Henry v. Allstate Insurance Company et al
Judge Nathaniel M. Gorton: ENDORSED ORDER entered. MEMORANDUM AND ORDERIn accordance with the foregoing, defendants motion for summary judgment is, with respect to the request that plaintiffs damages for lost wages be limited to the period before October 23, 2014, ALLOWED but is otherwise DENIED. So ordered.(Caruso, Stephanie)
United States District Court
District of Massachusetts
STERLING COLLISION CENTERS INC., )
Civil Action No.
MEMORANDUM & ORDER
This case involves allegations of race-based employment
Plaintiff Tatiana Henry (“Henry” or
“plaintiff”) claims that defendant Sterling Collision Centers,
Inc. d/b/a Sterling Autobody Centers (“Sterling” or “defendant”)
1) discriminated against her, 2) harassed her and 3) fired her
in retaliation for reporting the discrimination all in violation
of the Massachusetts Anti-Discrimination Statute, M.G.L. c. 151B
Sterling’s motion for summary judgment is
currently pending before the Court.
For the reasons that
follow, that motion will be, with respect to defendant’s request
that damages for lost wages be limited to the period before
October 23, 2014, allowed but otherwise denied.
A. The Parties
Henry, a woman of African descent who was born in Haiti,
currently resides in Sudbury, Massachusetts.
Sterling operated auto body stores across the United States and
was headquartered in Natick, Massachusetts.
At that time,
Sterling became a wholly owned subsidiary of Service King Paint
& Body, LLC (“Service King”).
Both Sterling and Service King
are incorporated under the laws of Delaware and have principal
places of business in Richardson, Texas.
Henry first started working at Sterling as an accounts
payable coordinator in October, 2007.
She had no issues with
discrimination or harassment during her first stint at Sterling
and she left in May, 2011 of her own accord because she was
moving out of the state.
In April, 2013, Henry returned to Massachusetts and was rehired by defendant to work as an accounts payable coordinator.
When she returned to Sterling, Henry was the only black woman on
a team of six to seven employees.
Her direct supervisor was
Deborah McGaughey, who reported to Guy Block.
Gavin Fiske was
During Henry’s employment, Sterling had two policies that
barred discrimination, harassment and retaliation: 1) its Equal
Opportunity Policy and 2) its Freedom from Harassment / Respect
in the Workplace Policy.
Although Sterling convened a meeting
about those policies each year, according to Henry, Mr. Block,
who led the meetings, always mocked the policies.
B. The Group Text Message Incident
The first incident that plaintiff reported to Sterling’s
Human Resources Department (“HR”) involved a group text message.
In December, 2013, Mr. Fiske sent a text message to coworkers,
including Mr. Block and plaintiff, that involved a picture of
another co-worker dressed as a character from the movie Star
Plaintiff responded by texting “[oh my god] is that
really her?” and “are you cyber stalking the [coworker].”
Another person in the group text asked Mr. Fiske if he was
“BFF”, which means “Best Friends Forever”, with the coworker.
Then a different individual asked if “BFF” stands for “big
At that point, plaintiff texted the group that
she was laughing and that “it’s Sunday be [holy]”.
or March of 2014, plaintiff reported the group text messages to
Sterling’s Assistant Vice President of HR, Cary Varn.
C. The Racially Offensive Comments
At that time, plaintiff also reported to HR that Mr. Block
had been making racially offensive comments.
The parties agree
that Mr. Block made the following comments in plaintiff’s
presence: 1) when she was eating chicken, he asked if it was
fried chicken and if she was drinking Kool-Aid, 2) he stated
that he was taking Martin Luther King Day off to have fried
chicken and “celebrate with black people”, 3) he asked Mr. Fiske
if a bottle of hot sauce was for plaintiff and 4) on multiple
occasions he said that she looked like the African American
singer Macy Gray, especially with respect to her curly hair, and
that her hair meant she was “really falling into [her] culture”.
Plaintiff asserts that Mr. Block’s comments about fried
chicken, Kool-Aid and Macy Gray were specifically directed
toward her, while defendant states that they were simply made in
The parties also disagree about how often the
According to plaintiff, Mr. Block made the
comments about fried chicken, Kool-Aid and Macy Gray at least
once a week in January and February of 2014, while defendant
contends that the fried chicken and Kool-Aid comment was made on
only one occasion.
Mr. Fiske, plaintiff’s coworker, also asked her if she
liked, wanted or drank Kool-Aid about 10 to 15 times between
April, 2013 and February, 2014.
It is undisputed, however, that
plaintiff did not report Mr. Fiske’s comments to HR.
submits that her supervisors witnessed Mr. Fiske’s Kool-Aid
comments and laughed about them.
D. The Investigation of the Text Messages and Comments
The parties offer differing versions of what happened after
plaintiff reported the text messages and comments to HR.
Defendant submits that Ms. Varn and the Senior Human Resources
Manager, Mike Nuxoll, promptly investigated plaintiff’s claims
and, in March, 2014, interviewed plaintiff over the phone.
During the interview, Ms. Varn and Mr. Nuxoll discussed the text
messages and Mr. Block’s comments and said that they would speak
Defendant also asserts that they inquired about whether
plaintiff thought her co-workers retaliated against her for
reporting the text messages by not treating her to a birthday
They further asked about co-worker reports that
plaintiff talked to herself and drank alcohol at work.
Plaintiff vigorously denies that she did either of those things.
Defendant contends that Ms. Varn and Mr. Nuxoll also
interviewed Mr. Block and the other employees involved in the
text messages and set up a meeting with plaintiff and Mr. Block
after the interviews.
In that meeting, Ms. Varn purportedly
asked if plaintiff was comfortable with the work environment.
Plaintiff stated that she was “fine as long as the harassment
Mr. Block apologized and said he did not
think of plaintiff as black and did not think that she was
offended by the comments.
After Mr. Block left the meeting, Ms.
Varn thanked plaintiff for reporting the issues and said that
Mr. Block would receive a verbal warning.
Defendant states that
it issued verbal warnings to all employees involved, although
plaintiff contends that she never received a warning for
participating in the text messages.
Plaintiff asserts, and, for the purpose of summary
judgment, defendant does not dispute, that after the HR
investigation, Mr. Block commented in her presence that he was
not permitted to make statements about fried chicken, Kool-Aid
or hair on 10 to 15 separate occasions.
Plaintiff states that
the comments were hostile and made her uncomfortable but
defendant points out that plaintiff did not report the comments
to HR because she “didn’t think it was harassment”.
explains that she did not report the comments because she did
not think that HR could help her, the comments were not directed
specifically to her and she felt that it would make things
She states that she was worried about losing her job and
that her supervisor, Ms. McGaughey, laughed about the comments.
E. Plaintiff’s Termination
In mid-March, plaintiff had her 2013 performance review.
Ms. McGaughey rated her “successful” which is the median of
Sterling’s five employee ratings.
Plaintiff claims that she
heard Ms. McGaughey say that she was lucky that the review
occurred before she complained to HR because if it had been
after the complaints it would have been a negative review.
much Ms. McGaughey knew about plaintiff’s complaints to HR is
Defendant claims that Ms. McGaughey was aware of the
complaint about the text messages but not the complaint about
Mr. Block’s comments.
Plaintiff contends that Ms. McGaughey
demonstrated that she had some awareness of the complaint
concerning Mr. Block’s comments because she heard and laughed in
response to his later statements such as “I cannot make comments
about fried chicken or I might be reported again”.
Plaintiff was purportedly terminated for insubordination in
response to a reprimand for discussing Service King’s upcoming
acquisition of Sterling.
Defendant submits that Sterling
employees were instructed to avoid discussing the acquisition
with “outsiders and the media”.
Plaintiff asserts that she was
never instructed to avoid mentioning the acquisition to other
Sterling employees and Sterling assumes the truth of that
statement for the purpose of summary judgment.
In May, 2014, Ms. McGaughey overheard plaintiff discussing
the acquisition on the phone, concluded that she was violating
the order to avoid discussing it and told her to hang up and
started yelling at her.
Defendant contends that plaintiff
responded by 1) calling Ms. McGaughey “woman”, 2) telling her
she was not her mother, 3) saying she was not her child and
4) advising Ms. McGaughey that she needed to show plaintiff some
Plaintiff denies the first two allegations but admits
to advising Ms. McGaughey that she should be treated
Ms. McGaughey reported the interaction to HR.
Plaintiff told Mr. Block, Ms. McGaughey’s supervisor, about the
incident and he told her that it was not a cause for concern.
Defendant states that Ms. Varn and Mr. Nuxoll discussed the
incident and concluded that plaintiff had been insubordinate and
thereby violated Sterling’s Code of Conduct.
In its version of
events, because of the insubordination along with the fact that
Sterling was in the process of winding down, they recommended to
Tony Giannola, the Vice President of Finance, that plaintiff be
He agreed and plaintiff’s employment was
In plaintiff’s view of the facts, defendant fired her for
discriminatory and retaliatory reasons.
She submits that she
never received any warnings, she performed her job well and she
was not insubordinate.
She points out that Mr. Block, the
source of the offensive comments, signed her termination form
and that the form included a statement that she was fired for
insubordination but that Mr. Block and Ms. Varn told her at her
termination meeting that she was terminated because the company
was winding down.
According to plaintiff, due to the loss of
her job, she developed anxiety, sleep issues and was unable to
provide food and health insurance for her child.
On June 3, 2014, the sale of Sterling to Service King was
consummated and Sterling’s Massachusetts facility was completely
shut down by July 31, 2014.
All Sterling employees were laid
off with the exception of a few high level employees who Service
King offered jobs.
Plaintiff found another job on October 23,
2014 at which she was paid more than she earned at Sterling.
F. Procedural Background
In March, 2015, plaintiff filed a complaint in Middlesex
Superior Court alleging violations of Massachusetts General
Laws, Chapter 151B.
Defendant removed the case to this Court on
the basis of diversity of citizenship in June, 2015 and timely
answered the complaint thereafter.
In May, 2016, with leave of this Court, plaintiff filed an
amended complaint alleging that defendant 1) discriminated
against her on the basis of her race, 2) harassed her on the
basis of her race and 3) retaliated against her when she
reported the discrimination and harassment, all in violation of
Defendant timely answered the amended complaint,
denying all substantive allegations.
In November, 2016, defendant moved for summary judgment on
all claims against it.
That motion, which plaintiff opposes, is
the subject of this memorandum and order.
The amended complaint states that defendant violated Chapter
151B by discriminating against and harassing plaintiff based on
her national origin, race, color and ethnicity. Because
1) plaintiff testified at her deposition that her claims simply
involve race and 2) both parties refer to the comments at issue
as “racially” offensive, the Court will treat the claims as only
Motion for Summary Judgment
A. Legal Standard
The role of summary judgment is “to pierce the pleadings
and to assess the proof in order to see whether there is a
genuine need for trial.” Mesnick v. Gen. Elec. Co., 950 F.2d
816, 822 (1st Cir. 1991).
The burden is on the moving party to
show, through the pleadings, discovery and affidavits, “that
there is no genuine dispute as to any material fact and that the
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
A fact is material if it “might affect the outcome of
the suit under the governing law.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).
A genuine issue of material
fact exists where the evidence with respect to the material fact
in dispute “is such that a reasonable jury could return a
verdict for the nonmoving party.” Id.
If the moving party has satisfied its burden, the burden
shifts to the non-moving party to set forth specific facts
showing that there is a genuine, triable issue. Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986).
The Court must view the
entire record in the light most favorable to the non-moving
party and indulge all reasonable inferences in that party’s
favor. O’Connor v. Steeves, 994 F.2d 905, 907 (1st Cir. 1993).
Summary judgment is appropriate if, after viewing the record in
the non-moving party’s favor, the Court determines that no
genuine issue of material fact exists and that the moving party
is entitled to judgment as a matter of law.
B. Discrimination Claim
In the absence of direct evidence of discrimination, the
Court applies the well-established McDonnell Douglas burdenshifting framework to evaluate an employment discrimination
claim. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973); Benoit v. Technical Mfg. Corp., 331 F.3d 166, 173 (1st
The burden shifting framework was originally
applied in the Title VII context but it is also used to examine
allegations of discrimination in violation of Chapter 151B.
Benoit, 331 F.3d at 173.
The framework first requires a plaintiff to establish a
prima facie case of racial discrimination by demonstrating that
1) she belonged to a protected class (a racial minority), 2) she
was performing her job at an acceptable level and 3) she
suffered an adverse employment action, such as termination.
Bulwer v. Mount Auburn Hosp., 46 N.E.3d 24, 32–33 (Mass. 2016).
If the plaintiff is successful, the burden of production shifts
to her employer to “rebut the . . . prima facie case by
articulating a legitimate, nondiscriminatory reason” for the
employment decision. Id. at 33 (quoting Blare v. Husky Injection
Molding Sys. Boston, Inc., 646 N.E.2d 111, 115 (Mass. 1995)).
If the employer offers such a reason, the burden shifts back to
the plaintiff to prove that her employer's justification is mere
pretext rather than “the real reason for that action.” Id.
(quoting Wheelock College v. Massachusetts Comm'n Against
Discrimination, 355 N.E.2d 309, 315 (Mass. 1976)).
Defendant assumes that plaintiff has established a prima
facie case of discrimination for the purpose of summary judgment
but asserts that her claim fails at the third step of the
McDonnell Douglas test because she has not shown that the
reasons given for her firing, insubordination and the imminent
closure of Sterling’s Massachusetts office, were pretextual.
Plaintiff responds that she has provided circumstantial evidence
At this stage of the proceedings, plaintiff has produced
sufficient circumstantial evidence to create a genuine issue of
material fact with respect to whether the reasons given for
terminating her employment were pretextual.
Massachusetts is a
“pretext only” jurisdiction meaning that
To survive a motion for summary judgment, the plaintiff
need only present evidence from which a reasonable jury
could infer that “the respondent's facially proper reasons
given for its action against [her] were not the real
reasons for that action.”
Bulwer, 46 N.E.3d at 33 (quoting Wheelock College, 355 N.E.2d at
That is to say, under the Massachusetts regime, a
plaintiff is not required to demonstrate that the reasons given
for the termination were pretextual and the termination occurred
because of a discriminatory animus. Id. at 33-34.
plaintiff is required to show only that the facially legitimate
rationale for the termination is not the real reason for the
employment decision. Id.
Then, at trial, the jury may infer
that the prima facie case along with the pretext suffices to
show discrimination. Id.
Plaintiff has offered evidence that, when considered in
light of all reasonable inferences drawn in her favor, could
support a conclusion that the stated reasons for terminating her
employment were pretextual.
First, Mr. Block, the primary
source of the racially offensive comments, signed off on her
termination and was present at her termination meeting.
Statements by supervisors carrying the inference that the
supervisor harbored animus against protected classes of
people or conduct are clearly probative of pretext[.]
Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 171 (1st Cir.
Mr. Block’s comments coupled with his involvement in the
termination process could lead a reasonable jury to infer that
the reasons given for firing plaintiff were pretextual.
Similarly, the comments regarding Kool-Aid from plaintiff’s coworker, Mr. Fiske, are not dispositive proof of discrimination
but constitute “evidence of a discriminatory atmosphere” that
“add ‘color’ to the employer’s decisionmaking processes . . . .”
Conway v. Electro Switch Corp., 825 F.2d 593, 597 (1st Cir.
Moreover, it is undisputed that at her review, plaintiff’s
performance was rated “successful” and that she was able to do
“her job duties well throughout the course of her employment”.
Such evidence may support an inference that defendant’s given
reasons for her termination are pretextual. See Bulwer, 46
N.E.3d at 35.
Finally, taking all reasonable inferences in
plaintiff’s favor, a jury could find that the reasons proffered
for her termination are implausible given that 1) the person her
supervisor reported to, Mr. Block, told her not to worry about
the supposedly insubordinate incident and 2) she was purportedly
fired because the company was winding down but there is no
indication that other employees were laid off at the same time.
Gomez-Gonzalez v. Rural Opportunities, Inc., 626 F.3d 654, 662–
63 (1st Cir. 2010).
In short, whether discriminatory animus motivated an
employment decision is a question of fact and thus “summary
judgment remains a disfavored remedy in the context of
discrimination cases based on disparate treatment.” Bulwer, 46
N.E.3d at 39 (internal quotations omitted).
considering all reasonable inferences in plaintiff’s favor, a
jury could conclude that the reasons given for firing her were
pretextual, defendant’s motion for summary judgment on her
discrimination claim will be denied.
C. Harassment Claim
1. Legal Standard
Under Massachusetts law, harassment rises to the level of a
hostile work environment if a workplace is “pervaded by
harassment and abuse” such that it makes it difficult for a
person to wholly participate in it. Thompson v. Coca-Cola Co.,
522 F.3d 168, 180 (1st Cir. 2008) (quoting Cuddyer v. Stop &
Shop Supermarket Co., 750 N.E.2d 928, 937 (Mass. 2001)).
determine whether there is a hostile work environment, a court
considers the totality of the circumstances, examining factors
such as the
frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a
mere offensive utterance; and whether it unreasonably
interferes with an employee's work performance.
Id. (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 787–
An interaction that may not suffice to show a hostile work
environment individually could constitute a hostile work
environment as one of many harassing acts that like “pinpricks
... slowly add up to a wound.” Clifton v. Massachusetts Bay
Transp. Auth., 839 N.E.2d 314, 318, n.5 (Mass. 2005) (quoting
Keeler v. Putnam Fiduciary Trust Co., 238 F.3d 5, 12 (1st Cir.
On the other hand “simple teasing, offhand comments,
and isolated incidents” are generally insufficient to rise to
the level of a hostile work environment. Kosereis v. Rhode
Island, 331 F.3d 207, 216–17 (1st Cir. 2003) (quoting Faragher,
524 U.S. at 788).
The fact-specific nature of the analysis
often renders the determination of whether there was hostile
work environment best suited for a jury. Pomales v. Celulares
Telefonica, Inc., 447 F.3d 79, 83 (1st Cir. 2006).
Similarly to Title VII, Chapter 151B renders an employer
vicariously liable for a hostile work environment caused by a
supervisor. Noviello v. City of Boston, 398 F.3d 76, 94–95 (1st
In contrast to Title VII, and consistent with the
legislative directive that it be construed liberally, Chapter
151B does not offer an affirmative offense to employers. Id.
Instead, under Massachusetts law, employers are held strictly
liable if a supervisor harasses an employee. Id.
Defendant contends that the Court should grant summary
judgment on plaintiff’s harassment claim because the racially
charged comments do not rise to the level of a hostile work
environment and are merely “a few comments” about fried chicken,
Kool-Aid and Macy Gray.
Plaintiff responds that she has
established that there was harassment and supports this claim by
outlining Mr. Block’s recurring comments.
Plaintiff also notes
that “there is strict liability under Chapter 151B and Title VII
for harassment committed by managers and supervisors”.
The Court agrees with plaintiff that summary judgment on
the harassment claim is unwarranted.
Examining Mr. Block’s
comments before plaintiff complained to HR, a genuine issue of
material fact persists with respect to how often those comments
The parties agree that the Martin Luther King and hot
sauce comments only happened once and that the Macy Gray
comments happened on multiple occasions.
however, on the frequency of the fried chicken and Kool-Aid
Defendant states that those comments only happened
one time, while plaintiff states that they happened at least
once a week in January and February 2014. If the factual dispute
is resolved in favor of plaintiff, the derogatory comments
occurred at least once a week for approximately 8 weeks.
number of times the comments were made is a key consideration
with respect to whether the comments were “simple teasing,
offhand comments, and isolated incidents”, Kosereis, 331 F.3d at
216–17, or “pinpricks [that] only slowly [create a hostile work
environment].” Clifton, 839 N.E.2d at 318, n.5 (quoting Keeler,
238 F.3d at 12).
Thus, because a genuine issue of material fact
remains with respect to the frequency of the comments, the Court
will deny defendant’s motion for summary judgment on plaintiff’s
D. Retaliation Claim
1. Legal Standard
Claims for retaliation based upon circumstantial evidence
under Chapter 151B are also analyzed with the McDonnell Douglas
burden-shifting framework requiring a prima facie case of
retaliation, articulation of a non-discriminatory justification
and ultimately proof by the plaintiff that the given reason is a
pretext. See, e.g., Pina v. Children's Place, 740 F.3d 785, 800–
01 (1st Cir. 2014).
In the context of retaliation, the prima
facie burden requires a plaintiff to produce evidence that
1) she reasonably believed discrimination was occurring in
violation of Chapter 151B, 2) she acted reasonably based upon
that belief and 3) the “desire to retaliate against [her] was a
determinative factor in [the] decision to terminate [her]
employment.” Abramian v. President & Fellows of Harvard Coll.,
731 N.E.2d 1075, 1088 (Mass. 2000).
incorporates federal anti-discrimination case law when
construing Chapter 151B, this Court will do the same. Noviello,
398 F.3d at 91.
Defendant maintains that summary judgment should be entered
on plaintiff’s retaliation claim because, even assuming that
plaintiff has established a prima facie case of retaliation for
the purpose of summary judgment, she has no evidence showing
that Sterling’s stated reasons for ending her employment were
pretextual and has failed to show that the protected activity
caused her termination.
Plaintiff contends that the brief
interval between the complaint and the termination of her
employment supports a finding that the reasons given for the
separation were pretextual and helps establish causation.
As addressed above, there is a variety of evidence that
could support the conclusion that defendant’s stated reasons for
firing plaintiff are pretextual.
To add to those reasons, the
fact that Ms. McGaughey allegedly said that plaintiff was lucky
her performance review occurred before the complaint could
support the inference that Ms. McGaughey suggested she be fired
because of the complaint rather than because of her supposed
Defendant’s claim that plaintiff failed to show but-for
causation is also unpersuasive.
Causation can be shown by the
chronology of events combined with other evidence that tends to
show the protected activity was the reason that an individual
was fired. Xiaoyan Tang v. Citizens Bank, N.A., 821 F.3d 206,
221 (1st Cir. 2016).
Here, the chronology of events supports an
inference of causation.
Plaintiff reported the conduct in
February or March, 2014 and was terminated only two or three
months later, in May, 2014.
The Court need not rely on the
timing of events alone, however.
Ms. McGaughey’s comment that
she would have given plaintiff a bad review had the review
occurred after the complaint paired with the fact that Ms.
McGaughey reported the alleged insubordination is also evidence
that could support an inference of causation.
In sum, construing the facts in plaintiff’s favor, a jury
could conclude that the reasons given for her firing are
pretextual and that her complaint to HR was the but-for cause of
Therefore, defendant’s motion for summary
judgment on plaintiff’s retaliation claim will be denied.
Defendant contends that the Court should limit plaintiff’s
lost wages claim to either the period before July 31, 2014, when
Sterling shut down its office in Natick, Massachusetts and all
rank and file employees were laid off, or the period before
October 23, 2014, when plaintiff was hired by another employer
by whom she was paid more than she was paid at Sterling.
Plaintiff does not respond to that contention.
Defendant’s argument that plaintiff’s claim for lost wages
should be limited to the period before October 23, 2014 is well
Front-pay damages “should not generate a windfall for
the plaintiff” nor should they make a plaintiff “more than
whole.” Haddad v. Wal-Mart Stores, Inc., 914 N.E.2d 59, 69
(Mass. 2009); Kelley v. Airborne Freight Corp., 140 F.3d 335,
354 (1st Cir. 1998).
On the other hand, it is unclear whether the record
supports a ruling that lost wages should be limited to the
period before July 31, 2014.
Although the rank and file
employees at Sterling’s office in Natick were all laid off at
that time, it is possible that being terminated earlier than
other employees and for purportedly insubordinate behavior made
it more difficult for plaintiff to find a new job.
the Court will allow defendant’s motion for summary judgment
with respect to damages by limiting lost wages to the period
before October 23, 2014 but it will deny the motion insofar as
it limits lost wages to the period before July 23, 2014.
In accordance with the foregoing, defendant’s motion for
summary judgment is, with respect to the request that
plaintiff’s damages for lost wages be limited to the period
before October 23, 2014, ALLOWED but is otherwise DENIED.
/s/ Nathaniel M. Gorton
Nathaniel M. Gorton
United States District Judge
Dated May 17, 2017
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