Delia v. Verizon Communications Inc.

Decision Date24 August 2011
Docket NumberNo. 09–2667.,09–2667.
Citation656 F.3d 1,113 Fair Empl.Prac.Cas. (BNA) 1,94 Empl. Prac. Dec. P 44272,25 A.D. Cases 114
PartiesCaroline DeLIA, Plaintiff, Appellant,v.VERIZON COMMUNICATIONS INC., Defendant, Appellee,Verizon Information Services Inc.; Verizon Superpages; Idearc Media Corp.; Verizon Directories Services–East Inc., n/k/a Idearc Media Services–East Inc.; Malvern Smallwood; Defendants.
CourtU.S. Court of Appeals — First Circuit

OPINION TEXT STARTS HERE

John A. Kiernan, with whom Bonner Kiernan Trebach & Crociata, LLP was on brief, for appellant.Windy R. Catino, with whom John D. Hughes, Thomas H. Wintner and Edwards Angell Palmer & Dodge, LLP were on brief, for appellee.Before LYNCH, Chief Judge, BOUDIN and HOWARD, Circuit Judges.HOWARD, Circuit Judge.

This employment discrimination case presents a threshold question: Was plaintiff-appellant Caroline DeLia the defendant's employee? The district court answered in the negative and granted summary judgment to defendant-appellee Verizon Communications, Inc. on DeLia's state and federal statutory claims. The court also granted summary judgment to Verizon on various common law claims. After careful review of the record, we affirm.

I.

The basis of this lawsuit was Caroline DeLia's claim that she was sexually harassed in the workplace by a co-worker, and that her employer responded inadequately. Her complaint names as defendants Verizon Communications Inc., Verizon Directories Services—East Inc., n/k/a Idearc Media Services—East Inc. (Idearc), and the co-worker, Malvern Smallwood. The complaint alleges sexual harassment, in violation of Mass. Gen. Laws (“MGL”) ch. 151(B) and Title VII, 42 U.S.C. § 2000e–2; retaliation, in violation of Title VII; violation of the Americans with Disabilities Act; and state common law claims of negligent and intentional infliction of emotional distress, negligent failure to provide a safe working environment, and breach of contract. Most of the counts were asserted against all defendants; the remainder only against Idearc and Verizon Communications Inc. (Verizon).1 Verizon is the only defendant in this appeal.

II.

We first sketch the background facts, which are undisputed unless otherwise indicated.2 For roughly sixteen years, DeLia worked as an artist for Idearc. Known during almost all of DeLia's time of employment as Verizon Directories Services—East Inc., Idearc was a wholly-owned subsidiary of Verizon Directories Corp., which was itself a subsidiary of GTE Corp., itself a subsidiary of defendant Verizon. During the relevant time period, DeLia was based in Idearc's Middleton, Massachusetts, office, where she was involved in the production of art for advertisements to be included in telephone directories.

Defendant Smallwood was DeLia's supervisor in the Middleton office. DeLia worked in a cubicle next to Smallwood's office. She alleged that over a period of several months in 2005 Smallwood engaged in several acts of harassment. The final alleged incident took place on September 12, 2005, upon Smallwood's return from vacation. In response to DeLia's handling of a customer problem while he was away, Smallwood screamed at her in a threatening way, and berated her such that she feared for her safety and left work. DeLia never returned to the Idearc office.

The next day, DeLia informed her union representative and her department's supervising manager that she could not go to the office because she feared Smallwood. Following an investigation by its human resource and security departments, Idearc was unable to substantiate DeLia's complaint and requested that she return to work. On October 11, 2005, DeLia reported Smallwood's behavior to Verizon's employment and ethics hotline. This triggered an investigation conducted by Verizon's Equal Employment Opportunity (“EEO”) personnel, who conducted interviews, reported their findings, and made recommendations for corrective action. The EEO investigators determined that Smallwood had engaged in unprofessional conduct, albeit not sexual harassment. Idearc issued Smallwood a final warning, notifying him that further unprofessional conduct would result in his termination.3

Various attempts at finding DeLia suitable alternative working arrangements failed. In October 2005 she began receiving short-term disability benefits. When those expired one year later, DeLia began receiving long-term disability benefits. In addition, in October 2006, DeLia applied for Social Security Disability benefits. The application was approved in early 2007, effective March 2006. Both the long-term disability and Social Security approvals were premised on DeLia's demonstration that she had been unable to work since September 12, 2005. The final piece of the historical puzzle is that in November 2005, DeLia filed a charge with the Massachusetts Commission Against Discrimination (MCAD) in which she alleged a hostile work environment, sexual harassment and retaliation under state and federal employment laws. DeLia eventually removed the matter from the MCAD in order to file this action in state court. Verizon seasonably removed the action to federal court and subsequently moved for summary judgment. The district court granted Verizon's motion and this timely appeal followed.4

III.

We review the district court's grant of summary judgment de novo. Roberts v. Delta Air Lines, Inc., 599 F.3d 73, 77 (1st Cir.2010). Summary judgment is proper where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). As did the district court, we must take the record evidence in the light most favorable to DeLia, against whom summary judgment was entered, and draw all reasonable inferences in her favor. Farmers Ins. Exch. v. RNK, Inc., 632 F.3d 777, 779–80 (1st Cir.2011). “A properly supported motion for summary judgment cannot be defeated by relying upon conclusory allegations, improbable references, acrimonious invective, or rank speculation.” Ahern v. Shinseki, 629 F.3d 49, 54 (1st Cir.2010). Against this backdrop, we analyze DeLia's substantive legal claims.

A. Sexual Harassment, Retaliation & ADA Violation

DeLia claims that Smallwood's actions constituted sexual harassment for which Verizon is liable, asserting claims under both federal and Massachusetts law. 42 U.S.C. § 2000e; MGL ch. 151B. Verizon argues that it cannot be held liable under either statute because it is not DeLia's “employer,” within the meaning of either statute. The district court agreed, and so do we.

Both Title VII and chapter 151B protect “employees” from harassment. See Alberty–Velez v. Corporacion de Puerto Rico Para La Difusion Publica, 361 F.3d 1, 6 (1st Cir.2004) (Title VII); Modern Continental/Obayashi v. Mass. Comm'n Against Discrimination, 445 Mass. 96, 833 N.E.2d 1130, 1138 (2005) (ch. 151B). But neither the federal nor state statutes contain definitions of “employee” that are of much use here. See Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992) (noting that statutory definition of “employee” in Title VII is “completely circular and explains nothing”); Comey v. Hill, 387 Mass. 11, 438 N.E.2d 811, 814 (1982) (recognizing that ch. 151B defines ‘employer’ and ‘employee’ only in the negative”).5

We have construed Supreme Court decisions as establishing the proposition that “the terms ‘employer’ and ‘employee’ under Title VII are to be defined with reference to [ ] common law agency principles.” Lopez v. Massachusetts, 588 F.3d 69, 83 (1st Cir.2009). As a further refinement, we have held that “the common-law element of control [by the putative employer over the putative employee] is the principal guidepost that should be followed....” Id. at 84–85. Similarly, we have noted that Massachusetts cases have determined that an employer can be defined by ‘who has direction and control of the employee and to whom ... [the employee] owe[s] obedience in respect of the performance of his work.’ Roberts, 599 F.3d at 78 (1st Cir.2010) (quoting Fleming v. Shaheen Bros., Inc., 71 Mass.App.Ct. 223, 881 N.E.2d 1143, 1147 (2008)).

In this case, DeLia claims there are “multiple” issues of material fact regarding Verizon's control of her workplace. First, citing an affidavit that she submitted to the district court, DeLia claims she was an employee of Verizon for 16 years.” Such a conclusory statement is of little utility in trying to determine the nature and extent of the parties' legal relationship. We do not doubt that DeLia may have thought Verizon was her employer, but her subjective belief alone is insufficient to create a triable issue of material fact. Cf. Wilson v. Moulison N. Corp., 639 F.3d 1, 10 (1st Cir.2011) (rejecting plaintiff's subjective belief that co-worker was her supervisor, upon which claim against her employer was based); Lee–Crespo v. Schering–Plough Del Caribe Inc., 354 F.3d 34, 45 (1st Cir.2003) (observing that, in constructive discharge case, “an employee's subjective perceptions [of working conditions] do not govern”).

Next, DeLia premises an employment relationship with Verizon on her assertion that she worked in Verizon's Middleton, Massachusetts, office and that her “key card,” which electronically controlled access to the office, bore Verizon's logo. But, as to the building, DeLia does not dispute that it was Idearc's office, her own subjective belief notwithstanding. Nor is the logo on the key card—indicating that the card itself is property of Verizon—probative of an employment relationship with Verizon. While the key may literally “control” access to the building, it bears no relevance to the type of control necessary to establish the identity of DeLia's employer. See Camacho v. P.R. Ports Auth., 369 F.3d 570, 576–78 (1st Cir.2004) (rejecting claim that Port Authority was harbor pilots' employer even though it issued pilots' licenses because it “did not behave as pilots' employer in any...

To continue reading

Request your trial
21 cases
  • Alberti v. Univ. of Puerto Rico
    • United States
    • U.S. District Court — District of Puerto Rico
    • 13 October 2011
    ...or unsupported speculation.” Ayala–Gerena v. Bristol Myers–Squibb Co., 95 F.3d 86, 95 (1st Cir.1996). Caroline DeLia v. Verizon Communications, Inc., 656 F.3d 1 (1st Cir.2011); Crespo v. Schering–Plough Del Caribe, Inc., 354 F.3d 34, 45 (1st.Cir.2003). 7. Article 46, Sec. 46.6 indeed states......
  • Shervin v. Partners Healthcare Sys., Inc.
    • United States
    • U.S. District Court — District of Massachusetts
    • 7 March 2014
    ...‘employer’ and ‘employee’ under Title VII are to be defined with reference to [ ] common law agency principles.” DeLia v. Verizon Commc'ns Inc., 656 F.3d 1, 4 (1st Cir.2011) (quoting Lopez v. Massachusetts, 588 F.3d 69, 83 (1st Cir.2009) (quotations omitted)). Under federal law, “the common......
  • Brown v. Bank of Am., N.A.
    • United States
    • U.S. District Court — District of Maine
    • 7 March 2014
    ...administration.” Id. at 577. More recently, the First Circuit addressed the issue of a putative “employer” in DeLia v. Verizon Communications Inc., 656 F.3d 1 (1st Cir.2011). In DeLia, a formal employee of a wholly owned subsidiary sued Verizon, the parent of the parent of the parent of her......
  • Jones v. Montachusett Reg'l Transit Auth.
    • United States
    • U.S. District Court — District of Massachusetts
    • 7 February 2020
    ...to meet the common law multi-factor test or otherwise be subject to a motion for summary judgment. See, e.g., DeLia v. Verizon Commc'ns Inc., 656 F.3d 1, 3 (1st Cir. 2011); Barton, 632 F.3d at 11; Roberts v. Delta Air Lines, Inc., 599 F.3d 73, 74 (1st Cir. 2010); Bentley v. City of Lebanon,......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT