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Votolato v. Verizon New England, Inc.

United States District Court, D. Massachusetts

October 1, 2018

DACIA VOTOLATO, Plaintiff,
v.
VERIZON NEW ENGLAND, INC., Defendant.

          MEMORANDUM

          DOUGLAS P. WOODLOCK UNITED STATES DISTRICT JUDGE.

         Defendant Verizon New England, Inc. seeks summary judgment against claims by Plaintiff Dacia Votolato that Verizon is responsible for a retaliatory hostile work environment, orchestrated her constructive discharge, and engaged in deceit and negligent misrepresentation regarding long-term disability benefits available to her. I have granted the motion as to the retaliatory hostile work environment and constructive discharge claims. But because genuine issues of material fact remain regarding the claims sounding in misrepresentation, I have denied Verizon's motion regarding misrepresentation of available benefits. This Memorandum provides a detailed explanation for those decisions.

         I. BACKGROUND

         A. Factual Background

         I summarize the facts in the light most favorable to Ms. Votolato as the party opposing summary judgment. See Lehman v. Prudential Ins. Co. of Am., 74 F.3d 323 (1st Cir. 1996). Notably, Ms. Votolato has not filed a response to the facts set forth in Verizon's Rule 56.1 statement of undisputed material facts. Rather, while providing her own “statement of material facts of record, ” she cites to Verizon's facts throughout her opposition. Accordingly, uncontroverted facts of record supplied by Verizon are deemed admitted. See Local Rule 56.1.

         1. The Parties

         Plaintiff Dacia Votolato began working for Defendant Verizon New England, Inc. in 1996 and she was assigned to an office in Providence, Rhode Island. She was employed as a telephone operator and was a member of the union. In approximately 2004, Ms. Votolato transitioned from an office in Providence to an office in Fall River, Massachusetts, where she remained through the rest of her employment. At all times relevant to this matter, Ms. Votolato was supervised by Kellie Machado and Sara Mendes, two first-level managers, who in turn reported to Cindy Malone, a second-level manager.

         2. The Larry Lastra Sexual Harassment Incident

         In January 2015, Ms. Votolato reported to Ms. Mendes concerns that a coworker and fellow union member, Larry Lastra, had engaged in behavior in December 2014 that could constitute sexual harassment. Ms. Votolato admits that she did not want to report Mr. Lastra's behavior, but rather claims that Ms. Mendes “made” her provide details about Mr. Lastra's behavior once she indicated that Mr. Lastra had acted inappropriately. In her own words, Ms. Votolato felt like a “traitor” to Mr. Lastra, describing “snitch[ing] on someone [in the union]” as a “very uncool thing to do.” In any event, Ms. Votolato acknowledges that Verizon took her concerns seriously. Mr. Lastra was suspended promptly and Verizon's Security Department launched an investigation into his behavior. As a result of that investigation, Verizon terminated Mr. Lastra's employment.

         3. The Alleged Retaliatory Acts

         Beginning in the end of March 2015, Ms. Votolato contends that her coworkers subjected her to a hostile work environment because of her complaint about Mr. Lastra. Ms. Votolato was out of the office on a leave of absence from January through March and acknowledges that no act of purported retaliation occurred during that time.

         In the aftermath of reporting her concerns about Mr. Lastra's behavior, Ms. Votolato texted frequently with her direct supervisor, Ms. Machado. She expressed concerns about her fellow union members' retaliating against her because of her complaint. Ms. Machado responded compassionately to these messages, both through text messages to Ms. Votolato and in telephone and in-person conversations. Ms. Machado repeatedly assured Ms. Votolato that there was value in what she reported and Ms. Machado further offered to help her in any way she might think she needed.

         Ms. Votolato claims that her complaint against Mr. Lastra was almost like “Public Knowledge.” In particular, she maintains that Ms. Machado reported in front of two employees at the Fall River Verizon office that Ms. Votolato contended Mr. Lastra had exposed himself and that he had shown a picture of a penis on a keyboard to Ms. Votolato.

         According to Ms. Votolato, after the incident with Mr. Lastra, her coworkers “just gave [her] the cold shoulder.” Furthermore, she claims that several of her coworkers “unfriended” her on Facebook and that Mr. Lastra posted comments on Facebook which she found upsetting, though she acknowledges that Verizon does not have control over what people post on their personal Facebook pages.

         Additionally, Ms. Votolato contends that coworkers who were assigned to the “in charge” desk were not addressing her concerns as quickly as they had in the past, however she concedes that she has no evidence that her job was impacted adversely by this circumstance. Employees assigned to the “in charge” desk monitor the workflow in the office and ensure that the employees take their breaks as required under the union contract. The employees assigned to the “in charge” desk, however, are union members who do not participate in hiring, firing, disciplining, or evaluating employees; only Verizon management, none of which are assigned to the “in charge” desk, conducts those functions. Simply put, the “in charge” desk employees are peers to the other union members in the office.

         Ms. Votolato further alleges that she was subjected to “numerous little slights.” For example, Ms. Votolato maintains that other employees would give her “dirty” or even “menacing” looks. She states one coworker “let the door slam in [her] face” when she was entering the Fall River facility behind the coworker one day. Moreover, Ms. Votolato claims that one of her coworkers tried to run her over with a car in the parking lot, but she concedes that this allegation is based solely on her observation that the employee was driving fast in the parking lot and on her “vibe” that the coworker did not like her. Nevertheless, Ms. Votolato reported this incident to Ms. Machado, who, according to Ms. Votolato, “blew it off as [the coworker's] normal driving.” Ms. Votolato, however, maintains that she had seen the same coworker leave the parking lot before and she did not drive that quickly. Meanwhile, Ms. Votolato reported lights being out in the parking lot, and Ms. Machado told her they would be fixed immediately but they were not. She then went to Elaine Coulombe, a service assistance supervisor, who got the lights fixed as it related to her safety.

         Ms. Votolato further claims that on one occasion, a coworker stated, “Oh, someone call security, ” when she entered the lunchroom. Additionally, she alleges that one of her coworkers called her “sneaky” on one occasion. On another occasion, when a coworker hugged her someone said, “Oh, you're [sic] hugging her?” A friend advised her via text regarding the atmosphere at work: “[T]ry to control yourself and keep your cool because they want to make you look crazy and get Larry his job back.”

         Ms. Machado made a point to be present when Ms. Votolato was gathering with other union employees, to make sure no one was treating her poorly. This strategy was recommended to Ms. Machado by Verizon's Human Resources department in response to the text messages that Ms. Votolato had sent Ms. Machado. Ms. Machado, however, did not witness any improper conduct toward Ms. Votolato from her fellow union members. In any event, Ms. Machado asked Ms. Votolato to provide her with the names of the individuals she was referring to and examples of the behavior she was concerned about, but Ms. Votolato refused to provide Ms. Machado with any details.

         Ms. Votolato generally considered Ms. Machado to be supportive of her, nevertheless believing that Ms. Machado contributed to the alleged hostile work environment when she purportedly tried to “fluff” off her accusation that a coworker had tried to run her over in the parking lot.

         4. The Facebook Post

         In April 2015, while Ms. Votolato was on a leave of absence from Verizon, she wrote a Facebook post that came to the attention of her employer. The message said something like, “To all the Larry sympathizers: Did it ever occur to you he might have hurt someone? There are two sides to every story. Would it make you feel better if I blow my brains out? You got it.” In response, Cindy Malone contacted Ms. Votolato directly and encouraged her to seek assistance from Verizon's Employee Assistance Program (“EAP”). After speaking with Ms. Votolato, Ms. Malone reached out to the EAP for assistance. Ms. Malone provided the EAP representative with Ms. Votolato's phone number and asked if she would call Ms. Votolato. Because the EAP representative could not reach Ms. Votolato, Ms. Malone contacted the local police to perform a wellness check, which confirmed that Ms. Votolato was safe.

         Ms. Votolato says Verizon suspended her for two weeks in June 2015 allegedly because she lacked sufficient available FMLA leave.

         5. The Christopher Williams Retaliation Incident

         In approximately July 2015, Christopher Williams, a fellow union member, reported to the union business manager, Rita Sweeny, who is not a Verizon employee, that Ms. Votolato had shown him a cell phone video of a naked man in a hot tub. According to Ms. Votolato, Ms. Sweeny then called her and yelled at her regarding the incident. Ms. Sweeny specifically said, “Because of you we have someone out on the street. . . . You went running to management. We're like a family. We have our way of working things out.” When Ms. Votolato went to Mr. Williams ...


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