150 F. Supp.2d 325 (2001) | Cited 0 times | D. Massachusetts | July 17, 2001



Plaintiff Wendy Manno brings this suit against her former employer,BJ's Wholesale Club, and a former co-worker, Nicholas Jenkins, allegingstate and federal claims of sexual harassment and gender discriminationfor incidents that occurred during her employment at BJ's.1 DefendantBJ's moves for partial summary judgment, asserting that the state lawclaims for sexual harassment (Counts II) and gender discrimination (CountIV) based on incidents that transpired prior to December 24, 1998 aretime-barred under the six-month statute of limitations for claims broughtpursuant to Mass. Gen. Laws. ch. 151B, § 5. After a hearing, BJ'smotion is DENIED as to Counts II and W.


Drawing all inferences in favor of the non-moving party (theplaintiff), the Court treats the following facts as undisputed althoughthey are hotly contested.2

Wendy Manno was employed in the marketing department at BJ'sheadquarters in Natick, Massachusetts from March 1998 until June 1999.During most of this time, Defendant Nicholas Jenkins was also employed inthe marketing department. Manno alleges that for a ten-month period,between August 1998 and June 1999, she was subjected to repeated andcontinuous harassment by Jenkins. Manno's suit is based on the followingincidents.

In August 1998, Manno entered Jenkins' cubicle to retrieve a computerfile entitled "Fuel Your Fund-raiser." While Manno was looking at thecomputer, she felt Jenkins pinch her buttocks. Even though Manno wasaware that this conduct was inappropriate, she pretended the incident didnot happen and did not say anything about it to Jenkins or anyone else.(Akerstein Aff. Ex. A (Manno Statement) ¶ 1, Ex. B (Manno Depo. Tr.Vol. II) at 2-55.)

In September 1998, Manno was sitting at her computer when Jenkinswalked behind her, placed his hands on her shoulders, and then slid themdown onto her breasts. Manno immediately told Jenkins to "cut it out" andto "get away from [her]." (Id. Ex. A ¶ 2.) Manno understood that thisact constituted sexual harassment. (Id. Ex. B at 2-56.)

Between September 1998 and December 1998, Jenkins continuouslyquestioned and made comments to Manno about a man she was dating namedDave. Jenkins often asked Manno if she had slept with Dave, and Mannotold Jenkins that it was none of his business. Manno states that "manypeople" in the office overheard Jenkins harassing her about dating ingeneral. Manno reported this harassment to her manager, Alicia Schwehr,who becameManno' s manager in December 1998. Schwehr told Manno that[Jenkins] was "just jealous."3 (Id. Ex. A ¶ 4.)

In the first week of December 1998, Jenkins walked into Manno's cubicleand grabbed her crotch very hard. Manno told Jenkins to "stop it," butJenkins refused to let go for about five seconds. Manno then shovedJenkins away from her as another co-worker, Natasha Rusch-Duffin("Duffin"), entered the cubicle. Manno told Duffin what had occurred andthey both went outside to calm down. Later that same day, Jenkins againentered Manno's cubicle and grabbed her.4 Manno immediately pushedJenkins away and told him to get his hands off of her. She then ran toDuffin and another co-worker to discuss what had happened. (Id. Ex. A¶ 5, Ex. B at 2-55.)

In roughly December 1998, Jenkins was showing Manno where to findsomething in a storage room. While Manno was looking through boxes,Jenkins asked her to "look at this," and when she turned to look, Jenkinshad his pants down and penis exposed. Jenkins grabbed Manno's hand andtried to make her touch his penis. Manno yelled at Jenkins to let go ofher hand and to stop. Manno ran back to her cubicle, shocked at what hadhappened. Manno reported this incident to Schwehr in March 1999, at whichtime Schwehr responded that Jenkins was going to get into serious troubleif he did not stop his behavior. Schwehr took no action in response toManno's report. (Id. Ex. A ¶ 8.)

In December 1998, after Schwehr became Manno's manager, Manno was movedto an office next to Schwehr's office. Schwehr told Manno that she wouldnot have to worry so much about Jenkins harassing her now that Manno wasaway from Jenkins in an office. (Id. Ex. A ¶ 6.)

Manno alleges that since December 1998, Jenkins made sexually offensivetelephone calls to her at work and at home. She asserts that she reportedthese telephone calls to Schwehr. (Id. Ex. A ¶ 9.) Manno also statesthat she received sexually offensive messages from Jenkins on herphone-mail. She transferred these messages to Schwehr on severaloccasions, but Schwehr took no action in response to the calls. (Id. Ex.A ¶ 10.)

Manno states that in early 1999, Jenkins told her about a woman he wasdating from the finance department at BJ's. Jenkins detailed for Manno asexual encounter he had with the woman. Manno told Jenkins she did notwant to know the details and that she was disgusted. At one point,Jenkins urged Manno to have a "three-some" with the woman and stated thatManno might enjoy being with another woman. Manno informed Schwehr aboutthese incidents, but Schwehr did nothing in response. (Id. Ex. A ¶15.)

In February 1999, Jenkins wrote a letter to Manno which stated that hewanted to "fuck" her. Manno showed this note to a co-worker, AlainaGurwitch. Manno wrote on the note "keep dreaming" and gave it to Gurwitchto give to Jenkins. Jenkins angrily confronted Manno in her office aboutshowing the letter to Gurwitch. Manno informed Jenkins that he was a"pig" and could get fired for writing the letter. (Id. Ex. A ¶ 14.)

Around March 20, 1999, Manno and Schwehr were having a meeting inSchwehr's office, when Jenkins interrupted and handed Manno a foldedpiece of paper and walked out of the office. Upon unfolding the paper,Manno found a condominside. Manno placed the condom on Schwehr's deskand stated "this is crazy." Jenkins reentered the office smiling andstated that Manno may need to use the condom while running around town onthe weekends. Schwehr laughed and pulled a condom out of her purse,showing Manno how she keeps a condom with her at all times. Manno wasdisgusted by Schwehr's reaction. (Id. Ex. A ¶ 20.)

Sometime in March 1999, Jenkins rubbed his body against Manno in frontof Schwehr and Gurwitch. Schwehr told Jenkins to "stop it now, break itup [Jenkins], you're a little to close for comfort." Schwehr took nofurther action in response to this incident. (Id. Ex. A ¶ 21.)

On another occasion in March 1999, Jenkins grabbed Manno's buttocks infront of Gurwitch while they were in Gurwitch's cubicle. (Id. Ex. A¶ 19.)

In April 1999, Jenkins said to Manno that he wanted to "fuck" CathyKeune, a co-worker. Jenkins said this to Manno in the presence of Schwehron several occasions. Schwehr would laugh at Jenkins and tell him he hadno chance with Keune. (Id. Ex. A ¶ 25.)

In May 1999, Manno and Schwehr were sitting in Schwehr's office whenJenkins entered, grabbed his crotch, and began unzipping his pants.Schwehr laughed, covered her eyes, and told Jenkins to "get out of here,I don't want to see that." Manna told Schwehr that Jenkins' conduct wasgetting worse and that someone needed to talk to Jenkins about hisbehavior. (Id. Ex. A ¶ 27 at 6.)

On May 28, 1999, Manno was sitting at her computer when Jenkins walkedinto her office and proceeded to look at a telephone list hanging on acork board located behind Manno. After seeing what Jenkins was doing,Manno turned to her computer and continued to type. Jenkins thenproceeded to stick his hands down Manna's shirt and attempted to grab andsqueeze her breasts. Manno shouted at Jenkins to get out of the office.Jenkins closed the door to the office and once again tried to grabManno's breasts. Manno grabbed Jenkins arm and shouted at him to stop.Jenkins replied, "Come on Wendy, just let me feel them. One quick feel."Manna began to shout louder and Jenkins walked out of the office. Mannareported this incident to Schwehr that same day. Schwehr told Manna towrite down everything that Jenkins did to her so that it would not "comeback on [Manna]" one day. (Id. Ex. A ¶ 30 at 6.)

Later that same day, Jenkins again went into Manna's office andattempted to grab her breast stating, "I want a feel, just a feel. Comeon. Let me just touch them." Manna shoved Jenkins away and yelled at himto stop touching her. Manna left her office and went outside to have acigarette because Jenkins would not leave. Manno reported this incidentto Schwehr who told her to write down what happened. Schwehr said thatshe would report the incident to Bev Smith, the AVP, when Smith returnedto work the following Tuesday. (Id. Ex. A ¶ 27 at 7.)

On Tuesday, June 1, 1999, Schwehr told Manna that Smith was out of theoffice and stated that she was not sure what to do about Jenkins'conduct. Schwehr told Manno that if Jenkins came after or touched her,Manno should go to Schwehr's office and tell her. Later that day, whileSchwehr was at lunch, Jenkins went into Manno's office and looked downManna's dress at her breasts. Manna told Jenkins to leave the office.Jenkins laughed, swiped at Manna's breasts, and said, "Came on, Wendy.Just one feel. One quick feel." Manna once again shouted at Jenkins tostop and to leave the office. Jenkins continued to stare at Manna'sbreasts and attempted to grab them. Manna ran out of her office to AlainaGurwitch's cubicle. Jenkins followed Manna and attempted to grab her infront of Gurwitch who told them both to leave because she was on abusiness call. Manna returned to her office crying. Gurwitch then went toManna's office, and Manna told her what had happened. Manna told Gurwitchto tell Schwehr, who was at lunch, that she (Manna) could no longer workin the office and was leaving. As Manna was leaving the parking lot to gohome, Schwehr was returning from lunch. Upon seeing Manna, Schwehrapproached her. Manno told her, "I am no longer working like this. I havehad it." Schwehr told Manna to go home and that she would be paid for therest of the day. Schwehr stated that she would talk with Smith the nextmorning. (Id. Ex. A ¶ 28 at 7.)

On June 2, 1999, Manna met with Marie Reenstierna, the Home OfficeRelations Manager, and an attorney from BJ's and told them about Jenkins'sexual harassment. Manna left after this meeting and did not return towork for BJ's. On June 3, 1999, Manna was notified that Jenkins wasreleased from his employment at BJ's.

In addition to the numerous incidents of sexual harassment which Mannareported in her eleven-page statement to the Massachusetts CommissionAgainst Discrimination ("MCAD"), the record reveals that Jenkins spitwater on Manna as she talked with BJ's customers on the phone (Id. Ex. A¶ 3); flung elastics at Manna's face (Id. Ex. A ¶ 11); wrote onManna's shirt and on pictures of her children (Id.); hit Manna in thehead with two "pool noodles" (Id. Ex. A ¶ 13); and verbally andemotionally harassed Manna (Id. Ex. A ¶¶ 11, 12, & 17.)

At all times during Manna's employment, BJ's had a sexual harassmentpolicy set forth in its Home Office Policy Manual. (Pl's. Mem. in Supp. ofOpp'n to Mat. for Partial Summ. J. Ex. 4.) The policy directs employees toimmediately report incidents of sexual harassment to the Home Office TeamMember Relations Manager, Marie Reenstierna; the AVP; the Team MemberRelations Manager, Ken Rowell; Human Resources; or the Team Member'sManager or Division Director. (Id. at 2.) The policy further providesthat "[i]f the incident of sexual harassment is reported directly to theManager or Division Director, or either one of them becomes aware ofpossible sexual harassment, s/he must immediately report the complaint tothe Home Office Team Member Relations Manager, who will commence aninvestigation immediately and decide the appropriate remedial action."(Id.)

Manna filed her Charge of Discrimination against BJ's and Jenkins withthe MCAD on June 24, 1999, alleging hostile work environment sexualharassment. After investigating Manna's claims, on December 30, 1999, theMCAD granted her request to bring the case to this Court.


A. Standard of Review

A motion for summary judgment shall be allowed "if the pleadings,depositions, answers to interrogataries, and admissions on file, togetherwith the affidavits, if any, show that there is no genuine issue as toany material fact and that the moving party is entitled to a judgment asa matter of law." Fed. R. Civ. P. 56(c). "To succeed [on a motion forsummary judgment], the moving party must show that there is an absence ofevidence to support the nonmoving party's position." Rogers v. Fair,902 F.2d 140, 143 (1st Cir. 1990); see also Celotex Corp. v. Catrett,477 U.S. 317, 325 (1986).

"When a motion for summary judgment is made and supported as providedin [Rule 56], an adverse party may not rest upon the mere allegations ordenials of the adverse party's pleading, but the adverse party's response. . . must set forth specific facts showing that there is a genuine issuefor trial." Fed. R. Civ. P. 56(e); see also Barbour v. Dynamics ResearchCorp., 63 F.3d 32, 37 (1st Cir. 1995); Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 256 (1986). "If the adverse party does not so respond,summary judgment, if appropriate, shall be entered against the adverseparty." Fed. R. Civ. P. 56(e). "There must be `sufficient evidencefavoring the nonmoving party for a jury to return a verdict for thatparty. If the evidence is merely colorable or is not significantlyprobative, summary judgment may be granted.'" Rogers, 902 F.2d at 143(quoting Anderson, 477 U.S. at 249-50). "Issues of timely filing may bedecided under Rule 56 if the relevant facts are sufficiently clear."Sabree v. United Bhd. of Carpenters & Joiners Local No. 33, 921 F.2d 396,399 (1st Cir. 1990) (quoting Jensen v. Frank, 912 F.2d 517, 520 (1stCir. 1990)). The Court must "view the facts in the light most favorableto the non-moving party, drawing all reasonable inferences in thatparty's favor." Barbour, 63 F.3d at 36 (citing Woods v. FrictionMaterials, Inc., 30 F.3d 255, 259 (1st Cir. 1994)).

B. Sexual Harassment

Mass. Gen. Laws ch. 151B, § 4(1) states in relevant part:

It shall be an unlawful practice: (1) for an employer, by himself or his agent, because of the . . sex . . . of any individual to . . . discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment, unless based upon a bona fide occupational qualification.

Id. In addition, § 4(16) prohibits "an employer, personally orthrough its agents, to sexually harass any employee." Id. Sexualharassment is defined as:

sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when (a) submission to or rejection of such advances, requests or conduct is made either explicitly or implicitly a term or condition of employment or as a basis for employment decisions; (b) such advances, requests or conduct have the purpose or effect of unreasonably interfering with an individual's work performance by creating an intimidating, hostile, humiliating or sexually offensive work environment. Discrimination on the basis of sex shall include, but not be limited to, sexual harassment.

Id. § 1(18). Because Manna claims BJ's inadequately responded to thesexually offensive work environment created by Jenkins, the Court willdeal with sexual harassment as defined under § 1(18)(b).

To be actionable as hostile work environment sexual harassment underMass. Gen. Laws ch. 151B, conduct must be sufficiently severe andpervasive, considering the totality of the circumstances, to alter theterms and conditions of the plaintiff's employment. College-Town, Div. ofInterco, Inc. v. Mass. Comm'n Against Discrimination, 400 Mass. 156,162, 508 N.E.2d 587, 591 (1987) (holding that a hostile work environmentis one that is "pervaded by harassment or abuse, with the resultingintimidation, humiliation and stigmatization, [and that] poses aformidable barrier to the full participation of an individual in theworkplace.")

"An employer is liable for sexual harassment in the workplace if theemployer is notified of the condition and failsto take adequate steps toremedy the situation." Id. at 166-67. Thus, an employer who is notifiedof the sexual harassment has an affirmative obligation to remedy thesituation. Id. at 167. An employee can demonstrate that the employer knewof the harassment by showing that she complained to management.College-Town, 400 Mass. at 166-67, 508 N.E.2d at 593.

The record contains ample evidence suggesting that Jenkins' conducttowards Manna constituted sexual harassment. There is also evidence(albeit disputed) that suggests BJ's was on notice of the harassment onceManna told her manager, Alicia Schwehr, of Jenkins' conduct. Oncenotified, BJ's had an affirmative duty to take adequate steps to remedythe hostile work environment that affected the terms of Manna'semployment. Because BJ's seeks to limit the acts for which Manna mayrecover under Mass. Gen. Laws ch. 151B, the Court must determine at whatpoint BJ's was on notice of Jenkins' harassment. BJ's relies on theapplicable statute of limitations to limit its potential liability. Abrief mention of the law dealing with BJ's argument is warranted.

C. Statute of Limitations

An employee seeking to pursue claims under Mass. Gen. Laws. ch. 151B,§ 4 is required to file a charge of discrimination with the MCADwithin six months of the occurrence of the discriminatory act. Id. §5. The purpose of this requirement is two fold: (1) to provide the MCADwith an opportunity to investigate and conciliate the claim ofdiscrimination; and (2) to provide notice to the defendant of potentialliability. Cuddyer v. Stop & Shop Supermarket Co., No. SJC-08326, 2001 WL776482, at *6 (Mass. July 12, 2001); accord Carter v. Comm'r ofCorrection, 43 Mass. App. Ct. 212, 217 (1997). This limitations perioddoes not apply, however, "where facts are alleged which indicate that theunlawful conduct complained of is of a continuing nature." Mass. Regs.Code tit. 804, § 1.10(2). This continuing violation" exceptionrecognizes that same claims of discrimination involve a series of relatedevents that have to be viewed in their totality in order to assessadequately their discriminatory nature and impact. Cuddyer, 2001 WL776482, at *6. In Cuddyer, the Supreme Judicial Court articulated theplaintiff's burden in establishing a timely claim of hostile workenvironment as follows:

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 hostile work environment, such that the incident anchors all related incidents, thereby making the entirety of the claim for discriminatory conduct timely.

2001 WL 776482, at *6.

Both College-Town and Cuddyer involved a claim that a supervisorsexually harassed a subordinate. Under Mass. Gen. L. ch. 151B, § 4,an employer is vicariously liable for sexual harassment committed by asupervisor regardless of whether the employer is placed on notice of thediscrimination. College-Town, 400 Mass. at 167. Because this caseinvolves a claim of co-worker sexual harassment, the legal analysis issomewhat different. BJ's argues that because Manna did not file hercharge of discrimination with the MCAD until June 24, 1999, actscommitted by Jenkins before December 24, 1999 are outside the statute oflimitations period. BJ's contends that because Manna knew by at leastSeptember1998 that she was being sexually harassed by Jenkins,5Manna was required to file her MCAD complaint within six months of thattime.6

As stated above, BJ's liability under Mass. Gen. Laws ch. 151B attacheswhen BJ's was notified of the harassment and failed to take adequateremedial action. While there is no MCAD regulation directly on point,Manna had until six months from the date of the alleged unlawful conduct— that is, when BJ's was on notice of Jenkins' harassment andfailed to respond in reasonable fashion — to file her complaintwith the MCAD. Here, the record indicates that Manna notified BJ's ofJenkins' harassment some time in December 1998, and filed her complaintwith the MCAD six months later. While the exact date of notification inDecember is unclear, plaintiff is entitled — and as the SupremeJudicial Court painted out in Cuddyer, should be encouraged — towait a reasonable time for the employer to respond by investigating andremedying the situation before ratcheting up the dispute by filing anMCAD complaint. Defendant has not demonstrated that plaintiff delayedinitiating her suit in an unreasonable way under an objective standard.Cuddyer at *8. BJ's footnotes their argument that plaintiff unreasonablyfailed to avail herself of the corrective opportunities provided by BJ'sbecause she notified the wrong person about her harassment claim inDecember. See Faragher v. City of Boca Raton, 524 U.S. 775, 807-808, 118S.Ct. 2275, 2293 (1998); Burlington Industries, Inc. v. Ellerth,524 U.S. 742, 765, 118 S.Ct. 2257, 2270 (1998). The key issue for statuteof limitations purposes is when the employer was on notice of the claimregardless of whether the employee followed the correct procedures forvoicing or filing a grievance. Whether the so-called Faragher-Ellerthdefense is viable cannot be resolved on this record.


Far the foregoing reasons, BJ's Motion for Partial Summary Judgment(Docket No. 56) is DENIED as to Counts II and W.

1. In her complaint, Manno alleges sexual harassment (Counts I and II)and gender discrimination (Counts IV and V) in violation of Title VII ofthe Civil Rights Act of 1964 and Mass. Gen. Laws. ch. 151B against BJ'sand Jenkins, as well as state law claims against Jenkins for assault andbattery (Count VI), intentional infliction of emotional distress (CountVII), and false imprisonment (Count VIII). Manno also alleges thatJenkins' sexual harassment violated Mass. Gen. Laws ch. 214, § lC(Count III).

2. For example Jenkins denies any sexual harassment and Manno'ssupervisor denies getting any notice of harassment.

3. The record does not indicate when Manno notified Schwehr ofJenkins' harassment.

4. The record does not indicate in what manner Jenkins grabbedManno.

5. After the August 1998 incident, Manna knew Jenkins' conduct was"inappropriate," and after the September 1998 incident, Manna was awarethat Jenkins' conduct constituted sexual harassment.

6. Understandably, BJ's relies on the federal approach to thecontinuing violation" doctrine in construing Massachusetts law. SeeKeeler v. Putnam Fiduciary Trust Co., 238 F.3d 5, 11-12 (1st Cir. 2001)("Absent clearer guidance from Massachusetts courts, we will follow thewell-established Provencher and Sabree [federal] approach in cases likethis one governed by Massachusetts law."). Provencher v. CVS Pharmacy,145 F.3d 5, 14 (1st Cir. 1998). However, in Cuddyer, which was issuedafter oral argument, Massachusetts declined to follow this federalapproach. 2001 WL 776482 at *8.

Back to top