Hussey v. E. Coast Slurry Co.

• Decision Date: 01 March 2022
• Docket Number: Civil Action 20-11511-MPK[1]
• Court: U.S. District Court — District of Massachusetts
• Parties: VIRGINIA HUSSEY, Plaintiff, v. EAST COAST SLURRY CO., LLC; INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 4; HOISTING AND PORTABLE ENGINEERS APPRENTICESHIP & TRAINING PROGRAM aka HOISTING AND PORTABLE ENGINEERS APPRENTICESHIP & TRAINING FUND, aka HOISTING AND PORTABLE ENGINEERS APPRENTICESHIP & TRAINING CENTER; AND SUFFOLK CONSTRUCTION COMPANY, INC., Defendants.

VIRGINIA HUSSEY, Plaintiff, v. EAST COAST SLURRY CO., LLC; INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 4; HOISTING AND PORTABLE ENGINEERS APPRENTICESHIP & TRAINING PROGRAM aka HOISTING AND PORTABLE ENGINEERS APPRENTICESHIP & TRAINING FUND, aka HOISTING AND PORTABLE ENGINEERS APPRENTICESHIP & TRAINING CENTER; AND SUFFOLK CONSTRUCTION COMPANY, INC., Defendants.

Civil Action No. 20-11511-MPK^[1]

United States District Court, D. Massachusetts

March 1, 2022

MEMORANDUM AND ORDER ON DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT (##48, 51, 55, 57).

M. PAGE KELLEY UNITED STATES MAGISTRATE JUDGE

I. Introduction.

Plaintiff Virginia Hussey filed this action alleging gender discrimination and retaliation in connection with her participation in the Hoisting and Portable Engineers Apprentice and Training Program (“School”) run by the International Union of Operating Engineers, Local 4 (“Union”) in combination with local contractors. She alleges that three Union members harassed her while she was working as an apprentice for East Coast Slurry Co., LLC (“East Coast Slurry”) on a Suffolk Construction Company, Inc. (“Suffolk”) jobsite. (#29 ¶¶ 10, 19, 21-22.) After making complaints about the conduct to individuals affiliated with the School, Union, East Coast Slurry, and Suffolk did not resolve it, she was expelled from the School, terminated from the Union, and fired from East Coast Slurry. Id. ¶¶ 56-57. She brings claims against the School, Union, East Coast Slurry, and Suffolk under Title VII, 42 U.S.C. 2000e et seq., and Chapter 151B, Mass. Gen. Laws ch. 151B, § 4 et seq. Defendants have moved, separately, for summary judgment (##48, 51, 55, 57), which plaintiff opposes (#65). For the reasons set forth below, Suffolk's motion is allowed, the Union's and School's motions are allowed in part and denied in part, and East Coast Slurry's motion is denied.

II. Factual Background.

For purposes of summary judgment, the facts are presented in the light most favorable to plaintiff, the nonmoving party. Dennis v. Osram Sylvania, Inc., 549 F.3d 851, 855 (1st Cir. 2008). The facts below are undisputed unless otherwise indicated.^[2]

The School runs a four-year training program and operates with equal numbers of trustees appointed by the Union and by employers who are signatories to the Union's collective bargaining agreement (“CBA”). (#67 ¶¶ 7, 8.) The School has a non-discrimination policy which sets forth a reporting procedure for incidents of discrimination and harassment. Id. ¶ 9. When such incidents occur on a jobsite, a “[c]oordinator will refer the incident to the [Union] Business Manager and the responsible contractor for investigation, and will act as a liaison for the apprentice.” Id. The Union has a diversity mission statement which provides that

[a]ny harassment or discrimination will not be tolerated and, to the extent permitted by law, will be subject to [the Union's] complaint and investigation procedures. Any retaliation against any person [who has] complained about harassment and/or discrimination or any person who has cooperated with an investigation of a complaint will not be tolerated. Anyone who has experienced or observed harassment, discrimination, or retaliation is strongly encouraged to contact any member of [the Union's] Diversity Committee.

Id. ¶ 12. In addition, the CBA between the Union and employers included a nondiscrimination provision:

All employees shall be hired by the employer. The Employer and the [Union] mutually agree that there shall be no discrimination with regard to an employee's race, color, religion, sex, or national origin in regard to job referral or conditions of employment. The parties to these Agreements agree to comply with and adhere to the intent and purpose of the Civil Rights Act of 1964. The [Union] agrees that it will assist the Employer in meeting these obligations under plans which have been jointly accepted by the parties.

Id. ¶ 13.

Plaintiff is a veteran of the U.S. Army and was deployed to Iraq twice. (#67 ¶ 2; #68 ¶ 1.) On July 1, 2017, she enrolled as an apprentice with the School. (#67 ¶ 16.) As an apprentice, she automatically became a member of the Union. Id. ¶ 17. She was asked to speak on behalf of the Union at the Massachusetts State House and at the Somerville City Hall. (#68 ¶ 2.) The Union's business manager, William McLaughlin, told her she was doing well and said she was a hard worker. Id. ¶¶ 3, 110.

Upon her enrollment and again at the start of her second year at the School, plaintiff received its Regulations and Policies. (#67 ¶ 18.) These state that “[a]ll certificates and licenses must be completed according to the curriculum. Failure to pass the prescribed course in the allotted time, would mean repeating the year at a minimum, and may result in discipline up to and including dismissal from the [School].” Id. ¶ 19. As an apprentice, plaintiff worked for East Coast Slurry and a related company, A.A. Will; she was not employed by the School or the Union. Id. ¶ 20.

Toward the end of plaintiff's second year as an apprentice, in April 2018, she signed a disciplinary agreement with the School after failing to report that she had switched jobsites. (#67 ¶ 21; #68 ¶¶ 79-80.) She had been working for both East Coast Slurry and A.A. Will, and was going back and forth between their jobsites. (#68 ¶ 80.) The agreement stated that she would face “further disciplinary action or possible dismissal” from the School if she did not “abide by all of [its] Regulations and Policies” going forward. (#67 ¶ 21.)

During her second year as an apprentice, plaintiff began working at a jobsite for East Coast Slurry. (#67 ¶ 22.) While at the site, she worked with Bobby Atkins, who was an employee of East Coast Slurry, a member of the Union, and a former apprentice with the School. Id. ¶ 23. Like others on the jobsite, Atkins helped train plaintiff, though he did not have a leadership position in the Union. Id. Starting in September 2018, Atkins asked plaintiff out on dates, texted her, and made inappropriate comments to her. Id. ¶ 24; #68 ¶¶ 4, 14. She complained to another Union member and East Coast Slurry employee, Jimmy Jardine, who said he would “handle it.” (#68 ¶¶ 8, 10-11.) She was then transferred to another jobsite. Id. ¶¶ 11, 19, 92.^[3] She was paid approximately $10/hour less at the new jobsite. Id. ¶ 92.

Eventually, plaintiff was moved back to the same jobsite as Atkins. (#68 ¶ 13.) She was assigned to work on the same machine as him and he soon began making comments to her about her appearance, and also told her that, as a woman, she would have to work twice as hard. Id. ¶¶ 13, 15. This time, she complained to Jardine and to the vice president of the Union, Dave Shea. Id. ¶¶ 16-17. In January 2019, Atkins touched plaintiff's shoulders, body, and hair even after she asked him to stop. (#67 ¶ 24.)^[4] On February 14, 2019, while plaintiff was on a break with several other employees, she was sitting on a bench with her head resting on a table because she had a headache. Id. ¶ 25; #68 ¶ 27. Atkins approached her from behind and began stroking her from under her armpits down to her hips and back multiple times. (#67 ¶ 25.) Plaintiff states that he touched her breasts as he was rubbing her sides, but defendants dispute this. Id.; #68 ¶¶ 26, 28. She immediately told Atkins to stop and began yelling at him and crying. (#67 ¶ 25; #68 ¶¶ 28-29.) She then went to report the incident to her supervisors. (#67 ¶ 26.) She told Tim Walker, the Union steward on the jobsite and an East Coast Slurry employee; Craig Cunningham, a Union member and East Coast Slurry employee, John Gaffny, the School's coordinator; other A.A. Will and East Coast Slurry employees; a safety officer for Suffolk; and Alexis Dunn, a lawyer and human resources representative for A.A. Will and East Coast Slurry. Id. ¶¶ 26-27; #68 ¶¶ 30-31, 36-37.

Michael Bowes is the Union president and business agent, and was a trustee at the School when plaintiff was an apprentice. (#67 ¶ 14.) When Walker told him about the February 14, 2019 incident, Bowes visited the jobsite to speak with plaintiff and Atkins. Id. ¶ 26. Bowes told Atkins not to engage in that kind of conduct. Id. He told plaintiff that she was “too beautiful to . . . be on the jobsite” but said he would take care of the situation and that nothing would happen to her. (#68 ¶¶ 33-34, 111.) He and Walker advised plaintiff to stay in the cab of her machine during breaks rather than join other employees in the break room. Id. ¶ 42. In addition, Bowes suggested to plaintiff that it would be easier to get rid of her than to move her from jobsite to jobsite to avoid harassment, and that she would have to get used to comments about her looks. Id. ¶¶ 46, 77, 95. Plaintiff responded that she should not have to get used to it. Id. ¶ 78.

After plaintiff reported the incidents with Atkins to Dunn in February 2019, Dunn told her she would look into it. (#66 ¶¶ 6-7.) During the first week of March 2019, Dunn asked to meet with plaintiff. Id. ¶ 7. Plaintiff told Dunn that she didn't want to discuss the matter while at the jobsite, and so they arranged to meet for lunch offsite. Id. ¶ 8. Dunn asked if plaintiff wanted a formal investigation into the issues, and plaintiff said she did. (#68 ¶ 84.) Despite this, plaintiff states that there was no investigation because no witnesses were interviewed, Dunn did not speak with Atkins, nor did Dunn review video from cameras that were filming the jobsite. Id. ¶¶ 87, 100. Dunn told Hussey that the issues with Atkins were a Union problem and that the Union would have to handle it. Id. ¶¶ 38-39.

Several weeks later, on March 1, 2019, plaintiff was operating a crane at the jobsite when Atkins began yelling at her. (#67 ¶ 28.) He told her that she...