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Equal Employment Opportunity Commission v. Fred Fuller Oil Co., Inc.

United States District Court, D. New Hampshire

January 31, 2014

Equal Employment Opportunity Commission
Fred Fuller Oil Company, Inc., et al. Opinion No. 2014 DNH 020


PAUL BARBADORO, District Judge.

The Equal Employment Opportunity Commission (EEOC) sued Fred Fuller Oil Company, Inc. on behalf of two former employees, Nichole Wilkins and Beverly Mulcahey. The complaint alleges that Fred Fuller, the owner of Fuller Oil, sexually harassed both women. It also charges that the company fired Mulcahey in retaliation for her close friend, Wilkins, complaining about the harassment she had suffered prior to her constructive discharge. Fuller Oil has filed a motion for partial judgment on the pleadings, challenging only Mulcahey's claims. It argues that Mulcahey's sexual harassment claim is deficient because the harassment she allegedly suffered was neither severe nor pervasive. It challenges her retaliation claim by arguing that Mulcahey's alleged relationship with Wilkins is not sufficiently close to support a retaliation claim based on Wilkins's sexual harassment complaint. I reject both arguments.


A. Wilkins's Allegations

Wilkins alleges that Fred Fuller subjected her to offensive sexual conduct and unwelcome sexual comments on multiple occasions during the time she worked for Fuller Oil. For example, Fuller asked Wilkins if she would strip for his son's bachelor party. When Wilkins was a tenant in an apartment owned by Fuller, he told her he was installing cameras in her apartment "to keep an eye on her." In 2010, Fuller also began requesting that Wilkins wear more revealing clothing, including shirts that showed off her breasts. Fuller told Wilkins that the "only good thing about the company t-shirts" was that they allowed his name to be on her breasts. Fuller looked down Wilkins's shirt whenever possible and commented on her breasts, referring to them by various vulgar nicknames. Fuller told Wilkins that she would have to let Fuller "play with [her] boobs" the next time that her co-worker went on vacation, and that he would show her his "night crawler." He also requested that she laugh "so he could watch her breasts bounce up and down, " and he told Wilkins that neither he nor his son - who also worked for the company - had been circumcised. Fuller's offensive remarks were not limited to Wilkins. Fuller habitually commented on female employees' appearance, once commenting to Wilkins about "how great a co-worker's ass looked." He also remarked that female colleagues were "on the prowl" depending on how they dressed.

In the final months of 2010, Fuller's actions toward Wilkins progressed to unwanted and inappropriate touching, which always occurred without witnesses present. On at least three occasions, he put his fingers inside Wilkins's blouse and touched her breasts. He would also frequently brush his hands against her breasts while grabbing objects from her desk. In March 2011, Fuller approached Wilkins from behind her desk and put his hands on her breasts, rubbing them.

On July 11, 2011, Wilkins alleges the following:

Fuller came to Wilkins's desk, stood behind her, cupped both his hands over her breasts inside her shirt and squeezed. Wilkins hunched over and pushed her back up to try to get his hands off her breasts, but Fuller pressed her chair against the desk to prevent her from moving. Fuller squeezed harder with his fingers on her nipples until they became erect. While doing this, Fuller whispered in her ear that when her co-worker left on vacation, "we are definitely taking these guys out to play with." Fuller moaned and commented how it did not take long for her nipples to become erect and that she must really want it. Fuller then jiggled her breasts up and down and backed away. Fuller then pointed to his penis inside his pants and said, "He's so bad, getting hard." Wilkins was so upset, she got up from her desk and grabbed her purse on the floor next to her, at which point Fuller whispered, "You have really nice tits and you were great, nice and hard fast."

In tears, Wilkins reported the incident to a female co-worker to whom she had previously reported other instances of Fuller's harassment. The co-worker responded "well, you can't tell anyone. You need your job." Fuller's harassment made Wilkins fearful of going to work, and she resigned the next day, explaining her resignation to a Fuller Oil employee by saying, "Fred knows why and he knows what he did."

Five minutes after Wilkins resigned, Fuller left a message on her cell phone saying "we need to talk." On July 17, 2011, Fuller sent Wilkins an apologetic email stating, in part, "it should not of [sic] happened." Wilkins pressed criminal charges based on the incident and on April 19, 2012, Fuller was arrested for forcibly fondling Wilkins, a misdemeanor sexual assault. On November 14, 2012, Fuller entered a no contest plea to a reduced charge of simple assault.

B. Mulcahey's Allegations

Mulcahey was also employed at Fuller Oil, where she had worked since September 2006. Mulcahey alleges her own unwelcome interactions with Fred Fuller. For example, when Mulcahey once requested time off, Fuller grabbed his crotch and asked "[w]hat can you do for me?" He also cornered her in the kitchen and told her "she looked very nice" in a disturbing manner, and similarly cornered her by the copy machine "in an inappropriately close manner" and suggestively told her that she looked nice. Fuller also commented to Mulcahey that she was "showing off the right amount of cleavage, not too much and not too little." Finally, he made sexually suggestive comments to Mulcahey regarding a "play date" between himself, Mulcahey, Wilkins, and Wilkins's young daughter.

Mulcahey notes other behavior on the part of Fuller that was not specifically directed at her but contributed to her discomfort in the workplace. Wilkins told her of the sexual harassment that she was forced to endure and Mulcahey also witnessed Fuller hugging women alone in the kitchen and generally flirting with female co-workers. When Mulcahey complained that she was being forced to carry a disparate amount of the workload because of ...

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