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Zemrock v. Yankee Candle Co., Inc.

United States District Court, D. Massachusetts

February 7, 2017

BRENDA ZEMROCK Plaintiff,
v.
YANKEE CANDLE CO., INC., Defendant.

          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.

         I. Introduction

         Defendant 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).[1]

         After 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.

         II. Factual Background

         The 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)).

         Defendant 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).[2] 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).

         On 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, 90).[3] 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).[4]

         McPherson 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, 75, 76-77).

         Provost 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).

         While 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).

         According 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).

         Although 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).

         The 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 ¶19).

         III. Motion to Strike

         Defendant 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 bathroom?
[Plaintiff]: No.
. . .
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 ¶ 14).

         Because 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 is changed.").

         IV. Motion for Summary Judgment

         A. Standard of Review

         Rule 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).

         The 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.

         B. Disability Discrimination under the ADA and Chapter 151B (Counts II, IV & V)[5]

         Plaintiff's 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 Northborough-Southborough,133 ...


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