Kibbe v. Potter

• Decision Date: 21 March 2002
• Docket Number: Nos. Civ.A. 98-30241-MAP, Civ.A. 99-30194-MAP.,s. Civ.A. 98-30241-MAP, Civ.A. 99-30194-MAP.
• Citation: 196 F.Supp.2d 48
• Parties: Diane KIBBE and Shirley Gregory, Plaintiffs, v. John E. POTTER, Postmaster General, United States Postal Service, and Daniel Griffin, Defendants. Sandra Harrington, Plaintiff, v. John E. Potter, Postmaster General, United States Postal Service, and Daniel Griffin, Defendants.
• Court: U.S. District Court — District of Massachusetts

Page 48

196 F.Supp.2d 48

Diane KIBBE and Shirley Gregory, Plaintiffs, v. John E. POTTER, Postmaster General, United States Postal Service, and Daniel Griffin, Defendants.

Sandra Harrington, Plaintiff, v. John E. Potter, Postmaster General, United States Postal Service, and Daniel Griffin, Defendants.

Nos. Civ.A. 98-30241-MAP, Civ.A. 99-30194-MAP.

United States District Court, D. Massachusetts.

March 21, 2002.

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Karen L. Goodwin, United States Attorney's Office, John D. Connor, Moriarty & Connor, Springfield, MA, for Defendants.

Michael P. Sheridan, McDonald D. Dawn, Sheridan & Sheridan, L.L.P., South Hadley, MA, for Plaintiffs.

MEMORANDUM REGARDING REPORT AND RECOMMENDATION ON DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT (Civil Action No. 98-30241: Docket Nos. 60 and 62; Civil Action No. 99-30194: Docket Nos. 29 and 31) and PLAINTIFFS' MOTIONS FOR SUMMARY JUDGMENT WITH RESPECT TO DEFENDANT DANIEL GRIFFIN'S COUNTERCLAIMS (Civil Action No. 98-30241: Docket No. 64; Civil Action No. 99-30194: Docket No. 33)

PONSOR, District Judge.

Plaintiffs Diane Kibbe ("Kibbe"), Shirley Gregory ("Gregory"), and Sandra Harrington ("Harrington") (together, "plaintiffs") filed suit against their employer, the United States Postal Service ("USPS"), and against a co-employee, Daniel Griffin ("Griffin"), for injuries arising out of Griffin's alleged sexual harassment over a number of years. Kibbe and Gregory filed their complaint together ("Complaint I"), and Harrington later filed a parallel complaint ("Complaint II"). The cases were consolidated, but the parties were ordered to continue making their filings separately.

Plaintiffs claim that USPS violated Title VII (Counts I and II of Complaint I, and Count I of Complaint II), and claim that Griffin intentionally inflicted emotional distress upon them (Counts IV and V of Complaint I, and Count IV[sic]¹ of Complaint II). Gregory and Harrington claim Griffin maliciously interfered with their employment (Count III[sic] of Complaint I, and Count II of Complaint II), and Gregory claims that Griffin assaulted her (Count III of Complaint I). Griffin filed a counterclaim against plaintiffs, alleging (1) defamation, (2) intentional infliction of emotional distress, (3) tortious interference with advantageous relations; (4) civil conspiracy; and (5) abuse of process. Defendants filed separate motions for summary judgment as to both complaints, and plaintiffs filed for summary judgment as to all of Griffin's counterclaims, creating a total of six motions for summary judgment.

All six motions were referred to United States Magistrate Judge Kenneth P. Neiman, and on December 6, 2001, Judge Neiman issued his Report and Recommendation. In a detailed memorandum, Magistrate Judge Neiman recommended (1) that USPS' motions for summary judgment be allowed as to those portions of Counts I and II of Complaint I, and Count I of Complaint II, that alleged retaliation, and as to Kibbe's claim of constructive discharge in Count I of Complaint I, but otherwise be denied; (2) that Griffin's motions for summary judgment be allowed as to those portions of Count III[sic] of Complaint I, and Count II of Complaint II, that alleged malicious interference with employment, but otherwise be denied; and (3) that plaintiffs' motions for summary judgment as to Griffin's counterclaims be allowed in toto. Only defendants filed Objections to the Report and Recommendation.

After a careful, de novo review of the motions, Magistrate Judge Neiman's Report and Recommendation, defendants' objections, and plaintiffs' oppositions to those objections, this court is firmly persuaded that the Report and Recommendation is correct. The scrupulousness of the Report and Recommendation makes extended discussion unnecessary.

In summary, for the reasons stated by Magistrate Judge Neiman, this court has concluded, as to plaintiffs' Title VII claims against USPS, that there is sufficient evidence for a reasonable jury to conclude (1) that a "continuing violation" serial theory protected each plaintiff's claims; (2) that Griffin's actions created a hostile work environment for purposes of Title VII; and (3) that USPS failed to take "prompt and appropriate corrective action," but that no reasonable jury could find on the evidence presented (4) that USPS retaliated against plaintiffs, or (5) that Kibbe was constructively discharged.

As to plaintiffs' claims against Griffin, the court has concluded, for the reasons stated by Magistrate Judge Neiman, that (1) Title VII does not preempt plaintiffs' common law claims; and (2) there is sufficient evidence for a reasonable jury to conclude that Griffin's behavior was intentional, extreme, outrageous, and inflicted severe harm upon plaintiffs² but that no reasonable jury could find on the evidence presented (3) that Griffin tortiously or maliciously interfered with Gregory and Harrington's employment or advantageous business relations.

As to Griffin's counterclaims against plaintiffs, the court has concluded, for the reasons stated by Magistrate Judge Neiman, that—Griffin has not produced sufficient evidence to survive summary judgment on his claims of (1) defamation; (2) intentional infliction of emotional distress; (3) tortious interference with advantageous relations; (4) civil conspiracy, and (5) abuse of process. The court will allow summary judgment as to Griffin's defamation claim because it finds that plaintiffs' sexual harassment complaints were privileged, as articulated by Judge Neiman in footnote 23, page 45, rather than because of the defects in Griffin's pleadings.

This privilege has usually been recognized in the context of a defamation claim against the plaintiff's employer. See, e.g., Foley v. Polaroid Corp., 400 Mass. 82, 508 N.E.2d 72 (1987). However, the court finds that the privilege may also be asserted by an employee who, as in this case, publishes a sexual harassment complaint to her supervisors, employer, or to the employer's EEO office, so long as the complaint is (1) "of a kind reasonably calculated to protect or further" the employer's interest in maintaining a workplace free of sexual harassment, and (2) the complaint is not made "recklessly." Foley, 508 N.E.2d at 79-80. The interest in a workplace free of sexual harassment will hardly be achieved by recognizing a conditional privilege on the part of the investigating employer, but denying the privilege to the employee who informs her employer of the harassment in the first place. See Mathias v. Beatrice Foods Co., 23 Mass.App.Ct. 915, 917, 500 N.E.2d 812 (1986) (privilege applied to "fellow employees" as well as employer).

For the reasons set forth above, Magistrate Judge Neiman's Report and Recommendation is hereby ADOPTED. USPS' motions for summary judgment are hereby ALLOWED as to those portions of Counts I and II of Complaint I, and Count I of Complaint II, that alleged retaliation, and as to Kibbe's claim of constructive discharge in Count I of Complaint I, but otherwise DENIED. Griffin's motions for summary judgment are hereby ALLOWED as to Count III[sic] of Complaint I, and Count II of Complaint II, but otherwise DENIED. Plaintiffs' motions for summary judgment as to Griffin's counterclaims are hereby ALLOWED in toto. The clerk will set both cases for a status conference.

Separate orders will issue.

ORDER

For the reasons stated in the accompanying Memorandum, USPS' motion for summary judgment (Docket No. 62) is hereby ALLOWED as to those portions of Counts I and II, that allege retaliation, and as to Defendant Kibbe's claim of constructive discharge, but is otherwise DENIED. Griffin's motion for summary judgment (Docket No. 60) is hereby ALLOWED as to Count III[sic], which alleges malicious interference with employment, but is otherwise DENIED. Plaintiffs' motion for summary judgment as to Griffin's counterclaims (Docket No. 64) is hereby ALLOWED in toto. The clerk will set up a status conference to set a schedule for future proceedings.

ORDER

For the reasons stated in the accompanying Memorandum, USPS' motion for summary judgment (Docket No. 33) is hereby ALLOWED as to those portions of Count I that allege retaliation, but is otherwise DENIED. Griffin's motion for summary judgment (Docket No. 29) is hereby ALLOWED as to Count II, but is otherwise DENIED. Plaintiff's motion for summary judgment as to Griffin's counterclaims (Docket No. 33) is hereby ALLOWED in toto. The clerk will set up a status conference to set a schedule for future proceedings.

REPORT AND RECOMMENDATION REGARDING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT (Civil Action No. 98-30241: Docket Nos. 60 and 62; Civil Action No. 99-30194: Docket Nos. 29 and 31) and PLAINTIFFS' MOTIONS FOR SUMMARY JUDGMENT WITH RESPECT TO DEFENDANT DANIEL GRIFFIN'S COUNTERCLAIMS (Civil Action No. 98-30241: Docket No. 64; Civil Action No. 99-30194: Docket No. 33)

NEIMAN, United States Magistrate Judge.

Claims of sexual harassment lie at the core of these consolidated cases. Three female employees of the United States Postal Service ("USPS")—Diane Kibbe ("Kibbe"), Shirley Gregory ("Gregory") and Sandra Harrington ("Harrington") (collectively "Plaintiffs")—have sued USPS through the Postmaster General, William Henderson, for violations of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. Plaintiffs have also sued their alleged harasser, Daniel Griffin ("Griffin"), personally, under various common law theories. Griffin, in turn, has filed counterclaims alleging, among other things, the intentional infliction of emotional distress and defamation.

Six separate motions for summary judgment (three from each case) have been referred to the court for a report and recommendation. See 28 U.S.C. § 636(b). For the reasons explained below, the court will recommend that USPS's motions for summary judgment be allowed in part and denied in part; that...