Zhao v. Bay Path Coll.

• Citation: 982 F.Supp.2d 104
• Decision Date: 14 November 2013
• Docket Number: Civil Action No. 13–cv–10188–MAP.
• Parties: PING ZHAO, Plaintiff v. BAY PATH COLLEGE and Gina Semprebon, Defendants.
• Court: U.S. District Court — District of Massachusetts

982 F.Supp.2d 104

PING ZHAO, Plaintiff

v.BAY PATH COLLEGE and Gina Semprebon, Defendants.

Civil Action No. 13–cv–10188–MAP.

United States District Court,

D. Massachusetts.

Nov. 14, 2013.

Anne Glennon, Law Office of Anne Glennon, Manomet, MA, Bonita M. Riggens, Law Office of Bonita M. Riggens, Petersburg, FL, Wendy A. Kaplan, Law Office of Wendy A. Kaplan, Boston, MA, for Plaintiff.

Sara G. Schwartz, Jaimie A. McKean, Jessica L. Herbster, Schwartz Hannum P.C., Andover, MA, for Defendants.

MEMORANDUM AND ORDER RE: REPORT AND RECOMMENDATION REGARDING DEFENDANTS' PARTIAL MOTION TO DISMISS

PONSOR, District Judge.

Plaintiff's amended complaint charges Bay Path College and Gina Semprebon with various violations of state and federal statutes prohibiting discrimination and sexual harassment. The complaint also includes a number of common law claims. Defendants filed a motion to dismiss six of the seven counts in the complaint, which was referred to Magistrate Judge Kenneth P. Neiman for a report and recommendation.

On October 25, 2013, Judge Neiman issued his Report and Recommendation, to the effect that Defendants' motion should be denied (Dkt. No. 41). The conclusion of the Report and Recommendation admonished the parties that objections to the Report and Recommendation would have to be filed, in writing, within fourteen days of the parties' receipt of the Report. No such objection has been filed.

Having reviewed the substance of the Report and Recommendation and finding it meritorious, and noting that there is no objection, the court, upon de novo review, hereby ADOPTS the Report and Recommendation (Dkt. No. 41).

Based upon this, the court hereby DENIES Defendants' Partial Motion to Dismiss (Dkt. No. 13). This case is hereby referred to Magistrate Judge Neiman for a pretrial scheduling conference.

It is So Ordered.

REPORT AND RECOMMENDATION REGARDING DEFENDANTS' PARTIAL MOTION TO DISMISS (Document No. 13)

NEIMAN, United States Magistrate Judge.

Presently before the court is a motion by Bay Path College (“BPC”) and Gina Semprebon (“Semprebon”) (together “Defendants”) seeking dismissal of six of the seven statutory and tort claims brought by Ping Zhao (“Plaintiff”). Plaintiff's amended complaint advances claims that BPC violated her right to equality in education under Title IX, 20 U.S.C. § 1681 et seq. (Count 1), discriminated against her on the basis of sex in violation of Title VII, 42 U.S.C. § 2000e et seq., and Title IX (Count 2), violated the Massachusetts Fair Employment Practices Act, Mass. Gen. Laws ch. 151B (also Count 2), retaliated against her in violation of Title VII, Title IX, and Mass. Gen. Laws ch. 151B (Count 3), and breached her employment contract (Count 5). As for Semprebon, Plaintiff claims that she violated Mass. Gen. Laws ch. 151B by discriminating (Count 2) and retaliating (Count 3) against her, aided and abetted discrimination in violation of Mass. Gen. Laws ch. 151B (Count 4), tortiously interfered with her advantageous relations (Count 6), and intentionally inflected emotional distress upon her (Count 7).¹

As presently framed, Defendants' motion seeks dismissal of Count 4, which targets Semprebon, on grounds that Plaintiff cannot establish a prima facie case for aiding and abetting discrimination as her allegations in support of that claim are not separate and distinct from her main claims of discrimination. Defendants also seek dismissal of Counts 5 through 7—the breach of contract claim against BPC as well as the tortious interference and intentional infliction of emotional distress claims against Semprebon—based on the exclusivity provision of Mass. Gen. Laws ch. 151B.

Defendants' motion has been referred to this court by District Judge Michael A. Ponsor for a report and recommendation. See28 U.S.C. § 636(b)(1)(B) and Fed.R.Civ.P. 72(b). For the reasons which follow, the court will recommend that Defendants' motion be denied.

I. Standard of Review

Generally, a complaint requires only “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). However, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). To meet this standard, a plaintiff must “plead[ ] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

II. Background

Accepting as true the allegations in Plaintiff's complaint, the facts, which are quite extensive, are as follows. Plaintiff was born in China, and has a Bachelor of Science in Physics, a Ph.D. in Material Engineering, and a Masters in Statistics. (Complaint at ¶ 15.) In 1999, Plaintiff moved to Massachusetts, where her husband was and continues to be employed, and since March 2004 she has been a citizen of the United States. (Id.) On August 26, 2005, Plaintiff commenced employment at BPC as a full-time Assistant Professor of Mathematics and Coordinator of the Mathematics Program. (Id. at ¶ 23.) She was the first full-time mathematics faculty member at BPC and was hired to build the college's program. (Id.) At the time BPC hired Plaintiff, the college did not offer math as a major or a minor. (Id. at ¶ 24.)

BPC does not have a tenure system. (Id. at ¶ 27.) At the time of Plaintiff's employment, BPC confirmed faculty appointments for each academic year via letter from its Provost/Vice President of Academic Affairs; William Sipple performed this duty from 2005 to summer of 2010, as did his successor, Melissa Morriss–Olson, from the summer of 2010 to November 2011. (Id. at ¶¶ 27, 18–19.) The annual letters of appointment reference “the statutes and handbooks of the College” as a source of the terms and conditions of employment, which materials include a sexual harassment policy. (Id. at ¶ 28.) From Plaintiff's initial 2005 appointment through the 2011–2012 academic year, she continually received and accepted yearly contractual offers of employment from BPC. (Id. at ¶ 29.)

Plaintiff's direct supervisor until January 27, 2010, was Semprebon. (Id. at ¶ 22.) As such, Semprebon had the authority to evaluate Plaintiff's performance, make recommendations and determinations regarding pay raises and promotions, set and adjust her class schedule, and approve or deny her requests for travel, continuing education, and other work-related activities and reimbursements. (Id. at ¶ 25.) Semprebon also had the power to recommend Plaintiff's discipline and termination. (Id.)

Semprebon told Plaintiff that she was close friends with BPC's President, Carol Leary, and further claimed that she used her influence to facilitate BPC's hiring becausePlaintiff's interview with President Leary did not go well. (Id. at ¶ 26.) Semprebon impressed upon Plaintiff that BPC was a small college, that she was a very powerful and influential member of the staff, and that Plaintiff would need her protection. (Id.)

Plaintiff's first BPC performance review was for the 2005–2006 academic year. At BPC, the highest faculty rating for overall performance and other performance categories is “Noteworthy,” meaning “[p]erformance was consistently well above expectations; contributions were noteworthy and individual served as a role model for others.” (Id. ¶ 30.) The second highest rating is “Proficient,” meaning that “[p]erformance met expectations; included contributions to the department and to the College.” (Id.) Semprebon evaluated Plaintiff that year. (Id.) For the majority of performance categories, Plaintiff received the score “Noteworthy”; in overall performance Plaintiff earned the rating “Proficient.” (Id.) Semprebon also noted that Plaintiff was “one of the most highly motivated faculty members [she] has ever seen and extremely dedicated to service,” had “elevated the standard of math instruction tremendously,” and “motivated several [students] to want to pursue a math minor at the College.” ² (Id.)

Semprebon often used her positive performance evaluation of Plaintiff to “remind” Plaintiff of Semprebon's clout at BPC. (Id. at ¶ 31.) Semprebon also exercised her power over Plaintiff to maintain close contact with her. For example, Plaintiff asserts, Semprebon interfered or attempted to interfere with her projects and assigned Plaintiff to work on scientific projects with her. (Id. at ¶ 32.) Semprebon also confided in Plaintiff that the departure of certain faculty members from BPC was connected to their dealings and relationships with Semprebon. (Id. at ¶ 33.)

In June of 2006, BPC promoted Plaintiff to the position of Director of the Mathematics Program and reappointed her as Assistant Professor. (Id. at ¶ 34.) Six months later, in December 2006, Plaintiff was working on a project with a lead math teacher at BPC's Central Massachusetts Campus, Dr. John Rulnik. (Id. at ¶ 36.) Semprebon told Plaintiff that Dr. Rulnik sent an unflattering email about Plaintiff.³ (Id.) Semprebon claimed she was urging Dr. Rulnik's termination. (Id.) Dr. Rulnik's supervisor, Dr. Vana Nespor, met with Plaintiff and requested that Plaintiff give him a second chance. (Id.) Plaintiff was willing to do so, but BPC terminated Dr. Rulnik. ⁴ (Id. at ¶¶ 36–37.) Semprebon told Plaintiff the termination resulted from Semprebon's recommendation, actions, and close connection to BPC's Associate Vice President for Academic Affairs/Dean of the Tradition Program; Ann Dobmeyer.⁵ (Id. at ¶ 37.)

On the evening of Dr. Rulnik's termination, Plaintiff stayed in her office late into the evening, crying. (Id. at ¶ 39.) Semprebon arrived at Plaintiff's office uninvited. (Id. at ¶ 40.) Under the premise of consoling Plaintiff, Semprebon professed her sexual and romantic feelings toward Plaintiff. (Id.) Semprebon stated that,...