Hayes v. Henri Bendel, Inc., Civil Action No. 96-10526-RGS.

• Decision Date: 18 October 1996
• Docket Number: Civil Action No. 96-10526-RGS.
• Parties: S. Rhiannon HAYES v. HENRI BENDEL, INC. and Anthony Gulla.
• Court: U.S. District Court — District of Massachusetts

945 F.Supp. 374

S. Rhiannon HAYES v. HENRI BENDEL, INC. and Anthony Gulla.

Civil Action No. 96-10526-RGS.

United States District Court, D. Massachusetts.

October 18, 1996.

COPYRIGHT MATERIAL OMITTED

Michael W. Sobol, Shafner, Gilleran & Mortensen, PC, Boston, MA, for S. Rhiannon Hayes.

Douglas L. Williams, Christina Landolfi, Vorys, Sater, Seymour and Pease, Columbus, OH, for Henri Benel, Inc.

Kenneth M. Bello, Anne Kinnane, Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., Boston, MA, Barbara J. Macy, Boston, MA, for Anthony Gulla.

MEMORANDUM AND ORDER OF DECISION ON DEFENDANT GULLA'S MOTION TO DISMISS AND DEFENDANT BENDEL'S MOTION FOR SUMMARY JUDGMENT

STEARNS, District Judge.

Plaintiff Rhiannon Hayes claims that a co-worker, the defendant Anthony Gulla, harassed her sexually while the two were employed at defendant Henri Bendel, Inc. ("Bendel"). Hayes asserts that Gulla's acts, and Bendel's failure to control Gulla's behavior, caused her emotional distress and, ultimately, the loss of her job. Hayes filed charges of discrimination with the Massachusetts Commission Against Discrimination ("MCAD") and the Equal Employment Opportunity Commission ("EEOC") detailing Gulla's behavior, and naming Bendel as the respondent. Upon receiving a Right to Sue Letter from the EEOC, Hayes filed this action.¹ Hayes's Complaint against Bendel and Gulla asserts the following claims: Count I — Violation of Title VII (Bendel); Count II — Violation of M.G.L. c. 151B (Bendel); Count III — Violation of M.G.L. c. 151B (Gulla); Count IV — Intentional or Negligent Infliction of Emotional Distress (Gulla); Count V — Negligent Hiring, Supervision or Retention (Bendel for employment of Gulla); Count VI — Negligent Hiring, Supervision or Retention (Bendel for employment of Paul Seneca² and Jodi Catino); Count VII — Negligent Infliction of Emotional Distress (Bendel); and Count VIII — Constructive Discharge (Bendel).

Bendel seeks summary judgment on each of Hayes's claims in which it is named. Bendel maintains that it responded promptly when Hayes finally made allegations of sexual harassment against Gulla and that Hayes's tort claims are barred by the Massachusetts Workers' Compensation Act. Gulla has filed a motion to dismiss. Gulla argues that Hayes's failure to name him as a respondent in her complaint to the MCAD precludes her from naming him in a Chapter 151B action. Gulla also argues that Hayes has failed to plead conduct legally sufficient to support an action for intentional infliction of emotional distress. Gulla joins Bendel in the contention that any claim for negligent infliction of emotional distress is barred by the Workers' Compensation Act.³

FACTS

The facts, viewed in the light most favorable to the plaintiff, are these. In the fall of 1993, Hayes was employed by Bendel working as a product manager for Chanel cosmetics. Gulla was a free-lance make-up artist under contract to Chanel, but working under Hayes's supervision. Hayes complained to Chanel about the quality of Gulla's work. In October, 1993, Gulla left Chanel and began working directly for Bendel. As a Bendel employee, Gulla was no longer supervised by Hayes.

Hayes alleges that Gulla commenced a "campaign of harassment" against her, intercepting and steering away potential customers, (perhaps) crediting Hayes's sales to other employee's accounts, and disconnecting Hayes's telephone calls. Complaint, ¶¶ 10, 12; Hayes First Aff., at ¶ 4. Gulla also made disparaging comments about Hayes's weight and the size of her breasts.⁴ In the late fall of 1993, Hayes complained to Jodi Catino, the manager of the cosmetics department, that Gulla was stealing her sales and destroying her sales records. Complaint, ¶ 11; Hayes Deposition, at 38-39, 42-44. Hayes did not inform Catino of Gulla's sexually derogatory remarks. Hayes Deposition, at 39-41. Gulla thereafter accused Hayes and another co-worker, Jeannette Hanlon, of refusing to assist him with a sale. Complaint, ¶ 14. Hayes met in January of 1994 with Catino and Bendel's Operations Manager, Susie Nystrom, to discuss Gulla's allegation. Hayes denied Gulla's accusation and repeated her complaint that he was appropriating her sales and treating her in a derisory manner. Hayes did not mention that Gulla had made offensive remarks about her breasts and weight. Hayes Deposition, at 66-69. Bendel issued disciplinary letters to Hayes, Gulla, and Hanlon warning that any further inappropriate conduct would be punished. Id., at 66, 72-73.

In the spring of 1994, Catino informed her replacement, Lorraine Fish, of the animosity between Gulla and Hayes. That summer, Hayes came to Fish on several occasions to complain that "Mr. Gulla had either called her something offensive, disconnected phone calls that were for her, or bad mouthed her to the rest of the department." Fish Aff., at ¶ 8. On October 15, 1994, Hayes told Fish that Gulla had purposely bumped into her in the back hallway of the store and had called her a "cunt." Fish Aff., at ¶ 20.⁵ Fish asked Hayes to put her complaint in writing. Complaint, ¶ 16. Hayes did so the following day. Complaint, ¶ 17. On October 17, 1994, Assistant Managing Director Yvette Yelardy faxed Hayes's statement to Bendel's Vice President for Human Resources, Pegeen Rubinstein, in New York City. Rubinstein Aff., at ¶ 2. Rubinstein traveled to Boston on October 22, 1994, to investigate. Id. Given the nature of the accusation, Rubinstein immediately suspended Gulla and told Hayes that she could take a week's leave with pay. Id. Hayes did so. Id.

After interviewing Hayes and Gulla, and other Bendel employees, Rubinstein concluded that both Hayes and Gulla were at fault. Rubinstein Aff., at ¶¶ 5, 8. Rubinstein believed, however, that Gulla's actions were the more reprehensible. Consequently, she terminated Gulla for violations of company policy on November 1, 1994. Id., at ¶¶ 8-9.⁶ Rubinstein informed Hayes of her decision and asked Hayes to return to work. Id., at ¶ 9. Hayes declined, stating that she was psychologically disabled. Bendel granted Hayes's unofficial request for leave, paying her medical bills and keeping her on the payroll for benefits' purposes.⁷ Id., at ¶ 11.

In February of 1995, Hayes applied for unemployment compensation. Hayes Deposition, at 112. Bendel sent a letter to Hayes expressing surprise at her application since she was still on Bendel's payroll and claiming disability. Maese Aff., at ¶ 2. Bendel told Hayes that she was welcome to return to work, but that if she did not do so by March 15, 1995, Bendel would assume that she had resigned. Hayes did not respond. Bendel ended her payroll status on March 25, 1995. Id., at ¶ 4.

On March 30, 1995, Hayes filed a charge of discrimination with the MCAD, naming Bendel as the respondent. On June 1, 1995, Hayes filed a second charge of discrimination with the EEOC.⁸ On July 26, 1995, the EEOC notified Hayes that the MCAD had referred her state discrimination claim. The EEOC issued a Right to Sue Letter to Hayes on December 14, 1995. Hayes filed this action on March 12, 1996.

DISCUSSION

Gulla's Motion to Dismiss

When reviewing a motion to dismiss, "[w]e must accept the allegations of the complaint as true, and if, under any theory, the allegations are sufficient to state a cause of action in accordance with the law, we must deny the motion to dismiss." Vartanian v. Monsanto Company, 14 F.3d 697, 700 (1st Cir.1994); Knight v. Mills, 836 F.2d 659, 664 (1st Cir.1987). Gulla asserts that Hayes's Chapter 151B discrimination claim is barred as Hayes failed to name him as a respondent in her charge of discrimination to the MCAD as required by G.L. c. 151B, § 5 (a complaint shall "state the name and address of the person ... alleged to have committed the unlawful practice complained of"). Gulla also contends that Hayes did not file her charge within the applicable six month limitations period. Gulla finally argues that, even accepting Hayes's allegations as true, his behavior towards Hayes did not constitute sexual harassment as a matter of law.⁹

An MCAD charge must contain "appropriate identification of the complainant and the persons alleged to have committed unlawful discriminatory acts." 804 CMR § 1.03(4). The dual purposes of the filing requirement are to provide the MCAD with an opportunity to investigate and conciliate a discrimination claim and to provide notice to an accused of a potential lawsuit. See Conroy v. Boston Edison Co., 758 F.Supp. 54, 57 (D.Mass.1991). There is no dispute that Gulla's alleged acts were recited in Hayes's charge; still, he was not named as a respondent. While no Massachusetts case seems directly in point, in a Title VII context the failure to name a party as a respondent in an EEOC charge is usually fatal to the right to sue. See Schnellbaecher v. Baskin Clothing Co., 887 F.2d 124, 126 (7th Cir.1989). Title VII courts excuse a plaintiff's failure to name a party only where there is a connection between the named and unnamed parties, a mutuality of interests, and an absence of prejudice to the unnamed party, as, for example, where the unnamed party has received adequate notice of the complaint and has been given an opportunity to participate in the conciliation process. See Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235, 1241-1242 (2nd Cir.1995); Virgo v. Riviera Beach Associates., Ltd., 30 F.3d 1350, 1358-1359 (11th Cir.1994). Hayes concedes that Gulla was never served with a copy of the MCAD charge. She contends, however, that her failure to name Gulla as a respondent was not prejudicial, as she filed her charge only to obtain the right to sue and that she never had an intention of seeking conciliation.

It is not apparent that Hayes's wishes in this regard are controlling. The primary purpose of the naming requirement is to give the anti-discrimination agency the opportunity to investigate and settle disputes before lawsuits are filed. See Park v. Howard Univ., 71 F.3d 904, 907-909 (D.C.Cir...