Cagle v. Estes et al

Filing 43

Magistrate Judge Katherine A. Robertson: MEMORANDUM AND ORDER entered. For the foregoing reasons, the Court denies Defendant BHN's Motion to Dismiss (Dkt. No. 10). The Clerk's Office is directed to schedule a Rule 16 Initial Scheduling Conference at the earliest date convenient to Counsel and the Court. (Finn, Mary)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
TAMMY CAGLE,
Plaintiff,
v.

THOMAS ESTES & BEHAVIORAL HEALTH
NETWORK, INC.
Defendants.

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) Civil Action No. 3:18-cv-10123-KAR
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MEMORANDUM OF DECISION AND ORDER REGARDING DEFENDANT
BEHAVIORAL HEALTH NETWORK'S MOTION TO DISMISS FOR FAILURE TO STATE
A CLAIM
(Dkt. No. 10)
ROBERTSON, U.S.M.J.
I.

INTRODUCTION

Plaintiff Tammy Cagle ("Plaintiff") alleges that Thomas Estes ("Estes") and Behavioral
Health Network ("BHN") created a hostile work environment in violation of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII") and Mass. Gen. Laws ch.
151B ("Chapter 151B"). BHN has moved to dismiss the claims against it pursuant to Fed. R.
Civ. P. 12(b)(6), arguing that Plaintiff has failed to state a claim upon which relief can be
granted. The parties have consented to this court's jurisdiction. See 28 U.S.C. § 636(c) and Fed.
R. Civ. P. 73. For the reasons that follow, BHN's motion to dismiss is DENIED.
II.

BACKGROUND

A.

Facts

To evaluate a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the court must "accept as
true all well-pleaded facts alleged in the complaint and draw all reasonable inferences therefrom

1

in the pleader’s favor." A.G. ex rel. Maddox v. v. Elsevier, Inc., 732 F.3d 77, 80 (1st Cir. 2013)
(quoting Santiago v. Puerto Rico, 655 F.3d 61, 72 (1st Cir. 2011)). The complaint's factual
allegations are recited according to this standard. 1
Plaintiff's complaint is based on the alleged conditions of her employment as a specialty
court clinician assigned to the drug court session that was established in the Pittsfield Division of
the District Court Department of the Massachusetts Trial Court ("drug court") (Dkt. No. 1 ¶¶ 22,
28, 32). Drug courts are "diversionary courts" that were established to reduce recidivism by
defendants with substance abuse challenges by providing them "with increased access and
linkage to treatment and community resources" (id. ¶ 8). Drug courts employ a team approach to
accomplish their goals (id. ¶ 9). The presiding judge leads the team, which normally includes a
specialty court clinician in addition to a probation officer, drug court coordinator, clerk,
prosecutor, defense attorney, treatment provider, and law enforcement representative (id. ¶¶ 9,
10, 14). The judge assembles regular staff meetings during which the team reviews drug court
participants' progress and needs (id. ¶ 13). The drug court judge, in collaboration with the team
members, "decides whether a particular criminal defendant is eligible to participate in drug court,
crafts treatment plans for drug court defendants, and makes the ultimate decisions in drug court
cases, including the imposition of incentives or sanctions" (id. ¶ 12).

1

The facts are taken from the complaint, Dkt. No. 1. BHN submitted the affidavit of Juliana
Reiss, Psy.D., in support of its motion to dismiss (Dkt. No. 11-1). Plaintiff asked the court to
strike the affidavit (Dkt. No. 20 at 1). A court addressing a Rule 12(b)(c) motion is permitted to
consider "documents the authenticity of which are not disputed by the parties; . . . official public
records; . . . documents central to plaintiffs' claim; or . . . documents sufficiently referred to in
the complaint" without converting the motion into one for summary judgment. Watterson v.
Page, 987 F.2d 1, 3 (1st Cir. 1993). Because Reiss' affidavit does not fit within any of these
categories, the court disregards it and has not accepted or addressed BHN's arguments to the
extent its arguments are based on the affidavit.
2

During staff meetings, the specialty court clinician recommends "appropriate treatment
options to the judge" and "inform[s] the drug court team on clinical perspectives" (id. ¶ 21). The
Trial Court Department had an interagency service agreement with the Department of Mental
Health ("DMH") to place clinical professionals in the specialty courts (id. ¶ 16). The specialty
court clinicians worked through the DMH Court Clinic system and were paid through a grant
funded by DMH and the Trial Court Department (id. ¶¶ 15, 20).
The Pittsfield District Court received funding to establish a drug court in 2016 (id. ¶ 22).
Estes, who was the First Justice of the Eastern Hampshire Division of the District Court
Department of the Trial Court in Belchertown, was appointed as the presiding justice of the
Pittsfield drug court (id. ¶ 23, 24). As the presiding justice and the Pittsfield drug court team's
leader, Estes oversaw the drug court's development, presided over the sessions when the court
opened, established work schedules, and set the dates, times, places, and agendas for the drug
court team's meetings (id. ¶¶ 24, 33, 34). He worked one day a week in Pittsfield, where he
shared a lobby with another judge who was assigned to Pittsfield, and retained his position as the
First Justice of the Eastern Hampshire District Court along with his chambers in Belchertown
(id. ¶¶ 24, 25, 26).
DMH subcontracted with BHN to provide a specialty court clinician to the Pittsfield drug
court (id. ¶¶ 17, 18). Plaintiff, who was a licensed social worker, applied to BHN for the
position of specialty court clinician for the court (id. ¶ 27). On June 24, 2016, Dr. Welli Yeh, the
program director of BHN's adult court clinics, notified Plaintiff that she was authorized to hire
Plaintiff as a specialty court clinician subject to Estes' approval (id. ¶¶ 19, 28). In July 2016,
Estes approved Plaintiff's hire after he met her and Dr. Yeh in his Belchertown chambers (id. ¶
29, 30). Plaintiff began working as a member of the drug court team on July 18, 2016 (id. ¶¶ 31,

3

32). Her office was in the Pittsfield District Court (id. ¶ 35). Estes was Plaintiff's sole
supervisor in the drug court from July 2016 through November 2016 (id. ¶ 42). From December
2016 through March 2017, he was her only "consistent" supervisor (id.).
In approximately August 2016, Estes told Plaintiff that if she "'needed anything'" or
wished to "'vent,'" she could speak to him in his Belchertown chambers (id. ¶ 36). Thereafter, he
directed her to meet with him alone at that location (id. ¶ 37). Plaintiff alleges, upon information
and belief, that she was the only drug court team member who met privately with Estes in his
Belchertown chambers (id. ¶ 38). During these meetings, Estes "offered [Plaintiff] a sympathetic
ear" regarding her attempts to get the probation department to accept best practices for the drug
court and he expressed his satisfaction with their meetings (id. ¶¶ 39, 40). He voiced
disappointment when they missed a meeting (id. ¶ 40).
The Pittsfield drug court opened in October 2016 (id. ¶ 41). The weekly court sessions
were usually held on Thursday mornings (id.).
On or about November 16, 2016, Plaintiff, Estes, and other members of the Pittsfield
drug court team attended a two-day conference (id. ¶ 46). Estes, Plaintiff, and other team
members drank alcohol during the cocktail hour after the first day of the conference (id. ¶ 47).
They continued drinking during dinner at the hotel restaurant (id. ¶ 48). After dinner, Estes and
Plaintiff remained at the table while other members of the team retired to the hotel bar (id. ¶ 49).
Before Estes and Plaintiff joined the other team members at the bar, Estes "began looking at
Plaintiff suggestively and suddenly reached out and began rubbing her arm. He told her that she
was 'adorable' and 'attractive'" (id. ¶¶ 51, 52). Plaintiff dismissed his overtures (id. ¶ 52).
After Estes and Plaintiff retired to their respective hotel rooms, Plaintiff sent Estes a text
message asking for his assistance with her television remote control (id. ¶¶ 53-59). Estes came

4

to her room and fixed the television (id. ¶ 60). He then "sat on the bed, crossed his legs, closed
his eyes, and appeared to be falling asleep" (id. ¶ 61). Plaintiff, who was wearing a t-shirt and
sweatpants, lay on the bed and watched television (id. ¶ 62). Estes suddenly stood up, began
undressing, reclined next to Plaintiff on the bed, kissed her, pulled down his boxer shorts, and
forced Plaintiff to fellate him (id. ¶¶ 63-66). After he was satisfied, he dressed and told Plaintiff
that he had to go to his room (id. ¶ 68).
Plaintiff left the conference early the next day "because she felt uncomfortable, ashamed,
and confused" about the events that had transpired with Estes in her hotel room on the previous
night (id. ¶ 69). Estes called her on November 18 to discuss what had occurred (id. ¶ 70). Both
parties acknowledged that alcohol had fueled their sexual encounter (id. ¶ 71). They agreed not
to engage in sexual acts again (id.). Plaintiff expressed her desire to maintain a professional
working relationship (id. ¶ 72). Estes allegedly responded that their working relationship had
changed, and, if anyone found out about their sexual encounter, "'it would be worse for . . .
Plaintiff' in drug court" (id. ¶¶ 73, 74). He told Plaintiff that she would "'lose credibility'" with
the probation officers if they learned of their tryst (id. ¶ 74).
Approximately a week later, Estes invited Plaintiff to Belchertown to discuss the drug
court (id. ¶ 75). Plaintiff traveled from her office in Pittsfield to Belchertown and met with Estes
in his chambers during court hours (id. ¶ 76). After discussing the drug court, Estes "suddenly"
closed the window blinds, shut and locked the door, and told Plaintiff that "he wanted to
continue what they had started" at the conference (id. ¶¶ 78, 79). Plaintiff alleges that Estes
initiated frequent sexual encounters with her, principally in his Belchertown chambers, through
March 2017 (id. ¶¶ 89, 92, 93, 106, 107, 111, 113, 116-120, 127-131, 135-137).

5

Plaintiff noticed that Estes acted "coldly" toward her at team meetings and drug court
sessions when she told him that she wanted to end their sexual relationship (id. ¶ 124). When
she obliged his sexual requests, however, he agreed with her opinions and defended her
treatment decisions (id. ¶ 125).
Plaintiff's clinical supervisor, David DiSessa, met with Plaintiff once a week at a
Westfield restaurant to discuss her role as a specialty court clinician and observed one drug court
session each month beginning in December 2016 (id. ¶ 43). Between October 2016 and March
2017, Juliana Reiss, BHN's Director of Forensics, attended two drug court sessions (id. ¶ 44).
DiSessa and Reiss praised Plaintiff's job performance on multiple occasions (id. ¶ 45).
Plaintiff received a telephone call from Reiss on Friday, March 17, 2017 (id. ¶ 139).
Reiss told Plaintiff that, as a result of a complaint being filed against her, she was being placed
on administrative leave effective immediately and was not permitted to return to the drug court
(id. ¶ 140). Reiss did not disclose any details of the complaint, including its source (id. ¶ 140).
Plaintiff immediately sent Estes a text message (id. ¶ 142). He denied knowing anything about
her administrative leave (id.).
On Tuesday, March 21, 2017, Plaintiff met with Reiss and Claudia Muradian-Brubach,
BHN's human resources ("HR") director (id. ¶ 143). Reiss and Muradian-Brubach told Plaintiff
that she was removed permanently from the drug court due to "multiple complaints" about her
(id. ¶ 144). Notwithstanding Plaintiff's repeated requests, Reiss and Muradian-Brubach did not
disclose any information about the complaints against Plaintiff except to say that her removal
from the drug court was based on her decision to detain a criminal defendant until a treatment
bed was available (id. ¶¶ 145, 146). However, Estes, as the presiding judge, made custody

6

determinations (id. ¶ 147). BHN then assigned Plaintiff to another position at a lower salary (id.
¶ 148).
Plaintiff's personnel file did not contain any written complaints, written warnings, or
written disciplinary actions regarding her position as a specialty court clinician at the drug court
(id. ¶ 149). In response to DMH's request for Estes' general impression of Plaintiff's work
performance on March 16, 2017, Estes indicated that Plaintiff was a "'top-notch clinician'" (id. ¶
150). However, Estes criticized Plaintiff's work performance during his conversation with
DiSessa two weeks later, on March 30, 2017 (id. ¶ 151). Estes allegedly told DiSessa that the
atmosphere in the courtroom had "'completely changed'" since Plaintiff left her position; the
tension in the courtroom had disappeared (id. ¶ 152). He stated that he had received "'many
complaints'" about Plaintiff from the court staff (id. ¶ 153). Estes further indicated that Plaintiff
had "'no people skills, which was hard for someone who was a clinician'" (id. ¶ 154). DiSessa
memorialized his conversation with Estes in an e-mail message to Reiss (id. ¶ 151). Reiss, in
turn, forwarded DiSessa's message to Muradian-Brubach and another BHN HR employee with a
note saying that DiSessa had received "'some disturbing information'" about Plaintiff that should
be included in her HR file (id. ¶ 155).
Plaintiff resigned from BHN on April 18, 2017 and moved to Georgia (id. ¶ 158). Estes
allegedly "threatened" Plaintiff that "things would be worse for her" if their sexual relationship
became public (id. ¶ 160).
Plaintiff filed a Charge of Discrimination with the Massachusetts Commission Against
Discrimination ("MCAD") based on Estes' conduct during the time she worked as a member of
the drug court team (id. ¶ 167).
B.

Procedural History

7

Plaintiff's four count complaint was filed on January 22, 2018 (Dkt. No. 1). In Count I,
Plaintiff alleged that Estes violated Title VII by creating a hostile work environment (id. ¶¶ 171174). Count II raised the same claim against BHN (id. ¶¶ 175-180). Counts III and IV alleged
sex discrimination in violation of Chapter 151B against Estes and BHN, respectively (id. ¶¶ 181190). On June 7, 2018, Plaintiff filed a stipulation of dismissal as to Count I (Dkt. No. 30 at 2-3;
Dkt. No. 35). BHN has moved to dismiss both counts against it under Fed. R. Civ. P. 12(b)(6)
(Dkt. No. 10). The court heard argument from the parties on August 1, 2018 (Dkt. No. 41).
III.

DISCUSSION

A.

Standard of Review

"A motion under Rule 12(b)(6) tests the legal sufficiency of the complaint, whether the
claim, as alleged, is sufficient 'to state a claim upon which relief can be granted.'" Millay v.
Surry Sch. Dep't, No. 09-cv-411-B-W, 2009 WL 5184398, at *3 (D. Me. Dec. 22, 2009), report
and recommendation adopted, No. CV-09-411-B-W, 2010 WL 346718 (D. Me. Jan. 22, 2010)
(quoting Fed. R. Civ. P. 12(b)(6)). Federal Rule of Civil Procedure 8(a)(2) requires a plaintiff to
provide "a short and plain statement of the claim showing that the pleader is entitled to relief."
Fed. R. Civ. P. 8(a)(2). In addition, the complaint should "contain 'enough facts to state a claim
to relief that is plausible on its face.'" A.G. ex rel. Maddox, 732 F.3d at 80 (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "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). "'[T]he complaint should be read as a whole, not parsed piece by piece

8

to determine whether each allegation, in isolation, is plausible.'" Ocasio-Hernández v. FortuñoBurset, 640 F.3d 1, 14 (1st Cir. 2011) (quoting Braden v. Wal-Mart Stores, Inc., 588 F.3d 585,
594 (8th Cir. 2009)).
"The plausibility standard invites a two-step pavane." Maddox, 732 F.3d at 80. First, the
court "'must separate the complaint’s factual allegations (which must be accepted as true) from
its conclusory legal allegations (which need not be credited).'" Id. (quoting Morales-Cruz v.
Univ. of P.R., 676 F.3d 220, 224 (1st Cir. 2012)). Then "the court must determine whether the
remaining factual content allows a 'reasonable inference that the defendant is liable for the
misconduct alleged.'" Id. (quoting Morales-Cruz, 676 F.3d at 224).
B.

Count II: Sex Discrimination/Creation of a Hostile Work Environment in
Violation of Title VII

In Count II, Plaintiff alleged that BHN is liable for creating a hostile work environment
based on Estes' behavior. Specifically, Plaintiff claimed that "BHN knew or should have known
that . . . Estes was creating a hostile work environment for . . . Plaintiff, and failed to investigate,
or take any action to correct, [it]" (Dkt. No. 1 ¶ 180). Given that Plaintiff admits that she never
reported Estes' conduct to BHN, and the sex acts purportedly occurred in the privacy of Estes'
chambers and in Plaintiff's home, BHN argues that it is entitled to dismissal of Count II because
the allegations in the complaint are insufficient to establish that BHN knew or should have
known of Estes' alleged conduct. Plaintiff acknowledged at the hearing on BHN's motion that
the adequacy of the allegations showing BHN's knowledge presents a "close call," but contended
that reading the complaint indulgently under the standard applicable to motions to dismiss, the
well-pleaded facts, and the reasonable inferences that can be drawn therefrom, sufficiently
establish the possibility of BHN's awareness of Estes' and Plaintiff's inappropriate relationship.
In the circumstances presented by this case, in which a judge is alleged to have created the
9

hostile work environment, the totality of the complaint's factual allegations are adequate, if
barely, to permit Plaintiff discovery containing the identity of the initial complainant(s) and the
details of the alleged criticism(s) of her job performance that led BHN to remove her from her
position with the drug court on March 17, 2017. See Ocasio-Hernández, 640 F.3d at 17
(alteration in original) (quoting Twombly, 550 U.S. at 556) ("[T]he requirement of plausibility on
a motion to dismiss under Rule 12(b)(6) 'simply calls for enough fact to raise a reasonable
expectation that discovery will reveal evidence of the illegal [conduct].'").
There is no dispute between the parties as to the applicable law. Title VII of the Civil
Rights Act of 1964 prohibits an employer from discriminating "against any individual with
respect to [her] compensation, terms, conditions, or privileges of employment, because of such
individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e–2(a)(1). "When the
workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently
severe or pervasive to alter the conditions of the victim's employment and create an abusive
working environment, Title VII is violated." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)
(citations and internal quotation marks omitted). See McDonnell v. Cisneros, 84 F.3d 256, 259
(7th Cir. 1996) (citing Meritor Sav. Bank v. Vinson, 477 U.S. 57, 66–67 (1986)) ("When a female
worker is sexually harassed by male coworkers or supervisors, the result is to make the
workplace less bearable for her because she is a woman than it is for the men who work beside
her and, being male, are not harassed.").
To prevail on a hostile environment claim arising from gender-based discrimination, a
plaintiff must show the following: "(1) that she is a member of a protected class; (2) that
she was subjected to unwelcome sexual harassment; (3) that the harassment was based
upon sex; (4) that the harassment was sufficiently severe or pervasive so as to alter the
conditions of plaintiff's employment and create an abusive work environment; (5) that
sexually objectionable conduct was both objectively and subjectively offensive, such that
a reasonable person would find it hostile or abusive and the victim in fact did perceive it
to be so; and (6) that some basis for employer liability has been established."
10

Brissette v. Franklin Cty. Sheriff's Office, 235 F. Supp. 2d 63, 85 (D. Mass. 2003) (quoting
O'Rourke v. City of Providence, 235 F.3d 713, 728 (1st Cir. 2001), citing Faragher v. City of
Boca Raton, 524 U.S. 775, 787–89 (1998)).
BHN claims that Plaintiff's complaint fails to plead sufficient facts to satisfy the sixth
element, employer liability. "In order to establish liability under Title VII, plaintiff must present
sufficient evidence to show that the discriminatory conduct at issue can be attributable to her
employer." Acosta v. Harbor Holdings & Operations, Inc., 674 F. Supp. 2d 351, 370 (D.P.R.
2009). See Medina v. Adecco, 561 F. Supp. 2d 162, 176 (D.P.R. 2008) ("Title VII liability
attaches only in the event of a covered employment relationship."). Title VII defines "employer"
as "a person engaged in an industry affecting commerce who has fifteen or more employees for
each working day in each of twenty or more calendar weeks in the current or preceding calendar
year, and any agent of such a person . . . ." 42 U.S.C. § 2000e(b).
"An employer's liability for a hostile work environment claim depends on the harasser's
employment status relative to the victim's . . . ." Torres-Negrón v. Merck & Co., 488 F.3d 34, 40
(1st Cir. 2007). On the facts as alleged, either BHN was Plaintiff's employer and Estes was a
non-employee, or Plaintiff was jointly employed by BHN, the Trial Court, and DMH and Estes
was her co-worker. See Rivera-Vega v. ConAgra, Inc., 70 F.3d 153, 163 (1st Cir. 1995) (quoting
Holyoke Visiting Nurses Ass'n v. NLRB, 11 F.3d 302, 306 (1st Cir. 1993)) ("'A joint employer
relationship exists where two or more employers exert significant control over the same
employees and share or co-determine those matters governing essential terms and conditions of
employment.'"). If the hostile work environment was created by an employee's supervisor, an
employer is vicariously liable. Torres-Negrón, 488 F.3d at 40. On the other hand, if the hostile
work environment was created by a non-employee or a co-employee, the employer "will be held
11

liable only if it was negligent either in discovering or remedying the harassment." Id. (citing
Crowley v. L.L. Bean, Inc., 303 F.3d 387, 401 (1st Cir. 2002); Lockard v. Pizza Hut, Inc., 162
F.3d 1062, 1074 (10th Cir. 1998)). An employer may be found to be negligent if it knew or
should have known of the harassment and failed to take corrective action. See Medina –Rivera v.
MVM, Inc., 713 F.3d 132, 137 (1st Cir. 2013) ("[B]ecause . . . employers must provide their
personnel with a harassment-free workplace, they may be on the hook for a nonemployee's
sexually-harassing behavior under certain conditions – one of which being that they knew or
should have known about the harassment and yet failed to take prompt steps to stop it."); Santos
v. P.R. Children's Hosp., Civil No. 11-1539 (MEL), 2012 WL 4508122, at *5 (D.P.R. Sept. 28,
2012) (citing Hernández v. Miranda Vélez, Civ. No. 92-2701(JAF), 1994 WL 394855, at *8
(D.P.R. July 20, 1994), aff'd, 132 F.3d 848 (1st Cir. 1998)) (same); Medina, 561 F. Supp. 2d at
178 ("To prevail under a theory of joint employer liability, plaintiff must show that defendant
knew or should have known of the discriminatory conduct and failed to take prompt corrective
measures within its control."); 29 C.F.R. § 1604.11(e) (2018) ("An employer may also be
responsible for the acts of non-employees, with respect to sexual harassment of employees in the
workplace, where the employer (or its agents or supervisory employees) knows or should have
known of the conduct and fails to take immediate and appropriate corrective action.").
Here, the parties' dispute concerns whether the complaint sufficiently alleges that BHN
knew or should have known about the hostile work environment; that is, whether BHN received
actual or constructive notice of Estes' sexual harassment of Plaintiff. "In the context of sexual
harassment claims, '[a]ctual notice is established by proof that management knew of the
harassment.'" Sandoval v. Am. Bldg. Maint. Indus., Inc., 578 F.3d 787, 802 (8th Cir. 2009)
(quoting Watson v. Blue Circle, Inc., 324 F.3d 1252, 1259 (11th Cir. 2003)). "'[A]ctual notice is

12

such notice as is positively proved to have been given to a party directly and personally, or such
as he is presumed to have received personally because the evidence within his knowledge was
sufficient to put him upon inquiry.'" Id. (quoting Actual Notice, BLACK'S LAW DICTIONARY (6th
ed.1990)). See Zimmerman v. Cook Cty. Sheriff's Dept., 96 F.3d 1017, 1019 (7th Cir. 1996) ("In
a case such as this in which pervasive harassment is not charged, the employer's duty to
investigate and if appropriate take remedial measures is not activated until the employee
complains of sexual harassment or information about the harassment comes to the employer's
attention from some other quarter."); Fisher v. Town of Orange, 885 F. Supp. 2d 468, 476 (D.
Mass. 2012) (citing Crowley, 303 F.3d at 402) ("[T]he law does not require that plaintiff herself
brought her co-worker's alleged misconduct to the attention of [a] supervisor, as long as a
supervisor was on notice of it."). "[T]here can be constructive notice in two situations: where an
employee provides management level personnel with enough information to raise a probability
of sexual harassment in the mind of a reasonable employer, or where the harassment is so
pervasive and open that a reasonable employer would have had to be aware of it." Kunin v.
Sears Roebuck & Co., 175 F.3d 289, 294 (3d Cir. 1999) (citing Zimmerman, 96 F.3d at 1018–
19). Plaintiff does not allege pervasive and open harassment. Moreover, given her offsite
assignment, it would be unreasonable to infer that BHN "should have been aware" of Estes'
alleged conduct. Plaintiff does not advance this contention.
"Because precise knowledge of the chain of events leading to the [Title VII] violation
[are] unavailable to . . . [P]laintiff at this early stage of the litigation, [the court] take[s] to heart
the Supreme Court's call to 'draw on . . . "judicial experience and common sense" as [it] make[s]
a contextual judgment about the sufficiency of the pleadings.'" Ocasio-Hernández, 640 F.3d at
16 (citing Sanchez v. Pereira-Castillo, 590 F. 3d 31, 50 (1st Cir. 2009)). When the facts alleged

13

in the complaint are viewed in the light most favorable to Plaintiff, and any ambiguities are
resolved in her favor, see id., 640 F. 3d at 17, the pleading plausibly raises the possibility that
BHN knew or should have known of the sexual harassment. 2
DiSessa, Plaintiff's clinical supervisor, and Reiss, BHN's Director of Forensics, attended
drug court sessions and purportedly complimented Plaintiff's job performance several times (id.
¶¶ 43- 45). On March 16, 2018, Estes allegedly told DMH that Plaintiff was a "'top notch
clinician'" (id. ¶ 150). Yet, the next day, Friday, March 17, 2017, Reiss placed Plaintiff on
administrative leave based on a "complaint" (id. ¶¶ 139, 140). Reiss refused to disclose the
identity of the complainant or any details of the alleged complaint (id. ¶ 140). At that time, there
were no written complaints, warnings, or disciplinary actions in Plaintiff's personnel file
regarding her performance as a specialty court clinician (Dkt. No. 1 ¶ 149).
Plaintiff alleges that when she met with Reiss and Muradian-Brubach, BHN's HR
director, on the following Tuesday, March 21, 2017, they informed her that she was removed
permanently from the drug court based on "multiple complaints," which they refused to describe
(id. ¶¶ 143-145). They allegedly informed Plaintiff that she was being terminated as a specialty
court clinician because she had incarcerated a criminal defendant while he awaited the
availability of a treatment bed instead of releasing him into the community (id. ¶ 146). However,
Plaintiff alleges that Estes, as the presiding judge, made the final determinations as to incentives
or sanctions for drug court participants, including decisions about custody versus release (id. ¶¶
12, 147). Thus, it may be inferred that BHN's stated excuse for Plaintiff's removal from the drug
court was not the real reason, or the whole reason, for ending that assignment.

2

The court's analysis ignores the complaint's legal conclusion that "BHN knew or should have
known that . . . Estes was creating a hostile work environment for the Plaintiff . . ." (Dkt. No. 1 ¶
180). See Iqbal, 556 U.S. at 678.
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The inference that Plaintiff asks the court to draw is that BHN was notified by a
stakeholder in the drug court that Plaintiff's relationship with Estes was inappropriate. See
Sepúlveda-Villarini v. Dep't of Educ. of P.R., 628 F.3d 25, 30 (1st Cir. 2010). ("A plausible but
inconclusive inference from pleaded facts will survive a motion to dismiss . . . ."); Zimmerman,
96 F.3d at 1019 (a third person can be the source of the employer's knowledge). Although the
complaint alleges that Plaintiff's and Estes' sexual conduct occurred in private, it alleges
sufficient facts from which it can be reasonably inferred that others could have been aware of
their inappropriate relationship. Members of the court staff allegedly knew of Plaintiff's multiple
visits to Estes' Belchertown chambers (Dkt. No. 1 ¶¶ 92, 96, 109, 111). Plaintiff claims that she
was concerned that other members of the drug court team were aware of the sexual relationship
based on the fluctuations in Estes' treatment of her at team meetings and during court sessions
(id. ¶¶ 122-125). Further, although Plaintiff and members of the probation department allegedly
disagreed about the best practices for the drug court, Plaintiff claims that the probation officers
were "always kinder" toward her in the drug court sessions immediately following her visits to
Estes' chambers in Belchertown (id. ¶¶ 39, 84, 112). The inference that someone reported the
inappropriate relationship to BHN is also supported by the fact that BHN removed Plaintiff from
the drug court notwithstanding Reiss' and DiSessa's compliments on her job performance and the
absence of any negative evaluations in her personnel file (id. ¶¶ 45, 149). See OcasioHernández, 640 F.3d at 18 n.6 ("The lack of any plausible alternative justification for the
plaintiffs' terminations makes the inference of . . . discrimination from the facts alleged more
reasonable."). Given Estes' position and authority as a judge and leader of the drug court, a
possible report to BHN that there was an inappropriate relationship would have "triggered
[BHN's] duty to investigate" whether sexual harassment had occurred. Medina-Rivera, 713 F.3d

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at 138. See Cotto v. Gen. Accident Ins. Co. of P.R., Ltd., 975 F. Supp. 410, 415 (D.P.R. 1997)
(supervisor had a duty to exercise reasonable care to discover sexual harassment).
"In evaluating the sufficiency of the complaint, [the court's] inquiry focuses 'on the
reasonableness of the inference of liability that the plaintiff is asking the court to draw from the
facts alleged in the complaint.'" Hernandez-Cuevas v. Taylor, 723 F.3d 91, 102 (1st Cir. 2013)
(quoting Ocasio–Hernández, 640 F.3d at 13). The complaint pleads abundant facts establishing
that Estes created a hostile work environment. See Brissette, 235 F. Supp. 2d at 85. The
inference that BHN knew or should have known about the hostile work environment crosses the
plausibility threshold because it is grounded in the factual allegations stated in the complaint.
See Ocasio-Hernández, 640 F. 3d at 15-16. It is not unreasonable, therefore, to expect that
discovery of the details surrounding Plaintiff's immediate suspension from the drug court will
reveal whether there is any evidence that would support BHN's liability. Id. at 17. Accordingly,
BHN's motion to dismiss Count II is denied. See Acevedo-Torres v. Municipality of Arecibo,
857 F. Supp. 2d 231, 236 (D.P.R. 2012) (acknowledging that plaintiff's claim may not ultimately
succeed, but denying the motion to dismiss where it was "plausible that [d]efendant knew or
should have known of the harassment").
C.

Count IV: Sex Discrimination/Creation of a Hostile Work Environment in
Violation of Chapter 151B

In Count IV, Plaintiff alleges that Estes violated Chapter 151B by discriminating against
her on the basis of sex and by creating an "intimidating, hostile, humiliating or sexually offensive
work environment" which unreasonably interfered with her work performance and that BHN
knew or should have known that Estes created a hostile work environment and failed to
investigate or take any action to correct it (Dkt. No. 1 ¶¶ 185-190). BHN's motion to dismiss
Count IV is denied for the reasons discussed regarding Plaintiff's Title VII claim.
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"The approach taken by the Supreme Judicial Court to 'hostile environment' claims
brought under the state statute does not differ greatly from the Supreme Court's analysis."
Brissette, 235 F. Supp. 2d at 85. Section 4(1) of Chapter 151B makes it unlawful:
[f]or an employer, by himself or his agent, because of the sex[ ] . . . of any individual . . .
to bar or to discharge from employment such individual or to discriminate against such
individual in compensation or in terms, conditions or privileges of employment.
Mass. Gen. Laws ch. 151B, § 4(1). "The statute defines discrimination on the basis of sex to
include sexual harassment." Sauer v. Belfor USA Grp., Inc., 205 F. Supp. 3d 209, 214 (D. Mass.
2016) (citing Mass. Gen. Laws ch. 151B, § 1(18)). Sexual harassment is defined as:
sexual advances, requests for sexual favors, and other verbal or physical conduct of a
sexual nature when (a) submission to or rejection of such advances, requests or conduct is
made either explicitly or implicitly a term or condition of employment or as a basis for
employment decisions; (b) such advances, requests or conduct have the purpose or effect
of unreasonably interfering with an individual's work performance by creating an
intimidating, hostile, humiliating or sexually offensive work environment.
Mass. Gen. Laws ch. 151B, § 1(18). See also Mass. Gen. Laws ch. 151B, § 4(16A) ("It is
unlawful . . . [f]or an employer, personally or through its agents, to sexually harass any
employee.").
Similar to Title VII, Chapter 151B imposes liability on an employer for the acts of a coemployee or a non-employee only when the employer "knew or should have known of the
charged sexual harassment and failed to implement prompt and appropriate action." Sauer, 205
F. Supp. 3d at 218 (quoting White v. N.H. Dep't of Corrs., 221 F.3d 254, 261 (1st Cir. 2000)).
See Noviello v. City of Boston, 398 F.3d 76, 95 (1st Cir. 2005) ("When coworkers, rather than
supervisors, are responsible for the creation and perpetration of a hostile work environment, Title
VII and chapter 151B seem essentially coterminous as they relate to employer liability.");
Modern Cont'l/Obayashi v. Mass. Comm'n Against Discrimination, 833 N.E.2d 1139-40 (Mass.
2005) ("[A]n employer may be held liable for failing to respond reasonably to acts of sexual
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harassment of which it is aware or reasonably should be aware, even though the harassing acts
are perpetrated by someone who is not an agent or employee of the employer."). For the reasons
previously discussed, the complaint sets forth sufficient facts to raise a reasonable inference that
BHN either "knew or should have known about the harassment, yet failed to halt it." Noviello,
398 F.3d at 95. Accordingly, BHN's motion to dismiss Count IV is denied.
IV.

CONCLUSION

For the foregoing reasons, the court denies BHN's motion to dismiss (Dkt. No. 10). The
clerk's office is directed to schedule a Rule 16 initial scheduling conference at the earliest date
convenient to counsel and the court.
It is so ordered.
Dated: August 22, 2018

/s/ Katherine A. Robertson
KATHERINE A. ROBERTSON
U.S. MAGISTRATE JUDGE

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