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Sauer v. Belfor USA Group, Inc.

United States District Court, D. Massachusetts

September 7, 2016



          NATHANIEL M. GORTON United States District Judge.

         This 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.

         I. Background

         Plaintiff 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.”

         According 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 course.

         Sauer 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.

         According 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.

         When no 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.

         Plaintiff 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.

         Such 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.

         In 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.

         On May 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 dismiss.

         II. Motion to Dismiss

         Belfor 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.

         A. Legal Standard

         To 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. Ocasio-Hernandez v. 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.

         When 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).

         B. Analysis

         1. Failure to Exhaust Administrative Remedies

         Belfor 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 remedies.

         2. Failure to State a Claim for Relief

         Plaintiff 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 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.

Id. The second provision upon which plaintiff relies also specifically prohibits sexual harassment. See ...

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