Cadigan v. Align Technology, Inc. et al

Filing 29

Judge Allison D. Burroughs: MEMORANDUM AND ORDER entered. Defendants' motion to dismiss the Amended Complaint for Plaintiff's alleged failure to file her action within the statute of limitations and failure to plead facts sufficient to state a claim, [ECF No. 17 ], is DENIED. SO ORDERED.(McDonagh, Christina)

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UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
JILL A.R. CADIGAN,

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Plaintiff,
v.
ALIGN TECHNOLOGY, INC. and
LANCE JOHNSON,
Defendants.

Civil Action No. 1:19-cv-11462-ADB

MEMORANDUM AND ORDER ON DEFENDANTS’ MOTION TO DISMISS
BURROUGHS, D.J.
On April 25, 2019, Plaintiff Jill Cadigan (“Plaintiff”) filed a complaint in Plymouth
County Superior Court alleging that Align Technology, Inc. (“Align”) and her supervisor, Lance
Johnson (“Johnson” and, collectively, “Defendants”) discriminated against her on the basis of
gender and age (Counts I and II), retaliated against her and subjected her to a retaliatory work
environment (Counts III and VI), and subjected her to a hostile work environment on the basis of
her gender and age (Counts IV and V). [ECF No. 16 (“Amended Complaint” or “Am. Compl.”)
¶¶ 96–143]. On July 3, 2019, Align removed the case to federal court. [ECF No. 1].
Presently before the Court is Defendants’ motion to dismiss Plaintiff’s First Amended
Complaint. [ECF No. 17]. For the reasons set forth below, the motion to dismiss, [ECF No. 17],
is DENIED.

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I.

BACKGROUND
A.

Factual Allegations

The following facts are drawn from the first amended complaint, [Am. Compl.], the wellpleaded allegations of which are taken as true for the purpose of evaluating the motion, see
Ruvio v. Wells Fargo Bank, N.A., 766 F.3d 87, 90 (1st Cir. 2014).
Align is a “global medical device company” that is headquartered in Santa Clara,
California. [Am. Compl. ¶ 5]. Plaintiff was hired by Align as a “Territory Manager” in January
2000. [Id. ¶ 6]. Johnson was Plaintiff’s direct manager between November 2007 and January
2015. [Id. ¶ 8]. Johnson “made disparaging statements about Plaintiff being a working mother,
[including] questioning whether it was even appropriate for her to work at all, and even asking a
colleague: ‘Doesn’t her husband work?’” [Id. ¶ 10]. For example, Johnson “expressed
incredulity” when Plaintiff told him that “she was involved in her children’s school activities and
other domestic activities consistent with the traditional role of married women,” [id. ¶ 11], and
“disparaged Plaintiff” for not socializing with her coworkers “because she did not like to play
golf or stay out after hours and drink,” [id. ¶ 12].
In January 2014, Johnson “placed [Plaintiff] on a performance plan when her
performance was objectively similar and even superior to that of [male employees] not placed on
plans.” [Id. ¶ 27]. Plaintiff, believing that the tactic was motivated by a desire to force out
female employees who were over the age of forty, [id. ¶ 28], contacted Align’s Director of
Human Resources (the “HR Director”) to initiate an internal discrimination charge and to
challenge the performance plan, [id. ¶¶ 41, 42]. The HR Director assured Plaintiff that Align’s
policy required that her charge be kept confidential and that any reprisals or retaliation for her
making the charge would violate Align’s policy and the law. [Id. ¶¶ 42–43]. Plaintiff told the

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HR Director that “she was concerned [Johnson] had unfairly evaluated her work in comparison
to [male] team members” out of a desire to get rid of her. [Id. ¶ 46]. The HR Director said that
Johnson maintained that she was “at the bottom of every performance ‘metric,’” but allowed
Plaintiff to provide data to show that Johnson’s assertions were false. [Id. ¶ 47].
In January 2014, Plaintiff prepared a twelve-page letter (the “Internal Complaint”) citing
numerous statistics measuring her performance against similarly situated territory managers,
which she believed established that Johnson had unfairly evaluated her work, [id. ¶ 48], and
supported her contention that she was receiving disparate treatment because she was the only
female employee in her sales region, [ECF No. 16-1 at 6]. The Internal Complaint compared
Plaintiff to two men on her team, Jim Fasino (“Fasino”) and Michael Anistasi (“Anistasi”),
among others. [Id.; Am. Compl. ¶ 49]. On January 12, 2014, Plaintiff emailed the Internal
Complaint to both the HR Director and Align’s Executive Team. [Am. Compl. ¶ 50].
On January 17, 2014, at Align’s annual sales meeting in Boca Raton, Florida, “Plaintiff
told [the HR Director] that she believed that [Johnson’s] mistreatment of her was fueled by
gender-based and age-based animus,” citing previous examples of Johnson’s discrimination. [Id.
¶ 51]. Plaintiff told the HR Director that “Johnson’s hostility toward her intensified when she
turned [forty-nine].” [Id. ¶ 52]. Align’s CEO joined the conversation and informed Plaintiff that
he had read the Internal Complaint, but “could not comment on it . . . [and] hoped it would be
rectified . . . .” [Id.]. The CEO further stated to Plaintiff, “You’ve been an important part of this
company for a long time,” and, “I hope we can all put this behind us.” [Id.]. The HR Director
“promised to investigate [the] charges” and reiterated that it “would remain confidential . . . .”
[Id. ¶ 53].

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Three weeks later, when Plaintiff asked Johnson about her performance plan, he said,
“that little report you wrote made that go away.” [Am. Compl. ¶ 54]. In addition to knowing
about the Internal Complaint, Johnson also disclosed it to Anistasi, one of the male coworkers
whom Plaintiff had referenced as a comparison, [id. ¶¶ 49, 79], and encouraged Anistasi to treat
Plaintiff poorly, [id. ¶¶ 75, 76, 79]. In May 2014, Anistasi “began expressing hostility toward
[Plaintiff],” [id. ¶ 55], including failing to return her phone calls for several weeks and shunning
her at both a business dinner and a company meeting, despite Plaintiff’s repeated attempts to
determine why he was upset with her, [id. ¶¶ 56–57]. In August 2014, Anistasi told Plaintiff, “I
was a loyal friend to you, you are all out for yourself, and I can’t share why I am upset, because
someone will get fired. So I won’t discuss it with you.” [Id. ¶ 57]. He also told her to “[t]hink
about what [she] did.” [Id. ¶ 59]. Plaintiff asked another employee, Fasino, if he knew why
Anistasi was upset. [Id. ¶ 60]. Fasino said that, though he knew, he “could not tell her because
revealing [that information] would subject another employee to discipline.” [Id.]. Fasino told
Plaintiff that he was not upset with her and encouraged her “to work out the problem with
[Anistasi].” [Id.].
When Plaintiff once again tried to address the issue with Anistasi, he made disparaging
comments about her work and told her that the rest of the sales team had discussed the issue and
agreed that her work was inadequate. [Am. Compl. ¶¶ 61–63]. He then told Plaintiff to
apologize to the team, which she did. [Id. ¶ 63]. When she called to apologize, her fellow team
members “expressed puzzlement . . . .” [Id.]. Additionally, Anistasi claimed that some of the
doctors with whom Plaintiff worked did not like her and talked about her behind her back. [Id.
¶ 64 (claiming that Anistasi told Plaintiff, “[e]ven people you think like you don’t,” “[y]ou’d be
shocked to find out who doesn’t like you,” and, “[t]hey . . . are people with whom you consider

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yourself to have good relationships”)]. Anistasi also falsely asserted that a customer hated
Plaintiff, and sarcastically thanked her for her performance. [Id. ¶¶ 66–67].
In 2015, Johnson assigned Plaintiff and Anistasi a joint project, knowing that the
assignment “would subject Plaintiff to extreme hostility from [Anistasi].” [Am. Compl. ¶ 77].
When Plaintiff requested that she be reassigned, Johnson declined. [Id.]. Johnson repeatedly
asked Plaintiff if she was aware of why Anistasi would refuse to work with her and was
incredulous when she said that she did not. [Id. ¶ 78]. Anistasi continued to refuse to work with
Plaintiff and insisted that they complete their assignment separately. [Id.].
In May 2016, Anistasi told Plaintiff that “she was good at her job, [but] she was a
‘horrible person.’” [Am. Compl. ¶¶ 68–69]. Apparently referring to the Internal Complaint,
Anistasi claimed that Plaintiff “wrote a report that threw [him] under the bus. Trying to save
[her] own job, [she] put down everybody else!” [Id. ¶ 69]. Plaintiff told Anistasi that he should
not have been aware of the Internal Complaint and asked if Johnson had disclosed it. [Id. ¶ 70].
Anistasi refused to answer. [Id.]. When Plaintiff explained that she had only talked about
Anistasi’s performance as a comparison to her own to demonstrate harassment, Anistasi claimed
that she should have made the HR Director pull the statistics rather than “throwing all [of her]
colleagues under the bus.” [Id. ¶ 71]. Anistasi said that, because of the Internal Complaint, he
could never trust Plaintiff and would never be her friend. [Id.]. He continued to treat her with
hostility. [Id. ¶ 73].
Eventually, Johnson was replaced as Plaintiff’s manager by Jeff Melville (“Melville”).
[Am. Compl. ¶ 73]. Melville told Plaintiff that he would instruct Anistasi to stop his conduct,
and “that bullying was not permitted for any reason.” [Id. ¶ 74]. In June 2016, Anistasi sent
Plaintiff a text message apologizing for his behavior. [Id.].

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In September 2016, Plaintiff was once again put on a performance plan, this time by
Align’s Northeast Director of Sales, [Am. Compl. ¶ 80], because she had allegedly failed “to
complete record keeping related templates in a sales-based software system,” [id. ¶ 81]. Plaintiff
had in fact “completed her recordkeeping responsibilities.” [Id. ¶ 83]. Further, Plaintiff claims
that the Director knew that “similarly situated employees had also not complied with the record
keeping activities, and that within the company, compliance with the task was considered at most
a minor, administrative responsibility” for which “non-compliance could not result in
discipline.” [Id. ¶ 82]. Plaintiff claims that she was put on the plan due to Align’s ongoing
animus toward female employees over the age of forty and in retaliation for her earlier Internal
Complaint. [Id. ¶ 83]. Melville apologized for having to put Plaintiff on a performance plan,
“emphasiz[ing] that he had not made the decision . . . [and] had no choice in the matter.” [Id.
¶ 84].
Plaintiff alleges that her experience was not isolated, but that Johnson and other senior
male managers “promoted, participated in, and condoned a spring break-like corporate culture of
drunkenness and ‘womanizing’” and regularly had sexual relationships with female employees.
[Am. Compl. ¶ 13]; see also [id. ¶ 25 (stating that one manager had sexual relationships with
three employees under his supervision and another manager had sexual relationships with two
employees)]. At social events, including Align’s National Sales Meeting and Summer meeting,
“senior male managers regularly drank excessively” and made sexual overtures toward female
employees . . . .” [Id. ¶ 15]. At a 2016 Sales Meeting, the Director of Northeast sales spanked a
female employee. [Id. ¶ 19]. When another employee questioned the Director about the
incident, the Director shrugged off the conduct and told the employee he had spanked to “have
another drink.” [Id. ¶ 20]. Additionally, supervisors compared the name of a female employee

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to a slang term for genitalia. [Id. ¶ 22]. Though the incidents were reported, nothing came of the
reports. [Id. ¶¶ 21, 22]. Further, identifying information about employees who cooperated in
making the reports was disclosed during the investigation, such that other employees criticized
those who had cooperated. [Id. ¶¶ 22, 23].
On January 17, 2017, “Plaintiff experienced stress and anxiety so severe, that upon the
advice of her medical providers, she was forced to take a leave of absence . . . .” [Am. Compl.
¶ 90]. She never returned to Align. [Id.]. Plaintiff initiated an administrative investigation of
the allegations that form the basis of her action, [id. ¶ 91], and learned that Align had similarly
discriminated against other women over the age of forty, some of whom had previously filed
internal discrimination complaints with the company’s HR department and had left the company
after allegedly agreeing to keep the terms of their departures confidential, [id. ¶¶ 29–39].
The administrative investigation terminated on November 15, 2018. [Am. Compl. ¶ 91].
At the administrative stage, “Align submitted a statement, signed under oath by the [HR
Director],” which claimed that the HR Director had investigated Plaintiff’s Internal Complaint,
had “met with” Plaintiff “and explained that she was unable to find any evidence of
discrimination,” and Plaintiff “said she understood and everyone moved on.” [Id. ¶ 85].
Plaintiff maintains that the meeting never took place and that the HR Director never told her that
there was no evidence of discrimination. [Id. ¶ 86].
On May 5, 2019, at 10:50 a.m., Anistasi sent Plaintiff a text message, stating:
Hi Jill. You’ll probably think this text is strange and coming out of the blue .. [sic]
and it probably is. I just wanted to let u know that I’m sorry for the way I handled
our disagreement before, it was very harsh and close minded. Hope all is well with
u and family. And Just in case u are wondering; no I’m not drunk and I did not get
hit in the head by a large object! Take care.

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[Am. Compl. ¶ 92; ECF No. 16-2 at 2–3]. Fasino also disclosed to Plaintiff that Anistasi claimed
that Johnson had only told him about Plaintiff’s complaint so that he would retaliate against her.
[Am. Compl. ¶ 94].
B.

Procedural History

Plaintiff brought this action in Plymouth County Superior Court on April 25, 2019. [ECF
No. 1-1; ECF No. 16 at 33]. Align removed the case to federal court on July 3, 2019. [ECF No.
1]. Plaintiff filed her Amended Complaint on September 3, 2019, [Am. Compl.], which alleges
that Align discriminated on the basis of gender and age (Counts I and II respectively), and that
Align and Johnson retaliated against her (Count III) and created a hostile work environment
based on gender, age and in retaliation for Plaintiff’s complaints (Counts IV, V and VI
respectively). [Id. ¶¶ 96–143].
Defendants moved to dismiss the Amended Complaint on September 17, 2019, claiming
that Plaintiff’s claims are time-barred and that she otherwise has failed to state a claim because
she does not allege an adverse employment action or that she was subjected to severe or
pervasive harassment. [ECF Nos. 17, 18]. Plaintiff opposed, [ECF No. 19], and Defendants
filed a reply, [ECF No. 23].
II.

STANDARD OF REVIEW
In reviewing a motion to dismiss under Rule 12(b)(6), the Court must accept as true all

well-pleaded facts, analyze those facts in the light most favorable to the plaintiff, and draw all
reasonable factual inferences in favor of the plaintiff. See Gilbert v. City of Chicopee, 915 F.3d
74, 80 (1st Cir. 2019). “[D]etailed factual allegations” are not required, but the complaint must
set forth “more than labels and conclusions,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007), and must contain “factual allegations, either direct or inferential, respecting each material

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element necessary to sustain recovery under some actionable legal theory,” Gagliardi v. Sullivan,
513 F.3d 301, 305 (1st Cir. 2008) (internal quotation marks omitted). The alleged facts must be
sufficient to “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570.
“To cross the plausibility threshold a claim does not need to be probable, but it must give
rise to more than a mere possibility of liability.” Grajales v. P.R. Ports Auth., 682 F.3d 40, 44–
45 (1st Cir. 2012) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “A determination of
plausibility is ‘a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.’” Id. at 44 (quoting Iqbal, 556 U.S. at 679). When reviewing a
motion to dismiss, the Court may consider documents outside of the pleadings, “‘the authenticity
of which are not disputed by the parties,’ making narrow exceptions to the general rule ‘for
official public records; for documents central to plaintiffs’ claim; or for documents sufficiently
referred to in the complaint.’” Álvarez-Maurás v. Banco Popular of P.R., 919 F.3d 617, 622–23
(1st Cir. 2019) (quoting Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993)).
III.

DISCUSSION
Defendants argue that Plaintiff’s claims are time-barred and that, even if this action were

timely, she has failed to allege facts sufficient to demonstrate that she experienced an adverse
employment action or was subjected to severe and pervasive harassment. See generally [ECF
No. 18].
A.

Timeliness

Defendants first argue that Plaintiff’s claims are time-barred because some of the
allegedly discriminatory conduct took place more than three years before the complaint was
filed. [ECF No. 18 at 7–14]. Plaintiff’s claims arise under Massachusetts General Laws Chapter
151B, which provides that a civil action must be filed “not later than three years after the alleged

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unlawful practice occurred . . . .” Mass. Gen. Laws ch. 151B, § 9. Defendants argue that
Plaintiff’s complaint is therefore untimely. [ECF No. 18 at 7]. Plaintiff maintains that any
untimely allegations are anchored by timely instances of discrimination, because Defendants’
actions constitute a continuing violation of anti-discrimination laws. [ECF No. 20 at 11].
“Under Massachusetts law, the continuing violation doctrine serves as an exception to the
statute of limitations only if three prerequisites are satisfied.” Shervin v. Partners Healthcare
Sys., Inc., 804 F.3d 23, 34 (1st Cir. 2015). First, “the claim must be ‘anchored’ by . . . [an]
incident of discrimination or retaliation [which] transpir[ed] within the limitations period”;
second, the claim must arise from “a series of related events that have to be viewed in their
totality in order to assess adequately their discriminatory nature and impact”; and, “[t]hird, the
plaintiff must show that a reasonable person in her circumstances would have refrained from
filing a complaint within the limitations period.” Id. at 34–35 (first citing Cuddyer v. Stop &
Shop Supermarket. Co., 750 N.E.2d 928, 936–38 (Mass. 2001); and then citing Noviello v. City
of Bos., 398 F.3d 76, 86 (1st Cir. 2005)). “A plaintiff who seeks to derive the benefit of the
continuing violation doctrine bears the burden of establishing all three of its elements.” Id. at 34
(first citing Cuddyer, 750 N.E.2d at 941–42; and then citing Ocean Spray Crans., Inc. v. MCAD,
808 N.E.2d 257, 266–67 (Mass. 2004)).
1.

Anchoring Claim

Several of Plaintiff’s allegations are timely and could serve as anchoring claims,
including Anistasi’s hostility toward her and her being placed on a second performance plan.
“The anchoring conduct alone need not necessarily support her claim, but it must substantially
relate and contribute to the alleged course of discriminatory conduct.” Martin-Kirkland v.
United Parcel Serv., Inc., No. 03-4520H, 2006 WL 1110371, at *2 (Mass. Super. Ct. Apr. 11,

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2006), judgment entered, No. 03-4520H, 2007 WL 1385616 (Mass. Super. Ct. Jan. 8, 2007),
aff’d, 885 N.E.2d 175 (Mass. App. Ct. 2008) (citing Cuddyer, 750 N.E.2d at 938). The Court
must therefore determine whether those anchoring claims are sufficiently related to the
underlying discrimination claim to constitute a continuing violation.
2.

Series of Related Events

Plaintiff maintains that “the illegal acts were interrelated throughout Plaintiff’s
employment, and part of a ‘culture’ of such illegal conduct . . . .” [ECF No. 20 at 14]. In order
for a later allegation to anchor a claim for purposes of the continuing violation doctrine, the
anchoring claims must arise from “a series of related events that have to be viewed in their
totality in order to assess adequately their discriminatory nature and impact.” Shervin, 804 F.3d
at 34–35. “This anchoring event must be ‘substantially relate[d]’ to earlier instances of
discrimination or retaliation and must contribute to the continuation of the pattern of conduct that
forms the basis of the claim.” Id. (quoting Cuddyer, 750 N.E.2d at 938); see also Morin v.
Murida Furniture Co., No. 072441E, 2009 WL 6067021, at *5 (Mass. Super. Ct. Sept. 30, 2009)
(“If the alleged anchoring event is not substantially related to the earlier incidents, then the
plaintiff may not claim the benefit of the continuing violation doctrine.”).
Separate claims constitute a series of related events if, “when linked together, the
seemingly disparate incidents . . . show a prolonged and compelling pattern of mistreatment that
have forced a plaintiff to work under intolerable, sexually offensive, conditions.” Cuddyer, 750
N.E.2d at 937. In determining whether a series of events are sufficiently related,
[t]he trial court must simply address the question: ‘Is the subject matter of the
discriminatory acts sufficiently similar that there is a substantial relationship
between the otherwise untimely acts and the timely acts?’ And, then make the
inquiry: ‘Are the acts isolated and discrete or do they occur with frequency or
repetitively or continuously?’

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Brissette v. Franklin Cty., Sheriff’s Office, 235 F. Supp. 2d 63, 86–87 (D. Mass. 2003) (quoting
O’Rourke v. City of Providence, 235 F.3d 713, 731 (1st Cir. 2001) (emphasis in original)).
Plaintiff alleges that Johnson purposefully told Anistasi about her Internal Complaint so
that he would retaliate against her. [ECF No. 20 at 8]. Anistasi’s ongoing hostility towards her
therefore substantially relates to Johnson’s underlying retaliatory actions, which were the basis
of Plaintiff’s Internal Complaint. See Heywood v. Buckley, No. SUCV201603146A, 2017 WL
1838466, at *4 (Mass. Super. Ct. Mar. 28, 2017) (finding that, at the motion to dismiss stage,
dismissal is not warranted where the plaintiff sufficiently alleges facts that, “when viewed in
their totality, might reasonably suggest that the continuing violation doctrine applies”).
Additionally, Plaintiff claims that she was placed on a second performance plan as a continuation
of Align’s pattern of ridding itself of females over the age of forty, [ECF No. 20 at 6], which
could reasonably be considered substantially related to the first allegedly discriminatory
performance plan imposed by Johnson, and to the alleged pattern of placing females over forty
on performance plans with discriminatory animus, see Heywood, 2017 WL 1838466, at *4.
3.

Reason for Not Filing Earlier

Under Massachusetts law,
a plaintiff who demonstrates a pattern of sexual harassment that creates a hostile
work environment and that includes conduct within the . . . statute of limitations,
may claim the benefit of the continuing violation doctrine and seek damages for
conduct that occurred outside the limitations period, unless the plaintiff knew or
reasonably should have known that her work situation was pervasively hostile and
unlikely to improve, and, thus, a reasonable person in her position would have filed
a complaint with the MCAD before the statute ran on that conduct.
Cuddyer, 750 N.E.2d at 941–42. Because the applicability of the continuing violation doctrine
“depends on what the plaintiff knew or should have known and when, the application of the
continuing violation doctrine to a particular case frequently presents an issue of fact to be

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decided by the jury.” Chaffee v. Dep’t of Corr., No. 021908, 2006 WL 4114304, at *6 (Mass.
Super. Ct. Dec. 20, 2006) (citing Clifton v. Mass. Bay Transp. Auth., 815 N.E.2d 614, 622
(Mass. App. Ct. 2004), aff’d in part and rev’d in part on other grounds, 839 N.E.2d 314 (Mass.
2005)).
Plaintiff cites a number of reasons why she did not file her Complaint sooner. [ECF No.
20 at 13–14]. Whether or not these reasons establish that she knew or reasonably should have
known that her work situation was unlikely to improve is a question of fact to be decided by a
jury. See Vil v. PricewaterhouseCoopers LLP, No. 11-cv-10780, 2012 WL 3202852, at *10 (D.
Mass. Aug. 2, 2012) (“[P]laintiff’s allegations regarding conduct prior to [the limitations period]
may be actionable under chapter 151B in the event a jury could conclude that the delay in
initiating the suit was reasonable.”). Therefore, because Plaintiff has sufficiently alleged a
continuing violation, the Amended Complaint is timely under Chapter 151B.
B.

Gender and Age Discrimination (Counts I and II)

In the alternative, Defendants argue that, even if Plaintiff’s claims are timely, her gender
and age discrimination claims under Chapter 151B § 4(1), [Am. Compl. ¶¶ 96–116 (Counts I and
II)], fail because she has not pled facts sufficient to establish that she experienced an adverse
employment action. [ECF No. 18 at 14–17]. In order to plead a violation of Chapter 151B,
§ 4(1), Plaintiff must allege facts sufficient to demonstrate “(1) [that] she is a member of a
protected class, (2) [that] she suffered from an adverse employment action, (3) discriminatory
animus, and (4) a causal linkage between the discriminatory animus and the adverse employment
action.” Audette v. Town of Plymouth, 858 F.3d 13, 23 (1st Cir. 2017) (citing Lipchitz v.
Raytheon Co., 751 N.E.2d 360, 368 (Mass. 2001)). At the pleading state, a complaint need not
“lay[] out a fixed set of facts in support of [a plaintiff’s] claims of discrimination,” Posada v.

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ACP Facility Servs., 389 F. Supp. 3d 149, 159 (D. Mass. 2019) (citing Gorski v. N.H. Dep’t of
Corr., 290 F.3d 466, 474 (1st Cir. 2002)), nor “establish every element of the prima facie case,”
id. (citing Rodriguez-Vives v. P.R. Firefighters Corps of P.R., 743 F.3d 278, 286 (1st Cir.
2014)).
First, Plaintiff alleges that she was discriminated against on the basis of her gender and
age, both of which are protected classes under Chapter 151B. See Mass. Gen. Laws ch. 151B,
§ 4(1) (“It shall be an unlawful practice: 1. For an employer. . . because of the . . . gender identity
. . . of any individual . . . to discriminate against such individual . . . .” (emphasis added)); Mass.
Gen. Laws ch. 151B, § 4(1B) (“It shall be an unlawful practice: . . . . For an employer in the
private sector . . . because of the age of any individual . . . to discriminate against such individual
. . .” (emphasis added)). See, e.g., Bennett v. Saint-Gobain Corp., 453 F. Supp. 2d 314, 326 (D.
Mass. 2006) (“It is unlawful under both federal and Massachusetts law for an employer to
discharge an individual age 40 or older because of his age.”); Lipchitz, 751 N.E.2d at 368 (“It
was undisputed that [plaintiff] was a member of a protected class because she was a woman[.]”).
Second, Plaintiff has alleged facts sufficient to support an adverse employment action
because she “has alleged enough facts to state plausible claims for both hostile work
environment and retaliation . . . .” Posada, 389 F. Supp. 3d at 159; see also Noviello, 398 F.3d at
90–91 (finding that a retaliatory hostile work environment constitutes “an adverse employment
action cognizable under chapter 151B, § 4(4)”). Because Plaintiff has effectively pled that she
was retaliated against after filing her Internal Complaint, see discussion infra Section III.C., and
was subjected to a hostile work environment, see discussion infra Section III.D., she has likewise
sufficiently pled that she experienced an adverse employment action based on her gender and
age.

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Finally, with respect to discriminatory animus and causation, the “plaintiff must prove by
a preponderance of the credible evidence that the defendant’s discriminatory animus contributed
significantly to [the adverse employment] action, that it was a material and important ingredient
in causing it to happen . . . [though not necessarily] the only cause of that action.” Cariglia v.
Hertz Equip. Rental Corp., 363 F.3d 77, 84 (1st Cir. 2004) (quoting Lipchitz, 751 N.E.2d at 371
n.19 (internal citation omitted)). Plaintiff has alleged continuous hostility towards her by
Johnson and others based on her gender, including alleging that Johnson made “disparaging
statements about [her] being a working mother, questioning whether it was even appropriate for
her to work at all,” asking a colleague if her husband works and “disparag[ing] Plaintiff for not
fraternizing with the almost all-male sales force . . . because she did not like to play golf or stay
out after hours and drink.” [Am. Compl. ¶¶ 8–12]. More generally, Plaintiff claims that her
experience is just one example of the kind of retaliation and hostility faced by women over the
age of forty in a workplace that discriminated against women by “promot[ing], participat[ing] in,
and condon[ing] a spring break-like corporate culture of drunkenness and ‘womanizing’” in
which “senior male managers . . . openly made sexual overtures toward female employees. . . .”
[Id. ¶¶ 13–20]. Further, Plaintiff asserts that the Defendants routinely retaliated against women
over the age of forty in order to encourage them to resign and named ten female employees who
“were over the age of 50 when they were forced out of work” and “replaced by males or females
under the age of 30.” [Id. ¶¶ 27–40]. Thus, Plaintiff has sufficiently alleged facts to support her
claim that Defendants’ animus against older women was “a material and important ingredient in
causing” her adverse employment action. See Cariglia, 363 F.3d at 84.
“A work environment pervaded by harassment or abuse” that causes “intimidation,
humiliation, and stigmatization” constitutes employment discrimination under Chapter 151B,

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which encompasses a “broad sweep of . . . conduct . . . .” College-Town, Div. of Interco, Inc. v.
Mass. Comm’n Against Discrimination, 508 N.E.2d 587, 591 (Mass. 1987). Here, Plaintiff has
adequately alleged both gender and age-based discrimination under the “broad sweep” of the
conduct covered by Chapter 151B. See id. “Further facts in support of her claims of
discrimination may be developed later through discovery.” Posada, 389 F. Supp. 3d at 159.
C.

Retaliation and Retaliatory Hostile Work Environment (Counts III and VI)

Plaintiff alleges that Defendants violated Chapter 151B by retaliating against her (Count
III), [Am. Compl. ¶¶ 117–28], and subjecting her to a retaliatory hostile work environment
(Count VI), [id. ¶¶ 139–43]. Chapter 151B provides that it is unlawful “[f]or any person [or]
employer . . . to discharge, expel or otherwise discriminate against any person because he has
opposed any practices forbidden under” Chapter 151B, § 4(4), “or [f]or any person to coerce,
intimidate, threaten, or interfere with another person in the exercise or enjoyment of any right
granted or protected by” Chapter 151B, § 4(4A). Bennett, 453 F. Supp. 2d at 331 (quoting Mass.
Gen. Laws ch. 151B, §§ 4(4), 4(4A)) (internal quotation marks omitted). Defendants argue that
Plaintiff’s claims of retaliation and retaliatory hostile work environment fail because she has not
alleged that she experienced an adverse employment action. [ECF No. 18 at 14–16].
“[I]n order to establish a prima facie case of retaliation under [the] Massachusetts antidiscrimination statute, [a plaintiff] ‘must show that (1) [s]he engaged in protected activity; (2)
[s]he suffered an adverse employment action; and (3) a causal link existed between the protected
activity and the adverse job action.’” Fantini v. Salem State Coll., 557 F.3d 22, 35 (1st Cir.
2009) (quoting Thompson v. Coca-Cola Co., 522 F.3d 168, 181 (1st Cir. 2008)). At the pleading
stage, the burden “is not intended to be onerous and the plaintiff need not establish every element

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of the prima facie case. . . .” Posada, 389 F. Supp. 3d at 157–58 (citing Sullivan v. Liberty Mut.
Ins. Co., 825 N.E.2d 522, 530 (Mass. 2005)).
1.

Engagement in Protected Activity

“Pursuant to Mass. Gen. Laws ch. 151B, § 4(4), [a plaintiff] engages in a protected
activity ‘if she has opposed any practices forbidden under this chapter or . . . has filed a
complaint, testified or assisted in any proceeding under [Mass. Gen. Laws ch. 151B, § 5].’”
Fantini, 557 F.3d at 36 (quoting Mass. Gen. Laws ch. 151B, § 4(4)). “Protected conduct may
include filing a formal complaint of sexual harassment, ‘complaining to management or filing an
internal complaint of harassment, or meeting with co-workers to discuss how to stop sexual
harassment in the workplace.’” Youngblood v. City of Bos. Pub. Sch., No. SUCV201500309C,
2016 WL 7189833, at *6 (Mass. Super. Ct. Oct. 31, 2016) (quoting Ritchie v. Dept. of State
Police, 805 N.E.2d 54, 62 (Mass. App. Ct. 2004)). Here, Plaintiff clearly engaged in protected
conduct in 2014 when she utilized Align’s internal discrimination reporting procedure to file her
Internal Complaint. [Am. Compl. ¶¶ 41–53].
2.

Adverse Employment Action

Defendants argue that the Amended Complaint “does not allege any adverse employment
action that materially affected Plaintiff’s employment relationship, such as a demotion, reduction
in pay, or termination of employment . . . .” [ECF No. 18 at 15]. Plaintiff responds that the
adverse actions that resulted from her internal discrimination charge included: Johnson
disparaging Plaintiff for having complained to Align’s HR Director; Johnson revealing
Plaintiff’s Internal Complaint to Anistasi; Anistasi and Johnson subjecting Plaintiff to hostile
actions and a hostile environment; the HR Director failing to keep Plaintiff’s Internal Complaint
confidential; Johnson, the HR Director, and other Align staff failing to take adequate steps to

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prevent Johnson and Anistasi from subjecting Plaintiff to reprisals on the basis of a confidential
matter; the Northeast Director of Sales giving Plaintiff a poor review without justification; and
cumulative illegal conduct that resulted in her constructive discharge. [Am. Compl. ¶¶ 54, 90,
121, 123, 125, 126, 128].
“[A] claim of retaliation under G.L. c. 151B, § 4(4) or (4A) . . . is satisfied merely by a
showing that some detrimental action occurred in response to the employees’ assertion of
protected rights.” King v. City of Bos., 883 N.E.2d 316, 327 n.11 (Mass. App. Ct. 2008) (citing
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 58, 63–64 (2006)). An adverse
employment action must result in “real harm, as opposed to [Plaintiff’s] subjective feelings of
disappointment and disillusionment.” MacCormack v. Bos. Edison Co., 672 N.E.2d 1, 9 (Mass.
1996). “An employment action is adverse if it would have dissuaded a reasonable worker from
engaging in protected activity, such as making a charge of discrimination.” Posada, 389 F. Supp.
3d at 158 (citing Rodriguez-Vives, 743 F.3d at 284–85). Examples of adverse employment
actions include “assign[ment] of disparate work from similarly situated co-workers” and
“subject[ion] . . . to a hostile work environment . . . .” Id. (first citing Rodriguez-Vives, 743 F.3d
at 285–86; and then citing Noviello, 398 F.3d at 89–91). A plaintiff does not have to allege “to
have been fired, demoted, lost wages or salary, been denied benefits or transferred” to establish
that she experienced a “material disadvantage”; rather, an employee is retaliated against “when
objective aspects of the work environment are affected.” Youngblood, 2016 WL 7189833, at *6.
“[U]nder Massachusetts law as under Title VII, subjecting an employee to a hostile work
environment in retaliation for protected activity constitutes an adverse employment action (and,
thus, triggers the statutory prophylaxis).” Noviello, 398 F.3d at 91. “[W]orkplace harassment, if
sufficiently severe or pervasive, may in and of itself constitute an adverse employment action

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sufficient to satisfy the second prong . . . .” Id. at 89. “[R]udeness or ostracism, standing alone,
usually is not enough to support a hostile work environment claim.” Id. at 92 (citing Manatt v.
Bank of Am., 339 F.3d 792, 803 (9th Cir. 2003)). “[O]nly those actions, directed at a
complainant, that stem from a retaliatory animus . . . may be factored into the hostile work
environment calculus.” Id. at 93.
Determining the existence of an actionable hostile work environment “requires the trier
of fact to assess the matter on a case-by-case basis, weighing the totality of the circumstances.”
Id. at 94 (citing Lipsett v. Univ. of P.R., 864 F.2d 881, 898 & n.18 (1st Cir. 1988)). “That a
series of minor retaliatory actions may, when considered in the aggregate, satisfy the . . . prima
facie ‘adverse action’ requirement, is settled law in this Circuit.” Votolato v. Verizon New
England, Inc., No. 16-cv-11663, 2018 WL 4696743, at *6 (D. Mass. Oct. 1, 2018) (emphasis
omitted) (quoting Alvarado v. Donahoe, 687 F.3d 453, 458–59 (1st Cir. 2012)).
The allegations in the Amended Complaint, taken as true for purposes of considering the
motion to dismiss, “would permit . . . a reasonable jury to find that the plaintiff was subjected to
a retaliation-based hostile work environment.” Noviello, 398 F.3d at 93. Plaintiff contends that
Johnson illegally revealed her Internal Complaint to Anistasi so that Anistasi would retaliate
against her. [Am. Compl. ¶ 79]. As a result, Plaintiff alleges that Anistasi subjected her to years
of harsh treatment, including refusing to work on a project together, [id. ¶ 78], not returning
Plaintiff’s phone calls, [id. ¶ 56], shunning Plaintiff at company events, [id.], causing Plaintiff
humiliation by telling her to apologize to coworkers for incidents those coworkers did not think
warranted apology, [id. ¶ 63], falsely telling Plaintiff that customers and coworkers did not like
her, [id. ¶¶ 64–66], telling Plaintiff that she was a “horrible person,” [id. ¶ 689], and chastising
Plaintiff for filing her Internal Complaint, [id. ¶ 69]. Plaintiff has therefore alleged facts

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sufficient to establish that she was subjected to a hostile work environment by the Defendants
arising out of retaliation for her Internal Complaint against Johnson. 1
3.

A Causal Link Between the Protected Activity and the Adverse Job Action

Retaliation requires a “but-for causal connection between the protected activity and the
adverse employment action.” Posada, 389 F. Supp. 3d at 158 (citing Univ. of Tex. Sw. Med. Ctr.
v. Nassar, 570 U.S. 338, 362 (2013)). While “mere temporal proximity . . . is usually not
enough,” it is sufficient if “the plaintiff can also prove that the individual knew of the protected
conduct when he or she engaged in the adverse action.” Id. (citing Pomales v. Celulares
Telefonica, Inc., 447 F.3d 79, 85 (1st Cir. 2006)). Plaintiff contends that Johnson revealed the
contents of her Internal Complaint to Anistasi in hopes that Anistasi would retaliate against her.
[Am. Compl. ¶ 79]. The adverse actions referenced above were plausibly in response to the
Internal Complaint filed by Plaintiff, and therefore adequately allege but-for causation.
Plaintiff has stated a claim for retaliation and a retaliatory hostile work environment
because she has sufficiently pled that she engaged in a protected activity by filing the Internal
Complaint; that she suffered an adverse employment action in the hostile work environment
subsequently created by Johnson and Anistasi; and that that hostile work environment was
causally linked to the Internal Complaint.

1

Though Plaintiff alleges facts that support her claim of constructive discharge, [Am. Compl.
¶¶ 97–116], the Court need not determine whether those allegations are alone sufficient to state a
claim for retaliation based on constructive discharge, because Plaintiff has sufficiently alleged
facts to support her claim that retaliation, retaliatory hostile work environment, and hostile work
environment constituted “adverse action.” See Johnson v. Amherst Nursing Home, Inc., No. 14cv-30100, 2015 WL 4750932, at *8 (D. Mass. Aug. 11, 2015) (explaining that a “[p]laintiff is
not required to establish a constructive discharge with regard to her retaliation claims . . . and the
court will not decide whether the facts alleged rise to that level.”)
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D.

Hostile Work Environment (Counts IV and V)

In Counts IV and V, Plaintiff claims that the Defendants subjected her to a hostile work
environment on the bases of gender and age, respectively. [Am. Compl. ¶¶ 129–138].
Defendants claim that Plaintiff has failed to allege that she was subjected to severe and pervasive
harassment that would constitute a hostile work environment. [ECF No. 18 at 17–18]. Plaintiff
maintains that her claims, when viewed together, were “pervasive” and “unreasonably and
significantly interfered with her employment.” [ECF No. 20 at 19–20].
An “abusive or hostile work environment” violates the statutory prohibition on
discrimination of protected classes. See Posada, 389 F. Supp. 3d at 157 (citing ValentinAlmeyda v. Municipality of Aguadilla, 447 F.3d 85, 94 (1st Cir. 2006)). Assessment of
“whether a work environment is hostile requires a fact-specific analysis of 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.’” Dexter v. Dealogic, LLC, 390 F. Supp. 3d 233, 243 (D. Mass. 2019) (quoting
Thompson, 522 F.3d at 180)). For a plaintiff to plead a viable claim for a hostile work
environment, “[t]he alleged conduct must be ‘sufficiently severe or pervasive to alter the
conditions of the victim’s employment and create an abusive working environment.’” Allard v.
Citizens Bank, 608 F. Supp. 2d 160, 166 (D. Mass. 2009) (quoting Oncale v. Sundowner
Offshore Servs., Inc., 523 U.S. 75, 78 (1998)). Though a single incident is generally insufficient
to establish that a work environment was hostile, one incident, if particularly egregious, may be
sufficient. Posada, 389 F. Supp. 3d at 157.
There are two components to the hostile work environment inquiry: subjective and
objective. Allard, 608 F. Supp. 2d at 166. For the subjective component, “the plaintiff must

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demonstrate that she actually perceived the environment to be hostile or abusive as a result of the
defendant’s conduct.” Id. For the objective component, a plaintiff must demonstrate that the
“alleged conduct was sufficiently severe or pervasive that a reasonable person would perceive
the environment to be hostile or abusive.” Id. (citing Harris v. Forklift Sys., Inc., 510 U.S. 17,
21–22 (1993)).
With regard to the subjective component, Plaintiff has described in detail the distress she
experienced as a result of what she felt was hostile and abusive behavior from the Defendants.
The Amended Complaint includes the Internal Complaint she made to Align about Johnson’s
behavior, in which she made statements such as “[w]orking under unnecessary pressure has put
me under duress and it’s a terrible way to feel. I have been bullied emotionally and . . . I have
endured this for 2 to 3 years and am at my breaking point.” [ECF No. 16-1 at 13]. Plaintiff also
wrote in the Internal Complaint that she “underst[oo]d the pressure that is inherent in [her] role
[in sales],” but that “[t]he added and undue pressure . . . caused an added burden to [her]
professionally and . . . spilled over into [her] personal life,” including increased anxiety that
disrupted her sleep patterns. [Id. at 3]. 2
As to the objective component, “the plaintiff must show that the alleged conduct was
sufficiently severe or pervasive that a reasonable person would perceive the environment to be
hostile or abusive.” Allard, 608 F. Supp. 2d at 166. “[T]aunting in relation to” an internal
discrimination charge and “open and direct hostility clearly based on protected status” are
evidence of hostile work environment and retaliatory harassment. Noviello, 398 F. 3d at 93–94
(first citing Marrero v. Goya of P.R., Inc., 304 F.3d 7, 26 (1st Cir. 2002); and then citing Oncale,

2

Because Plaintiff’s claims are not time-barred, see discussion supra at Section III.A, the Court
may consider all of the allegedly abusive and harassing behavior outlined by Plaintiff in the
Amended Complaint, including those that occurred prior to 2016.
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523 U.S. at 80). In Posada v. ACP Facility Services, for example, the court found that the
plaintiff had stated a plausible claim that the alleged conduct was objectively offensive because
“a reasonable person would feel intimidated by threats of a co-worker and humiliated and
demeaned by embarrassing comments made or disparate work assigned by a supervisor,”
especially when considering “the cumulative effect of that intimidation [and humiliation] . . . .”
Posada, 389 F. Supp. 3d at 159.
Plaintiff has stated a plausible claim that a reasonable person would feel humiliated and
demeaned by the facts alleged. For example, in a 2014 performance review, Johnson wrote:
“Your consistent inability to succeed over the last two years has kept your territory from growing
at the level that is expected of you, thus impacting the success of your Territory, the New
England Region, the Northeast Area and the entire company.” [ECF No. 16-1 at 2]. Yet, in her
Internal Complaint, Plaintiff provided statistical data that directly contradicted Johnson’s
statements about her performance. [Id. at 4–8]. Further, Plaintiff has alleged that Defendants
made inappropriate statements about her being a working mother, made sexual advances on
female employees, and forced women over the age of forty to resign by purposefully creating an
unsupportive and hostile environment in order to replace them with men under the age of thirty.
[Am. Compl. ¶¶ 8–40].
Viewing the allegations in the light most favorable to the Plaintiff, a reasonable person
would perceive the environment created by Johnson to be humiliating, demeaning, and hostile,
with the continuously hostile environment arising directly out of the protected action of filing her
Internal Complaint. The “cumulative effect” of the intimidation and humiliation, Posada, 389 F.
Supp. 3d at 159, provide sufficient objective evidence of a hostile work environment.

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Therefore, the Amended Complaint sufficiently states a claim of hostile work
environment on the basis of Plaintiff’s age and gender.
IV.

CONCLUSION
Accordingly, Defendants’ motion to dismiss the Amended Complaint for Plaintiff’s

alleged failure to file her action within the statute of limitations and failure to plead facts
sufficient to state a claim, [ECF No. 17], is DENIED.
SO ORDERED.
July 7, 2020

/s/ Allison D. Burroughs
ALLISON D. BURROUGHS
U.S. DISTRICT JUDGE

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