Board of Trustees of the IUOE Local 4 Pension Fund v. Alongi

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

_______________________________________

)

BOARD of TRUSTEES of the IUOE )

LOCAL 4 PENSION FUND; BOARD of )

TRUSTEES of the IUOE LOCAL 4 )

ANNUITY & SAVINGS FUND; BOARD )

of TRUSTEES of the IUOE LOCAL 4 )

HEALTH and WELFARE FUND; BOARD )

of TRUSTEES of the HOISTING and )

PORTABLE ENGINEERS LOCAL 4 ) Civil Action No.

APPRENTICESHIP & TRAINING FUND; ) 21-cv-10163-FDS

INTERNATIONAL UNION of )

OPERATING ENGINEERS LOCAL 4; )

IUOE LOCAL 4 LABOR-MANAGEMENT )

CO-OPERATION TRUST; and IUOE )

LOCAL 4 SOCIAL ACTION )

COMMITTEE, )

)

Plaintiffs, )

)

v. )

)

GINA ALONGI, )

)

Defendant and Counterclaim/ )

Third-Party Plaintiff, )

)

v. )

)

IUOE LOCAL 4 PENSION FUND; )

IUOE LOCAL 4 ANNUITY & SAVINGS )

FUND, IUOE LOCAL 4 HEALTH AND )

WELFARE FUND; HOISTING AND )

PORTABLE ENGINEERS LOCAL 4 )

APPRENTICESHIP & TRAINING FUND; )

IUOE LOCAL 4 LABOR-MANAGEMENT )

CO-OPERATION TRUST; and WILLIAM )

D. MCLAUGHLIN, individually and in his )

capacity as Chairman of the Boards of )

Trustees, )

)

Counterclaim/Third-Party )

Defendants. )

_______________________________________)

MEMORANDUM AND ORDER ON

COUNTERCLAIM DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

SAYLOR, C.J.

This is an action arising under the Employee Retirement Income Security Act of 1974

(“ERISA”), 29 U.S.C. § 1001, et seq. Plaintiffs are the Board of Trustees of the IUOE Local 4

Pension Fund (the “Pension Fund”); the Board of Trustees of the IUOE Local 4 Annuity &

Savings Fund (the “Annuity Fund”); the Board of Trustees of the IUOE Local 4 Health and

Welfare Fund (the “Health and Welfare Fund”); the Board of Trustees of the Hoisting and

Portable Engineers Local 4 Apprenticeship & Training Fund (the “Training Fund”); the

International Union of Operating Engineers Local 4 (the “Local”); the IUOE Local 4 Labor-

Management Co-Operation Trust (the “Trust”); and the IUOE Local 4 Social Action Committee

(the “SAC”). The Pension Fund, the Annuity Fund, the Health and Welfare Fund, and the

Training Fund are multiemployer employee-benefit plans. The complaint alleges that defendant

Gina Alongi breached her fiduciary duties during her employment as the Administrator for the

four funds, and as a provider of administrative services to the Local, the Trust, and the SAC.

Alongi has asserted counterclaims and third-party claims against the Pension Fund, the

Annuity Fund, the Health and Welfare Fund, the Training Fund, the Trust, and William

McLaughlin, the Business Manager of the Local and Chairman of various funds.1 Those

counterclaims allege, in substance, that McLaughlin engaged in sexually-harassing behavior that

1 The named plaintiffs are the Boards of Trustees of the four funds, the Local, the Trust, and the SAC;

Alongi has asserted claims against the four funds themselves (but not the Boards of Trustees), the Trust, and

McLaughlin (but not the Local or the SAC). Cf. WRIGHT & MILLER, 6 Fed. Prac. & Proc. Civ. § 1435 (3d ed.) (“[A]

counterclaim or crossclaim . . . must involve at least one existing party.”). For the sake of convenience, and unless

the context indicates otherwise, this memorandum and order will refer collectively to all the parties other than

Alongi and McLaughlin as “the Funds,” and will refer to all claims asserted by Alongi as “counterclaims.” In

addition, again for the sake of convenience, the Funds, the Trust, and McLaughlin will be referred to as

“defendants” and Alongi will be referred to as “plaintiff.”

created a hostile work environment, that her employers retaliated against her for reporting his

harassment, and that they also refused to accommodate her disability as a Type 1 diabetic.

Defendants have moved for summary judgment as to all counterclaims. For the

following reasons, the motion for summary judgment will be denied in part and granted in part.

I. Background

A. Factual Background

Except where otherwise noted, the following facts are undisputed.2

1. The Parties

The Pension Fund, the Annuity Fund, the Health and Welfare Fund, and the Training

Fund are multiemployer employee-benefit plans, all of which are subject to the regulatory

framework of ERISA. (ECF No. 106, Statement of Material Facts and Responses (“SMF”) ¶¶ 1-

4). Each fund is financed by contributions made by employers who employ operating engineers

pursuant to the terms of a written collective bargaining agreement with the Local. (Id. ¶ 6).

Each fund is governed by a separate Board of Trustees, which in turn employ staff to perform

work for the funds. (Id. ¶¶ 13, 15).

Gina Alongi served as Administrator of the Funds from 1996 to July 2020. (Id. ¶ 30).

The Administrator is appointed by the Boards of Trustees of the Funds and serves as the chief

executive officer in charge of day-to-day operations, including overseeing all employees. (Id.

¶¶ 23-24). The Administrator also organizes regular meetings to provide various relevant reports

to the Funds. (Id. ¶¶ 27-28). The role is a full-time position. (Id. ¶ 29). Alongi also provided

administrative services to the Local, the Trust, and the SAC. (Id. ¶ 17).

2 Further facts relevant to this opinion are described in the Court’s memorandum and order on plaintiffs’

motion for summary judgment. See Board of Trustees of IUOE Loc. 4 Pension Fund v. Alongi, 2023 WL 5984520

(D. Mass. Sept. 14, 2023).

In 2007, while employed full-time by the Funds, Alongi became the executive director of

the Massachusetts Coalition of Taft-Hartley Funds (“the Coalition”). (Id. ¶ 53). Her duties

included conducting meetings, negotiating with service providers, maintaining records, and filing

reports with regulatory agencies. She delegated some of that work to other employees of the

Funds. (Id. ¶ 54).

William McLaughlin has served as the Business Manager for the Local since August

2017. (Id. ¶ 58). During the same period, he has served as the Chairman of the Board of

Trustees of the Health and Welfare Fund, the Pension Fund, and the Annuity Fund. (Id. ¶ 59).3

The Business Manager supervises business representatives, prepares collective bargaining

agreements for members, and upholds the bylaws and constitution of the Local. (Id. ¶¶ 21-22).

2. Allegations of Sexual Misconduct Prior to May 2018

Alongi contends that McLaughlin routinely made highly inappropriate and sexually

charged comments in the workplace to her, her twin sister Rosemarie Alongi (who was also an

employee of the Funds), and other female employees. (ECF No. 106, Statement of Additional

Facts (“SAF”) ¶¶ 14-15).

For the purpose of the summary judgment motion, defendants treat the following

allegations as undisputed: that prior to May 2018, McLaughlin regularly discussed with Alongi

his sexual desires and fantasies, including with regard to the women in the office; that more than

once he told her that he could not concentrate during a Trustees meeting because she “looked so

good,” he “wanted” her, and he had “such a crush on her”; that he discussed his need for sex and

his belief that his wife was not “taking care of him”; that he made statements to the effect of

3 Each Fund has a separate Board of Trustees; the parties do not allege that McLaughlin serves on the

Board of Trustees of the Training Fund. (SMF ¶¶ 13, 59; Supp. App. 105).

“men are pigs” and “all men think about is sex”; that he visited Rosemarie Alongi’s office on a

regular basis and made sexual comments about women in the office; and that he had an

inappropriate sexual relationship with another employee, Assistant Administrator Laura-Jean

Hickey. (Mem. at 14; see also SAF ¶¶ 15, 17, 26, 27, 49, 51).

3. The May 2018 Incident

On May 1, 2018, Alongi called McLaughlin to a meeting. Their accounts of that meeting

differ. According to Alongi, she provided McLaughlin with examples of how his behavior made

her uncomfortable. (SMF ¶ 63). McLaughlin allegedly began to pace in front of her, yell

obscenities, and said words to the effect of “you do not respect me, I am the manager!” (Id.). He

allegedly continued to yell and swear at her for approximately ten minutes, to the point where

other Funds employees were fearful for her physical safety. (Id.). One employee, Taylor Ryan,

testified at a deposition that she had dialed 911 on her telephone and “had my hand ready to

press the button if it was needed.” (Supp. App. at 244). The fight was reportedly loud enough

that employees on the opposite side of the building could hear shouting. (Supp. App. at 237-38).

McLaughlin reportedly stopped when Rosemarie Alongi and Greg Geiman, the Funds’ Assistant

Administrator, entered Alongi’s office and physically separated them. (SMF ¶¶ 63, 66, 77).

According to Alongi, immediately after the fight, McLaughlin attempted to apologize by

hugging her and attempting to kiss her on the lips. He told her that the fight had gotten him

“excited” and sexually “aroused.” (Id. ¶ 63).

Defendants contend that both Alongi and McLaughlin became heated during the meeting

and that they were swearing at one another. (Id. ¶ 63). It is undisputed that Alongi told

McLaughlin he needed to stop “checking out” women who walked past his office and that she

poked him in the chest. (Id. ¶ 64).

4. The Events After the May 2018 Incident

The parties further dispute Alongi’s actions after the May 1 incident. Defendants contend

that on May 14, 2018, Alongi and Geiman contacted an attorney who had previously worked for

the Funds. (Id. ¶ 66; App. 381, 404). The attorney allegedly opined that McLaughlin’s behavior

appeared to constitute sexual harassment and suggested that the Funds undertake a third-party

investigation. (Id. ¶ 66; App. 381, 404).

It is undisputed that in mid-May 2018, Alongi interviewed several female Funds

employees about their experiences with McLaughlin and the ways he made them uncomfortable.

(SMF ¶¶ 71; SAF ¶ 25). Her notes of those interviews indicate that on May 15, 2018, Rosemarie

Alongi informed her that McLaughlin would talk about the women with whom he had slept.

(SMF ¶ 71). Another employee allegedly reported that McLaughlin said he was jealous of her

ex-boyfriend and called her “sexy.” (Id.). Another said that McLaughlin called her “dear.”

(Id.). Another allegedly told Alongi that McLaughlin came into her office and gave her

massages. (Id.).

On May 21, 2018, Alongi met with Kathryn Shea, outside counsel to the Funds. (Id. ¶¶

73, 76). She told Shea that she had been sexually harassed by McLaughlin. (Id. ¶ 73). She also

shared some of the results of her investigation into McLaughlin’s treatment of other employees.

(Id.).

After that meeting, Shea discussed the “zero-tolerance policy” of the Funds with

McLaughlin. (Id. ¶ 74). McLaughlin reportedly indicated that he would behave in a more

formal manner moving forward, and that he would refrain from touching employees and avoid

informal banter and jokes. (Id.). According to Shea, she explained to McLaughlin that he could

not retaliate against Alongi for reporting him. (Id.). He expressed no interest in disciplining or

firing Alongi, saying she was “a good administrator.” (Id.). According to Alongi, after Shea

spoke with McLaughlin, Geiman came to her office and told her she was going to be fired for

insubordination. (Id. ¶ 75).

The parties’ accounts of later meetings also diverge. According to defendants, at a

subsequent meeting with Shea and Alongi, McLaughlin stated that “you know I’ve never

sexually harassed anybody in this office . . . or yourself.” Alongi allegedly responded, “I know,

Billy, you never did that.” McLaughlin also allegedly assured Alongi that he would not hold the

allegations she made against her and that she was a good administrator. (Id. ¶ 77).

According to Alongi, she had a second meeting with McLaughlin and Shea, who

informed her that she could be terminated for insubordination and that McLaughlin’s conduct did

not rise to the level of sexual harassment. (SAF ¶ 42). She alleges that Shea told her that if she

kept quiet about her allegations of sexual harassment, McLaughlin would apologize, and she

would not be terminated. (Id.).

Alongi alleges that after May 2018, McLaughlin continued to regularly visit her office

and make unwanted statements about sex and women’s bodies. (Id. ¶ 49). According to

Rosemarie Alongi, after May 2018, at least once per week, and sometimes more, McLaughlin

would enter her office, stand in front of her desk, and discuss the women in the office, including

what they were wearing; tell her that he would like to have sex with the young women in the

office; and tell her that those women were “young, hard, and hot.” He also allegedly described

sexual acts he performed with previous girlfriends, and stated that he “just cannot behave.” (Id.

¶¶ 50-51).

Alongi described an incident in 2019 in which McLaughlin allegedly responded to

information that an employee was absent on medical leave for breast cancer by asking “are her

tits or boobs any good” and whether Alongi thought “she will show them to me.” (SMF ¶ 81).

He also allegedly discussed “how his wife wasn’t taking care of him sexually.” (Id.). Rosemarie

Alongi further alleges that near Christmas 2019, McLaughlin entered her office and stated he

would “go to bars at night, meet women, fuck them and then never call them again.” (SAF ¶ 52).

5. Alleged Retaliation

a. The Policy Concerning Dogs in the Office

On some occasions during her employment, Alongi and other employees brought dogs to

the office. (SMF ¶ 85). In November 2018, the building committee decided that dogs should be

precluded from the office due to the odor and at least one incident of a dog scaring a vendor. (Id.

¶ 86). On November 9, 2018, a notice went out notifying employees that effective December 1,

2018, pets and other animals would be prohibited from the office. (Id. ¶ 87). The notice

instructed individuals who required service animals as a reasonable accommodation under the

Americans with Disabilities Act to contact McLaughlin. (Id.)

Alongi was diagnosed with Type 1 diabetes in 2015. (Id. ¶ 89). She contends that her

dog was trained to detect different blood-sugar levels, although she acknowledges that it did not

go through any kind of training program. (Id.). She alleges that she brought her dog to the office

only when she was not feeling well or when she was going to Cape Cod after work. (Id. ¶ 90).

She further alleges that after November 9, 2018, when McLaughlin informed her that her dog

would not be permitted in the office, she requested to bring her dog with her to the office on days

that she felt ill as an ADA accommodation. (SAF ¶¶ 56-57; Supp. App. 17). She alleges that

McLaughlin responded, “no dogs in the office, including yours. I do not care what the law

says,” or words to that effect. (SAF ¶ 57).

b. The Policy Concerning Arrival Time

In January 2020, during a meeting with Alongi and Shea, McLaughlin requested that

Alongi arrive at the office by 8:00 a.m. daily. (SMF ¶ 92). Alongi testified that she requested to

be permitted to arrive at the office at 9:15 a.m., but that McLaughlin denied that request. (Id.

¶ 95).

According to Alongi, she needed to inject her insulin between 8:00 a.m. and 9:00 a.m.

(Id.). There is no evidence that Alongi’s physician instructed her to do so, or that it was

necessary to manage her diabetes; however, there is also no evidence that the Funds requested a

letter from her physician.

Prior to the January 2020 meeting, Alongi typically did not arrive at the office by 8:00

a.m. (Id. ¶ 97). She testified that it was not necessary for her to arrive at that time when she was

“working and on call all the time.” (Id.). After the meeting, in January 2020, Alongi testified

that she did arrive at the office at 8:00 a.m., but that she often forgot to take her insulin during

that period. (Id. ¶ 100). She testified she did not struggle to remember her insulin when she

traveled for vacation or business. (Id. ¶ 102).

c. The Ransomware Incident

In March 2020, the offices of the Funds closed due to the COVID-19 pandemic. (Id. ¶

103). In May 2020, the Funds were the target of a ransomware attack. (Id. ¶ 104). They paid a

ransom to regain control of their computer system, but apparently no data was compromised.

(Id.). It is disputed whether Rosemarie Alongi was acting as IT Director at the time of that

incident. (Id. ¶ 105). It is further disputed whether Alongi had any responsibility for the

ransomware attack because of her failure to oversee the IT department and whether she

improperly spoke externally about the attack. (Id. ¶ 113; SAF ¶ 84; App. Ex. 33).

d. The Inquiry into Alongi’s Performance

In mid-June 2020, Funds staff began keeping timesheets to track the hours they worked

remotely. (SMF ¶ 106). Alongi alleges that McLaughlin reviewed her timesheets, and Geiman

reviewed the timesheets of all other staff. (Id.). According to defendants, Shea recommended

that Alongi submit her timesheets to McLaughlin because Geiman was her subordinate. (Id.).

According to defendants, McLaughlin asked Geiman in July 2020 about some of

Alongi’s work reports and discovered that she was logging Coalition work during her working

hours. (Id. ¶ 107). Alongi disputes that characterization; she contends that since beginning to

work for the Coalition in 2007 she made no effort to hide that work. (Id.). Shortly afterward,

Shea allegedly discovered that Alongi had not been completing Department of Labor timesheets.

(Id. ¶ 109). Alongi alleges that she followed Funds’ accountants’ advice concerning her

timesheets. (Id. ¶ 110).

The Funds then conducted an inquiry. (Id. ¶ 112). On July 21, 2020, the Trustees of the

Health and Welfare Fund reviewed Alongi’s work performance and concluded that it was

unsatisfactory. (App. Ex. 31). According to the minutes of the meeting, which were written by

Shea, the trustees discussed Alongi’s weekly work reports that included work for the Coalition;

her lack of daily time sheets; the fact that she improperly committed a credit of $30,000 that

belonged to the Local 4 Health Plan to an anticipated expense of the Coalition; and information

about the May 2020 ransomware attack she had shared externally, among other issues. (Id.).4

e. The Termination of Alongi

The Board of Trustees voted to terminate Alongi at the meeting on July 21, 2020. The

minutes of that meeting reflect that the trustees terminated Alongi for several reasons: “work

performance,” “waste and potential waste of [p]lan assets,” “mismanagement of the Fund

Office,” “breach of confidentiality,” and “withholding information from Trustees.” (Id.). Alongi

was terminated that same day. (App. Ex. 31).

4 Whether Alongi worked for the Coalition during the Funds’ normal business hours, rather than working

for the sole and exclusive benefit of the Funds, is part of the basis of their complaint against her for breach of

fiduciary duty. See Board of Trustees of IUOE Loc. 4 Pension Fund v. Alongi, 2023 WL 5984520, at *10-11 (D.

Mass. Sept. 14, 2023).

f. The Termination of Rosemarie Alongi

According to Alongi, on July 27, 2020, Geiman began preparing a memorandum

concerning Rosemarie Alongi’s employment and discussing termination because of the

ransomware incident that had occurred in May 2020. (SAF ¶ 87). Rosemarie was eventually

fired on August 5, 2020. (Supp. App. 102). Alongi contends that their alleged performance

deficiencies were never raised with either herself or Rosemarie at any time during their

employment, nor were they disclosed at the time each was terminated. (SAF ¶ 88).

B. Procedural Background

The Funds filed the complaint in this case on January 29, 2021. The complaint alleges

that Alongi breached her fiduciary duty to the Funds in violation of ERISA, 29 U.S.C. §§ 1101-

1114.

Before the Funds filed that complaint, Alongi had filed a complaint with the

Massachusetts Commission Against Discrimination (“MCAD”) on September 3, 2020. She

subsequently withdrew the MCAD complaint pursuant to Mass. Gen. Laws ch. 151B, § 9, and on

February 10, 2021, filed a complaint against the Funds, the Trust, and McLaughlin in the

Massachusetts Superior Court.

On August 9, 2021, the Court denied Alongi’s motion to stay this case pending resolution

of her state-court matter.

On January 26, 2023, Alongi filed the counterclaims against the Funds and McLaughlin

in this matter.5 She amended her counterclaims on April 7, 2023. The counterclaims assert five

counts: hostile work environment in violation of Mass. Gen. Laws ch. 151B; sexual harassment

5 Again, this memorandum and order uses the term “counterclaims” to refer to the claims asserted by

Alongi, some of which are third-party claims against different parties.

in violation of Mass. Gen. Laws ch. 151B; retaliation in violation of Mass. Gen. Laws ch. 151B,

§ 4(4); failure to accommodate her chronic health condition; and interference with her rights

under Mass. Gen. Laws ch. 151B, § 4(4A).6

Defendants have moved for summary judgment with respect to each count of the

counterclaims.

II. Standard of Review

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)). Summary

judgment shall be granted when “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 genuine issue is

“one that must be decided at trial because the evidence, viewed in the light most flattering to the

nonmovant, would permit a rational factfinder to resolve the issue in favor of either party.”

Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990) (citation omitted). In

evaluating a summary judgment motion, the court indulges all reasonable inferences in favor of

the nonmoving party. See O’Connor v. Steeves, 994 F.2d 905, 907 (1st Cir. 1993). When “a

properly supported motion for summary judgment is made, the adverse party must set forth

specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 250 (1986) (quotations omitted). The nonmoving party may not simply “rest upon

mere allegation or denials of his pleading,” but instead must “present affirmative evidence.” Id.

6 The counterclaim for failure to accommodate does not specify the section pursuant to which it is asserted.

(Counterclaims ¶¶ 85-91). As discussed below, that ambiguity may be due to the different sections of Chapter 151B

applicable to employer and individual liability. The Court will analyze each count according to the authority cited

by the parties. See Kenney v. Head, 2011 WL 116856, at *1 n.1 (D.R.I. Jan. 13, 2011) (relying “on the parties’

motion papers to limn the claims made in each count.”).

at 256-57.

III. Analysis

A. Claim for Hostile Work Environment under Mass. Gen. Laws ch. 151B

(Count 1)

1. Statute of Limitations

In Massachusetts, a party alleging discrimination under Chapter 151B “may maintain a

civil action only if she has previously filed a timely complaint with the [MCAD].” Christo v.

Edward G. Boyle Ins. Agency, 402 Mass. 815, 816 (1988). Massachusetts law requires that such

a complaint be filed with the MCAD “within 300 days after the alleged unlawful conduct.” 804

Mass. Code Regs. 1.04(3).

Plaintiff filed a complaint with the MCAD on September 3, 2020. There is no question

that any claim that she may have arising out of events occurring after November 8, 2019—that

is, 300 days before the filing of her MCAD complaint—is timely. (Mem. at 14).

a. The “Continuing Violation” Doctrine

Whether plaintiff’s claims arising out of events occurring before November 8, 2019, are

timely depends on the applicability of the “continuing violation” doctrine.

The continuing violation doctrine is an equitable exception that allows an

employee to seek damages for otherwise time-barred allegations if they are

deemed part of an ongoing series of discriminatory acts and there is some

violation within the statute of limitations period that anchors the earlier claims.

This ensures that these plaintiffs’ claims are not foreclosed merely because the

plaintiffs needed to see a pattern of repeated acts before they realized that the

individual acts were discriminatory.

O’Rourke v. City of Providence, 235 F.3d 713, 732 (1st Cir. 2001) (internal quotations and

citations omitted).

Under Massachusetts law, a plaintiff can establish a continuing violation by showing that

(1) at least one discriminatory act occurred within the limitation period, (2) the alleged timely

discriminatory acts have a substantial relationship to the alleged untimely discriminatory acts,

and (3) earlier violations outside the limitations period did not trigger the plaintiff’s “awareness

and duty” to assert her rights. Ocean Spray Cranberries, Inc. v. Massachusetts Comm’n Against

Discrimination, 441 Mass. 632, 642-43 (2004); see Cuddyer v. Stop & Shop Supermarket Co.,

434 Mass. 521, 533 (2001) (stating that under Massachusetts law, if conduct that occurred within

the statutory period is substantially related to earlier incidents of abuse and substantially

contributes to the continuation of a hostile-work-environment, it may constitute an “anchoring”

act to make “the entirety of the claim for discriminatory conduct timely”).

The continuing violation doctrine may have particular force in the context of a claim

alleging a hostile work environment. Connolly v. Woburn Pub. Sch., 659 F. Supp. 3d 92, 121 (D.

Mass. 2023). “A hostile work environment constitutes a pattern of sexual harassment (these are

operative words) that, by its very nature, often is apparent only in hindsight.” Cuddyer, 434

Mass. at 538. When a plaintiff brings a claim based on an alleged hostile work environment, the

limitation period begins to run when “the plaintiff knew or reasonably should have known that

her work situation was pervasively hostile and unlikely to improve.” Cuddyer, 434 Mass. at 539.

“A plaintiff may be unable to appreciate that [she] is being discriminated against until [she] has

lived through a series of acts and is thereby able to perceive the overall discriminatory pattern.”

O’Rourke, 235 F.3d at 732 (internal quotations and citations omitted).

b. Whether the Alleged Discriminatory Conduct Continued Past

November 2019

Plaintiff contends that the continuing violation doctrine applies because “a month or two

after the fight on May 1, 2018, McLaughlin began to regularly visit her office again and make

the same type of inappropriate, harassing comments to her that sparked the May 1 incident,” and

that his “continuous, sexually charged comments continued ‘well into 2020.’” (SMF ¶ 80).

Defendants respond that (1) plaintiff fails to allege a specific instance of discriminatory conduct

that occurred within the limitations period and (2) earlier allegations alerted her of potentially

violative behavior, which triggered the running of the limitations period. (Mem. 15-16).

Whether a specific act of discrimination occurred within the 300-day time period that is

substantially related to prior incidents is disputed. Plaintiff alleges that certain incidents

occurred after May 2018, including (1) sexual advances by McLaughlin toward another

employee, including asking her what “[sexual] positions did [she] like”; and (2) sexually charged

and inappropriate comments by McLaughlin about an employee on medical leave for breast

cancer. (SMF ¶¶ 79-81; Supp. Aff. 255-56). It is at least possible, based on the record evidence,

that some of that behavior occurred after November 2019.

In addition, Rosemarie Alongi alleged that close to Christmas 2019 (and therefore likely

after November 8, 2019), McLaughlin told her that he would “go to bars at night, meet women,

fuck them and then never call them again.” (Id. ¶ 52). Such conduct, even though directed at

another employee, may be found to be substantially related to the alleged earlier discriminatory

acts. See Romero v. McCormick & Schmick Rest. Corp., 448 F. Supp. 3d 1, 5 (D. Mass. 2020)

(“The court finds no requirement in the statutory scheme, case law, or common sense that would

preclude a hostile work environment claim because sexual conduct and statements were directed

at co-workers only.”).

Furthermore, termination or other retaliatory conduct may qualify as an “anchoring act”

for purposes of assessing whether a claim is timely. See Brader v. Biogen Inc., 983 F.3d 39, 64

(1st Cir. 2020) (discussing termination occurring within the statutory period as an anchoring act);

Navarro v. U.S. Tsubaki, Inc., 577 F. Supp. 2d 487, 506 (D. Mass. 2008) (determining that

plaintiff could “arguably anchor his hostile work environment claim with any of the failure to

promote or transfer allegations that occurred after March 27, 2003”); Diaz v. Jiten Hotel Mgmt.,

Inc., 671 F.3d 78, 86 (1st Cir. 2012); Shervin v. Partners Healthcare Sys., Inc., 2 F. Supp. 3d 50,

68 (D. Mass. 2014), aff’d, 804 F.3d 23 (1st Cir. 2015) (“[T]he paradigm [is] wh[en] plaintiff

suffers a number of indignities, the discriminatory animus of which is not clear until a series of

such events continue over time or culminate in a discriminatory or retaliatory act for which the

plaintiff then seeks relief”). Here, most of the alleged retaliatory conduct, including plaintiff’s

termination, occurred after November 8, 2019. (SMF ¶¶ 92, 106, 114).

Plaintiff has, at a minimum, raised a genuine issue of material fact regarding whether

there was at least one act within the limitations period that was substantially related to earlier

events and substantially contributed to the continuation of a hostile-work environment. See

Hussey v. E. Coast Slurry Co., LLC, 2022 WL 617568, at *7 (D. Mass. Mar. 1, 2022); Cuddyer,

434 Mass. 541-42; Pelletier v. Town of Somerset, 458 Mass. 504, 520-21 (2010) (“In Cuddyer,

we emphasized that it is the role of the jury to make critical factual determinations whether

events constitute elements of a continuing violation.”). Under the circumstances, summary

judgment will not be granted to defendants on the ground that no wrongful conduct occurred

within the limitations period.

c. Whether Plaintiff’s Delay in Filing Was Unreasonable

Defendants further contend that the continuing violation doctrine does not apply because

plaintiff was on notice of the alleged wrongful acts long before November 8, 2019. (Mem. 15-

16). Specifically, defendants contend she should have been on notice of a possible claim no later

than 2018, when she told McLaughlin his behavior was inappropriate, discussed his behavior

with other employees, and spoke to Shea and another lawyer. (SMF ¶¶ 64, 66).

Under Massachusetts law, a plaintiff who knew, or reasonably should have known, more

than 300 days prior to her MCAD filing that “her work situation was pervasively hostile and

unlikely to improve” may not assert a claim for that earlier conduct if “a reasonable person in her

position, armed with her knowledge, would have filed a seasonable complaint with the MCAD.”

Cuddyer, 434 Mass. at 541; Clifton v. Massachusetts Bay Transp. Auth., 445 Mass. 611, 619

(2005) (quoting same).

Under Massachusetts law, mere notice or awareness of a possible claim is not sufficient

to trigger the running of the limitations period for a hostile-work-environment claim. Cuddyer,

434 Mass. at 535-36.7 Instead, the Massachusetts standard “focuses on the plaintiff’s knowledge

of the hopelessness of her work environment, and allows her to litigate alleged, otherwise time-

barred, acts of sexual harassment unless her delay in initiating the lawsuit, considered under an

objective standard, was unreasonable.” Id. at 537-40. That standard seeks to avoid unfairness to

the employee, who otherwise “may be forced prematurely to choose litigation as a remedy,” and

the employer, who “has a legitimate interest in attempting to resolve allegations of harassment

short of time-consuming and expensive litigation.” Id., 434 Mass. at 538.

Here, a reasonable jury could conclude that plaintiff was attempting to resolve the issue

and avoid “choos[ing] litigation as a remedy” prematurely. Id. Plaintiff contacted an attorney

about the sexual harassment on May 14, 2018, but then decided to report the conduct to Shea,

who allegedly informed her that McLaughlin’s conduct did not rise to the level of sexual

harassment. (SAF ¶¶ 42, 66). It is undisputed that the employee handbook of the Funds states

that “if an employee would like to file a complaint, they may do so by either notifying Gina M.

Alongi, Administrator . . . or by contacting Ms. Kathryn S. Shea.” (SMF ¶ 69; App. Ex. 3). On

7 The Massachusetts standard is “more favorable to a plaintiff” than the federal standard. Cuddyer, 434

Mass. at 540. The federal test “speaks in terms of a plaintiff’s ‘awareness’ that she was being discriminated against

and would deny a plaintiff damages for unlawful conduct falling outside of the statute of limitations period if, at the

time the conduct occurred, she had notice that she had an actionable claim.” Id. at 539-40.

May 21, 2018, plaintiff met with Shea and advised her of McLaughlin’s allegedly sexually

harassing behavior toward herself and other employees. (SMF ¶ 73). Shea then met with

McLaughlin to discuss the “zero tolerance policy” for sexual harassment and to warn him to

engage in appropriate workplace behavior. (SMF ¶ 74).

In short, a reasonable jury could conclude, under the Massachusetts standard, that

plaintiff acted reasonably and hoped that there might be a non-litigation response to resolve the

sexually harassing behavior. See, e.g., Cuddyer, 434 Mass. at 540 (finding plaintiff “entitled to

the benefit of the continuing violation doctrine to defeat the defendant’s motion for summary

judgment[ because a] jury could reasonably find that, in 1991 after Arce was fired, the plaintiff

might have felt that her problems would cease.”); Brissette v. Franklin Cnty. Sheriff’s Off., 235

F. Supp. 2d 63, 88-89 (D. Mass. 2003) (finding “plaintiffs could not fairly be said to have been

on notice of the ‘hopelessness’ of their situation before the spring of 1997. It is undisputed that,

even within the generally hostile environment, some positive changes were beginning to take

place.”). Plaintiff’s behavior during that period may reasonably be thought to reflect behavior by

someone who “thought it likely that her discriminatory treatment would cease.” Shervin v.

Partners Healthcare Sys., Inc., 804 F.3d 23, 35-36 (1st Cir. 2015). The “‘awareness and duty’ to

bring suit arises only when the person has good reason to believe that her ‘problems would [not]

cease.’” Id. (citing Ocean Spray, 441 Mass. at 643 then Cuddyer, 434 Mass. at 540).

Moreover, “[i]n most instances, the question when a plaintiff knew or should have known

of the existence of a cause of action is one of fact that will be decided by the trier of fact.”

Silvestris v. Tantasqua Reg’l Sch. Dist., 446 Mass. 756, 767 (2006). This case is such an

instance. Accordingly, summary judgment will not be granted as to the claim alleging a hostile-

work environment on the ground that the claim is untimely.

2. Hostile Work Environment

To prove a claim of hostile work environment, a plaintiff must establish

(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.

O’Rourke, 235 F.3d at 728. Defendants contend that plaintiff here has failed to demonstrate that

the alleged harassment was severe or pervasive enough to constitute a hostile work environment.

(Mem. at 16).

A plaintiff may recover on a theory of hostile work environment when “the workplace is

permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or

pervasive to alter the conditions of the victim’s employment and create an abusive working

environment.” Noviello v. City of Bos., 398 F.3d 76, 84 (1st Cir. 2005). The harassment must be

“objectively and subjectively offensive, one that a reasonable person would find hostile or

abusive, and one that the victim in fact did perceive to be so.” Id. at 92. Courts must consider

the totality of the circumstances, including the frequency, severity, and nature of the conduct and

whether it interferes with an employee’s work performance, to determine whether the conduct is

violative or merely unpleasant in an ordinary way. Id.

Here, a jury could reasonably conclude that plaintiff was subjected to severe or pervasive

harassment that, when viewed objectively, was sufficient to interfere unreasonably with her work

performance. See, e.g., Billings v. Town of Grafton, 515 F.3d 39, 47-50 (1st Cir. 2008)

(reversing summary judgment grant on a hostile work environment claim where a supervisor

repeatedly stared at a female employee’s breasts); Marrero v. Goya of P.R., Inc., 304 F.3d 7, 19

(1st Cir. 2002) (affirming jury finding of a hostile work environment where plaintiff was

“harass[ed] on a daily basis, including humiliating sexual remarks and innuendos,” for more than

a year); O’Rourke, 235 F.3d at 718-20 (reinstating a hostile work environment verdict where one

coworker “constantly discussed sexual positions and oral sex,” and another made physical

contact numerous times, among other things).8 Summary judgment as to the claim for hostile

work environment will not be granted on the basis that it was not “severe or pervasive.”

B. Claim of Quid Pro Quo Sexual Harassment under Mass. Gen. Laws ch. 151B

(Count 2)

Count 2 alleges a violation of Mass. Gen. Laws ch. 151B, § 4 for quid pro quo sexual

harassment. Chapter 151B defines quid pro quo sexual harassment as “when a supervisor makes

sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual

nature when . . . submission to or rejection of such advances, requests or conduct is made either

explicitly or implicitly a term or condition of employment or as a basis for employment

decisions.” Cahill v. Silva, 79 Mass. App. Ct. 1122, at *2 (2011) (quoting Mass. Gen. Laws ch.

151B, §1(18)(a)).

Plaintiff contends that quid pro quo harassment occurred when Shea told her that she

could be terminated for insubordination, but that the Funds would not pursue such action if she

kept quiet about her sexual-harassment allegations. (Opp. at 8; SAF ¶ 42; Counterclaims ¶ 80).

According to plaintiff, that comment expressly conditioned her continued employment on

her acceptance of McLaughlin’s continued sexual behavior. (Opp. at 8; SAF ¶ 42). Defendants

contend that plaintiff has not established a quid pro quo claim as a matter of law because her

claim is that she was told not to report claims of past sexual harassment in exchange for her job,

8 Furthermore, the jury may consider how the conduct directed at other employees and plaintiff’s twin sister

may have impacted plaintiff. Romero, 448 F. Supp. 3d at 5.

rather than alleging her employment was conditioned on submitting to continued sexual advances

by McLaughlin. (Mem. at 19). However, a reasonable jury could find (1) that Shea explicitly

conditioned plaintiff’s employment on not reporting past sexual conduct, and (2) that her

statement could be reasonably construed as an implied condition of employment to submit to

future misconduct without complaint. See Cahill, 79 Mass. App. Ct., at *3; Valentin-Almeyda v.

Municipality of Aguadilla, 447 F.3d 85, 96 (1st Cir. 2006) (discussing compliance with demands

as a condition of avoiding punishment at work). If proved, that is sufficient to establish a claim

for quid pro quo sexual harassment under Mass. Gen. Laws ch. 151B, § 4.9

In any event, the facts at issue are largely credibility questions for the jury. Therefore,

defendants’ motion for summary judgment as to the claim of quid pro quo sexual harassment

will be denied.

C. Claim for Retaliation (Count 3)

Alongi further alleges that defendants took several actions in retaliation for protected

activity. Specifically, she alleges that after she reported the sexual harassment, defendants acted

adversely against her by (1) prohibiting her from bringing her dog to the office, (2) altering her

work schedule, (3) requiring that she account for her time in 15-minute increments, and (4)

terminating her employment. (Counterclaims ¶¶ 82-83).

Chapter 151B defines the following as “unlawful practice[s]”:

For any person, employer, labor organization or employment agency to discharge,

expel or otherwise discriminate against any person because he has opposed any

practices forbidden under this chapter or because he has filed a complaint,

testified or assisted in any proceeding under section five.

9 Defendants further contend that the claim fails because Shea instructed McLaughlin to discontinue his

sexual behavior and that he did so. (Mem. at 19). At a minimum, whether McLaughlin’s sexual behavior at the

office actually stopped is genuinely disputed. (See SMF ¶ 78).

. . .

For any person to coerce, intimidate, threaten, or interfere with another person in

the exercise or enjoyment of any right granted or protected by this chapter, or to

coerce, intimidate, threaten or interfere with such other person for having aided or

encouraged any other person in the exercise or enjoyment of any such right

granted or protected by this chapter.

Mass. Gen. Laws. ch. 151B, § 4(4), (4A); see Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky

& Popeo, P.C., 474 Mass. 382, 405 n.33 (2016).

To establish a claim of retaliation under chapter 151B, a plaintiff must show that (1) she

engaged in protected conduct, (2) she endured some adverse employment action, and (3) the

protected conduct and the adverse action were causally linked. See Xiaoyan v. Citizens Bank,

N.A., 821 F. 3d 206, 218-19 (1st Cir. 2016); Psy-Ed Corp. v. Klein, 459 Mass. 697, 707 (2011);

see also Verdrager, 474 Mass. at 405-07 (describing test as (1) reasonably believing employer

engaged in wrongful discrimination, (2) protected activity, (3) adverse action, and (4) evidence

that the adverse action was a response to the protected activity). “To defeat summary judgment,

the plaintiff need not prove retaliation by a preponderance of the evidence.” Planadeball v.

Wyndham Vacation Resorts, Inc., 793 F.3d 169, 175 (1st Cir. 2015). “All a plaintiff has to do is

raise a genuine issue of fact as to whether [retaliation] motivated the adverse employment

action.” Collazo v. Bristol-Myers Squib Mfg., Inc., 617 F.3d 39, 50 (1st Cir. 2010) (alteration in

original) (quoting Dominguez-Cruz v. Suttle Caribe, Inc., 202 F.3d 424, 433 (1st Cir. 2000)).

When assessing allegations of retaliation based on circumstantial evidence,

Massachusetts courts employ the McDonnell Douglas burden-shifting framework. Verdrager,

474 Mass. at 406; see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973). Under

that framework, to establish a prima facie case, a plaintiff must produce evidence that she

engaged in protected conduct, suffered an adverse action, and there is a causal connection

between the protected conduct and the adverse action. See Verdrager, 474 Mass. at 406. The

burden then shifts to the employer to state a legitimate, non-retaliatory reason for the adverse

action. Id. If the employer meets that burden, the employee must produce evidence that the

employer’s “stated reason for [acting against] her was a pretext for retaliating against her”

because of her protected activity. Esler v. Sylvia-Reardon, 473 Mass. 775, 780 n.7 (2016). “The

combination of a prima facie case of retaliation with a showing of pretext allows a jury to infer

that there was no legitimate explanation for the adverse [employment] decision and that the

employer’s true motivation was retaliatory.” Verdrager, 474 Mass. at 406 (alteration in original)

(quotation marks omitted).

Defendants do not appear to contest that Alongi engaged in protected conduct. (Mem. at

19-22). See Jacquet v. City of Somerville, 2020 WL 3545535, at *4 (D. Mass. June 30, 2020)

(“Protected activity includes not only the filing of formal charges of discrimination but also

‘informal protests of discriminatory employment practices, including making complaints to

management’” (quoting Fantini v. Salem State Coll., 557 F.3d 22, 32 (1st Cir. 2009))). Rather,

they contend (1) that Alongi points to various actions that do not constitute adverse employment

actions and (2) that her termination, although undoubtedly an adverse action, was not based on

discriminatory animus. (Mem. at 20). See McInerney v. United Air Lines, Inc., 463 Fed. Appx.

709, 716 (10th Cir. 2011) (“Termination of employment is clearly an adverse employment

action.”); Osborne-Trussell v. Children’s Hosp. Corp., 488 Mass. 248, 260, 172 n.12 (2021)

(quoting same).

Defendants’ first objection is inapposite. Plaintiff alleges that defendants engaged in a

pattern of retaliatory conduct, rather than a claim that each action itself is a cause of action to be

considered independently. (See Opp. at 8-16). As for the second objection, plaintiff must show

that her termination was causally connected to her alleged protected activities. Defendants

contend that she has not produced sufficient evidence of that causal connection because of the

lengthy period of time between the alleged protected activities and the adverse actions and the

surrounding circumstances of her termination.

When a plaintiff presents evidence of discriminatory or disparate treatment in the time

period between the protected activity and the adverse employment action, a jury may infer that

the pattern of retaliatory conduct that began soon after the protected activity and culminated later

in actual adverse action demonstrates a causal connection. Verdrager, 474 Mass. at 407; Che v.

Massachusetts Bay Transp. Auth., 342 F.3d 31, 38 (1st Cir. 2003). The plaintiff in Verdrager

first engaged in protected conduct two-and-a-half years prior to the adverse action at issue.

During that time, there was evidence that plaintiff was “treated differently from similarly-

situated male colleagues, that her evaluators may have judged her through the lens of a

stereotype, and that Cohen, her boss, tried to undermine her.” Verdrager, 474 Mass. at 407; see

also Che, 342 F.3d at 38 (discussing evidence of “disparate and discriminatory treatment” that

could ground a causal inference).

Here, the evidence, although disputed, is sufficient to suggest such a pattern when viewed

in the light most favorable to plaintiff. The time period between plaintiff’s May 2018 activities

and the July 2020 termination is slightly less than two-and-a-half years. She alleges that shortly

after reporting McLaughlin’s behavior to Shea, Shea suggested that she could be terminated for

insubordination and met with her to discuss those allegations with McLaughlin present in the

room. (SAF ¶¶ 42, 47). Six months later, McLaughlin allegedly told her, “No dogs in the office,

including yours. I don’t care what the law says,” or similar, in response to a requested

accommodation. (Id. ¶¶ 56-57). Twenty months later, he altered her schedule, also allegedly

refusing to engage with a requested accommodation. (Id. ¶ 58). Twenty-six months later, he

allegedly reviewed her reported time specifically, and was not interested in reviewing other

employees’ timesheets. (SMF ¶ 106; SAF ¶ 67). Finally, he was an integral part of the decision

to terminate her in July 2020. (SAF ¶ 72). There is also disputed evidence that McLaughlin

continued to make sexual comments to Alongi, her twin sister, and other female employees

between May 2018 and July 2020. (SMF ¶¶ 78, 79, 80, 81; SAF ¶¶ 49-53).

“When examining such evidence, [courts] keep in mind that the prima facie case is ‘a

small showing that is not onerous and is easily made.’” Che, 342 F.3d at 38 (quoting Kosereis v.

Rhode Island, 331 F.3d 207, 213 (1st Cir. 2003)). The pervasiveness of the alleged

discriminatory conduct would allow a jury to infer that a “pattern of retaliatory conduct began

soon after the protected activity and only culminated later in actual adverse action.” Verdrager,

474 Mass. at 407.

Accordingly, the burden shifts to defendants to provide a lawful explanation for the

termination. Here, they have clearly done so, alleging numerous, non-frivolous breaches of

plaintiff’s fiduciary duty, such as working on Coalition matters during Funds time; directing

Funds employees to perform such work; failing to keep mandatory Department of Labor

timesheets; and otherwise failing to fulfill her obligations as Administrator. (SMF ¶¶ 111, 113).

See generally, Alongi, 2023 WL 5984520.

The burden then shifts back to plaintiff to put forth evidence that those explanations are

pretextual. She has presented evidence that the trustees of the Funds were aware that she was the

executive director of the Coalition during her 13-year tenure and that the Coalition work

benefitted the Funds. (SAF ¶ 71). She alleges that she won a professional award in recognition

of her work for both the Funds and the Coalition. (Supp. App. 6). She further alleges that she

relied on the advice of external accountants to calculate and allocate her time acceptably. (SAF

¶¶ 80-82). She alleges her timekeeping was consistent for many years, not questioned by the

trustees, nor discussed with her prior to her termination. (SAF ¶¶ 73, 81-83). And she disputes

defendants’ additional allegations of misconduct. (See, e.g., id. ¶¶ 85-86).

That evidence would permit a reasonable inference that defendants’ stated reasons for

firing plaintiff were pretextual. Therefore, summary judgment on this claim will be denied.

D. Claim for Interference with Protected Rights (Count 5)

Count 5 alleges a violation of Mass. Gen. Laws ch. 151B, § 4(4A) for interference with

protected rights. Under that section, it is unlawful for “any person to coerce, intimidate, threaten,

or interfere with another person in the exercise or enjoyment of any right granted or protected by

this chapter.” Mass. Gen. Laws ch. 151B, § 4(4A).

Plaintiff contends that the Funds retaliated against her by filing a claim in federal court

on January 29, 2021, after receiving notice of the filing of state-court claims in December 2020.

(Counterclaims ¶¶ 92-98). The Supreme Judicial Court has indicated that the filing of a lawsuit

may constitute interference with rights under § 4(4A) under some circumstances. Sahli v. Bull

HN Info. Sys., Inc., 437 Mass. 696, 704-05 (2002). However, if an employer’s “lawsuit has a

legitimate basis in law and fact, the employer does not violate the provisions of either § 4(4) or

§ 4(4A), absent evidence that the employer’s purpose is other than to stop conduct it reasonably

believes violates the terms of the contract.” Id.

There is a “dividing line between ‘baseless’ or ‘sham’ litigation, which is not protected

by the First Amendment . . . , and those ‘reasonably based but unsuccessful lawsuits’ that are

constitutionally protected and so cannot constitute a violation of § 4(4) or (4A).” Psy-Ed Corp.

v. Klein, 459 Mass. 697, 710 (2011). Here, the Funds’ lawsuit for breach of fiduciary duty

appears to have a reasonable basis in law and fact. See generally, Alongi, 2023 WL 5984520.

As a fiduciary, plaintiff was required to act “solely in the interest of the participants and . . . for

the exclusive purpose of providing benefits to participants and their beneficiaries.” See 29

U.S.C. § 1104(a)(1). The Funds have marshalled sufficient evidence to the case to proceed to a

trial on that claim.

Moreover, plaintiff’s evidence that the lawsuit was brought for an improper purpose is

not sufficient to avoid summary judgment. (See Opp. at 18). Plaintiff points to evidence that at

a union meeting, McLaughlin described her lawsuit and then stated that “these funds have an

obligation to recuperate for your benefit the money that former administrator had misused. That

is why the trustees filed a lawsuit in United States District Court to h[o]ld her accountable for

nearly·$1.5 million in losses that were suffered by our benefit funds under her watch,” or

something to that effect. (Supp. App. at 235). That does not constitute direct or indirect

evidence that the Funds brought an unreasonable lawsuit “because of [plaintiff’s] reasonable

efforts at MCAD.” Psy-Ed Corp., 459 Mass. at 712.

In short, the filing of the lawsuit by defendants is protected by the First Amendment. See

also Sahli, 437 Mass. at 702 (noting that the Supreme Court “has held that the First Amendment

protects ‘[t]he filing and prosecution of a well-founded lawsuit [from being] enjoined as an

unfair labor practice, even if it would not have been commenced but for the plaintiff’s desire to

retaliate against the defendant for exercising rights protected by the [NLRA].’” (quoting Bill

Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731, 743 (1983)). Therefore, defendants’ motion

for summary judgment as to interference with rights will be granted.

E. Claim for Failure to Accommodate (Count 4)

Count Four alleges a claim for failure to accommodate in violation of Mass. Gen. Laws

ch. 151B. Under Massachusetts law, it is unlawful for an employer

to dismiss from employment or refuse to hire, rehire or advance in employment or

otherwise discriminate against, because of his handicap, any person alleging to be

a qualified handicapped person, capable of performing the essential functions of

the position involved with reasonable accommodation, unless the employer can

demonstrate that the accommodation required to be made to the physical or

mental limitations of the person would impose an undue hardship to the

employer’s business.

Mass. Gen. Laws ch. 151B, § 4(16). “Chapter 151B is considered the ‘Massachusetts analogue’

to the [ADA].” Sensing v. Outback Steakhouse of Fla., LLC, 575 F.3d 145, 153 (1st Cir. 2009).

Massachusetts courts therefore “look to the federal cases decided under the ADA as a guide to

the interpretation of [chapter] 151B.” Russell v. Cooley Dickinson Hosp., Inc., 437 Mass. 443,

451 n.6 (2002). A claim for failure to accommodate generally requires a plaintiff to show that

“(1) she is a handicapped person within the meaning of the statute; (2) she is qualified to perform

the essential functions of the job with or without reasonable accommodation; and (3) the

employer knew of her disability but did not reasonably accommodate it upon a request.” Henry

v. United Bank, 686 F.3d 50, 59-60 (1st Cir. 2012).10

It is undisputed that plaintiff was diagnosed with Type 1 diabetes in 2015. (SMF ¶ 89).

Under some circumstances, at least, that condition can qualify as a “handicap” under

Massachusetts law.11

10 See also Massachusetts Commission Against Discrimination, MCAD Guidelines: Employment

Discrimination on the Basis of Handicap, 16-17 https://www.mass.gov/doc/mcad-guidelines-on-disability-

discrimination-in-employment/download:

The Complainant must prove that (1) s/he was a qualified handicapped individual; (2) s/he needed

a reasonable accommodation due to her handicap to perform her job; (3) the employer was aware

of the handicap, and was aware that the employee needed reasonable accommodation to perform

her job; (4) the employer was aware of a means to reasonably accommodate the handicap, or the

employer breached a duty, if any, to undertake reasonable investigation of a means to reasonably

accommodate the handicap; and (5) the employer failed to provide the employee the reasonable

accommodation.

Sensing v. Outback Steakhouse of Fla., LLC, 575 F.3d 145, 153 (1st Cir. 2009) (“The guidelines represent the

MCAD’s interpretation of [Chapter] 151B, and are entitled to substantial deference, even though they do not carry

the force of law.”).

11 “The analysis of when and under what conditions diabetes is considered a disability for ADA purposes is

a matter of degree.” Carreras v. Sajo, Garcia & Partners, 596 F.3d 25, 34 (1st Cir. 2010). In that case, there was

evidence that “even when taking insulin, [the plaintiff’s] ability to regulate his blood sugar and metabolize food is

difficult, erratic, and substantially limited.” Id. (quoting Lawson v. CSX Transp., Inc., 245 F.3d 916, 924 (7th Cir.

Plaintiff alleges that on January 3, 2020, McLaughlin and Shea met with her to inform

her that her schedule would be altered to require an 8:00 a.m. start time. (SAF ¶ 58). She

contends that she reminded McLaughlin of her medical condition, explained that she needed to

take insulin at specific, uniform times, and requested to continue working on her usual, later

work schedule to allow management of her health condition. (Id.). She alleges that McLaughlin

refused to accommodate that request, stating, “no accommodation is granted,” or words to that

effect, while Shea kept her head down and was silent. (Id.). Although there is some ambiguity

in the record, it appears that McLaughlin refused to discuss the matter further. Alongi testified

that she complied with the new schedule, which caused her to forget to take her insulin several

times. (SMF ¶ 100).12

Defendants contend that plaintiff’s claim fails as a matter of law because her preferred

arrival time was neither necessary nor reasonable, and, even if it was, it posed an undue hardship

on the Funds. (Opp. at 24).

Plaintiff’s claimed need for the specific disputed accommodation—to arrive at work at

9:15 a.m. rather than 8:00 a.m.—is certainly dubious. She has provided no medical evidence that

such an accommodation was reasonable or necessary, and it is not obvious why she could not

simply set her alarm clock an hour earlier. But it does not appear that the Funds requested that

2001)). Here, even if taking insulin substantially or entirely mitigates plaintiff’s condition, that does not prevent her

from qualifying as “handicapped” under Chapter 151B. See Miller v. Verizon Commc’ns, Inc., 474 F. Supp. 2d 187,

198 (D. Mass. 2007) (“That [mitigating measures] limitation does not exist under chapter 151 B.”); Dahill v. Police

Dep’t of Boston, 748 N.E.2d 956, 963-64 (Mass. 2001) (“Determining ‘handicap’ with reference to mitigating

measures might produce anomalous results.”).

12 It is unclear if plaintiff attempts to assert a failure to accommodate claim as to the exclusion of her dog

from the office, which allegedly occurred in November of 2018. (Compare Counterclaims ¶¶ 85-91 with Opp. at

18). To the extent that she does, she has not established that such untimely conduct may comprise a claim. See

Tobin v. Liberty Mut. Ins. Co., 553 F.3d 121, 130 (1st Cir. 2009) (“By contrast, the denial of a disabled employee’s

request for accommodation starts the clock running on the day it occurs. As we have noted, such a denial is a

discrete discriminatory act that . . . does not require repeated conduct to establish an actionable claim.”).

she provide any medical documentation in support of her request. (SMF ¶ 89). Cf. Tchankpa v.

Ascena Retail Grp., Inc., 951 F.3d 805, 813 (6th Cir. 2020) (“An employee might not always

need to show his accommodation is medically necessary to win a failure to accommodate claim.

But he must do so when asked by his employer.”).

Furthermore, the facts of this case are somewhat unusual; rather than requesting a new

accommodation, plaintiff sought to keep a previously performed schedule as an accommodation.

The Funds had been operating for many years with that schedule. Thus, a jury could find that

plaintiff made “at least a facial showing that reasonable accommodation is possible.” Godfrey v.

Globe Newspaper Co., 457 Mass. 113, 120 (2010).

“Once a qualified individual with a disability has requested provision of a reasonable

accommodation, the employer must make a reasonable effort to determine the appropriate

accommodation . . . through a flexible, interactive process that involves both the employer and

the qualified individual with a disability.” Russell v. Cooley Dickinson Hosp., Inc., 437 Mass.

443, 457 (2002). An employee’s initial request for an accommodation “triggers the employer’s

obligation to participate in the ‘interactive process’ of determining one.” Id. “The refusal of an

employer to participate in that process once initiated, or to make a reasonable accommodation

once it has been identified, is a violation of [Massachusetts] discrimination laws.” Ocean Spray

Cranberries, Inc. v. Massachusetts Comm’n Against Discrimination, 441 Mass. 632, 644 (2004).

Again, plaintiff alleges that she orally requested the accommodation from McLaughlin,

and that he replied that no accommodation would be granted. (SAF ¶ 58). Defendants do not

contend that there was a more formal request process that plaintiff failed to follow.13 Thus, she

13 Moreover, that process is consistent with another alleged requested accommodation on the record, where

a formal notice disallowing animals in the office stated, “If you require a reasonable accommodation per the

Americans With Disabilities Act, please contact Business Manager, Bill McLaughlin.” (App. 463).

appears to have requested an accommodation and accordingly triggered the obligation to

participate if her request was reasonable.

“A careful, individualized review of an accommodation request in light of the specific

facts of the case is needed to determine whether the request was reasonable.” Calero-Cerezo v.

U.S. Dep’t of Just., 355 F.3d 6, 23 (1st Cir. 2004). Chapter 151B specifically provides that a

“‘[r]easonable accommodation’, may include, but shall not be limited to: . . . (ix) a modified

work schedule.” See Mass. Gen. Laws Ann. ch. 151B, § 4; Kvorjak v. Maine, 259 F.3d 48, 52

(1st Cir. 2001). Furthermore, as noted, plaintiff’s suggested schedule was based on her past

practice. At minimum, there is a dispute as to whether the request was reasonable, and whether

the Funds had an obligation to engage with her further in an interactive process to determine

whether it was in fact a reasonable accommodation or to request additional evidence that such

accommodation was reasonably medically necessary.

Accordingly, defendants’ motion for summary judgment will be denied as to the failure

to accommodate claims.

1. McLaughlin’s Individual Liability

Certain “provisions of Section 4 state that individuals, qua individuals, and not merely

qua employer, may be found liable if they engage in practices which are unlawful under [Mass.

Gen. Laws, ch.] 151B.” Ruffino v. State St. Bank & Tr. Co., 908 F. Supp. 1019, 1048 (D. Mass.

1995). Section 4(16) applies, on its face, to employers, not individual employees. See id.; Melo

v. City of Somerville, 2020 WL 6945938, at *3 (D. Mass. Nov. 25, 2020); Beaupre v. Cliff Smith

& Assocs., 50 Mass. App. Ct. 480, 491 n.16 (2000). Plaintiff does not cite authority to the

contrary. (See Opp. at 6 n.1). Cf. Morrill v. Lowe’s Home Ctrs., LLC, 2022 WL 2168479, at *8

(Mass. Super. Apr. 19, 2022). Accordingly, McLaughlin cannot be held liable for failure to

accommodate under § 4(16).

However, McLaughlin can be held individually liable for interfering with plaintiff’s right

to a reasonable accommodation under § 4(4A). See Kleya v. Karl Storz Endovision, Inc., 385 F.

Supp. 3d 99, 105, n.3 (D. Mass. 2019) (noting that an individual may be liable under Chapter

151B, § 4(4A) for interfering with an employee’s right to an accommodation); Bendell v. Lemax,

Inc., 2000 WL 33665429 (MCAD July 31, 2000). That is apparently plaintiff’s claim. (Opp. at

6 n.1).14

In reply, defendants contend that this court recently held in a summary judgment decision

that the failure to accommodation section of Chapter 151B does not provide for individual

liability. (Reply at 6-7). See Melo v. City of Somerville, 2020 WL 6945938, at *3 (D. Mass.

Nov. 25, 2020). That case held that § 4(16), specifically, does not provide for individual

liability, and did not make the negative point as to § 4(4A), perhaps because plaintiff had not

stated a claim under § 4(4A). Id. Here, as in Kleya, plaintiff moved for relief under § 4(4A).

Supp. 3d 99 at 105, n.3. Plaintiff also incorporated the factual allegations regarding

McLaughlin’s failure to accommodate by reference into that claim. (Counterclaims ¶ 92).

Most importantly, plaintiff has put forth sufficient facts to create a genuine dispute as to

whether McLaughlin interfered with plaintiff’s exercise or enjoyment of her right to work free of

unlawful discrimination. (SMF ¶¶ 86-96; SAF ¶¶ 56-58). See Bendell, 2000 WL 33665429, at

*8-9. Accordingly, summary judgment will be granted as to McLaughlin to the extent plaintiff

claims individual liability for failure to accommodate pursuant to § 4(16) and will be denied as to

the claim for interference with the right to reasonable accommodation pursuant to § 4(4A).

14 As referenced above, it is also notable that plaintiff did not cite a specific section in her failure to

accommodate counterclaim, perhaps previewing, if obliquely, this oddity in Chapter 151B. (See Counterclaims at

¶¶ 85-91).

IV. Conclusion

For the foregoing reasons, defendants’ motion for summary judgment is GRANTED to

the extent the counterclaims seek to hold William McLaughlin individually liable under 151B,

§ 4(16) (Count 4, in part) and as to the claim for interference with rights concerning the present

litigation (Count 5), and otherwise DENIED.

So Ordered.

/s/ F. Dennis Saylor IV

F. Dennis Saylor IV

Dated: May 3, 2024 Chief Judge, United States District Court