EEOC v Fred Fuller Oil Co., et al. 13-CV-295-PB 1/31/14 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Equal Employment Opportunity Commission

v. Civil No. 13-cv-295-PB Opinion No.

Fred Fuller Oil Company, Inc., et al.

MEMORANDUM AND ORDER

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.

I. BACKGROUND1

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]

1 Unless otherwise specified, all facts are taken from the E E O C s complaint. Doc. No. 1.

2 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 3 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

4 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 5 of the workload because of sexual favoritism, her complaints

fell on deaf ears, as managers explained to her that "Fuller

liked the women."

C. Relationship Between Mulcahey and Wilkins

The complaint alleges that Wilkins and Mulcahey had a "very

close friendship." Prior to their employment at Fuller Oil,

Wilkins and Mulcahey had worked together for a different heating

oil supplier. When Wilkins was hired by Fuller Oil, she

recommended to Fuller that he hire Mulcahey and gave him her

resume. Mulcahey's desk was adorned with birthday and mother's

day cards from Wilkins, as well as a picture of Wilkins and

Mulcahey together and a picture of Wilkins's young daughter.

Wilkins and Mulcahey often spent time talking together at work

and saw each other socially outside of work.

The complaint further alleges that Fuller was aware of the

close friendship between the two women. Not only did Mulcahey

display tokens of their relationship on her desk, but Fuller's

request for a "play date" indicated that he knew the women

likely spent time together outside of the office. Beginning

immediately after Wilkins resigned. Fuller frequently asked

Mulcahey if she had heard from Wilkins. He also asked Mulcahey

for Wilkins's personal email address. Once it became obvious 6 that Wilkins was not returning to Fuller Oil, however. Fuller

became cold to Mulcahey and would often refuse to acknowledge

her.

D. Wilkins's EEOC Complaint and Mulcahey's Termination

On October 18, 2011, Wilkins's attorney sent Fuller Oil a

letter notifying the company of her plan to file a

discrimination charge with the New Hampshire Commission for

Human Rights and the EEOC. The letter included a signed copy of

the proposed filing and stated that Wilkins would file the

charge unless Fuller responded - presumably with a settlement

offer - by November 6, 2011.

On November 10, 2011, Billy Fuller - Fred Fuller's son -

terminated Mulcahey, explaining that "it was not working out,"

that her performance was poor "because she was not making enough

phone calls," and that Fred Fuller had made the final decision.

At the time of her termination Mulcahey claims to have been

"performing well, as she always had." When notified of her

termination, Mulcahey angrily said "[t]his is because of

Nic[hole]!" - an allegation to which Billy Fuller did not

respond.

7 II. STANDARD OF REVIEW

"The standard for evaluating a Rule 12(c) motion for

judgment on the pleadings is essentially the same as that for

deciding a Rule 12(b)(6) motion." Pasdon v. City of Peabody,

(1st Cir. 2005). The plaintiff must make

factual allegations sufficient to "state a claim to relief that

is plausible on its face." Bell Atl. Corp. v. Twombly,

(2007). A claim is facially plausible when it pleads

"factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct

alleged. The plausibility standard is not akin to a

^probability requirement,' but it asks for more than a sheer

possibility that a defendant has acted unlawfully." Ashcroft v.

Iqbal,

(2009) (citations omitted). In

deciding such a motion, the court views the facts contained in

the pleadings in the light most favorable to the non-movant and

draws all reasonable inferences in his or her favor. Zipperer

v. Raytheon Co., Inc.,

(1st Cir. 2007).

"Judgment on the pleadings is proper ^only if the uncontested

and properly considered facts conclusively establish the

movant's entitlement to a favorable judgment.'"

(quoting

8 Aponte-Torres v. Univ. of P.R.,

, 54 (1st Cir.

2006)). Put another way, "[t]he motion for a judgment on the

pleadings only has utility when all material allegations of fact

are admitted or not controverted in the pleadings and only

questions of law remain to be decided by the district court."

5C Charles Alan Wright & Arthur R. Miller, Federal Practice and

Procedure § 1367 (Civil 3d ed. 2004).

III. ANALYSIS

Fuller Oil argues that the EEOC has not sufficiently

pleaded hostile work environment and retaliation claims on

Mulcahey's behalf. I address each claim in turn.

A. Hostile Work Environment

Title VII hostile work environment claims provide a cause

of action for employer conduct "so severe or pervasive that it

create[s] a work environment abusive to employees." Harris v.

Forklift Sys., Inc.,

(1993) . To succeed on such

a claim, a plaintiff must show (1) membership in a protected

class; (2) subjection to unwelcome conduct; (3) conduct that is

based on membership in the protected class; (4) conduct that is

sufficiently severe or pervasive so as to alter the terms and

conditions of the plaintiff's employment; (5) conduct that is 9 both objectively and subjectively offensive; and (6) a basis for

employer liability. Medina-Rivera v. MVM, Inc.,

,

136 n.2 (1st Cir. 2013).

Fuller Oil argues that the pleadings do not sufficiently

allege that she was a victim of severe or pervasive harassment.

Although Mulcahey was employed by Fuller Oil for six years, the

company charges, she has identified only six comments that were

addressed to her, none of which involved physical contact or

threats of physical harm. At most, it claims, these comments

included only a single crude gesture - the crotch grab - amid

other statements and actions that could not be considered

objectively offensive. I disagree.

A court must examine allegations of sexual harassment "in

light of the record as a whole and the totality of the

circumstances." O'Rourke v. City of Providence,

(1st Cir. 2001) (citing Meritor Sav. Bank, FSB v. Vinson,

(1986)). Although the relevant test lacks

"mathematical[ ] precis[ion]," courts should examine the

"frequency of the discriminatory conduct; its severity; whether

it is physically threatening or humiliating, or a mere offensive

utterance; and whether it unreasonably interferes with an

employee's work performance." Billings v. Town of Grafton, 515

(1st Cir. 2008) (quoting Harris,

).

Courts "are by no means limited to [these factors], and ^no

single factor is required.'"

(quoting Harris,

) .

The First Circuit has determined that "[e]vidence of the

harassment of third parties can help to prove a legally

cognizable claim of a hostile environment." Hernandez-Loring v.

Universidad Metropolitana,

, 55 n.4 (1st Cir. 2000);

see also Cummings v. Standard Register Co.,

(1st

Cir. 2001). Other circuits also recognize that a court may

consider "similar acts of harassment of which a plaintiff

becomes aware during the course of his or her employment, even

if the harassing acts were directed at others or occurred

outside of the plaintiff's presence." Hawkins v. Anheuser-

Busch, Inc.,

(6th Cir. 2008); Schwapp v. Town

of Avon,

(2d Cir. 1997). See also Jerome

R. Watson & Richard W. Warren, "I Heard It Through the

Grapevine": Evidentiary Challenges in Racially Hostile Work

Environment Litigation,

, 407-13 (2004).

Evidence of widespread sexual favoritism can also contribute to

a hostile work environment. 1 Barbara T. Lindeman, et al.,

Employment Discrimination Law § 20.II.B.5.b (5th ed. 2012) 11 (explaining that such conduct "sends a message that ^engaging in

sexual conduct' or ^sexual solicitations' is required for one

gender to advance in the workplace."). Finally, although the

harassment must be sufficiently severe or pervasive to alter the

terms and conditions of employment, a claimant need not allege

that the harassment made her unable to complete her work. See

Gerald v. Univ. of P.R.,

(1st Cir. 2013); Perez-

Cordero v. Wal-Mart P.R., Inc.,

(1st Cir. 2011)

("[w]e have never required an employee to falter under the

weight of an abusive work environment before his or her claim

becomes actionable.").

In the present case, the EEOC has alleged that Mulcahey was

forced to endure multiple sexually charged comments from Fuller,

that she witnessed Fuller hugging and flirting with female co-

workers on multiple occasions, that she was forced to do a

disproportionate amount of the work because of an environment of

sexual favoritism, and that she knew of Fuller's repeated sexual

harassment of Wilkins. When these allegations are viewed

together, they are more than sufficient to plead a viable claim

that Mulcahey was sexually harassed.

B. Retaliation

Fuller Oil also argues that the EEOC s retaliation claim 12 seeks to extend an unsettled jurisprudence beyond reason. A

traditional Title VII retaliation claim requires a plaintiff to

prove that (1) he or she undertook protected conduct; (2) his or

her employer took adverse action against them; and (3) a causal

nexus exists between the protected conduct and the adverse

action. Medina-Rivera,

.

Mulcahey does not claim to have engaged in protected

conduct prior to her termination. Rather, she asserts that her

close friend Wilkins engaged in protected conduct by threatening

to file, and then filing, an EEOC complaint, and that Fuller Oil

terminated Mulcahey in retaliation for Wilkins having done so.

The viability of Mulcahey's claim thus rests on her relationship

with Wilkins, a third party.

The Supreme Court recently addressed so-called third party

retaliation claims at length in Thompson v. N. Am. Stainless,

LP,

(2011). In Thompson, the petitioner and his

fiancee both worked for respondent NAS. NAS fired the

petitioner three weeks after his fiancee filed a formal

complaint of harassment, and the petitioner then filed a

complaint alleging third party retaliation. Id. at 867. The

Court upheld his claim, reasoning that Title VII retaliation

claims cover "a broad range of employer conduct," prohibiting 13 "any employer action that ^might well have dissuaded a

reasonable worker from making or supporting a charge of

discrimination.'" Id. at 868 (citing Burlington N. & S.F. Ry.

Co. v. White,

(2006)).

Keying in on the logic underpinning Burlington Northern,

the Court found it "obvious" that a "reasonable worker might be

dissuaded from engaging in protected activity" if she knew that

her fiance would be fired. The Court acknowledged potential

line-drawing difficulties in less clear cases, but "decline[d]

to identify a fixed class of relationships for which third-party

reprisals are unlawful."

As guidance, it advised that

"firing a close family member" will almost always meet the

Burlington standard, but that "inflicting a milder reprisal on a

mere acquaintance" will almost never do so.

Beyond that,

the Court expressed "reluctan[ce] to generalize," explaining

that "Title VII's antiretaliation provision is simply not

reducible to a comprehensive set of clear rules."

Rather,

"the significance of any given act of retaliation will often

depend upon the particular circumstances."

(quoting

Burlington Northern,

).

Focusing its argument on Thompson, Fuller Oil argues that

Mulcahey and Wilkins are not close family members, nor is their 14 relationship "sufficiently close so that the termination, or

threatened termination . . . ^well might have dissuaded a

reasonable worker from making or supporting a charge of

discrimination.'" Doc. No. 7-1. I reject this argument on the

ground that it is premature.

The complaint alleges that Mulcahey was a close friend of

Wilkins, the individual who engaged in the protected conduct.

The two women worked together at a prior company, and Wilkins

was influential in procuring Mulcahey's job with Fuller Oil. On

Mulcahey's desk at work she displayed birthday and mother's day

cards from Wilkins alongside pictures of Wilkins's daughter and

the two women together. The complaint also alleges that Fred

Fuller knew of this close friendship. Fuller knew that the two

women spoke frequently and spent time together out of work - as

demonstrated by his statement about setting up a "play date"

with the two women and Wilkins's daughter. When Fuller wanted

to contact Wilkins, he asked Mulcahey about her whereabouts and

requested her personal email address from Mulcahey. This

relationship, as pled, exists somewhere in the fact-specific

gray area between close friend and casual acquaintance.

Although I could not say that such a friendship definitively

supports a successful claim, I also cannot say as a matter of 15 law that it does not. I may revisit this issue upon a proper

motion after discovery. See Lard v. Ala. Alcoholic Beverage

Control Bd., No. 2:12-CV-452-WHA,

, at *4 (M.D.

Ala. Nov. 28, 2012).

Fuller Oil argues in the alternative that the retaliation

claim is defective because it fails to allege any facts beyond

"sheer speculation" to support a causal relationship between

Wilkins's protected conduct and Mulcahey's termination. Recent

precedent affirms that retaliation claims must be proven

according to principles of but-for causation, Univ. of Tex. Sw.

Med. Ctr. v. Nassar,

(2013), but the E E O C s

allegations of close temporal proximity - a matter of weeks -

between Wilkins's threat of filing a complaint and Fuller Oil's

decision to fire Mulcahey, when viewed together with the other

evidence identified in the complaint, is sufficient to allow

this claim to survive a motion for judgment on the pleadings.

See, e.g., Calero-Cerezo v. U.S. Dep't of Justice,

(1st Cir. 2004) (a one month interval can provide

sufficient temporal proximity to establish a prima facie case of

retaliation).

16 IV. CONCLUSION

For the reasons discussed above, I deny Fuller Oil's motion for

judgment on the pleadings. Doc. No. 7.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

January 31, 2014

cc: Elizabeth A. Grossman, Esq. Robert D. Rose, Esq. Markus L. Penzel, Esq. Leslie H. Johnson, Esq. Martha Van Oot, Esq. K. Joshua Scott, Esq.

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