United States District Court, D. Massachusetts
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT AND MOTION TO STRIKE (DKT. NOS.
79 AND 88)
KATHERINE A. ROBERTSON United States Magistrate Judge.
Yankee Candle Company, Inc. ("Defendant" or
"Yankee Candle") has moved for summary judgment
with respect to the multi-count employment discrimination
complaint brought by Brenda Zemrock ("Plaintiff"),
a former employee. Plaintiff has brought claims against
Defendant for: (1) discriminating against her due to her
disability in violation of the American Disabilities Act
("ADA"), 42 U.S.C. §§ 12101-12213, and
its Massachusetts analog, Mass. Gen. Laws ch. 151B
("Chapter 151B"), by subjecting her to a hostile
work environment, constructively discharging her, and failing
to reasonably accommodate her disability; (2) retaliating
against her in violation of the ADA, 42 U.S.C. § 12203;
and (3) discriminating against her in violation of Chapter
151B by sexually harassing her, and aiding and abetting
sexual harassment (Dkt. No. 22).
the Massachusetts Commission Against Discrimination found
probable cause (Dkt. No. 22 at 4 ¶ 33), Plaintiff
removed her claims to this court and the parties have
consented to the undersigned's jurisdiction. See
28 U.S.C. § 636(c); Fed.R.Civ.P. 73. Before the court is
Defendant's motion for summary judgment, a hearing on
which was held on October 25, 2016. Plaintiff filed an
opposition to Defendant's motion for summary judgment,
which included Plaintiff's supporting affidavit (Dkt. No.
86). Defendant moves to strike paragraph 14 of
Plaintiff's affidavit based on its alleged conflict with
her deposition testimony (Dkt. No. 88). The court ALLOWS
Defendant's motion to strike (Dkt. No. 88), and does not
consider paragraph 14 of Plaintiff's affidavit in its
decision. For the reasons stated below, Defendant's
motion for summary judgment (Dkt. No. 79) is ALLOWED in part
and DENIED in part.
court views the evidence in the light most favorable to
Plaintiff, the nonmoving party. See Lipson v. Johnson
& Wales Univ., No. 96-159B, 1997 WL 576397, at *2
(D.R.I. July 17, 1997) (citing Mesnick v. Gen. Elec.
Co., 950 F.2d 816, 820 (1st Cir.1991)).
is a manufacturer and retailer of scented candles and candle
accessories (Dkt. No. 82-8 at ¶ 4). On December 1, 2009,
Heather McPherson, the manager of Yankee Candle's retail
store at the Holyoke Mall, hired Plaintiff to be a "door
greeter" for the holiday season (Dkt. No. 82-1
[Plaintiff's Deposition] at 3, 4). Plaintiff
continued to work as a sales associate after the holidays and
was promoted to second assistant manager in February 2011
(id.). Although Plaintiff's title was
"second assistant manager, " she did not have any
managerial or supervisory responsibilities (Dkt. No. 82-1 at
8; Dkt. No. 82-2 at 6; Dkt. No. 86-2 at 2-3 ¶¶
1-7). McPherson and Sarah Fenton, the assistant store
manager, were Plaintiff's immediate supervisors (Dkt. No.
82-1 at 7, 24, 26, 27; Dkt. No. 82-2 at 6). Plaintiff was a
part-time hourly employee during her term of employment at
Yankee Candle, which ended on June 28, 2012 (Dkt. No. 82-1 at
3; Dkt. No. 82-3 at 15).
December 9, 2011, Plaintiff underwent a hysterectomy due to
endometriosis and cancer (Dkt. No. 82-1 at 41, 87; Dkt. No.
86-2 at 3 ¶ 10). A second procedure was necessary
shortly thereafter to stop internal bleeding (Dkt. No. 82-1
at 41, 42). Plaintiff took leave from her job at Yankee
Candle pursuant to the Family Medical Leave Act
("FMLA") for her surgery and recuperation
(id. at 40). When she returned to work on February
27, 2012, she presented Defendant with letters from her
medical providers indicating restrictions that were required
by her medical condition -- a prolapsed bladder (Dkt. No.
82-1 at 43, 46; Dkt. No. 82-2 at 25, 26, 27). Specifically,
she could not lift objects that weighed more than fifteen
pounds and needed to use the bathroom frequently (Dkt. No.
82-1 at 43, 46; Dkt. No. 82-2 at 25, 26, 27). Defendant
limited Plaintiff's lifting and allowed her to use the
bathroom as needed (Dkt. No. 82-1 at 44, 56,
Because Plaintiff would be required to close and lock the
store if she was working alone and had to use the bathroom,
McPherson told Plaintiff that they would try to schedule a
coworker to work with her (id. at 44, 46). However,
Plaintiff was scheduled to work alone for about thirty
minutes on at least "a couple occasions"
(id. at 44-45). Plaintiff perceived that her
supervisors did not like her to close the store to use the
restroom when she worked alone due to the potential loss of
business (id. at 46). Plaintiff underwent a third
surgery on April 19, 2012 to repair her bladder and was
granted leave under the FMLA from April 17, 2012 to about May
26, 2012 (Dkt. No. 82-1 at 41; Dkt. No. 82-8 at 6; Dkt. No.
86-3 at 3).
hired Matt Provost to work as a sales associate at
Defendant's Holyoke Mall store in the spring of 2011,
before Plaintiff's first surgery (Dkt. No. 82-1 at 9).
Shortly after Provost began working, he commented about
females he saw in the mall, including a woman who worked at
the kiosk outside the Yankee Candle store (id. at
68-69, 70, 78, 79, 80, 94). For example, while looking at
females, he told Plaintiff: "I'd like to go up
behind her and fuck her"; "[H]er tits [are] hanging
out . . . and [I] would like to feel them up"; and
"Oh, my God, look at her in that outfit. She's
giving me a hard on" (id. at 68, 69-70, 74, 78,
97-98). Provost stated several times, "I'm so
sweaty. [M]y sweaty balls are smacking my leg. . . . I can
feel the sweat dripping off them" (id. at 74,
also commented on Plaintiff's condition due to her
hysterectomy (id. at 41, 91-92, 93, 96). He remarked
that Plaintiff could accommodate the largest dildo and told
her that she "could shove [one] up there and it would
get lost" (id. at 91-92, 93-94). He also said
that she no longer had to be concerned about sexual positions
because she had "a big open hole" (id. at
91-92). He repeatedly threatened to post her information on
an online dating website so that she could find a man who
could "do things to [her]" (id. at 97).
Provost, Plaintiff, McPherson, and Fenton were setting up the
store for the semiannual sale in May or June 2012 -- after
Plaintiff's second leave of absence -- Provost described
Plaintiff as "an unstuffed turkey that every man wants
to fuck because [she's] a big open hole with an endless
tunnel that every guy would love" (id. at 71,
72-73, 95). The other employees who were present, including
McPherson and Fenton, laughed and joked in response to
Provost's description of Plaintiff (id. at 31,
56-57, 68, 71, 73). Plaintiff asked them to stop and
explained that the loss of her reproductive organs was not
humorous (id. at 73). Their retort: Plaintiff
"wasn't as fun to be around" since her surgery
(id. at 57). Provost's remark and
Plaintiff's colleagues' responses caused Plaintiff to
feel humiliated and embarrassed and to cry (id. at
68, 73, 109).
to Plaintiff, McPherson's and Fenton's reactions to
Provost's comment - laughing and joking - were consistent
with their previous responses to Provost's behavior and
Plaintiff's complaints about it (id. at 69, 77,
83, 92). Provost's vulgar comments began shortly after he
was hired and continued "every day" through the
term of Plaintiff's employment at Yankee Candle
(id. at 68, 69, 70, 77, 78, 80). When Plaintiff
first heard Provost's remarks about women in the mall,
she told him that they were inappropriate and asked him to
stop (id. at 80-81). Provost laughed (id.).
Plaintiff then voiced her complaints to McPherson, gave her
examples of Provost's comments, and asked McPherson to
speak to Provost (id. at 80-83). Plaintiff averred
that Provost's remarks persisted despite her repeated
complaints to McPherson (id. at 81-82, 84, 110). In
addition, Plaintiff asked Fenton to schedule her to work at a
time when Provost was not working because Plaintiff feared
that she would be held responsible for his behavior if a
customer overheard his vulgar remarks (id. at 82,
83). Fenton did not honor Plaintiff's scheduling request
(id. at 80, 81-82).
Provost's offensive language continued notwithstanding
Plaintiff's complaints, she did not report Provost to
anyone else because she honored McPherson's and
Fenton's request for the store's problems to
"stay in the store" (id. at 24-25, 26,
58, 84-85, 86, 104). McPherson and Fenton did not want to
alert management to any issues that would cause their
supervisors to scrutinize them, according to Plaintiff
(id. at 104, 110).
combination of Provost's unabated comments and
McPherson's and Fenton's perceived encouragement of
his behavior caused Plaintiff to vent her anger by lashing
out at her family (id. at 57-58, 104). On June 27,
2012, Provost refused to stop making obscene comments and
Plaintiff decided that she "couldn't take any more,
" despite her recent positive performance evaluation
(id. at 57-58, 62-63, 103, 111). Arlene Belgrave,
the district manager who supervised McPherson and Fenton, was
at the store the next morning when Plaintiff was scheduled to
open it (Dkt. No. 82-1 at 58, 63; Dkt. No. 82-3 at 6-7).
Plaintiff told Belgrave that she was "done with the
company" (Dkt. No. 82-1 at 65). In response to
Belgrave's request for Plaintiff to explain the reason
for her decision, Plaintiff described Provost's sexual
comments about females in the mall and about her, including
the "unstuffed turkey" analogy (id. at 63,
65). Plaintiff also related McPherson's and Fenton's
responses to her complaints about Provost, including a note
from Fenton to McPherson complaining about Plaintiff that
said "karma was a, quote, unquote, bitch and it was
going to bite [Plaintiff] in the fanny in the end"
(id. at 65). Belgrave was "very nice, "
offered to attempt to resolve the issues, and repeatedly
asked Plaintiff to stay (id. at 66, 86). Plaintiff
declined because she feared that her report to Belgrave would
prompt McPherson and Fenton to intensify their retaliation
against her (Dkt. No. 82-1 at 66, 86-87; Dkt. No. 86-2 at 4
Motion to Strike
has moved to strike the paragraph of Plaintiff's
affidavit in support of her opposition to Defendant's
motion for summary judgment that addresses Defendant's
accommodation of her need for unlimited bathroom breaks (Dkt.
No. 88). As grounds for its motion, Defendant alleges that
Plaintiff's deposition testimony contradicts her
affidavit. Plaintiff's deposition testimony on this point
was as follows:
Q. Did anyone ever tell you it was a problem using the
. . .
Q. Did Yankee Candle communicate to you that if you needed to
use the bathroom, you could lock up the store and use it?
[Plaintiff]: [McPherson] said that once, but they kind of
like didn't really want that to happen because it would .
. . make customers feel like we weren't open.
(Dkt. No. 82-1 at 44, 46). Plaintiff's affidavit says,
"I was told by my manager that I could not close the
store because it would effect sales and it was against policy
to leave the store unattended" (Dkt. No. 86-2 at ¶
Plaintiff's affidavit is at odds with her testimony and
Plaintiff fails to explain the reason for the discrepancy,
the court allows Defendant's motion to strike and, as
noted earlier, disregards paragraph 14 of Plaintiff's
affidavit. See Colantuoni v. Alfred Calcagni & Sons,
Inc., 44 F.3d 1, 4-5 (1st Cir. 1994) ("When an
interested witness has given clear answers to unambiguous
questions, he cannot create a conflict and resist summary
judgment with an affidavit that is clearly contradictory, but
does not give a satisfactory explanation of why the testimony
Motion for Summary Judgment
Standard of Review
56(a) of the Federal Rules of Civil Procedure provides in
pertinent part that: "[t]he court shall grant summary
judgment if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to
judgment as a matter of law." Fed.R.Civ.P. 56(a).
"Genuine issues of fact are those that a factfinder
could resolve in favor of the nonmovant, while material facts
are those whose 'existence or nonexistence has the
potential to change the outcome of the suit.'"
Green Mountain Realty Corp. v. Leonard, 750 F.3d 30,
38 (1st Cir. 2014) (quoting Tropigas de P. R., Inc. v.
Certain Underwriters at Lloyd's of London, 637 F.3d
53, 56 (1st Cir. 2011)). See also Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986).
moving party has the initial burden of demonstrating
"the absence of a genuine issue of material fact."
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
"Once the moving party has properly supported [his]
motion for summary judgment, the burden shifts to the
nonmoving party, with respect to each issue on which he has
the burden of proof, to demonstrate that a trier of fact
reasonably could find in his favor." DeNovellis v.
Shalala, 124 F.3d 298, 306 (1st Cir. 1997) (citing
Celotex Corp., 477 U.S. at 322-25). "The
nonmovant may defeat a summary judgment motion by
demonstrating, through submissions of evidentiary quality,
that a trialworthy issue persists." Iverson v. City
of Boston, 452 F.3d 94, 98 (1st Cir. 2006) (citing
Celotex Corp., 477 U.S. at 322-24). In determining
the existence of a trialworthy issue, assessing credibility,
weighing the evidence, and drawing "legitimate
inferences from the facts" are within the jury's
province, not the court's. See Anderson, 477
U.S. at 255.
Disability Discrimination under the ADA and Chapter 151B
(Counts II, IV & V)
claims of disability discrimination are based on allegations
about Plaintiff's hysterectomy, Provost's specific
vulgar references to it, and McPherson's and Fenton's
reactions to Provost's comments. Count II alleges that
these conditions created a hostile work environment and led
to Plaintiff's constructive discharge (Dkt. No. 22 at 5).
Count IV alleges that Defendant failed to reasonably
accommodate Plaintiff's disability (id. at 6-7).
Count V avers that Defendant discriminated against Plaintiff
in violation of Chapter 151B, § 4(16) by failing to
provide a reasonable accommodation for her handicap and by
subjecting her to a hostile work environment and thereby
constructively terminating her employment (id. at
7). Because "Chapter 151B tracks the ADA in virtually
all respects . . ., this [c]ourt looks to federal case law
interpreting the ADA as a guide to . . . interpreting Chapter
151B." Smith v. Pub. Schs. of