United States District Court, D. Massachusetts
DOUGLAS P. WOODLOCK UNITED STATES DISTRICT JUDGE.
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
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.
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.
The Larry Lastra Sexual Harassment Incident
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.
The Alleged Retaliatory Acts
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.
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.
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.
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.
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.
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.
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.”
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.
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.
The Facebook Post
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.
Votolato says Verizon suspended her for two weeks in June
2015 allegedly because she lacked sufficient available FMLA
The Christopher Williams Retaliation Incident
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 ...