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Noviello v. City of Boston

February 16, 2005



Before Boudin, Chief Judge, Selya, Circuit Judge, and Cyr, Senior Circuit Judge.

The opinion of the court was delivered by: Selya, Circuit Judge

This discrimination case, brought under both federal and state law, involves charges of sexual and retaliatory harassment. Faced with a plethora of issues, the district court entered summary judgment for the defendant. On appeal, we must sort out which of the plaintiff's claims are timely; address whether her timeous claims for retaliatory harassment, cast in the form of a hostile work environment, are legally cognizable and sufficiently supported; grapple with her one timely claim of sexual harassment, also cast in the form of a hostile work environment; and discuss various aspects of the case relating to employer liability. After careful consideration of these variegated issues, we conclude (i) that the district court erred in granting summary judgment on the retaliation claims, as those claims are timely, cognizable, and supported by sufficient evidence, but (ii) that the district court correctly entered summary judgment on the sexual harassment claims: despite the attempt to recast them in a hostile work environment format, the state-law claim is time-barred and its federal analogue runs afoul of an inexpugnable affirmative defense - the employer's swift, effective, and non-negligent response to the underlying incident. Accordingly, we vacate in part, affirm in part, and remand for further proceedings.


Because this appeal follows a grant of summary judgment, we rehearse the facts in the light most favorable to the nonmoving party (here, the plaintiff), consistent with record support. Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990). That approach entails, among other things, giving the non-movant the benefit of all reasonable inferences that those facts will bear. Id.

A. The Facts.

While on the job on September 11, 1999, plaintiff-appellant Christi Noviello, a parking enforcement officer for the city of Boston, was riding in a city-owned van with her immediate superior, José Ortiz. After first announcing his intentions, Ortiz forcibly unhooked the plaintiff's brassiere, ripped it from her body, hung it on the van's outside mirror, and bellowed a crude sexual remark to a fellow employee on the street. Over the next few days, the plaintiff reported the incident to a number of municipal hierarchs. They promptly investigated the matter, suspended Ortiz a week after the incident, and ultimately cashiered him.

Soon after Ortiz's banishment, co-workers began to subject the plaintiff to sundry indignities, or, in the words of the employees themselves, to "bust[] her chops." The record contains evidence of the following incidents (the plaintiff recounts others, but we have omitted those that lack any conceivable probative value):

ù On October 5, 1999, Barbara DiGirolamo accused the plaintiff of throwing a tampon at a co-worker. The charge fizzled out after several witnesses attested to its falsity.
ù On October 26, 1999, a co-worker shouted that the plaintiff was the "scum of the earth." Another loudly proclaimed, in reference to the plaintiff, "I smell a rat, do you smell a rat?" Yet another lamented that the parking enforcement officers' "good" supervisor had been drummed out of office. The plaintiff complained to a senior supervisor, Irene Landry, who took no action.
ù On December 8, 1999, a new employee told the plaintiff that although he had no problem with her, other co-workers had advised him to "stay away" because she was "trouble."
ù On December 9, 1999, the entire department ostracized the plaintiff during a holiday party. Consequently, she sat alone for two hours. A deputy commissioner saw her sitting alone, acknowledged the ostracism, and suggested that she change her shift. The plaintiff took the advice, but the harassment continued.
ù On December 16, 1999, DiGirolamo informed the plaintiff that all personnel on her shift had to take their dinner breaks separately. The plaintiff later learned that this was not true and that she was the only person who had been told to eat alone.
ù On December 21, 1999, Bernadette Gilardi announced in front of the plaintiff that she would be taking up a collection for Ortiz. She proceeded to do so during working hours.
ù On December 23, 1999, the plaintiff attended a holiday party on the department's premises. The collection for Ortiz was in full flower. Co-workers waved the money they had amassed in the plaintiff's face, crowing "look how much money we have collected!" One of the plaintiff's superiors, Kathy O'Brien, advised her to "go to the office" about the harassment. There is no evidence, however, that O'Brien intervened to stop the ongoing conduct.
ù On December 30, 1999, the plaintiff met with a high-level supervisor, Kathleen Moccia. She described the toll that the harassment was taking on her and asked Moccia why management was tolerating the harassment. Moccia did not intervene. Moreover, she stated that she did not think that the harassment would stop; rather, she forecast that it would become "ten times worse" with the plaintiff's recent shift change.
ù In January of 2000, a tow truck driver told the plaintiff that Gilardi had begun circulating a petition urging management to dismiss the plaintiff, but that he had refused to sign it.
ù During a snowstorm that month, Gilardi refused to pick up the plaintiff from her route. Although that refusal, duly reported, was in derogation of departmental policy, there is no evidence that Gilardi was sanctioned or punished in any way.

On March 6, 2000, the plaintiff filed a complaint with the Massachusetts Commission Against Discrimination (MCAD) and the federal Equal Employment Opportunity Commission (EEOC). The harassment nonetheless persisted. Two examples follow:

ù In February of 2001, the plaintiff approached a van that was used to transport parking enforcement officers to their posts. Gilardi was at the wheel. When she saw the plaintiff approach, she closed the van's door, ignored the plaintiff's tapping on the window, and drove away, nearly striking the plaintiff. The plaintiff reported the incident and Gilardi admitted that she had seen the plaintiff but nonetheless had pulled away. There is no evidence that Gilardi was disciplined for this conduct.
ù In March of 2001, Gilardi told a co-worker, in reference to Ortiz's firing, that the plaintiff's "payday" was drawing near.

The plaintiff alleges that, as a result of this steady stream of what she characterizes as retaliatory harassment, she lost weight, experienced nightmares and panic attacks, became anxious at work, and was forced to seek medical care.

B. Travel of the Case.

On October 16, 2002, the plaintiff requested withdrawal of her administrative complaint in order to pave the way for the institution of suit. The MCAD obliged and the plaintiff commenced a civil action against the city in a Massachusetts state court. Her complaint, filed on November 1, 2002, charged the city with violations of Mass. Gen. Laws ch. 151B, § 4. On April 25, 2003, the plaintiff received a right-to-sue letter from the EEOC. One month later, she amended her state court complaint to include Title VII claims. See 42 U.S.C. §§ 2000e-2, e-3. At that point, the city removed the case to the federal district court. See 28 U.S.C. §§ 1331, 1441.

In due course, the city moved for summary judgment under Fed. R. Civ. P. 56, arguing (i) that most of the plaintiff's claims under chapter 151B were time-barred; (ii) that those which remained were not actionable; (iii) that as to the federal retaliation claims, the evidence, even when interpreted in the light most favorable to the plaintiff, did not reveal any actionable conduct; and (iv) that the city could not be held liable for Ortiz's behavior because it had taken prompt and effective remedial action. The plaintiff opposed the motion. Ruling ore sponte, the district court granted summary judgment for the city. The court concluded that there was no timely sexual harassment claim under chapter 151B and that the city's response to the Ortiz incident foreclosed any sexual harassment claim under Title VII. As to the retaliation claims, the court acknowledged that, viewing the proof in the requisite light, the plaintiff had been subjected to a "series of distasteful, unpleasant, non-empathetic acts . . . by a series of subordinate officials." Nevertheless, the court concluded that the retaliation claims must fail because none of the individual incidents was an "adverse employment action[]" that bore directly upon the terms and conditions of the plaintiff's employment. This timely appeal followed.


The plaintiff's suit implicates both federal and state anti-discrimination and anti-retaliation statues. It requires us to confront - and resolve - two questions of first impression in this circuit.

As framed, all of the plaintiff's claims are dependent upon her allegation that the city tolerated a hostile work environment. *fn1 In general, a plaintiff may recover on such a theory when "the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (citations and internal quotation marks omitted); accord O'Rourke v. City of Providence, 235 F.3d 713, 728 (1st Cir. 2001); Muzzy v. Cahillane Motors, Inc., 749 N.E.2d 691, 694 (Mass. 2001). The plaintiff's hostile work environment claims are of two types.

Most hostile work environments are bred from an ongoing series of harassing incidents. The plaintiff's claim of a hostile work environment, based singularly upon Ortiz's assault, is not of this ilk. However, a single act of harassment may, if egregious enough, suffice to evince a hostile work environment. See Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (Title VII); Gnerre v. MCAD, 524 N.E.2d 84, 88-89 (Mass. 1988) (chapter 151B). The plaintiff's claims of a retaliatory hostile work environment are more stereotypical. ...

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