Sauer v. BELFOR USA Group, Inc.

Filing 36

Judge Nathaniel M. Gorton: ENDORSED ORDER entered. MEMORANDUM AND ORDERFor the foregoing reasons,1) plaintiffs claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., are DISMISSED and2) defendants motion to dismiss (Docket No. 26) is DENIED. So ordered.(Caruso, Stephanie)

United States District Court
District of Massachusetts
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KRISTIN SAUER,
Plaintiff,
v.
BELFOR USA GROUP, INC.,
Defendant.

Civil Action No.
15-11882-NMG

MEMORANDUM & ORDER
GORTON, J.
This case involves claims of sexual harassment and
retaliation brought by plaintiff Kristin Sauer (“Sauer” or
“plaintiff”) against defendant Belfor USA Group, Inc. (“Belfor”
or “defendant”) under both M.G.L. ch. 151B and Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.

Pending

before the Court is defendant’s motion to dismiss the complaint
for failure to state a claim.

For the reasons that follow, the

motion will be denied.
I.

Background
Plaintiff is a Massachusetts resident and a woman who

worked for Belfor as a Warehouse Manager from May, 2011 through
July, 2012.

During that time her direct supervisor was Gerard

McGonagle (“McGonagle”), the General Manager for defendant’s
Boston-area warehouse.

Sauer avers that she also took orders
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from Corey Massaro, a Project Manager.

After Sauer’s first six

months of work for the company, she was awarded a $750 bonus for
her performance because she had, according to McGonagle,
“rescued our warehouse and . . . completely turned the operation
around.”
According to plaintiff, before she began working at Belfor
at least two other women employed there had complained to the
company about inappropriate conduct of a sexual nature by
Massaro.

Those women had filed public charges of discrimination

by Massaro with the Massachusetts Commission Against
Discrimination (“the MCAD”).

Both women also alleged that

McGonagle was aware of Massaro’s misbehavior but failed to take
any action to address it.

In November, 2011, after the two

complaints were filed, Belfor required Massaro to complete a
“Supervisor Anti-Harassment” course.

Unfortunately, plaintiff

alleges, his conduct did not change after he completed the
course.
Sauer avers that throughout her time working at Belfor
Massaro made sexually explicit comments on a weekly basis to
groups of employees, herself included.

She also alleges that in

April, 2012 Massaro stood outside her office and pantomimed
cunnilingus through the window before entering the office.
Plaintiff further claims that a technician who worked for
defendant, Sharon Coto, also made similarly offensive sexual
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remarks and publically posted a sexually explicit status message
from her work phone in May, 2012.

Plaintiff reported that

incident to McGonagle, who told her that he would address the
situation.
According to plaintiff, after she reported Coto’s behavior,
Coto began ignoring her instructions and speaking to her in a
hostile manner.

Plaintiff reiterated her concerns to McGonagle

in a second meeting on May 10, 2012.

At that time she also

reported Coto’s recent behavior toward her as well as Massaro’s
sexually explicit conduct and comments.

After plaintiff’s

conversation with McGonagle he postponed her annual performance
review, which was scheduled for the next day.
When no apparent action was taken to address her concerns,
Sauer took her complaints to Diane Barbour, a Human Resources
Manager in defendant’s corporate office, on May 16, 2012.
Thereafter, McGonagle requested that Sauer accompany him on a
car ride outside the office during which he allegedly instructed
her not to make any further complaints about sexual harassment
because her allegations could cause Massaro to be fired.
Plaintiff contends that Massaro subsequently began acting
more aggressive and hostile toward her, yelling her at least
once per week.

Other employees also began reacting negatively

toward her by questioning her tone when she gave simple
instructions.

In late June, 2012 Massaro’s stepfather, Ralph
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Bustin, was hired as the Production Manager for the warehouse.
Plaintiff alleges that beginning on his first day of work he
attempted to intimidate her by yelling at her and slamming
doors.

Bustin also instructed an employee whom plaintiff had

assigned to guard the warehouse to complete a personal errand
for him, leaving the warehouse unguarded.
Such treatment allegedly caused plaintiff severe anxiety
and a serious worsening of her psoriasis for which she had to
receive phototherapy treatments.

The week after Bustin caused

the warehouse to be left unguarded, Sauer resigned her position
but her medical condition allegedly continued to worsen even
after her resignation.
In September, 2012 Sauer filed charges against defendant
with the MCAD and the Equal Employment Opportunity Commission
(“the EEOC”).

Defendant responded to the MCAD claim by filing a

“position statement” claiming that it had thoroughly
investigated Sauer’s allegations.

Belfor claimed that it was

unable to confirm Massaro’s sexually explicit conduct but its
Human Resources personnel nonetheless informed Massaro that his
employment would be immediately terminated if any further
incidents were reported.

It conceded confirmation of the

allegation relating to Coto’s sexually explicit conduct and that
it had suspended Coto without pay for five days.

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Plaintiff

avers that Coto had not served such a suspension before
plaintiff quit in July, 2012.
On May 21, 2015 plaintiff filed this lawsuit, alleging
gender discrimination, sexual harassment and retaliation in
violation of M.G.L. ch. 151B and Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e et seq.

On October 14, 2015

defendant filed the pending motion to dismiss.
II.

Motion to Dismiss
Belfor moves the Court to dismiss the complaint in its

entirety both for failure to exhaust administrative remedies and
for failure to state a claim.

Plaintiff opposes the motion with

respect to her claims under M.G.L. ch. 151B but waives her
claims under Title VII of the Civil Rights Act.

Consequently,

plaintiff’s federal claims are dismissed and the Court’s
analysis will address only the claims brought under
Massachusetts law.

Although the case was removed to federal

court on the basis of federal question jurisdiction, the Court
retains supplemental jurisdiction over Sauer’s remaining state
claims pursuant to 28 U.S.C. § 1367.
A. Legal Standard
To survive a motion to dismiss for failure to state a claim
under Fed. R. Civ. P. 12(b)(6), a complaint must contain
“sufficient factual matter” to state a claim for relief that is
actionable as a matter of law and “plausible on its face.”
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Ashcroft v. Iqbal, 556 U.S. 662, 667 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

A claim is

facially plausible if, after accepting as true all nonconclusory factual allegations, the court can draw the
reasonable inference that the defendant is liable for the
misconduct alleged. Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d
1, 12 (1st Cir. 2011).

A court may not disregard properly pled

factual allegations even if actual proof of those facts is
improbable. Id.

Rather, the relevant inquiry focuses on the

reasonableness of the inference of liability that the plaintiff
is asking the court to draw. Id. at 13.
When rendering that determination, a court may not look
beyond the facts alleged in the complaint, documents
incorporated by reference therein and facts susceptible to
judicial notice. Haley v. City of Boston, 657 F.3d 39, 46 (1st
Cir. 2011).
B. Analysis
1. Failure to Exhaust Administrative Remedies
Belfor first argues that Sauer’s claims should be dismissed
because the complaint does not allege that she exhausted her
administrative remedies with the MCAD and the EEOC after filing
complaints with those agencies.

While such exhaustion is

required for Title VII discrimination claims filed with the
EEOC, see 42 U.S.C. § 20003-5(f)(1), Sauer has voluntarily
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dismissed those claims.

On the other hand, no such exhaustion

requirement applies to claims filed with the MCAD.

Chapter 151B

of the Massachusetts General Laws, which governs employment
discrimination claims, imposes no requirement that the MCAD
issue a right to sue letter or dismiss a complaint prior to the
filing of a civil suit. See M.G.L. ch. 151B § 9.
impose a 90-day time limit. Id.

Nor does it

Accordingly, defendant’s motion

to dismiss is denied to the extent that it is based on
plaintiff’s failure to exhaust her administrative remedies.
2. Failure to State a Claim for Relief
Plaintiff brings claims for sex discrimination and
retaliation pursuant to three provision of M.G.L. ch. 151B.

The

first, § 4(1), makes it illegal, in relevant part,
[f]or an employer, by himself or his agent, because of
the sex[] . . . of any individual . . . to bar or to
discharge from employment such individual or to
discriminate against such individual in compensation
or in terms, conditions or privileges of employment.
M.G.L. ch. 151B, § 4(1).

The statute defines discrimination on

the basis of sex to include sexual harassment. Id. § 1(18).
Sexual harassment is defined as
sexual advances, requests for sexual favors, and other
verbal or physical conduct of a sexual nature when (a)
submission to or rejection of such advances, requests
or conduct is made either explicitly or implicitly a
term or condition of employment or as a basis for
employment decisions; (b) such advances, requests or
conduct have the purpose or effect of unreasonably
interfering with an individual's work performance by

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creating an intimidating, hostile, humiliating or
sexually offensive work environment.
Id.

The second provision upon which plaintiff relies also

specifically prohibits sexual harassment. See id. § 4(16A).

Finally, § 4(4) bans employer retaliation by making it
illegal
[f]or any person, employer, labor organization or
employment agency to discharge, expel or otherwise
discriminate against any person because he has opposed
any practices forbidden under this chapter.
Id. § 4(4).
Plaintiff bases her claims for sex discrimination and
retaliation upon a hostile work environment theory. To establish
a hostile work environment claim based on either sex
discrimination or retaliation, plaintiff must allege that 1) she
was subject to harassment, 2) the harassment was based on either
gender or retaliation, depending on the claim, 3) the harassment
was sufficiently severe or pervasive as to materially alter the
conditions of her employment, and 4) the employer is liable for
the harassment. 1 See Noviello v. City of Boston, 398 F.3d 76, 92,
94-95 (1st Cir. 2005); Coll.-Town, Div. of Interco, Inc. v.

1

Contrary to defendant’s position, the Court agrees with
plaintiff that the third element of proof should be construed by
use of the disjunctive, i.e. “severe or pervasive.” See Harris
v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993).
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Massachusetts Comm'n Against Discrimination, 400 Mass. 156, 162
(1987).
a. Application of Federal Law
As an initial matter, defendant contends that although
plaintiff has abandoned her Title VII claims, the Court should
still apply federal law to her claims.

While Belfor is correct

that Massachusetts state courts routinely examine Title VII case
law when interpreting M.G.L. ch. 151B, Wheatley v. Am. Tel. &
Tel. Co., 418 Mass. 394, 397 (1994), the Massachusetts Supreme
Judicial Court (“the SJC”) has held that “Title VII and the
decisions construing it are not determinative” of the meaning of
the state’s anti-discrimination statute, Coll.-Town, 400 Mass.
at 163–64.

Instead, reference to the similar federal statute is

merely “helpful in setting forth all the various policy
considerations.” Id.
Such consideration is appropriate given that certain
aspects of the two statutes, such as the scope of employer
liability, differ. Noviello, 398 F.3d at 95.

Moreover, Chapter

151B contains an express provision instructing courts to
construe the statute liberally in order to accomplish its
purposes. M.G.L. ch. 151B, § 9.

Consequently, the Court will

consider the extent to which any decision construing Title VII
conflicts with Chapter 151B case law precedent when determining
how much weight to accord Title VII cases.
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b. Aggregation of Discrimination Claims
Although the SJC does not appear to have addressed the
issue, the United States Court of Appeals for the First Circuit
has held that claims for sex discrimination and retaliation
pursuant to Chapter 151B may be combined to support a
plaintiff’s claim only when the discriminatory acts “emanate
from the same discriminatory animus.” Noviello, 398 F.3d at 87
(citing Ruffino v. State St. Bank & Trust Co., 908 F. Supp.
1019, 1040 (D. Mass. 1995)).
by Sauer’s claims.

No such single animus is presented

Instead, the alleged retaliatory conduct

appears to stem from “a distinct intent to punish or to rid a
workplace of someone who complains of unlawful practices.”
Ruffino, 908 F. Supp. at 1040.
Plaintiff correctly points to cases in which the First
Circuit and Massachusetts courts have permitted combination
discrimination claims.

Such claims have, however, generally

involved discrimination based upon a combination of identity
characteristics (i.e. sex and race) which intersected to create
a discrete protected group, rather than discrimination based
upon the combination of a protected characteristic and protected
conduct. See, e.g., Core-Boykin v. Boston Edison Co., No. 015156-E, 2004 WL 855567, at *7 (Mass. Super. Ct. Apr. 13, 2004).
The former claims are more likely to be motivated by a single
animus. See Noviello, 398 F.3d at 87.
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Moreover, in the one

combination gender-retaliation case Sauer cites, the aggregation
of the two claims was not an issue presented to the court and
therefore the court did not analyze the suitability of a
combination claim. See Brown v. Trustees of Boston Univ., 891
F.2d 337, 353 (1st Cir. 1989).
Plaintiff also argues that a combination claim should be
permitted because the two kinds of harassment she experienced
are “inherently tied” to one another.

As another session of

this Court has noted
where a plaintiff claims hostile environment
discrimination and retaliation the two causes of
action are often factually and legally intertwined . .
. . Unless specific facts suggest otherwise,
[however,] the simple factual and legal intersection
between an underlying claim of discrimination and
retaliation is insufficient.
Ruffino, 908 F. Supp. at 1040.

Plaintiff points out that when

evaluating gender discrimination claims, courts generally look
to the employer’s response after it learned of the harassment.
See, e.g., Coll.-Town, 400 Mass. at 167-68.

Contrary to

plaintiff’s implication, however, this is not because
retaliation by the employer is part of a gender discrimination
claim.

Instead, courts examine the employer’s response in order

to determine whether the employer should be subject to liability
because it failed to take adequate steps to remedy the
harassment.

Accordingly, Sauer has failed to establish the

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prerequisites for a combination claim and the Court will analyze
her gender discrimination and retaliation claims separately.
c. Gender Discrimination
1. Harassment Based on Sex
Belfor first challenges plaintiff’s sex discrimination
claim on the basis that she has not alleged that any of the
conduct of which she complains was directed at her “because of
[her] sex.” See M.G.L. ch. 151B, § 4(1).

Defendant avers that,

in order to state a claim for gender discrimination under
Chapter 151B, plaintiff must demonstrate that a “discriminatory
animus” motivated the alleged conduct. Cariglia v. Hertz Equip.
Rental Corp., 363 F.3d 77, 83 (1st Cir. 2004).
Plaintiff responds that the statute explicitly defines its
ban on sexual harassment to include “verbal or physical conduct
of a sexual nature” without any reference to motive. See M.G.L.
ch. 151B, § 1(18).

She further rejoins that the SJC has held

that
nowhere is discrimination because of a victim's sex
made an essential element of a sexual harassment claim
in Massachusetts.
Melnychenko v. 84 Lumber Co., 424 Mass. 285, 290 (1997).
On this point both plaintiff and defendant are correct but
only because they base their arguments on different prohibitions
of Chapter 151B.

Plaintiff is correct that she need not allege

a discriminatory animus in order to succeed on her claim under
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M.G.L. ch. 151B, § 4(16A), which specifically bans sexual
harassment.

By contrast, § 4(1), the provisions which prohibits

gender discrimination more generally, only proscribes
discriminatory conduct which is engaged in “because of the
[plaintiff’s] sex.”

The allegation of a discriminatory animus

is, therefore, required to succeed on a claim dependent upon
that provision.
Plaintiff has alleged in her complaint that Massaro and
Coto harassed her “because of her sex.”

Given that much of the

alleged conduct was directed not just at Sauer but also at other
colleagues, that claim is not well-supported by the complaint.
Nonetheless, the circumstances of plaintiff’s alleged harassment
render the allegation at least “plausible on its face.” Iqbal,
556 U.S. at 667.

Consequently, neither plaintiff’s claim based

on § 4(1) nor her claim based on § 4(16A) will be dismissed on
that ground.
2. Severe or Pervasive Harassment
To state a claim for a hostile work environment, plaintiff
must allege harassment that is
sufficiently severe or pervasive to alter the
conditions of the victim's employment and create an
abusive working environment.
Harris, 510 U.S. at 21.

The court must examine the totality of

the circumstances, including the

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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 [the] employee's work
performance.
Faragher v. City of Boca Raton, 524 U.S. 775, 787–88 (1998).
Sauer has alleged that she was subjected to crude and
offensive sexual conduct on a weekly basis over the course of
six months.

She claims that this conduct was intimidating, that

it made her feel humiliated, that it interfered with her ability
to do her work.

She also avers that it caused her significant

anxiety and distress leading to a worsening of her medical
condition, “thus underscoring the negative effect on her work
performance.” Noviello, 398 F.3d at 94.
The multiple incidents Sauer describes cannot be taken in
isolation but rather must be viewed as whole. Perez-Cordero v.
Wal-Mart Puerto Rico, Inc., 656 F.3d 19, 29 (1st Cir. 2011).
The SJC has held that even if individual “incidents in isolation
may not be serious enough for complaint,” they can aggregate
over time to create a hostile work environment. Cuddyer v. Stop
& Shop Supermarket Co., 434 Mass. 521, 532-33 (2001); see also
Clifton v. Massachusetts Bay Transp. Auth., 445 Mass. 611, 616
n.5 (2005).

Defendant objects that many of the alleged verbal

acts were directed to groups of people rather than plaintiff
alone.

As discussed above, the fact that not all of the alleged

conduct was aimed directly at plaintiff certainly casts doubt on
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whether a discriminatory animus existed but the fact that others
in the warehouse were also exposed to an environment “saturated
with . . . sexual innuendo,” does not defeat plaintiff’s claim
that she endured a hostile work environment. Pelletier v. Town
of Somerset, 458 Mass. 504, 523 (2010).
3. Employer Liability
Under Massachusetts law, an employer can be subject to
liability for a hostile work environment under two
circumstances.

First, the employer is strictly liable if the

acts of harassment were committed by a supervisor who is “vested
with authority.” Coll.-Town, 400 Mass. at 165-67 & n.5.

To be

considered a supervisor, an employee need not be plaintiff’s
direct supervisor.

Instead, he may have actual supervisory

authority over other subordinates and hold himself out as having
authority over the plaintiff, such as by directing activities
and assigning work. Massachusetts Commission Against
Discrimination, Sexual Harassment in the Workplace Guidelines
III(B) (2002) [hereinafter Sexual Harassment Guidelines];
LeClerc v. Interstate Distributors Div. of Hudson News Co., No.
9702008, 2000 WL 33170694, at *6 (Mass. Super. Ct. Aug. 31,
2000).
Plaintiff has alleged that Massaro was the Project Manager
for the company’s Boston-area warehouse and that he supervised
up to 50 employees in the course of his job.
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She also claims

that she took orders from Massaro as part of her work.
Defendant responds that it is not vicariously liable for
Massaro’s actions because he did not have the authority to take
“tangible employment actions” against Sauer, citing Vance v.
Ball State Univ., 133 S. Ct. 2434, 2439 (2013).

Vance’s

analysis of employer liability was explicitly confined to the
requirements of Title VII, however, and the Court did not
address Chapter 151B. Id.

Belfor avers that the subject

interpretation of Title VII is, nonetheless, somehow dispositive
of this Court’s interpretation of Chapter 151B because the
opinion constitutes binding U.S. Supreme Court precedent.

That

argument misinterprets the extent of the case’s holding and,
moreover, is illogical for several reasons.
Chapter 151B is a separate statute from Title VII and was
enacted by a different legislature.

The statutory text contains

no requirement that a direct supervisory relationship exist
between the harasser and the victim for liability to attach but
rather proscribes gender discrimination against “any individual”
and sexual harassment of “any employee.” See M.G.L. ch. 151B, §
4(1) & 4(16); Morehouse v. Berkshire Gas Co., 989 F. Supp. 54,
64 (D. Mass. 1997).

Unlike Title VII, Chapter 151B extends

liability not just for actions of the employer but also for
actions of the employer’s “agents.” M.G.L. ch. 151B, § 4(1) &
4(16); 42 U.S.C. § 2000e-2(a) & 3(a). Moreover, the statute
-16-

contains an explicit dictate that courts construe its provisions
liberally in order to give effect to its intended purpose.
M.G.L. ch. 151B, § 9.

Because of that dictate and because of

the textual differences between the two statutes, the SJC
“frequently do[es] not follow the reasoning of Federal appellate
decisions applying Title VII.” Cuddyer v. Stop & Shop
Supermarket Co., 434 Mass. 521, 536 (2001).
Furthermore, because the state legislature delegated to the
MCAD the authority to promulgate policies to effectuate the
purposes of the statue, the SJC accords “substantial deference”
to the MCAD’s interpretive guidelines. Modern Cont'l/Obayashi v.
Massachusetts Comm'n Against Discrimination, 445 Mass. 96, 106
(2005).

As explained above, those guidelines state that an

employer is liable for the actions of an employee who exercises
apparent supervisory authority over the plaintiff by assigning
her work. Sexual Harassment Guidelines III(B).

Accordingly,

plaintiff need not allege that Massaro was her direct supervisor
in order for Belfor to be vicariously liable for his actions.
Plaintiff does not, however, allege that Coto had
supervisory authority over her.

Accordingly, to determine

whether defendant is liable for Coto’s actions we proceed to the
second theory under which employers may be liable pursuant to
Chapter 151B.

The statute imposes liability on an employer for

acts of co-employees only when the employer
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knew or should have known of the charged sexual
harassment and failed to implement prompt and
appropriate action.
White v. New Hampshire Dep't of Corr., 221 F.3d 254, 261 (1st
Cir. 2000).
Sauer has alleged that she provided Belfor with ample
notice of the alleged harassing conduct by meeting with
McGonagle, her supervisor, at least three times as well as by
notifying a manager in the corporate human resources department.
Plaintiff and defendant dispute whether the MCAD complaints
filed by two other Belfor employees could also have placed
Belfor on notice of the hostile work environment created by
Massaro’s sexualized conduct.

The Court need not resolve this

issue, however, because plaintiff has adequately alleged that
she personally notified Belfor of the harassment.
Plaintiff has also adequately asserted that Belfor did not
take “prompt and appropriate action” in response to her
complaints.

While acknowledging that Coto was told she would be

suspended without pay for five days, Sauer states that such
suspension had not yet occurred by the time she resigned in
July. Plaintiff further avers that defendant did not address
Massaro’s behavior.

Defendant responds that it required Massaro

to undergo sexual harassment training and that it informed

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Massaro that further reports of harassment would lead to the
termination of his employment. 2
Sauer claims that the training actually occurred before she
complained of Massaro’s behavior and in response to previous
complaints about Massaro by other employees.

Furthermore, it is

unclear whether Massaro was threatened with termination before
or after Sauer’s complaint.

Belfor’s threat does not,

therefore, necessarily constitute an action in response to
plaintiff’s complaint.

Accordingly, plaintiff has sufficiently

alleged that defendant failed promptly to take appropriate
action when it was notified of harassing conduct and she has,
therefore, met the pleading standard with respect to employer
liability.
d. Retaliation
1. Severe or Pervasive Harassment
The standard for demonstrating severe or pervasive
retaliatory harassment is the same as that discussed above in
the context of sexual harassment.

Plaintiff has alleged that,

in response to her complaints about the alleged sexual
harassment, she experienced retaliation from a number of

2

Because this is a 12(b)(6) motion, defendant’s responses are
considered only to the extent that they are set forth in its
“position statement” filed in response to Sauer’s MCAD complaint
which was incorporated by reference into the complaint in this
case.
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employees.

She claims that McGonagle attempted to intimidate

her into dropping her complaints and that he postponed her
annual performance review after she complained.

Furthermore,

she asserts that Massaro became much more aggressive and hostile
in his interactions with her, that Massaro’s father slammed
doors and yelled at her, and that Coto and other employees
questioned or ignored her instructions.

Sauer avers that this

conduct interfered with her ability to do her job and caused her
anxiety which exacerbated her psoriasis.
Even accounting for any relationship issues which may have
pre-existed between plaintiff and Coto, plaintiff has
sufficiently alleged conduct that goes beyond the ordinary
“unpleasantness” that results when one complains about a coworker’s conduct. Noviello, 398 F.3d at 93.
demonstrated a retaliatory animus.

She has plausibly

Consequently, defendant’s

argument for dismissal on this ground fails.
2. Employer Liability
Plaintiff has also alleged a sufficient basis for employer
liability for retaliatory harassment.

As discussed above, she

has stated a claim that Belfor is vicariously liable for
Massaro’s acts because Massaro had apparent supervisory
authority over Sauer.

Furthermore, Belfor is indisputably

liable for McGonagle’s actions because McGonagle was Sauer’s
direct supervisor.

Sauer has also stated a plausible claim that
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defendant is liable for Bustin’s conduct given that he was a
part of management with supervisory duties at least over some
employees. See Morehouse, 989 F. Supp. at 64 (finding it
unnecessary for a manager either to be plaintiff’s direct
supervisor or to exercise supervisory authority over plaintiff
for liability to attach).
Finally, plaintiff has alleged that she reported Coto’s
retaliatory conduct to McGonagle, putting Belfor on notice, and
that defendant took no substantive action in response to her
complaint.

Taken together, these allegations show that

defendant, via its agents, had adequate notice of the
retaliatory conduct and failed to address it. See Coll.-Town,
400 Mass. at 166-67.
e. Constructive Discharge
To state a claim for constructive discharge, plaintiff must
allege that she
(1) was within a protected class; (2) met the
employer's legitimate performance expectations; (3)
was actually or constructively discharged; and (4) was
replaced by another with similar skills and
qualifications.
Landrau-Romero v. Banco Popular De Puerto Rico, 212 F.3d 607,
612–13 (1st Cir. 2000).

The parties’ dispute concerns the third

element, whether Sauer was actually constructively discharged.
Constructive discharge occurs when an employee is “effectively
force[d]” to resign. GTE Prod. Corp. v. Stewart, 421 Mass. 22,
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33-34 (1995).

Such a claim requires a showing of harassment

that is more severe than is required for a hostile work
environment claim and may occur when an employer “effectively
prevents an employee from performing her job.” Luciano v. CocaCola Enterprises, Inc., 307 F. Supp. 2d 308, 320 (D. Mass.
2004).
Plaintiff has alleged that both Massaro, through his sexual
pantomiming and subsequent entrance into her office, and
McGonagle, through his act of making her leave the warehouse
with him before he pressured her to withdraw her complaint,
directed physically intimidating conduct at her.

Bustin also

treated plaintiff aggressively, yelling and slamming doors.

She

has alleged that such conduct, as well as defendant’s failure to
address it, caused her anxiety, exacerbated her psoriasis and
made her so “sick to her stomach” that she had to leave work.
Moreover, she has alleged that Bustin undermined her ability to
do her job by reassigning staff and that Coto and other
employees began questioning her orders in retaliation for her
protected conduct.
The described circumstances are not as dire as the abuse
imposed upon some other plaintiffs. See, e.g., Aviles–Martinez
v. Monroig, 963 F.2d 2, 6 (1st Cir.1992) (finding constructive
discharge when an employer “removed all of [plaintiff's] files
and then chastised him for not doing his work”).
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Nonetheless,

taking such allegations as a whole plaintiff has, at least
marginally, stated a plausible claim that she was “effectively
prevent[ed]” from performing her job and “effectively force[d]”
to resign in order to protect her health and her professional
status. See Luciano, 307 F. Supp. 2d at 320; GTE Prod. Corp, 421
Mass. at 34.
f. Punitive Damages
Finally, Belfor asks the Court to strike plaintiff’s
request for punitive damages.

The SJC has held that an award of

punitive damages in the context of a Chapter 151B claim is
appropriate only where the defendant’s conduct is “outrageous or
egregious.” Haddad v. Wal-Mart Stores, Inc., 455 Mass. 91, 11011 (2009).

In determining whether punitive damages are

warranted, courts should consider 1) whether there was a
conscious or purposeful effort to demean the plaintiff because
she was a member of the relevant class, 2) whether the defendant
was aware of or recklessly disregarded the likelihood that
serious harm would arise, 3) the harm suffered by the plaintiff,
4) the defendant’s conduct after learning of the likelihood of
harm and 5) the duration of the wrongful conduct. Id. at 111.
Here, plaintiff has alleged that she endured conduct
creating a hostile work environment for at least six months,
that the conduct was directed at her because of her gender, that
she reported the conduct and that defendant responded
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inadequately, that she suffered retaliatory behavior from
defendant’s supervisors due to her reporting of the conduct and
that she suffered harm through constructive discharge and a
worsening of her medical condition.

It is not up to the Court

at this stage to determine whether plaintiff’s allegations are
persuasive enough to warrant her ultimate success.

Plaintiff

has alleged sufficient facts to state a claim for punitive
damages.
ORDER
For the foregoing reasons,
1) plaintiff’s claims under Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e et seq., are DISMISSED and
2) defendant’s motion to dismiss (Docket No. 26) is DENIED.

So ordered.

/s/ Nathaniel M. Gorton_____
Nathaniel M. Gorton
United States District Judge
Dated September 7, 2016

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