Grace Cuddyer vs. The Stop & Shop Supermarket Company
Case Details
- Citation
- 434 Mass. 521
- Procedural Posture — the stage the case had reached
- appeal
- State
- Massachusetts
- Circuit
- 1st Circuit
Related Laws
No specific laws identified for this ruling.
Claim Types
Outcome
The Massachusetts Supreme Judicial Court vacated the grant of summary judgment for the employer and remanded the case to Superior Court for trial, holding that the plaintiff established a prima facie case of sexual harassment under state discrimination law and that the continuing violation doctrine prevented the statute of limitations from barring her earlier claims.
Excerpt
Grace Cuddyer vs. The Stop & Shop Supermarket Company. Norfolk. March 8, 2001. July 12, 2001. Present: Marshall, C.J., Grbaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ. Anti-Discrimination Law, Sex, Employment. Massachusetts Commission Against Discrimination. Limitations, Statute of. Practice, Civil, Summary judgment. Discussion of the effect of the continuing violation doctrine on the statute of limitations governing G. L. c. 151B claims of sexual harassment. [530-532] Discussion of the theory of sexual discrimination based on a hostile work environment. [532-534] Statement of the Federal interpretation (“revelatory” standard) that a continuing violation claim of sexual harassment will fail if the plaintiff was, or should have been, aware that she was being unlawfully discriminated against while earlier acts, now untimely, were taking place [534-536], and the reasons why, in construing G. L. c. 151B, this court frequently does not follow the reasoning of Federal appellate decisions applying Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-2(a)(l) [536-539], On a claim against the defendant employer seeking damages for discrimination by means of sexual harassment in the workplace in violation of G. L. c. 151B, § 4(1) and (16A), alleging that the plaintiff employee had been subjected to a hostile work environment, this court held that the plaintiff had set forth an actionable case of sexual harassment and that, based on the continuing violation doctrine, her claim was not barred by the six-month limitation period set forth in G. L. c. 15 IB, § 5, for complaints filed with the Massachusetts Commission Against Discrimination. [539-540] This court, stating that a female employee had set forth a prima facie claim against her employer of discrimination based on sexual harassment, vacated the grant of summary judgment for the employer and remanded the case to the Superior Court for proceedings consistent with guidelines set forth in this opinion. [540-542] Civil action commenced in the Superior Court Department on September 23, 1997. The case was heard by Judith Fabricant, J., on a motion for summary judgment. The Supreme Judicial Court granted an application for direct appellate review. Leonard H. Kesten (Deidre Brennan Regan & Steven C. Sharaf with him) for the plaintiff. Lisa J. Damon (Kent D.B. Sinclair with her) for the defendant. The following submitted briefs for amici curiae: Marisa A. Campagna & Deborah M. Silva for the Massachusetts Chapter of the National Employment Lawyers Association. Simone Liebman for the Massachusetts Commission Against Discrimination. Loretta M. Smith for the Associated Industries of Massachusetts & another. Greaney, J. The plaintiff, Grace Cuddyer, was employed as a line worker in the commissary of the defendant, The Stop & Shop Supermarket Company. She brought a complaint in the Superior Court against the defendant seeking damages for discrimination by means of sexual harassment in the workplace in violation of G. L. c. 151B, § 4 (1) and (16A), alleging that she had been subjected to a hostile work environment. A judge in the Superior Court granted summary judgment for the defendant. The judge primarily concluded that the plaintiff’s, claim was barred by the six-month statute of limitations set forth in G. L. c. 151B, § 5, for complaints filed with the Massachusetts Commission Against Discrimination (MCAD). The plaintiff appealed, and we granted her application for direct appellate review to examine the application of the six-month statute of limitations in a claim of sexual harassment of the type alleged here. We conclude that the plaintiff has set forth an actionable case of sexual harassment and that, based on the continuing violation doctrine, her claim is not barred by the six-month limitation period. Accordingly, we vacate the grant of summary judgment and remand the case to the Superior Court for trial. We set out the background of the case by reciting the facts in the summary judgment record as viewed in the plaintiff’s favor, see Tetrault v. Mahoney, Hawkes & Goldings, 425 Mass. 456, 459 (1997), and the reasoning of the judge in concluding that the defendant was entitled to summary judgment. The plaintiff has been employed by the defendant in the manufacturing division of its Readville facility since 1973. Since her hire, the plaintiff has worked in the commissary as a line worker on a variety of production lines, including the soda and the cold kitchen lines. The commissary staff includes employees at three levels: supervisors; foremen; and line workers. Supervisors are salaried, nonunion employees, whose job responsibilities include directing manufacturing operations, assigning personnel to the production lines, and addressing disciplinary and other problems. Foremen are union members, paid on an hourly basis, whose function is to implement the supervisors’ instructions and generally to run the production line. Their responsibilities include instructing line workers as to specific production requirements, directing where on the line they work, scheduling the workers’ breaks, acting on workers’ requests to leave the line during their shift (such as to visit the restroom), and, in the event of problems on the line, calling maintenance or the supervisor. Each production line has one or two foremen. As of 1998, of the twelve foremen employed in the commissary, only one was female, and, out of approximately 120 employees working on production lines, only six or seven were female. The events relevant to this case began shortly after the outset of the plaintiff’s employment. The plaintiff alleges that, from “day one,” she was subject to both verbal and physical sexual conduct by her then supervisor Billy Leach. According to the plaintiff, Leach subjected her to harassment, by constantly seeking dates and asking her “can I touch you once, can I kiss you in your ear, can I kiss your belly button, stuff like that.” The plaintiff did not report Leach’s behavior to management, because “Billy does it to everybody” (although the plaintiff also indicated that Leach treated her differently from other females in the company), and because she felt that, if she complained, he could make her work harder. The plaintiff also testified that, a couple of times in the past, Leach had made her work harder after she had told him to leave her alone. The plaintiff is not specific as to when Leach’s offensive conduct occurred. Beginning in 1986 or 1987, and continuing until September, 1994, a line worker, Pedro Cordero, continually would rub against or bump into the plaintiff. On at least one occasion, Cordero bent over and “hit his fanny against [the plaintiff’s].” More than once, Cordero purposefully banged his arm into the plaintiff’s breasts. He also repeatedly made comments to the plaintiff about her body, telling her she had a “beautiful body, nice boobs, [and] nice fanny.” Sometime before September, 1994, while the plaintiff was working on the cold kitchen line, Cordero approached the plaintiff and said, “Grace, I had a dream about you. ... I had a dream of you sticking your finger up my ass, and, boy it felt good.” The plaintiff did not report this incident because she did not want to cause trouble. The plaintiff also perceived, from prior experience of reporting unwelcome advances of one foreman, Henry Sanchez (to be set forth shortly), and having Sanchez deny the conduct, that nothing would come of her complaints. The plaintiff finally reported the dream incident to management during a meeting on September 23, 1994, and to Jimmy Beggan, her union representative, who spoke with Cordero. The conduct subsequently ceased. The plaintiff often worked under the direction of foremen A1 Pearson and David Arce on the soda line. Pearson regularly used vulgar language (such as “f-you,” “Mother —and “cunt”); repeatedly approached female employees, moving in a sexually suggestive manner; and frequently asked the plaintiff about her menstrual cycle. She complained of the vulgar language to Beggan, who discouraged her from bringing Pearson’s behavior to the attention of management. On February 16, 1991, the plaintiff was working on the soda line. When she asked Pearson for permission to go to the restroom, he replied, “Oh, it’s that time of the month again. . . . Go ahead.” After the plaintiff returned to the fine, Arce crept up behind her and attached a sanitary pad spotted with raspberry syrup to her back. Other employees laughed and the plaintiff felt humiliated and angry. She immediately informed the supervisor about the incident, telling him, “I can take a joke, but this is ridiculous. This has just gone too far.” During a meeting in the supervisor’s office, Arce apologized and both the plaintiff and Arce returned to work. Although Arce was fired by the defendant for his part in the incident, he was reinstated, after four months unpaid leave, by an arbitrator. In the wake of the sanitary pad incident, both Pearson and Arce treated the plaintiff with hostility. On his return from unpaid leave, Arce had resumed his position as a foreman on the soda line. He once told the plaintiff that it was her fault that he had lost four months pay and also made false reports about the plaintiff’s work performance to her supervisor. The plaintiff perceived that Pearson and Arce’s behavior toward her was motivated by a desire to get her removed from the soda line. The plaintiff told Beggan, who advised her not to complain to management. She followed that advice (although continuing to complain to the union on a weekly basis), except on one occasion, when she and another woman complained that Arce and Pearson were giving them a “hard time.” Discussion ensued regarding alleged inadequacies in the plaintiff’s work, and no disciplinary action resulted. During this time, other workers as well expressed anger that the plaintiff had caused trouble for Arce. The hostility directed at the plaintiff continued until Arce left as foreman of the soda fine in December, 1994, or January, 1995. In 1993, the plaintiff frequently worked on the cold kitchen line under the direction of foreman Henry Sanchez. Sanchez several times asked her for a date and offered to take care of her and give her money. Once he pulled her hair, telling her that he would take her strands of hair to a witch doctor to make her fall in love with him. When the plaintiff refused Sanchez’s advances, he would get angry and scream at her, or falsely accuse her of doing something she had not done. Once Sanchez told the plaintiff that “[he was] going to have [her] taken out of the cold kitchen [line].” At times, after Sanchez complained to the supervisor about the plaintiff’s work performance, she would be taken out of the cold kitchen line. The plaintiff complained to the union and to management, and Sanchez (who denied the plaintiff’s accusations) was warned. Because of management’s failure to take action against Sanchez, the plaintiff was left with the impression that her complaints to management were useless. On September 14 or 15, 1994, a glue machine, used to attach labels to bottles on the soda line, jammed. Following customary procedure for this frequent occurrence, Pearson put on disposable surgical gloves and reached into the pail of glue to remove any labels stuck inside. He then stood behind the plaintiff with glue dripping from his gloves and jerked his hands back and forth to simulate masturbation. The plaintiff turned around and saw him pretending to masturbate behind her. Shocked and dumbfounded, she reported this incident to her supervisor. On September 23, 1994, at a meeting with management and union representatives, the plaintiff became so upset while recounting the incident that she had to be helped out of the room. Pearson denied that he had done anything except wipe excess glue from the gloves before removing them. He was not disciplined for the incident, but was warned that he would be terminated if any future sexual harassment occurred. The next day, Pearson wore a hat on which was affixed a fluorescent sign, reading “Beware.” The plaintiff believed that this message was directed at her. After this incident, Pearson continued to give the plaintiff a “very hard time,” and often yelled at her on the job. Other employees also gave the plaintiff a hard time. On one occasion, approximately six months after the glue incident, a male coworker told her, “Don’t worry, I’m not going to touch you. You’re nothing but trouble anyway.” On another occasion, the same coworker made the sign of a cross as she walked by him. Although the plaintiff spoke with Beggan about the matter, the male coworker continued to bother her. The offensive conduct directed at the plaintiff by Pearson, however, stopped when Pearson became aware that the plaintiff had taken legal action. On March 6, 1995, the plaintiff filed a complaint with the MCAD, charging the defendant with unlawful discrimination based on sexual harassment in violation of G. L. c. 151B, § 4 (1). Her complaint alleged that Arce had created a hostile work environment because of past complaints of discrimination made by her, and that the hostile work environment had continued until December, 1994. In the body of her complaint, the plaintiff specifically referred to the glue incident involving Pearson (described as occurring in September, 1994), and the dream incident involving Cordero (for which the plaintiff did not give an approximate date). On September 13, 1996, a commissioner of the MCAD entered a finding of probable cause on the plaintiff’s complaint and determined both that the plaintiff had established a prima facie case of discrimination and that the defendant had established a legitimate nondiscriminatory defense that the conduct alleged did not constitute discrimination. The plaintiff filed her complaint in the Superior Court on September 23, 1997. Sometime during the same month, Sanchez was standing behind the plaintiff, who was leaning over a table on which some boxes were stacked. Sanchez drew a sketch, which he showed to another worker and then to the plaintiff. To the plaintiff, the drawing appeared to represent a portion of her (unclothed) body. When questioned about the drawing by Alan Goodman, plant manager of the Readville facility, Sanchez denied that he had intended to portray the plaintiff and insisted instead that the drawing was of a dog. Goodman examined the drawing and commented that it looked like a camel or a dog. He ordered that the plaintiff and Sanchez be separated, but took no other action. With respect to the effects of the workplace experience on the plaintiff, a psychologist, Dr. John Daignault, testified at a depositian that the plaintiff suffers from recurrent major depression and posttraumatic stress disorder, which, as stated in a written psychological evaluation, are “directly causally related to persistent episodes of sexual harassment and its sequelae allegedly perpetrated upon her in her workplace.” Although Dr. Daignault did not identify a particular incident, or group of incidents, from among all of those related to him by the plaintiff as causing her medical condition, or attempt to pinpoint the time when the plaintiff’s condition arose, he rejected the possibility that experiences other than work-related ones might have contributed to the plaintiff’s condition. The record also indicates that the defendant first adopted a written sexual harassment policy in the 1980’s. The policy was contained in a corporate policy guide given to upper management, and was posted in work areas such as the break room and employee bulletin boards. The defendant held informal meetings in the late 1980’s with groups of employees to discuss its policy on sexual harassment, and conducted training on sexual harassment for all salaried management employees. During the plaintiff’s employment, the Readville manufacturing plant had a personnel representative who managed human resource issues, including concerns about workplace harassment. In early 1995, the defendant conducted one-hour meetings with groups of employees and supervisors from the Readville plant, which were prompted, in part, by the plaintiff’s allegations, and in which harassment and discrimination issues were discussed. The defendant moved for summary judgment, asserting that only two of the incidents that the plaintiff alleged (the September, 1994, glue incident involving Pearson and the September, 1997, incident involving Sanchez’s drawing) were timely and that these were not sufficiently egregious or pervasive to constitute actionable sexual harassment under G. L. c. 151B. The defendant also argued that the plaintiff’s failure to assert the 1997 drawing incident in a complaint to the MCAD barred its consideration. Finally, the defendant asserted that its response to the glue incident protected it from liability for that event, even if that incident standing alone would suffice to constitute sexual harassment. The judge, in her written memorandum of decision, determined that only the glue and drawing incidents could be considered as evidence of a hostile work environment. These two incidents, she concluded, did not rise to the level of an actionable claim of sexual harassment. The judge rejected the plaintiff’s argument that, because her claim of sexual harassment constituted a continuing violation, the MCAD’s six-month statute of limitations for filing a claim as to the earlier incidents was not applicable. Relying on Federal law interpreting the continuing violation doctrine under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-2 (a)(1) (Title VII), the judge concluded that the plaintiff was barred from asserting the doctrine because the plaintiff’s testimony indicated that she was aware that she was the subject of unlawful discrimination while acts prior to the six-month cutoff were taking place. See Provencher v. CVS Pharmacy, Div. of Melville Corp., 145 F.3d 5, 14 (1st Cir. 1998); Sabree v. United Bhd. of Carpenters & Joiners, Local No. 33, 921 F.2d 396, 401 (1st Cir. 1990). The judge concluded that, although the continuing violation doctrine “permit[s] the inclusion of acts whose character as discriminatory was not apparent at the time they occurred,” Speer v. Rand McNally, 123 F.3d 658, 663 (7th Cir. 1997), it does not obviate the general rule that “a knowing plaintiff has an obligation to file promptly or lose his [or her] claim.” See Provencher v. CVS Pharmacy, Div. of Melville Corp., supra at 15. The judge next considered the evidence of the two incidents of harassment within the statutory limitations period, the 1994 glue incident and the 1997 drawing incident. (The judge apparently did not consider Pearson’s wearing of the hat with a “Beware” sign as an incident of harassment). She determined that neither incident involved any physical contact, request for sexual favors, vulgar or demeaning language, or threat or intimidation. She concluded that evidence of the two incidents, three years apart, even when considered in the context of what the judge considered to be the earlier time-barred incidents, was insufficient to support the plaintiff’s claim of sexual harassment. Based on the reasoning described, the judge granted summary judgment for the defendant. 1. We first consider the effect of the continuing violation doctrine on the statute of limitations governing G. L. c. 151B claims of sexual harassment. Specifically, we inquire whether the plaintiff’s awareness that she was being sexually harassed by incidents occurring before September 6, 1994 (the date six months prior to her filing of her complaint with MCAD), bars her from asserting a substantive claim in court based on those incidents. In evaluating the issue, we keep in mind that a defendant seeking summary judgment has the burden of establishing that the plaintiff “has no reasonable expectation of proving an
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