GEORGE Z. SINGAL, District Judge.
Before the Court is Defendant Huhtamaki, Inc.'s ("Huhtamaki") Motion for Summary Judgment (ECF No. 39). The Motion has been fully briefed in accordance with the Court's May 26, 2013 Order & Report of Conference (ECF No. 26). For the reasons stated herein, the Court GRANTS IN PART & DENIES IN PART the Motion.
A party is entitled to summary judgment if, on the record before the Court, it appears "that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c)(2). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (emphasis in original). An issue is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248, 106 S.Ct. 2505. A "material fact" is one that has "the potential to affect the outcome of the suit under the applicable law." Nereida-Gonzalez v. Tirado-Delgado, 990 F.2d 701, 703 (1st Cir.1993) (citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505) (additional citation omitted).
The party moving for summary judgment must demonstrate an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In determining whether this burden is met, the Court must view the record in the light most favorable to the nonmoving party and give that party the benefit of all reasonable inferences in its favor. Santoni v. Potter, 369 F.3d 594, 598 (1st Cir. 2004).
Nonetheless, once the moving party has made its preliminary showing, the nonmoving party must "produce specific facts, in suitable evidentiary form, to establish the presence of a trialworthy issue." Triangle Trading Co. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir.1999) (citation and internal punctuation omitted); see also Fed.R.Civ.P. 56(e). "Mere allegations, or conjecture unsupported in the record, are insufficient." Barros-Villahermosa v. United States, 642 F.3d 56, 58 (1st Cir. 2011) (internal citations and quotations omitted); see also Wilson v. Moulison N. Corp., 639 F.3d 1, 6 (1st Cir.2011) ("A properly supported summary judgment motion cannot be defeated by conclusory allegations, improbable inferences, periphrastic circumlocutions, or rank speculation.") (internal citations omitted). "As to any essential factual element of its claim on which the nonmovant would bear the burden of proof at trial, its failure to come
Having reviewed the statements of material fact and supporting exhibits in accordance with Local Rule 56, the Court constructs the following narrative from the undisputed facts as well as the disputed material facts viewed in the light most favorable to the non-movant, in this case, Ramsdell:
Huhtamaki manufactures consumer and specialty packaging at its facility in Waterville, Maine. (Joint Stipulated Facts (ECF No. 37) ("JSF") ¶ 2.) Huhtamaki's Employee Handbook contains its anti-harassment policies, together with a procedure that employees can use to report any perceived harassment or retaliation. (Statement of Material Facts (ECF No. 40) ("SMF") ¶ 1.) Huhtamaki also requires all employees to attend bi-annual training sessions on harassment. (SMF ¶ 2.)
Huhtamaki is party to a collective bargaining agreement (the "CBA") with the United Steel Workers, Local 449 (the "Union"), which covers a majority of Huhtamaki's employees, including employees working in the Stacker Operator position. (JSF ¶ 5.) Pursuant to the CBA, Stacker Operators regularly have opportunities to work overtime, and are offered the opportunity in order of seniority. (JSF ¶ 9.) The CBA also requires that Stacker Operators be offered an opportunity to bid on new shifts based on seniority each November. (JSF ¶ 8.) Generally, Stacker Operators work three (3) twelve-hour shifts (6 a.m. to 6 p.m. or 6 p.m. to 6 a.m.) for three (3) consecutive days, and then have three (3) consecutive days off. There are four shifts of Stacker Operators, A, B, C, and D. Employees who work on the A-shift and B-shift work during the same three (3) days of the week, and relieve one another at 6 a.m. and 6 p.m. The same is true for employees who work on the C-shift and D-shift.
Ramsdell, who was employed as a Stacker Operator at Huhtamaki from April 19, 2004 until her February 18, 2010 suspension, received a copy of the Employee Handbook and was aware that Huhtamaki had anti-harassment and anti-retaliation policies. (JSF ¶¶ 2-4; SMF ¶ 56). As a Stacker Operator in Huhtamaki's Rough Finish Department, Ramsdell took newly-created products and stacked the products into boxes for shipping. (JSF ¶ 2.) Ramsdell believed she was an "outcast" from the time she began working at Huhtamaki because she was a "new person." (SMF ¶ 4.)
Most of the torment Ramsdell alleges she endured began in August of 2004 after she reported co-worker Scott Ottis ("Ottis") to representatives of the Union for swearing at her and for throwing and breaking brooms near her. (Id. ¶ 5; Statement of Material Facts in Support of Pl. Obj. to Mot. for Summary Judgment (ECF No. 48) ("PSMF") ¶ 5; Def. Reply to Pl. Statement of Additional Facts (ECF No. 54) ("Reply SMF") ¶ 80). Upon reporting Ottis, co-worker Ron Poulin ("Poulin") and some members of their clique
On August 6, 2004, Ramsdell reported to Huhtamaki's acting Human Resources Representative Paul Baker ("Baker"), that she was being sexually harassed by Poulin and Ottis.
On October 5, 2004, Ramsdell reported that Poulin approached her at her workstation; while pointing at Ramsdell, Poulin said to a male co-worker, "Fuck her, fuck her, fuck her."
On October 8, 2004, Ramsdell, Giguere, Rapp, Joe Barney ("Barney"), Michelle Johnson ("Johnson") and Ann Poehler ("Poehler") participated in a meeting at the Huhtamaki Human Resources office. (PSMF ¶ 84.) Ramsdell reported that Poulin would swear at her and walk behind her on the line where he could make derogatory gestures that she could not see. (PSMF ¶ 10.) On one occasion while Ramsdell was sitting in the mill lunchroom, Poulin remarked to a co-worker, "Look at her pursed lips, they are pursed just like her vagina." (Id.; Ex. D to Bates' Investigation (ECF No. 40-5) ("Exhibit D") at Page ID #725). Ramsdell also related that coworker Mitch Moberly ("Moberly") had previously crossed behind her and rubbed up against her backside. (Id. at ¶ 84.) Ramsdell reported that Daniel Pooler ("Pooler"), a former Union official, approached her and called her a troublemaker and that co-worker Linda Arnett ("Arnett"), yelled and swore at Ramsdell for reporting her co-workers' conduct. (Id.)
In October of 2004, Ramsdell moved to another shift so that she and Poulin would not work on the same scheduled shift. (SMF ¶ 15.) That same month, Huhtamaki agreed to pay Poulin or Ramsdell to stay at home when either could have taken overtime hours to avoid having them work on the same shift. (Id. ¶ 16.) Huhtamaki also allowed Poulin and Ramsdell to leave early or arrive late to avoid having them at the facility at the same time. (Id.)
On October 12, 2004, Ramsdell told Human Resources Manager Nina Walters ("Walters") that Poulin was coming up behind her and touching her buttocks.
Walter issued a report of her investigation regarding Ramsdell's harassment complaints on October 21, 2004. As indicated in that report, Walters recommended that Poulin and Ramsdell continue to work separate shifts. (Fact Finding Report (ECF No. 28-4).) Additionally, as a result of Walters' investigation, Huhtamaki issued Poulin a written warning on October 22, 2004, and required him to attend both harassment training and sensitivity training through the company's Employee Assistance Program. (SMF ¶ 11.) Ramsdell was satisfied with the Walters' investigation. (SMF ¶ 12.) On October
From October 2004 to August 2005, Ramsdell reported that the "first hands" — employees assisting with line problems and maintenance — refused to clear jams from her stacking machine. She encountered these difficulties after reporting Poulin's sexual harassment.
On or about July 15, 2005, Beth Drennen-Bates ("Bates") was hired as the new Human Resources Manager at Huhtamaki's Waterville facility. (SMF ¶ 18.) While Bates was generally aware that Ramsdell had made a complaint against Poulin in 2004, she was unaware of the "sexually inappropriate" details of that 2004 complaint while dealing with Ramsdell's later complaints. (PSMF ¶ 20; Bates Dep. (ECF No. 28-11) at 51-54.) Nonetheless, from 2006 through 2009, Ramsdell reported certain co-workers' purported misconduct to Bates. (Id. ¶ 19.) Ramsdell believed these co-workers were part of Poulin's clique of friends. (Id.) According to Bates, Ramsdell "never used the word retaliation" in her complaints to Bates but did frequently reference Poulin as part of the complaint. (Reply SMF ¶ 86; Bates Dep. at 63, 70, 85-86.) Specifically, in the Fall of 2005, Ramsdell reported to Bates, Barney, and Giguere that coworkers Joel Dyer ("Dyer"), Allan Rose ("Rose"), and Poulin stood beside her at a shift change; Poulin assumed a Hitler salute while Dyer and Rose called out "brother" and looked at Ramsdell.
On January 12, 2006, Ramsdell wrote a letter to Bates reporting that Poulin and another co-worker were "staring angrily" at her. (SMF ¶ 28.) Bates spoke with Ramsdell that same evening and told her that she had Bates' full support in working in an environment free from intimidation and hostility. Ramsdell thanked Bates for her support. On or about January 23, 2006, Bates met with Poulin, Barney, and Giguere. (Id. ¶ 30.) Poulin denied having stared at Ramsdell and asked why he was getting into trouble when he had originally complained about Ramsdell to Owens. Bates told Poulin he should not be in contact with Ramsdell and that she would hold Poulin responsible if any of his friends harassed Ramsdell. (Reply SMF ¶ 87; Exhibit G to Bates Affidavit (ECF No. 40-8) at 3.)
Around this time period, Ramsdell began keeping a journal of her alleged experiences while at work. While she wrote in her journals intermittently, she did not always write down all of the alleged harassment or retaliatory conduct she experienced because she did not like to write down things that embarrassed or overwhelmed her. (SMF ¶ 29.) By way of example, from 2006 until 2010, Ramsdell alleges Poulin would yell her name and walk away, or yell her name and look at her breasts and crotch. (SMF ¶ 23.) Ramsdell testified that happened once or twice a month, but not every month. (Id.) However, she documents this alleged behavior by Poulin only once during her journals for this time period. (Id.)
Between Ramsdell's journals and the records compiled by Huhtamaki's Human Resources, there is a significant documentation of Ramsdell's complaints. Viewing this record in the light most favorable to Ramsdell, the following incidents occurred between the middle of 2006 and the middle of 2007:
All of these events culminated in a meeting on or about July 25, 2007 between Ramsdell, Bates, Barney, Giguere, and Goodine. (SMF ¶ 39.) Bates explained to Ramsdell that Poulin needed to be able to work free of any harassment and asked Ramsdell whether Poulin had violated the terms of his October 2004 written warning. (SMF ¶ 39.) Ramsdell stated that Poulin had not, and briefly left the meeting. (Id.) Upon her return, Bates asked Ramsdell what more management and the Union could do to address her concerns; Ramsdell responded that she did not want to "run into" Poulin. (Id. ¶ 40.) Bates inquired whether Ramsdell had, in fact, "run into" Poulin and Ramsdell responded she had not. (Id.) Bates explained that because Poulin had done nothing wrong for nearly three years, Huhtamaki was going to discontinue its practice of paying one of them to stay home instead of working available overtime. (Id.) Bates said it was possible that in the future Ramsdell and Poulin might briefly cross paths during shift change and when one of them worked available overtime.
The purported disharmony between Ramsdell and her co-workers continued. In 2008 and 2009, the following incidents and reports occurred:
Later that evening, Ramsdell heard what she believes was a high-powered rifle shot outside of her home. Ramsdell believed the gunshot was related to her reporting the scarecrow. (PSMF ¶ 125.) She reported the alleged shot to the police, Bates and Barney.
In the Fall of 2009, Ramsdell first sought out an attorney concerning what she perceived to be illegal conduct at Huhtamaki. (SMF ¶ 49; Ramsdell Dep. II at 228:6-9.) At her deposition, Ramsdell testified:
(Ramsdell Dep. II at 228:13-24.)
Ramsdell was out on vacation from February 1, 2010 through February 12, 2010. On February 18, 2010, Huhtamaki asked Poulin to work overtime and to help cover for employees taking breaks on the stacker line. (SMF ¶ 52.) After beginning her shift as a relief person, Ramsdell saw Poulin in the break room and believed Poulin was glaring at her. (Id. ¶ 53; PSMF ¶ 53; Ramsdell Dep. II at 299:14-24.) Ramsdell indicates that later, while at her machine, she saw Poulin and Castonguay staring at her malevolently from the office window. (PSMF ¶ 53.) Ramsdell then left the stacker line to seek help from union officials Kelly Burnell ("Burnell") and Schenks because she was beginning to experience symptoms of an anxiety attack.
Ramsdell worked until she was called down to the Human Resources office around 8:20 p.m., and met with Bates and Higgins. (SMF ¶ 56; Ramsdell Dep. II at 303:12-17) Bates told Ramsdell that Poulin had the right to perform his job duties free of harassment, just like every other employee. (Id.) Bates reviewed the many occasions when both the Union and management had met with Ramsdell to investigate and review her concerns about working with Poulin, and reminded Ramsdell that there was no evidence that Poulin had behaved at all inappropriately since Huhtamaki issued him the 2004 written warning. (Id.) Higgins told Ramsdell that the Union had an issue with her credibility because her complaints continued to be meritless. (Id.) Higgins told Bates that the Union would agree to a one-week suspension rather than termination; Bates then explained to Ramsdell that Huhtamaki
On or about February 25, 2010, Ramsdell requested a medical leave of absence and indicated she anticipated returning on May 24, 2010. (JSF ¶ 14.) Huhtamaki granted Ramsdell's request, but Ramsdell did not return on that date. (Id. ¶¶ 14 & 15.) A Huhtamaki nurse called Ramsdell on May 28, 2010, to determine when she would return to work. (Id. at ¶ 15.) Ramsdell's attorney indicated she would be out of work indefinitely. (Id.) On December 15, 2010-300 days after her last day at work, Ramsdell filed a Charge of Discrimination against Huhtamaki with the Maine Human Rights Commission ("MHRC") and the United States Equal Employment Opportunity Commission ("EEOC"). (Id. ¶ 16.) Since she was suspended, Ramsdell has not worked on advice of her doctors. (PSMF ¶ 131.) She suffers from nightmares and a general fear of being around men. (Id.) Based on a comprehensive psychiatric evaluation, Ramsdell has been diagnosed with major depressive disorder, panic disorder with agoraphobia, anxiety disorder and psychotic disorder. Her psychiatrist, Dr. David J. Bourne, has opined that her current mental health issues began while working at Huhtamaki. (PSMF ¶ 130.)
Ramsdell's Amended Complaint (ECF No. 11) pled two separate counts. Count I alleged sexual harassment in violation of both 42 U.S.C. § 2000e-2(a) and 5 M.R.S.A § 4572. Count II alleged unlawful retaliation in violation of both 42 U.S.C. § 2000e-(3) and 5 M.R.S.A. § 4633. On June 6, 2013, Plaintiff voluntarily dismissed Count I to the extent that it alleged a sexually-based hostile work environment claim. (See Notice of Dismissal (ECF No. 27).) Thus, Ramsdell now seeks relief only under the anti-retaliatory provisions of Title VII of the Civil Rights Act of 1964 and the Maine Human Rights Act.
Title VII, in relevant part, makes it illegal "for an employer to discriminate against any of [its] employees ... because [she] has opposed any practice made unlawful... or because [she] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing" under that law. 42 U.S.C. § 2000e-3(a). Similarly, the Maine Human
Generally, "[t]o engage the gears of [42 U.S.C.S. § 2000e-3(a)], a plaintiff must show that (i) she undertook protected conduct, (ii) she suffered an adverse employment action, and (iii) the two were causally linked." Noviello v. City of Boston, 398 F.3d 76, 88 (1st Cir.2005). The First Circuit has ruled that establishing a prima facie case of retaliation is a "relatively light burden." Mariani-Colon v. Dep't of Homeland Sec., 511 F.3d 216, 224 (1st Cir.2007). "[I]n determining whether conduct is protected opposition — the first step, a court must balance the setting in which the activity arises and the interests and motivations of both employer and employee." Hochstadt v. Worcester Found. for Experimental Biology, 545 F.2d 222, 232 (1st Cir.1976); cf. Benoit v. Tech. Mfg. Corp., 331 F.3d 166, 175 (1st Cir.2003) ("[T]he employment activity or practice that [plaintiff] opposed need not be a Title VII violation so long as [plaintiff] had a reasonable belief that it was, and [s]he communicated that belief to [her] employer in good faith."). To satisfy the second element, the action taken must be "materially adverse" such that it would have "dissuaded a reasonable worker from making or supporting a charge of discrimination." Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). Finally, with respect to the third causation element of the prima facie case, the Supreme Court has held that "[t]he text, structure, and history of Title VII demonstrate that a plaintiff making a retaliation claim under [42 U.S.C.] § 2000e-3(a) must establish that his or her protected activity was a but-for cause of the alleged adverse action by the employer." Univ. of Tex. Sw. Med. Ctr. v. Nassar, ___ U.S. ___, 133 S.Ct. 2517, 2534, 186 L.Ed.2d 503 (2013). If all three elements of the prima facie case are established on the summary judgment record, a retaliation claim is then examined under the familiar McDonnell Douglas burden-shifting framework. See Green v. Maine Sch. Admin. Dist. 77, 52 F.Supp.2d 98, 109 (D.Me.1999).
The First Circuit has explicitly held that "workplace harassment, if sufficiently severe or pervasive, may in and of itself ... satisfy the second prong of the prima facie case for Title VII retaliation cases." Noviello, 398 F.3d at 89. However, as the First Circuit has noted, "discrete acts and hostile work environment claims are `different in kind,'... because hostile work environment claims by their nature involve repeated conduct and a single act of harassment may not be actionable on its own." Johnson v. Univ. of Puerto Rico, 714 F.3d 48, 53 (1st Cir.2013) (quoting and citing Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002)). Because of these differences, the Supreme Court has stressed "the need to identify with care the specific employment practice that is at issue," particularly when determining whether a plaintiff has filed a timely claim under Title VII. Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S. 618, 624, 127 S.Ct. 2162, 167 L.Ed.2d 982 (2007) (citing Morgan, 536 U.S. at 110-111, 122 S.Ct. 2061), superseded in part by statute, Lilly Ledbetter Fair Pay Act of 2009, Pub.L. No. 111-2, 123 Stat. 5. Under both Title VII and the Maine Human Rights Act, a timely claim of retaliation must be filed not more than 300 days after the alleged unlawful employment practice occurred.
In the Court's view, the specific employment practices at issue here are: (1) Ramsdell's suspension on February 18, 2010; (2) the alleged threatened termination of Ramsdell on February 18, 2010;
Because Ramsdell filed her Charge of Discrimination with the MHRC and the EEOC on December 15, 2010, the 300-day look back period establishes a cut-off date of February 18, 2010, which was Ramsdell's last day working as a stack operator at Huhtamaki. It was also the day she was suspended and allegedly threatened with termination if she made any further complaints.
With respect to the discrete acts of suspension and threatened termination, the Court readily finds that Ramsdell filed a timely claim because these adverse actions occurred within 300 days of filing of her claim. See, e.g., Chin v. Port Auth. of New York & New Jersey, 685 F.3d 135, 157 (2d Cir.2012) (explaining that post-Morgan, every circuit to consider the question has held that "discrete acts" must fall within the limitations period and discrete acts outside the limitations period cannot be considered even if the acts result from the same longstanding policy or practice), cert. denied, ___ U.S. ___, 133 S.Ct. 1724, 185 L.Ed.2d 785 (2013). As the Supreme Court explained in Morgan: "The timely filing provision only requires that a Title VII plaintiff file a charge within a certain number of days after the unlawful practice happened." Id. at 117, 122 S.Ct. 2061 (emphasis added). Defendant's suggestion that the 300-day limit somehow prohibits Plaintiff from using any evidence of events occurring outside the 300-day window to establish the alleged basis for the retaliatory act incorrectly conflates time limits with evidentiary limits. To the extent that Ramsdell claims these two discrete actions were taken in retaliation for her prior complaints of a retaliatory hostile work environment, she is not barred "from using the prior acts as background evidence in support of a timely claim." Morgan, 536 U.S. at 113, 122 S.Ct. 2061.
Having determined that this is a timely claim, the Court proceeds to consider the merits of Ramsdell's discrete acts of retaliation under the well-known McDonnell Douglas' burden-shifting framework. To
Here, there is no dispute that Ramsdell had a well-documented history of reporting sexual harassment and retaliation at Huhtamaki. There is also no dispute that, at minimum, her suspension was an adverse employment action. Reading the entire record in the light most favorable to Plaintiff, the Court also finds that there is a causal connection between Ramsdell's protected reports of sexual harassment and retaliation and her suspension and threatened termination.
The Court next turns to Plaintiff's apparent alternative theory: retaliatory hostile work environment culminating in her constructive discharge.
Turning to the retaliatory hostile work environment which Ramsdell claims she experienced between October 2004 and February 18, 2010, Ramsdell encounters an apparent timeliness problem. Looking only at February 18, 2010, Ramsdell cannot state a trialworthy retaliatory hostile work environment claim. On that date, Ramsdell was present at the workplace for less than four hours. Viewing the record in the light most favorable to Ramsdell, during that time Poulin was also present in the workplace and Poulin and Castonguay stared and glared at her. Quite simply, these factual allegations alone cannot support a trialworthy retaliatory hostile work environment claim. See, e.g., Noviello, 398 F.3d at 93 (noting that "rudeness" and "commonplace indignities typical of the workplace" are not sufficient to support a claim for retaliatory hostile work environment).
Recognizing this issue, Plaintiff invokes an equitable tolling provision known as the "continuing violation doctrine," which, if applicable, would allow her to rely on the untimely acts of retaliation that occurred before February 18, 2010. The continuing violation doctrine is an equitable exception to Title VII's 300-day time limit and "allows an employee to seek damages for otherwise time-barred allegations if they are deemed part of an ongoing series of discriminatory acts and there is `some violation within the statute of limitations period that anchors the earlier claims.'" Lockridge v. Univ. of Me. Sys., 597 F.3d 464, 474 (1st Cir.2010); see also Morgan, 536 U.S. at 117, 122 S.Ct. 2061 ("Provided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability.") As the First Circuit has explained,
Tobin v. Liberty Mut. Ins. Co., 553 F.3d 121, 130 (1st Cir.2009).
For the continuing violation doctrine to apply, Ramsdell must first establish that a retaliatory "anchoring" act occurred within the limitations period. Noviello, 398 F.3d at 86; see also Cordero-Suarez v. Rodriguez, 689 F.3d 77, 83
As to the first requirement, it is far from clear that glaring and mere presence can serve as anchoring events. While the Court readily acknowledges that these actions were subjectively offensive to Ramsdell, it is not apparent that these two actions standing alone can qualify as objectively offensive. Rather, it would appear that the actions of Poulin and Castonguay fall under the category of "rudeness or ostracism" that are unfortunately "commonplace indignities typical of the workplace." Noviello v. City of Boston, 398 F.3d 76, 92 (1st Cir.2005). To the extent that Plaintiff attempts to use her suspension and threatened termination as anchoring acts, the Court has already found that these two actions are discrete acts which are directly attributable to Huhtamaki. Thus, the Court declines Plaintiff's invitation to consider her suspension and threatened termination as not only discrete acts but also as the timely anchors for her claim that she endured a hostile work environment from October 2004 through February 18, 2010.
Assuming for the moment that Plaintiff had an adequate anchoring act or that Plaintiff is entitled to rely on any act that is subjectively offensive to anchor her claim, Ramsdell can satisfy the second "substantial relationship" prong given Poulin's direct involvement. However, in the Court's view, Plaintiff hits an insurmountable hurdle on the third prong: whether the time-barred events triggered her awareness and duty to assert her rights. As in Windross, Ramsdell stated in her deposition testimony that she understood she was being retaliated against at several different points during her employment with Huhtamaki. (See Ramsdell Deposition Volume I (ECF No. 29) ("Ramsdell Dep. I") at 86:19-88:5) (Wherein Ramsdell testifies that there were certain categories of conduct committed by Poulin and other co-workers that she felt were harassing in nature); see also Ramsdell Dep. I at 91:21-92:6.) Moreover, the record is replete with instances in which Ramsdell complained to her employer and the Union about actions that she felt were tied to Poulin over a six year period. Additionally, the harassing conduct motivated Ramsdell to seek out an attorney in Fall 2009. (Ramsdell Dep. II at 228:19-24 (Ramsdell explains, "what was happening to me at Huhtamaki ... [t]he things that were being said to me, I felt were illegal and that's why I went to see him.")). Ramsdell also was advised during the July 25, 2007 meeting that Huhtamaki was no longer going to continue its prior extraordinary actions to separate Poulin and Ramsdell. To the extent that Ramsdell felt that Huhtamaki had a continuing obligation to prevent Poulin from being in her vicinity based on the resolution of the Walters investigation, Ramsdell could have pursued a claim well before she filed her Charge of Discrimination on December 15, 2010. Given all of these events, the Court concludes that Ramsdell had ample triggers prior to February
Thus, on the record, the Court is inclined to conclude that Ramsdell is not entitled to rely on the continuing violation doctrine to pursue her claim under the theory that she experienced a retaliatory hostile work environment prior to February 18, 2010. However, in an abundance of caution, the Court considers whether such a claim could survive summary judgment on the merits.
An analysis of Ramsdell's claim that a retaliatory hostile work environment at Huhtamaki forced her constructive discharge begins with the prima facie case. Thus, Ramsdell must show that (i) she undertook protected conduct, (ii) she suffered a materially adverse employment action, in this case a retaliatory hostile work environment, and (iii) the two were causally linked. See Noviello, 398 F.3d at 88-89 (explicitly noting that "a hostile work environment, tolerated by the employer, is cognizable as a retaliatory adverse employment action for purposes of 42 U.S.C. § 2000e-3(a)"). There is no dispute that Ramsdell undertook protected conduct. Rather, the focus is on the remaining two elements.
As explained by the First Circuit in Noviello, in order for harassment and retaliation by a co-worker to rise to the level of a hostile work environment, it must be "sufficiently severe and pervasive." Id. Under this standard,
Id. at 92 (internal quotations & citations omitted). Likewise, the "hostile work environment calculus" considers "only those actions, directed at a complainant, that stem from a retaliatory animus." Id. at 93. "Actions that are hurtful to a complainant only because coworkers do not take her side in a work-related dispute may not be considered as contributing to a retaliatory hostile work environment." Id.
As the Court has previously noted, there is ample evidence to support Ramsdell's claim that she found her co-workers' conduct to be subjectively offensive and retaliatory. Whether a reasonable fact finder would find the alleged pattern of conduct retaliatory is a more difficult question that inevitably turns on credibility determinations and weighing disputed testimony. As a result, the Court simply cannot resolve this question on summary judgment. The parties dispute much of the relevant conduct, particularly with respect to whether retaliation motivated that conduct. Having concluded that there is a trialworthy issue as to whether that conduct was objectively severe and pervasive, the Court turns to the third element, causal connection. The Court assumes Plaintiff could meet her initial burden of putting forth evidence of a causal connection and likewise assumes that Defendant can overcome the burden shift based on the evidence
At trial, Ramsdell would be required to prove that but-for her protected complaints she would not have experienced such an objectively "intolerable" hostile work environment. See Gerald v. Univ. of Puerto Rico, 707 F.3d 7, 25 (1st Cir.2013) ("Constructive discharge typically refers to harassment so severe and oppressive that staying on the job while seeking redress — the rule save in exceptional cases — is intolerable.") (internal quotation marks and citation omitted). First, the Court notes that it is difficult, if not impossible, to discern how much of Plaintiff's work environment was the result of reports protected under Title VII versus non-protected reports. Second, the current record would not allow a reasonable fact finder to readily conclude that the work environment was objectively intolerable in early 2010. Moreover, no reasonable fact finder could conclude that a retaliatory hostile work environment was the but-for cause of the claimed constructive discharge in this case. Rather, to the extent that a fact finder might conclude that Ramsdell's was constructive discharged, the only reasonable inference is that the proximate cause of the constructive discharge was the actions taken by Huhtamaki on February 18, 2010. In opposing summary judgment, Plaintiff herself argues that she "was not compelled to complain to the EEOC or MHRC until after she was suspended and threatened with dismissal." (Pl. Response at 14 (emphasis added).) Until Huhtamaki took those two specific actions on February 18, 2010, Ramsdell "consistently asserted her rights to Huhtamaki ... in accordance with employer policy."
In light of that record of responsiveness, Huhtamaki additionally argues that it is entitled to summary judgment on Plaintiff's retaliatory hostile work environment claim because it acted to prevent retaliation and to correct any retaliation reported by Ramsdell. In short, Huhtamaki argues that Ramsdell cannot prove that Huhtamaki was negligent either in discovering or remedying any retaliation that Ramsdell experienced. See, e.g., Torres-Negron v. Merck & Co., Inc., 488 F.3d 34, 40 (1st Cir.2007) ("An employer's liability for a hostile work environment claim depends on the harasser's employment status relative to the victim's ... if a co-worker created the hostile work environment, [the employer] will be held liable only if it was negligent either in discovering or remedying the harassment.") (internal citations omitted). Rather, Huhtamaki asserts that it took "prompt and appropriate" action to address Ramsdell's complaints of retaliation and to prevent further retaliation. See Forrest v. Brinker Intern. Payroll Co., 511 F.3d 225, 230-31 (1st Cir.2007). Even viewing the factual record in the light most favorable to Plaintiff, the Court concludes that Huhtamaki took the necessary prompt and appropriate action on Ramsdell's complaints prior to February 18, 2010. As a result, as a matter of law, the Court concludes that
In reaching this conclusion, the Court recognizes that the First Circuit has noted that "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 v. Brinker Int'l Payroll Co., LP, 511 F.3d 225, 232 (1st Cir.2007). However, in this case the undisputed record shows Huhtamaki went to great lengths to separate Ramsdell from Poulin for almost three years. Bates quickly resolved Ramsdell's particular complaints to the extent she found they were substantiated and went so far as to outfit Ramsdell with a personal videotaping device to record activities she was unable to substantiate. Unlike most cases in which the plaintiff disputes the human resources administrator's responsiveness, Ramsdell does not dispute that she had a constructive relationship with Bates up until February 18, 2010. Thus, the Court finds no reasonable jury could conclude that Huhtamaki failed to promptly and appropriately prevent retaliation and respond to Ramsdell's complaints of retaliation prior to February 18, 2010.
To summarize, the Court grants Defendant summary judgment on Plaintiff's claim to the extent she seeks to recover on the theory that a retaliatory hostile work environment led to her constructive discharge. In the Court's assessment, this claim does not qualify for application of the continuing violation doctrine and, thus, is untimely. Alternatively, the Court holds that Plaintiff has failed to present a trialworthy claim of constructive discharge based on hostile work environment. Additionally, the Court concludes that Defendant has established by a preponderance of the undisputed evidence that its prompt and appropriate actions prior to February 18, 2010 qualify for the Faragher-Ellerth defense to Plaintiff's claims of retaliatory hostile work environment. See Chaloult v. Interstate Brands Corp., 508 F.Supp.2d 103, 107 (D.Me.2007).
Huhtamaki also seeks summary judgment on Ramsdell's request for punitive damages, arguing she cannot meet her burden of proving Huhtamaki engaged in discriminatory conduct in the face of a perceived risk that it was violating the law, or that it acted with malice or reckless indifference. To that end, Huhtamaki states "the facts of this case demonstrate that Huhtamaki fully investigated all of Ramsdell's complaints, and, where necessary, took prompt and effective corrective action. (SMF ¶¶ 20, 30, 31-35, 37, 38, 42, 43, 44, 45). Ramsdell also has not submitted any evidence demonstrating that Bates — who made the decision to suspend her — acted maliciously in making that decision or had any personal animus toward Ramsdell." (Def.'s Mot. for Summary Judgment, (ECF No. 38) at 34-35). Ramsdell maintains that Huhtamaki acted with "reckless indifference" by virtue of suspending her "for having a panic attack" and threatening to terminate her "if she showed that she was upset by any act of a coworker because they did not find her complaints credible." (Pl.'s Resp., (ECF No. 47) at 23-24). Ramsdell adds that Huhtamaki, an educated and sophisticated employer, made this threat "knowing that [she] had been the victim of past sexual harassment." Id. at 24.
Punitive damages are available in connection with Title VII claims when a defendant employer has engaged in unlawful intentional discrimination. 42 U.S.C. § 1981a(a)(1). In order to recover, a plaintiff must show that the defendant "engaged in a discriminatory practice ... with
Neither party disputes that Bates was acting within the scope of her "managerial capacity," Kolstad, 527 U.S. at 543, 119 S.Ct. 2118 (citations omitted), on February 18, 2010 when she suspended Ramsdell and allegedly threatened her with termination. The Court concludes the instant record contains sufficient evidence to create an issue of material fact concerning whether Huhtamaki, through Bates, retaliated against Ramsdell with reckless indifference to her rights. As indicated above, the Court has concluded that Ramsdell has a tri alworthy record with respect to pretext in connection with Huhtamaki's proffered explanation for her suspension — that she had created a disruption on the line. Huhtamaki does not claim that Bates' actions on February 18, 2010 violated any company policy; that she was not acting within the scope of her employment; nor that it has ever disavowed Bates' conduct. See, e.g. Kolstad, 527 U.S. at 552, 119 S.Ct. 2118. (Stevens, Souter, Ginsburg, and Breyer, concurring in part and dissenting in part). Neither Huhtamaki nor Bates claimed any ignorance of Title VII's requirements. Id. The record, in sum, contains evidence from which a jury might find that Huhtamaki acted with reckless indifference to Ramsdell's Title VII rights with respect to the discrete acts of discrimination the Court has concluded survive Huhtamaki's motion for summary judgment. Therefore, to the extent that Count II survives summary judgment, the Court concludes that Plaintiff's claim for punitive damages also survives summary judgment.
In many cases involving employment discrimination, "where elusive concepts such as motive or intent are at issue," summary judgment fails as a procedural vehicle for resolving the entirety of the parties' dispute. Luciano v. Coca-Cola Enters., Inc., 307 F.Supp.2d 308, 317 (D.Mass.2004) (internal quotation omitted) (noting summary judgment is "not a favored tool" in these circumstances). This is one such case. The Court concludes that Plaintiff may not proceed to trial on her theory that she was subjected to a retaliatory hostile work environment prior to February 18, 2010 and that the environment
As explained herein, the Court GRANTS IN PART & DENIES IN PART Defendant's Motion for Summary Judgment (ECF No. 39). As noted in the Court's May 31, 2013 Procedural Order (ECF No. 26), within five days counsel for Defendant shall arrange for a telephone conference with the Magistrate Judge to establish a limited scheduling order extension for the sole purpose of taking expert depositions. After the conclusion of these depositions, this case shall be placed on the next available trial list.
SO ORDERED.
