Caruso v. Delta Air Lines, Inc.

United States District Court

District of Massachusetts

)

Sara Caruso, )

)

Plaintiff, )

)

v. ) Civil Action No.

) 20-10180-NMG

Delta Air Lines, Inc., )

)

Defendant. )

)

MEMORANDUM & ORDER

GORTON, J.

This case arises out of the alleged sexual assault of Sara

Caruso (“Caruso” or “plaintiff”). Caruso claims that her

employer, Delta Air Lines (“Delta” or “defendant”) violated both

state and federal law by discriminating against her on the basis

of sex and disability stemming from the alleged assault,

retaliating against her, interfering with her rights, and aiding

and abetting the alleged assailant. Pending before the Court is

the defendant’s motion for summary judgment.

I. Factual Background

Caruso began working for Delta in 2016 as a flight

attendant based out of Logan International Airport in Boston,

Massachusetts.

On August 3, 2018, Caruso served as a flight attendant on

Delta Flight 1171 from Boston to Dallas, Texas. The flight

crew, including Caruso, had an overnight layover in Dallas and a

next day departure. First Officer James Lucas (“Lucas”) was a

member that flight crew.

Upon their arrival in Dallas, Caruso, Lucas and two

colleagues went out for dinner and drinks. After a few hours,

the group returned to the Hyatt Hotel (“the Hyatt”) where Delta

had reserved a block of rooms for the crew. Caruso has no

memory of what happened after returning to the hotel.

Lucas, however, remembers. Although his account of the

evening events has changed over time, he ultimately testified

that, after he and Caruso assisted a colleague to her room, he

and Caruso entered her room. According to Lucas, Caruso was

“under the influence” of alcohol. He reports that he and Caruso

subsequently engaged in various sexual acts and Lucas eventually

returned to his hotel room to get a condom so that he and Caruso

could have intercourse. Upon his return to Caruso’s room, Lucas

testified that he found Caruso sitting in the shower, and

clearly intoxicated. He then observed Caruso vomit, assisted

her in the shower, put her to bed and ultimately left her room.

During the early hours of the following morning, Caruso called

Delta Operations Control Center (“OCC”) and, sounding

intoxicated, asked about Lucas’ whereabouts. Caruso was also

observed walking in the hotel hallways in her underwear, looking

for Lucas.

The next morning, Caruso failed to report to the hotel

lobby on time for the shuttle to the airport for their return

flight. After a colleague went to Caruso’s room and helped her

get dressed, Caruso travelled to the airport with the rest of

the crew. Once there, she was met by a Delta representative who

administered a breathalyzer test. Caruso tested over the blood

alcohol content limit set by the United States Department of

Transportation (“DOT”) for “safety-sensitive” positions integral

to the safe operation of passenger aircrafts. The DOT and the

Federal Association Administration classify flight attendants as

“safety-sensitive” positions and, consequently, Caruso was not

allowed to work as scheduled. Caruso returned to Boston under

non-work status.

Upon her arrival in Boston, Caruso’s supervisor notified

her that she was suspended from Delta due to her failed

breathalyzer test and would be subject to Delta’s Employee

Assistance Program (“EAP”). That program involves the

evaluation and treatment of flight crew members who violate

inter alia, the relevant alcohol policies. Later that day,

Caruso went to a hospital emergency room in Boston, where she

underwent a sexual assault exam. Caruso asserts that she

notified Delta on August 4, 2018 that her alleged assailant was

Lucas, although Delta contends that the company was not so

informed until months later.

On August 5th, Caruso notified her supervisor about her

trip to the hospital and her completion of a sexual assault

exam. Caruso’s supervisor relayed the information to personnel

in Delta’s Human Resources Department which subsequently

initiated an investigation into Caruso’s alleged sexual assault.

As part of that investigation, Delta obtained statements from

Caruso’s colleagues, including Lucas, who had socialized with

her on the evening of August 3rd. Delta also attempted to

obtain key card swipes for Caruso’s room at the Hyatt and

inquired as to whether any video was available from the hotel.

According to Delta personnel, Hyatt staff reported that the

information sought could not be released before the alleged

victim filed a police report with the Dallas Police Department

(“DPD”). Caruso had not done so at that point.

Back in Boston, Caruso underwent an evaluation by an

independent substance abuse professional as part of Delta’s EAP.

Based upon that evaluation, it was recommended that Caruso

attend a 30-day inpatient treatment program. Caruso was

required to complete that program prior to resuming her work as

a flight attendant under Delta policy and DOT regulations.

Caruso completed the program in September, 2018, and thereafter

requested and received approval for a medical leave of absence

from Delta. The parties dispute the extent of the support that

treatment program staff provided to Caruso and whether she was

encouraged to pursue legal action against her alleged assailant.

After Caruso left the treatment program, she reported the

alleged assault to the DPD. The parties dispute whether that

was the first time the DPD was notified of the incident.

Nevertheless, a detective subsequently attempted to acquire

video footage from the Hyatt for the evening of August 3rd but

was unable to do so because the hotel only maintained video

surveillance for 20-25 days.

While Caruso was still on medical leave, in December, 2018,

Delta received a copy of a charge of discrimination she had

filed with the Massachusetts Commission Against Discrimination

(“MCAD”). According to Delta, that was the first time Caruso

identified Lucas as her assailant. Delta subsequently

interviewed Lucas in April, 2019 regarding the allegations in

that charge. He told interviewers that he and Caruso had

engaged in consensual touching on August 3, 2018, but did not

have intercourse. The interviewers found Lucas credible and he

was not disciplined. The DPD later closed its own investigation

due to insufficient evidence.

In January, 2019, in preparation for her return to work,

counsel for Caruso contacted Delta to request workplace

accommodations in light of the alleged assault. In the

aftermath of the incident, Caruso was diagnosed by a physician

to have post-traumatic stress disorder. Due to that diagnosis,

Caruso requested that Delta refrain from assigning her to work

with or to be assigned to stay in the same overnight destination

as any male Delta employee who had worked on Flight 1171 and to

reassign her to a new supervisor. In May, 2019, an interactive

discussion with respect to those requests occurred. Caruso was

assigned to a new supervisor but was told that Delta’s system

for assigning crew members to flights would not allow the

company to comply with Caruso’s first request, at least in part

because Delta used a seniority-based bidding system to assign

flight attendants to flights. After the meeting, Caruso agreed

with a Delta representative that it was her responsibility to

avoid working as a flight crew member on the types of aircraft

that Lucas was qualified to fly.

Caruso returned to work in June, 2019 with those

accommodations in place. After she resumed work, Caruso sent a

message to colleagues via social media requesting that they

inform her if they learned that Lucas was going to be in

Massachusetts so that she could serve him with legal process.

The parties dispute whether a Delta employee verbally

reprimanded Caruso for doing so.

On July 18, 2019 counsel for Caruso submitted a second

charge to the MCAD claiming constructive discharge. Less than

one week later, Delta received a letter from counsel asserting

that unless Delta granted Caruso’s requested accommodation

within two days, she would consider herself constructively

discharged. Before that letter was sent, Caruso had accepted a

conditional job offer and reported to her new employer that her

last date at Delta was July 26, 2019.

II. Procedural History

In December, 2019, Caruso filed suit in state court

asserting nine counts against Delta as follows: for sex

discrimination in violation of M.G.L. c. 151B, § 4(1),(16A)

(Count 1) and Title VII of the Civil Rights Act of 1964 (“Title

VII”), 42 U.S.C. § 2000e-2 (Count 2); for disability

discrimination in violation of M.G.L. c. 151B, § 4(16) (Count 3)

and the Americans with Disabilities Act (“ADA”), 42 U.S.C. §

12112 (Count 4); for retaliation in violation of M.G.L. c. 151B,

§ 4(4) (Count 5), for violations of Title VII, U.S.C. § 2000e-

3(a) (Count 8), and the ADA, 42 U.S.C. § 12203(a)-(b) (Count 9);

for interference with rights in violation of M.G.L. c. 151B, §

4(4A) (Count 6); and for aiding and abetting in violation of

M.G.L. c. 151B, § 4(5) (Count 7).

Defendant removed the case to this Court in January, 2020,

on diversity and federal question grounds, and, in March, 2021,

filed the instant motion for summary judgment on all claims.

III. Motion for Summary Judgment

A. Legal Standard

The role of summary judgment is “to pierce the pleadings

and to assess the proof in order to see whether there is a

genuine need for trial.” Mesnick v. Gen. Elec. Co., 950 F.2d

816, 822 (1st Cir. 1991) (quoting Garside v. Osco Drug, Inc.,

895 F.2d 46, 50 (1st Cir. 1990)). The burden is on the moving

party to show, through the pleadings, discovery and affidavits,

“that there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a).

A fact is material if it “might affect the outcome of the

suit under the governing law....” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986). A genuine issue of material

fact exists where the evidence with respect to the material fact

in dispute “is such that a reasonable jury could return a

verdict for the nonmoving party.” Id.

If the moving party satisfies its burden, the burden shifts

to the nonmoving party to set forth specific facts showing that

there is a genuine, triable issue. Celotex Corp. v. Catrett, 477

U.S. 317, 324 (1986). The Court must view the entire record in

the light most favorable to the non-moving party and make all

reasonable inferences in that party's favor. O'Connor v.

Steeves, 994 F.2d 905, 907 (1st Cir. 1993). Summary judgment is

appropriate if, after viewing the record in the non-moving

party's favor, the Court determines that no genuine issue of

material fact exists and that the moving party is entitled to

judgment as a matter of law. Celotex Corp., 477 U.S. at 322-23.

B. Application

1. Sex discrimination claims (Counts 1 and 2)

Both Title VII and Chapter 151B prohibit employers from

discriminating against employees based upon sex. 42 U.S.C. §

2000e-2(a)(1); M.G.L. c. 151B, § 4. Those provisions may be

violated by subjecting an employee to an abusive or hostile work

environment, “also known as sexual harassment.” Xiaoyan Tang v.

Citizens Bank, N.A., 821 F.3d 206, 215 (1st Cir. 2016). To

establish a claim for sexual harassment, a plaintiff must show:

(1) that she (or he) is a member of a protected class;

(2) that she was subjected to unwelcome sexual

harassment; (3) that the harassment was based upon

sex; (4) that the harassment was sufficiently severe

or pervasive so as to alter the conditions of

plaintiff’s employment and create an abusive work

environment; (5) that sexually objectionable conduct

was both objectively and subjectively offensive, such

that a reasonable person would find it hostile or

abusive and the victim in fact did perceive it to be

so; and (6) that some basis for employer liability has

been established.

Ponte v. Steelcase, Inc., 741 F.3d 310, 320 (1st Cir. 2014); see

also id. at 319 n.9 (acknowledging that the same legal standard

applies to claims for hostile work environment brought under

both state and federal law).

The parties vociferously dispute, inter alia, the sixth

element, i.e. whether Delta is liable for Lucas’ alleged

conduct. Due to the centrality of that issue to the ultimate

determination of liability, the Court considers that last

element first.

Under both state and federal law, distinct standards apply

to establish employer liability for a hostile work environment

depending on whether the discriminator is a supervisor or a co-

worker of the victim. If a supervisor is responsible for

creating a hostile work environment, the employer is generally

liable for the supervisor’s misconduct. Noviello v. City of

Bos., 398 F.3d 76, 94-95 (1st Cir. 2005) (noting the

availability of certain affirmative defenses under federal but

not state law). In contrast, under both Title VII and Chapter

151B, when a co-worker, rather than a supervisor, is responsible

for creating a hostile work environment, the employer is liable

for the co-worker’s misconduct only if the harassment is

causally connected to the employer’s negligence. Forsythe v.

Wayfair Inc., No. 21-1095, 2022 WL 592888, at *3 (1st Cir. Feb.

28, 2022).

The central issue in determining the supervisory status of

an employee is “the degree of authority possessed by the

putative supervisor.” Velazquez-Perez v. Devs. Diversified

Realty Corp., 753 F.3d 265, 271 (quotation omitted).

This authority primarily consists of the power to

hire, fire, demote, promote, transfer, or discipline

an employee. Without some modicum of this authority,

a harasser cannot qualify as a supervisor for purposes

of imputing vicarious liability to the employer in a

Title VII case, but, rather, should be regarded as an

ordinary coworker.

Noviello, 398 F.3d at 96. Although the question of an

employee’s supervisory status is factual in nature and thus

should generally be determined by the fact finder, here, Caruso

has not presented facts sufficient to permit a finding that

Lucas was her supervisor.

Caruso refutes that conclusion by asserting that Delta

flight captains have operational authority over all flight crew

members, including flight attendants, during the pendency of a

flight and emphasizing that Delta’s employee manual requires

crewmembers, including flight attendants, to “honor” the orders

of captains during flights. Caruso also notes that captains can

delegate certain roles to first officers. She contends that,

due to that potential delegation, Lucas, as a first officer,

thereby acquired authority over her.

That argument is unavailing. Lucas did not serve in a

supervisory role vis-à-vis Caruso within the statutory context

of Title VII or Chapter 151B because he had no authority “over

any tangible employment actions” affecting her. Velazquez-Perez

v. Devs. Diversified Realty Corp., 753 F.3d 265, 272 (1st Cir.

2014). He did not determine her professional advancement, work

schedule or assignments. At most, he possessed

some limited responsibility to direct [Caruso] in

certain [in-flight] protocols, a type of

responsibility rejected in [Vance v. Ball State Univ.,

570 U.S. 421, 446 (2013),] as insufficient to make one

a supervisor.

Velazquez-Perez, 753 F.3d at 272. Nor has Caruso presented

evidence of additional factors,

such as the authority to assign work, impose

particularly exacting scrutiny, or a responsibility to

protect other workers from sexual harassment

that would amount to supervisory status. Romero v. McCormick &

Schmick Rest. Corp., No. 1:18-CV-10324-IT, 2020 WL 1430530, at

*6 (D. Mass. Mar. 24, 2020). Lucas did not have the requisite

modicum of authority and he was therefore Caruso’s co-worker,

rather than her supervisor.

Based upon that conclusion, Delta can be liable for Lucas’

alleged misconduct only if the purported harassment is causally

connected to the employer’s negligence.

Typically, this involves a showing that the employer

knew or should have known about the harassment, yet

failed to take prompt action to stop it.

Noviello, 398 F.3d at 95. Generally, determining what

constitutes such action “requires the sort of case-specific,

fact-intensive analysis best left to a jury.” Forrest v. Brinker

Int'l Payroll Co., LP, 511 F.3d 225, 232 (1st Cir. 2007). Here,

however, the undisputed facts reveal that no reasonable jury

could conclude that Delta’s response failed to satisfy that

criterion which amounts to a negligence standard. See Toussaint

v. Brigham & Women’s Hosp., Inc., 166 F. Supp. 3d 110, 117 (D.

Mass. 2015) (“The First Circuit has held that employer liability

for co-worker harassment is essentially a question of

negligence.”).

After learning of Caruso’s alleged assault, Delta solicited

statements from all Delta employees who socialized with her on

the subject evening, including Lucas, and attempted to secure

extrinsic evidence from the hotel within days. Similarly, after

receiving notification of Caruso’s MCAD charge of

discrimination, Delta interviewed Lucas in accordance with

corporate policy. In contrast to circumstances where courts

have found that employers failed to take “prompt and effective

remedial action” in response to allegations of sexual

harassment, Delta took timely steps to investigate the incident.

Noviello, 398 F.3d at 83.

This is also not a case in which:

the investigation involved the employer choosing to do

nothing more than ask the accused about those

allegations and then credit self-serving denials.

Forsythe, at *5. The record indicates that additional

investigatory steps were unavailable to Delta in the wake of

Caruso’s alleged assault, particularly in light of the

inaccessibility of key card swipes and video footage from the

Hyatt.

Caruso draws attention to the inconsistencies between

Lucas’ initial statement and his subsequent interview as grounds

for Delta’s investigatory negligence. Those inconsistencies

alone, however, are insufficient to demonstrate that Delta

failed to take remedial actions, particularly where Caruso’s own

accounts of the evening were incomplete and inconsistent, and

extrinsic evidence was unavailable. Moreover, whatever delay

occurred between Delta learning the identity of Lucas as the

alleged assailant and his interview does not amount to

negligence because there is no evidence that Delta “acted in a

dilatory manner” Noviello, 398 F.3d at 97. More importantly,

there was no possibility that Caruso would be subject to further

harassment by Lucas during that period because she was on leave.

Based upon the investigatory measures taken, Delta

ultimately found Caruso’s claims unfounded and, as such, the

company was “not obligated to punish [Lucas] for unsubstantiated

claims of harassment.” Walker v. City of Holyoke, 523 F. Supp.

2d 86, 109 (D. Mass. 2007) (citing Swentek v. USAIR, Inc., 830

F.2d 552, 558 (4th Cir.1987)). In contradiction of Caruso’s

assertions, Delta met its statutory requirement for remedial

steps and the alleged harassment was not causally connected to

any purported negligence of Delta. Accordingly, defendant’s

motion for summary judgment on Counts 1 and 2 is ALLOWED.

2. Disability discrimination (Counts 3 and 4)

Caruso asserts that Delta discriminated against her by

failing to accommodate her disability or to engage in an

interactive process to provide such accommodations, in violation

of both state and federal law. The Court focuses first on

Caruso’s claim of failure to accommodate because her assertion

of liability for failure to engage is derivative. See Together

Emps. v. Mass Gen. Brigham Inc., No. CV 21-11686-FDS, 2021 WL

5234394, at *14 n.14 (D. Mass. Nov. 10, 2021) (“Courts do not

reach the issue of failure to engage in an interactive process

when plaintiff cannot demonstrate that the requested

accommodation was reasonable under the circumstances.” (citing

Jones v. Nationwide Life Ins. Co., 696 F.3d 78, 91 (1st Cir.

2012)). Thus, if Caruso’s failure to accommodate claim cannot

stand, she has no basis to advance that alternative theory.

Claims under M.G.L. c. 151B and the ADA are analyzed under the

same framework. See Jones, 696 F.3d at 86.

To prevail at the summary judgment stage for failure to

accommodate, Caruso must present sufficient evidence that, at

the time of the alleged discrimination: (1) she was disabled

within the statutory definition, (2) she could perform the job's

essential functions either with or without a reasonable

accommodation, and (3) Delta knew of her disability but failed

to make a reasonable accommodation. See Audette v. Town of

Plymouth, MA, 858 F.3d 13, 20 (1st Cir. 2017). If Caruso meets

all three of those elements, the burden shifts to Delta to

articulate a legitimate, non-discriminatory reason for its

employment decision and to produce credible evidence to show

that the reason advanced was the real reason. See generally

Freadman v. Metro. Prop. & Cas. Ins. Co., 484 F.3d 91, 104 (1st

Cir. 2007). If Delta offers a reason, the burden returns to

Caruso, who must then provide evidence to establish that Delta’s

non-discriminatory justification was mere pretext, cloaking

discriminatory animus. See id.

The parties dispute neither that Caruso was disabled, as

statutorily defined, nor that she could perform the essential

functions of her job, with or without accommodation. They

disagree only as to the third element that Caruso must satisfy:

that Delta reasonably accommodated her disability.

Reasonable accommodations may include

job restructuring, part-time or modified work

schedules, reassignment to a vacant position...and

other similar accommodations for individuals with

disabilities.

42 U.S.C. § 12111(9)(B). Generally, the determination of

reasonableness is fact-intensive and “must be assessed on a

case-by-case basis.” Trahan v. Wayfair Maine, LLC, 957 F.3d 54,

65 (1st Cir. 2020). However, in US Airways, Inc. v. Barnett,

535 U.S. 391, 395 (2002), the United States Supreme Court

articulated a distinct rule when a disabled employee seeks an

accommodation under the ADA within a seniority-based bidding

system, such as the one Delta uses to assign flight attendants,

including Caruso, to flights. The Supreme Court held that, in

those circumstances, the ADA’s requirement of reasonable

accommodation does not require an employer to alter such a

system to accommodate a disabled employee unless the employee

show[s] that special circumstances warrant a finding

that, despite the presence of a seniority system

(which the ADA may not trump in the run of cases), the

requested accommodation is reasonable on the

particular facts.

Id. at 405. Those circumstances may include the employer's

retention of the right to change the seniority system

unilaterally, its exercise of that right “fairly frequently” or

the frequent use of exceptions to that system. Id.; see also

Tobin v. Liberty Mut. Ins. Co., 553 F.3d 121, 137 (1st Cir.

2009). In the context of a seniority-based assignment system,

therefore, the plaintiff bears the burden of proving that the

requested accommodation is reasonable under the ADA, rebutting

an assumption that the system will prevail. US Airways, Inc.,

535 U.S. at 405; see also Eustace v. Springfield Pub. Sch., 463

F. Supp. 3d 87, 104 (D. Mass. 2020).

Caruso has failed to rebut that presumption and, thus, her

claim for failure to accommodate cannot survive Delta’s pending

motion. She has provided no evidence of circumstances that

would justify carving out an exception to the general rule

articulated in US Airways, Inc., 535 U.S. at 405. Her vague

assertion that the seniority system should not control based

upon Delta’s size and financial resources are insufficient for

that purpose and have not been recognized as salient in the

governing case law. Caruso fails even to acknowledge the

deference courts have shown consistently to seniority-based

assignment systems in her opposition to defendant’s motion for

summary judgment.

Accordingly, Caruso’s claim for failure to accommodate

under state and federal disability law is foreclosed, as is her

claim for failure to engage in an interactive process. Delta’s

motion for summary judgment on Courts 3 and 4 will, therefore,

be ALLOWED.

3. Retaliation claims (Counts 5, 8 and 9)

In addition to proscribing workplace harassment and

discrimination, Chapter 151B, Title VII and the ADA prohibit an

employer from retaliating against an employee for opposing an

employment practice deemed unlawful under those provisions. See

M.G.L. c. 151B, § 4; 42 U.S.C. § 2000e-3(a); 42 U.S.C. §

12203(a)-(b).

In order to establish a prima facie case of

retaliation, [an employee] must show that (1) she

engaged in protected conduct; (2) she was subjected to

an adverse employment action; and (3) the adverse

employment action is causally linked to the protected

conduct.

Rivera-Rivera v. Medina & Medina, Inc., 898 F.3d 77, 94 (1st

Cir. 2018) (citation omitted); see also Cherkaoui v. City of

Quincy, 877 F.3d 14, 28 (1st Cir. 2017) (applying same standard

to both Massachusetts state and federal claims for retaliation).

Caruso’s allegations of retaliation are asserted only in the

broadest of strokes in her original complaint. She more clearly

articulates the bases of her claims in her opposition to

defendant’s pending motion. Caruso contends that the protected

conduct at issue was her submission of complaints to both Delta

and the MCAD arising from her alleged assault and her request

for workplace accommodations. The adverse employment actions to

which Caruso claims she was subject are the reprimand she

purportedly received after requesting assistance from colleagues

about the whereabouts of Lucas and her constructive discharge.

The parties do not dispute that Caruso’s conduct was

protected, rather they disagree as to whether she was subject to

an adverse employment action because of that conduct. An

adverse action

is typically one that alters a term or condition of

employment, such as demotions, disadvantageous

transfers, or refusals to promote.

Fournier v. Massachusetts, No. 20-2134, 2021 WL 4191942, at *3

(1st Cir. Sept. 15, 2021). Nevertheless, the relevant statutes

have also been applied more generally to prohibit

all employer actions that would have been materially

adverse to a reasonable employee, defined as actions

that are harmful to the point that they could well

dissuade a reasonable worker from making or supporting

a charge of discrimination.

Rivera-Rivera, at 95 (quotations omitted); see also Burlington

N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 64 (2006) (“[T]he

antiretaliation provision...is not limited to actions that

affect the terms and conditions of employment.”). However, “for

retaliatory action to be material, it must produce a

significant, not trivial harm.” Sepulveda-Vargas v. Caribbean

Restaurants, LLC, 888 F.3d 549, 555 (1st Cir. 2018) (quotation

omitted). It is an “objective assessment” evaluated from “the

perspective of a reasonable person in the plaintiff's position,

considering all the circumstances.” Rivera-Rivera, at 95

(quotation omitted).

The Court first addresses whether the reprimand Caruso

allegedly received constituted an adverse employment action.

The First Circuit has recognized that a reprimand may

constitute an adverse action where it carries tangible

employment consequences, such as termination,

suspension, or a change in compensation and other

benefits.

Shaffer v. IEP Techs., LLC, No. CV 18-10160-DPW, 2021 WL

3616072, at *13 (D. Mass. Aug. 16, 2021) (citing Billings v.

Town of Grafton, 515 F.3d 39, 54-55 (1st Cir. 2008)). An

actionable reprimand that imposes such consequences is in

contrast to a reprimand that is

merely directed at correcting some workplace behavior

that management perceive[s] as needing correction

which generally is not actionable. Bhatti v. Trs. of Bos. Univ.,

659 F.3d 64, 73 (1st Cir. 2011). Here, Caruso has proffered no

evidence to suggest tangible consequences associated with the

purported reprimand. In her opposition to defendant’s pending

motion, Caruso claims for the first time that Delta forced her

to delete the message she sent to her colleagues but, even

assuming arguendo that forcing Caruso to do so would amount to a

tangible consequence, the record is devoid of evidence to

support that assertion.

In Billings v. Town of Grafton, 515 F.3d 39, 42 (1st Cir.

2008), the First Circuit Court of Appeals recognized that a

reprimand lacking tangible consequences, in conjunction with

other purportedly retaliatory conduct, can, in certain

circumstances, constitute an adverse employment action. The

reprimand at issue in that case, however, involved a threat of

further, more serious discipline. The Court held that an

employee facing such a threat “might well choose not to proceed

with the [discrimination] litigation”. Id. at 55. In contrast

to the circumstances in Billings, the reprimand that Caruso

received involved no threat of further action and resulted in

none. Thus, the purported reprimand Caruso received carried

with it no consequences or even the threat of consequences and

therefore was neither materially adverse nor actionable. See

Bhatti, 659 F.3d at 73.

Nor does Caruso’s alleged constructive discharge constitute

an actionable adverse employment action. To the extent that

Caruso’s failure to accommodate claim forms the basis of her

constructive discharge, she may not “simply repackage[e]” that

claim into a retaliation claim. Incutto v. Newton Pub. Sch., No.

CV 16-12385-LTS, 2019 WL 1490132, at *5 (D. Mass. Apr. 4, 2019)

(citing Snowden v. Trustees of Columbia Univ., No. 12 CIV. 3095

GBD, 2014 WL 1274514, at *6 (S.D.N.Y. Mar. 26, 2014), aff'd, 612

F. App'x 7 (2d Cir. 2015) (“[A]ny activity comprising

Plaintiff's primary failure-to-accommodate claim, such as the

submission of a reasonable accommodation request form or

participation in the post-request interactive process, cannot

also constitute protected activity such as that required to form

the basis of a retaliation claim.”).

Consequently, Caruso was not subject to an adverse

employment action and, the Court need not consider whether such

action was causally linked to the protected conduct. Caruso’s

claims for retaliation cannot stand and, accordingly, the

defendant’s motion for summary judgment on Courts 5, 8 and 9

will be ALLOWED.

4. Interference with rights claim (Count 6)

In her original complaint, Caruso asserts that Delta

interfered with her pursuit of rights afforded under M.G.L. c.

151B, in violation of § 4(4A) of that provision. In her

opposition to defendant’s pending motion, however, Caruso notes

in a footnote that Delta failed to confer with her prior to

submitting its motion. Caruso reveals that, had Delta done so,

it would have learned that Caruso was willing to dismiss her

claim for interference. Although Caruso has not dismissed that

claim, it is not referred to again in that opposition. Caruso’s

“abandonment of the claim amounts to waiver.” Leader v. Harvard

Univ. Bd. of Overseers, No. CV 16-10254-DJC, 2017 WL 1064160, at

*6 (D. Mass. Mar. 17, 2017) (citing Rodríguez v. Municipality of

San Juan, 659 F.3d 168, 175 (1st Cir. 2011) (recognizing that

“[i]t should go without saying that we deem waived claims not

made or claims adverted to in a cursory fashion, unaccompanied

by developed argument.”). Accordingly, Delta’s motion for

summary judgment on Count 6 will be ALLOWED.

5. Aiding and abetting claim (Count 7)

Caruso contends that Delta violated M.G.L. c. 151B, § 4(5)

by aiding and abetting Lucas in his violation of M.G.L. c. 151B

by impeding the reporting of and investigation into Caruso’s

alleged assault, declining to provide Caruso (and interfering

with her ability to obtain) information concerning the alleged

assault, acting with undue deference to Lucas during its own

investigation into the assault and failing to take reasonable

steps to protect Caruso from Lucas. Defendant rejoins that

Caruso abandoned that claim because she addressed it only

cursorily in her opposition to defendant’s pending motion.

Although Caruso’s defense of that claim is indeed

abbreviated, the Court finds the claim has not been waived given

the interconnectedness of the claim to the rest of her case and

the limited opportunity Caruso was provided to defend each of

her numerous claims.

The claim cannot stand, however, because it is “entirely

derivative” of the sex discrimination claims that the Court has

already resolved in favor of Delta. Lopez v. Commonwealth, 463

Mass. 696, 713 (2012) (quoting Abramian v. President & Fellows

of Harvard College, 432 Mass. 107, 122 (2000)). Consequently,

to sustain an aiding and abetting claim under § 4(5):

in addition to the individual and distinct wrong that

the defendant must be alleged to have committed, the

complaint must allege the commission of an underlying

act of discrimination under G.L. c. 151B (the main

claim) by the principal offender.

Id. (citation omitted). The sex discrimination claims are the

only possible foundation for the § 4(5) claim because they are

the only claims for which Lucas, rather than Delta itself, is

the alleged principal offender. Because Caruso’s claims of sex

discrimination have been dismissed, the derivative claim cannot

stand. Delta’s motion for summary judgment on Count 7 will

therefore be ALLOWED.

ORDER

For the foregoing reasons, the motion of defendant for

summary judgment (Docket No. 60) is ALLOWED.

So ordered.

/s/ Nathaniel M. Gorton

Nathaniel M. Gorton

United States District Judge

Dated March 9, 2022