the winter of
2014.

(Docket Entry # 22-5, p. 4).

According to plaintiff’s

manager, Jason Ferreira (“Ferreira”), plaintiff’s employment was
terminated due to “poor performance” stemming from her refusal
to take sufficient “ups” as they came in.

(Docket Entry # 32-3,

pp. 8-9).
B.

Jason Ferreira
On January 3, 2014, Ferreira was hired as the general

manager of defendant’s dealership.
p. 2).

(Docket Entry # 22-5, ¶ 2,

Ferreira was hired to improve operations at the BDC.

(Docket Entry # 22-5, ¶ 5, p. 2).

Ferreira initially terminated

the existing sales manager, Mike Rice, and hired two new
employees, DJ Allain (“Allain”) and Frank Bisch.

10

(Docket Entry

Case 1:14-cv-14027-NMG Document 36 Filed 11/17/16 Page 11 of 47

# 22, ¶ 26, p. 5).

Ferreira subsequently transferred Allain to

a finance position occupied by plaintiff’s step-father, Edwin
Espinoza (“Espinoza”), who was terminated as a result of the
transfer.

(Docket Entry # 32, ¶ 27, p. 5).

Ferreira’s

friendship with Allain predates Allain’s placement in the
finance position.

(Docket Entry # 32, ¶ 27, p. 5).

With respect to plaintiff, Ferreira states in his affidavit
that plaintiff was “generally good at closing sales.
she routinely took fewer ups than average.”
5, ¶ 22, p. 4).

However,

(Docket Entry # 22-

Ferreira counseled plaintiff to more frequently

approach new customers.

(Docket Entry # 22-5, ¶ 23, p. 4).

Plaintiff, however, states by affidavit that it was never
brought to her attention that she needed to improve her
performance.

(Docket Entry # 22-7, p. 16).

Ferreira often used profanities in front of plaintiff,
other employees and customers during meetings and in the
showroom.
86-87).

(Docket Entry # 22-7, p. 53) (Docket Entry # 27, pp.

Plaintiff suggests that Ferreira directed profanities

at her “about seven times while in the office.”

(Docket Entry #

32-5, ¶ 4, p. 3).
For example, on two occasions, Ferreira made comments
towards plaintiff regarding her Hispanic and Dominican descent.
(Docket Entry # 22-7, pp. 34-35) (Docket Entry # 32, ¶¶ 29-30,
p. 6).

One evening, plaintiff stayed at the dealership late and

11

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informed Ferreira that she would lock the door upon leaving.
(Docket Entry # 22, ¶ 29, p. 6) (Docket Entry # 32, ¶ 29, p. 6).
Ferreira responded, “Don’t lock the door, because I know how you
Spanish people are, stealing stuff.”

(Docket Entry # 22, ¶ 29,

p. 6) (Docket Entry # 32, ¶ 29, p. 6).

In another instance,

when plaintiff got coffee for Ferreira and the owner of the
dealership, Brian Clay (“Clay”), Ferreira responded, “I won’t
drink that.

I don’t trust Spanish people.

the drink.”

(Docket Entry # 22, ¶ 30, p. 6) (Docket Entry # 32,

¶ 30, p. 6).

These were the only comments Ferreira made about

“‘Spanish people.’”

You put stuff [i]n

(Docket Entry # 22, ¶ 31, p. 6) (Docket

Entry # 32, ¶ 31, p. 6).

Plaintiff never heard anyone else at

the dealership make any derogatory comments about Spanish or
Dominican people.

(Docket Entry # 22, ¶ 33, p. 6) (Docket Entry

# 32, ¶ 33, p. 6).
Plaintiff did not report these comments but contends that
Clay was present on one occasion and Espinoza was present for
another.

(Docket Entry # 22-7, pp. 33-36).

Ferreira states by

affidavit that he “never made any derogatory comments towards
[plaintiff] or anyone else regarding ‘Spanish people’ or any
other race or ethnicity.”

(Docket Entry # 22-5, ¶ 32, p. 5).

Additionally, Ferreira developed an extramarital
relationship with Jillian Kivlin (“Kivlin”), a “BDC agent” who
began working at the dealership in early January 2014.

12

(Docket

Case 1:14-cv-14027-NMG Document 36 Filed 11/17/16 Page 13 of 47

Entry # 22, ¶¶ 39-54, pp. 7-9) (Docket Entry # 22-7, p. 55)
(Docket Entry # 32, ¶¶ 39-54, pp. 7-9).

Although Ferreira never

made any sexual advances towards plaintiff, plaintiff states by
affidavit that Ferreira’s relationship with Kivlin interfered
with her ability to perform her duties at the dealership.
(Docket Entry # 32-4, p. 10).

Plaintiff needed a sales manager

to sign off on her sales (Docket Entry # 22-7, pp. 52) and
Ferreira was often occupied or unavailable.

(Docket Entry # 22-

7, pp. 30-31, 38, 38-39, 40, 41, 46, 51).
For example, on one occasion plaintiff attempted to speak
with Ferreira about a potential customer but the BDC door where
Ferreira was located at the time was locked.

(Docket Entry #

22, ¶ 46, p. 8) (Docket Entry # 32, ¶ 42, p. 7).

When Ferreira

opened the door, plaintiff “observed that the crotch of his
pants appeared to be wet and [Ferreira] was zipping up his fly .
. . [and] Kivlin fixing her clothes.”
p. 8) (Docket Entry # 32, ¶ 42, p. 7).

(Docket Entry # 22, ¶ 46,
Plaintiff informed

Ferreira that, “‘I have some customers that need you.’”
Entry # 22-7, p. 42).

However, the customers ultimately left

without speaking to Ferreira or purchasing a car.
# 22-7, p. 42).

(Docket

(Docket Entry

Anywhere from two-to-three times per day and 15

minutes to two hours at a time, Ferreira and Kivlin remained
behind locked doors.

(Docket Entry # 32, ¶ 50).

On a number of occasions, plaintiff observed Kivlin “[wait]

13

Case 1:14-cv-14027-NMG Document 36 Filed 11/17/16 Page 14 of 47

outside in front of the dealership while [Ferreira] went to get
his car.

[Kivlin] would get into the passenger side of

[Ferreira’s] car and then lower the seat all the way down, so it
appeared that only [Ferreira] was in the car.”

(Docket Entry #

22, ¶ 44, p. 8) (Docket Entry # 32, ¶ 44, p. 7).

Also, Ferreira

and Kivlin often remained at the dealership after hours.
(Docket Entry # 22, ¶ 45, p. 8) (Docket Entry # 32, ¶ 45, p. 7).
Plaintiff states by affidavit that Ferreira stated, “[g]et the
fuck out, everybody.

I’m fucking locking the door,” and all of

the salespeople would leave except for Kivlin.8
22-7, p. 62).

(Docket Entry #

On another occasion, plaintiff observed Kivlin

sitting at her desk with her back towards her computer and
Ferreira behind the closed door.

(Docket Entry # 22, ¶ 48, p.

8) (Docket Entry # 32, ¶ 50, p. 8).

Plaintiff also witnessed

Ferreira and Kivlin go into the ladies restroom together on a
number of occasions.

(Docket Entry # 22, ¶ 49, p. 8) (Docket

Entry # 32, ¶ 49, p. 8).
During one instance, plaintiff found and returned Kivlin’s
purse in Ferreira’s demo car.

(Docket Entry # 22, ¶ 54, p. 9)

(Docket Entry # 32, ¶ 54, p. 9).

Kivlin then entered Ferreira’s

8

Plaintiff’s recitation about what Ferreira said and the
profanity he used is not considered for the truth of the matter
asserted. See Tuli v. Brigham & Women’s Hosp., 656 F.3d 33, 41
(1st Cir. 2011) (statements not admitted for the truth of the
matter asserted but “for purposes of showing notice to the
Hospital and toleration of a general climate of offensive
remarks and displays”).

14

Case 1:14-cv-14027-NMG Document 36 Filed 11/17/16 Page 15 of 47

office and shortly thereafter Ferreira entered the showroom and
screamed in front of plaintiff, employees and customers, “Until
you see my dick inside of her vagina, nobody can say I’m fucking
her.”9
54).

(Docket Entry # 22, ¶ 54, p. 9) (Docket Entry # 32, ¶
Plaintiff nevertheless states by affidavit that Ferreira

admitted and even bragged about having sexual intercourse with
Kivlin, despite being married to another woman.
22-7, pp. 47-48).

(Docket Entry #

Conversely, Ferreira states by affidavit that

he did not have sexual relations with Kivlin during his
employment at Clay Chevrolet, but in his deposition he admits to
entering into a relationship with Kivlin after he was
terminated.
32-3, p. 5).

(Docket Entry # 22-5, ¶ 31, p. 5) (Docket Entry #
Plaintiff complained to Ferreira that it was

inappropriate to have sex in the workplace and that his sexual
behavior behind locked doors impacted her ability to do her job.
(Docket Entry # 32, ¶ 84, p. 15).
In or around March of 2014, plaintiff first reported her
discomfort with a suspected sexual relationship between Ferreira
and Kivlin to Chief Financial Officer James Sarno (“Sarno”).
(Docket Entry # 32-4, p. 10) (Docket Entry # 32-2, p. 7).

The

human resources coordinator, Sharon Waterson (“Waterson”), was
out of the office on medical leave and so Sarno was standing in

9

This statement is not considered for the truth of the matter
asserted.

15

Case 1:14-cv-14027-NMG Document 36 Filed 11/17/16 Page 16 of 47

as HR for the time Waterson was out.
6).

(Docket Entry # 32-2, p.

Plaintiff met Sarno face-to-face and conveyed her belief

that Ferreira was involved in a sexual relationship with Kivlin,
that his behavior was inappropriate and that his unavailability
hindered her sales capacity.

(Docket Entry # 22, ¶ 55, p. 9)

(Docket Entry # 32-4, p. 10).

Sarno responded by indicating

that “just because they are behind a locked door doesn’t mean
there is something sexual” and suggested he would report up to
Clay, who hired Ferreira.

(Docket Entry # 32-4, p. 11).

Sarno

did not take notes at the meeting with plaintiff even though he
agreed that it would have been important to do so.
Entry # 32-4, p. 11).
Clay.

(Docket

Sarno then discussed the matter with

(Docket Entry # 32-4, p. 12).

Thereafter, Clay had a

meeting with Ferreira who denied the allegations to Clay.
(Docket Entry # 22-5, ¶ 30, p. 5).

Within a day of this

conversation, Sarno relayed to plaintiff that Ferreira had been
spoken to and denied any sexual relationship with Kilvin.
(Docket Entry # 22, ¶ 62, p. 10) (Docket Entry # 32, ¶ 62, p.
10) (Docket Entry # 32-4, p. 14).10
Next, plaintiff approached her Clay Hyundai office manager,
Crystal Wall (“Wall”), to report her discomfort with Ferreira’s
unavailability behind locked doors with Kilvin, in addition to

10

The parties agree that the above fact is part of the summary
judgment record.

16

Case 1:14-cv-14027-NMG Document 36 Filed 11/17/16 Page 17 of 47

her reporting “an inappropriate relationship” between them.
(Docket Entry # 32-2, p. 6).

Wall indicated she would look into

the matter and contacted Sarno.

(Docket Entry # 32-2, p. 6).

Wall did not take any notes of her conversation with Sarno, but
shortly thereafter plaintiff’s employment ended.

(Docket Entry

# 32-2, p. 6).
After plaintiff confronted Clay and towards the end of her
employment, plaintiff stated “she was taking herself out” if she
fell short of her sales goal.

(Docket Entry # 32-2, p. 7).

Also, after plaintiff had complained to Wall that Ferreira once
looked directly at her and stated, “‘I don’t give a fuck who you
are.

I can fucking fire any of you any time I want.

give a fuck you go and talk to the [sic] Clay.
fucking want in this place.’”

I don’t

I do anything I

(Docket Entry # 22, ¶ 64, p. 11)

(Docket Entry # 32, ¶ 64, p. 11) (Docket Entry # 22-7, p. 59).
After plaintiff’s complaints, Ferreira refused to speak
with plaintiff, and neither Ferreira nor the BDC assisted
plaintiff in her sales efforts.

(Docket Entry # 22-7, p. 47).

In her capacity at the BDC, Kivlin was responsible for providing
sales leads to sales staff, but following plaintiff’s
complaints, plaintiff did not receive any referrals.
Entry # 32-1, p. 10).

(Docket

Ferreira was more accommodating to other

employees, because, in plaintiff’s words, the other employees
“didn’t care” about his extracurricular work activities.

17

Case 1:14-cv-14027-NMG Document 36 Filed 11/17/16 Page 18 of 47

(Docket Entry # 22-7, pp. 52-53).

Customarily, when a

salesperson greeted a customer at the door (whether they were
there for a BDC appointment or not) that customer would be
counted as an “up” for the salesperson who would be entitled to
serve that customer.

(Docket Entry # 32-5, ¶ 10, p. 3).

Roughly three to four times per week, plaintiff would initiate
contact with a customer headed to the BDC, but that customer
would be reassigned to other sales staff at the behest of
Ferreira.

(Docket Entry # 32-5, ¶ 10, p. 3).

Kivlin did not

often assign plaintiff customers from online and phone sales
leads as most customers were assigned to salesperson Eddy, a
friend of Ferreira and Kivlin, who provided Kivlin with rides to
work.

(Docket Entry # 32-5, ¶ 11, p. 4).
Plaintiff submits that she was required to get final

approval on sales from Ferreira, who after plaintiff’s
complaints often turned away sales.
p. 4).

(Docket Entry # 32-5, ¶ 12,

This rarely occurred prior to plaintiff’s complaints and

Ferreira was more helpful to sales staff who had not complained
about his sexual behavior.
C.

(Docket Entry # 32-5, ¶¶ 12, 13).

Termination
On April 18, 2014, plaintiff went to work and, upon

learning that Waterson had returned to work, went to her office
and began describing there “was too much sex harassment going on
between” Ferreira and Kivlin.

(Docket Entry # 32-1, p. 29).

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While plaintiff was in Waterson’s office, plaintiff received a
page from Ferreira.
his office.

Plaintiff responded to the page and went to

(Docket Entry # 32-1, pp. 29-30).

saw Ferreira, he terminated her employment.

When plaintiff

(Docket Entry # 22,

¶ 68, p. 12) (Docket Entry # 32, ¶ 68) (Docket Entry # 22-5, ¶
36, p. 5).

Ferreira fired plaintiff “for performance reasons.”

(Docket Entry # 22-2, ¶ 26, p. 5) (Docket Entry # 22-5, ¶ 36).
Ferreira informed plaintiff she was terminated because of poor
performance, including not selling enough cars.
32-3, p. 13).

Ferreira told plaintiff that “it’s nothing

personal, but you knew it was coming.
up[s].

I have to let you go.”

polite and a good salesperson.

Plaintiff was reputed to be

(Docket Entry # 32-4, pp. 8,

Sarno could not recollect any instance where plaintiff

received a verbal or written warning.
8).

You’re not taking enough

(Docket Entry # 22, ¶ 69, p. 12)

(Docket Entry # 32, ¶ 69, p. 12).

11).

(Docket Entry #

(Docket Entry # 32-4, p.

Ferreira never issued plaintiff “[a] specific warning

saying if she didn’t do X amount that she was gone.”
Entry # 32-3, p. 9).

(Docket

There was no sales quota at the

dealership, however, sales people did set a goal for themselves
each month.

(Docket Entry # 32-2, p. 11).

On April 8, 2014, the lowest performing salesperson, Tracy
McNeil, was terminated for “no call, no show.”

(Docket Entry #

22, ¶ 70, p. 12) (Docket Entry # 32, ¶ 70, p. 12) (Docket Entry

19

Case 1:14-cv-14027-NMG Document 36 Filed 11/17/16 Page 20 of 47

# 22-5, ¶ 38, p. 5).

On May 27, 2014, Ferreira hired another

salesperson, Rich Garcia (“Garcia”), also of Dominican descent.
(Docket Entry # 22, ¶ 72, p. 12) (Docket Entry # 32, ¶ 72, p.
12).

Subsequently, on June 2, 2014, Ferreira fired Paul Shamon

(“Shamon”), a white male with higher sales figures than
plaintiff.

(Docket Entry # 22, ¶ 71, p. 12) (Docket Entry # 32,

¶ 71, p. 12).

Shamon never complained about discrimination or

Ferreira’s relationship with Kivlin.

(Docket Entry # 22, ¶ 71,

p. 12) (Docket Entry # 32, ¶ 71, p. 12).
On October 14, 2014, defendant terminated Ferreira.
(Docket Entry # 22-5, ¶ 43, p. 6).

Ferreira contends the reason

for his termination was the anticipated slow winter season.
(Docket Entry # 32-3, p. 6).
DISCUSSION
Defendant seeks summary judgment on all claims in the
complaint.

Plaintiff argues that summary judgment is

inappropriate given persisting issues of material fact.

(Docket

Entry # 33).
A.

Race, National Origin, Ethnicity and Gender Discrimination

(Counts I and IV)
Count I sets out race, national origin and ethnicity
disparate treatment discrimination claims and Count IV sets out
a gender disparate treatment discrimination claim, respectively,
under chapter 151B.

When based on indirect circumstantial

20

Case 1:14-cv-14027-NMG Document 36 Filed 11/17/16 Page 21 of 47

evidence of discrimination, Massachusetts courts analyze these
types of discrimination under the same, burden-shifting
standard.11

See Bulwer v. Mount Auburn Hospital, 46 N.E.2d 24,

32 (Mass. 2016) (race and national origin discrimination
claims); accord Sullivan v. Liberty Mut. Insurance, Co., 825
N.E.3d 522, 530-31 (Mass. 2005) (sex and age discrimination
claims).

As such, counts I and IV are discussed simultaneously

below.
Chapter 151B, in pertinent part, states:
unlawful practice:

“[i]t shall be an

[f]or an employer, . . . , because of the

race, color, . . . [or] sex . . . of any individual . . . to
discharge from employment such individual or to discriminate
against such individual . . . in terms, conditions or privileges
of employment, unless based upon a bona fide occupational
qualification.”

Mass. Gen. Laws. ch. 151B, § 4.

“[A]t trial, an employee bringing” a chapter 151B claim
“must demonstrate four things:

that he or she is a member of a

protected class; that he or she was subject to an adverse
employment action; that the employer bore ‘discriminatory
animus’ in taking that action; and that that animus was the
reason for the action (causation).”

Bulwer v. Mt. Auburn

Hospital, 46 N.E.3d at 32 (citing Lipchitz v. Raytheon Co., 751

11

The facts do not warrant or support a mixed motive analysis
and, in any event, plaintiff fails to develop any argument that
such an analysis forestalls summary judgment.

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N.E.2d 360, 368 (Mass. 2001)).

At the summary judgment stage,

as noted above, where, as here, a plaintiff relies on indirect
evidence of discrimination, Massachusetts courts typically use
“the familiar three-stage, burden-shifting paradigm first set
out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-805
(1973).”

Sullivan v. Liberty Mutual Ins. Co., 825 N.E.2d at

530; Bulwer v. Mt. Auburn Hospital, 46 N.E.3d at 32.

“In the

first stage, the plaintiff” must produce evidence of “a prima
facie case of discrimination,” which would allow a jury to infer
that “(1) [s]he is a member of a class protected by G.L. c.
151B; (2) [s]he performed [her] job at an acceptable level;
[and] (3) [s]he was terminated.”

Blare v. Husky Injection

Molding Systems Boston, Inc., 646 N.E.2d 111, 115 (Mass. 1995);
accord Bulwer v. Mt. Auburn Hospital, 46 N.E.3d at 32-33.

In

the second stage, the burden of production shifts to the
employer to articulate a “legitimate, nondiscriminatory reason
for its employment decision.”

Bulwer v. Mt. Auburn Hospital, 46

N.E.3d at 33 (brackets omitted).

At the third stage, the burden

of production shifts back to the employee to produce evidence
that “the employer’s articulated justification [for the adverse
action] is not true but a pretext.”

Blare v. Husky Injection

Molding Systems Boston, Inc., 646 N.E.2d at 116; accord Bulwer
v. Mt. Auburn Hospital, 46 N.E.3d at 33.
Because “‘Massachusetts is a pretext only jurisdiction,’”

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Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky and Popeo,
P.C., 50 N.E.3d 778, 794 (Mass. 2016) (citation omitted), an
employee may survive summary judgment by producing evidence
“that the respondent’s facially proper reasons given for its
action against him [or her] were not the real reasons for that
action,” Wheelock Coll. v. Mass. Comm’n Against Discrimination,
355 N.E.2d 309, 315 (Mass. 1976), “even if that evidence does
not show directly that the true reasons were, in fact,
discriminatory.”

Verdrager v. Mintz, Levin, Cohn, Ferris,

Glovsky and Popeo, P.C., 50 N.E.3d at 794; see Blare v. Husky
Injection Molding Systems Boston, Inc., 646 N.E.2d at 116;
Lipchitz v. Raytheon Co., 751 N.E.2d at 367-68.

Such indirect

evidence is sufficient at the summary judgment stage because a
showing of pretext combined with the established prima facie
case “‘eliminates any legitimate explanation for the adverse
hiring decision and warrants,’ but does not require, ‘a
determination that the plaintiff was the victim of unlawful
discrimination.’”

Verdrager v. Mintz, Levin, Cohn, Ferris,

Glovsky & Popeo, P.C., 50 N.E.3d at 794 (quoting Blare v. Husky
Injection Molding Systems Boston, Inc., 646 N.E.2d 111 at 117).
Defendant does not argue that plaintiff has failed to make
her prima facie case.12

Nevertheless, plaintiff meets this

12

Defendant does state, in conclusory fashion, that, “Plaintiff
Cannot Make A Prima Facie Case of Disparate Treatment On Any

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initial preliminary burden.

See Blare v. Husky Injection

Molding Sys. Boston, Inc., 646 N.E.2d at 115.
is an Hispanic woman of Dominican descent.

First, plaintiff

A reasonable juror

could therefore find that plaintiff is within a protected class
as to the discrimination claims based on race, national origin
and ethnicity and in a protected class as a woman with respect
to the gender discrimination claim.

See Village of Freeport v.

Barella, 814 F.3d 594, 607 (2nd Cir. 2016) (discrimination claim
“based on Hispanic ethnicity” may be cognizable as “nationalorigin discrimination” and holding “that for purposes of Title
VII, ‘race’ encompasses ethnicity”); Williams v. Raytheon Co.,
220 F.3d 16, 19 (1st Cir. 2000) (indicating gender is a protected
class “in the sense that every person is in a class protected
against gender discrimination”); Cuello-Suarez v. Puerto Rico
Elec. Power Auth. (PREPA), 988 F.2d 275, 278 (1st Cir. 1993)
(prima facie case established and stating, “Plaintiff’s status
as a person of Dominican Republic origin was clear”); Johal v.
Little Lady Foods, Inc., 2004 WL 1745749, at *16 (N.D. Ill. July
30, 2004) (“Valezquez is Hispanic, so she could potentially fall
within the protected categories of national origin and color”);
see generally Commonwealth v. De La Cruz, 405 Mass. 269, 272
(1989) (“word ‘Hispanic,’ ordinarily refers, not to race, but to

Basis . . ..” (Docket Entry # 21, p. 12). However, defendant
does not support this sub-heading with any application of the
prima facie elements to the facts at-hand.

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national origin).

Second, given the low evidentiary threshold

at the prima facie stage, plaintiff provided her qualifications
for employment given Ferreira’s remarks that she was “generally
good at closing sales.”

(Docket Entry # 22-5, p. 4).

Also,

plaintiff was reputed to be polite and a good salesperson
(Docket Entry # 32-4, pp. 8, 11) and Sarno could not recollect
any instance where plaintiff received a verbal or written
warning.

(Docket Entry # 32-4, p. 8).

Third, it is undisputed

that plaintiff suffered an adverse employment action by being
terminated.

(Docket Entry # 22, ¶ 69, p. 12) (Docket Entry #

32, ¶ 69, p. 12).
Moving to the next step of the McDonnell Douglas analysis,
defendant must “articulate some legitimate, non-discriminatory
reason” for plaintiff’s termination.
Green, 411 U.S. at 802.

McDonnell Douglas Corp. v.

The defendant employer’s obligation at

the second stage is “to produce both ‘lawful . . . reasons for
[its] employment decision’ and ‘credible evidence to show that
the . . . reasons advanced were the real reasons.’”

Bulwer v.

Mt. Auburn Hospital, 46 N.E.3d at 34 (quoting Blare v. Husky
Injection Molding Sys. Boston, Inc., 646 N.E.2d at 115).
Defendant has met its burden of production to show a nondiscriminatory reason for plaintiff’s termination, citing
specifically plaintiff’s failure to perform essential job
functions like taking sufficient ups.

25

Defendant also provides

Case 1:14-cv-14027-NMG Document 36 Filed 11/17/16 Page 26 of 47

sufficient evidence of plaintiff’s overall low and declining
sales figures.

(Docket Entry # 22-8); see Santiago v. Raytheon

Corp., 2011 WL 2945800, at *4 (D.Mass. July 22, 2011) (“[a]s a
matter of law, deficient performance is a legitimate nondiscriminatory reason for firing an employee”).
With defendant’s production of a legitimate nondiscriminatory cause for the termination, “the burden of
production shifts back to” plaintiff “to provide evidence that
‘the employer’s articulated justification for the termination is
not true but a pretext.’”

Bulwer v. Mt. Auburn Hospital, 46

N.E.3d at 33 (quoting Blare v. Husky Injection Molding Sys.
Boston, Inc., 646 N.E.2d at 116) (internal brackets omitted).
To avoid “summary judgment, the plaintiff need only present
evidence from which a reasonable jury could infer that ‘the
[employer’s] facially proper reasons given for its action
against him were not the real reasons for that action.’”

Id.

(quoting Wheelock College v. Massachusetts Comm’n Against
Discrimination, 355 N.E.2d at 315).
“Because ‘smoking gun’ evidence is rare, the plaintiff may,
and more often than not must, carry his burden of persuasion
with circumstantial evidence that convinces the fact finder that
the proffered explanation is not credible.”

City of Salem v.

Massachusetts Comm’n Against Discrimination, 693 N.E.2d 1026,
1038 (Mass.App.Ct. 1998) (citation omitted); see Zaniboni v.

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Mass. Trial Court, 961 N.E.2d 155, 159 (Mass.App.Ct. 2012).
“‘[T]he plaintiff must prove that the explanation given by the
employer . . . lacks reasonable support in evidence or is wholly
disbelievable.’”

Metelus v. Wingate Healthcare, Inc., 2014

Mass.Super. LEXIS 29, *12 (Mass.Super. Feb. 28 2014) (citation
omitted).

“The fact finder may properly take into account

‘weaknesses, implausibilities, inconsistencies, incoherencies,
or contradictions in the employer’s proffered legitimate reasons
for its action.’”

Id. (citation omitted); accord Abramian v.

President & Fellows of Harvard Coll., 731 N.E.2d 1075, 1085
(Mass. 2000) (proving pretext “may be accomplished by showing
that the reasons advanced by the employer for making the adverse
decision are not true”).

“‘[I]f the factfinder is persuaded

that one or more of the employer’s reasons is false, it may (but
need not) infer that the employer is covering up a
discriminatory intent, motive or state of mind.’”

Metelus,

Mass.Super. LEXIS at *13 (citation omitted).
Examples of circumstantial evidence include derogatory or
discriminatory comments made by an employee’s supervisors or
managers, see Ahanon v. Cerebral Palsy of Mass., 2005 WL 418598,
*8 (Mass.Super. Jan. 31, 2005) (“[t]he degree of [the comment]
may be a factor, but, again, an ‘isolated or ambiguous remark,’
standing alone, is insufficient to prove discriminatory
intent”), statistical evidence, see Lipchitz v. Raytheon Co.,

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751 N.E.2d at 373 (statistical evidence may support inference
that particular decision was made because of discriminatory
animus), and comparative evidence, see Matthews v. Ocean Spray
Cranberries, Inc., 686 N.E.2d 1303, 1310 (Mass. 1997) (stating
that employee must “identify and relate specific instances where
persons similarly situated ‘in all relevant aspects’ were
treated differently”).
Plaintiff argues that defendant’s reasons for terminating
her for poor performance were merely a pretext and not the real
reasons for the termination.

(Docket Entry # 33, p. 24).

Plaintiff attempts to demonstrate that, prior to her
termination, she was considered an overall good employee with
monthly sales comparable to the average employee at that
branch.13

(Docket Entry # 33, p. 25).

In January 2014, the

median sales was eight total cars sold and plaintiff sold seven
cars.

(Docket Entry # 33, p. 25) (Docket Entry # 22-11).

In

February 2014, the median sales was seven cars and plaintiff
matched that by selling seven cars.
(Docket Entry # 22-11).

(Docket Entry # 33, p. 25)

In March 2014, the median sales was six

and plaintiff sold eight.

(Docket Entry # 33, p. 25) (Docket

13

Two charts with different metrics were entered into evidence
to demonstrate plaintiff’s sales compared to sales of other
employees. The charts are viewed in the light most favorable to
plaintiff, meaning that where plaintiff’s sales differ for the
same month on the charts, the higher sales figure applies.
(Docket Entry # 22-11) (Docket Entry # 22-8).

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Case 1:14-cv-14027-NMG Document 36 Filed 11/17/16 Page 29 of 47

Entry # 22-8).

In April 2014, the median cars sold was 6.5 and

plaintiff sold four cars before she was terminated on April 18,
2014.

(Docket Entry # 33, p. 25) (Docket Entry # 22-8).

Plaintiff points out that there were no quotas or minimum sales
requirements nor did she receive any warnings regarding her
number of ups and sales.
Entry # 32-2, p. 11).

(Docket Entry # 33, p. 25) (Docket

Three to four times a week, plaintiff

approached customers but Ferreira reassigned the customers
thereby preventing plaintiff from being credited with these
contacts as ups.

Kilvin also assigned customers frequently to

another salesperson and, viewing the record in plaintiff’s
favor, rarely to plaintiff.
The reasons proffered by plaintiff are strong enough to tip
the scales in her favor for purposes of summary judgment.

As

stated, Massachusetts is a “pretext only jurisdiction,” meaning
a plaintiff can survive summary judgment by producing evidence
“that the respondent’s facially proper reasons given for its
action against him were not the real reasons for that action,”
Wheelock Coll. v. Mass. Comm’n Against Discrimination, 355
N.E.2d at 315, “even if that evidence does not show directly
that the true reasons were, in fact, discriminatory.”

Verdrager

v. Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., 50
N.E.3d at 794.

Viewing the record in plaintiff’s favor, the

sales figures indicate that plaintiff was an average salesperson

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in the months leading up to her termination.

Furthermore,

plaintiff attests to never receiving any warnings for failing to
take a sufficient number of ups (Docket Entry # 22-7, p. 16) and
Sarno confirmed this in his deposition.
p. 8).

(Docket Entry # 32-4,

All of the foregoing as a whole is sufficient evidence

from which a reasonable fact finder could deduce that
defendant’s non-discriminatory reasons for termination were a
pretext.
As previously stated, under chapter 151B plaintiff need not
show discriminatory animus to survive summary judgment.

As

explained in Bulwer, “‘[i]f the employee were able to prove by
direct evidence that discriminatory animus motivated the
decision, [she] would not have to rely on the indirect method of
proving animus by disproving at least one of the employer’s
articulated, nondiscriminatory reasons.’”
Auburn Hospital, 46 N.E.3d 24, 33.

Bulwer v. Mount

Therefore, a showing that

defendant’s reasons for terminating plaintiff were a pretext at
the summary judgment stage allows a reasonable fact finder to
infer that plaintiff may have been terminated because of
discriminatory animus.

“The case can then proceed to trial, at

which point, ‘if the fact finder is persuaded that one or more
of the employer’s reasons is false, it may (but need not) infer
that the employer is covering up a discriminatory intent, motive
or state of mind.’”

Bulwer v. Mount Auburn Hospital, 46 N.E.3d

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24, 33 (quoting Lipchitz v. Raytheon Co., 751 N.E.2d at 367-68).
The race, national origin, ethnicity and gender disparate
treatments claims pled in counts I and IV therefore survive
summary judgment.
B.

Hostile Work Environment

I.

Standard
In Count I, plaintiff contends that defendant subjected her

to “a hostile work environment” based on her race in violation
of chapter 151B.14

(Docket Entry # 1-1).

In Count III,

plaintiff claims she was sexually harassed and therefore
subjected to a hostile work environment on the basis of her
sex.15
Chapter 151B provides a cause of action for a hostile work
environment based on the cumulative effect of a series of
abusive acts though each in isolation might not be actionable in
itself.

See Clifton v. Mass. Bay Transp. Auth., 839 N.E.2d 314,

319 (Mass. 2005).

A hostile work environment under

Massachusetts law is one that is “‘pervaded by harassment or
abuse, with the resulting intimidation, humiliation, and
stigmatization, [such that it] poses a formidable barrier to the

14

As previously explained, plaintiff waived the hostile work
environment claim based on race. This court addresses it to
complete the record inasmuch as defendant addresses the claim in
the supporting memorandum. 
15
Plaintiff does not raise a constructive discharge claim or
argument that she was constructively discharged.

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full participation of an individual in the workplace.’”

Cuddyer

v. Stop & Shop Supermarket Co., 750 N.E.2d 928, 937 (Mass. 2001)
(internal citation omitted).
Whether a work environment is sufficiently hostile to
establish a claim under chapter 151B16 depends on both an
objective and subjective evaluation such that a reasonable
person would find it hostile or abusive and that plaintiff in
fact did perceive it to be so.

See Thompson v. Coca-Cola Co.,

522 F.3d 168, 179 (1st Cir. 2008) (addressing chapter 151B
discrimination claim).

This court considers all of the

circumstances “in determining whether a work environment is
sufficiently hostile or abusive, including ‘the frequency of the
discriminatory conduct; its severity; whether it was physically
threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee’s work
performance.’”

Lee-Crespo v. Schering-Plough Del Caribe Inc.,

354 F.3d 34, 46 (1st Cir. 2003) (quoting Harris v. Forklift
Systems, Inc., 510 U.S. 17, 23 (1993)); accord Belanger v.
Saint-Gobain Indus. Ceramics, 1999 Mass.Super. LEXIS 89, *11
(Mass.Super.Ct. Feb. 24, 1999).

There is no quantitative

requirement or threshold for the occurrence or frequency of

16

The approach taken by the Massachusetts Supreme Judicial
Court to “hostile work environment” claims brought under the
state statute does not differ greatly from the Supreme Court’s
analysis. See Bourbeau v. City of Chicopee, 445 F.Supp.2d at
113.

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incidents necessary to establish the claim.

See Gnerre v. Mass.

Comm’n Against Discrimination, 524 N.E.2d 84, 88-89 (Mass.
1988); accord Noviello v. City of Boston, 398 F.3d 76, 84 (1st
Cir. 2005).
II.

Sexual Harassment Hostile Work Environment (Count III)
Defendant argues that summary judgment should be granted

because a consensual, romantic relationship between two
employees does not, in and of itself, create a sexually hostile
work environment for all other employees.
p. 15).

(Docket Entry # 21,

Defendant further maintains that the claim fails even

if such a relationship could be grounds for a hostile work
environment claim because she cannot prove that the hostile work
environment unreasonably interfered with her work performance or
that the conduct was subjectively offensive to her.
Entry # 21, p. 16).

(Docket

The sexually hostile work environment claim

is based on plaintiff’s discomfort with a suspected sexual
relationship between Ferreira and Kivlin.

Plaintiff points out

that the relationship was offensive and resulted in Ferreira’s
unavailability during work and hindered plaintiff’s sales
capacity.

(Docket Entry # 32-4, p. 10) (Docket Entry # 33, p.

13).
Massachusetts courts have routinely distinguished cases
that were brought by an individual who was directly targeted by
the alleged harasser from cases brought by a third party who was

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“significantly removed from the events.”

Bourbeau v. City of

Chicopee, 445 F.Supp.2d 106, 114 (D.Mass. 2006) (addressing
sexual harassment under chapter 151B); see Ritchie v. Dep’t of
State Police, 805 N.E.2d 54, 60 (Mass.App.Ct. 2004).

In

Bourbeau, the court noted that it knew of “no decision under
Title VII or chapter 151B which would extend hostile work
environment protection to an employee, like Plaintiff, who
simply witnessed such amorous contact between co-workers.”
Bourbeau v. City of Chicopee, 445 F.Supp.2d at 113 (emphasis
added).

A case cited by plaintiff, Billings v. Town of Grafton,

515 F.3d 39, 48, 51-52 (1st Cir. 2008), is not to the contrary.
The plaintiff in Billings was the primary object of the male
supervisor, who repeatedly “stared at her breasts for much of
the two and a half years they worked together.”

Id. at 50.

In this case, plaintiff was never the object of Ferreira’s
sexual advances or harassment.

(Docket Entry # 22, ¶ 38, p. 7).

Instead, plaintiff’s claim is solely based on Ferreira’s alleged
affair with another employee, which “was an impairment on her
ability to sell vehicles.”

(Docket Entry # 32-4, p. 10).

Because plaintiff was not targeted by the harasser (Ferreira)
and simply witnessed, albeit multiple times, his sexual advances
and relationship with Kilvin, the sexual hostile work
environment claim lacks merit.
The sexual hostile work environment claim is also based on

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the fact that Ferreira often used profanities in front of
plaintiff, other employees and customers.

The use of profanity

alone may not constitute harassment in the workplace, even where
those words have “an explicit sexual connotation.”

Prader v.

Leading Edge Products, Inc., 659 N.E.2d 756, 759 n.2
(Mass.App.Ct. 1996) (plaintiff complained that supervisor
referred to her as a “‘cocksucker’” and “‘a fucking . . .’”);
see also Ramsdell v. Western Mass. Bus Lines, Inc., 615 N.E.2d
192, 195-96 (Mass. 1993).

“While the vulgar language was

inappropriate to the workplace and completely unprofessional,
mere offensive utterances that did not unreasonably interfere
with the employee’s work performance do not amount to harassment
that in essence altered the terms or conditions of [plaintiff’s]
employment.”

Fontánez-Núñez v. Janssen Ortho LLC, 447 F.3d 50,

57 (1st Cir. 2005).

“[A] supervisor’s unprofessional managerial

approach . . . [is] not the focus of the discrimination laws.”
Lee-Crespo v. Schering-Plough Del Caribe Inc., 354 F.3d at 4647.
In the case at bar, the “profanities” Ferreira allegedly
used in front of plaintiff (such as “What the fuck do you want
now?

What do you fucking need?”), although unprofessional and

inappropriate to the workplace, do not rise to the level of
creating a sexually hostile work environment.

See Prader v.

Leading Edge Prods., 659 N.E.2d at 759 (“chapter 151B “does not

35

Case 1:14-cv-14027-NMG Document 36 Filed 11/17/16 Page 36 of 47

mandate ‘clean language’ in the work place”).

Therefore, Count

III for sexual harassment is subject to summary judgment.
III.

Racial Harassment (Count I)
Defendant argues that any hostile work environment claim on

the basis of race or color is based on the two “Spanish people”
comments.

Accordingly, the claim is not remotely sufficient to

meet the “severe and pervasive” standard.

(Docket Entry # 21,

p. 14).
Defendant is correct that the only evidence to support the
race-based hostile work environment claim is the two instances
where Ferreira made derogatory comments about “Spanish . . .
people.”

(Docket Entry # 22, ¶¶ 29-31, 33, p. 6) (Docket Entry

# 32, ¶¶ 29-31, 33).

“The flaw in a claim based on a single

event, as in this case, is that the underlying conduct does not
rise to the level of conduct so persuasive as to create a
‘formidable barrier to full participation . . . in the
workplace.’”

See Burke v. Chatbar, Inc., 2004 WL 3218001, *14-

15 (Mass.Super.Ct. Nov. 18, 2004) (citation omitted).

A hostile

environment claim occurs over time and, “in direct contrast to
discrete acts, a single act of harassment may not be actionable
on its own.”

Morrison v. North Essex Cmty. College, 780 N.E.2d

132, 141 (Mass.App.Ct. 2002) (citation omitted).
Here, the comments were infrequent and did not permeate the
workplace.

Such offhand, infrequent comments do not provide

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sufficient evidence for a jury to find in plaintiff’s favor
regarding a hostile work environment claim.

See Morin v. Murida

Furniture Co., Inc., 2009 WL 6067021, at *7 (Mass.Super. Sept.
30, 2009) (quoting Faragher v. City of Boca Raton, 524 U.S. 775,
788 (1988)); accord Weeks v. Lower Pioneer Valley Educ.
Collaborative, 2016 WL 696096, at *10 (D.Mass. Feb. 19, 2016);
Navarro v. U.S. Tsubaki, Inc., 577 F.Supp.2d 487, 512 (D. Mass.
2008) (allowing summary judgment on hostile work environment
claim based on “single episode of harassment on the basis of
[the plaintiff’s] gender:

the comment by a co-worker about her

dress”).
In short, taking the summary judgment record in the light
most favorable to plaintiff, there is not enough evidence with
which a reasonable jury could conclude that the two “Spanish
people” comments are objectively and subjectively offensive
enough to plaintiff as to create a hostile work environment.
See Thompson v. Coca-Cola Co., 522 F.3d at 179; Morin v. Murida
Furniture Co., 2009 WL 6067021, at *5 (five incidents construed
as sexually suggestive did not constitute an ongoing pattern of
discrimination).

Therefore, defendant is entitled to summary

judgment on plaintiff’s hostile work environment/harassment
claim based on race and sex.
C.

Unlawful Retaliation (Count V)
Plaintiff submits that defendant unlawfully retaliated

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against her after she engaged in protected activity by
complaining to management about Ferreira’s inappropriate sexual
behavior with Kivlin.

(Docket Entry # 33, p. 21).

Defendant

contends that she cannot show that “‘but-for’” the complaints
about Ferreira, she would not have been terminated.17

(Docket

Entry # 21, p. 18).
Chapter 151B states that it shall be an unlawful practice:
“[f]or any person, employer . . . to discharge, expel or
otherwise discriminate against any person because he has opposed
any practices forbidden under this chapter or because he has
filed a complaint, testified or assisted in any proceeding under
section five.”

Mass. Gen. Laws ch. 151B, § 4(4).

“An employee

bringing a retaliation claim is not complaining of
discriminatory treatment as such, but rather of treatment that
‘punish[es]’ her for complaining of or otherwise opposing such
discriminatory treatment.”

Verdrager v. Mintz, Levin, Cohn,

Ferris, Glovsky and Popeo, P.C., 50 N.E.3d at 800.

Retaliating

against an employee within the protected classes of individuals
by terminating her employment or making her working condition
less favorable falls under the scope of “unlawful employment

17

Defendant additionally argues that the retaliation based on
her “reporting and/or resisting discrimination and harassment
based upon her national origin/race/color/ethnicity” in Count II
fails because plaintiff admits she never reported the comments
about Spanish people and therefore did not engage in protected
conduct, a requirement of a prima facie case. As previously
noted, plaintiff’s counsel conceded Count II at the hearing. 

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practice.”

Mass. Gen. Laws ch. 151B, § 4(17).

Chapter 151B

“‘does not actually use the word “retaliation’” in describing
forbidden employment practices.”
citation omitted).

Id. at 799 n.33 (internal

“The word ‘retaliation’ is merely

‘shorthand’ that ‘[c]ourts commonly use for. . . the more
detailed wordings of antidiscrimination statutes such as’”
section 4(4).

Id.

To survive summary judgment on a claim of retaliation, an
employee must produce evidence from which a reasonable jury
could infer four elements.

“First, there must be evidence that

the employee ‘reasonably and in good faith believed that the
employer was engaged in wrongful discrimination.’”
(citation omitted).

Id. at 800

“Second, there must be evidence that the

employee ‘acted reasonably in response to that belief’ through
reasonable acts meant ‘to protest or oppose . . .
discrimination.’”

Id. (citation omitted).

“Third, there must

be evidence that the employer took adverse action against the
employee.”

Id.

“Finally, there must be evidence that the

adverse action was a response to the employee’s protected
activity (forbidden motive).”

Id.18

18

In chapter 151B cases, Massachusetts state courts follow a
similar prima facie case and burden shifting analysis as the
federal courts in Title VII cases. Parra v. Four Seasons Hotel,
605 F.Supp.2d at 326.

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Oftentimes, a plaintiff does not have direct evidence of
the fourth element of a forbidden motive.
at 800.

Verdrager, 50 N.E.3d

In such circumstances, the employee may rely on

indirect evidence using the familiar “three-stage burdenshifting paradigm similar to the one discussed in McDonnell
Douglas.”

Id.

To establish a prima facie case of forbidden

motive (the fourth element of a retaliation claim), “the
employee has the burden of producing evidence ‘that she engaged
in protected conduct, that she suffered some adverse action, and
that “a causal connection existed between the protected conduct
and the adverse action.”’”

Id. (quoting Mole v. University of

Mass., 814 N.E.2d 329, 338-339 (Mass. 2004)) (internal brackets
omitted).
In the event plaintiff establishes a prima facie case of
retaliation, the burden shifts to defendant to articulate a
legitimate, non-retaliatory reason for its employment decision.
See Mole v. Univ. of Mass., 814 N.E.2d at 338-339.

If defendant

meets this burden of production, the burden shifts back to
plaintiff to show that the proffered legitimate reasons are in
fact a pretext.

Id.; see Velázquez-Pérez v. Developers

Diversified Realty Corp., 753 F.3d 265, 278 (1st Cir. 2014) (“at
trial, [plaintiff] must show that [she] would not have been
fired had [she] not complained”).
Turning to the retaliation claim based on reporting the

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sexual misconduct, plaintiff submits that she satisfies the
first prong of the prima facie case for retaliation, i.e., that
she engaged in a protected activity, because her complaints
about sexual harassment constitutes a protected activity.
(Docket Entry # 33, p. 21).

The argument may be well taken, see

Hagenah v. Community Enterprises, Inc., 2016 WL 1170963, at *10
(D.Mass. Mar. 23, 2016); Green v. Harvard Vanguard Med. Assocs.,
Inc., 944 N.E.2d 184, 195 (Mass.App.Ct. 2011), but defendant
does not seek summary judgment based on the absence of protected
conduct.

Rather, defendant argues that plaintiff fails to

establish that the complaints about Ferreira concerning sexual
harassment should fail because she cannot show her complaints
were the “‘but-for’” cause of her termination.19
21, pp. 18-19).

(Docket Entry #

Defendant asserts that plaintiff fails to

establish the necessary “causal link.”

(Docket Entry # 21, pp.

18-19).
As noted above, the prima facie elements require plaintiff
to show, inter alia, that a causal connection existed between
the complaint to management (the protected activity) and the
subsequent termination of plaintiff’s employment (the adverse
action).
339.

See Verdrager, 50 N.E.3d at 800; Mole, 814 N.E.2d at

Here, plaintiff argues that this connection exists because

19

As explained below, this court will assume for purposes of
argument only that a but-for standard applies to this chapter
151B claim.

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the temporal proximity between the protected activity and the
adverse action (four weeks) is sufficient to infer retaliation.
(Docket Entry # 33, p. 23).

Plaintiff further contends that her

alleged unfair treatment by Ferreira after complaining to Sarno
is evidence of Ferreira’s intent to wrongfully terminate her
employment.20

(Docket Entry # 33, pp. 22-23).

In response,

defendant contends “‘the mere fact that one event followed
another is not sufficient to make out a causal link.”

(Docket

Entry # 21, p. 18); see Mole v. Univ. of Mass., 814 N.E.2d at
339.

Defendant contends that plaintiff cannot show that “‘but-

for’” her complaints to management she would not have been
terminated.

(Docket Entry # 21, p. 18).

“‘The cases that accept mere temporal proximity between an
employer’s knowledge of protected activity and an adverse
employment action as sufficient evidence of causality to
establish a prima facie case uniformly hold that the temporal
proximity must be very close.’”

Mole v. Univ. of Mass., 814

N.E.2d at 341 (quoting Clark County Sch. Dist. v. Breeden, 532
U.S. 268, 273–74 (2001)); Mesnick v. General Elec. Co., 950 F.2d
816, 828 (1st Cir. 1991) (nine month period between filing of
complaint and discharge and employee’s intervening acts of
defiance suggested absence of causal connection); Sánchez                                                            
20

Instances of Ferreira’s conduct are discussed more thoroughly
below.

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Rodríguez v. AT & T Mobility Puerto Rico, Inc., 673 F.3d at 15
(span of three months between filing EEOC complaint and
employer’s disciplinary action was sufficient temporal proximity
to satisfy plaintiff’s burden to show causal connection);
Calero-Cerezo v. U.S. Dep’t of Justice, 355 F.3d 6, 25-26 (1st
Cir. 2004) (finding span of one month sufficient).
“On a claim of retaliatory discharge, ‘unless the
termination is very closely connected in time to the protected
activity, the plaintiff must rely on additional evidence beyond
temporal proximity to establish causation.’”
Mass., 814 N.E.2d at 341.

Mole v. Univ. of

“Evidence of discriminatory or

disparate treatment in the time period between the protected
activity and the adverse employment action . . . can be
sufficient to show a causal connection.”

Verdrager v. Mintz,

Levin, Cohn, Ferris, Glovsky and Popeo, P.C., 50 N.E.3d at 801
(citation omitted).

“From such evidence, a jury may, though

need not, infer that the ‘pattern of retaliatory conduct [began]
soon after [the protected activity] and only culminate[d] later
in actual’ adverse action.”

Id.

Plaintiff must also show that

the retaliator knew about the protected activity because, after
all, a retaliator cannot retaliate against conduct of which he
is unaware.

See Mole v. Univ. of Mass., 814 N.E.2d at 341 (“it

is not permissible to draw the inference that subsequent adverse
actions, taken after the employer acquires such knowledge, are

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motivated by retaliation”).
This court agrees with plaintiff that the four week period
of time between when plaintiff initially complained to Sarno in
mid-March 2014 and when plaintiff was terminated is sufficient
to support an inference of a causal link between the protected
activity and the adverse action.

(Docket Entry # 33, p. 24);

see Calero-Cerezo v. U.S. Dep’t of Justice, 355 F.3d at 25-26.
Moreover, plaintiff has proffered enough additional evidence
from which a reasonable fact finder could find that her
complaint to management was the “but-for” cause of her
termination assuming, for purposes of argument only, that the
but-for standard applies.

This additional evidence also

establishes and reinforces the existence of a causal connection
between the complaints and the subsequent adverse action, i.e.,
the termination.

First, plaintiff has shown that Ferreira had

knowledge of her complaint to Sarno because Sarno discussed the
complaint with Clay (Docket Entry # 32-4, p. 12) who,
thereafter, had a meeting with Ferreira concerning plaintiff’s
allegations (Docket Entry # 22-5, ¶ 30, p. 5).
Gen. Elec. Co., 950 F.2d at 828.
allegations to Clay.

See Mesnick v.

Ferreira denied these

(Docket Entry # 22-5, ¶ 30, p. 5).

Next, plaintiff has shown disparate treatment by Ferreira
following her complaint to Sarno.

See Verdrager v. Mintz,

Levin, Cohn, Ferris, Glovsky and Popeo, P.C., 50 N.E.3d at 801.

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Specifically, after her complaint about Ferreira to Sarno,
Ferreira:

refused to speak and assist plaintiff (Docket Entry #

22-7, p. 47); diverted customers away from plaintiff (Docket
Entry # 22-7, p. 47); was more accommodating to other employees
who “didn’t care” about his relationship with Kivlin (Docket
Entry # 22-7, p. 52); and would turn sales away when plaintiff
sought final approval, which was something that rarely occurred
prior to her complaining to Sarno about Ferreira.
# 32-5, ¶ 9).

(Docket Entry

Ferreira denied certain conduct at his deposition

although he did acknowledge that he knew plaintiff had
complained about his relationship with Kivlin.
32-3).

(Docket Entry #

Although a number of the foregoing facts remain in

dispute, this court is obligated to draw all inferences in favor
of plaintiff as the non-movant on summary judgment.

See Ahmed

v. Johnson, 752 F.3d at 495.
Accordingly, in light of the foregoing, plaintiff
established a prima facie case “that the adverse action was a
response to [her] protected activity.”
800.

Verdrager, 800 N.E.3d at

Because plaintiff was able to satisfy a prima facie case

for retaliation, the burden shifts back to defendant to proffer
a legitimate non-discriminatory reason for terminating
plaintiff.

See Mole v. Univ. of Mass., 814 N.E.2d 329, 338-39.

Defendant argues that plaintiff cannot prove the legitimate nondiscriminatory reason is a pretext.

45

(Docket Entry # 21, pp. 18-

Case 1:14-cv-14027-NMG Document 36 Filed 11/17/16 Page 46 of 47

19).

Furthermore, defendant asserts that Ferreira’s termination

of Paul Shamon, who had better sales than plaintiff and who did
not complain about discrimination, demonstrates that plaintiff’s
poor performance would be sufficient to warrant her termination.
(Docket Entry # 21, p. 19).
Since defendant has proffered a legitimate, nondiscriminatory reason for terminating plaintiff, plaintiff must
show that defendant’s reason is a pretext.
Mass., 814 N.E.2d 329, 338-339.

See Mole v. Univ. of

As discussed supra under

plaintiff’s sex, race, national origin and ethnicity
discrimination claims, plaintiff has demonstrated that
defendant’s legitimate reasons are a pretext because, she was at
the very least, an average salesperson and, inter alia, her
contacts were diverted to other salespeople three to four times
a week.

Therefore, plaintiff has satisfied her burden in

showing defendant’s reason was pretextual.
Combining Ferreira’s knowledge of plaintiff’s complaint,
his subsequent disparate treatment of plaintiff and the temporal
proximity between plaintiff’s complaint to management and her
termination, sufficient circumstantial evidence exists from
which a reasonable factfinder could find that she would not have
been terminated but for her complaints to management.21

Taking

21

Again, this court is assuming, for purposes of argument,
that the but-for standard would apply to a chapter 151B

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the facts in light most favorable to plaintiff, Count V for
retaliation for complaining of sexual harassment survives
defendant’s motion for summary judgment.
CONCLUSION
In accordance with the foregoing discussion, this court
RECOMMENDS22 that the motion for summary judgment (Docket Entry #
20) be ALLOWED in part and DENIED in part and, accordingly,
counts II and III be DISMISSED and that the following chapter
151B claims remain in this action:

race, national origin,

ethnicity and sex disparate treatment discrimination claims and
retaliation based on reporting sexual harassment.

/s/ Marianne B. Bowler
MARIANNE B. BOWLER
United States Magistrate Judge

retaliation claim.
22
Any objections to this Report and Recommendation must be
filed with the Clerk of Court within 14 days of receipt of the
Report and Recommendation to which objection is made and the
basis for such objection should be included. See Fed.R.Civ.P.
72(b). Any party may respond to another party’s objections
within 14 days after service of the objections. Failure to file
objections within the specified time waives the right to appeal
the order.

47