United States District Court, D. New Hampshire
John P. Sherman, Esq.
K. Joshua Scott, Esq.
Martha Van Oot, Esq.
Debra Weiss Ford, Esq.
MODIFIED MEMORANDUM ORDER ON SUMMARY JUDGMENT
JOSEPH N. LAPLANTE UNITED STATES DISTRICT JUDGE
Certain findings contained in this order were modified in the court’s order on the plaintiff’s motion for reconsideration (Order, January 25, 2016, document no. 82). The court’s ruling on the motion for summary judgment remained unchanged.
From September 2010 until August 2011, plaintiff Jennifer Posteraro worked for defendant RBS Citizens, N.A. (“Citizens Bank” or “Citizens”) at two bank branches in Manchester, New Hampshire. Defendant Christos Hatzidakis was Posteraro’s supervisor at her first branch posting. Posteraro claims that virtually her entire tenure at Citizens was rife with gender and disability-based harassment that Citizens failed to address and that Citizens also refused to make reasonable accommodations for her disabilities, specifically, post-traumatic stress disorder (“PTSD”), depression and anxiety. Ultimately, Posteraro filed an eight-count complaint in state court, alleging violations of state and federal statutory and common law. Her claims can be broken down as follows:
--disability discrimination by Citizens’ failure to provide reasonable accommodations, in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12112-12117 and its state law counterpart, N.H. Rev. Stat. Ann. § 354-A:7 (Counts 1 and 2);
--sexual harassment severe and pervasive enough to create a hostile working environment, in violation of Title VII, 42 U.S.C. § 2000e et seg., and its state law analog, N.H. Rev. Stat. Ann. § 354-A:7 (counts 3 and 4);
--retaliation and constructive discharge for opposing sexual harassment and pursuing accommodation for her disabilities, in violation of Title VII and N.H. Rev. Stat. Ann. § 354-A:19 (Counts 5 and 6); and
--intentional infliction of emotional distress and wrongful discharge under state common law (Counts 7 and 8).
Defendants timely removed the case to this court, invoking federal question and supplemental jurisdiction. 28 U.S.C. §§ 1331(a), 1367 and 1441(a). Before the court is defendants’ motion for summary judgment, in which they argue that the undisputed material facts demonstrate that they are entitled to judgment as a matter of law on all eight counts. After review of the motions, memoranda, exhibits, reply and surreply briefs, the court grants the motion, except as to the retaliation claim in counts 5 and 6.
I. Applicable Legal Standard
Summary judgment is dictated when the “movant shows that there is no genuine dispute as to any material fact and the movant party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A dispute is “genuine” only if it could reasonably be resolved in either party’s favor at trial by a rational fact-finder. Estrada v. Rhode Island, 594 F.3d 56, 62 (1st Cir. 2010). A fact is “material” if it could sway the outcome under applicable law. Id. In analyzing the motion, the court “views all facts and draws all reasonable inferences in the light most favorable to the non-moving” party. Id. “A properly supported motion for summary judgment cannot be defeated by relying upon conclusory allegations, improbable inferences, acrimonious invective or rank speculation.” DeLia v. Verizon Commc'ns Inc. 656 F.3d 1, 3-4 (1st Cir. 2011) (quoting Ahern v. Shinseki, 629 F.3d 49, 54 (1st Cir. 2010)). With this backdrop in place, the court turns to Posteraro’s claims.
II. Factual background
A. Sexual harassment-related comments
Posteraro began working at Citizens in early September 2010 at a bank branch in a supermarket on South Willow Street in Manchester. Defendant Hatzidakis, her supervisor, was the branch manager. Professionally, Posteraro did well in the early stages of her tenure. She reached over 160 percent of her sales goal in the fourth quarter of 2010, in return for which Citizens awarded her with a certificate of achievement for being among the top ten performers in her region. She earned the same accolade for the first quarter of 2011. Hatzidakis similarly recognized Posteraro's accomplishments, commending her demeanor and observing in her evaluation that she “epitomize[s] the type of value added interactions Citizens Bank is looking for . . . [and] also goes above and beyond with customers to guarantee that they will have a pleasant experience and she never over-promises and consistently over-delivers.”
At the same time, however, Posteraro was growing concerned with the behavior of some of her co-workers. Her concerns originally arose during her training period when she was first working in the South Willow Street branch. Posteraro observed “inappropriate” behavior on the part of assistant branch manager Jeff Evans and teller manager Sean Lawrence with which she “was uncomfortable.” (Pltff. Dep. at 75). Specifically, Posteraro said the pair was talking about television shows in the teller line and she “just felt like they weren't behaving the way I thought that people in a bank would be behaving. It was just very - it was kind of goofy behavior and I was a little concerned.” (Id. at 76). The only specific comments that Posteraro recalled that were sexual in nature involved use of the sexually suggestive retort “that's what she said.” Otherwise, Posteraro said, “it was just a general feeling of it wasn’t the professional atmosphere I thought it was going to be.” (Id. at 77). Posteraro reported her observations to her Citizens trainer, and while she couldn’t recall the specifics of what she reported, she didn’t think she particularly complained during her training to either the trainer or anyone else at Citizens about sexually inappropriate behavior. (Id. at 79).
Posteraro witnessed other ribald discussions during the first few months of her employment at the South Willow Street branch. For example, on one occasion in October 2010, Posteraro was within earshot of Evans and a customer “literally talking about pornography.” (Id. at 81). When her facial expression registered disapproval one of the two men said, “Oh, come on. It’s not like you don't watch.” (Id.). Posteraro left the area with her cash drawer and retreated to the back of the office. Posteraro also claims that Evans spoke frequently about a television show called “Skins, ” which Posteraro understood to be a show “all about teens having sex.” (Id. at 95-96).
Additionally, Evans told a story about “a man who had sex with a piece of lawn furniture.” (Id. at 96).
On December 15, 2010, Posteraro emailed Citizens Regional Manager Nancy Towne requesting a transfer to a “traditional” branch, i.e., a stand-alone unit, as opposed to her then-current location within a supermarket. The next day, Towne reminded her of Citizens’ policy that new hires were expected to remain in their hiring location for a minimum of one year. Later that day, Posteraro called Citizens’ Employee Relations office and reported that she was “uncomfortable with her co-workers because they tell a lot of off-color and sexual jokes.” When asked to provide specific examples, Posteraro said that one of her co-workers brought up Playboy Magazine with a customer, who then commented to her, “Oh, come on, you know you like porn, too.” It was these type of comments, Posteraro said, that led to her asking for the transfer the previous day. Citizens requested more detailed information and also opened an official investigation because of a possible violation of its harassment policy.
Employee relations representative Dayna Walters followed up with Posteraro on January 7, 2011. During a roughly one-hour telephone conversation, Posteraro reported, inter alia, that:
--her co-workers frequently would use the “that’s what she said” remark to turn stray comments into sexual innuendo;
--Hatzidakis told her, in response to her complaints of discomfort over the sexual banter, that he gave the other employees permission to keep making such comments ...