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FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS. Hon. William G. Young, U.S. District Judge.
Vacated and Remanded.
E. Green, with whom Todd & Weld LLP, was on brief for
Batten, with whom Rebecca J. Sivitz and Proskauer Rose LLP,
were on brief for appellees.
Torruella, Lipez, and Thompson, Circuit Judges.
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.
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).
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. 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
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.
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.
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. He suggested
that Tang " combine [her] 'ass' with [his]
'ass' and " ma[de] obscene coupling indications
with his hands."
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
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."
had two additional meetings with Nackley in February 2011. In
the first meeting, which took place in early February,
Nackley gave Tang a Performance
Improvement Plan (" PIP" ). 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."
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."  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.
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 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."
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."  In May 2011, Tang
reported these findings to human resources, but Citizens did
not pursue her claims.
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 ...