Opinion
No. 12–P–1171.
2013-10-8
Heidi Marie SANSOUCY v. SOUTHCOAST HEALTH SYSTEMS, INC., & others.
By the Court (GREEN, GRAINGER & FECTEAU, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Heidi Marie Sansoucy, appeals from the allowance of the defendants' motions for summary judgment by a judge of the Superior Court that dismissed the entirety of her claims against her employer and several of its employees.
Sansoucy's complaint, filed on November 30, 2009, alleged claims of sexual harassment against a coworker, Lee Knight, discrimination and retaliation claims against her employer, and claims against various supervisory personnel for aiding and abetting Knight, in violation of G.L. c. 151B, § 4(5). This case raises, among other issues, the question whether harassment of a nonsexual nature was an “anchoring event” sufficient to permit the extension of the limitations period pursuant to the continuing violation doctrine for the otherwise undisputed incidents of sexual harassment occurring outside the limitations period. We affirm. The record reveals the following facts, which we view in a light most favorable to the plaintiff. Sansoucy first complained to the hospital on October 19, 2006, about incidents of sexual harassment by defendant Knight that had occurred since 2005, including two incidents involving Knight kissing or attempting to kiss her. The director of human resources (Charpentier) conducted an investigation, during which she also learned of complaints from other female employees about Knight's conduct towards them. During the investigation Knight was placed on paid leave.
Both the plaintiff, a certified nursing assistant, and Lee Knight, a respiratory therapist, were employed at Charlton Memorial Hospital (hospital), working the third shift. The plaintiff was assigned to a particular floor and ward, but Knight worked throughout the hospital.
After the hospital first informed Knight of the complaint, he approached Sansoucy and inquired whether she was the accuser. Sansoucy reported this encounter to Charpentier on October 24, 2006. As a result, on November 1, 2006, Knight was given a written warning and he was prohibited from speaking to coemployees about the complaint or trying to ascertain who had initiated it.
It is undisputed that Knight committed no further acts of sexual harassment after this date. After the conclusion of the sexual harassment investigation and the issuance of the written warning, Knight was reinstated.
Sansoucy had requested that the hospital not disclose her identity to Knight.
Nonetheless, Sansoucy asserts that Knight continued to ask her about the identity of the accuser, even after Knight received the written warning. Sansoucy claims she was fearful of Knight during this time, hiding in rooms when he would appear on her floor. She asserts that the hospital made no effort to prevent Knight from being able to interact with her at work. However, on June 5, 2007, Knight was terminated after being confronted with his violation of the terms of the written warning concerning his attempts to identify his accuser.
Before Knight was terminated, on May 25 or 26, 2007, Sansoucy saw Knight on her floor and she became distraught and panicked. She later made a comment to another employee that she (Sansoucy) should just get a gun so she would not need to worry about him anymore.
Although she was sent home that night, she continued to work her regular shift over the next few days.
Another employee overheard this, but in different terms, which was reported to Sansoucy's supervisor, to the effect that Sansoucy wanted to go home, get a gun, and come back and shoot Knight.
On June 6, Sansoucy was informed of the decision to discipline her for the gun comment. She was given a written warning and was required to attend counseling in an employee assistance program as a condition of continued employment. She claims the warning, which she was required to sign, contained a version of her comments she believed was untrue and which could constitute an admission to a crime. She refused to accept the conditions and claims she was constructively terminated.
The judge ruled on the motions that the claims for sexual harassment against Knight and discrimination against Sancoucy's employer, filed on November 30, 2009, were untimely under the three-year limitations period of G.L. c. 151B, § 9, because no objectionable sexual conduct occurred after November 1, 2006.
The judge also found that there was no showing that “an anchoring event occurred within the limitations period which would potentially extend the same.”
.General Laws c. 151B, § 9, as amended by St.1991, c. 323, § 2, states, in relevant part:
“Any person claiming to be aggrieved by a practice made unlawful under this chapter ... may, at the expiration of ninety days after the filing of a complaint with the commission, ... but not later than three years after the alleged unlawful practice occurred, bring a civil action for damages or injunctive relief or both in the superior ... court....”
On appeal, Sansoucy first contends that Knight's nonsexual interrogations after November 1, 2006, concerning the initial complaint of sexual harassment, constitute a continuing violation of G.L. c. 151B. To establish a continuing violation, Sansoucy must show “the existence of at least one incident of sexual conduct ... which substantially relates to earlier incidents of abuse, and substantially contributes to the continuation of a hostile work environment, such that the incident anchors all related incidents, thereby making the entirety of the claim for discriminatory conduct timely.” Cuddyer v. Stop & Shop Supermkt. Co., 434 Mass. 521, 533 (2001). Although Knight continued to harass Sansoucy within the limitations period by seeking to learn the identity of his accuser, we agree that this type of continuing nonsexual harassment is insufficient to anchor a claim of a continuing violation of sexual harassment.
It is undisputed that after November 1, 2006, Knight did not engage in any objectionable sexual conduct toward Sansoucy. While Knight's inquiries of her concerned his prior actions of sexual harassment, the inquiries did not “substantially contribute[ ] to [a] continuation of a hostile work environment.” Ibid. See id. at 532, quoting from O'Rourke v. Providence, 235 F.3d 713, 727 (1st Cir.2001) (“[T]here is a natural affinity between the hostile work environment theory and the continuing violation doctrine”). A hostile work environment is one that is “pervaded by harassment or abuse, with the resulting intimidation, humiliation, and stigmatization [; it] poses a formidable barrier to the full participation of an individual in the workplace.” College–Town, Div. of Interco, Inc. v. Massachusetts Commn. Against Discrimination, 400 Mass. 156, 162 (1987). Although Sansoucy was undoubtedly uncomfortable with Knight's questioning, she has failed to show how his actions after November 1, 2006, created a prolonged and compelling pattern of mistreatment that forced Sansoucy to work under intolerable, sexually offensive conditions. Cuddyer, 434 Mass. at 532–533. See Prader v. Leading Edge Prods., Inc., 39 Mass.App.Ct. 616, 619 (1996) (holding that a workplace “culture of profanity” did not constitute sexual harassment because, while the profanity was offensive to the plaintiff, the words were not “sexually charged”).
Likewise, Knight's behavior is also insufficient, as a matter of law, to constitute an actionable claim of intimidation. To state a viable claim for harassment based on Knight's conduct after the November 1, 2006, written warning, Sansoucy was required to show that his actions were “sufficiently severe and pervasive to interfere with a reasonable person's work performance” and that they did, in fact, unreasonably interfere with her work performance so as to materially alter the terms and conditions of her employment. Muzzy v. Cahillane Motors, Inc., 434 Mass. 409, 411 (2001). No such showing has been made. While Sansoucy may have found Knight intimidating because of his “deep voice” and “adamant” questioning, these are “the kind of subjective and intangible impressions that must not be considered in making out a case under [G.L. c. 151B].” Bain v. Springfield, 424 Mass. 758, 766 (1997). See MacCormack v. Boston Edison Co., 423 Mass. 652, 663 (1996) (holding that the plaintiff's “subjective feelings of disappointment and disillusionment” could not sustain a retaliation claim for age discrimination).
For the same reasons that we conclude the judge was correct on the nature of Sansoucy's claims against Knight, we also concur with the judge's conclusion that Sansoucy's claim against her employer fails. Again, Sansoucy has failed to demonstrate, on this record, the existence of a hostile work environment, namely one that is “pervaded by harassment or abuse.” College–Town, 400 Mass. at 162.
Moreover, the hospital responded promptly and reasonably to Sansoucy's complaints. “[L]iability [under G.L.c. 151B] may be imposed where the employer knew or should have known of the harassing conduct but ‘failed to take prompt, effective and reasonable remedial action.’ “ Modern Continental/Obayashi v. Massachusetts Commn. Against Discrimination, 445 Mass. 96, 106 (2005), quoting from Massachusetts Commission Against Discrimination Guidelines: Sexual Harassment in the Workplace § III.C (2002). Here, the hospital investigated Sansoucy's initial complaint and suspended Knight with pay. The hospital again disciplined Knight with a written warning after he first confronted Sansoucy about the accusations.
After the written warning, Knight committed no further acts of sexual harassment. When the hospital learned that Knight continued to question Sansoucy about the complaint after the written warning, it launched a second investigation that ultimately resulted in Knight's termination. Thus, we discern no error in the judge's finding that the hospital's actions were reasonable.
Sansoucy alleges that the hospital failed to protect her from Knight's repeated interrogations, which Sansoucy asserts continued from the November, 2006, warning until May, 2007. However, the court is “not to focus solely upon whether the remedial activity ultimately succeeded, but instead should determine whether the employer's total response was reasonable under the circumstances as then existed.” Modern Continental/Obayashi, 445 Mass. at 109, quoting from Berry v. Delta Airlines, Inc., 260 F.3d 803, 811 (7th Cir.2001).
These reasons also dispose of Sansoucy's claims against the individual defendants for aiding and abetting Knight's harassment.
We also concur with the judge's conclusions that the hospital's discipline of Sansoucy was not retaliatory and the hospital's ultimatum did not constitute constructive termination. Given Sansoucy's history of anger or other temperament issues unrelated to the instant case, together with the gun comment, the hospital's decision to refer her to the employee assistance program was a measured and appropriate response to concerns for patient and employee safety and the professionalism of its staff. It constitutes an unsupported leap of logic for Sansoucy to base her claim against her employer for retaliation and constructive termination on this action by the hospital.
Sansoucy would have been permitted to add to her personnel record her written version of events, in order to counter the written reprimand the hospital had proposed in addition to her referral to the employee assistance program.
Judgment affirmed.