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Xiaoyan Tang v. Citizens Bank, N.A.

United States Court of Appeals, First Circuit

May 19, 2016

XIAOYAN TANG, Plaintiff, Appellant,
CITIZENS BANK, N.A., a/k/a Citizens, N.A., a/k/a Citizens, a/k/a RBS Citizens, N.A.; RBS CITIZENS, N.A.; ROYAL BANK OF SCOTLAND GROUP, a/k/a RBS; DAVID NACKLEY, Defendants, Appellees

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          Vacated and Remanded.

         Julie E. Green, with whom Todd & Weld LLP, was on brief for appellant.

         Mark W. Batten, with whom Rebecca J. Sivitz and Proskauer Rose LLP, were on brief for appellees.

         Before Torruella, Lipez, and Thompson, Circuit Judges.


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          TORRUELLA, Circuit Judge.

          Xiaoyan " Ivy" Tang was terminated from her position in the Technology Banking Group at Citizens Bank, N.A. (" Citizens" ) in June 2011. She sued Citizens and her supervisor, David Nackley, then the Senior Vice President of the Technology Banking Group, bringing numerous claims stemming from her termination. Relevant here are her claims for retaliation and sexual harassment under Title VII of the Civil Rights Act of 1964 (" Title VII" ), 42 U.S.C. § § 2000e et seq., and Massachusetts General Laws Chapter 151B (" Chapter 151B" ). The United States District Court for the District of Massachusetts entered summary judgment in favor of Citizens and Nackley, and Tang now appeals that decision. We vacate and remand.


         A. Factual Background

          " We recite the facts in the light most favorable to [Tang] as the non-moving party." Pérez-Cordero v. Wal-Mart P.R., Inc., 656 F.3d 19, 20 (1st Cir. 2011).

         Tang began working in the Commercial Real Estate Group of Citizens in October 2007 in Boston. After applying for a position as a portfolio manager in the Technology Banking Group, Tang interviewed with Nackley in early 2010.[1] Nackley had arranged the interview at a restaurant that Tang characterized as a popular dating spot. During the interview, Tang was surprised by Nackley's focus on personal matters and other topics not relevant to the transfer. Tang, who is Chinese, recalled that Nackley expressed his views that Asian women are obedient and mentioned two live-in au pairs whom he had hired from Thailand. He told Tang that the Thai au pairs did not wear sufficiently revealing swimsuits and also offered to teach Tang to golf. Nackley asked whether Tang was married and, after she said no, enquired where she looked to find a boyfriend. In response, Tang told Nackley that this was her business. She does not recall how he responded to this comment.[2]

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          At the end of the interview, Tang showed Nackley examples of her work from the Commercial Real Estate Group. Nackley described this work as " excellent" and encouraged her to apply for a position as a senior portfolio manager. Although Tang felt uncomfortable during the interview, she did not believe she would be working directly with Nackley and was extremely excited for the opportunity to work in technology and capital markets, her longtime career goals. At that time, she did not share her concerns about Nackley's conduct with anyone. Tang pursued the transfer and interviewed with other members of the Technology Banking Group.

         Tang began working as a portfolio manager in the Technology Banking Group in May 2010. Nackley typically worked from his home office in Connecticut and visited the Boston office on a weekly basis. In July 2010, he met with Tang for a semi-annual performance review at the office. According to Tang, however, Nackley did not discuss Tang's work during the meeting. Nackley brought up his two Thai au pairs, telling Tang what they wore at his swimming pool and asking what type of swimsuit she preferred. He again stated that he wished his au pairs wore more revealing swimsuits and reiterated that he thought Asian women were obedient. He also discussed the immigration status of the Thai au pairs. Tang is not a United States citizen, and Nackley indicated that " he had great control over" her immigration status and future career at Citizens. Nackley again asked Tang where she found men and queried which dating websites she used.

         During this meeting, Nackley wrote the word " assume" on a piece of paper and stated it could be broken into " ass," " u," and " me." He then stood up, gestured to Tang's " private area," and said, " This is your ass, this is my ass." Nackley drew closer to Tang and became very excited.[3] He suggested that Tang " combine [her] 'ass' with [his] 'ass' and " ma[de] obscene coupling indications with his hands."

         Following this conversation, Tang felt deeply uncomfortable in Nackley's presence and avoided interacting with him. Although Nackley never directly propositioned Tang, he " made it very clear" he wanted a relationship with her: on various occasions when Nackley encountered Tang in the office, he would broach the topic of his Thai au pairs and their swimming attire. He would offer to teach her to golf, leer at her, and repeat that he thought Asian women were obedient.

         Tang asserts that Nackley's attitude toward her changed dramatically once he realized she was not responding to his advances. In January 2011, Tang was surprised to receive a negative performance review from Nackley. The review indicated that " development [was] required" in various areas, that Tang " need[ed] to focus on being able to work [i]ndependently and complete the required tasks . . . without assistance/ intervention," and that " [h]er level of performance in terms of deal completion times is well below that of her peers." Concerned that she would lose her job if she refused to endorse the evaluation, Tang signed the review, stating that she " appreciate[d] the constructive advice . . . and look[ed] forward to utilizing it in the coming year."

         Tang had two additional meetings with Nackley in February 2011. In the first meeting, which took place in early February, Nackley gave Tang a Performance

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Improvement Plan (" PIP" ).[4] The PIP reiterated many of the concerns raised in Tang's January review and established steps that Tang needed to achieve " to improve [her] performance deficiencies." Tang asserts that Nackley became angry and shouted at her during this meeting, telling her to " shut [her] mouth," and stating that she did " not have any rights." [5]

         In the second February meeting, Nackley again became angry with Tang. In his declaration, Nackley asserts that he had recently learned that Tang was dating Mark Atkin, an executive at a company that was a client of the bank, and the meeting " was solely for the purpose of preventing or eliminating any conflict of interest and protecting the integrity of the bank's business." To the contrary, Tang asserts that Nackley had known about Atkin since February 2010 and that neither Citizens nor Nackley had ever required that she disclose her relationship with him. During the meeting, Nackley " waved his arms" as if to " beat" Tang and threatened to " kick [her] out of the bank" if she did not identify Atkin. Appalled by Nackley's behavior and aggressive questioning, Tang became emotional and " begged" Nackley to let her leave. A human resources representative joined the meeting by telephone and also pressured Tang to disclose her relationship with Atkin. Defeated, Tang told them that she had broken off the relationship. The meeting was adjourned, and, as Nackley left, he informed Tang, " You are being watched." [6] Tang later observed Nackley mimicking her emotional responses during the meeting to two of Tang's coworkers, Relationship Manager William Clossey and senior Portfolio Manager Jennifer Perry.

         On February 14, 2011, Tang returned the PIP with a handwritten note stating that she " disagree[d] with the Performance Improvement Plan" and " felt the plan [wa]s the result of discriminatory treatment based on my race, gender and national origin." That same day, Tang called the human resources hotline to report Nackley's behavior. A human resources representative, Brenda Cosgrove, called Tang requesting more information and Tang responded by letter dated February 27, 2011. In her letter, Tang detailed Nackley's comments regarding his Thai au pairs and the purported obedience of Asian women, his constant questions about Tang's relationships, and the " assume" conversation in July 2010. She also asserted that her " work has been highly professional and competent" and that the PIP was " false, outrageous, and indeed, ludicrous." Tang declined Cosgrove's suggestion that the two set up a time to speak, instead requesting that all their communications be in writing. Cosgrove informed Tang that she would be " unable to conduct a proper investigation if I am not able to speak with you," and that, if Tang continued to refuse, Cosgrove would " have to proceed with [the] investigation without the benefit of [Tang's] input."

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Tang still refused, and Cosgrove did not send Tang any further questions. On March 31, 2011, Cosgrove issued an investigative summary finding that Tang's " allegations were unsubstantiated."

         Unhappy with Cosgrove's treatment of her complaint, Tang conducted her own investigation and spoke to a former colleague who described Nackley as " notorious for disrespect[ing] women." [7] In May 2011, Tang reported these findings to human resources, but Citizens did not pursue her claims.

         On May 25, 2011, Tang received a Final Written Warning (" FWW" ) from Nackley stating that Tang " failed to demonstrate improvement" since receiving her PIP. In mid-June, Nackley learned that Tang " had made a material mistake in violation of ...

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