United States District Court, D. Massachusetts
MEMORANDUM & ORDER
TALWANI, UNITED STATES DISTRICT JUDGE
Emily Comiskey brings this suit against her former employer,
Defendant Hannaford Brothers, Co. (“Hannaford”).
Before the court is Hannaford's Motion for Summary
Judgment [#55]. For the reasons that follow,
Hannaford's Motion for Summary Judgment [#55] is
section recounts evidence relevant to Comiskey's claims
that is either undisputed for purposes of summary judgment,
as reflected by the parties' Local Rule 56.1 statements
of material fact and responses, not properly disputed per
Federal Rule of Civil Procedure 56(c) and (e), or viewed in
the light most favorable to Comiskey, as the non-movant.
West Peabody grocery store hired Comiskey as a part-time deli
associate in 2005. Def.'s Statement of Mat'l Facts
(“Def.'s SOF”) ¶ 1 [#56]. The store was
structured such that shift managers worked under the
direction of deli managers and assistant deli managers, so
that at any point in time, Comiskey had “five, six
bosses.” Comiskey Dep. 125:1 [#56-2]. At the time
Comiskey was hired, Patrice Glynn worked as the store's
deli manager. Def.'s SOF ¶ 2. According to Comiskey,
John Gaudette was one of the assistant deli managers.
Id. ¶¶ 2-3. Many of Comiskey's
co-workers liked Gaudette. Comiskey Dep. 112:14 [#56-2].
2007, Comiskey filed a sexual harassment complaint against
Gaudette using Hannaford's internal reporting system.
Id. ¶ 4. Hannaford responded by firing
started experiencing panic attacks around 2007. Id.
¶ 15. She attributes the attacks, at least in part, to
post-traumatic stress disorder (“PTSD”).
Id. The attacks occurred two to three times per week
and were triggered when Comiskey's co-workers yelled at
her, causing her to feel a “claustrophobic”
feeling. Comiskey Dep. 66:4-11 [#56-1]. Comiskey contends
that her co-workers were unsupportive and stood around
ignoring her when she experienced these attacks. Id.
shortly after Comiskey filed the complaint against Gaudette,
according to Comiskey, the associate relations manager at the
West Peabody store, Ann Baillie, started belittling and
demeaning Comiskey in front of other associates. Comiskey
Dep. 122:10-20 [#56-2]. This happened “[f]rom after the
John Gaudette thing up until the end. Up until my last day
there.” Id. at 118:14-15. According to
Comiskey, Baillie told Comiskey, “if you ever say this
to anyone, I will deny it but I just wish you would leave and
get another job because I am sick of looking at your face and
I am sick of listening to you cry.” Pl.'s SOF
¶ 8; Comiskey Dep. 75:1-4 [#56-1]. According to
Comiskey, Baillie “was mad because [Comiskey] talked to
another human resource person instead of her and she hated me
since then because [Baillie] said [she] could have lost [her]
job by [Comiskey] going over [her] head.” Comiskey Dep.
75:7-10 [#56-1]. Every six months, according to Comiskey,
Comiskey asked Baillie for a transfer to another department
in the store. Baillie refused each request, according to
Comiskey, saying “if you don't like it, just go get
another job. Get out of here.” Comiskey Dep. 118:8-9
she was working in the deli department, Comiskey submitted an
application for an opening elsewhere in the store for a
janitorial position. Comiskey testified that she believes she
submitted the application roughly six months to a year after
making the Gaudette complaint, at some time in 2008. Comiskey
Dep. 119:24-25 [#56-2]. She did not get the job. Id.
2008, Comiskey received performance counseling for creating
conflict with other associates. Def.'s SOF ¶ 12. In
2009, she received performance counseling for making negative
comments about another associate's productivity.
Id. In March 2010, Comiskey received performance
counseling regarding a verbal encounter with one of her
coworkers, Norman Dellacroce. Id.; Comiskey Dep.
29:7-25 [#56-1]. Dellacroce was friends with Gaudette.
Pl.'s SOF ¶ 17. The report of the incident was
prepared by Deli Manager Patrice Glynn. Exhibits to Comiskey
Dep. 17 [#56-3]. Glynn wrote that she spoke with Comiskey
about her inappropriate comments and let her “know any
threats or harassment to any associate will lead up to action
steps up to and including termination.” Id.
Glynn had Comiskey sign a section of Hannaford's
Anti-Harassment Policy stating that prohibited harassment
includes, “among other things, bullying, humiliating,
taunting, disparaging, degrading, provoking or making
inappropriate references to others.” Id. at
April 2010, Comiskey received further performance counseling
for making threatening and disparaging comments to other
employees in the deli department. Def.'s SOF ¶ 12.
This performance counseling report further stated that
Hannaford would not tolerate harassment and if Comiskey
continued to harass co-workers she “will receive
further disciplinary action, up to, and including
termination.” Exhibits to Comiskey Dep. 27 [#56-3].
and another manager, Kevin Fortier, met with Comiskey about
her alleged harassment of co-workers in April 2010. Comiskey
Dep. 39:19-20 [#56-1]. According to Comiskey, Fortier yelled
at Comiskey loudly, said he “hates [her] face and
everyone in the department hates [her] face and to
leave.” Id. at 41:3-8. Comiskey testified that
Fortier said Comiskey should leave work and would get a call
Monday or Tuesday (Fortier said this on Saturday) saying
whether she could return to work. Id. According to
Comiskey, Hannaford moved Fortier to a different store for
talking to her like that. Id. at 41:23.
this time, Comiskey was still attempting to transfer to a
different department. Comiskey was permitted to cross-train
in the bakery department of the West Peabody store for three
days, but then was told she would not be able to transfer
from the deli to the bakery. Comiskey Dep. 120:9-16 [#56-2].
Comiskey estimates that this failed transfer to the bakery
department occurred sometime in the year 2010. Id.
to Comiskey, in March 2013, Glynn yelled at Comiskey for
working too slowly and then grabbed Comiskey's face.
Comiskey Dep. 64:18 [#56-1]. Comiskey says that she received
marks on her face when Glynn squeezed and shook her.
Id. at 64:21-22; Def.'s SOF ¶ 28. Comiskey
testified that she does not think Glynn's issue with her
was only about Gaudette, but also that Glynn
“didn't like [that] the customers liked [Comiskey]
better than [Glynn].” Comiskey Dep. 125:13-16 [#56-2].
Hannaford received a complaint about the incident between
Comiskey and Glynn, which resulted in Glynn's discipline,
demotion, and transfer to another store. Comiskey Dep.
65:8-23 [#56-1]; Def.'s SOF ¶ 28. Following the
incident, according to Comiskey, Comiskey was confronted by
hostility from her co-workers for getting Glynn “thrown
out the door.” Comiskey Dep. 77:9-13 [#56-1]. Comiskey
testified that in April 2013 her panic attacks increased, yet
no one in her department would speak with her. Id.
at 79:7, 80:12-14.
Case replaced Glynn as deli manager in May 2013. Def.'s
SOF ¶ 6. Case testified that he was not aware why Glynn
stopped working at the store. Case Dep. 30:16-19 [#58]. Case
treated Comiskey fairly and was “very respectful”
throughout his tenure as deli manager. Def.'s SOF ¶
11. According to Case, Comiskey would suddenly cry
uncontrollably if she perceived someone was doing something
to upset or hurt her. Id. ¶ 16. During these
attacks, Case permitted Comiskey to go to the store's
back room so that Comiskey could calm herself down using
breathing techniques. Id. ¶ 17. Comiskey was
paid for the time she spent in the back room. Id.
¶ 19. According to Case, Comiskey never told him that
she had a disability or requested an accommodation. Case Dep.
236:4-11 [#58-2]. Case said that he nonetheless allowed her
to go to the back room to regain her composure because he
“thought it was the right thing to do.”
Id. at 236:12-15. Case testified that he “could
tell that there was something in her past that had
happened.” Case Dep. 174:23-175:4 [#58-1].
February 2014, one of Comiskey's co-workers came to Case
to tell him that Comiskey was telling other co-workers that
one co-worker was sexually harassing another. Case Dep.
123:15-19 [#58-1]. Assistant Store Manager Jillian Sierra
conducted an investigation, during which she interviewed the
purported victim, Sue Beaulieu. Exhibits to Case Dep. 64
[#58-2]. In an email to Baillie and Case, Sierra wrote that
“[Beaulieu] stated that there was nothing going on
between her and [the purported harasser] and that there was
not an issue. [Beaulieu] said that [Comiskey] would not let
it go. [Comiskey] was going to call corporate.”
Id. Case testified that this was the only complaint
of harassment raised by Comiskey of which he was aware. Case
Dep. 172:18-21 [#58-1]; see also Case Dep. 234:17-18
February 2014, John Frontiero became the store manager. At
the time, he was not informed of the 2013 incident between
Comiskey and Glynn. Frontiero Dep. 22:15-21 [#56-7]. In
September 2014, Beaulieu complained to Frontiero about
Comiskey not doing her job and not being on the counter.
Frontiero Dep. 24:17-22, 25:14-15 [#56-7]; see also
Frontiero Dep. 9:17 [#56-8]. Frontiero learned then of the
2013 incident between Comiskey and Glynn. Frontiero was never
made aware of Comiskey's 2007 harassment complaint
against Gaudette. Id. at 23:20-24:6. Frontiero
referred Beaulieu's complaints about Comiskey to Case.
Id. at 25:1-6. Comiskey, in turn, testified that she
went to Frontiero and asked for a meeting about Beaulieu, but
Frontiero did not take any corrective action. Comiskey Dep.
89:4-14 [#56-1]. Comiskey does not think Frontiero cared
about her panic attacks. Id.
left the West Peabody store in May 2015. Def.'s SOF
¶ 6. He was replaced for a short time as deli manager by
Samantha Stickney. Id. ¶ 10. According to
Comiskey, Stickney was “very nice” to Comiskey.
Id. ¶ 11. Comiskey continued to use the method
Case developed for dealing with Comiskey's panic attacks,
in which a manager permitted Comiskey to go to the
store's back room to regain control. Id. ¶
31, 2015, Beaulieu made a complaint against Comiskey using
Hannaford's I-Share internal complaint system.
Id. ¶ 29. Beaulieu's complaint reads:
Emily [Comiskey] is known to have an unstable personality and
she makes false claims against coworkers because she does not
care for them. Emily had made false allegations against
coworkers about Emily allegedly witnessing sexual harassment
and she's made other claims as well. Now, Emily is
claiming that she is fearful for her life because of Susan
[Beaulieu]. Susan states that this is where she draws the
line because the association that Susan would do anything to
Emily is preposterous. Emily's false allegations are
intentionally dishonest and are also a result of her mental
concerns. Emily has gotten many employees terminated because
of her manipulation.
Id. ¶ 30.
to Baillie, I-Share complaints went directly to
Hannaford's corporate offices, bypassing local store
management, so Baillie first heard of Beaulieu's
complaint when Beaulieu personally told her about it on
August 2, 2015. Def.'s SOF ¶ 32; Baillie Dep. 24:10
[#56-7]. Frontiero convened a meeting on August 3, 2015, to
address the working relationship between Comiskey and
Beaulieu. Def.'s SOF ¶ 32. Baillie also attended.
Id. During the meeting, Comiskey stated that she
felt her life was threatened during an incident in which
Beaulieu pointed her finger at Comiskey and yelled at her.
Frontiero concluded the meeting by noting that Comiskey and
Beaulieu were struggling to work together and the deli
department needed some new ground rules. Id.