United States District Court, D. Massachusetts
MEMORANDUM & ORDER
NATHANIEL M. GORTON United States District Judge.
case involves claims of sexual harassment and retaliation
brought by plaintiff Kristin Sauer (“Sauer” or
“plaintiff”) against defendant Belfor USA Group,
Inc. (“Belfor” or “defendant”) under
both M.G.L. ch. 151B and Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq. Pending before
the Court is defendant's motion to dismiss the complaint
for failure to state a claim. For the reasons that follow,
the motion will be denied.
is a Massachusetts resident and a woman who worked for Belfor
as a Warehouse Manager from May, 2011 through July, 2012.
During that time her direct supervisor was Gerard McGonagle
(“McGonagle”), the General Manager for
defendant's Boston-area warehouse. Sauer avers that she
also took orders from Corey Massaro, a Project Manager. After
Sauer's first six months of work for the company, she was
awarded a $750 bonus for her performance because she had,
according to McGonagle, “rescued our warehouse and . .
. completely turned the operation around.”
to plaintiff, before she began working at Belfor at least two
other women employed there had complained to the company
about inappropriate conduct of a sexual nature by Massaro.
Those women had filed public charges of discrimination by
Massaro with the Massachusetts Commission Against
Discrimination (“the MCAD”). Both women also
alleged that McGonagle was aware of Massaro's misbehavior
but failed to take any action to address it. In November,
2011, after the two complaints were filed, Belfor required
Massaro to complete a “Supervisor
Anti-Harassment” course. Unfortunately, plaintiff
alleges, his conduct did not change after he completed the
avers that throughout her time working at Belfor Massaro made
sexually explicit comments on a weekly basis to groups of
employees, herself included. She also alleges that in April,
2012 Massaro stood outside her office and pantomimed
cunnilingus through the window before entering the office.
Plaintiff further claims that a technician who worked for
defendant, Sharon Coto, also made similarly offensive sexual
remarks and publically posted a sexually explicit status
message from her work phone in May, 2012. Plaintiff reported
that incident to McGonagle, who told her that he would
address the situation.
to plaintiff, after she reported Coto's behavior, Coto
began ignoring her instructions and speaking to her in a
hostile manner. Plaintiff reiterated her concerns to
McGonagle in a second meeting on May 10, 2012. At that time
she also reported Coto's recent behavior toward her as
well as Massaro's sexually explicit conduct and comments.
After plaintiff's conversation with McGonagle he
postponed her annual performance review, which was scheduled
for the next day.
apparent action was taken to address her concerns, Sauer took
her complaints to Diane Barbour, a Human Resources Manager in
defendant's corporate office, on May 16, 2012.
Thereafter, McGonagle requested that Sauer accompany him on a
car ride outside the office during which he allegedly
instructed her not to make any further complaints about
sexual harassment because her allegations could cause Massaro
to be fired.
contends that Massaro subsequently began acting more
aggressive and hostile toward her, yelling her at least once
per week. Other employees also began reacting negatively
toward her by questioning her tone when she gave simple
instructions. In late June, 2012 Massaro's stepfather,
Ralph Bustin, was hired as the Production Manager for the
warehouse. Plaintiff alleges that beginning on his first day
of work he attempted to intimidate her by yelling at her and
slamming doors. Bustin also instructed an employee whom
plaintiff had assigned to guard the warehouse to complete a
personal errand for him, leaving the warehouse unguarded.
treatment allegedly caused plaintiff severe anxiety and a
serious worsening of her psoriasis for which she had to
receive phototherapy treatments. The week after Bustin caused
the warehouse to be left unguarded, Sauer resigned her
position but her medical condition allegedly continued to
worsen even after her resignation.
September, 2012 Sauer filed charges against defendant with
the MCAD and the Equal Employment Opportunity Commission
(“the EEOC”). Defendant responded to the MCAD
claim by filing a “position statement” claiming
that it had thoroughly investigated Sauer's allegations.
Belfor claimed that it was unable to confirm Massaro's
sexually explicit conduct but its Human Resources personnel
nonetheless informed Massaro that his employment would be
immediately terminated if any further incidents were
reported. It conceded confirmation of the allegation relating
to Coto's sexually explicit conduct and that it had
suspended Coto without pay for five days. Plaintiff avers
that Coto had not served such a suspension before plaintiff
quit in July, 2012.
21, 2015 plaintiff filed this lawsuit, alleging gender
discrimination, sexual harassment and retaliation in
violation of M.G.L. ch. 151B and Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq.
On October 14, 2015 defendant filed the pending motion to
Motion to Dismiss
moves the Court to dismiss the complaint in its entirety both
for failure to exhaust administrative remedies and for
failure to state a claim. Plaintiff opposes the motion with
respect to her claims under M.G.L. ch. 151B but waives her
claims under Title VII of the Civil Rights Act. Consequently,
plaintiff's federal claims are dismissed and the
Court's analysis will address only the claims brought
under Massachusetts law. Although the case was removed to
federal court on the basis of federal question jurisdiction,
the Court retains supplemental jurisdiction over Sauer's
remaining state claims pursuant to 28 U.S.C. § 1367.
survive a motion to dismiss for failure to state a claim
under Fed.R.Civ.P. 12(b)(6), a complaint must contain
“sufficient factual matter” to state a claim for
relief that is actionable as a matter of law and
“plausible on its face.” Ashcroft
v. Iqbal, 556 U.S. 662, 667 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). A claim is facially plausible if,
after accepting as true all non-conclusory factual
allegations, the court can draw the reasonable inference that
the defendant is liable for the misconduct alleged.
Fortuno-Burset, 640 F.3d 1, 12 (1st Cir. 2011). A
court may not disregard properly pled factual allegations
even if actual proof of those facts is improbable.
Id. Rather, the relevant inquiry focuses on the
reasonableness of the inference of liability that the
plaintiff is asking the court to draw. Id. at 13.
rendering that determination, a court may not look beyond the
facts alleged in the complaint, documents incorporated by
reference therein and facts susceptible to judicial notice.
Haley v. City of Boston, 657 F.3d
39, 46 (1st Cir. 2011).
Failure to Exhaust Administrative Remedies
first argues that Sauer's claims should be dismissed
because the complaint does not allege that she exhausted her
administrative remedies with the MCAD and the EEOC after
filing complaints with those agencies. While such exhaustion
is required for Title VII discrimination claims filed with
the EEOC, see 42 U.S.C. § 20003-5(f)(1), Sauer
has voluntarily dismissed those claims. On the other hand, no
such exhaustion requirement applies to claims filed with the
MCAD. Chapter 151B of the Massachusetts General Laws, which
governs employment discrimination claims, imposes no
requirement that the MCAD issue a right to sue letter or
dismiss a complaint prior to the filing of a civil suit.
See M.G.L. ch. 151B § 9. Nor does it impose a
90-day time limit. Id. Accordingly, defendant's
motion to dismiss is denied to the extent that it is based on
plaintiff's failure to exhaust her administrative
Failure to State a Claim for Relief
brings claims for sex discrimination and retaliation pursuant
to three provision of M.G.L. ch. 151B. The first, §
4(1), makes it illegal, in relevant part,
[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.
M.G.L. ch. 151B, § 4(1). The statute defines
discrimination on the basis of sex to include sexual
harassment. Id. § 1(18). Sexual harassment is
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.
Id. The second provision upon which plaintiff relies
also specifically prohibits sexual harassment. See