Flowers v. FLLAC Educational Collaborative et al

Filing 20

Magistrate Judge David H. Hennessy: ORDER entered granting 9 Motion to Dismiss for Failure to State a Claim; granting 11 Motion to Dismiss for Failure to State a Claim (Belpedio, Lisa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

MARY FLOWERS,
Plaintiff,
v.
FLLAC EDUCATIONAL
COLLABORATIVE, et al.
Defendants.

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CIVIL ACTION
NO. 17-40044-DHH

ORDER
November 28, 2017
Hennessy, M.J.
This matter comes before the Court on Defendants FLLAC Educational Collaborative
(“FLLAC”), Cheryl Hannam, Ricky Hylson, Holly Jacob, Nancy Levy, Gary MacCallum, Beth
Marble, and Sandy Sylvester’s motions to dismiss.12 (Dockets #9, 11). Plaintiff Mary Flowers
has filed an opposition to the motions. (Docket #15). This matter is now ripe for adjudication.
For the reasons that follow, the motions to dismiss (Docket #9, 11) are ALLOWED.
I.

BACKGROUND
Flowers is a current employee of FLLAC, a nonprofit corporation that develops and

operates educational programs to serve a wide range of students. (Docket #10-1 at 2; Docket
#10-2 at 3). One of the educational programs operated by FLLAC is the Caldwell Alternative
High School/Middle School (the “Caldwell Alternative School”). (Docket #10-2 at 4). The
1

In her complaint, Flowers misnames several of the defendants. (See Docket #12 at 2). The defendants are recited
as named in the complaint.
2

While FLLAC and the individual Defendants filed separate motions and accompanying memorandums in support
of those motions, the memorandums are identical. (See Dockets #10, 12).

Caldwell Alternative School provides educational services to approximately forty middle to high
school students with emotional/behavioral concerns, limited academic success, and/or specific
learning disabilities. (Id.). Flowers was hired by FLLAC in 1997 as a paraprofessional at the
Caldwell Alternative School. (Docket #10-1 at 2).
On December 3, 2012, Flowers filed a Charge of Discrimination with the Massachusetts
Commission Against Discrimination (“MCAD”) alleging a racially hostile work environment,
and retaliation. (Id. at 2-3). The MCAD Charge was jointly filed with the United States Equal
Employment Opportunity Commission (the “EEOC”). (Id. at 4-5).
On March 4, 2016, the MCAD made a “Lack of Probable Cause Finding.” (Docket #103). Flowers appealed the decision with the MCAD. (Docket #10-4). Following a hearing, the
lack of probable cause finding was affirmed on July 22, 2016. (Id.). On February 24, 2017, the
EEOC adopted the findings of the MCAD, dismissed the claims, and issued a right-to-sue letter.
(Docket #10-5).
On April 13, 2017, Flowers filed the instant action. (Docket #1). In addition to suing
FLACC, Flowers also sued co-workers as individual defendants. (Id.). In the complaint, Flower
asserts the following “Statement of Claim:”
Racial Harassment, the mistreatment of my complaints along with a fals[l]ey
written warning involving trickery and neglect. Also learning 3 months later of a
violent write-up and police report filed against me.
(Docket #1 at 4 (emphasis in original)).
II.

STANDARD
Rule 8 of the Federal Rules of Civil Procedure provides, in relevant part, that “[a]

pleading that states a claim for relief must contain . . . a short and plain statement of the claim
showing that the pleader is entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). The statement must

2

“give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it
rests.” Phelps v. Local 0222, No. 09-11218-JLT, 2010 U.S. Dist. LEXIS 88007, at *13 (D.
Mass. Aug. 20, 2010) (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002)). In
addition, the pleadings must afford the defendants “a meaningful opportunity to mount a
defense.”

Diaz-Rivera v. Rivera-Rodriguez, 377 F.3d 119, 123 (1st Cir. 2004) (quotation

omitted). At a minimum, “the complaint should at least set forth minimal facts as to who did
what to whom, when, where, and why – although why, when why means the actor’s state of
mind, can be averred generally.” Educadores Puertorriquenos En Accion v. Hernandez, 367 F.3d
61, 68 (1st Cir. 2004). While the “First Circuit holds a pro se litigant to a standard of pleading
less stringent than that for lawyers,” “this cannot be taken to mean that pro se complaints are
held to no standard at all.” Green v. Massachusetts, 108 F.R.D. 217, 218 (D. Mass. 1985).
On a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the court “must assume the truth
of all well-plead[ed] facts and give the plaintiff the benefit of all reasonable inferences
therefrom.” Ruiz v. Bally Total Fitness Holding Corp., 496 F.3d 1, 5 (1st Cir. 2007). “Under
Rule 12(b)(6), the district court may properly consider only facts and documents that are part of
or incorporated into the complaint; if matters outside the pleadings are considered, the motion
must be decided under the more stringent standards applicable to a Rule 56 motion for summary
judgment.” Rivera v. Centro Medico de Turabo, Inc., 575 F.3d 10, 15 (1st Cir. 2009) (quoting
Trans-Spec Truck Serv., Inc. v. Caterpillar, Inc., 524 F.3d 315, 321 (1st Cir. 2008)). There lies
an exception to this rule “for documents the authenticity of which are not disputed by the parties;
for official public records; for documents central to plaintiffs’ claim; or for documents
sufficiently referred to in the complaint.” Id. (quoting Alternative Energy, Inc. v. St. Paul Fire &
Marine Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001)).

3

To survive a motion to dismiss, a plaintiff must “state a claim that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). That is, “[f]actual allegations
must be enough to raise a right to relief above the speculative level . . . on the assumption that all
the allegations in the complaint are true (even if doubtful in fact).” Id. at 555 (internal citations
omitted). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for
more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Twombly, 550 U.S. at 556).

Despite this generous standard, “Rule

12(b)(6) is not entirely a toothless tiger . . . [t]he threshold for stating a claim may be low, but it
is real.”

Dartmouth Rev. v. Dartmouth Coll., 889 F.2d 13, 16 (1st Cir. 1989) (quotation

omitted). The complaint must therefore “set forth factual allegations, either direct or inferential,
respecting each material element necessary to sustain recovery under some actionable legal
theory.” Gooley v. Mobil Oil Corp., 851 F.2d 513, 515 (1st Cir. 1988); see DM Research, Inc. v.
Coll. Of Am. Pathologists, 170 F.3d 53, 55 (1st Cir. 1999) (explaining that the complaint must
“allege a factual predicate concrete enough to warrant further proceedings”).
Although the complaint need not provide “detailed factual allegations,” Twombly, 550
U.S. at 555, it must “amplify a claim with some factual allegations . . . to render the claim
plausible,” Iqbal v. Hasty, 490 F.3d 143, 157–58 (2d Cir. 2007). Thus, the complaint must
provide “the grounds upon which [the plaintiff’s] claim rests through factual allegations
sufficient ‘to raise a right to relief above the speculative level.’” ATSI Commc’ns v. Shaar
Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (quoting Twombly, 550 U.S. at 555). “A pleading
that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action
will not do.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). Dismissal is
appropriate if a plaintiff’s well-pleaded facts do not “possess enough heft to show that [the]

4

plaintiff is entitled to relief.” Ruiz Rivera v. Pfizer Pharms., LLC, 521 F.3d 76, 84 (1st Cir.
2008) (quotations and original alterations omitted).
Though most motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) are
“premised on a plaintiff’s putative failure to state an actionable claim, such a motion may
sometimes be premised on the inevitable success of an affirmative defense.” Nisselson v.
Lernout, 469 F.3d 143, 150 (1st Cir. 2006). “As a general rule, a properly raised affirmative
defense can be adjudicated on a motion to dismiss so long as (i) the facts establishing the
defenses are definitely ascertainable from the complaint and the other allowable sources of
information, and (ii) those facts suffice to establish the affirmative defense with certitude.” Rodi
v. S. New Eng. Sch. of Law, 389 F.3d 5, 12 (1st Cir. 2004).
III.

ANALYSIS

A.

Massachusetts General Laws Chapter 151B
Defendants seek dismissal of any claim asserted pursuant to Massachusetts General Laws

chapter 151B, on the basis that such claims are time-barred. (Docket #10 at 4). A party seeking
to recover under chapter 151B must file a charge of discrimination with the MCAD within 300
days of the last alleged discriminatory act. Mass. Gen. Laws ch. 151B, § 5. Ninety days
following the filing of the complaint with the MCAD, but not later than three years after the
alleged unlawful practice occurred, a plaintiff may bring a civil action. Mass. Gen. Laws ch.
151B, § 9. “[A] plaintiff need not wait for the resolution of the MCAD investigation [before
bringing a civil action]; the filing of a lawsuit triggers the dismissal of the MCAD complaint if it
has not already been resolved by MCAD.” Goldstein v. Brigham & Women’s Faulkner Hosp.,
Inc., 80 F. Supp. 3d 317, 324 (D. Mass. 2015).

5

Flowers filed her charge with the MCAD on December 3, 2012. (Docket #10-1 at 1).
She filed the instant complaint in this court on April 13, 2017, more than five years later.
(Docket #1). Flowers makes no argument that her claim accrued after the December 3, 2012
filing with the MCAD; instead, she asserts that the limitations period should be equitably tolled
due to the length of time it took the MCAD to investigate her charge.3 (Docket #15 at 1).
“In Massachusetts, [the] extraordinary remedy [of equitable tolling] is applied ‘sparingly
in discrimination cases.’” Shervin v. Partners Healthcare Sys., 804 F.3d 23, 39 (1st Cir. 2015)
(quoting Adamczyk v. Augat, Inc., 52 Mass. App. Ct. 717, 724 (2001)); see Shay v. Walters, 702
F.3d 76, 81 (1st Cir. 2012) (“Statutes of limitation are critically important in the due
administration of justice. They should not lightly be discarded.”). “Invoking such a palliative is
permitted when, say the plaintiff is excusably ignorant about the statutory filing period, or where
the defendant or the MCAD has affirmatively misled the plaintiff.”

Shervin, 804 F.3d at

39 (quotation and alternations omitted).
Here, Flowers asserts that her MCAD charge was investigated just after the three-year
limitations period of Chapter 151B expired, which resulted in her failure to file this matter in a
timely manner. (Docket #15 at 1). She makes no allegation that she was unaware of the threeyear limitations period or that the MCAD affirmatively misled her and thereby precluded her
from filing this suit in a timely manner. Hence, equitable tolling is not appropriate, and I hereby
order that Flowers’ claims pursuant to Chapter 151B are dismissed as time-barred.

3

I note that this court would be without jurisdiction to entertain any claim of discrimination pursuant to Chapter
151B based on acts or incidents not included in the MCAD charge or rebuttal or not related to matters asserted in the
MCAD charge. See Everett v. 357 Corp., 453 Mass. 585, 600 (2009) (“The predicate of administrative filing is
mandatory to filing a civil suit [pursuant to Chapter 151B]. It may not be waived.”).

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B.

Individual Defendants
Flowers’ complaint does not indicate whether she has asserted any claims against the

individual defendants pursuant to Title VII. (See Docket #1). To the extent that she has asserted
such claims, the Defendants correctly argue that those claims must be dismissed. “Title VII
addresses the conduct of employers only and does not impose liability on co-workers.” Fantini
v. Salem State Coll., 557 F.3d 22, 31 (1st Cir. 2009) (quoting Powell v. Yellow Book U.S.A.,
Inc., 445 F.3d 1074, 1079 (8th Cir. 2006)).
C.

FLLAC
FLLAC argues that Flowers fails to state a claim against it pursuant to Title VII, asserting

that her complaint does not satisfy the requirements of Rule 8. (Docket #10 at 7-8). I note that
FLLAC correctly argues that the complaint fails to put FLLAC on notice of the claims against
which it must defend. (See Docket #1 at 4). However, in addition to the complaint, the court
may also consider the MCAD filings in ruling on the motion to dismiss without converting the
motion to one for summary judgment. See Edwin v. Blenwood Assocs., 9 F. Supp. 2d 70, 72 (D.
Mass. 1998) (holding that MCAD charge could be reviewed in deciding motion to dismiss where
civil complaint referenced the MCAD charge and the MCAD charge’s contents determined the
parameters of the civil complaint). Flowers refers to her MCAD charge in the complaint and
also attaches as an exhibit to the complaint her rebuttal to FLLAC’s position statement at the
MCAD. (See Docket #1 at 4, Docket #1-2 at 5-7). FLLAC seems to concede that the MCAD
filings are, among other things, official public records that are properly considered on a motion
to dismiss pursuant to Rule 12(b)(6). (Docket #10 at 5 n.3). In assessing the complaint in the
instant case, the court finds that it is appropriate to consider Flowers’ MCAD filings.
The MCAD Charge consists of the following allegations:

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1. During a 2010 FLLAC meeting, Defendant MacCallum the principal of the Caldwell
Alternative School recounted an incident of a student using the word “niggah” towards an
officer. (Docket #10-2 at 55).
2. In May 2011, Flowers made a formal complaint to FLLAC about the racial harassment
she was experiencing. (Docket #10-1 at 2). FLLAC stated that Flowers’ allegations were
unsupported. (Id.).
3. In November 2011, Flowers was asked to sign a card for MacCallum’s birthday by an
unidentified person. (Id. at 3). The card had monkeys on it, which Flowers believed
were racially derogatory based on MacCallum’s past use of racist terms. (Id.).
4. In June 2012, Flowers discovered that $10 she had placed in a change purse inside of a
pouch in her pocketbook for gas was missing. (Id. at 2). The following day, MacCallum
made an odd comment about a student having a “hard time changing $10 on the bus.”
(Id.).
5. Also in June 2012, Defendant Richard Hillson wore what Flowers described as “monkey
slippers” to school.4 (Id.). Flowers states that Hillson went out of his way to sit near her,
put his foot up, and said “Hi Mary,” so that she would see the slippers. (Id.).
6. In September 2012, Flowers observed that her cell phone had been tampered with at work
by an unknown person. (Id.).
7. In October 2012, Flowers observed a stuffed panda sitting in MacCallum’s chair in his
office. (Id.). An unknown person had written “I’m Mr. White” on a sign and placed it on
the panda. (Id.).

4

In its Position Statement to the MCAD, FLLAC revealed that the “monkey slippers” were in fact Vibram five
finger shoes, which Hillson wore when taking students on hikes. (Docket #10-2 at 7). There is no allegation that
anyone other than Flowers referred to the shoes as “monkey slippers.”

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8. Also in October 2012, Defendant Hollie Jacobs, a white FLLAC counselor, went out of
her way to sit with Flowers. MacCallum then entered the room and said he wanted to sit
in the “cool area.” Jacobs responded, “Oh, the back of the bus?” (Id.).
9. Also in October 2012, Defendant Cheryl Hannam, a white FLLAC teacher, commented
to Flowers while she was eating ice cream, that she eats “Jimmies,” meaning that she eats
chocolate sprinkles and explained that she referred to other sprinkles as “colored.” (Id.).
10. That same month, when Flowers wore light tan overalls to work, Defendant Nancy
Major, a white teacher for FLLAC, told Flowers that she had a “dream about slaves in
white overalls” the night before. (Id. at 3).
11. Also in October 2012, Defendant Sandra Silvestre, a white FLLAC teacher, played a
recording on her phone that sounds like the cracking of a whip. (Id.). She commented
that she used the noise “to keep the kids in line” at school. (Id.).
12. On November 7, 2012, Defendant Elizabeth Marple, a white paraprofessional for
FLLAC, approached Flowers with a card to sign for MacCallum’s birthday.

(Id.).

Flowers observed that the card had monkeys on it and realized that it was the same card
as the prior year. (Id.). Flowers asked Marple if it was the same card, to which she
replied, “It’s a card.” (Id.). Flowers refused to sign the card and did not attend the
birthday celebration. (Id.).
13. On November 8, 2012, Flowers confronted Marple and told her that she was “never ever
to put that card in my face again.”5 (Id.).

5
In her rebuttal with the MCAD, Flowers included a narrative by a Fitchburg Police Officer. (Docket #10-8 at 17).
According to the narrative, on November 9, 2012, Marple told the officer that, after she asked Flowers to sign the
birthday card, Flowers backed her into a corner and waved a pencil in her face. (Id.). Marple stated that she felt
threatened and thought that Flowers might hit her. (Id.). Marple advised that she just wanted the incident
documented and asked that the officer not contact Flowers for her view of the events. (Id.). There is no allegation
that FLLAC knew of or encouraged Marple to take this action.

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14. On November 13, 2012, Flowers received a written warning from FLLAC based on the
birthday card confrontation with Marple. (Id.).
The court will not consider Flowers’ allegation that, in 2004, she observed MacCallum
making comments or statements that were race-based and offensive, and that around this time, he
used the “n” word. (See Id.). A charge of discrimination must be filed with the EEOC and/or
MCAD within 300 days after the unlawful conduct occurred. See 42 U.S.C. § 2000e-5(e)(1).
However, a plaintiff may include claims for actions outside of the limitations period if they form
part of a continuing violation. The continuing violation doctrine is “an equitable exception to
Title VII’s statute of limitations” that “allows an employee to seek damages for otherwise timebarred allegations if they are deemed part of an ongoing series of discriminatory acts and there is
some violation within the statute of limitations period that anchors the earlier claims.”
Lockridge v. Univ. of Me. Sys., 597 F.3d 464, 474 (1st Cir. 2010) (quotations omitted).
Continuing violations can take either of two forms: systemic violations or serial violations.
Lawton v. State Mut. Life Assur. Co. of Am., 101 F.3d 218, 221-222 (1st Cir. 1996). The 2004
conduct is not encompassed by either form.
“A systemic violation has its roots in a discriminatory policy or practice, so long as the
policy or practice itself continues into the limitations period, a challenger may be deemed to have
filed a timely complaint.” Provencher v. CVS Pharm, 145 F.3d 5, 14 (1st Cir. 1998) (quoting
Sabree v. United Bhd. of Carpenters & Joiners Local No. 33, 921 F.2d 396, 400 n.7 (1st Cir.
1990)). Flowers identifies no such policy or practice here.
“A serial violation occurs where a chain of similar discriminatory acts emanating from
the same discriminatory animus exists and where there has been some violation within the statute
of limitations period that anchors the earlier claims.” Provencher, 145 F.3d at 14. But “[e]ven

10

where a plaintiff alleges a violation within the appropriate statute of limitations period, the
continuing violation claim will fail if the plaintiff was or should have been aware that he was
being unlawfully discriminated against while the earlier acts, now untimely, were taking place.”
Id. Flowers clearly should have been aware that MacCallum’s alleged use of the “n” word in
addition to his race-based statements was discriminatory. Additionally, there was over a five
year gap in between this allegation of hostile conduct and the next allegation of hostile conduct.
Hence, in order for the 2004 conduct to be actionable, Flowers was required to file an
MCAD charge addressing it within 300 days of the alleged discriminatory conduct. Presumably
this is the reason that the MCAD failed to address this allegation in its investigative disposition.
(See Docket #10-3).
1.

Racially Hostile Work Environment

To make out a prima facie case of hostile work environment, a plaintiff must show: “(1)
[s]he is a member of a protected class; (2) [s]he experienced uninvited harassment; (3) the
harassment was racially-based; (4) the harassment was so severe or pervasive as to create an
abusive work environment; and (5) the harassment was objectively and subjectively offensive.”
Prescott v. Higgins, 538 F.3d 32, 42 (1st Cir. 2008). To determine whether an environment is
sufficiently hostile, a court should “look[] at all of the circumstances, including 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.” Faragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1998) (internal quotation
omitted). “A hostile work environment generally is not created by a mere offensive utterance,
nor does it arise from simple teasing, offhand comments, and isolated incidents.” Ugurhan
Akturk Kosereis v. Rhode Island, 331 F.3d 207, 216 (1st Cir. 2003) (internal quotation omitted).

11

“Courts are supposed to use ‘common sense, and an appropriate sensitivity to social context,’ to
distinguish between such innocuous behavior and severely hostile or abusive conduct.” Id.
(quoting Oncale v. Sundowner Offshore Serv., 523 U.S. 75, 82 (1998)).
Flowers’ allegations address two instances that are explicitly racial in nature -MacCallum’s use of the work “niggah” during a meeting and Major’s discussion concerning her
dream about slaves.

Although the word “niggah” has unique meaning that makes its use

particularly egregious, see Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185 (4th Cir. 2001),
the use of “a slur is not in and of itself proof of actionable discrimination, even if repeated,”
Shager v. Upjohn Co., 913 F.2d 398, 402 (7th Cir. 1990). “The remark taken to be a slur may
have been innocent and misunderstood; or it may have had no consequence, either because it did
not reflect the thinking of the people with decision-making authority or because it did not
motivate even the person uttering it to act on it.” Id. Here, MacCallum’s use of the slur is
objectively innocent. It was not directed towards any particular person, but instead was merely
the principal’s account, during a school meeting, of a student’s statement towards an officer.
(Docket #10-2 at 55). Likewise, while Major’s discussion of her dream is admittedly awkward,
it is not objectively offensive. The court notes that Flowers makes no other allegations of
discriminatory conduct on the part of Majors. Neither of these allegations involve conduct so
objectively offensive or harassing as to create an abusive work environment. Nor do the rest of
the allegations, taken on their own, amount to objectively offensive or harassing behavior.
Having found that these allegations, separately, do not create a racially-motivated hostile
work environment, the court must now decide whether Flowers’ allegations amount to a hostile
work environment in the aggregate. Although the majority of Flowers’ allegations do not
describe conduct that is explicitly racial in nature, such conduct “may, in appropriate

12

circumstances, be considered along with more overtly discriminatory conduct in assessing a Title
VII harassment claim.” Landrau-Romero v. Banco-Popular de Puerto Rico, 212 F.3d 607, 614
(1st Cir. 2000). In making this determination, the court finds the case Williams v. Dallas
Independent School District, cited by the Defendants, instructive.
In Williams, the African-American plaintiff alleged that a white co-worker created a
hostile work environment by making racially derogatory comments, exhibiting racially
derogatory literature, and playing racially derogatory music to her and other African-American
employees. Williams v. Dallas Indep. Sch. Dist., No. 3:02-CV-1229-K, 2003 U.S. Dist. LEXIS
12143, at *1 (N.D. Tex. July 15, 2003). The factual allegations underlying the complaint
consisted of four incidents. The first incident of which the plaintiff complained was her receipt
of a thank-you card from the co-worker which featured a folk art picture of a monkey on it. Id.
at *2. The plaintiff alleged that, on another occasion, the same co-worker left a screen saver
playing on her computer with “jungle sounds” and a picture of a monkey swinging through trees
“screaming his fool head off.” Id. The plaintiff also asserted that the same co-worker made two
racially derogatory comments to her. Id. at *2-3. The first statement had to do with the coworker’s family once “owning” the plaintiff’s family, thus explaining their shared last name. Id.
at *3. The second statement the co-worker made was that African-American children had a
harder time reading than white children. Id. The court determined that all the incidents, taken
together, failed to rise to a level of “severe and pervasive” conduct sufficient to warrant Title VII
relief, noting that “[i]solated, offhand comments, discourtesy, and rudeness do not meet this
standard.” Id. at *7 (quoting Jeffery v. Dallas Cty. Med. Exam’r, 37 F. Supp. 2d 525, 531 (N.D.
Tex. 1999)).

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The conduct of which Flowers complains is similar in nature to that held not to warrant
Title VII relief in Williams. Like that complained of in Williams, the conduct here is not
actionable under Title VII. The court finds that the conduct is not objectively offensive, and
even if it could be considered so, the conduct consisted of “mere offensive utterance[s][,] simple
teasing, offhand comments, and isolated incidents.” See Ugurhan Akturk Kosereis, 331 F.3d at
216. The allegations, taken in the aggregate, fail to establish conduct so objectively severe or
pervasive as to create an abusive work environment.
2.

Retaliation

“Title VII makes it unlawful ‘for employers to retaliate against persons who complain
about unlawfully discriminatory employment practices.’” Ahern v. Shinseki, 629 F.3d 49, 55
(1st Cir. 2010) (quoting Noviello v. City of Boston, 398 F.3d 76, 88 (1st Cir. 2005)). To
establish a prima facie case of retaliation, a plaintiff must show “(i) that she engaged in protected
activity; (ii) that she bore the brunt of a materially adverse action; and (iii) that the first two
elements were causally linked to one another.” Id.
The anti-retaliation provision of Title VII “covers all ‘employer actions that would have
been materially adverse to a reasonable employee,’ defined as actions that are ‘harmful to the
point that they could well dissuade a reasonable worker from making or supporting a charge of
discrimination.’” Ahern, 629 F.3d at 55 (quoting Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53, 57 (2006)). This objective assessment ‘should be judged from the perspective of a
reasonable person in the plaintiff’s position, considering all the circumstances.’” Id. at 55-56
(quoting Oncale, 523 U.S. at 81).

“Adverse employment actions include demotions,

disadvantageous transfers or assignments, refusals to promote, unwarranted negative job
evaluations, and toleration of harassment by other employees.” Marrero v. Goya of P.R., Inc.,

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304 F.3d 7, 23 (1st Cir. 2002) (quoting White v. N.H. Dep’t of Corrections, 221 F.3d 254, 262
(1st Cir. 2000)).
Flowers fails to allege that she suffered any adverse employment action at the hands of
FLLAC following her complaint of discrimination in May 2011. While Flowers received a
written warning a year-and-a-half later in November 2012 following the incident with Marple,
she has not alleged that she suffered any consequences to her conditions of employment as a
result of the warning.6 Hence, the written warning was not an adverse employment action
because it did not carry with it any tangible consequences to Flower’s employment. See Bhatti
v. Trs. of Boston Univ., 659 F.3d 64, 73 (1st Cir. 2011) (“[A] criticism that carries with it no
consequences is not materially adverse and therefore not actionable.”). Equally unavailing are
her allegations of harassment following the discrimination complaint. For a plaintiff to prove
retaliation based on an employer’s toleration of harassment, she must show that the harassment
was “severe or pervasive” and, necessarily, that the harassment occurred after her protected
conduct. Marrero, 304 F.3d at 26. As discussed above, Flowers’ allegations do not demonstrate
harassment that was either severe of pervasive.7

6
A review of the documents submitted at the MCAD shows that the written warning posed no consequences to
Flowers. It admonished Flowers that her actions towards Marple were “unacceptable behavior at FLLAC and
cannot happen again.” (Docket #10-2 at 108).
7

Having determined that the motion for summary judgment is properly granted for the reasons explained above, the
court declines to address defendants’ argument about improper service.

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IV.

CONCLUSION
For the foregoing reasons, I ORDER that the Motions to Dismiss (Dockets #9 and 11) be

ALLOWED.

/S/ David H. Hennessy
David H. Hennessy
UNITED STATES MAGISTRATE JUDGE

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