Introduction
This is an action brought by Kimberly Thirkield against Defendants Neary & Hunter OB/GYN, LLC, Dr. Todd Hunter, Faye Hunter, Kathy Cregg and Paul Rieth for violations of federal and state anti-discrimination laws. Plaintiff alleges that she was sexually harassed in the workplace (Counts I, III and V), that she was retaliated against for reporting the sexual harassment (Counts II, IV, VI, VIII, X, and XII), and that certain defendants aided and abetted the harassment and retaliation (Counts VII, IX, XI). For the reasons that follow, the Defendants’ motion for summary judgment is granted as to all claims except Count V.
Background
This lawsuit arises out of alleged sexually harassing conduct by Defendant Faye Hunter toward other employees of Neary & Hunter OB/GYN. Neary & Hunter OB/ GYN is small, family-run obstetrics and gynecology practice located in Worcester, Massachusetts. The practice is owned and operated by Dr. Brenda Neary and Defendant Dr. Todd Hunter (“Dr. Hunter”). Plaintiff Kimberly Thirkield (“Plaintiff’) worked as a medical assistant at Neary & Hunter from January 2010 to April 2012. Defendant Faye Hunter (“Faye” or “Faye Hunter”) is the daughter of Dr. Hunter and worked as a receptionist at Neary & Hunter from January 2011 to August 2013. Defendants Kathy Cregg (“Cregg”) and Paul Rieth (“Rieth”) are the Office Manager and Practice Manager at Neary & Hunter, respectively. Their job responsibilities include developing and implementing office policies and procedures, as well as handling employee-related disputes, discipline, or other issues. Julie Hunter — the wife of Dr. Hunter and mother of Faye Hunter — also works as a medical assistant at Neary & Hunter, although she is not a named party in this lawsuit. ■ Cregg is Julie Hunter’s sister and Faye’s aunt. Neary & Hunter OB/GYN additionally employs a handful of other medical assistants, medical secretaries, and/or other staff.
Plaintiffs complaint asserts that on multiple occasions, Faye Hunter sexually harassed Plaintiff by groping her and making sexualized comments toward her. Plaintiff also alleges that Faye engaged in similar conduct toward other employees of Neary & Hunter, and that Plaintiff found this offensive. Plaintiff informed her supervisor, Defendant Cregg, of Faye’s conduct for the first time on February 29, 2012. Plaintiff provided a handwritten list to Cregg that described the following incidents:
1) On January 25, 2012, while Plaintiff was in the office phone room, Faye Hunter grabbed Plaintiffs breasts and said “oh, you know you want it.” Plaintiff backed away and told Faye Hunter to stop and that such conduct was inappropriate.
2) On February 12 or 13, 2012, while Plaintiff was in the office lunch room, Faye Hunter grabbed Plaintiffs breasts. Plaintiff again backed away and told Faye Hunter to stop and that such conduct was inappropriate. Faye Hunter told Plaintiff to “lighten up.”
3) On February 22, 2012, Plaintiff witnessed Faye Hunter grab the breasts of another employee, Tara Doherty, in the office phone room. Doherty was laughing and commented “it doesn’t bother me.”
4) On February 29, 2012, while Plaintiff was just outside the office lunchroom, Faye Hunter placed her left hand onPlaintiffs buttocks, winked at Plaintiff, and walked away.
After Plaintiff provided these details to Cregg, Cregg informed Rieth of Plaintiffs report. Cregg and Rieth subsequently met with Plaintiff to discuss her allegations against Faye. During that meeting, Cregg and Rieth apologized to Plaintiff, stated that Faye’s conduct was unacceptable in an office setting, assured Plaintiff they would speak with Faye about the inappropriate touching, and stated that they would follow up with Plaintiff after the meeting with Faye. Plaintiff requested that her complaint be kept confidential because she was fearful of being chastised by other employees in the small family office. At the end of the meeting, Plaintiff expressed her gratitude to Cregg and Ri-eth for addressing her concerns.
At some point during February 2012, medical assistant Alexandra Cook was also made uncomfortable by Faye’s touching and sexualized comments. In late February, Cook reported Faye’s conduct to Cregg, although the parties dispute the precise date that this occurred. In hopes of showing that Neary & Hunter management should have acted to stop Faye’s touching earlier, Plaintiff claims that Cook first reported Faye’s sexually harassing conduct several days before February 29, 2012. The Defendants, as well as Cook herself, assert that Cook’s meeting with Cregg occurred on February 29, 2012 — .the same day that Plaintiff reported Faye.
On March 2, 2012, Cregg and Rieth met with Faye regarding the incidents of alleged touching. The parties disagree about the details of that meeting, and about whether Cregg and Rieth followed up with Plaintiff following the meeting with Faye. It is undisputed that Cregg and Rieth told Faye that touching other employees in the office was inappropriate, and that Plaintiff did not experience any further inappropriate touching. However, Plaintiff claims that Faye’s conduct did not stop, because she witnessed Faye grab Alexandra Cook’s breasts again in late March. Cook denies that the incident in late March ever occurred.
Although Plaintiff was not touched again by Faye after she reported the harassment, things at work did not improve. Plaintiff says that after she told her supervisors about Faye’s conduct, other employees began to ignore her. Specifically, Plaintiff alleges that Faye Hunter, Julie Hunter, and employees Tara Doherty and Mary Jo Peters began giving her the “cold shoulder” in retaliation for reporting Faye’s sexually harassing conduct. Plaintiff makes no claim that she was disciplined, lost pay, or lost benefits as a result of reporting Faye’s touching. However, Plaintiff alleges that the work environment was so hostile that she had no choice but to leave Neary & Hunter.
On April 2, 2012, Plaintiff met with Dr. Neary to resign. Plaintiff initially indicated to Dr. Neary that one of the reasons for her resignation was that she was not getting enough hours. Plaintiff went on to explain, however, that another motivation for her resignation was the sexual harassment by Faye and the “cold shoulder” she experienced from other employees after reporting Faye’s conduct to Cregg and Rieth. Prior to Plaintiffs resignation, neither Dr. Neary nor Dr. Hunter were aware of Plaintiffs allegations against Faye.
Based on the circumstances leading to her resignation, Plaintiff filed a complaint against Neary & Hunter OB/GYN with the Equal Employment Opportunity Commission on April 30, 2012. Plaintiff filed the instant action against the Defendants on August 31, 2012.
Summary Judgment Standard
Federal Rule of Civil Procedure 56 provides that the court shall grant summary judgment if the moving party shows, based on the materials in the record, “that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). A factual dispute precludes summary judgment if it is both “genuine” and “material.” See Anderson v. Liberty Lobby,
The moving party is responsible for “identifying those portions [of the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett,
Sexual Harassment Claims: Counts I, III, and V
Plaintiff asserts three counts of sexual harassment. Count I alleges violations of Title VII of the Civil Rights Act of 1964 by Neary & Hunter OB/GYN. Count III alleges violations of the Massachusetts anti-discrimination statute, M.G.L. c. 151B, by Neary & Hunter OB/GYN. Count V alleges violations of M.G.L. c. 151B by Faye Hunter as an individual. Unlike Title VII, which only provides for employer liability for claims brought under the statute, 151B does allow claims against individual employees. See Thomas v. EDI Specialists,
Title VII and 151B claims against Neary & Hunter OB/GYN
Title VII and M.G.L. c. 151B protect employees from sex-based employment discrimination, including sexual harassment. See Gerald v. Univ. of P.R.,
(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.
Ponte v. Steelcase Inc.,
The fourth and sixth requirements of the prima facie claim for sexual harassment are worthy of more extensive discussion. Defendants rest much of their motion for summary judgment on the argument that Faye Hunter’s conduct was not severe and pervasive. It is true that this requirement constitutes the “real
There is “no mathematically precise test” that a reviewing court employs to answer the question of severity and pervasiveness, “but several factors, none of which are individually determinative, are relevant: the severity of the conduct, its frequency, whether it is physically threatening or not, and whether it interfered with the victim’s work performance.” Gerald,
Plaintiff testified that Faye Hunter groped Plaintiffs breasts or buttocks on three occasions, and that she witnessed Faye inappropriately touch employees at least two other times. See Thirkield Dep. 47:13-48:5, 50:16-20, 57:8-18. The groping was accompanied by sexualized comments such as “oh, you know you want it.” Id. Cook corroborates much of Plaintiffs version of the story, and adds that Faye Hunter would tell employees, including Plaintiff, to “look at my boobs.” See Cook Dep. 30:18-19. Both Plaintiff and Cook were concerned enough about their ability to work in such an environment that they reported the conduct to Cregg and Rieth. See Thirkield Dep. 64:19-65:19; Cook Dep. 27:10-28:14. Taken together, and viewing the evidence in the light most favorable to the non-moving party, a reasonable factfin-der could conclude that the harassment experienced by Plaintiff was sufficiently severe and pervasive for purposes of her' claim.
However, the sixth element of Plaintiffs sexual harassment claim against Neary & Hunter is another matter. “To establish employer liability for a non-supervisory co-employee, a plaintiff must demonstrate that the employer knew or should have known of the charged sexual harassment and failed to implement prompt and appropriate action.” Crowley v. L.L. Bean, Inc.,
Plaintiff first argues that Cregg and Ri-eth knew about Faye Hunter’s sexual harassment prior to Plaintiffs complaint,
Defendants, however, point to significant evidence in the record — including Cook’s own deposition and affidavit, as well as the testimony of Cregg and Rieth — that states that Cook reported Faye’s conduct on the same day that Plaintiff first reported it, February 29. See Cook Aff. ¶5; Rieth Dep. 41:9-13; Cregg Dep. 10:1-11. The assertion that Cook must have told Cregg about Faye’s conduct on a Thursday simply because the report occurred during a meeting in which Cregg and Cook were discussing professionalism on the phone is not credible in light of the rest of the evidence in the record. See Medina-Rivera v. MVM, Inc.,
Next, Plaintiff argues that the response by Cregg and Rieth to Plaintiffs harassment complaint was insufficient to meet the “prompt and appropriate action” standard. “Determining what constitutes a ‘prompt and appropriate’ employer response to allegations of sexual harassment often requires the sort of case-specific, fact-intensive analysis best left to a jury.” Forrest,
The following facts regarding Neary & Hunter’s response to Plaintiffs complaint of sexual harassment are undisputed. On February 29, 2012, Plaintiff approached Cregg and made her first and only report about Faye’s inappropriate touching. Thirkield Dep. 64:19-23. Following that meeting, Cregg met with Rieth to discuss the conversation she had with Plaintiff. Cregg Dep. at 11:19-13:21, Rieth Dep. at 42:6-17. Cregg and Rieth then met with Plaintiff a second time to discuss the harassment further. Thirkield Dep. at 66:3-6. In that meeting, Rieth apologized to Plaintiff and stated that Faye’s conduct was unacceptable in an office setting. Id.
In the face of this record, Plaintiff argues that she witnessed Faye touch Cook in late March, nearly a month after her complaint. The implication is that Cregg and Rieth’s verbal reprimand was insufficient to stop the harassing conduct, and therefore was not an appropriate response. However, even taking Plaintiffs claim as true,
The undisputed facts of this case are clear. Once Plaintiff made her first and only complaint, Cregg and' Rieth met with her to discuss the harassment. Shortly thereafter, Cregg and Rieth met privately with Faye Hunter to address the complaint. Conscious of Plaintiffs request for confidentiality, they explained to Faye that touching other employees is inappropriate and must stop. Plaintiff presents only conclusory allegations to suggest that Cregg and Rieth did not take Plaintiffs complaint seriously. In light of these facts, no reasonable juror could find that Cregg and Rieth’s verbal reprimand was an inappropriate response at the time Plaintiff made her complaint. See Wilson,
There is no material fact question that would preclude summary judgment on the sixth requirement of Plaintiff’s prima facie claim for sexual harassment against Neary & Hunter OB/GYN. Therefore, summary judgment is appropriate on Counts I and III.
151B Claim against Faye Hunter
Under M.G.L. c. 151B, sexual harassment is defined as “sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when ... such advances, requests or conduct have the purpose or effect of unreasonably interfering with an individual’s work performance by creating an intimidating, hostile, humiliating or sexually offensive work environment.” G.L. c. 151B, § 1(18). The Massachusetts Supreme Judicial Court (SJC) has stated that for a plaintiff to prevail, she must “show that the ‘conduct alleged was sufficiently severe and pervasive to interfere with a reasonable person’s work performance,’ and that she found the conduct ‘subjectively offensive.’ ” Dahms v. Cognex Corp.,
The prima facie case for sexual harassment described above is derived from Title VII cases in which the plaintiff brought claims against the employer, not an individual employee. It follows, then, that for purposes of Plaintiffs individual claim against Faye Hunter under 151B, she need not show the sixth requirement of the prima facie claim: a basis for employer liability. As Count V of Plaintiffs complaint is brought against Faye Hunter — not the employer — there is no need for Plaintiff to show a basis for Neary & Hunter’s liability.
Applying the same analysis used for the claims against Neary & Hunter to the claim against Faye Hunter under 151B, Plaintiff has made out a prima facie claim for sexual harassment. There is sufficient evidence in the record for a reasonable factfinder to conclude that Plaintiff was subjected to unwelcome sexual harassment, that the harassment was severe and pervasive, and that the harassment was both objectively and subjectively offensive.
Retaliation Claims: Counts II, IV, VI, VIII, X, XII
Plaintiffs retaliation claims under both the federal and state anti-discrimination statutes are governed by the burden-shifting framework of McDonnell Douglas Corp. v. Green,
Defendants concede that by reporting Faye Hunter’s sexually harassing conduct, Plaintiff engaged in a protected activity under the anti-discrimination statutes. However, Defendants argue that there is no evidence in the record to suggest that Plaintiff has suffered an adverse employment action as a result of her decision to report the sexual harassment. I agree. To fulfill the adverse action element of the claim, a plaintiff must show that her employer took some objectively and materially adverse action against her because she opposed a practice forbidden by the anti-discrimination statutes. Bhatti v. Trustees of Boston Univ.,
Plaintiffs claim rests on the assertion that after reporting Faye’s conduct, other employees of Neary & Hunter gave Plaintiff the “cold shoulder” to such an extent that it constituted a constructive discharge. Unanimous authority holds, however, that a Plaintiff who is shunned or
Nor can Plaintiff shoehorn the “cold shoulder” into a materially adverse employment action by calling it a constructive discharge. To be sure, the First Circuit has recognized that a discharge is a paradigmatic example of an adverse employment action, see Bergeron v. Cabral,
Drawing all inferences in Plaintiffs favor, the evidence does not establish that the working conditions she experienced as a result of the “cold shoulder” were so intolerable that a reasonable person would be forced to resign. The constructive discharge standard is unequivocally difficult to meet. See, e.g., Henricks,
Plaintiff cites no cases in which the “cold shoulder” or similar bullying conduct was
The “cold shoulder” is insufficient under the law to establish an adverse employment action or a constructive discharge under Title VII and M.G.L. c. 151B. Therefore, I find there is no material fact dispute that would preclude summary judgment on Plaintiffs retaliation claims. Summary judgment is appropriate for Counts II, IV, VI, VIII, X, XII.
Aiding and Abetting Claims: Counts VII, IX, XI
Plaintiff asserts three claims ■ for aiding and abetting discrimination under M.G.L. c. 151B against Dr. Todd Hunter, Kathy Cregg, and Paul Rieth, respectively. Section 4(5) of Chapter 151B prohibits “any person, whether an employer or an employee or not, to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this chapter or to attempt to do so.” M.G.L. c. 151B § 4(5). Liability for aiding and abetting discrimination has been interpreted to extend to' “individuals, including co-employees of the allegedly aggrieved employee.” Chapin v. Univ. of Mass, at Lowell,
(1) [ ] committed a wholly individual and distinct wrong ... separate and distinct from the claim in main; (2)[ ] shared an intent to discriminate not unlike that of the alleged principal offender; and (3)[ ] knew of his or her supporting role in an enterprise designed to deprive [Plaintiff] of a right guaranteed [ ] her under G.L. c. 151B.
Lopez v. Commonwealth,
However, Cregg and Rieth’s decision to not share details of a sensitive complaint with others in the office does not suggest that their response was so inadequate that it amounted to aiding and abetting harass
There is no material fact dispute that would preclude summary judgment on Plaintiffs aiding and abetting claims, and the defendants are entitled to a judgment as a matter of law on Counts VII, IX, and XI.
Conclusion
For the reasons set forth above, the Defendants’ motion for summary judgment is granted in part and denied in part. Summary judgment is granted on Counts I, II, III, IV, VI, VII, VIII, IX, X, XI, XII. Summary judgment is denied on Count V. SO ORDERED.
Notes
. For this reason, courts in this district often use a single analysis for discrimination claims
. The First Circuit has recognized multiple varieties of claims for discrimination based on sexual harassment, including hostile work environment, quid pro quo, and retaliation. Forrest v. Brinker Inter. Payroll Co., LP,
. The claim that Faye touched Cook in late March is contradicted by significant evidence in the record. Cook herself denies it ever occurred. Cook Aff. ¶ 7; Cook Dep. 35:10-15. This is noteworthy, given that Cook was willing to report previous touching to her supervisors and testified about those instances in her deposition. Further, there is no evidence that this incident was witnessed by anyone other than Plaintiff, and Plaintiff never reported it to her supervisors. See Thir-kield Dep. 73:3-10. Nevertheless, this Court must view the record in the light most favorable to Plaintiff for purposes of this summary judgment motion.
. Even if the Court were to consider the incident in late March in determining the appropriateness of Cregg and Rieth’s response, the fact that Faye touched Cook is only minimally probative of whether Cregg and Rieth’s response to Plaintiffs complaint was appropriate. Plaintiff indeed concedes that she herself never experienced inappropriate touching after she made her complaint.
. The definition of protected activity under Massachusetts law is similar. A plaintiff has engaged in protected activity if "he has opposed any practices forbidden under this chapter or because he has filed a complaint, testified or assisted in any proceeding under [the statute].” M.G.L. c. 151B § 4(4).
. Adverse action under the Massachusetts statute is defined as: "any action 'to coerce, intimidate, threaten, or interfere with’ the plaintiff.” Dixon,
. At the summary judgment hearing on November 6, 2014, Plaintiff took the opposite approach, arguing that Cregg and Rieth are liable for aiding and abetting because they told others in the office about Faye Hunter's harassment, which caused other employees to give Plaintiff the cold shoulder. Despite Plaintiff's attempt to have it both ways, this argument also fails. There is no indication in the record that Cregg and Rieth spoke to anyone other than Faye Hunter about the allegations made by Plaintiff. In fact, there is evidence that employees found out about the allegations through Faye Hunter herself— Faye’s mother Julie, also a Neary & Hunter employee, testified that Faye told her about the allegations. See Julie Hunter Dep. 6:3:12. In any event, relief would not available for one who merely aids and abets the cold shoulder, because the cold shoulder is not "an act forbidden” under 151B. See Malloch v. Town of Hanover, No. 08-CV-10412-LTS,