Romero et al v. McCormick & Schmick Restaurant Corp.
Filing
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Judge Indira Talwani: ORDER entered. MEMORANDUM AND ORDER. Defendant's Motion for Summary Judgment as to Milagro Alvarez 32 is DENIED. (Kelly, Danielle)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
MARTA ROMERO, FABIANA SANTOS, *
GLADYS FUENTES, SANTIAGO CRUZ, *
and MILAGRO ALVAREZ,
*
*
Plaintiffs,
*
*
v.
*
*
MCCORMICK & SCHMICK
*
RESTAURANT CORP. d/b/a
*
MCCORMICK & SCHMICK’S SEAFOOD *
RESTAURANT,
*
*
Defendant.
*
Civil Action No. 1:18-cv-10324-IT
Memorandum and Order
March 17, 2020
TALWANI, D.J.
Plaintiffs Marta Romero, Fabiana Santos, Gladys Fuentes, Santiago Cruz, and Milagro
Alvarez brought suit against their former employer, Defendant McCormick & Schmick
Restaurant Corp., d/b/a McCormick & Schmick’s Seafood Restaurant (“McCormick &
Schmick’s”), alleging unlawful discrimination due to sexual harassment in violation of M.G.L. c.
151B. Before the court is Defendant’s Motion for Summary Judgment as to Plaintiff Milagro
Alvarez [#32].1 For the following reasons, the motion is DENIED.
I.
Factual Background
The facts are taken from the summary judgment record, in the light most favorable to
Milagro Alvarez as the non-moving party and resolving disputes of material fact in her favor.
Milagro Alvarez began her employment as a dishwasher and cleaner for Defendant at its
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Plaintiffs’ Motion for Partial Summary Judgment [#36] will be addressed in a separate order.
Faneuil Hall restaurant on April 26, 2012. Pls’ Resp. to Def’s Statement of Undisputed Material
Facts (“Pls’ SOF Resp.”) ¶ 1 [#42]. Her work included washing dishes downstairs from the
restaurant and cleaning the lavatories. Alvarez Dep. 31:5-20 [#42-1]. She worked alone when she
cleaned the lavatories. Id. 47:9-15. When Alvarez started her employment, Marta Romero was
already employed in the same position. Pls’ SOF Resp. ¶ 2 [#42].
Roman Buruca began as sous chef on December 9, 2013. Id. ¶ 4. Although the Complaint
alleges that Buruca began touching Romero in sexual and inappropriate ways in 2014, Complaint
¶ 14 [#1-1], Alvarez did not personally observe this conduct until January 2015. Pls’ SOF Resp.
¶ 9 [#42]. Alvarez estimated that between January 2015 and July 2015, she saw Buruca
“hugging” her coworker Marta Romero over twenty times. Id. She described Buruca approaching
Romero from behind while Romero was washing dishes and grabbing Romero’s breasts with
both hands or hugging her waist. Alvarez Dep. 35:6-22 [#42-1]. Alvarez saw Buruca touch
Romero’s breasts on about five occasions. Pls’ SOF Resp ¶ 10 [#42]. Romero appeared bothered
by Buruca’s behavior. Id. ¶ 9. On one instance, she heard Buruca refer to Romero in the
diminutive as “Marita” and tell her that “in a short time, you’re going to be mine” as he grabbed
her from behind. Alvarez Dep. 38:3-5 [#42-1]; Def’s Resp. to Pls’ Additional Material Facts
(“Def’s SOF Resp.”) ¶ 27 [#43].
During the same period, Alvarez also observed Buruca grab or hug another coworker,
Maria Alvarez (“Maria”), in the same manner on many occasions. Alvarez states that Maria did
not hug Buruca back and Maria appeared “bothered” and “upset” by Buruca hugging or touching
her. Pls’ SOF Resp. ¶ 13 [#42]; Alvarez Dep. 39:9-39:21; 40:14-15; 43:18-20 [#42-1]. Alvarez
observed Buruca enter the small food prep area where Maria worked to “hug her.” Alvarez Dep.
¶ 40:7-13 [#42-1]. Alvarez also heard reports from her co-workers of their interactions with
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Buruca. Def’s SOF Resp. ¶ 28 [#43]. Buruca did not touch Alvarez however. Pls’ SOF Resp.
¶ 14 [#42].
Aaron Hopp was hired as Executive Chef for the restaurant on May 4, 2015. Pls’ SOF
Resp. ¶ 5 [#42]. Two days later, Gladys Fuentes began working as a prep cook at the same
location. Id. ¶ 3. Sometime thereafter, Alvarez witnessed Fuentes ask Hopp for food, and Hopp
respond “did you want something to eat?” and “here, eat this,” indicating his penis. Id. ¶ 15;
Alvarez Dep. 45:10-45:16, 46:12-46:20 [#42-1]. Alvarez heard other reports from her coworkers of their interactions with Hopp. Def’s SOF Resp. ¶ 28 [#43]; Alvarez Dep. 45:10-12
[#42-1]. Alvarez does not allege that Hopp directed any harassing comments or conduct at her.
Alvarez was afraid to go to work, and to clean the lavatories when Buruca or Hopp were
at work. Pls’ SOF Resp. ¶ 16 [#42]; Alvarez Dep. 44:14-45:6; 47:2-15 [#42-1]. She worried that
Buruca or Hopp would touch or hug her. Def’s SOF Resp. ¶ 26 [#43]; Alvarez Dep. 45:2-45:6;
47:2-5 [#42-1]. Alvarez did not report the incidents prior to July 2, 2015, however, because she
was afraid she would be fired. Def’s SOF Resp. ¶ 29 [#43]; Alvarez Dep. 67:8-15 [#42-1].
Alvarez experienced a rise in blood pressure, had difficulty sleeping, and lost weight. Pls’
SOF Resp. ¶ 17 [#42]; Alvarez Dep. 88:20-91:21 [#42-1]. She also thought about Buruca’s
conduct when not working and was bothered and scared by it. Def’s SOF Resp. ¶¶ 31-32 [#43].
On July 2, 2015, Alvarez and her co-workers lodged a complaint against Buruca and
Hopp in a meeting with the general manager of the restaurant, David Wilson. Pls’ SOF Resp.
¶ 19 [#42].
Buruca resigned from his position on August 21, 2015. Pls’ SOF Resp. ¶ 4 [#42]; Buruca
Resignation Letter [#35-2]. Hopp left his position on May 28, 2016. Pls’ SOF Resp. ¶ 5 [#42];
Hopp Resignation Letter [#35-3].
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Alvarez continued working for Defendant until January 7, 2018, when she resigned her
employment. Pls’ SOF Resp. ¶ 1 [#42].
II.
Standard of Review
Summary judgment is appropriate only if “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). The court
views the evidence in the light most favorable to the non-moving party and resolves any disputes
of material fact in their favor. Prescott v. Higgins, 538 F.3d 32, 39 (1st Cir. 2008). A “genuine
dispute” is one that, based on the evidence submitted at this stage of litigation, “a reasonable jury
could resolve . . . in favor of the non-moving party,” and a “material fact” is one that has “the
potential to affect the outcome of the suit under the applicable law.” Sanchez v. Alvarado, 101
F.3d 223, 227 (1st Cir. 1996) (citations and quotation marks omitted).
The moving party is responsible for identifying those portions of the record which it
believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). If the moving party shows the absence of a disputed material fact, the
burden shifts to the non-moving party to set forth “specific facts showing there is a genuine issue
for trial.” Anderson v. Liberty Lobby Inc., 477 U.S. 242, 256 (1986).
III.
Discussion
Plaintiff Milagro Alvarez claims that she was subjected to a hostile work environment,
amounting to sexual harassment in violation of M.G.L. c. 151B, § 4. Workplace sexual
harassment may constitute discrimination on the basis of sex in violation of the Massachusetts
Anti-Discrimination law, Chapter 151B. M.G.L. c. 151B, § 1(18); M.G.L. c. 151B, § 4(1);
Ramsdell v. W. Mass. Bus Lines, Inc., 415 Mass. 673, 677 (1993). “Sexual harassment” includes
“sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual
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nature when . . . such advances, requests or conduct have the purpose or effect of unreasonably
interfering with an individual’s work performance by creating an intimidating, hostile,
humiliating or sexually offensive work environment.” M.G.L. c. 151B, § 1(18)(b). A hostile
work environment is one “pervaded by harassment or abuse, with the resulting intimidation,
humiliation, and stigmatization, pos[ing] a formidable barrier to the full participation of an
individual in the workplace.” College-Town Div. of Interco, Inc. v. Mass. Comm’n Against
Discrimination, 400 Mass. 156, 162 (1987).
Defendant seeks summary judgment of Alvarez’s claim, asserting that: 1) the alleged
conduct was not “severe and pervasive” so as to objectively interfere with her work performance;
and 2) there is no evidence that the conduct subjectively interfered with Alvarez’s work
performance.
A. Objectively Severe and Pervasive
Defendant argues that Alvarez cannot show that the alleged conduct was sufficiently
severe and pervasive to make out a claim because the alleged sexual conduct and statements
were directed at other employees and in any event were not severe or pervasive.
The court finds no requirement in the statutory scheme, case law, or common sense that
would preclude a hostile work environment claim because sexual conduct and statements were
directed at co-workers only. The statute itself focuses on the “work environment,” defining
sexual harassment to include “verbal or physical conduct of a sexual nature when . . . such . . .
conduct ha[s] the purpose or effect of unreasonably interfering with an individual’s work
performance by creating an intimidating, hostile, humiliating or sexually offensive work
environment.” M.G.L. c. 151B, § 1(18) (emphasis added). Under the statute, if the purpose or
effect of sexual conduct is to unreasonably interfere with employees’ work performance through
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an intimidating work environment, the fact that a particular employee has not yet been grabbed,
touched or ridiculed does not negate the hostile work environment. As the court noted in Ruffino
v. State Street Bank and Trust Co., the proposition “that conduct which was not directed at the
plaintiff . . . may not be evidence of hostile environment sexual harassment” is “simply wrong as
a matter of law and common sense.” 908 F.Supp. 1019, 1036 n.28 (D. Mass. 1995) (noting
further that “the pervasive use of insulting and demeaning terms relative to women in general
may serve as evidence of a hostile environment”); see also Perry v. Ethan Allen, Inc., 115 F.3d
143, 151 (2d Cir. 1997) (“Evidence of the harassment of women other than [plaintiff], if part of a
pervasive or continuing pattern of conduct, was surely relevant to show the existence of a hostile
environment . . .”).
The cases on which Defendant relies do not suggest otherwise. In Smith v. Clay
Chevrolet, Inc., the court granted defendant summary judgment on plaintiff’s hostile work
environment claim where plaintiff complained that a consensual, romantic relationship between
two employees interfered with plaintiff’s work because of the co-worker’s unavailability. 2016
WL 8138606 at *11 (D. Mass. Nov. 17, 2016), report and recommendation adopted by (D. Mass.
Jan. 31, 2017). Bourbeau v. City of Chicopee similarly rejected a claim based on “amorous
contact between co-workers.” 445 F.Supp. 2d 106, 113 (D. Mass. 2006). In Ritchie v. Dep’t of
State Police, the court declined to reach on a motion for judgment on the pleadings (but did not
reject) plaintiff’s claims that favoritism from office romance are enough to establish a hostile
work environment claim. 60 Mass. App. Ct. 655, 661 (2004). None of these cases involved
unwanted sexual contact in the workplace – such as the allegations that Buruca came from
behind and grabbed a co-worker’s breasts -- that gave rise to fear as Alvarez alleges here.
Defendant next argues that the conduct Alvarez alleges occurred was in any event not
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objectively severe and pervasive enough so as to interfere with a reasonable person’s work
performance. Defendant is correct that Plaintiff must show that the conduct alleged was
“objectively” sufficiently severe and pervasive to “interfere with a hypothetical reasonable
person’s work performance.” Muzzy v. Cahillane Motors, Inc., 434 Mass. 409, 411, 412 n.2
(2001). However, the “hostility vel non of a workplace does not depend on any particular kind of
conduct; indeed a worker need not be propositioned, touched offensively, or harassed by sexual
innuendo in order to have been sexually harassed.” Billings v. Town of Grafton, 515 F.3d 39, 48
(1st Cir. 2008) (quoting in part Quick v. Donaldson Co., 90 F.3d 1372, 1379 (8th Cir. 1996)).
There is no numerosity requirement that a plaintiff must meet to establish a hostile work
environment. Gnerre v. Mass. Comm’n Against Discrimination, 402 Mass. 502, 507-08 (1988);
College-Town, 400 Mass. at 162. Instead, determining whether an employee was subject to a
severe and pervasive hostile work environment is a fact-based inquiry “determined only by
looking at all the circumstances,” which may include “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.” Gorski
v. N.H. Dept. of Corr., 290 F.3d 466, 472 (1st Cir. 2002) (quoting Harris v. Forklift Sys., Inc.,
510 U.S. 17, 23 (1993)).
Milagro Alvarez asserts that she saw Buruca come up from behind and grab her coworker
Romero’s breasts or waist multiple times between January and July 2015, Alvarez Dep. 35:6-22;
37:11-21 [#42-1]; Def’s SOF Resp. ¶ 27 [#43]; Pls’ SOF Resp. ¶¶ 9, 11 [#42],2 and that she
Defendant argues that the court should discount Alvarez’s reporting because Romero stated in
her deposition that Buruca only touched her breasts twice, Def’s Mem. in Support of Mot. for
Summary Judgment as to Milagro Alvarez 10 n.8 [#34], but this dispute is more properly left to
the jury. See Andrade v. Jamestown Housing Auth., 82 F.3d 1179, 1186 (1st Cir. 1986) (“The
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witnessed Buruca repeatedly hug or grab another coworker, Maria Alvarez, including in the
small food prep area where Maria worked. Pls’ SOF Resp. ¶ 13 [#42]; Alvarez Dep. 39:9-39:21;
40:7-13; 43:18-20 [#42-1]. She also states that during the same period, at some point between
May and July, she saw executive chef Aaron Hopp gesture to his penis when her coworker
Gladys Fuentes asked him for food. Pls’ SOF Resp. ¶ 15 [#42]; Alvarez Dep. 45:10-45:16,
46:12-46:20 [#42-1]. Alvarez also testified she worked alone when she cleaned the lavatories and
that the dishwashing area was downstairs from the main restaurant. Alvarez Dep. 31:5-20; 47:915 [#42-1].
Accepting these statements as true for purposes of summary judgment, a hypothetical
reasonable person, working alone cleaning lavatories or out of the public view in the downstairs
dishwashing area, who witnesses numerous incidents of non-consensual sexual grabbing and
touching of her female coworkers, including approaching them from behind and in small areas,
and rude sexual behavior from her supervisor, may find the conduct sufficiently severe and
pervasive to reasonably fear that such sexual conduct would be directed at her and that this
sexual conduct would thus interfere with her work performance.
B. Subjective Interference with Work Performance
Finally, Defendant argues that no reasonable jury could find that Alvarez’s work
performance was subjectively interfered with by the alleged sexual harassment of her coworkers.
Subjectively, “an employee who alleges sexual harassment must show that the employer’s
conduct was intentionally or in effect hostile, intimidating, or humiliating to the plaintiff in a way
which affected her performance or the conditions of her employment.” Ramsdell v. W. Mass.
court, however, must not consider the credibility of the witnesses, resolve the conflicts in
testimony, or evaluate the weight of the evidence” when faced with a summary judgment
motion) (internal citation and quotation marks omitted).
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Bus Lines, Inc., 415 Mass. 673, 678–79 (1993) (emphasis in original).
Alvarez states that she was afraid to go to work and was afraid to be alone with Buruca
because she thought he would touch or grab her too. Pls’ SOF Resp. ¶ 16 [#42]; Alvarez Dep.
44:14-45:6, 47:6-21 [#42-1] (“I was able to see the way that he was hugging Marta. . . Yes, I was
afraid that he would hug me too.”). When she had to clean the lavatories, as part of her job, she
was fearful that Buruca or Hopp would touch her. Def’s SOF Resp. ¶ 26 [#43]; Alvarez Dep.
47:6-15 [#42-1]. Even outside of work, she thought about their conduct and was bothered by it.
Def’s SOF Resp. ¶ 32 [#43]; Alvarez Dep. 90:21-23 [#42-1].
Alvarez supports these allegations of fear with testimony that she suffered loss of sleep
over the course of two to three months, an increase in blood pressure, anxiety, and weight loss.
Alvarez Dep. 88:23-90:2; 91:3-21 [#42-1]. Alvarez asserts further that she was fearful of being
fired if she filed a complaint about the conduct. Def’s SOF Resp. ¶ 29 [#43]; Alvarez Dep. 67:815 [#42-1]. Physical and psychological effects of a hostile work environment such as those
alleged by Alvarez are often the basis of showing subjective interference with work performance.
See e.g., Noviello v. City of Boston, 398 F.3d 76, 83, 94 (1st Cir. 2005) (finding that plaintiff’s
evidence that she lost weight, experienced nightmares and panic attacks, and became anxious at
work as a result of a hostile work environment underscored “the negative effect on her work
performance.”).
Defendant points to Alvarez’s deposition testimony, where she was asked “Did the
symptoms interfere with your ability to work?” and she responded, “No. I put in the effort in
order to work because what else could I do?” Alvarez Dep. 102:12-15 [#42-1]. This is not, as
Defendant suggests, an unequivocal statement that the alleged hostile work environment did not
interfere with her ability to work. Rather, Alvarez’s statement is entirely consistent with her
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testimony that the sexual conduct she witnessed put her in fear (thereby unlawfully interfering
with the conditions of her employment), which she endured because she was also afraid of losing
her livelihood.
Defendant suggests further that the harms Alvarez alleges should be discounted, where
she testified that she addressed them “with a cup mint tea” and “drinking water,” and where her
weight loss was “applauded by her treating physician.” Def’s Mem. in Support of Mot. for
Summary Judgment 13 [#34]. In addition, Defendant points to Alvarez’s failure to report the
conduct prior to the meeting alongside her coworkers in July 2015. Id. These arguments may be
presented to a jury. They are insufficient, however, to bar the sexual harassment claim where a
reasonable jury could find that Alvarez was subjectively intimidated by the sexual conduct.
IV.
Conclusion
Accordingly, as Defendant is not entitled to judgment as a matter of law based on the
record in front of the court, Defendant’s Motion for Summary Judgment as to Milagro Alvarez
[#32] is DENIED.
IT IS SO ORDERED.
March 17, 2020
/s/ Indira Talwani
United States District Judge
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