JENNIFER C. BOAL, Magistrate Judge.
Plaintiff Bunnie M. Gasperini ("Gasperini") alleges violations of M.G.L. c. 151B ("Chapter 151B") and Title VII of the Civil Rights Act ("Title VII") by her former employer Dominion Energy New England, Inc. ("Dominion").
On August 20, 2010, the parties consented to the exercise of jurisdiction by a United States Magistrate Judge for all purposes. (Docket No. 9). Dominion has moved for summary judgment on all of Gasperini's claims.
On or about April 14, 2010, Gasperini filed this case in the Massachusetts Superior Court for Bristol County. (State Court Record, Docket No. 5, at 6-19). Gasperini filed an amended complaint on July 1, 2010.
On August 20, 2010, Gasperini moved to remand the case to state court. (Docket No. 8). Dominion opposed Gasperini's motion to remand and moved to dismiss Counts III and IV of the Complaint on September 3, 2010. (Docket No. 10). This Court denied the motion to remand and granted Dominion's motion to dismiss Counts III and IV of the Complaint. (Docket No. 15).
Fact discovery ended on January 31, 2012. (Docket No. 29). Expert discovery ended on April 6, 2012. (Docket No. 31).
On May 8, 2012, Dominion filed the instant motion for summary judgment. (Docket No. 32). Gasperini filed her opposition on June 5, 2012. (Docket No. 37). The Court heard oral argument on June 20, 2012.
Dominion operates a power plant in Somerset, Massachusetts, known as Brayton Point Station ("Brayton Point"), where Gasperini worked. PR 2.
Gasperini was originally hired as janitor and laborer by NEP at Brayton Point in June 1989. PR 6. Gasperini was a member of the Utility Workers Union of America, Local 464 (the "Union"). PR 7.
In 1991, Gasperini filed a lawsuit alleging discrimination against NEP, the Union, two managers at NEP and eleven coworkers at NEP. PR 8. That lawsuit resulted in a settlement in February 1995. PR 10.
In the early 1990s, Gasperini was out of work on disability leave for approximately two years. PR 9. When she returned from leave, she bid on and was granted a position as a conveyor operator in the fuel handling department at Brayton Point.
Gasperini remained employed at Brayton Point after Dominion purchased the plant in 2005. PR 14. At all relevant times, Gasperini was employed by Dominion as a fuel handler and assigned to the 3:00 p.m. to 11:00 p.m. shift. PR 15. As a fuel handler, Gasperini could be assigned to one of three tasks: conveyor up, conveyor down, and dozer operator. PR 16.
A person assigned to conveyor up monitors the conveyor system on the top end, in the "powerhouse" or main plant where it is to be burned. PR 19. A worker assigned to conveyor down ensures that everything is operating properly while coal is being transferred on the conveyor belt from beneath the coal pile to the power plant where it will be burned. PR 18. She is also responsible for checking tanks in the back of the property and looking for coal fires.
During the time Gasperini worked for Dominion as a fuel handler, she spent approximately 60% of her time on conveyor up, 30% of her time on dozer, and 10% of her time on conveyor down.
Gasperini had a locker in the women's locker room at the powerhouse from approximately 1989 to 1995. PR 79. She never complained about the locker room during that period of time.
During that same time period, Gasperini ate her lunch in a lunchroom inside the powerhouse. PR 81. That lunchroom is still there.
In 1995, when she became a fuel handler, Gasperini moved to a locker room in the engineering trailer. PR 82. Initially, Gasperini shared that locker room with two other women. PR 83. That locker room had two sinks, two toilets, three shower stalls, and approximately thirty lockers.
At all relevant times, men's and women's locker facilities were kept separate.
Between 1996 and 2006, Gasperini ate her meals in the eating area of the engineering trailer approximately 80% of the time. PR 92. The remaining 20% of the time, Gasperini ate in the men's locker room, although females were not allowed there. PR 93. Gasperini alleges that she was told that she would be fired if she was caught eating in the men's locker room. PR 93.
Gasperini complains about her inability to eat in the men's locker room. Gasperini was the only female on her shift. PR 87. Her coworkers would all take their meal breaks together at the same time in the male locker lunch area.
Despite being told that she was not allowed to eat in the men's locker room, Gasperini would sometimes ask her co-workers if she could join them during their meal breaks and would eat with them. PR 101. If a male coworker needed to use the bathroom or change, Gasperini would leave. PR 97. Although she was never formally disciplined for eating in the male locker room, when she ate there she did so "under threat of being fired." PR 101.
In May 2006, Dominion decided to close the engineering trailer locker room. PR 102. Dominion states that it did so in order to save money. DS 102. Gasperini alleges that her access to the engineering trailer locker room was cut abruptly and without explanation.
The women's restroom in the engineering trailer remained open for use during the day. PR 104. However, the door was locked around 3:00 p.m., the start of Gasperini's shift. PR 104.
After the engineering trailer locker room was closed, Gasperini was reassigned to the locker room in the first floor of the powerhouse. PR 105. This was the same locker room Gasperini had from 1989 to 1995, when she was not working as a fuel handler.
The locker room in the powerhouse had two sinks, two showers, two toilets and approximately twenty lockers, of which Gasperini used four or five. PR 106. Unlike during 1989 through 1995 when Gasperini shared the locker room with approximately seven other women, as of May 2006 she shared it only with three women, all of whom were day shift employees who might have been there finishing up when Gasperini arrived for her shift. PR 106. During her shift, Gasperini had the locker room to herself.
Gasperini complained that the bathroom in the powerhouse locker room was too far from her work station. PR 105; PS 34.
In May 2006, Gasperini sent a letter to OSHA complaining about safety concerns with the powerhouse locker room, including that it was too cold, no working exhaust fan, faulty air conditioning, lack of safe exit and no hot water. PR 110. Gasperini also complained that the bathroom in the powerhouse locker room was too far from her working area.
The supervisor's locker room also had a unisex bathroom facility. PR 113. There was a unisex sign on the door.
On or about November 19, 2006, Gasperini was assigned to the bulldozer operator position. PR 35, PS 56. The coal pile that day was high. PR 35, PS 59. That night, there was a ship dumping coal. PR 35, PS 60. The ship, ATLAS, was known to be a fast dumping ship. PR 35, PS 61. Gasperini maintains that it is generally known that bulldozer operators do not like for the coal pile to get high, especially when a ship was dumping coal. PR 35, PS 60.
Gasperini felt that she could not keep pace with the ATLAS dumping the coal. PR 35, PS 62. She called her supervisor, George Affonso, and told him that she believed the pile was too high and she could not keep up with the bulldozer.
Gasperini also called the ATLAS every fifteen minutes to request that it stop dumping, but received no response. PR 35, PS 63. In addition, Gasperini called for back-up assistance, but obtained no response. PR 35, PS 65. Accordingly, Gasperini decided to come down off the pile because she feared for her safety. PR 35, PS 67.
Gasperini alleges that Mr. Affonso berated and belittled her for not being able to negotiate the pile and sent her home. PR 35, PS 68. Gasperini alleges that no one else had been sent home for raising safety concerns. PR 35, PS 72-73.
In response to the incident, Karen Kinder, Dominion's Senior Human Resources Generalist, met with Gasperini and investigated the incident. PR 36. Dominion alleges that Kinder concluded that Gasperini should have been able to operate the bulldozer under the conditions that night. DS 36. Gasperini disputes Dominion's finding regarding the incident and alleges that Kinder screamed at her during the meeting. PS 77.
Shortly after the incident, Gasperini was assigned to a day shift for one week so that her supervisors could observe her operation of the bulldozer. PR 37. At the end of the week, her supervisors concluded that she had all of the experience, training, and competence that she needed to operate the dozer. PR 37. Gasperini claims that she was upset about having to be observed operating the bulldozer in front of her coworkers and that the experience was belittling. PS 82. On January 25, 2007, Dominion issued a non-disciplinary memorandum to Gasperini informing her of the conclusion of the investigation. PR 38.
Gasperini maintains that she suffers from post-traumatic stress disorder that was exacerbated by the incident. PR 37.
Gasperini filed a grievance over the non-disciplinary memorandum. PR 39. Gasperini did not win her grievance.
On or about August 3, 2007, Gasperini was suspended and ordered to take an Employee Decision Day after she refused to provide identification to a security guard. The circumstances surrounding the incident are disputed by the parties. Dominion claims that on July 19, 2007, Gasperini was stopped by a security officer, Greg Lewis, when she and coworker Duarte were driving past the coal pile during her lunch break. DS 52. The security officer asked them to identify themselves, which Gasperini repeatedly refused to do.
Gasperini claims that at the time of this incident, security guards were not in the practice of stopping workers for identification. PR 52. This was a brand new procedure that she was not informed about.
On August 3, 2007, Dominion issued her a one-day, paid disciplinary Employment Decision Day. PR 61. Gasperini grieved this discipline. PR 55. She lost her case at arbitration.
On August 10, 2007, Gasperini filed a charge of discrimination with the Massachusetts Commission Against Discrimination ("MCAD"), complaining about the warnings she had received and about the "final warning" she received on August 3, 2007. PR 56. Gasperini alleged that the discipline was motivated by retaliation based on her 1991 lawsuit against NEP.
In connection with an Employment Decision Day, an employee is required to fill out a questionnaire that constitutes an action plan for going forward with employment (the "Action Plan Questionnaire"). PR 60. Gasperini was supposed to meet with her supervisor, Antero Oliveira to discuss her Employment Decision Day on August 4, 2007. PR 62. She called out sick that day and remained out sick until September 2, 2007. PR 62.
When Gasperini submitted her Action Plan Questionnaire to Oliveira on September 2, Oliveira informed her that her answers were unacceptable. PR 63. Gasperini claims, however, that her first draft was written with the assistance of her union representative, Michael Alexander, who thought the answers were acceptable. PR 63.
Gasperini submitted another version of her answers on September 4, and Oliveira informed her that those answers also were not acceptable. PR 64. Gasperini claims that version was written after consulting with union legal counsel.
The same day that Gasperini submitted her Action Plan Questionnaire, the truck that Gasperini was assigned to use while working conveyor down was filled with diesel, instead of gasoline. PR 67. Gasperini does not dispute that she filled the vehicle's fuel tank during her shift on the night of September 4. PR 68. However, she disputes that she was the only person with access to the truck on that date. PR 67, 69-70.
The fuel pump showed that three gallons of diesel fuel were dispensed that evening under false vehicle and department numbers. PR 72. The mechanic conducting repairs on the truck detected the odor of diesel fuel.
David Seals from Dominion Security investigated the incident. PR 74. Seals interviewed Gasperini and her whole department during the investigation.
Dominion ultimately determined that it could not conclude that Gasperini had put the diesel into the truck and she received no discipline for the incident. PR 76.
On October 11, 2007, Gasperini filed a charge with the MCAD, alleging that the company had retaliated against her for filing the August 10, 2007 charge by investigating her for the diesel fuel incident. PR 77. The MCAD dismissed that charge for lack of probable cause. PR 78.
On September 24, 2007, Gasperini went out on leave related to stress from work. PR 118. Under the Union contract, an individual can remain on short-term disability ("STD") for a total of twenty-six weeks. PR 119. After STD benefits expire, an employee may apply for longterm disability ("LTD"). PR 120. If an employee is approved for LTD benefits, the Union contract stipulates that she may remain an employee on LTD only for 24 months. PR 121. The Union contract states that at the end of 24 months of LTD, "an employee's employment is terminated," although LTD benefits can continue if the employee remains disabled and continues to qualify for benefits under the terms of the plan.
Gasperini was on leave for 30 months of STD/LTD and did not return to work, so her employment with Dominion was terminated on March 30, 2010. PR 126. Gasperini continues to collect LTD benefits. PR 127.
Gasperini originally raised the following claims against Dominion: (1) hostile work environment, (2) disparate treatment on the basis of her gender; and (3) retaliation. At oral argument, Gasperini clarified that she has abandoned the hostile work environment
Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "A dispute is `genuine' if the evidence about the fact is such that a reasonable jury could resolve the point in the favor of the non-moving party."
The moving party bears the initial burden of establishing that there is no genuine issue of material fact.
"[T]he material creating the factual dispute must herald the existence of `definite, competent evidence' fortifying the plaintiff's version of the truth. Optimistic conjecture . . . or hopeful surmise will not suffice."
The court must view the record in the light most favorable to the non-moving party and indulge all reasonable inferences in that party's favor.
"Even in employment discrimination cases `where elusive concepts such as motive or intent are at issue,' this standard compels summary judgment if the non-moving party `rests merely upon conclusory allegations, improbable inferences, and unsupported speculation.'"
Gasperini brings gender discrimination claims both under Title VII and Massachusetts law. Where, as here, the plaintiff has no direct evidence of discrimination, both federal and state courts rely on the burden-shifting analysis set out in
Once the plaintiff establishes a prima facie case, "the burden shifts to the employer to articulate some `legitimate, nondiscriminatory reason' for its employment action."
In the context of a summary judgment motion, "the jurisprudence of Rule 56 takes hold and the
There is no dispute that as a female, Gasperini is a member of a protected class. In addition, given the summary judgment record in this case, whether Gasperini was performing her job at a satisfactory level is a question of fact for a jury.
An adverse employment action is a "tak[ing] of something of consequence from the employee, say, by discharging or demoting her, reducing her salary, or divesting her of significant responsibilities, or withhold[ing] from the employee an accouterment of the employment relationship."
Determining whether an action is materially adverse is a case-by-case inquiry and must be cast in objective terms.
Gasperini claims that the following incidents and issues constituted adverse employment action: (1) her unequal access to bathroom and locker facilities; (2) Dominion's handling of the November 2006 bulldozer incident; (3) the fact that she was required to rewrite her Action Plan Questionnaire in connection with her Employment Day Discipline five times; and (4) the handling of the September 4, 2007 truck incident. The Court finds that none of Gasperini's complaints constitute an adverse employment action.
First, Gasperini complains that she was denied the opportunity to eat with her coworkers who were all male. Gasperini Mem. at 7. Gasperini's male coworkers all took their twenty minute meal breaks together in the eating area of the men's locker room.
Gasperini's claims do not support a finding of adverse employment action. Both women's and men's lockers had eating areas. PR 109. Accordingly, she cannot claim that women's locker facilities were somehow inferior to the men's locker facilities in that respect. In addition, Dominion provided a lunch room available to all employees with tables, chairs, sinks, refrigerators, vending machines, microwaves and toasters. PR 81. Dominion cannot be faulted if Gasperini's coworkers decided to eat in the men's locker room and not in the lunchroom.
In any event, Gasperini has provided no evidence that her inability to eat with coworkers was an adverse employment action.
Similarly, Gasperini's complaints that the female bathrooms and lockers were inferior to those provided to the men has no support in the record. Gasperini complains that the bathroom in the powerhouse locker was too far from her work area. Gasperini Mem. at 8. However, she herself estimated that she spent the majority of her time (approximately 60%) working conveyor up, which is inside the powerhouse where her locker is located. Gasperini Dep., I. 36; II. 10, 52. Nevertheless, when she complained about the distance from the coal pile to her locker, Dominion gave her a key to a unisex supervisor's bathroom directly next to the men's locker bathroom. PR 111-112. Her only complaint about the unisex bathroom is that it used to be a male bathroom where a "unisex" sign was placed and that the presence of a urinal made her uncomfortable. PR 113. Her discomfort with the facilities, without more, does not constitute an adverse employment action.
Gasperini also complains that the powerhouse locker was inferior to men's locker room because it was too cold and because of other concerns. Gasperini Mem. at 9. However, Gasperini does not dispute that Dominion then provided her with a space heater for the locker and, when that was not sufficient to alleviate her complaints, they provided her access to the supervisor's locker room. PR 112-113. She now claims that solution was not acceptable because she was afraid that a male supervisor may walk in when she was taking a shower.
Gasperini also alleges that she suffered an adverse employment action in connection with the November 2006 bulldozer incident. She complains that she was berated by Alfonso, her supervisor, and sent home. Gasperini Mem. at 10. She also complains that, as result of the incident, she was required to work during the first shift for one week so that her operation of the bulldozer could be observed by Dominion.
Taking the facts in the light most favorable to Gasperini, the Court finds that this incident does not constitute an adverse employment action. Although Gasperini alleges that she was "sent home," she does not allege that she suffered any change in salary, benefits, job responsibilities, or other material terms and conditions of her job. Rather, she complains that Alfonso's conduct was demeaning. She also claims that operating the bulldozer under observation was belittling. While the conduct alleged here may give rise to an inference that Gasperini's workplace was not an "idyllic retreat," Gasperini's allegations fail to constitute a material change in the terms, conditions or privileges of her job that would constitute an adverse employment action. Accordingly, Gasperini has failed to set forth sufficient evidence to make out a prima facie case of discrimination.
Gasperini argues that the incident where she had to revise her Action Plain Questionnaire answers five times was discriminatory.
Gasperini has not presented any evidence to show that having to rewrite the Action Plan Questionnaire five times before it was accepted was an adverse employment action. Again, she has not alleged a loss in pay, promotion, reassignment of duties or any other tangible change in her conditions of employment. Accordingly, the Court finds that she cannot prove that she suffered an adverse employment action in connection with the Action Plan Questionnaire.
Finally, Gasperini claims that Dominion discriminated against her by investigating her for the September 4, 2007 incident where the truck that she was using was found to have diesel, instead of gasoline. The Court finds that Gasperini has not pointed to any evidence that this incident constituted an adverse employment action.
Again, there is no evidence that Dominion took any adverse employment action against Gasperini during this incident. An investigation of an employee, without more, in insufficient to constitute an adverse employment action.
Based on the summary judgment record, this Court finds that Gasperini has failed to produce any evidence to show that she was subject to an adverse employment action and has failed to set out a prima facie case of discrimination. Accordingly, Dominion is entitled to summary judgment on Gasperini's disparate treatment claims.
For the foregoing reasons, this Court GRANTS Dominion's motion for summary judgment and dismisses the complaint.
