
    Mary E. Mayo v. Dalbar, Inc. et al.
    
    Superior Court, Middlesex, SS
    No. 996276
    Memorandum Dated April 19, 2002
    
      
       Louis Harvey, Robert Powell III, Kathleen Whalen, and Csilla von Cslky.
    
   Houston, J.

INTRODUCTION

The Plaintiff, Mary E. Mayo (“Mayo”), filed this claim against Defendants, Dalbar Inc. (“Dalbar”), Louis Harvey (“Harvey”), Robert Powell III (“Powell”), Kathleen Whalen (“Whalen”), and Csilla von Csiky (“von Csiky”), alleging various violations of G.L.c. 15 IB, §4 (Counts I through V, respectively), wrongful termination (Count VI), and defamation (Count VII). The Defendants now move for summary judgment on Counts III, IV, V, VI and VII. For the following reasons, Defendants’ motion for partial summary judgment is ALLOWED in part and DENIED in part.

BACKGROUND

Mayo began working for Dalbar in May of 1994. In the spring of 1998, Dalbar sold its publishing division, where Mayo worked, to Security Data Publishing aka Thompson Publishers (“Thompson”). Mayo continued to work in the Dalbar office during a four-month transition period, but was paid by Thompson Publishers. After the transition, Mayo opted not to relocate to New York with Thompson and returned to work at Dalbar.

Mayo alleges that Harvey, the president and owner of Dalbar, began sexually harassing her sometime in the early summer of 1994. Some of the incidents include: touching Mayo’s hair; massaging her shoulders; touching her clothing; requesting back massages; putting his hands on her legs; pressing himself against her; requesting one-on-one “performance review” dinners; and inviting her to sleep at his house. Mayo alleges that Harvey treated other women in the office in a similar manner. She further alleges that she complained to supervisors at Dalbar about Harvey’s actions, but no action was taken. On September 3, 1999, Harvey allegedly invited Mayo to sit on his lap. When she refused, Harvey put his hand on her behind as she walked by.

On November 2, 1999, Mayo’s attorney contacted one of Dalbar’s attorneys and informed him that Mayo was filing a sexual harassment complaint against the company and some of its employees. The next day, the Defendants decided to terminate Mayo. On that same day, Whalen called the tenant liaison for the Federal Reserve Bank (the tenant’s landlord), Joan Hartnett (“Hartnett”). Whalen identified herself as an officer of Dalbar and told Hartnett that Mayo was being terminated and that she should be denied access to the building. As a result, Hartnett called the “Protection Department” to alert them to Whalen’s request. Hartnett had never received such a request from other tenants in the building before. On November 5, 1999, von Csiky, Powell, and Whalen terminated Mayo from Dalbar’s employ. On this date, each of these three Dalbar supervisors signed a letter reading: “Mary Mayo’s employment has been terminated. She has been asked to leave DALBAR, Inc., effective immediately.”

DISCUSSION

This court grants summary judgment where there are no genuine issues of material fact and where the moving party is entitled to summary judgment as a matter of law. Mass.R.Civ.P. 56(c); Cassesso v. Comm'r of Correction, 390 Mass. 419, 422 (1983); Community Nat’l Bank v. Dawes, 369 Mass. 550, 553 (1976). The moving party bears the burden of demonstrating affirmatively the absence of a triable issue, and that the moving party is entitled to judgment as a matter of law. Pederson v. Time, Inc., 404 Mass. 14, 16-17 (1989). Once the moving party establishes the absence of a triable issue, the party opposing the motion must respond and allege specific facts establishing the existence of a genuine issue of material fact. Id. at 17.

Continuing Violation

To establish a timely hostile work environment claim of sex discrimination under G.L.c. 151B, a plaintiff 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. Cuddyer v. Stop & Shop Supermarkets, 434 Mass. 521, 533 (2001). Whether the Plaintiff has shown the existence of a continuing violation that includes conduct occurring within the six months prior to her filing with the Massachusetts Commission Against Discrimination (“MCAD”) is a matter that should be addressed by a jury. Id. at 541. The jury must also decide whether the incident substantially contributed to the continuation of a hostile work environment, such that the incident anchored all related incidents, thereby making the entirety of the claim for discriminatory conduct timely. Id. (reasoning that an employee who suffers from recurring acts of abusive sexual verbal or physical conduct may be unable to appreciate the true character and enormity of the discriminatory environment until after it has continued for an appreciable length of time). The test in Massachusetts, more favorable to a plaintiff, focuses on a plaintiffs knowledge or constructive knowledge of the hopelessness of her work environment, and allows her to litigate alleged, otherwise time-barred, acts of sexual harassment unless her delay in initiating the lawsuit, considered under an objective standard, was unreasonable. Id.

In the case at bar, the Plaintiff is entitled to the continuing violation doctrine to defeat the Defendants' motion for summary judgment. On the record before the court a jury could reasonably find that Harvey’s conduct on September 3, 1999 anchored his prior conduct, giving rise to an actionable claim. A jury could also reasonably find that prior to September 3, 1999 Mayo was unaware that her work environment was pervasively hostile and unlikely to improve. See Keeler v. Putnam Fiduciary Trust Co., 238 F.3d 5, 11-12 (1st Cir. 2001) (recognizing that Massachusetts might not adopt the Federal revelatory standard in cases of ongoing harassment “where pinpricks may only slowly add up to a wound"). Accordingly, Defendants’ motion for summary judgment on the grounds that Plaintiff cannot rely upon the continuing violation doctrine is DENIED.

Maintaining and Aiding and Abetting a Hostile Work Environment

Defendants assert that because Powell, Whalen, and von Csiky were Harvey’s subordinates, they cannot be held liable for aiding and abetting a hostile work environment. Under Massachusetts law, non-action by a supervisory employee, with knowledge that sexual harassment or other prohibited discrimination is occurring in the workplace, is actionable. Chapin v. University of Massachusetts at Lowell, 977 F.Sup. 72, 80 (D.Mass. 1997). Even co-employees of the allegedly aggrieved employee may be held liable for aiding and abetting a discriminatory or hostile work environment. Ruffino v. State Street Bank & Trust Co., 908 F.Sup. 1019, 1048 (D.Mass. 1995). See also Morehouse v. Berkshire Gas Co., 989 F.Sup. 54, 61 (D.Mass. 1997).

Where, as here, the plaintiff does not allege facts to support the individual defendants’ participation in the harassment, but rather alleges a failure to intervene, the plaintiff must show that the individual defendants: (1) had knowledge of ongoing sexual harassment but failed to act; and (2) the failure to act caused injury to the plaintiff. Chapin, 977 F.Sup. at 80. As discussed in Morehouse, however, implicit in the court’s analysis in Chapin is a recognition that in the case of a failure to intervene the plaintiff must show that the situation required action by the individual defendant. Morehouse, 989 F.Sup. at 62. Thus, the plaintiff in this case must also show that the individual Defendants were: (1) required to act under the circumstances; and (2) in a position to discipline the harassers and stop the misconduct. Id.

The Plaintiff cannot meet the second prong of the test. Although Powell, Whalen, and von Csiky maintain supervisory positions at Dalbar, they could not be expected to act in this situation where the highest-ranking employee of the company engaged in misconduct toward Mayo. This is true regardless of the degree of knowledge von Csiky, Whalen, and Powell had of Harvey’s actions and regardless of whether their failure to act caused harm to Mayo. Accordingly, Defendants’ motion for summary judgment as to Counts III, IV, and V is ALLOWED insofar as each count relates to aiding and abetting a hostile work environment. The retaliation claims embedded in Counts III, IV, and V remain against each individual Defendant.

Wrongful Termination in Violation of Public Policy

Although Plaintiff has filed claims against the Defendants under G.L.c. 151B, Plaintiff also asserts a common law claim for wrongful termination in violation of public policy. Generally, no common law cause of action is established where “the Legislature has also prescribed a statutory remedy.” Mello v. Stop & Shop Cos., 402 Mass. 555, 557 (1988). The public policy against sexual harassment and gender discrimination is codified in G.L.c. 151B, §4 and provides a comprehensive legislative scheme establishing the same rights and remedies as a common law wrongful termination claim. Accordingly, Defendants’ motion for summary judgment as to Count VI is ALLOWED.

Defamation

Summary judgment procedures are highly favored in defamation cases to prevent the chill of freedom of expression. King v. Globe Newspaper Co., 400 Mass. 705, 708 (1987). Defamation is the publication of material or statements without the privilege to do so which tends to expose one to hatred, ridicule, or contempt or tends to discredit the plaintiff in the minds of any considerable and respectable class of the community. Grande & Son, Inc. v. Chace, 333 Mass. 166, 168 (1955). Statements that would be reasonably understood to mean that the plaintiff committed a crime or intended to commit a crime when there was no such evidence are defamatory per se. Draghetti v. Chmielewski, 416 Mass. 808, 812 (1994). Statements that prejudice someone in her profession or business or may probably have tended to do so are also defamatory per se. Lynch v. Lyons, 303 Mass. 116. 118-19 (1939).

Whether or not a statement is reasonably susceptible of a defamatory meaning is a threshold matter of law for the court. Foley v. Lowell Sun Publishing Co., 404 Mass. 9, 11 (1988). Mayo argues that the statement, “Mayo should be denied access to the building” constitutes slander because the statement implies that Mayo should not be trusted to enter the premises. The statement at issue is an imperative, or a directive, by Whalen ultimately for building security to act in a certain way. The court recognizes that a person in lawful control of the premises has a right to admit any visitor or revoke an implied license to enter. See Commonwealth v. Hood, 389 Mass. 581, 590 (1983); Commonwealth v. Richardson, 313 Mass. 632, 640 (1943). Furthermore, if Mayo entered upon the property controlled by Dalbar and refused to leave after having been forbidden to enter by building security, she would be committing a crime, which would justify the summoning of police. G.L.c. 266, §120. While the Defendants have no evidence that Mayo intended to commit a crime, Whalen’s directive to the tenant liaison could not reasonably have been understood that Mayo did commit a crime. Although Hartnett qualified Whalen’s request as the first of its kind, Harnett’s memorandum indicates that she understood Whalen’s request as a mere directive. Hartnett further indicated that while Whalen did not offer a reason for the termination and resulting exclusion from the property, Hartnett did not inquire as to the reason. The record does not support any indication that Hartnett was concerned about Whalen’s request. In addition, there is no evidence in the record that Whalen’s statements prejudiced Mayo in her profession or business or may have tended to do so.

Even if the statement could be considered defamatory, the courts recognize that a defendant may be shielded from liability by a conditional privilege to publish defamatory material. Catrone v. Thoroughbred Racing Ass’n of North America, 929 F.2d 881, 887-88 (1st Cir. 1991). The privilege exists where both the publisher and recipient of a communication “share some legitimate mutual interest ‘reasonably calculated’ to be served by the communication.” Sheehan v. Tobin, 326 Mass. 185, 191 (1950). A business interest qualifies as a legitimate interest for purposes of the privilege. Bratt v. Int’l Business Machines Corp., 392 Mass. 508, 512-13 (1984). See also McCone v. New England Tel. & Tel. Co., 393 Mass. 231, 235-36 (1984).

An employer has an interest in keeping trespassers off its premises, including but not limited to suspended or terminated employees, especially given that an employer may have some legal obligations to protect its employees from workplace threats and the like. See generally Foley v. Boston Housing Auth., 407 Mass. 640, 644 n.5 (1990). In order to carry out these obligations, the one in lawful control of the property must have the power to keep trespassers out. G.L.c. 266, §120. Whalen merely communicated instructions to the party that Whalen believed was authorized to act on behalf of Dalbar for the purposes of building security. The statement was not accompanied by any other words to imply anything but a simple directive. Even if the statement could be considered defamatory, the court finds Whalen’s statements were conditionally privileged.

Once a defendant has established that the statement is conditionally privileged, the burden of proof shifts to the plaintiff to demonstrate abuse of that privilege. Landry v. Miller, 921 F.Sup. 880, 888 (D.Mass. 1996). See also Sheehan, 326 Mass. at 191-92: Bander v. Metropolitan Life Ins. Co., 313 Mass. 337, 343 (1943). A privilege may be abused if the plaintiff can show actual or express malice, or by showing “unnecessary, unreasonable or excessive publication of the defamatory matter." Catrone, 929 F.2d at 889. The Plaintiff has not met its burden to show Dalbar abused its conditional privilege. Whalen made no statement to anyone other than Hartnett. She communicated the request only to Hartnett who in turn necessarily notified persons who are responsible for building safety and security, those responsible for carrying out the request. Furthermore, the Plaintiff has not shown that Whalen spoke out of malice. Accordingly, the Defendants’ motion for summary judgment as to Count VII is ALLOWED.

ORDER

Based upon the foregoing, it is hereby ORDERED that the Defendants’ motion for summary judgment as to Counts VI and VII be ALLOWED. The court further ORDERS Defendants’ motion for summary judgment as to Counts III, IV, and V be ALLOWED only insofar as each count relates to aiding and abetting a hostile work environment. The retaliation claims embedded in Counts III, IV, and V remain against each individual Defendant. In all other respects Defendants’ motion for summary judgment is DENIED. 
      
       As this court understands Plainitffs complaint, Count I is against Dalbar and is not duplicative as to the individual defendants.
     
      
       It is unclear from the record as it is developed thus far when these incidents occurred.
     
      
       Von Csiky was one of Mayo’s supervisors, but Whalen and Powell were not. Whalen and Powell, however, held supervisory positions.
     
      
       Another document is attached to that letter, both documents marked as Exhibit 2. The second document contains a black and white picture of Mayo with the following notations: “Restrictions: Do Not Allow In Bulling, (sic) Call Supervisor If She Enters. [Initials illegible]. Mayo, Mary. Details: XC: 1,8, 15, LL, Pass on, Desk.” The court cannot determine from the record who authored this document or to whom it was distributed, if at all. Furthermore, the court cannot decipher the cryptic notations on the document.
     
      
       This is true notwithstanding Mayo’s employment at Thompson for four months because she continued to work in Dalbar’s offices.
     
      
       This court understands that Count VI has been dismissed by stipulation of the parties.
     
      
       Where a communication is susceptible of both defamatory and non-defamatory meaning, a question of fact exists for the jury. Jones v. Taibbi, 400 Mass. 786, 792 (1987).
     
      
       A reading of the complaint and Plaintiffs Memorandum in Opposition to Defendants’ Motion for Summary Judgment indicate that Plaintiffs defamation claim is grounded in Whalen’s statements to Hartnett, and not on the letter and attached document. The court need not specifically address the written letter(s) as the analysis would remain the same. The two letters appear to be a memorialization of Whalen’s conversations with Hartnett.
     
      
       Although Whalen ordered Hartnett to deny Mayo access to the building, she only has authority to deny Mayo access to Dalbar-controlled property. The court cannot determine from the record if the Federal Reserve Bank as the landlord agreed to deny Mayo access to the entire building or if building security would deny Mayo access only to the offices controlled by Dalbar.
     