MEMORANDUM AND ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Plaintiff Debra Luciano brought this gender discrimination complaintunder 42 U.S.C. § 2000e, and its Massachusetts homologue, G.L.C.151B, against her former employer, Coca-Cola Enterprises, Inc.(Coca-Cola), and two of her former supervisors, Walter Gordon and JosephPapapietro, as well as Douglas Smith, a Coca-Cola Director of HumanResources. Luciano alleges that Coca-Cola's "anti-woman culture" led toher constructive discharge from a managerial position at Coca-Cola NewEngland (Coca-Cola NE).1 Defendants now move for summary judgment,arguing that Luciano has failed toPage 2produce evidence of either an adverse employment action ordiscriminatory animus.
The facts in the light most favorable to Luciano are as follows.Luciano worked for Coca-Cola NE from 1997 until 2001. During the latterpart of Luciano's tenure with Coca-Cola NE, Douglas Smith was theDirector of Human Resources. In March of 2000, Walter Gordon was namedCoca-Cola NE's Vice President of Sales and as a result became Luciano'simmediate supervisor. In December of 2000, Joseph Papapietro became VicePresident/General Manager and the head of Coca-Cola NE.
Coca-Cola NE hired Luciano in 1997 as a Category 2 Key AccountManager2 at its home office in Needham, Massachusetts.3 Luciano'sprincipal task was to call upon corporate headquarters in the surroundingsales territory to promote the placement of Coca-Cola products. Lucianoreported to the Director of Key Accounts, Nick Massey, who in turnreported to the Vice President of Sales, Paul LeBlanc.4
In April of 1998, Luciano was promoted to the newly created position ofDirector of Key Accounts for Category 2. Prior to Luciano's promotion,the Category 1 and CategoryPage 32 accounts had been overseen by Massey, who replaced LeBlanc asVice President of Sales. Steven Paccone became Luciano's counterpart asDirector of Key Accounts for Category 1. Luciano still reported directlyto Massey.
Luciano found Massey (who is not named as a defendant) to be adifficult supervisor "because of his practice of subjecting femaleemployees to public ridicule and hostility, not only in front of theirown peers and superiors, but also in front of their customers."Plaintiffs Brief, at 4. Luciano felt that Massey's requests that she"type up" reports and his frequent interruptions of female presenters atmonthly sales meetings were demeaning.
A: It was verbal harassment, and it was hard to tell you the exact words that he used. But it would be . . . like "That's ludicrous," or "That just doesn't make sense," and kind of downgrading . . . Q: Are you testifying that he didn't attack males or any man's presentation? A: He tended to do those when he was with them one-on-one, not in the group setting. He tended to do the verbal attacking when we were in a group on individuals such as Kristen Francour and folks like that. Q: I'm confused. When he was with someone else one-on-one, you're not in there, right? A: Right. Yes. Q: Is that when he would attack these plans? A: No. See, you asked if he did it beyond the women, if the men also felt this attack. Q: Right.
A: They did not feel it to the extent that we felt it in the female side, because ours was more on a — we got it when it was in public.Page 4
Q: So you know that he attacked men too; he just didn't do it in public? A: I know of some instances, yes.
In early 1999, Luciano learned that Coca-Cola NE was creating a newposition of Director of Marketing. Luciano lobbied Massey and PhillipEmma, the recently appointed Coca-Cola NE Vice President/General Managerfor the job. Emma told Luciano that the position was not "right for her."The job was never posted, and in February of 1999, Paccone, who inLuciano's judgment had less marketing experience than she did,5 wasnamed Director of Marketing. Luciano retained the Category 2 accounts andalso assumed responsibility for all of the Category 1 accounts with theexception of Shaw's Markets and Stop and Shop, which were assigned toAndrew Marchessault and Thomas Noyce.
In April of 2000, Massey was transferred to the Atlanta headquarters ofCoca-Cola and Walter Gordon became the Vice President of Sales.6Luciano, Marchessault, and Noyce now reported directly to Gordon. Each inturn directly supervised a category manager and a marketing analyst whowere responsible for amassing and analyzing external and internal salesdata. Marchessault and Noyce (but not Luciano) were given the title ofMarket Development Manager and a raise in pay.7 Convinced that herprospectsPage 5for promotion at Coca-Cola NE were negligible, Luciano began tosearch for new employment. She interviewed for a position at Coca-Cola inAtlanta, and received an offer, but her transfer required Emma'sapproval. Emma refused the transfer request. In the summer of 2000,Gordon created another new position, Director of Category Managers, a jobthat went to Robert Hall, then the Director of Cold Drinks.
Luciano was not invited to certain Coca-Cola business and socialevents, which were often centered on "traditional male activities, suchas golf." Complaint ¶ 18. In August of 2000, Coca-Cola NE held abusiness meeting in Providence, Rhode Island, featuring a "team-building"game of paintball. Luciano told Emma that she was uncomfortable with theexercise and refused to participate.8 In the same month, Emmaconvened a financial planning meeting on Martha's Vineyard to whichLuciano was not invited.9 In January of 2001, Luciano was not invitedto a social event held in Miami by Coca-Cola NE and Coca-Cola of New Yorkfor selected sales personnel. The event featured attendance at theSuperbowl and a golfing weekend at the Doral Resort. Luciano also was notincluded in a Red Sox opening day event at Fenway Park arranged byPage 6Marchessault for Shaw's Market executives.10 On May 14, 2001,Luciano was not invited to a "Connecting with Customers" trainingseminar.11
Luciano's Claims against the Individual Defendants
Gordon held regular meetings with Luciano, David Eberhart (the newDirector of Cold Drinks), Hall, Marchessault, and Noyce. Concerned thather twenty two accounts were being slighted in sales meetings (incontrast with Marchessault's and Noyce's single accounts), Lucianorequested additional time without Marchessault and Noyce being present todiscuss sales strategy with Gordon. Gordon "either ignored or rebuffedher requests." Plaintiffs Brief, at 11.
In September of each year, the Coca-Cola NE Directors of Key Accountspresented "channel plans" to the national Coca-Cola sales managers. Withthe help of her Key Account Managers, Luciano would gather sales datafrom the prior year to provide a basis for forecasting sales for thecoming year. In 1997, 1998 and 1999, Luciano gave "channel plans"presentations to the Coca-Cola top brass. In 2000, Gordon assignedMarchessault and Donald Barsalou (yet another Market DevelopmentManager), to presentPage 7Luciano's "channel plan." Gordon told Luciano that he wanted togive the two men more exposure to Coca-Cola's senior management.
According to Luciano, Gordon continually undermined her authority withher account managers by overriding her decisions regarding pricing andthe advertising budget, while holding her to unrealistic sales goals. Healso required her to perform tasks that she deemed inappropriately"secretarial."12 Luciano's subordinates, sensing her disfavor, beganto go directly to Gordon, Marchessault, and Mike Defer, an Area VicePresident, seeking to circumvent her instructions. Gordon becameincreasingly critical of Luciano's management style and communicationskills. In January of 2001, Gordon told Luciano that Gary Dumas hadcomplained that Luciano was failing to give clear directions to his SalesCenter staff.13 Luciano was surprised and asked for a meeting withDumas' group. With Gordon present, the Sales Center staff was in"universal agreement" that "the Needham office and the [S]ales [C]enterwere communicating and functioning extremely effectively together."Plaintiff's Brief, at 16.
According to Luciano, Marchessault (who is not a defendant) verballyharassed her and her staff,14 and ignored her requests for theinformation she needed to complete thePage 8key accounts reports. When Luciano asked Gordon to intervene, hereplied that she "should work it out with Marchessault herself."
In March of 2001, Gordon gave Luciano a "decidedly negative"performance appraisal.15 He recommended no salary increase and theimplementation of a ninety-day Performance Improvement Plan.16 Afteran unpleasant meeting with Gordon on April 16, 2001, Luciano appealed toSmith, Barbara Bowman's successor as Director of Human Resources.17The three met the following day to discuss Gordon's negative appraisal.Luciano challenged each of Gordon's Below Target ratings. She presentedGordon and Smith with a four-inch binder of materials cataloguing herdisagreements with Gordon's negative assessment. At Luciano'srequest,18 Smith agreed to initiate a "360 ° review" of herperformance.19 After examining Luciano's materials and discussing thematter with Smith, Gordon changed his rating of her performance in thearea of Teamwork from Below Target to On Target. He declined, however, tomake any other changes to the evaluation.Page 9
On April 17, 2001, all of the marketing analysts, including Luciano'sassistant, Monica Moore, were placed under Hall, the Director of CategoryManagers. In addition, two of Luciano's Key Account Managers, Linda Reeceand Joseph Flaherty, were "shifted" to Marchessault. No replacement wasnamed for Moore, upon whose assistance Luciano depended in compiling theweekly sales reports. The day following Moore's reassignment, Gordone-mailed Luciano to remind her that "you still own the report" and that"[t]here will be zero tolerance for this report not being completed on aweekly basis in a timely and accurate manner since our [senior managers]use the tool for forecasting."
Luciano and Gordon met on May 7, 2001, to discuss her performanceappraisal further. Smith did not attend, despite a request by Lucianothat he do so. At the meeting, Gordon presented Luciano with theninety-day Performance Improvement Plan.20 Gordon identifiedleadership, communication, and volume/gross profit as areas in whichLuciano needed to improve. Gordon agreed to meet with Luciano on a weeklybasis to discuss her progress.
At a leadership forum for Coca-Cola female executives in early May,Luciano became acquainted with Mary Knight-Cherry, a Vice-President inCoca-Cola Atlanta's Human Resources Department. After receiving thePerformance Improvement Plan from Gordon, Luciano called Knight-Cherry tocomplain about "discrimination and harassment." On May 10, 2001,Knight-Cherry told Luciano that she had relayed the complaint to Gordon'ssupervisor, Joseph Papapietro, the Vice President/General Manager ofCoca-ColaPage 10NE. She suggested that Luciano contact Papapietro directly. AtLuciano's request, Papapietro agreed to hear her complaints about Gordon.At the end of the meeting, Papapietro agreed to meet with Luciano'ssubordinates.
Papapietro did so on May 21, 2001, without Gordon or Luciano beingpresent. The group discussed the performance of the Key Accounts Group.The employees complained to Papapietro about a lack of communication anddirection. After the meeting, Papapietro was approached by Key AccountManager Joseph Flaherty.21 Flaherty told Papapietro that he hadlearned more in four weeks working for Marchessault than he had in a yearworking for Luciano. Papapietro left the meeting convinced that therewere supervision problems in the Key Accounts Group, for which he blamedboth Gordon and Luciano.
Later that day, Papapietro met with Gordon and Luciano and informedthem of his conclusions and his expectation that they would mutuallyresolve the problems that he had identified. Luciano told Papapietro thatthere were no problems for which she was responsible, and that in lightof Papapietro's failure to address her complaints about the"insurmountable good old boy network" at Coca-Cola, she was resigning.Luciano handed Papapietro a typed letter of resignation. After Lucianoleft Coca-Cola NE, her job responsibilities were divided amongMarchessault, Barsalou, and a third male manager.22Page 11
On June 4, 2001, Luciano filed a dual charge with the MassachusettsCommission Against Discrimination (MCAD) and the Equal EmploymentOpportunity Commission (EEOC). The Complaint was filed in the federaldistrict court on May 16, 2002, after the EEOC issued a Right to Sueletter.
At the time Luciano resigned from Coca-Cola on May 21, 2001, she wasthe highest ranking and highest paid female executive in the salesdivision of Coca-Cola NE. Throughout her tenure with Coca-Cola, theeleven Sales Center Managers, who occupied comparable positions, weremale, as were thirty-three of the thirty-four district managers (thelevel directly below Sales Center Managers). According to Luciano'scalculations, the ratio of men to women managers at Coca-Cola NE in 1999was 4.3 to 1, in 2000, 3.9 to 1, and in 2001, 4.3 to 1. During her lastyear at Coca-Cola, Luciano earned approximately $97,000, while sheestimates that her male counterparts were paid an average of $107,000.
Summary judgment is proper where "the pleadings, depositions, answersto interrogatories, and admissions on file, together with the affidavits,if any, show that there is no genuine issue as to any material fact andthat the moving party is entitled to a judgment as a matter of law."Fed.R.Civ.P. 56(c). In employment discrimination cases "where elusiveconcepts such as motive or intent are at issue," summary judgment is nota favored tool, but judgment will enter if the non-moving party "rests[her case] merely upon conclusory allegations, improbable inferences, andunsupported speculation." Feliciano de la Cruz v. El ConquistadorResort and Country Club, 218 F.3d 1, 5 (1st Cir.Page 122000). "Even in discriminatory discharge cases, where the plaintiffcan rarely present direct, subjective evidence of an employer's actualmotive, the plaintiff cannot survive summary judgment with `unsupportedallegations and speculations,' but rather must `point to specific factsdetailed in affidavits and depositions — that is, names, dates,incidents, and supporting testimony — giving rise to an inferenceof discriminatory animus.'" Hoeppner v. Crotched MountainRehabilitation Center, Inc., 31 F.3d 9, 14 (1st Cir. 1994).
Statute of Limitations
An employment discrimination charge must ordinarily be filed with theEEOC or the MCAD within 180 days of an act alleged to have beendiscriminatory. 42 U.S.C. § 2000e-5(e)(1); G.L. 151B, § 5.However, where as here, a plaintiff files her initial charge with theMCAD, the EEOC deadline is enlarged to 300 days. The deadlines must bestrictly observed. Under federal law, "discrete discriminatory acts arenot actionable if time barred, even when they are related to acts allegedin timely filed charges. Each discrete discriminatory act starts a newclock for filing charges alleging that act." National RailroadPassenger Corp. v. Morgan, 536 U.S. 101, 113 (2002).23 The ruleis different, however, where the claim is one of hosfile environment.
Hosfile environment claims are different in kind from discrete acts. Their very nature involves repeated conduct. See 1 B. Lindemann & P. Grossman, Employment Discrimination Law 348-349 (3d ed.1996) (hereinafter Lindemann) ("The repeated nature of the harassment or its intensity constitutes evidence that management knew or should have known of its existence"). The "unlawful employment practice" therefore cannot be saidPage 13 to occur on any particular day. It occurs over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993) ("As we pointed out in Meritor [Savings Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986),] `mere utterance of an . . . epithet which engenders offensive feelings in a[n] employee,' ibid. (internal quotation marks omitted), does not sufficiently affect the conditions of employment to implicate Title VII"). Such claims are based on the cumulative effect of individual acts.
Id. at 115. Because "the entire hosfile work environmentencompasses a single unlawful employment practice . . .[i]n order forthe charge to be timely, the employee need only file a charge within 180or 300 days of any act that is part of the hosfile work environment."Id. at 117-118. Massachusetts law on this point prefigured theholding in Morgan.
To establish a timely hosfile work environment claim of sex discrimination under G.L. c. 151B, a plaintiff must establish that she (in a sexual harassment case the plaintiff is usually a she) was compelled to work in such an environment during her employment. Further, she must show, within the six-month limitation period, the existence of at least one incident of sexual conduct which, standing alone might not necessarily support her claim, but which substantially relates to earlier incidents of abuse, and substantially contributes to the continuation of a hosfile 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 Supermarket Co., 434 Mass. 521,533 (2001).
While a timely-filed charge will not resurrect a cause of action basedon an untimely charge, under both federal and state law time-barred actsmay be used as background evidence to support timely-filed claims.Morgan, 536 U.S. at 112; United Air Lines, Inc. v.Evans, 431 U.S. 553, 558 (1977); Cuddyer, 434 Mass, at541. Moreover, if an act contributing to a hosfile environment claimoccurs within the limitations period, "the entire time period of thehosfile environment may be considered by the court for the purposes ofdetermining liability." Morgan, 536 U.S. at 117. Seealso Crowleyv. L. L. Bean, Inc.,Page 14303 F.3d 387, 395-396 (1st Cir. 2002).
Luciano, unfortunately, limits her entire discussion of the statute oflimitations to a single footnote in her brief.24 Luciano's Complaint,amplified by her brief, identifies three discrete adverse acts that mightbe perceived as "independently" discriminatory: (1) the refusal of Masseyand Emma in February of 1999 to consider her for the position of Directorof Marketing; (2) Gordon's failure to elevate her with her male congenersin April of 2000 to the position of Market Development Manager; 25and (3) her May 21, 2001 resignation, which Luciano characterizes as aconstructive discharge.26 While under the Morgan rule onlythe last of these discrete acts might be independently actionable, theComplaint perhaps could be read to simply register these events asmanifestations of aPage 15masculine management culture that refused to tolerate a strongfemale presence in its ranks. If interpreted to allege a hosfileenvironment claim, the Complaint would survive a statute of limitationschallenge under both state and federal law.27
Title VII makes it "an unlawful employment practice for anemployer. . . to discharge any individual . . . because of suchindividual's . . . sex." 42 U.S.C. § 2000e-2(a)(1). In a wrongfultermination case, a plaintiff
must first establish a prima facie case, that is: (1) that she was within a protected class; (2) that she met the employer's legitimate performance expectations; (3) that she was actually or constructively discharged; and (4) that she was replaced by another employee with similar skills and qualifications. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993). Alleging constructive discharge presents a "special wrinkle" that amounts to an additional prima facie element. In such cases, the plaintiff must prove that [her] employer imposed "working conditions so intolerable that a reasonable person would feel compelled to forsake [her] job rather than to submit to looming indignities."See Landrau-Romero v. Banco. Popular de Puerto Rico,212 F.3d 607, 612-613 (1st Cir. 2000). "Typically, the employermust either (1) take something of consequence from the employee, say, bydischarging or demoting her, reducing her salary, or divesting her ofsignificant responsibilities, or (2) withhold from the employee anaccouterment of the employment relationship, say, by failing to followa customary practice of considering her for promotion after a particularperiod of service." Blackie, 75 F.3d at 725-726. A constructivedischarge also may occur when an employer effectively prevents an employeefrom performing her job. Sanchez v. Puerto Rico. Oil Co.,37 F.3d 712, 719 (1st Cir.Page 161994). To prove a constructive discharge, a plaintiff must offerevidence of more severe harassment than that required for a hosfile workenvironment claim. Hernandez-Torresv. Intercontinental Trading,Inc., 158 F.3d 43, 48 (1st Cir. 1998). For example, an injury to anemployee's pride resulting from the loss of a promotion will not, in andof itself, support a finding of constructive discharge. SeeSerrano-Cruz v. DFI Puerto Rico, Inc., 109 F.3d 23, 27 (1stCir. 1997). Because the test is objective, the employer's subjectiveintent is immaterial. Ramos v. Davis & Geck, 167 F.3d 727,732-733 (1st Cir. 1999). So too are the employee's hurt feelings, nomatter how sincerely held. Suarez v. Pueblo Int'l, Inc.,229 F.3d 49, 54 (1st Cir. 2000). Instead, the employee must show that herworking conditions were so difficult or unpleasant that "a reasonableperson in [her] shoes would have felt compelled to resign." Marrerov. Goya of Puerto Rico, Inc., 304 F.3d 7, 28 (1st Cir. 2002),citing Alicea Rosado v. Garcia Santiago,562 F.2d 114, 119 (1st Cir. 1977).
Massachusetts and federal law are in accord in defining a constructivedischarge. The test is met
if, based on an objective assessment of the conditions under which the employee has asserted [she] was expected to work, it could be found they were so difficult as to be intolerable. . . . A single, isolated act of an employer (or an agent of the employer) usually will not be enough to support a constructive discharge claim. Thus, evidence of a single unfavorable performance review or even of a demotion generally will not be deemed sufficient to support a claim. . . . `In order to amount to a constructive discharge, adverse working conditions must be unusually "aggravated" or amount to a "continuous pattern" before the situation will be deemed intolerable.'"GTE Products Corp. v. Stewart, 421 Mass. 22, 34-35(1995).
While Luciano's resignation from Coca-Cola NE was motivated by herdispleasurePage 17with Gordon's negative evaluation and by perceived foot-dragging onthe part of Smith and Papapietro in responding to her complaints, it isimpossible to see how her working conditions could be deemed unbearable.Many of her complaints seem relatively insignificant (her discomfort atparticipating in supposedly male-oriented games, and her pique at notbeing invited to a Red Sox outing). While others carry more weight (thetransfer of subordinates, Gordon's refusal to meet with her privately todiscuss sales strategy, his undermining of her authority, and hisrecision of her role as a presenter to senior management), Luciano failsto show how any of these incidents, singly or collectively, created suchan inability to perform her job that resignation was her only plausiblechoice. By Luciano's own account, she was performing successfully (andfor that reason was especially resentful of Gordon's negativeevaluation). "[T]he fact that the plaintiff endured a hosfile workenvironment — without more — will not always support afinding of constructive discharge. To prove constructive discharge, theplaintiff must demonstrate a greater severity or pervasiveness ofharassment than the minimum required to prove a hosfile workingenvironment. Rather, the jury must find that the working conditions wereso unpleasant that `staying on the job while seeking redress [would havebeen] intolerable.'" Marrero, 304 F.3d at 28. At a minimum, areasonable person would have expected Luciano to await the results of the360 ° review and the response of senior management to its findingsbefore tendering her resignation. Consequently, the constructivedischarge claim cannot survive as a matter of law.
Whether Luciano has set out the elements of such a claim is an openquestion. APage 18hosfile environment claim is typically based on offensive,gender-based conduct that is so severe or pervasive that it alters theterms or conditions of a plaintiff's employment.28 Brown v. Hot,Sexy and Safer Productions, Inc., 68 F.3d 525, 540 (1st Cir. 1995);Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66-73 (1986)."Whether an environment is `hosfile' or `abusive' can be determined onlyby looking at all of the circumstances. These may include the frequencyof the discriminatory conduct; its severity; whether it is physicallythreatening or humiliating, or a mere offensive utterance; and whether itunreasonably interferes with an employee's work performance. . . .[W]hile psychological harm, like any other relevant factor, may be takeninto account, no single factor is required." Harris v. ForkliftSystems, Inc., 510 U.S. 17, 23 (1993). Gender-based harassment andsexual harassment are not always the same. Sex-based harassment need notbe overtly sexual to be actionable. O'Rourke v. City ofProvidence, 235 F.3d 713, 729 (1st Cir. 2001) (incidents ofhumiliating remarks directed at women and work-sabotaging pranks).See also Oncale v. Sundowner Offshore Servs.,Inc., 523 U.S. 75, 80 (1998).
"Hosfile environment harassment is readily distinguishable from `jobstatus' discrimination, another type of employment discrimination thatoccurs when action is taken that adversely affects an employee's jobstatus, remuneration or benefits and it is based upon the employee'smembership in a protected class. . . . Thus, when both harassmentPage 19and `job status' discrimination claims are made, they are analyzedseparately." Lattimore v. Polaroid Corp., 99 F.3d 456, 463 (1stCir. 1996). Courts should, however, avoid disaggregating a hosfileenvironment claim into instances of sexually oriented conduct andinstances of unequal treatment and then discounting the latter.O'Rourke, 235 F.3d at 730. A claim of "a hosfile workenvironment is a unitary cause of action based on the cumulative effectof hosfile acts over the course of time, not one action based on the sumtotal of many mutually distinct incidents." Cuddyer, 434 Mass.at 533. Cf. Brown, 68 F.3d at 541 n.13 (a one-timeexposure to offensive comments is not per se incapable ofsustaining a hosfile environment claim).
In assessing a hosfile environment claim, the relevant factors must beviewed objectively and subjectively. If the conduct is not so severe orpervasive that a reasonable person would find it hosfile or abusive, noTitle VII or C. 151B right is implicated. Similarly, if the plaintiffdoes not subjectively view the environment to be abusive, the conduct hasnot actually altered the conditions of her employment. Harris,510 U.S. at 21-22. See also Ramsdell v. WesternMassachusetts Bus Lines, Inc., 415 Mass. 673, 677-678 n.3 (1993) (nocause of action where plaintiff indulged with relish in the same types ofoffensive conduct); Muzzy v. Cahillane Motors, Inc.,434 Mass. 409, 412 (2001) (endorsing Oncale's "reasonable person"standard).
In summarizing a hosfile environment claim from Luciano's perspective,hers is a tale of workplace indignities that ran the gamut from socialslights to demeaning treatment intended to destroy her self-confidenceand her standing with her co-workers and subordinates. In Luciano's viewof the Coca-Cola workplace, men were the favoredPage 20creatures. After emerging as one of the highest ranking saleswomenat Coca-Cola, she found herself the victim of a retaliatory male culturebent on keeping her in her place. She was passed over for promotions thatwere given to male counterparts with less sales experience. Apresentation that she had prepared for senior Coca-Cola management wastaken from her to deflect the positive light to her male rivals. Unlikeher male colleagues, she was the subject of public condescension,ridicule, verbal abuse, and unfair criticism of her leadership abilitiesand management style. She was denied the mentoring that was given to malemanagers and deprived of the staff that she needed to fulfill theincreasing demands that were placed upon her. She also points to thedearth of women at Coca-Cola NE in executive positions. While statisticalevidence is often of marginal assistance in employment discriminationcases, see Hillstrom v. Best Western TLC Hotel,354 F.3d 27, 32 (1st Cir. 2003), statistics showing that the upper ranks ofmanagement are closed to a protected group "may support an inference thata particular decision was tainted by an unlawful bias." Lipchitz v.Raytheon Co., 434 Mass. 493, 509 (2001).29
Ordinarily, this might be enough to send a hosfile environment claim toa jury. There is, however, a fairness problem implicit in Luciano's MCADcharge and in her Complaint. Both Title VII and c. 151B require thefiling of an administrative charge as a prerequisite of filing a civilaction. This filing requirement has a dual purpose, first to give therelevantPage 21agency an opportunity to investigate and conciliate the claim, andsecond to give a defendant fair notice of a potential lawsuit. Davisv. Lucent Technologies, Inc., 251 F.3d 227, 231 (1st Cir. 2001);Carter v. Commissioner of Correction, 43 Mass. App. Ct. 212,217 (1997).
That purpose would be frustrated if the employee were permitted to allege one thing in the administrative charge and later allege something entirely different in a subsequent civil action. Consequently, we have stated that, in employment discrimination cases, "[t]he scope of the civil complaint is . . . limited by the charge filed with the EEOC and the investigation which can reasonably be expected to grow out of that charge." Powers, 915 F.2d at 38 (quoting Less v. Nestle Co., 705 F. Supp. 110, 112 (W.D.N.Y.1988)); see also Johnson v. General Electric, 840 F.2d 132, 139 (1st Cir. 1988).Lattimore, 99 F.3d at 464.
Whether this is what Luciano has done can be argued either way. On theone hand, neither the charge nor the Complaint (nor the plaintiff'sbrief) ever use the term "hosfile environment." Not surprisingly, as aresult Coca-Cola's otherwise thorough brief never discusses the issue. Onthe other hand, both the administrative charge and the Complaint recite alitany of factual assertions that more closely resemble allegations ofharassment than they do claims of job status discrimination. AsLattimore (and Powers v. Grinnell Corp., 915 F.2d 34,37-38 (1st Cir. 1990)), make clear, the focus is not on the "literaryexactitude" with which a plaintiff sets out the facts and theories uponwhich her claims are based, but on the direction and scope of theinvestigation that could be expected to flow from the allegationscontained in the charge. Lattimore, 99 F.3d at 464-465. Itmight be one thing, as in Lattimore, to advance a whollyseparate claim based on facts that are temporally and qualitativelyunrelated to those specified in the charge; it might be quite another toassert separate legal theories based on a nucleus of allegedPage 22discriminatory acts that are common to both claims.
To make out a case of tortious interference, an at-will employee "mustprove that: (1) she had an advantageous employment relationship with heremployer; (2) the defendant knowingly induced the employer to break thatrelationship; (3) the defendant's interference, in addition to beingintentional, was improper in motive or means; and (4) the employee washarmed by the defendant's actions." Weberv. Community Teamwork,Inc., 434 Mass. 761, 781 (2001). "[S]omething more than intentionalinterference is required" to make out the tort. United Truck LeasingCorp. v. Geltman, 406 Mass. 811, 815 (1990) (adoptingRestatement (Second) of Torts, § 766 (1977)). "Theadditional ingredient is improper conduct, which may include ulteriormotive (e.g., wishing to do injury) or wrongful means (e.g., deceit oreconomic coercion)." Schwanbeck v. Federal-Mogul Corp.,31 Mass. App. Ct. 390, 412 (1991). See also King v.Driscoll, 418 Mass. 576, 587 (1994) (the tort requires "a spiteful,malignant purpose, unrelated to the legitimate corporate interest,"motivations of personal gain or dislike of the employee are not enough);Clement v. Rev-Lyn Contracting Co., 40 Mass. App. Ct. 322, 325(1996) (where a supervisor is acting within the scope of hisresponsibilities in terminating an at-will employee he is privileged todo so unless acting with "actual malice" — where a supervisor'smotives are mixed the plaintiff has the burden of proving that hisactions "were unrelated to any legitimate corporate interest."). "In theemployment and discharge context, the law of this jurisdiction seeks toprotect a corporate official's freedom of action by requiring proof thatthe official acted with actual malice." Alba v. Sampson,44 Mass. App. Ct. 311, 314(1998).Page 23Compare O'Brien v. New England Telephone & Telegraph Co.,422 Mass. 686, 690 (1996) ("Screaming at an employee repeatedly tohumiliate her in front of other employees, calling her names, and denyingher work to do when work is available could be found both to exceed theprotected conduct of a supervisor and to constitute malicious conductunrelated to an employer's legitimate business interests.").
As to defendants Smith and Papapietro, Luciano has offered nothing(even byway of allegation) that could be construed as reflecting on theirpart "a spiteful, malignant purpose, unrelated to the legitimatecorporate interest." A manager's disagreement with an employee'scomplaints about her supervisor after he has investigated the facts(which is the most that can be said about Papapietro), cannot possiblyamount to malice. In the same vein, the failure of a manager to respondto a complaint with the absolute sense of urgency that an employee feelsthe situation requires (which is the most that can be said about Smith),cannot be characterized as malicious. As to Gordon, while it is notexplicitly stated, Luciano's Complaint leaves the impression that sheinterpreted his negative evaluation as the opening salvo in a campaignintended to force her resignation. What is missing, however, is anyevidence that Gordon, if indeed that was his motive, was acting out ofactual malice as opposed to a perhaps mistaken assessment of hisemployer's best interest, or even out of personal antipathy.Cf. Williams, 220 F.3d at 19 ("That [a supervisor]may have harbored hostility and treated [plaintiff] unfairly standingalone is not probative of gender based animus."). Tellingly, Lucianodevotes none of her brief toPage 24defending the tortious interference claims against Gordon or theother defendants.30
For the foregoing reasons, Counts VI, VII, and VIII of the Complaint(the tortious interference claims against Smith, Papapietro, and Gordon)are DISMISSED. Defendants' motion for summary judgment as toCounts IV and V (c. 151B aiding and abetting on the part of Smith andPapapietro) is ALLOWED. The motion for summary judgment as toCount III (c. 151B aiding and abetting on the part of Gordon) isDENIED without prejudice.31 Coca-Cola's motion for summaryjudgment is ALLOWED as to the claims of constructive dischargeand job status discrimination. The motion for summary judgment is DENIEDwithout prejudice as to any viable hosfile environment claim under TitleVII and c. 151B. The parties will be given leave to further address twoissues: (1) can Luciano's MCAD charge be fairly construed to give noticeof a hosfile environment claim; and (2) if so, is such a claim legallyviable? The opening brief for Coca-Cola and Gordon shall be filed withintwenty-one (21) days of this Order. Plaintiff will have fourteen (14)days thereafter to respond.
1. In Counts I and II of the Complaint, Luciano alleges genderdiscrimination on the part of Coca-Cola in violation of Title VII of theCivil Rights Act of 1964, and G.L. c. 151B. In Counts III, IV, and V,Luciano alleges that Coca-Cola NE Vice President of Sales Walter Gordon,Director of Human Resources Douglas Smith, and Vice President/GeneralManager Joseph Papapietro, aided and abetted gender discrimination inviolation of G.L. c. 151B. Finally, in Counts VI, VII, and VIII of theComplaint, Luciano alleges that Gordon, Smith, and Papapietro tortiouslyinterfered with her employment relationship with Coca-Cola.
2. Category 2 accounts included convenience stores and gas stationmini-marts. Category 1 accounts included supermarkets, massmerchandisers, and wholesale buying "clubs," such as Costco.
3. Coca-Cola NE is one of twenty-four national divisions of CocaCola Enterprises, Inc.
4. As will become apparent, during the four years of Luciano'semployment, Coca-Cola NE resembled the French Third Republic with itsdizzying management reshuffles and constantly shifting cast ofcharacters.
5. Prior to coming to Coca-Cola NE, Luciano had worked for fifteenyears as a Procter & Gamble sales representative.
6. Paccone left Coca-Cola NE for the Atlanta office at roughly thesame time.
7. As defined, the Market Development Manager was a Key AccountManager with supervisory responsibilities. Luciano, who was not giventhis more imposing title, would appear to have met the definition.
8. Luciano acknowledged that some female employees did participate,while she and others, including some male employees, went shoppinginstead. Luciano Dep. Vol. 2, at 19-20. Luciano does not allege that shewas disciplined for refusing to take part in the paintball game.
9. Coca-Cola maintains that Luciano was not invited to the Martha'sVineyard meeting because she did not report directly to Emma. Lucianonotes that the new Director of Human Resources, Barbara Bowman, who alsodid not report to Emma, was invited to the meeting.
10. In addition to Marchessault, the Coca-Cola executives whoattended the Shaw's Market opening day event were Gordon, Brendan Brazel(Vice President of Operations), and Gary Dumas (a Sales Center Manager).Coca-Cola contends that Luciano was not invited to the event because shewas not responsible for the Shaw's account. Luciano admits that she waspermitted to use the Coca-Cola NE skybox to entertain her own clients atRed Sox games on other occasions.
11. Gordon told Luciano that she was scheduled to attend a similartraining session that was to take place in Atlanta. Luciano resigned fromCoca-Cola before that session took place.
12. At her deposition, Luciano conceded that Gordon had made similardemands of his male subordinates.
13. The Sales Centers were the units responsible for theprovisioning of direct stores with Coca-Cola products.
14. On September 15, 2000, Luciano called Marchessault to complainafter one of her Key Account Managers, on Marchessault's instructions,had changed a forecast that Luciano had prepared for the "club channel."Marchessault was verbally abusive in response. In February of 2001,Luciano witnessed Marchessault "inappropriately berate" one of herclerical assistants.
15. The timing of the review was not significant. Coca-Cola requiredthat performance reviews of its managers be conducted each spring.
16. According to Luciano, she was then on the verge of successfullynegotiating a deal with K-Mart and the Boston Red Sox for an advertisingcampaign that would involve all seventy-two K-Mart stores in NewEngland.
17. Bowman, who had earlier been fired, also filed a discriminationcomplaint against Coca-Cola.
18. Coca-Cola maintains that the suggestion came from Gordon.
19. A "360 ° review" is a structured process in which anemployee's supervisors and direct subordinates complete a questionnairedesigned to provide Coca-Cola with an overall picture of the employee'sstrengths and weaknesses. Coca-Cola concedes that Smith, who was new tothe process, was slow in getting the review off the ground.
20. A ninety-day Performance Improvement Plan is required byCoca-Cola NE for any employee who receives a Below Target rating.
21. Approximately one month before the meeting, Flaherty had begunreporting directly to Marchessault.
22. On these facts, construed in the light most favorable toLuciano, it is somewhat surprising that Smith and Papapietro are named asdefendants. Luciano does not appear to claim that they engaged in anyacts of discrimination. The most that can be gleaned from the materialssubmitted by Luciano is that she was disappointed that Smith andPapapietro did not more energetically come to her defense.
23. "Discrete acts such as termination, failure to promote, denialof transfer, or refusal to hire are easy to identify. Each incident ofdiscrimination and each retaliatory adverse employment decisionconstitutes a separate actionable `unlawful employment practice.'"Id. at 114.
24. In the footnote, Luciano argues that her c. 151B claims arepreserved by the so-called "continuing violation doctrine."See Cuddyer, 434 Mass. 531-532. This is doubtful fortwo reasons. First, because (as will be demonstrated) no constructivedischarge occurred on May 21, 2001, there is no "discrete violationwithin the six-month limitations period to anchor the earlier claims."Id. at 532. Second, while the Supreme Judicial Court has yet toaddress Morgan, the Massachusetts Appeals Court has intimatedthat Morgan accurately reflects Massachusetts law.See Morrison v. Northern Essex Community College,56 Mass. App. Ct. 784, 793 (2002).
25. Luciano alludes also to the appointment of Hall in the summer of2000 to the position of Director of Category Managers, but does not claimthat she was a candidate for the position.
26. It would appear from the charge presented to the MCAD that Lucianoincluded Gordon's negative performance evaluation in this list. However,an unfavorable job rating that results in no material change in anemployee's conditions of employment does not rise to the level of anactionable adverse employment action. Gu v. Boston PoliceDep't., 312 F.3d 6, 14 (1st Cir. 2002); Blackie v. Maine,75 F.3d 716, 725 (1st Cir. 1996). The only tangible impact of Gordon'snegative appraisal was the imposition of the ninety-day PerformanceImprovement Plan and the intended "360° review." Whether either ofthese encumbrances would have affected the conditions of Luciano'semployment cannot be assessed given her headlong departure.
27. As Morgan makes clear, a hosfile act of harassmentneed not be independently actionable to satisfy the limitations periodfor a hosfile environment claim. Id. at 115.
28. The sexualized form of gender harassment, which consists ofpromises of favorable treatment or threats of unfavorable treatmentintended to coerce an employee into submitting to unwelcome sexualadvances (so-called quid pro quo harassment), is not at issue.See Lipsett v. University of Puerto Rico,864 F.2d 881, 897 (1st Cir. 1988).
29. This, of course, is the world of Coca-Cola NE as seen fromLuciano's vantage. What makes the issue as close as it is, lies in thefact the Coca-Cola has come forward with plausible counter-arguments tomany, if not most, of Luciano's complaints. Coca-Cola, for example,while acknowledging that Massey and Gordon may have had personalitydeficiencies, points to evidence suggesting that they treated malesubordinates as roughly as they did the females. SeeWilliams, 220 F.3d at 19.
30. As Coca-Cola points out, because Luciano cannot show aconstructive discharge (because of her voluntary resignation), she couldnot in any event satisfy the economic harm element of the tort.
31. Chapter 151B, unlike Title VII, provides on its face forindividual liability. Beaupre v. Cliff Smith & Assocs.,50 Mass. App. Ct. 480, 491 (2000). Compare Serapion v. Martinez,119 F.3d 982, 992 (1st Cir. 1997) with Tomka v. Seiler Corp.,66 F.3d 1295, 1314-1317 (2d Cir. 1995).