DiAugustino v. New Penn Motor Express, Inc. et al

Filing 60

Magistrate Judge Kenneth P. Neiman: ORDER entered. MEMORANDUM AND ORDER WITH REGARD TO DEFENDANT'S 33 MOTION FOR SUMMARY JUDGMENT, for the reasons stated, Defendants New Penn Motor Express, Inc. and Michael Lacy's Motion for Summary Judg ment is GRANTED as to Counts I, II, IV, V,and VI. Defendants' motion is also GRANTED with respect to Count III to the extent that claim is based on a hostile work environment, but DENIED insofar as the claim is grounded on a failure to promote and termination from employment. Accordingly, New Penn is the only defendant against whom the case will go forward at trial. See attached memorandum and order for complete details. (Calderon, Melissa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

LISA DIAUGUSTINO,

)
)
Plaintiff
)
)
v.
)
)
NEW PENN MOTOR EXPRESS, INC., )
and MICHAEL LACY
)
)
Defendants
)

Civil Action No. 13-30140-KPN

MEMORANDUM AND ORDER WITH REGARD TO
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
(Document No. 33)
October 30, 2014
NEIMAN, U.S.M.J.
New Penn Motor Express, Inc. (“New Penn”) and Michael Lacy (“Lacy”)
(together, “Defendants”) have jointly moved for summary judgment with respect to all
aspects of Lisa DiAugustino (“Plaintiff”)’s employment discrimination complaint. The
complaint raises claims of sexual harassment, sex/gender discrimination, and retaliation
pursuant to M.G.L. c. 151B.
On October 24, 2014, the court held a hearing on Defendants’ motion and
granted it in part and denied it in part. The court now issues this memorandum to
memorialize and explain its ruling in more detail. The parties have consented to the
jurisdiction of this court pursuant to 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73.
1.
As an initial matter and as indicated at the hearing, the court has not considered
any of Plaintiff’s allegations of harassment by other New Penn employees beyond those
facts alleged with respect to Lacy himself. As Defendants correctly point out, no such

allegations were within the scope of Plaintiff's initial charges of discrimination with the
Equal Employment Opportunity Commission (“EEOC”) and the Massachusetts
Commission Against Discrimination (“MCAD”) and, therefore, are not properly before
this court. See Pelletier v. Town of Somerset, 939 N.E.2d 717, 727 (Mass. 2010)
(“Whether elements of a claim fall within the scope of an MCAD investigation presents a
question of law for judicial determination.”). Simply stated, Plaintiff’s initial charges
contained no reference to any employee other than Lacy. See Ianetta v. Putnam Invs.,
Inc., 142 F. Supp. 2d 131, 134 (D. Mass. 2001) (“An employment-discrimination
complaint is limited to the charges filed before the EEOC/MCAD and to all claims
reasonably within the scope of the agency’s investigation.”). Indeed, Plaintiff also failed
to allege any such facts with respect to other employees in her complaint in this forum.
Accordingly, Plaintiff cannot now rely upon allegations against other employees in
support of her sexual harassment, sex/gender discrimination, and retaliation claims
against New Penn. See Furtado v. Standard Parking Corp., 820 F. Supp. 2d 261, 274275 (D. Mass. 2011). Consequently, her claims against Defendants may be grounded
only on Lacy’s alleged conduct.
2.
Plaintiff has asked the court to conclude for present purposes that (a) Lacy’s
alleged conduct, both within and outside the applicable 300-day limitations period,
amounted to sexual harassment and that (b) such conduct was part of a continuing
violation. See Pelletier, 939 N.E.2d at 731; 804 C.M.R. § 1.10(2). The court is not
persuaded in either respect. First, the “get naked” incident - - the more crucial incident
of those alleged during the limitations period - - occurred approximately fourteen months

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after the “Oreo” and “nice skirt” comments, which predate the 300-day limitations period.
Given both the significant gap in time and the disparate nature of the comments
themselves, the timely acts do not have a “substantial relationship” to the alleged
untimely acts to establish a continuing violation. See Ocean Spray Cranberries, Inc. v.
Massachusetts Comm’n Against Discrimination, 808 N.E. 2d 257, 266 (Mass. 2004)
(“[A] complainant must ordinarily prove that . . . the alleged timely discriminatory acts
have a substantial relationship to the alleged untimely discriminatory acts.”). Second, in
light of both the fourteen-month gap and the infrequency of the incidents themselves,
Plaintiff has failed to demonstrate that her environment was “pervasively hostile.”
Pelletier, 939 N.E. 2d at 731. Indeed, Plaintiff does not dispute the fact that, after her
December 15, 2010 complaint to her superior, Lacy did not engage in any further
harassing conduct until February 2012.
Third, and perhaps most importantly, Plaintiff would have had reason to believe
that her situation was “unlikely to improve,” thereby prompting her to pursue a charge
against Defendants for Lacy’s earlier remarks. Id. In her own Statement of Facts,
Plaintiff asserts that her supervisor, Paul Dubiel (“Dubiel”), did not respond to her
December 15, 2010 complaint about Lacy, merely “asked [her] what she wanted him to
do about the sexual harassment but then did not listen to [her] response,” and “never
followed up with [her] regarding her complaint.” (Pl’s SOF ¶¶ 63-64.) Given those facts,
“a reasonable person in her position would have filed a complaint with the MCAD before
the statue ran on that conduct.” Cuddyer v. Stop & Shop Supermarket, Co., 750 N.E.
2d 928, 942 (Mass. 2001). There being no continuing violation, the court need only
consider the conduct alleged to have occurred during the 300-day limitations period,

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November 22, 2011, through September 17, 2012. See M.G.L. c. 151B, § 5; Ocean
Spray Cranberries, Inc., 808 N.E.2d at 265.
3.
Unfortunately for her cause, Plaintiff presents no genuine issue of material fact
with which a reasonable jury could find, with respect to the limitations period,
“sufficiently severe and pervasive” harassment supportive of the hostile work
environment claims she pursues against both New Penn (Count I) and Lacy (Count IV).
Muzzy v. Cahillane Motors, Inc., 749 N.E. 2d 691, 694 (Mass. 2001) (“To sustain [her]
burden, [the plaintiff] needed to establish that the conduct alleged was sufficiently
severe and pervasive to interfere with a reasonable person's work performance.”). First,
with regard to comments Lacy allegedly made about his wife’s illness, Plaintiff has failed
to proffer sufficient evidence demonstrating that the comments had sexually harassing
overtones or were directed at Plaintiff and/or her gender. Indeed, Plaintiff concedes that
Lacy freely made similar comments to groups of other individuals.
Second, with regard to the so-called "get naked" incident in February of 2012 - when Lacy allegedly told Plaintiff that she should “get naked” for what he was about to
say, namely, that he would be leaving New Penn’s employ in two weeks - - the court
finds it insufficiently egregious to singularly sustain a claim of sexual harassment in the
workplace. While a single incident may occasionally form the basis for a hostile work
environment, see Cuddyer, 750 N.E. 2d at 941 n.21, the court is not convinced here that
the “effects” of the “get naked” comment, whatever it means, were at all “profound.”
Morehouse v. Berkshire Gas Co., 989 F.Supp. 54, 62 (D. Mass. 1997) (discussing
sufficiently egregious instance of single episode of harassment where defendant

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“superimposed the face of his female [colleague] onto pornographic photos of women
and distributed the composite pictures to four or five co-workers”). In fact, Plaintiff and
Lacy not only continued to converse minutes later but Plaintiff, supportively, asked him
why he was not taking a medical leave and applying to work at a New Penn facility
closer to his home. (Defs’ SOF ¶ 22.d.) This is hardly a building block of a sexual
harassment claim. Thus, the court has little choice but to conclude, as a matter of law,
that Lacy’s conduct within the 300-day limitations period did not amount to actionable
sexual harassment. See Noviello v. City of Boston, 398 F.3d 76, 92 (1st Cir. 2005) (“In
determining whether a reasonable person would find particular conduct hostile or
abusive, a court must mull the totality of the circumstances, including 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.”) (internal quotation marks omitted);
Cuddyer, 750 N.E. 2d at 937 (“A hostile work environment is one that is pervaded by
harassment and abuse, with the resulting intimidation, humiliation, and stigmatization,
and that poses a formidable barrier to the full participation of an individual in the
workplace.”) (internal quotation marks omitted). Accordingly, summary judgment shall
enter for Defendants on Counts I and IV.
4.
Plaintiff’s separate claims of “sex/gender discrimination and harassment” against
New Penn (Count II) and Lacy (Count V), which the court understands to be inextricably
tied to her sexual harassment claims, cannot succeed for the same reasons set forth
above. Relatedly, to the extent that Plaintiff’s retaliation claims against New Penn

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(Count III) and Lacy (Count VI) are contingent on Lacy’s conduct, those claims must fail
as well. The only conduct that occurred subsequent to Plaintiff’s December 15, 2010
complaint and, therefore, might be considered adverse or retaliatory are the “get naked”
incident and comments about his wife’s illness. As described, however, such comments
cannot be said to rise to the level of a hostile work environment. See Noviello, 398 F.3d
at 92 (“An allegedly retaliatory act must rise to some level of substantiality before it can
be actionable.”). Accordingly, Defendants are entitled to summary judgment on Count
VI, said Count targeting Lacy only, and Count III, to the extent that claim against New
Penn is based on Lacy’s conduct. The remaining part of Count III is addressed next.
5.
Defendants, the court finds, have not met their summary judgment burden with
respect to those parts of Plaintiff’s remaining retaliation claim against New Penn, i.e.,
failure to promote and retaliatory discharge. Plaintiff, as an initial matter, has proffered
sufficient evidence to establish a prima facie case of retaliation on both grounds, in that
she engaged in protected activity, suffered an adverse action, and a causal connection
may well exist between the two. Psy-Ed Corp. v. Klein, 947 N.E. 2d 520, 530 (Mass.
2011); see also Rivera-Colon v. Mills, 635 F.3d 9, 12 (1st Cir. 2011). Further, when
viewing the facts in a light most favorable to Plaintiff, the court finds genuine issues of
material fact as to whether New Penn’s proffered reasons for failing to promote her to
Operations Supervisor and for terminating her employment were “pretext masking
retaliation.” Wright v. CompUSA, Inc., 352 F.3d 472, 478 (1st Cir. 2003). These facts
include but are not limited to Dubiel’s failure to respond to Plaintiff’s December 15, 2010
complaint about Lacy (Pl’s SOF ¶¶ 63-64), Dubiel’s knowledge that she applied for the

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Operations Supervisor position two months after her complaint (Pl’s Ex. J p. 77),
Dubiel’s oversight of the hiring process (Id.), and his decision to terminate Plaintiff’s
employment two days after he became aware that she sent a text message to another
supervisor stating that she had been subjected to harassment and discrimination.
(Defs’ SOF ¶¶ 37-38, 41.) See Mendes v. Medtronic, Inc., 18 F.3d 13, 15 (1st Cir.
1994) (at summary judgment, the non-moving party bears the burden of placing at least
one material fact into dispute after the moving party shows the absence of any disputed
material fact). In short, it is unclear at this stage of the proceedings whether New
Penn’s desire to retaliate against Plaintiff, if any, was a “determinative factor” in its
decision to take adverse action. See Psy-Ed Corp., 947 N.E. 2d at 530. Accordingly,
Defendants’ motion for summary judgment as to Count III shall be denied with respect
to the failure to promote and retaliatory discharge claims.
ORDER
For the foregoing reasons, Defendants New Penn Motor Express, Inc. and
Michael Lacy’s Motion for Summary Judgment is GRANTED as to Counts I, II, IV, V,
and VI. Defendants’ motion is also GRANTED with respect to Count III to the extent
that claim is based on a hostile work environment, but DENIED insofar as the claim is
grounded on a failure to promote and termination from employment. Accordingly, New
Penn is the only defendant against whom the case will go forward at trial.
IT IS SO ORDERED.
DATED: October 30, 2014

/s/ Kenneth P. Neiman
KENNETH P. NEIMAN
U.S. Magistrate Judge

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