JOSEPH N. LaPLANTE, District Judge.
From September 2010 until August 2011, plaintiff Jennifer Posteraro worked for defendant RBS Citizens, N.A. ("Citizens Bank" or "Citizens") at two bank branches in Manchester, New Hampshire. Defendant Christos Hatzidakis was Posteraro's supervisor at her first branch posting. Posteraro claims that virtually her entire tenure at Citizens was rife with gender and disability-based harassment that Citizens failed to address and that Citizens also refused to make reasonable accommodations for her disabilities, specifically, post-traumatic stress disorder ("PTSD"), depression and anxiety. Ultimately, Posteraro filed an eight-count complaint in state court, alleging violations of state and federal statutory and common law. Her claims can be broken down as follows:
Defendants timely removed the case to this court, invoking federal question and supplemental jurisdiction. 28 U.S.C. §§ 1331(a), 1367 and 1441(a). Before the court is defendants' motion for summary judgment, in which they argue that the undisputed material facts demonstrate that they are entitled to judgment as a matter of law on all eight counts. After review of the motions, memoranda, exhibits, reply and surreply briefs, the court grants the motion, except as to the retaliation claim in counts 5 and 6.
Summary judgment is dictated when the "movant shows that there is no genuine dispute as to any material fact and the movant party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A dispute is "genuine" only if it could reasonably be resolved in either party's favor at trial by a rational fact-finder.
Posteraro began working at Citizens in early September 2010 at a bank branch in a supermarket on South Willow Street in Manchester. Defendant Hatzidakis, her supervisor, was the branch manager. Professionally, Posteraro did well in the early stages of her tenure. She reached over 160 percent of her sales goal in the fourth quarter of 2010, in return for which Citizens awarded her with a certificate of achievement for being among the top ten performers in her region. She earned the same accolade for the first quarter of 2011. Hatzidakis similarly recognized Posteraro's accomplishments, commending her demeanor and observing in her evaluation that she "epitomize[s] the type of value added interactions Citizens Bank is looking for . . . [and] also goes above and beyond with customers to guarantee that they will have a pleasant experience and she never over-promises and consistently over-delivers."
At the same time, however, Posteraro was growing concerned with the behavior of some of her co-workers. Her concerns originally arose during her training period when she was first working in the South Willow Street branch. Posteraro observed "inappropriate" behavior on the part of assistant branch manager Jeff Evans and teller manager Sean Lawrence with which she "was uncomfortable." (Pltff. Dep. at 75). Specifically, Posteraro said the pair was talking about television shows in the teller line and she "just felt like they weren't behaving the way I thought that people in a bank would be behaving. It was just very — it was kind of goofy behavior and I was a little concerned." (
Posteraro witnessed other ribald discussions during the first few months of her employment at the South Willow Street branch. For example, on one occasion in October 2010, Posteraro was within earshot of Evans and a customer "literally talking about pornography." (
On December 15, 2010, Posteraro emailed Citizens Regional Manager Nancy Towne requesting a transfer to a "traditional" branch, i.e., a stand-alone unit, as opposed to her then-current location within a supermarket. The next day, Towne reminded her of Citizens' policy that new hires were expected to remain in their hiring location for a minimum of one year. Later that day, Posteraro called Citizens' Employee Relations office and reported that she was "uncomfortable with her co-workers because they tell a lot of off-color and sexual jokes." When asked to provide specific examples, Posteraro said that one of her co-workers brought up Playboy Magazine with a customer, who then commented to her, "Oh, come on, you know you like porn, too." It was these type of comments, Posteraro said, that led to her asking for the transfer the previous day. Citizens requested more detailed information and also opened an official investigation because of a possible violation of its harassment policy.
Employee relations representative Dayna Walters followed up with Posteraro on January 7, 2011.
Also on January 7, Towne added an additional sales manager, Linda Tremblay to the South Willow Street Branch to "add stability and to keep an eye on things."
Responding to Walters's request for more details, Posteraro indicated in a January 9 email that Towne had called her after the conversation with Walters "and was very responsive" to her concerns. Her email also related a couple of other off-color comments she witnessed. On January 11, Walters spoke with Hatzidakis to address Posteraro's complaints. Walters did not identify Posteraro by name, warned Hatzidakis that the complaints could be coming from multiple sources and reminded him of Citizens' anti-harassment and anti-retaliation policies. She also noted issues with his credibility, observing that many of Hatzidakis's answers regarding the behavior of he and his subordinates were internally inconsistent.
The next morning, Posteraro informed Walters that Hatzidakis had instructed her to let him know about inappropriate comments so that he could address the situation immediately. Posteraro said she reminded Hatzidakis that she had complained previously and that nothing had changed. Regardless of that exchange however, Posteraro reported on January 20 that the branch environment had been great since the conversation with Hatzidakis (and with the presence of Tremblay). She said that "everyone was leaving [her] alone" and "the guys have been fine." Posteraro also told Walters that she was no longer interested in transferring. Internally, Citizens closed Posteraro's case, while noting that Hatzidakis's administrative deficiencies were a problem. Although Posteraro believed that Lawrence (and possibly Evans) thereafter made "that's what she said" comments, she did not report any such conduct to Hatzidakis or Citizens' employee relations department.
Posteraro alleges that she was diagnosed with PTSD in 2006, in the aftermath of an abusive relationship. Although she did not make this information known to Citizens during the hiring process, Posteraro informed her fellow branch employees in September 2011 and asked them to refrain from throwing things near her, slamming doors, and coming up behind her. She made that request in response to the fact that Lawrence, Evans, and Hatzidakis did things that would startle her. In February 2011, Lawrence told her that he would "do certain things" to watch her jump because he thought it was funny.
In late February 2011, Posteraro emailed Hatzidakis with information about PTSD. The next day, the two met and Posteraro explained her PTSD and that two recent "acts of physical aggression" by Hatzidakis had caused her a great deal of stress. Specifically, she was referring to a February 6 incident in which Hatzidakis yelled at her in his office with the lights off and door closed while hovering over her, causing her fear.
Posteraro emailed Linda Tremblay the next day (February 23) and described the meeting with Hatzidakis the previous day as "having no yelling . . . but there was a lot of placing blame on me." As relevant here, there was nothing in the email to Tremblay that expressed any feelings that she was being treated in a certain way because of her PTSD. She emailed Towne on March 8, detailing her work situation. The email is rife with examples of interpersonal conflict between Posteraro and Hatzidakis. More specifically, Posteraro observed that:
She also detailed some of Hatzidakis's comments to her, and concluded by telling Towne:
Posteraro returned to work on Thursday, March 10. On Friday, March 11, Posteraro reported that she felt ill "due to the situation at the branch." She left work, and reported to her physician that she was having anxiety and stress issues as a result of the office situation and her belief that she was being retaliated against for complaining about sexual harassment. She also filed for Worker's Compensation, claiming "mental anguish from supervisor yelling at her," and giving an injury date of February 6.
At Posteraro's request, Citizens granted her a medical leave of absence effective March 11. She did not thereafter return to the South Willow Street branch. On April 14, 2011, Posteraro, through counsel, requested an accommodation for PTSD, depression, anxiety and panic attacks. Specifically, she requested to be moved to the McGregor Street branch. The request was based on a note from her doctor indicating that Posteraro could return to work with the accommodation of relocating "to a different branch or office other than her current location." Citizens responded with an offer to relocate her to its Milford branch — the only one with an immediate opening — to which Posteraro objected due to the commuting distance. Citizens' acquiesced to Posteraro's original request, and on May 3, 2011, Posteraro began working in a Banker I position (her former role) at Citizens' McGregor Street branch. She worked at McGregor Street until May 20, 2011, before going out on medical leave once again.
Posteraro faced several contentious situations during her short tenure at McGregor Street. First, the branch manager was not happy because she was "thrust upon them." She reported this to her attorney, but not Citizens' human resources department. Subsequently, the branch manager became "annoyed" when Posteraro said she'd be unable to attend a scheduled session to make business calls due to a therapy appointment. The manager apparently had not been told of the appointment. Posteraro does not claim that she was prevented from going to the appointment.
Posteraro also believed that the assistant manager was making fun of
In early August, Posteraro's attorney informed Citizen's that she was awaiting a doctor's recommendation as to a return-to-work accommodation. Citizens assured the attorney that her prior Banker position was available for Posteraro upon her return, at branches other than the ones at which she had worked. On August 15, the attorney informed Citizen's that jobs in a bank branch were not acceptable and asked what non-branch jobs were available or could be created for Posteraro. Citizens indicated that there were no "back of the house" (i.e., non-retail) positions available, but only either full or part time branch positions in her former role. On August 19, Posteraro's attorney informed Citizens that Posteraro would not be returning to work. Citizens then terminated her employment.
Posteraro claims that Citizens violated both state and federal law by subjecting her to sexual harassment due to a hostile work environment. The court addresses both claims under the federal (Title VII) standard.
Here, Posteraro's sexual harassment claim falters at several steps along the analytical way. While Posteraro is undoubtedly a member of a protected class and that the alleged harassment was unwelcome, Posteraro's own characterization of her initial observations at South Willow Street during training as not being "the professional atmosphere I thought it was going to be" lacks indicia that her observations during training were "based on sex." This factor is also undercut by her failure to report any sexually inappropriate conduct to her trainer specifically or to Citizens generally.
As far as the remaining allegations go, even taking them in the light most favorable to Posteraro, the totality of the comments Posteraro complains of were not "sufficiently severe or pervasive so as to alter the conditions of plaintiff's employment and create an abusive work environment."
Even beyond the lack of severity or pervasiveness, Posteraro's sexual harassment claim also founders on the final factor — finding a basis for Citizens' liability. With respect to the behavior of her co-workers, Posteraro cannot reasonably argue that Citizens did not take prompt and appropriate remedial action upon receiving her complaint. As previously noted, there is no evidence that she complained of sexually inappropriate conduct related during her training period. The undisputed fact is that her first complaint to Citizens was her December 15, 2010 phone call, the day after her transfer request. Following her absence from the office, it was not until January 7, 2011, that she detailed her complaints to Citizens. The record reflects that Citizens remained in contact with both Posteraro and Hatzidakis and that by January 20, 2011, roughly two weeks after the details of her complaints were made known to Citizens, Posteraro reported that Citizens efforts had been so successful that she was withdrawing her transfer request.
Posteraro's claim based on Hatzidakis' harassment is even weaker. The only claim of sexually inappropriate behavior by Hatzidakis is his use, on one or two occasions, of an arguably vulgar euphemism in his communication with another branch. While the court does not consider this incident sufficient to trigger Citizens' liability, Posteraro has also failed to identify any tangible employment action. Her only allegation in this regard is that her January 2011 job evaluation contained "middling ratings" on her performance review. The record does not support this allegation. The evaluation is brimming with compliments from Hatzidakis in each of five categories. Indeed, in five paragraphs of narrative description, there is not a single negative comment. Her only complaint is that the numerical grade assigned to her overall summary was a "3," rather than the "4" (on a scale of 5) she thought she deserved. Given the effusive praise that dominates the evaluation, this single data point does not constitute "a tangible employment action" against Posteraro.
Against this legal and factual backdrop, Posteraro's sexual harassment claims (Counts 3 and 4) must fail.
Posteraro asserts claims under both state and federal disability discrimination laws, which prohibit "discriminat[ion] against a qualified individual on the basis of disability in regard to . . . terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a);
To prevail on her harassment claim, Posteraro must prove that (1) she has a disability, (2) she was subjected to a hostile environment, and (3) the hostility was directed at her because of her disability.
To support a hostile environment argument, Posteraro must point to evidence from which a rational jury could find that her "`workplace [was] permeated with discriminatory intimidation, ridicule, and insult that [was] sufficiently severe or pervasive to alter the conditions of . . . [her] employment and create an abusive working environment.'"
Here, Posteraro has pointed to scant evidence of this sort of pervasive harassment, and even less evidence that it was related to her disability. It is undisputed that the earliest that Hatzidakis knew of Posteraro's PTSD was her February 22, 2011, email preceding their meeting. As previously noted, early in her South Willow Street tenure she told branch employees about her PTSD and asked them not to throw things near her, slam doors, or come up behind her and startle her. Posteraro testified in her deposition that Sean Lawrence admitted in February 2011 to waving his hands in front of her to "watch her jump." But beyond that, she has described no specific actions by Hatzidakis or her coworkers which can be reasonably related to her PTSD symptoms. The earlier confrontations with Hatzidakis took place well before she made him aware of her PTSD, and thus cannot have been directed at her because of her disability. Indeed, there is nothing in the summary judgment record that suggests that Posteraro ever complained to Citizens' human resources personnel about disability—related harassment — by Hatzidakis or anyone else — as opposed to the lengthy trail of communications regarding her concerns with the sexual comments in the office.
Regarding her roughly two-week stint at the McGregor Street branch following her leave of absence, Posteraro claims that the incidents described above — being told that she was "thrust upon them," expressing surprise at her therapy appointment (but not preventing her from attending), and making a therapy-related joke about a former employee — constituted continuing disabilityrelated harassment. The court disagrees. Not only were these incidents not pervasive enough to qualify as "harassment," there is no evidence that the McGregor Street branch employees knew of her disability, and thus their actions could not have been "because" of that disability.
This evidence, even in the light most favorable to Posteraro falls far short of the "constant mockery" or "constant ridicule" sufficient to prove a claim of disability based harassment.
Employers are required to make "reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability." 42 U.S.C. § 12112(b)(5)(A); N.H. Rev. Stat. Ann. § 354-A:7, VII(a). Here, Posteraro describes the requested accommodation in both general terms — that she be provided with a "peaceful calm environment where I didn't feel threatened for my safety emotionally or physically" — and specifically that she be moved into a nonretail branch position that did not involve interaction with the public. The court begins by noting that Posteraro's initial requests for accommodation were indisputably granted — she was given leaves of absence without fail and she was moved, consistent with her doctor's recommendation (but not bank policy), from South Willow Street to McGregor Street after her first leave ended. It is only the last phase of her relationship with Citizen that remains at issue.
Next, the court finds that the request for a "peaceful calm environment" is too vague to be considered a request under the ADA or state law.
As for her specific request, Posteraro, through her attorney, acknowledged that there were no non-branch jobs available.
To prove retaliation under state and federal law, Posteraro must demonstrate that: 1) she engaged in protected conduct; 2) she was subject to an adverse employment action; and 3) there was a causal connection between the first two factors.
For present purposes, there is no dispute that Posteraro engaged in protected activity by seeking relief for sexual harassment and her disability. She alleges two types of adverse employment action in her complaint. First, that Citizens "refus[ed] to provide her with timely management approval of basic functions, refusing to communicate with [her], poisoning her ability to transfer [from] the [South] Willow Street branch and otherwise mentally torturing and intimidating [her] at virtually every interaction." Second, Posteraro alleges that retaliation took the form of constructive discharge.
Addressing the latter contention first, the court finds that the undisputed circumstances here conclusively defeat any claim of constructive discharge. Although Posteraro was officially terminated, Citizens took that action only after Posteraro rejected Citizens' offer of a Banker position at a third different branch. Although Posteraro argues that working conditions were "intolerable," she must also demonstrate that Citizens "did not allow [her] the opportunity to make a free choice regarding [her] employment relationship."
Here, the objective evidence is that Posteraro was granted leave immediately upon request, was transferred, at her request, to a branch away from her putative harassers, and offered her original job at yet a third branch with presumably different personnel. Yet her final sought-after accommodation had nothing to do with bank personnel, but was aimed at avoiding customer contact. Against this backdrop, Posteraro cannot claim that her decision to not return to work resulted from a constructive discharge.
With regard to her other claim of adverse employment action, however, the court finds the evidence sufficient for this claim to survive summary judgment. Posteraro correctly observes that escalation of a supervisor's harassment after she lodged a complaint can constitute an adverse employment action sufficient to support a retaliation claim.
As previously noted, Posteraro first complained to Citizens' employee relations department about sexual harassment in early January 2011, and the issue was resolved to her satisfaction by January 20.
Coming as it did only a short time after Posteraro's sexual harassment complaint, there is sufficient temporal proximity between the complaint and Hatzidakis's later displays of temper that could support a retaliation claim.
Rather than address the burden-shifting analysis, defendants instead argue that the retaliation claim fails because Posteraro did not engage in further protected activity after the January 20th resolution of the sexual harassment complaint of which Hatzidakis had notice. Implicitly, according to Citizens, Posteraro's sexual harassment claim ceased being a "protected activity" once it was resolved, even with respect to behaviors occurring shortly afterward. Citizens cites no support for this proposition and the court is unaware of any. Perhaps if a period of months or years had passed with no further incidents, a plaintiff would be hard-pressed to rely on the earlier complaint. But here, evidence supports Posteraro's claim that Hatzidakis treated her adversely not long after her harassment complaint, and his own words about her "getting him in trouble," arguably tie his treatment to her complaint. Accordingly, summary judgment is denied on Counts 5 and 6 to the extent they involve Hatzidakis's treatment of Posteraro following her sexual harassment complaint in early January 2011.
In order to succeed on this claim asserted under New Hampshire law, Posteraro must prove that Hatzidakis or Citizens, "by extreme and outrageous conduct, intentionally or recklessly cause[d] severe emotional distress to another."
Here, even in the light most favorable to Posteraro, Hatzidakis's conduct falls far short of meeting the "extreme and outrageous" standard. At best, he was ineffective in putting an end to sexual banter in the office and lost his temper on a few occasions. Posteraro's claim that he "poisoned the well" at McGregor Street is not supported by the record and would probably not satisfy the "extreme and outrageous" standard even if it had record support. Although the court has already ruled that a jury could find that Hatzidakis's behavior amounted to retaliatory conduct, that claim requires different proof than intentional infliction of emotional distress.
Posteraro's allegations against Citizens boil down to its response to her harassment complaints. But as this court has noted, "[e]xcept in extraordinary circumstances, a party's failure to respond to complaints does not rise to the level of intentional infliction of emotional distress."
Under New Hampshire law, a plaintiff claiming wrongful termination must establish that (1) her termination was motivated by bad faith, retaliation or malice; and (2) that she was terminated for performing an act that public policy would encourage or for refusing to do something that public policy would condemn.
Based on the foregoing, defendants' motion for summary judgment
