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By Mark A. Cohen
Even though a woman's state and federal sexual-harassment claims were untimely, she can still sue her employer and supervisors under Title VII and Chapter 151B for retaliating against her for making the harassment complaint, a U.S. District Court judge has ruled.
The plaintiff's sex-harassment claims were time-barred because she did not file charges until more than a year after her supervisor's last offensive remark, the judge said.
But the plaintiff's allegation that supervisors began a campaign to strip her of her status and authority after she pressed her harassment complaint was sufficient to support a claim of retaliation against both the employer and supervisors.
Federal circuits have split on the issue of whether supervisors can be held personally liable under Title VII and the 1st Circuit has not addressed the question.
But Judge Nancy Gertner sided with those courts that have found individuals liable.
"[The contrary view] denies the plain meaning of § 2000e(b): that both employers, as entities, and their agents, as individuals, are to be bound by Title VII's dictates," Gertner wrote.
The judge said that individual supervisors also faced liability under Chapter 151B.
"By its distinctly crafted terms, [Chapter] 151B applies not only to employers acting through their principals and agents, but also to any person who aids and abets discriminatory or retaliatory conduct prohibited under Chapter 151B, as well as to any person who interferes with another's right to work free of unlawful discrimination and retaliation," Gertner said.
In attempting to prove the retaliation charges, the plaintiff can introduce evidence of the claimed harassment even though the harassment counts themselves were time-barred, Gertner noted.
The 64-page decision is Ruffino v. State Street Bank and Trust Co., et al., Lawyers Weekly No. 02-267-95.
Plaintiff's attorney Jessica Block said the decision is important in showing the kinds of activities by employers that can constitute retaliation.
The plaintiff "was not taken seriously [after the complaint] and there was not a proper investigation," Block asserted. The plaintiff received poor performance reviews and treatment because she "chose to exercise her right to take action against sexual discrimination," Block told Lawyers Weekly.
The decision sends a clear message that "a hostile work environment cannot be tolerated," she said.
Defense attorney Richard P. Ward of Boston was unavailable for comment.
Chain Of Command
Plaintiff Barbara Ruffino was hired as a training officer at defendant State Street Bank and Trust. Less than two years after she was hired, the plaintiff became the divisional personnel officer for corporate staff.
The plaintiff reported to the defendant's executive vice president. The plaintiff also reported to the bank's senior vice president and occasionally reported to the senior vice president of the bank's human resources division.
In December 1987, the plaintiff was bypassed for a position change within her department even though corporate policy required that the plaintiff be consulted. The plaintiff reported the incident to the executive vice president.
After these events, the human resources vice president allegedly began to harass the plaintiff. The plaintiff claimed that the VP's comments were laced with inappropriate and offensive sexual innuendo.
The plaintiff met with the manager of employee relations -- the person responsible at the bank to handle reports of harassment and discrimination. The employee relations manager allegedly said that she didn't want "to get in the middle of it" because she reported to the human resources VP.
According to the plaintiff, the human resources VP continued making inappropriate remarks at regular staff meetings from August 1989 through March 1991.
The plaintiff said she turned to the bank's senior vice president in November 1990. She explained that the human resources VP's ongoing remarks were offensive to her and others, particularly because he had a central role in enforcing the bank's anti-discrimination policies.
In early 1991, the plaintiff accepted a change in position during a departmental reorganization. The move was supposed to be a lateral one "with excellent promotional opportunities," according to the plaintiff. However, the plaintiff asserted that, after the position change, managers began gradually demoting her status and authority within the bank by excluding her from the division management team and moving her from an office to a cubicle.
The senior VP ultimately did talk with the human resources VP on a golf outing. The plaintiff could recall no further inappropriate comments by the supervisor after March 1991.
However, the plaintiff said she began to receive substantially lower performance reviews than she had in previous years. Bank supervisors allegedly began discrediting the plaintiff's work, questioning her professional conduct and attendance on the job, as well as addressing her sarcastically and unprofessionally.
The plaintiff took a disability leave due to stress on May 29, 1992. On June 24, 1992, the plaintiff filed an administrative charge against the bank with the Massachusetts Commission Against Discrimination and the Equal Employment Opportunities Commission. She resigned her position effective Oct. 1, 1992.
On Jan. 19, 1993, the plaintiff filed suit in Massachusetts Superior Court. The defendants removed the case to federal court. The plaintiff alleged that the bank and supervisors violated G.L. c. 151B and Title VII by creating a sexually harassing and hostile work environment and then retaliating against her.
Continuing Violation?
"[U]nder continuing violations theory, where a plaintiff alleges an ongoing course of discrimination, a charge may encompass unlawful conduct outside of the limitations period, as long as at least one incident of unlawful conduct occurred within the requisite period," Gertner wrote.
In such cases, "the central inquiry is whether a present, independent violation exists within the limitations period," Gertner noted. "As this circuit has stated, the `mere effects or consequences of past discrimination, as opposed to independently actionable violations ... are insufficient to serve as the trigger of the limitations period.'"
Here, the defendants' "allegedly discriminatory acts, taken together, must be examined for their cumulative effect to determine whether the plaintiff has experienced a hostile work environment during the relevant limitations period," the judge said.
The plaintiff failed to cite any offensive behavior following her change in positions in 1991, Gertner observed.
Therefore, Gertner concluded, a continuing violations theory did not make the plaintiff's sex-harassment claims timely.
Gertner next considered the plaintiff's claim of retaliation.
The judge noted that, to establish a prima facie case of retaliation, a plaintiff must show that: she engaged in a protected activity, known to the employer; she suffered an adverse employment action; and there was a causal connection between the protected activity and the adverse employment actions.
Here, Gertner said, the defendants asserted that the job actions were because the plaintiff's performance was not as solid after she changed to a new position.
But the evidence produced by the plaintiff was sufficient to create a jury question as to whether the proffered reason was pretextual, the judge concluded.
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December 11, 1995
