Emerson v. Trustees of Boston University
| Decision Date | 17 September 2014 |
| Docket Number | SUCV2012-01131D |
| Parties | Jocelyn Emerson v. Trustees of Boston University et al No. 128927 |
| Court | Massachusetts Superior Court |
The plaintiff, Jocelyn Emerson (" Ms. Emerson" or the " plaintiff"), brings suit against the defendants Trustees of Boston University (" BU" or the " University") and Virginia Sapiro (" Dean Sapiro") (collectively, " the defendants") alleging that they unlawfully discriminated and retaliated against her when, after her position of employment at the University was discontinued, they failed to hire her into another posted position within BU. Plaintiff alleges age discrimination (Count I), disability discrimination (Count II), and retaliation (Count III), each in violation of G.L.c 151B, § 4. The defendants now move for summary judgment on all counts, principally on the ground that Ms. Emerson has failed to present sufficient evidence to establish viable claims.
The evidence, viewed in the light most favorable to the non-moving parties, see Mass.R.Civ.P. 56(c) [1] establishes the following.
The plaintiff began working at BU in 2001, when she was hired into the position of Assistant Director of the College of Arts and Sciences' Honors Program. In 2003, Ms. Emerson was promoted to the position of Associate Director, reporting directly to various members of the faculty who served as Directors. The Honors Program, which was discontinued by the University in May of 2011, was designed to attract and retain talented students by providing them with challenging academic opportunities. Ms. Emerson was responsible for tasks associated with student recruitment, advising, and retention, and with curricular development within the program.
From 2001 until December of 2006, Ms. Emerson was located on the fourth floor of 745 Commonwealth Avenue in Boston, a BU academic building housing the School of Theology and various offices and departments of the College of Arts and Sciences (" CAS"). In December of 2006, the Honors Program offices, including the plaintiff's, were relocated to the ground floor of 685 Commonwealth Avenue.
One month later, in January 2007, Ms. Emerson formally notified BU that people had been smoking outside her building in the vicinity of her office, which was negatively affecting her due to her asthma and sensitivity to certain chemicals. Ms Emerson requested that BU post " No Smoking" signs outside the building, and provided physicians' notes to support her requests. On March 22, 2007, Ms. Emerson emailed Lisa Doherty (" Doherty"), Director of Facilities for the CAS, complaining about fumes from work that was going on in the Dean's conference room adjacent to her office. Doherty replied shortly thereafter, stating that she would see to it that a fan was installed and explaining that Ms. Emerson had not been informed about the work earlier because the project was taking place in a vacant room that was believed to have adequate ventilation. By mid-April 2007, BU had posted additional " No Smoking" signs as Ms. Emerson had requested.
In June of 2007, Doherty emailed Joel Azpuru (" Azpuru") of BU's Office of Environmental Health and Safety (" EHS") and Kim Randall (" Randall"), the University's Director of Equal Opportunity, to suggest that a meeting be arranged to discuss an upcoming asbestos abatement project and its potential impact on Ms. Emerson. The project was scheduled to take place in the sub-basement of Ms. Emerson's building. The meeting took place on June 21, 2007. Ms. Emerson attended, and subsequently provided a list of cleaning products to which she was not chemical sensitivity reactive.
In September of 2007, Ms. Emerson submitted further documentation to BU's Office of Equal Opportunity, indicating that she was being treated for asthma and " multiple chemical sensitivity" and requesting additional accommodations. On November 1, 2007, Randall transmitted a letter to Ms. Emerson in which she described the accommodations which the Office of Equal Opportunity had determined were appropriate and feasible.[2]
During the spring of 2008, Ms. Emerson emailed Randall on several occasions to complain that students were ignoring the " No Smoking" signs in outside areas near her office. In response, Randall, Doherty, and Marilyn Walsh (" Walsh") of BU's Human Resources Department met to discuss the matter extensively. On June 26, 2008, Randall emailed Ms. Emerson, describing the problem as " extremely challenging" but promising her that a memorandum would be issued to the CAS community at the start of the fall semester to remind them of the University's " No Smoking" policy.
On June 27, 2008, after receiving notice that Ms. Emerson was seeking to move office locations, Dean Sapiro emailed Ms. Emerson to advise her that space had been made available for her on the sixth floor of 745 Commonwealth Avenue. (See Ex. 12.) In this email, Dean Sapiro also took the opportunity to state to the plaintiff that Id. In July of 2008, Ms. Emerson's office was relocated to this space at 745 Commonwealth Avenue.
On September 15, 2008, the plaintiff emailed Charles O'Connor (" O'Connor") of the BU Facilities Department to complain about mold and " fumes." In her email, Ms. Emerson protested that there was work being performed in the building of which she had not been informed, and that it was causing her an adverse health reaction. Ms. Emerson stated more generally that she was not happy with the University's delay in resolving these issues.
Dean Sapiro saw this email, and concluded that it reflected " unnecessary curtness and lecturing at staff members who are relatively low-level . . ." (See Ex. 27, at 15.) As a result, on September 19, 2008, Dean Sapiro sent Ms. Emerson the following email:
(Ex. 13.)
BU tested the area for mold and water leaks that day, but was unable to detect any signs of mold or mildew. On September 17, 2008, however, fans were delivered to ventilate the area.[3] On September 19, 2008, Ms. Emerson contacted Nadiyah Shaheed of the BU Equal Opportunity Office, complaining about three " violations" of her accommodations, the latest of which was the fumes associated with the heating system in the building over the weekend preceding September 15, 2008. On October 16, 2008, Ms. Emerson called Walsh to inquire about her options regarding what she described as this third " violation." In December of 2008, Ms. Emerson emailed Walsh and Shaheed again, complaining of " illegal discrimination" and " violations" of her accommodations plan. In particular, Ms. Emerson objected to an " incredibly strong chemical 'air freshener [sic]'" that had been used in the bathroom on her work floor. Ms. Emerson left a voice mail for Shaheed, stating that she " will not report to work" until these " barriers" are removed. On December 3, 2008, all of the air fresheners in the sixth-floor restrooms were removed, and the windows were opened to improve ventilation. Ms. Emerson asserts that the air fresheners were not removed from the men's room, and that she had to remove them herself while wearing a respirator.
In December of 2008, Ms. Emerson initiated an email exchange with Walsh, Shaheed, and Randall regarding her concern that the University was not honoring its obligations to accommodate her condition. Thus, in a February 2, 2009 email, Ms. Emerson accused Randall of having failed to address the September 2008 " violations, " and asked how this situation would be addressed. On February 23, 2009, Randall informed Ms. Emerson that she had reviewed the September 2008 incident with O'Connor, and been advised that new pipes had been laid in the walkway outside the building. The Facilities staff then had to check the heat in the building, which they did over a weekend. That same day, February 23, Doherty wrote an email to her supervisor, Juliana Walsh-Kaiser, stating that " we are still dealing with accommodation issues for Jocelyn Emerson . . . As you can see from the below email this is a sensitive topic [and involves] lots of work." (Ex. 59.)
Meanwhile, in January of 2009, Dean Sapiro approved an off-cycle salary increase of 12.7% for Ms. Emerson. On May 28, 2009, in an email sent to a colleague, Dean Sapiro stated that when the program that replaced the Honors Program opened, the decision-makers " would be crazy not to offer [Ms. Emerson] a good position." (Ex. 29.)
About two years later, on the morning of January 11, 2011, Ms Emerson emailed Doherty, and complained about something with a " very high fragrance content, " which she stated may be from carpet shampooing conducted on the sixth floor. Doherty promptly investigated, and informed Ms. Emerson that the carpet had been...
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