The opinion of the court was delivered by: NATHANIEL GORTON, District Judge
The present case arises from an allegation of sexual harassment
by plaintiff, Judy (Kinny) Martin ("Martin"), against Stericycle,
Inc. ("Stericycle") and Scherer Healthcare, Inc., d/b/a
Biosystems ("BioSystems"). Defendants now move for summary
judgment with respect to plaintiff's claims of retaliation
(Counts III and IV of the complaint).
On November 27, 2002, Kinney began working as a route driver at
the Haverhill, MA facility of BioSystems. In January, 2003,
Stericycle acquired BioSystems. At all times during Kinney's
employment, Teamsters Local 170 represented Kinney and the
Local's collective bargaining agreement with BioSystems ("the CBA") governed Kinney's employment.
From February, 2003 until April 30, 2003, Kinney was allegedly
subjected to continual acts of sexual harassment from her
co-worker, Billy Martin ("Martin"). Kinney reported the
harassment to her supervisor and defendants responded by ordering
Martin to arrive at work one half hour ahead of Kinney to avoid
her at the workplace. Kinney claims that the harassment continued
even after defendants altered Martin's starting time. Eventually
Kinney determined that she could no longer work with Martin and
confronted Marlynn Cohen ("Cohen"), the Human Resources employee
assigned to the case, about discharging Martin. Defendants
declined to discharge him.
On June 2, 2003, Kinney filed a complaint with the
Massachusetts Commission Against Discrimination ("MCAD"). Shortly
thereafter, she sought to take vacation time for medical
purposes. Kinney's immediate supervisor, Joe D'Agata ("D'Agata"),
told Kinney that she had not accrued any vacation time but
suggested that she could borrow against the following year's
vacation. Kinney claims that she expected defendants would grant
her leave because Kinney claims that other employees, including
Martin, had been granted leave during their first year.
Apparently, D'Agata's suggestion was based upon the Stericycle
Employee Handbook which states "[y]ou can take up to one week's
vacation after six (6) months but you will be borrowing from next year's vacation time to be used".
Because Kinney was a union employee, however, the Handbook was
inapplicable to her insofar as it conflicted with the CBA, § 6
which provides that employees are ineligible for paid vacation
until they have been employed for one year. On June 12, 2003,
Phil Davis ("Davis"), D'Agata's superior, denied Kinney's request
for vacation, allegedly pursuant to the CBA. Kinney resigned
On September 20, 2004, Kinney filed the instant law suit
alleging claims for gender discrimination (Counts I and II) and
retaliation based upon the denial of her request for vacation
time (Counts III and IV). Other claims were alleged but have
since been voluntarily dismissed. On December 7, 2004, defendants
moved for summary judgment with respect to counts III and IV.
They argue that Kinney cannot establish that 1) she was subjected
to an adverse employment action or 2) defendants' reason for
denying her request for vacation was a pretext for retaliation.
The role of summary judgment is "to pierce the pleadings and to
assess the proof in order to see whether there is a genuine need
for trial." Mesnick v. General Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991) (quoting Garside v. Osco Drug, Inc.,
895 F.2d 46, 50 (1st Cir. 1990)). The burden is upon the moving party to
show, based upon the pleadings, discovery and affidavits, "that
there is no genuine issue as to any ...