US Equal Employment Opportunity Commission v. Fred Fuller Oil Company, Inc.

Filing 20

ORDER denying 7 Motion for Judgment on the Pleadings. So Ordered by Judge Paul J. Barbadoro.(jna)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Equal Employment Opportunity
Commission
v.

Civil No. 13-cv-295-PB
Opinion No. 2014 DNH 020

Fred Fuller Oil Company, Inc., et al.

MEMORANDUM AND ORDER
The Equal Employment Opportunity Commission (EEOC) sued
Fred Fuller Oil Company, Inc. on behalf of two former employees,
Nichole Wilkins and Beverly Mulcahey.

The complaint alleges

that Fred Fuller, the owner of Fuller Oil, sexually harassed
both women.

It also charges that the company fired Mulcahey in

retaliation for her close friend, Wilkins, complaining about the
harassment she had suffered prior to her constructive discharge.
Fuller Oil has filed a motion for partial judgment on the
pleadings, challenging only Mulcahey’s claims.

It argues that

Mulcahey’s sexual harassment claim is deficient because the
harassment she allegedly suffered was neither severe nor
pervasive.

It challenges her retaliation claim by arguing that

Mulcahey’s alleged relationship with Wilkins is not sufficiently

close to support a retaliation claim based on Wilkins’s sexual
harassment complaint.

I reject both arguments.

I.
A.

BACKGROUND1

Wilkins’s Allegations
Wilkins alleges that Fred Fuller subjected her to offensive

sexual conduct and unwelcome sexual comments on multiple
occasions during the time she worked for Fuller Oil.

For

example, Fuller asked Wilkins if she would strip for his son’s
bachelor party.

When Wilkins was a tenant in an apartment owned

by Fuller, he told her he was installing cameras in her
apartment “to keep an eye on her.”

In 2010, Fuller also began

requesting that Wilkins wear more revealing clothing, including
shirts that showed off her breasts.

Fuller told Wilkins that

the “only good thing about the company t-shirts” was that they
allowed his name to be on her breasts.

Fuller looked down

Wilkins’s shirt whenever possible and commented on her breasts,
referring to them by various vulgar nicknames.

Fuller told

Wilkins that she would have to let Fuller “play with [her]

1

Unless otherwise specified, all facts are taken from the EEOC’s
complaint. Doc. No. 1.
2

boobs” the next time that her co-worker went on vacation, and
that he would show her his “night crawler.”

He also requested

that she laugh “so he could watch her breasts bounce up and
down,” and he told Wilkins that neither he nor his son – who
also worked for the company – had been circumcised.
offensive remarks were not limited to Wilkins.

Fuller’s

Fuller

habitually commented on female employees’ appearance, once
commenting to Wilkins about “how great a co-worker’s ass
looked.”

He also remarked that female colleagues were “on the

prowl” depending on how they dressed.
In the final months of 2010, Fuller’s actions toward
Wilkins progressed to unwanted and inappropriate touching, which
always occurred without witnesses present.

On at least three

occasions, he put his fingers inside Wilkins’s blouse and
touched her breasts.

He would also frequently brush his hands

against her breasts while grabbing objects from her desk.

In

March 2011, Fuller approached Wilkins from behind her desk and
put his hands on her breasts, rubbing them.
On July 11, 2011, Wilkins alleges the following:
Fuller came to Wilkins’s desk, stood behind her,
cupped both his hands over her breasts inside her
shirt and squeezed. Wilkins hunched over and pushed
her back up to try to get his hands off her breasts,
but Fuller pressed her chair against the desk to
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prevent her from moving. Fuller squeezed harder with
his fingers on her nipples until they became erect.
While doing this, Fuller whispered in her ear that
when her co-worker left on vacation, “we are
definitely taking these guys out to play with.”
Fuller moaned and commented how it did not take long
for her nipples to become erect and that she must
really want it. Fuller then jiggled her breasts up
and down and backed away. Fuller then pointed to his
penis inside his pants and said, “He’s so bad, getting
hard.” Wilkins was so upset, she got up from her desk
and grabbed her purse on the floor next to her, at
which point Fuller whispered, “You have really nice
tits and you were great, nice and hard fast.”
In tears, Wilkins reported the incident to a female co-worker to
whom she had previously reported other instances of Fuller’s
harassment.
anyone.

The co-worker responded “well, you can’t tell

You need your job.”

Fuller’s harassment made Wilkins

fearful of going to work, and she resigned the next day,
explaining her resignation to a Fuller Oil employee by saying,
“Fred knows why and he knows what he did.”
Five minutes after Wilkins resigned, Fuller left a message
on her cell phone saying “we need to talk.”

On July 17, 2011,

Fuller sent Wilkins an apologetic email stating, in part, “it
should not of [sic] happened.”

Wilkins pressed criminal charges

based on the incident and on April 19, 2012, Fuller was arrested
for forcibly fondling Wilkins, a misdemeanor sexual assault.

On

November 14, 2012, Fuller entered a no contest plea to a reduced
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charge of simple assault.
B.

Mulcahey’s Allegations
Mulcahey was also employed at Fuller Oil, where she had

worked since September 2006.
interactions with Fred Fuller.

Mulcahey alleges her own unwelcome
For example, when Mulcahey once

requested time off, Fuller grabbed his crotch and asked “[w]hat
can you do for me?”

He also cornered her in the kitchen and

told her “she looked very nice” in a disturbing manner, and
similarly cornered her by the copy machine “in an
inappropriately close manner” and suggestively told her that she
looked nice.

Fuller also commented to Mulcahey that she was

“showing off the right amount of cleavage, not too much and not
too little.”

Finally, he made sexually suggestive comments to

Mulcahey regarding a “play date” between himself, Mulcahey,
Wilkins, and Wilkins’s young daughter.
Mulcahey notes other behavior on the part of Fuller that
was not specifically directed at her but contributed to her
discomfort in the workplace.

Wilkins told her of the sexual

harassment that she was forced to endure and Mulcahey also
witnessed Fuller hugging women alone in the kitchen and
generally flirting with female co-workers.

When Mulcahey

complained that she was being forced to carry a disparate amount
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of the workload because of sexual favoritism, her complaints
fell on deaf ears, as managers explained to her that “Fuller
liked the women.”
C.

Relationship Between Mulcahey and Wilkins
The complaint alleges that Wilkins and Mulcahey had a “very

close friendship.”

Prior to their employment at Fuller Oil,

Wilkins and Mulcahey had worked together for a different heating
oil supplier.

When Wilkins was hired by Fuller Oil, she

recommended to Fuller that he hire Mulcahey and gave him her
resume.

Mulcahey’s desk was adorned with birthday and mother’s

day cards from Wilkins, as well as a picture of Wilkins and
Mulcahey together and a picture of Wilkins’s young daughter.
Wilkins and Mulcahey often spent time talking together at work
and saw each other socially outside of work.
The complaint further alleges that Fuller was aware of the
close friendship between the two women.

Not only did Mulcahey

display tokens of their relationship on her desk, but Fuller’s
request for a “play date” indicated that he knew the women
likely spent time together outside of the office.

Beginning

immediately after Wilkins resigned, Fuller frequently asked
Mulcahey if she had heard from Wilkins.
for Wilkins’s personal email address.
6

He also asked Mulcahey
Once it became obvious

that Wilkins was not returning to Fuller Oil, however, Fuller
became cold to Mulcahey and would often refuse to acknowledge
her.
D.

Wilkins’s EEOC Complaint and Mulcahey’s Termination
On October 18, 2011, Wilkins’s attorney sent Fuller Oil a

letter notifying the company of her plan to file a
discrimination charge with the New Hampshire Commission for
Human Rights and the EEOC.

The letter included a signed copy of

the proposed filing and stated that Wilkins would file the
charge unless Fuller responded – presumably with a settlement
offer - by November 6, 2011.
On November 10, 2011, Billy Fuller – Fred Fuller’s son –
terminated Mulcahey, explaining that “it was not working out,”
that her performance was poor “because she was not making enough
phone calls,” and that Fred Fuller had made the final decision.
At the time of her termination Mulcahey claims to have been
“performing well, as she always had.”

When notified of her

termination, Mulcahey angrily said “[t]his is because of
Nic[hole]!” – an allegation to which Billy Fuller did not
respond.

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II.

STANDARD OF REVIEW

“The standard for evaluating a Rule 12(c) motion for
judgment on the pleadings is essentially the same as that for
deciding a Rule 12(b)(6) motion.”
417 F.3d 225, 226 (1st Cir. 2005).

Pasdon v. City of Peabody,
The plaintiff must make

factual allegations sufficient to “state a claim to relief that
is plausible on its face.”
544, 570 (2007).

Bell Atl. Corp. v. Twombly, 550 U.S.

A claim is facially plausible when it pleads

“factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.

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.”
Iqbal, 556 U.S. 662, 678 (2009) (citations omitted).

Ashcroft v.
In

deciding such a motion, the court views the facts contained in
the pleadings in the light most favorable to the non-movant and
draws all reasonable inferences in his or her favor.

Zipperer

v. Raytheon Co., Inc., 493 F.3d 50, 53 (1st Cir. 2007).
“Judgment on the pleadings is proper ‘only if the uncontested
and properly considered facts conclusively establish the
movant’s entitlement to a favorable judgment.’”
8

Id. (quoting

Aponte–Torres v. Univ. of P.R., 445 F.3d 50, 54 (1st Cir.
2006)).

Put another way, “[t]he motion for a judgment on the

pleadings only has utility when all material allegations of fact
are admitted or not controverted in the pleadings and only
questions of law remain to be decided by the district court.”
5C Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 1367 (Civil 3d ed. 2004).

III.

ANALYSIS

Fuller Oil argues that the EEOC has not sufficiently
pleaded hostile work environment and retaliation claims on
Mulcahey’s behalf.
A.

I address each claim in turn.

Hostile Work Environment
Title VII hostile work environment claims provide a cause

of action for employer conduct “so severe or pervasive that it
create[s] a work environment abusive to employees.”
Forklift Sys., Inc., 510 U.S. 17, 22 (1993).

Harris v.

To succeed on such

a claim, a plaintiff must show (1) membership in a protected
class; (2) subjection to unwelcome conduct; (3) conduct that is
based on membership in the protected class; (4) conduct that is
sufficiently severe or pervasive so as to alter the terms and
conditions of the plaintiff’s employment; (5) conduct that is
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both objectively and subjectively offensive; and (6) a basis for
employer liability.

Medina-Rivera v. MVM, Inc., 713 F.3d 132,

136 n.2 (1st Cir. 2013).
Fuller Oil argues that the pleadings do not sufficiently
allege that she was a victim of severe or pervasive harassment.
Although Mulcahey was employed by Fuller Oil for six years, the
company charges, she has identified only six comments that were
addressed to her, none of which involved physical contact or
threats of physical harm.

At most, it claims, these comments

included only a single crude gesture - the crotch grab - amid
other statements and actions that could not be considered
objectively offensive.

I disagree.

A court must examine allegations of sexual harassment “in
light of the record as a whole and the totality of the
circumstances.”

O’Rourke v. City of Providence, 235 F.3d 713,

728 (1st Cir. 2001) (citing Meritor Sav. Bank, FSB v. Vinson,
477 U.S. 57, 69 (1986)).

Although the relevant test lacks

“mathematical[ ] precis[ion],” courts should examine 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.”

Billings v. Town of Grafton, 515
10

F.3d 39, 48 (1st Cir. 2008) (quoting Harris, 510 U.S. at 23).
Courts “are by no means limited to [these factors], and ‘no
single factor is required.’”

Id. (quoting Harris, 510 U.S. at

23).
The First Circuit has determined that “[e]vidence of the
harassment of third parties can help to prove a legally
cognizable claim of a hostile environment.”

Hernandez-Loring v.

Universidad Metropolitana, 233 F.3d 49, 55 n.4 (1st Cir. 2000);
see also Cummings v. Standard Register Co., 265 F.3d 56, 63 (1st
Cir. 2001).

Other circuits also recognize that a court may

consider “similar acts of harassment of which a plaintiff
becomes aware during the course of his or her employment, even
if the harassing acts were directed at others or occurred
outside of the plaintiff’s presence.”

Hawkins v. Anheuser-

Busch, Inc., 517 F.3d 321, 336 (6th Cir. 2008); Schwapp v. Town
of Avon, 118 F.3d 106, 111-12 (2d Cir. 1997).

See also Jerome

R. Watson & Richard W. Warren, “I Heard It Through the
Grapevine”: Evidentiary Challenges in Racially Hostile Work
Environment Litigation, 19 Lab. Law. 381, 407-13 (2004).
Evidence of widespread sexual favoritism can also contribute to
a hostile work environment.

1 Barbara T. Lindeman, et al.,

Employment Discrimination Law § 20.II.B.5.b (5th ed. 2012)
11

(explaining that such conduct “sends a message that ‘engaging in
sexual conduct’ or ‘sexual solicitations’ is required for one
gender to advance in the workplace.”).

Finally, although the

harassment must be sufficiently severe or pervasive to alter the
terms and conditions of employment, a claimant need not allege
that the harassment made her unable to complete her work.

See

Gerald v. Univ. of P.R., 707 F.3d 7, 18 (1st Cir. 2013); PerezCordero v. Wal-Mart P.R., Inc., 656 F.3d 19, 30 (1st Cir. 2011)
(“[w]e have never required an employee to falter under the
weight of an abusive work environment before his or her claim
becomes actionable.”).
In the present case, the EEOC has alleged that Mulcahey was
forced to endure multiple sexually charged comments from Fuller,
that she witnessed Fuller hugging and flirting with female coworkers on multiple occasions, that she was forced to do a
disproportionate amount of the work because of an environment of
sexual favoritism, and that she knew of Fuller’s repeated sexual
harassment of Wilkins.

When these allegations are viewed

together, they are more than sufficient to plead a viable claim
that Mulcahey was sexually harassed.
B.

Retaliation
Fuller Oil also argues that the EEOC’s retaliation claim
12

seeks to extend an unsettled jurisprudence beyond reason.

A

traditional Title VII retaliation claim requires a plaintiff to
prove that (1) he or she undertook protected conduct; (2) his or
her employer took adverse action against them; and (3) a causal
nexus exists between the protected conduct and the adverse
action.

Medina-Rivera, 713 F.3d at 139.

Mulcahey does not claim to have engaged in protected
conduct prior to her termination.

Rather, she asserts that her

close friend Wilkins engaged in protected conduct by threatening
to file, and then filing, an EEOC complaint, and that Fuller Oil
terminated Mulcahey in retaliation for Wilkins having done so.
The viability of Mulcahey’s claim thus rests on her relationship
with Wilkins, a third party.
The Supreme Court recently addressed so-called third party
retaliation claims at length in Thompson v. N. Am. Stainless,
LP, 131 S.Ct. 863 (2011).

In Thompson, the petitioner and his

fiancée both worked for respondent NAS.

NAS fired the

petitioner three weeks after his fiancée filed a formal
complaint of harassment, and the petitioner then filed a
complaint alleging third party retaliation.

Id. at 867.

The

Court upheld his claim, reasoning that Title VII retaliation
claims cover “a broad range of employer conduct,” prohibiting
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“any employer action that ‘might well have dissuaded a
reasonable worker from making or supporting a charge of
discrimination.’” Id. at 868 (citing Burlington N. & S.F. Ry.
Co. v. White, 548 U.S. 53, 68 (2006)).
Keying in on the logic underpinning Burlington Northern,
the Court found it “obvious” that a “reasonable worker might be
dissuaded from engaging in protected activity” if she knew that
her fiancé would be fired.

The Court acknowledged potential

line-drawing difficulties in less clear cases, but “decline[d]
to identify a fixed class of relationships for which third-party
reprisals are unlawful.”

Id.

As guidance, it advised that

“firing a close family member” will almost always meet the
Burlington standard, but that “inflicting a milder reprisal on a
mere acquaintance” will almost never do so.

Id.

Beyond that,

the Court expressed “reluctan[ce] to generalize,” explaining
that “Title VII’s antiretaliation provision is simply not
reducible to a comprehensive set of clear rules.”

Id.

Rather,

“the significance of any given act of retaliation will often
depend upon the particular circumstances.”

Id. (quoting

Burlington Northern, 548 U.S. at 69).
Focusing its argument on Thompson, Fuller Oil argues that
Mulcahey and Wilkins are not close family members, nor is their
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relationship “sufficiently close so that the termination, or
threatened termination . . . ‘well might have dissuaded a
reasonable worker from making or supporting a charge of
discrimination.’”

Doc. No. 7-1.

I reject this argument on the

ground that it is premature.
The complaint alleges that Mulcahey was a close friend of
Wilkins, the individual who engaged in the protected conduct.
The two women worked together at a prior company, and Wilkins
was influential in procuring Mulcahey’s job with Fuller Oil.

On

Mulcahey’s desk at work she displayed birthday and mother’s day
cards from Wilkins alongside pictures of Wilkins’s daughter and
the two women together.

The complaint also alleges that Fred

Fuller knew of this close friendship.

Fuller knew that the two

women spoke frequently and spent time together out of work – as
demonstrated by his statement about setting up a “play date”
with the two women and Wilkins’s daughter.

When Fuller wanted

to contact Wilkins, he asked Mulcahey about her whereabouts and
requested her personal email address from Mulcahey.

This

relationship, as pled, exists somewhere in the fact-specific
gray area between close friend and casual acquaintance.
Although I could not say that such a friendship definitively
supports a successful claim, I also cannot say as a matter of
15

law that it does not.

I may revisit this issue upon a proper

motion after discovery.

See Lard v. Ala. Alcoholic Beverage

Control Bd., No. 2:12-cv-452-WHA, 2012 WL 5966617, at *4 (M.D.
Ala. Nov. 28, 2012).
Fuller Oil argues in the alternative that the retaliation
claim is defective because it fails to allege any facts beyond
“sheer speculation” to support a causal relationship between
Wilkins’s protected conduct and Mulcahey’s termination.

Recent

precedent affirms that retaliation claims must be proven
according to principles of but-for causation, Univ. of Tex. Sw.
Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2533 (2013), but the EEOC’s
allegations of close temporal proximity – a matter of weeks between Wilkins’s threat of filing a complaint and Fuller Oil’s
decision to fire Mulcahey, when viewed together with the other
evidence identified in the complaint, is sufficient to allow
this claim to survive a motion for judgment on the pleadings.
See, e.g., Calero-Cerezo v. U.S. Dep’t of Justice, 355 F.3d 6,
25-26 (1st Cir. 2004) (a one month interval can provide
sufficient temporal proximity to establish a prima facie case of
retaliation).

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IV.

CONCLUSION

For the reasons discussed above, I deny Fuller Oil’s motion for
judgment on the pleadings.

Doc. No. 7.

SO ORDERED.
/s/Paul Barbadoro
Paul Barbadoro
United States District Judge
January 31, 2014
cc:

Elizabeth A. Grossman, Esq.
Robert D. Rose, Esq.
Markus L. Penzel, Esq.
Leslie H. Johnson, Esq.
Martha Van Oot, Esq.
K. Joshua Scott, Esq.

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