MEMORANDUM AND ORDER
I. Introduction
Plaintiff Shonnett Sisco (“Sisco”) accuses her former employer, DLA Piper, and three of its employees, Lawrence Uehill, Susan Scannell and Bruce Falby (collectively, “the Defendants”), of sexual harassment, creating a hostile work environment, racial discrimination, and retaliation in violation of both federal and state law. The Defendants have moved to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that Sisco has failed to state a claim upon which relief can be granted. For the reasons discussed below, the Defendants’ motion to dismiss is GRANTED IN PART and DENIED IN PART.
II. Burden of Proof and Standard of Review
Whether a complaint should survive a motion to dismiss depends upon whether the pleading satisfies the “plausibility” standard. Ashcroft v. Iqbal,
“In resolving a motion to dismiss, a court should employ a two-step approach.” Ocasio-Hernández,
In the employment discrimination context, it is not necessary for a plaintiff to plead facts supporting each element of a claim, provided that whatever facts are pled allow the Court to plausibly infer liability. As the Supreme Court has stated on multiple occasions, “a complaint in an employment disсrimination lawsuit [need] not contain specific facts establishing a prima facie case of discrimination.” Twombly,
III. Factual Allegations
The following facts are alleged in the complaint and are taken as true for the purposes of this motion. Purportedly factual allegations in the complaint that are mere legal conclusions couched as fact or threadbare recitals of the elements of a legal cause of action have been disregarded by the Cоurt and are not included in the following factual summary. Ocasio-Hernández,
DLA Piper is a law firm with offices in Boston. In 2005, DLA Piper hired Sisco, an African-American woman, as a floating special assignment secretary (“floater”). In July 2006, Sisco was promoted to the position of legal secretary. She was assigned to work for two partners at the firm, including Defendant Lawrence Uchill (“Uchill”).
A. Uchill’s Alleged Harassment of Sisco
Beginning in January 2008, Uchill began standing over Sisco while she was sitting at her desk and, in this hovering position, he stared at her chest. In February 2008, Uchill told Sisco that he wanted to take her out to lunch to find out what was on her mind and instructed Sisco to make arrangements for the two of them to have lunch at a restaurant of her choice. Sisco had never indicated to Uchill that anything out of the ordinary was on her mind. After Sisco schеduled the lunch, Uchill began frequently winking and smiling suggestively at her. Uchill had not engaged in this behavior with Sisco previously. Sisco can-celled the lunch. He became nervous and asked Sisco if she had been offended by his asking her to lunch. The complaint does not indicate Sisco’s response. Uchill continued winking at Sisco even after she cancelled the lunch.
On April 1, 2008, Uchill gave Sisco a set of sexually loaded lyrics that Sisco found offensive and instructed Sisco to type them.
B. Sisco Complains about Alleged Sexual Harassment
On April 10, 2008, Sisco contacted DLA Piper’s human resources office (“HR”) by phone and e-mail and complained not just about Uchill’s, but Scannell’s, conduct as well.
C. Sisco’s Reassignment and Scannell’s Alleged Harassment and Retaliatory Conduct
At some point between April 10 and April 14, 2008, Sisco was reassigned, over her objection, to a position as a floater, the same position she had held when she first joined the firm in 2005. This reassignment reduced her eligibility for the higher pay аnd bonuses received by legal secretaries. After Sisco was reassigned, Scannell took her place working for Uchill. Scannell tried several times to get Sisco to return to her former work area and into proximity with Uchill, under what Sisco describes as the “pretense” of asking Sisco for help with 'Scannell’s work for Uchill. Compl. at ¶ 57. Sisco refused and instead gave Scannell all the information necessary so Scannell could perform the relevant tasks herself. Scannell became angry with Sisco, saying Sisco was making things difficult and scolding Sisco for refusing to return to Uchill’s work area. On April 14, 2008, Sisco reported Scannell’s conduct to HR, asserting that the conduct was retaliation for Sisco’s sexual harassment complaint against Uchill and Scannell. HR did not invеstigate or take any other action.
On April 15, 2008, Scannell falsely accused Sisco of stealing a box of Scannell’s personal belongings, asserting, over Sisco’s repeated protestations, that Scannell had seen the box near Sisco’s feet. Scannell repeated the accusation to another DLA Piper employee. Later that day, Sisco tearfully complained to Petrola and Charmichael in HR about Scannell’s conduct, which Sisco described as retaliatory and harassing. They told Sisco they would contact her later to begin an investigation of her claims of sexual harassment and retaliation. Neither Charmichael nor Petrola nor any other HR representative ever contacted Sisco to begin this invеstigation.
In June 2008, Sisco received her performance review for the year running from May 1, 2007 until April 30, 2008. Although Sisco had worked as a legal secretary, not a floater, for forty-nine of the fifty-two weeks in the review period, the review stated that the position being reviewed as “Special Assignment Secretary” (the formal title for floaters). The substance of the review was mostly positive — the overall rating was “highly skilled,” as were most of the individual ratings in the review — but HR staffer Petrola included some negative comments that were, according to Sisco, untrue and based on events that had never occurred.
D. Sisco, Now a Floater, Is Not Considered for a Legal Secretary Opening for Defendant Falby
In July 2008, Petrola informed Sisco that Sisco could not take her two-week vacation from August 13, 2008 until August 27, 2008 despite that it had been previously approved. Petrola rescheduled Sisco’s vacation for the end of August 2008 through the beginning of September 2008.
While Sisco was away from the office on vacation, DLA Piper moved to fill a vacant legal secretary position reporting to Defendant Bruce Falby, a partner at the firm. Sisco was neither informed of this vacancy nor allowed to compete for it. Upon returning from her vacation, she discovered that the position had been given to Jane Borr, a fellow floater. Sisco, unlike Borr, had previous experience working as a legal secretary. Sisco had positive performance evaluations from her time as a legal secretary. Sisco had more seniority than Borr. Sisco is black and Borr is white. Sisco had complained about sexual harassment and retaliation to HR and Borr had not.
On October 8, 2008, Sisco met with Charmichael to discuss some information Sisco had missed due to sick leave.
Sometime in September or October 2008, Sisco discovered that, beginning in June 2008, HR and Falby had offered the position of Falby’s legal secretary to at least three other internal candidates — one legal secretary, one night secretary, and one secretary in the Litigation group— without first posting the position publicly. All three candidates had less experience than Sisco working as a legal secretary, all three candidates were Caucasian, and none of the three candidates had complained to HR about sexual harassment or retaliation.
In October 2008, Sisco inquired abоut the process that led to Borr receiving the position of Falby’s legal secretary. On October 22, 2008, DLA Piper representative Margaret Keefe informed Sisco by email that the position “was not posted, and it was not posted by design,” that “assignments will be changed by the discretion of management,” and that the decision to fill the position was made by Petrola in consultation with Charmichael. Later that day, Sisco responded to Keefe by e-mail, alleging that Sisco had not been considered for the position as Falby’s legal secretary at least in part on the basis of Sisco’s race. This allegation of racial discrimination was never investigated.
E. Defendant DLA Piper Allegedly Retaliates Against Sisco
In the wake of Sisco’s complaints about her treatment, she alleges that, not only was she reassigned as a floater, but also that Uchill continued to act inappropriately toward her. She claims that in early October 2008, Uchill “frowned at” Sisco
She also alleges that DLA Piper took further retaliatory action against her after she filed formal charges on November 5, 2008 with the Massachusetts Commission Against Discrimination (“MCAD”) and the federal Equal Employment Opportunity Commission (“EEOC”) alleging hostile work environment and retaliation. On December 2, 2008, DLA Piper, Uchill and Scanned received a copy of Sisco’s complaint from the MCAD. They submitted their response on January 7, 2009. On February 9, 2009, Sisco submitted her rebuttal via her attorneys to the MCAD and sent copies to DLA Piper, Uchill and Scanned via certified mail.
On February 12, 2009, three days after Sisco filed her response to the Defendants’ response to her MCAD claim, DLA Piper fired Sisco. DLA Piper also fired a few part-time employees, including the only other floater. At the time of her termination, Sisco was the only African-American legal secretary or floater in the entire DLA Piper Boston office. A11 other legal secretaries, including Jane Borr, kept their positions.
IV. Procedural History
After filing her initial charge with the MCAD and the EEOC on November 5, 2008 alleging sexual harassment, discrimination, and retaliation, she filed additional charges with the MCAD and the EEOC on February 23, 2009 and April 22, 2009. On December 2, 2009, the MCAD dismissed Sisco’s chаrges without holding a hearing. On February 11, 2010, the EEOC issued right-to-sue letters to Sisco. Sisco filed the instant complaint in federal court on March 26, 2010.
Defendants have now moved to dismiss the case pursuant to Fed.R.Civ.P. 12(b)(6).
V. Discussion
A. Sexual Harassment and Hostile Work Environment Claims under Title VII (First Cause of Action)
The elements a plaintiff must establish to succeed on a Title VII hostile work environment claim against his or her employer are: (1) that she is a member of a protected class; (2) that she was subjected to unwelcome sexual harassment; (3) that the harassment was based upon sex; (4) that the harassment was sufficiently severe or pervasive so as to alter the conditions of plaintiffs employment and create an abusive work environment; (5) that sexually objectionable conduct was both objectively and subjectively offensive, such that a reasonable person would find it hostile or abusive and the victim in fact did perceive it to be so; and (6) that some basis for employer liability has been established. Agusty-Reyes v. Dep’t of Educ. of P.R.,
Two of these elements merit additional explanation. The fourth element, severity or pervasiveness sufficient to alter the conditions of employment, “requires an assessment of the totality of the circumstances, including ‘the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.’ ” Valentín-Almeyda v. Municipality of Aguadilla,
1. Claim against DLA Piper
The facts alleged in Sisco’s complaint are suffiсient to withstand the Defendant’s motion to dismiss the hostile work environment claim against Defendant DLA Piper. Sisco is a member of a protected class by virtue of her sex. 42 U.S.C. § 2000e-2(a)(l). Sisco clearly did not welcome the treatment to which she was allegedly subjected. The alleged treatment includes sexual harassment and the establishment of a hostile work environment, each of which is discrimination on the basis of sex. Meritor Sav. Bank v. Vinson,
2. Claims against Uchill and Scannell
“There is no individual liability under Title VII.” Fantini v. Salem State Coll.,
B. Sexual Harassment and Hostile Work Environment Claims under Chapter 151B (Second Cause of Action)
The definition of “sexual harassment” in Chapter 151B includes
1.Claim against DLA Piper
The facts alleged in Sisco’s complaint that give rise to a plausible Title VII claim against DLA Piper, as discussed above, are equally sufficient to give rise to a plausible Chapter 151B claim against the firm.
2.Claim against Uchill
The factual allegations in the complaint, included but not limited to the allegations that Uchill repeatedly leered at Sisco, repeatedly touched her, instructed her to organize a private lunch for the two of them, acted suggestively once the lunch was scheduled, and acted in a hostile manner towards Sisco after his alleged advances were rebuffed, coupled with the fact that Sisco sought to transfer to a position away from Uchill, support a plausible inference that Uchill’s conduct was “sufficiently severe and pervasive to interfere with a reasonable person’s work performance.” Muzzy, 434 Mass, at 411,
3.Claim against Scannell
Allegations that Scannell left a sexually suggestive e-mail on Sisco’s desk, repeatedly tried to lure Sisco back into Uchill’s working area, scolded Sisco for refusing to do so, and then repeatedly spread false accusations about Sisco around the office in a manner sufficiently intimidating to drive Sisco to tears, taken in their totality, support a plausible inference that Scannell’s conduct was “sufficiently severe and pervasive to interfere with a reasonable person’s work performance.” Muzzy, 434 Mass, at 411,
C. Retaliation Claims (Related to Sexual Harassment) under Title VII (Third Cause of Action)
Under Title VII’s anti-retaliation provisions, a plaintiff must plead a prima facie case consisting of three elements: (1) “that the plaintiff engaged in an activity that is protected by the statute”; (2) “that the plaintiff suffered an adverse employment action”; and (3) “a causal link between the protected activity and the adverse employment action.” Rivera-Colón v. Mills,
1. Against DLA Piper
The complaint alleges that Sisco complained to HR about sexual harassment and a hostile work environment and that she was demoted within a matter of days. It further alleges that after she complained to HR, DLA Piper prevented Sisco from applying for a promotion to position of Falby’s legal secretary while simultaneously actively soliciting lesser-qualified candidates for the position. The complaint also alleges that Sisco was fired soon after filing a complaint with the MCAD. This is more than sufficient to establish a plausible Title VII retaliation claim against DLA Piper.
D. Retaliation Claims (Related to Sexual Harassment) under Chapter 151B (Fourth Cause of Action)
Under Chapter 151B, “[i]n the absence of direct evidence of a retaliatory motive, to make out a prima facie case of retaliation, the plaintiff must show that he engaged in protected conduct, that he suffered some adverse action, and that a causal connection existed between the protected conduct and the adverse action.” Psy-Ed Corp. v. Klein,
1. Claim against DLA Piper
The facts alleged in Sisco’s complaint that give rise to a plausible Title VII retaliation claim against DLA Piper, as discussed above, are equally sufficient to give rise to a plausible Chapter 151B retaliation claim against the firm.
E.Aiding and Abetting Retaliation Claims (Related to Sexual Harassment) under Chapter 151B (Fourth Cause of Action)
Claims under Chapter 151B are “derivative” of underlying discrimination claims, so there can be no liability for aiding and abetting discrimination absent a meritorious underlying claim of discrimination. Abramian v. President & Fellows of Harvard Coll.,
1. Claim against Uchill
The complaint alleges that HR met with Uchill after Sisco complained about his treatment of her. It further alleges that after this meeting, Uchill gestured at her in a hostile manner that was noticed by other employees and was discourteous to her. More importantly, it alleges that Scannell, who became Uchill’s legal secretary after Sisco was demoted to the position of floater secretary, aggressively encouraged Sisco to return to Uchill’s work area and subjected her to repeated abuse when she refused. This conduct is separate and distinct from the claim that DLA Piper retaliated against Sisco by demoting and then firing her. The allegations are sufficient to plausibly permit an inference that Uchill shared DLA Piper’s intent to retaliate against Sisco for complaining about Uchill’s allegedly harassing conduct and about Sisco’s hostile work environment more generally. Accordingly, the facts alleged in Sisco’s complaint give rise to a plausible Chapter 151B retaliation claim against Uchill.
2. Claim against Scannell
Although the complaint does not allege that HR met with Scannell, it does allege that HR met with her supervisor and that Sisco made repeated complaints to HR specifically about Scannell. It further alleges that after Sisco complained about Uchill, Scannell scolded Sisco for refusing to go near Uchill’s work area, and that after Sisco complained about Scannell, Scannell spread false accusatiоns about Sisco around the office sufficient to drive Sisco to tears. These courses of conduct are separate and distinct from the claim that DLA Piper retaliated against Sisco by demoting and then firing her. The allegations are sufficient to plausibly permit an inference that Scannell shared DLA Piper’s intent to retaliate against Sisco for complaining about Uchill and Scannell’s allegedly harassing and retaliatory conduct. Accordingly, the facts alleged in Sisco’s complaint give rise to a plausible Chapter 151B retaliation claim against Scannell.
F. Race Discrimination Claim under Title VII (Fifth Cause of Action)
“Under the burden shifting analysis applicable to both the federal [Title VII] and state [Chapter 151B] statutory regimes, [a] [p]laintiff must first establish a рrima facie case of employment discrimination by demonstrating that (1) [s]he is a protected class member, (2) [s]he performed up to [the] defendant’s legitimate job expectations, and (3) [s]he suffered an adverse job action.” Allder v. Daniel O’Connell’s Sons,
1. Claim against DLA Piper
The complaint clearly states that Sisco is African-American, and that de
G. Retaliation Claim (Related to Race Discrimination) under Title VII (Fifth Cause of Action)
Again, under Title VII’s anti-retaliation provisions, a plaintiff must plead a prima facie case consisting of three elements: (1) “that the plaintiff engaged in an activity that is protected by the statute”; (2) “that the plaintiff suffered an adverse employment action”; and (3) “a causal link between the protected activity and the adverse employment action.” Riveras-Colón,
1. Claim against DLA Piper
The complaint also alleges that Sisco was fired soon after telling HR that she thought she was passed over for the position of Falby’s legal secretary at least in part on the basis of her race and subsequently filing a complaint to that effect with the MCAD. This is more than sufficient to permit a causal inference and thus to establish a plausible Title VII retaliation claim against DLA Piper.
H. Race Discrimination Claims under Chapter 151B (Sixth Cause of Action)
Again, “[u]nder the burden shifting analysis applicable to both the federal [Title VII] and state [Chapter 151B] statutory regimes, [a] [p]laintiff must first establish a prima facie case of employment discrimination by demonstrating that (1) [s]he is a protected class member, (2) [s]he performed up to [the] [defendants legitimate job expectations, and (3) [s]he suffered an adverse job action.” Allder,
1.Claim against DLA Piper
The facts alleged in Sisco’s complaint that give rise to a plausible Title VII race discrimination claim against DLA Piper, as disсussed above, are equally sufficient to give rise to a plausible Chapter 151B race discrimination claim against the firm.
2. Claim against Falby
The complaint alleges that when white candidates less qualified than Sisco were approached about the possibility of working as Falby’s legal secretary, the approach was made not only by HR or by DLA Piper generally but also by Falby himself. Again, Chapter 151B explicitly imposes liability on individuals. Mass.G.L. c. 151B, § 4(4A). At least at this juncture, upon review of the complaint under the plausibility standard, the Chapter 151B claim against Falby may stand.
I. Retaliation Claim (Related to Race Discrimination) under Chapter 151B (Sixth Cause of Action)
Again, under 151B, “[i]n the absence of direct evidence of a retaliatory motive, to make out a prima facie case of retaliation, the plaintiff must show that he engaged in protected conduct, that he suffered some adverse action, and that a causal connection existed between the protected conduct and the adverse action.” Psy-Ed Corp.,
1. Claim against DLA Piper
The facts alleged in Sisco’s complaint that give rise to a plausible Title VII claim against DLA Piper, as discussed above, are equally sufficient to give rise to a plausible Chapter 151B claim against the firm.
According to the allegations in the complaint, the first time Sisco engaged in protected conduct vis-a-vis her allegations of race discrimination was on October 22, 2008, when she sent a DLA Piper representative an e-mail alleging that she had not been considered for the position as Fаlby’s legal secretary at least in part on account of her race. The only allegation of retaliation related to this conduct (as opposed to retaliation related to Sisco’s complaints of sexual harassment) mentioned in the complaint is Sisco’s subsequent termination by DLA Piper. The complaint does not allege that Falby was personally responsible for the decision to terminate Sis-co; the only adverse action the complaint attributes to Falby personally is his alleged participation in a scheme to deny Sisco a promotion to the position of serving as Falby’s legal secretary. Accordingly, the complaint does not allege any causal connection between Sisco’s allеgations of race discrimination and Falby’s alleged adverse actions, and thus the allegations in the complaint do not give rise to a plausible Chapter 151B retaliation claim against Falby individually.
J. Claims of Aiding and Abetting Race Discrimination and Retaliation (Related to Race Discrimination) under Chapter 151B (Sixth Cause of Action)
Again, claims under Chapter 151B are “derivative” of underlying discrimination claims, so there can be no liability for aiding and abetting discrimination absent a meritorious underlying claim of discrimination. Abramian,
1. Claim against Falby for Aiding and Abetting Race Discrimination
The complaint only alleges one “wholly individual and distinct wrong” against Falby, which, as discussed, is his participation in a scheme to deny Sisco a promotion. As noted above, that allegation is sufficient to permit a plausible Chapter 151B race discrimination claim against Falby. But the allegations against Falby and DLA Piper also permit a different set of plausible inferences-that, in the context of the decisionmaking process that led to Sisco being denied an opportunity to apply for the position of Falby’s legal secretary, Falby’s conduct in and of itself did not rise to the level of race discrimination (because, for example, Falby lacked sufficient personal control over the hiring process), that DLA Piper’s distinct and separate conduct did, and that Falby’s “wholly individual and distinct wrong” aided and abetted the discriminatory _ conduct by DLA Piper that forms Sisco’s “claim in main.” At this preliminary stage of the litigation, the allegation against Falby in Sisco’s complaint is sufficient to give rise to a plausible Chapter 151B claim against Falby for aiding and abetting DLA Piper’s alleged race discrimination.
2. Claim against Falby for Aiding and Abetting Retaliation (Related to Race Discrimination)
The only wrong lеveled against Falby in the complaint allegedly occurred
VI. Conclusion
For the reasons discussed above, Defendants’ motion to dismiss is GRANTED as to 1) the Title VII sexual harassment and hostile work environment claims against Uchill and Scannell, as set forth in the complaint’s first cause of action, 2) the Chapter 151B retaliation claim against Falby, as set forth in the complaint’s sixth cause of action, and 3) the Chapter 151B aiding and abetting retaliation (related to race discrimination) claim against Falby, as set forth in the complaint’s sixth cause of action, and is DENIED in all other respects.
So ordered.
Notes
.The lyrics Sisco was asked to type included the following statements:
• "Even though it's cold outside the staff in here is hot."
• "Rosie, Lulu, Frenchie, Texas, Fritzie ... Und Helga. Each and every one a virgin! You don’t believe me? Well, don't take my word for it. Go ahead — try Helga!”
• "Helga is the baby. I'm just like a father to her. So when she's bad, I spank her. And she's very, very, very, very, very bad.”
. It is not clear from the complaint whether the alleged "offensive physical contact” was Uchill's touching of Sisco's fingers or whether the "offensive physical contact” and the touching of her fingers were separate wrongful acts.
. On March 25, 2008, Defendant Susan Scannell, another DLA Piper secretary, left on Sisco’s desk an e-mail about a play entitled "7 Blowjobs.”
. The complaint does not specify the content of the negative comments.
. The complaint states that Sisco took off nearly 4 ¡6 days from work due to the hostile work environment, sexual harassment and the retaliation she experienced at DLA Piper. The complaint does not state the dates when Sisco took time off work, or whether this time off precipitated the October 8 meeting with Charmichael.