United States Court of Appeals

For the First Circuit

No. 04-1719

CHRISTI NOVIELLO,

Plaintiff, Appellant,

v.

CITY OF BOSTON,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

 Boudin, Chief Judge,

Selya, Circuit Judge,

and Cyr, Senior Circuit Judge.

Robert S. Mantell, with whom Kevin G. Powers and Rodgers,

Powers & Schwartz LLP were on brief, for appellant.

Karen A. Glasgow, Assistant Corporation Counsel, with whom

Merita A. Hopkins, Corporation Counsel, was on brief, for appellee.

February 16, 2005
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SELYA, Circuit Judge. This discrimination case, brought

under both federal and state law, involves charges of sexual and

retaliatory harassment. Faced with a plethora of issues, the

district court entered summary judgment for the defendant. On

appeal, we must sort out which of the plaintiff's claims are

timely; address whether her timeous claims for retaliatory

harassment, cast in the form of a hostile work environment, are

legally cognizable and sufficiently supported; grapple with her one

timely claim of sexual harassment, also cast in the form of a

hostile work environment; and discuss various aspects of the case

relating to employer liability. After careful consideration of

these variegated issues, we conclude (i) that the district court

erred in granting summary judgment on the retaliation claims, as

those claims are timely, cognizable, and supported by sufficient

evidence, but (ii) that the district court correctly entered

summary judgment on the sexual harassment claims: despite the

attempt to recast them in a hostile work environment format, the

state-law claim is time-barred and its federal analogue runs afoul

of an inexpugnable affirmative defense — the employer's swift,

effective, and non-negligent response to the underlying incident.

Accordingly, we vacate in part, affirm in part, and remand for

further proceedings.
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I. BACKGROUND

Because this appeal follows a grant of summary judgment,

we rehearse the facts in the light most favorable to the nonmoving

party (here, the plaintiff), consistent with record support.

Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990). That

approach entails, among other things, giving the nonmovant the

benefit of all reasonable inferences that those facts will bear.

Id.

A. The Facts.

While on the job on September 11, 1999, plaintiffappellant Christi Noviello, a parking enforcement officer for the

city of Boston, was riding in a city-owned van with her immediate

superior, José Ortiz. After first announcing his intentions, Ortiz

forcibly unhooked the plaintiff's brassière, ripped it from her

body, hung it on the van's outside mirror, and bellowed a crude

sexual remark to a fellow employee on the street. Over the next

few days, the plaintiff reported the incident to a number of

municipal hierarchs. They promptly investigated the matter,

suspended Ortiz a week after the incident, and ultimately cashiered

him.

Soon after Ortiz's banishment, coworkers began to subject

the plaintiff to sundry indignities, or, in the words of the

employees themselves, to "bust[] her chops." The record contains

evidence of the following incidents (the plaintiff recounts others,
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but we have omitted those that lack any conceivable probative

value):

C On October 5, 1999, Barbara DiGirolamo

accused the plaintiff of throwing a

tampon at a coworker. The charge

fizzled out after several witnesses

attested to its falsity.

C On October 26, 1999, a coworker shouted

that the plaintiff was the "scum of the

earth." Another loudly proclaimed, in

reference to the plaintiff, "I smell a

rat, do you smell a rat?" Yet another

lamented that the parking enforcement

officers' "good" supervisor had been

drummed out of office. The plaintiff

complained to a senior supervisor,

Irene Landry, who took no action.

C On December 8, 1999, a new employee

told the plaintiff that although he had

no problem with her, other coworkers

had advised him to "stay away" because

she was "trouble."

C On December 9, 1999, the entire

department ostracized the plaintiff

during a holiday party. Consequently,

she sat alone for two hours. A deputy

commissioner saw her sitting alone,

acknowledged the ostracism, and

suggested that she change her shift.

The plaintiff took the advice, but the

harassment continued.

C On December 16, 1999, DiGirolamo

informed the plaintiff that all

personnel on her shift had to take

their dinner breaks separately. The

plaintiff later learned that this was

not true and that she was the only

person who had been told to eat alone.

C On December 21, 1999, Bernadette

Gilardi announced in front of the

plaintiff that she would be taking up a
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collection for Ortiz. She proceeded to

do so during working hours.

C On December 23, 1999, the plaintiff

attended a holiday party on the

department's premises. The collection

for Ortiz was in full flower.

Coworkers waved the money they had

amassed in the plaintiff's face,

crowing "look how much money we have

collected!" One of the plaintiff's

superiors, Kathy O'Brien, advised her

to "go to the office" about the

harassment. There is no evidence,

however, that O'Brien intervened to

stop the ongoing conduct.

C On December 30, 1999, the plaintiff met

with a high-level supervisor, Kathleen

Moccia. She described the toll that

the harassment was taking on her and

asked Moccia why management was

tolerating the harassment. Moccia did

not intervene. Moreover, she stated

that she did not think that the

harassment would stop; rather, she

forecast that it would become "ten

times worse" with the plaintiff's

recent shift change.

C In January of 2000, a tow truck driver

told the plaintiff that Gilardi had

begun circulating a petition urging

management to dismiss the plaintiff,

but that he had refused to sign it.

C During a snowstorm that month, Gilardi

refused to pick up the plaintiff from

her route. Although that refusal, duly

reported, was in derogation of

departmental policy, there is no

evidence that Gilardi was sanctioned or

punished in any way.

On March 6, 2000, the plaintiff filed a complaint with

the Massachusetts Commission Against Discrimination (MCAD) and the
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federal Equal Employment Opportunity Commission (EEOC). The

harassment nonetheless persisted. Two examples follow:

C In February of 2001, the plaintiff

approached a van that was used to

transport parking enforcement officers

to their posts. Gilardi was at the

wheel. When she saw the plaintiff

approach, she closed the van's door,

ignored the plaintiff's tapping on the

window, and drove away, nearly striking

the plaintiff. The plaintiff reported

the incident and Gilardi admitted that

she had seen the plaintiff but

nonetheless had pulled away. There is

no evidence that Gilardi was

disciplined for this conduct.

C In March of 2001, Gilardi told a

coworker, in reference to Ortiz's

firing, that the plaintiff's "payday"

was drawing near.

The plaintiff alleges that, as a result of this steady

stream of what she characterizes as retaliatory harassment, she

lost weight, experienced nightmares and panic attacks, became

anxious at work, and was forced to seek medical care.

B. Travel of the Case.

On October 16, 2002, the plaintiff requested withdrawal

of her administrative complaint in order to pave the way for the

institution of suit. The MCAD obliged and the plaintiff commenced

a civil action against the city in a Massachusetts state court.

Her complaint, filed on November 1, 2002, charged the city with

violations of Mass. Gen. Laws ch. 151B, § 4. On April 25, 2003,

the plaintiff received a right-to-sue letter from the EEOC. One
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month later, she amended her state court complaint to include Title

VII claims. See 42 U.S.C. §§ 2000e-2, e-3. At that point, the

city removed the case to the federal district court. See 28 U.S.C.

§§ 1331, 1441.

In due course, the city moved for summary judgment under

Fed. R. Civ. P. 56, arguing (i) that most of the plaintiff's claims

under chapter 151B were time-barred; (ii) that those which remained

were not actionable; (iii) that as to the federal retaliation

claims, the evidence, even when interpreted in the light most

favorable to the plaintiff, did not reveal any actionable conduct;

and (iv) that the city could not be held liable for Ortiz's

behavior because it had taken prompt and effective remedial action.

The plaintiff opposed the motion. Ruling ore sponte, the district

court granted summary judgment for the city. The court concluded

that there was no timely sexual harassment claim under chapter 151B

and that the city's response to the Ortiz incident foreclosed any

sexual harassment claim under Title VII. As to the retaliation

claims, the court acknowledged that, viewing the proof in the

requisite light, the plaintiff had been subjected to a "series of

distasteful, unpleasant, non-empathetic acts . . . by a series of

subordinate officials." Nevertheless, the court concluded that the

retaliation claims must fail because none of the individual

incidents was an "adverse employment action[]" that bore directly
1This is an odd configuration for the claim that Ortiz, on a

single occasion, sexually harassed the plaintiff. We assume that

the plaintiff attempts to force the harassment claim into that mold

in an effort to elude the limitations question under chapter 151B.

See infra Part II(B).

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upon the terms and conditions of the plaintiff's employment. This

timely appeal followed.

II. ANALYSIS

The plaintiff's suit implicates both federal and state

anti-discrimination and anti-retaliation statues. It requires us

to confront — and resolve — two questions of first impression in

this circuit.

 As framed, all of the plaintiff's claims are dependent

upon her allegation that the city tolerated a hostile work

environment.1 In general, a plaintiff may recover on such a theory

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." Harris v. Forklift Sys., Inc., 510

U.S. 17, 21 (1993) (citations and internal quotation marks

omitted); accord O'Rourke v. City of Providence, 235 F.3d 713, 728

(1st Cir. 2001); Muzzy v. Cahillane Motors, Inc., 749 N.E.2d 691,

694 (Mass. 2001). The plaintiff's hostile work environment claims

are of two types.

Most hostile work environments are bred from an ongoing

series of harassing incidents. The plaintiff's claim of a hostile
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work environment, based singularly upon Ortiz's assault, is not of

this ilk. However, a single act of harassment may, if egregious

enough, suffice to evince a hostile work environment. See Faragher

v. City of Boca Raton, 524 U.S. 775, 788 (1998) (Title VII); Gnerre

v. MCAD, 524 N.E.2d 84, 88-89 (Mass. 1988) (chapter 151B). The

plaintiff's claims of a retaliatory hostile work environment are

more stereotypical. These claims are based upon the pervasive

retaliation that the plaintiff allegedly experienced after

complaining about Ortiz's assault.

With this brief preface, we proceed to explicate the

summary judgment standard and then examine the anatomy of the

plaintiff's claims.

A. The Summary Judgment Standard.

An order granting summary judgment engenders de novo

review. Serapion v. Martinez, 119 F.3d 982, 987 (1st Cir. 1997).

In conducting that review, we must scrutinize the evidence in the

light most agreeable to the nonmoving party, giving that party the

benefit of any and all reasonable inferences. Cox v. Hainey, 391

F.3d 25, 27 (1st Cir. 2004). For her part, the nonmovant bears

"the burden of producing specific facts sufficient to deflect the

swing of the summary judgment scythe." Mulvihill v. Top-Flite Golf

Co., 335 F.3d 15, 19 (1st Cir. 2003). Those facts, typically set

forth in affidavits, depositions, and the like, must have

evidentiary value; as a rule, "[e]vidence that is inadmissible at
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trial, such as inadmissible hearsay, may not be considered on

summary judgment." Vazquez v. Lopez-Rosario, 134 F.3d 28, 33 (1st

Cir. 1998); accord Garside, 895 F.2d at 49.

Most of the facts presented by the plaintiff, as

recounted above, satisfy this standard. In large part, the

chronicled events are within the plaintiff's personal knowledge.

The insults and taunting that the plaintiff recounts do not create

hearsay problems; those statements are not offered for their truth,

but, rather, to show that the words were spoken (and, thus,

contributed to the hostile work environment). They are, therefore,

admissible. See Mota v. Univ. of Tex. Houston Health Sci. Ctr.,

261 F.3d 512, 526 n.46 (5th Cir. 2001). The statements made by

supervisors are admissible as non-hearsay statements of the

defendant's agents made within the scope of their employment. See

Fed. R. Evid. 801(d)(2)(D).

We note, however, that two statements give us pause. The

first is a statement from an unnamed coworker that other employees

told him to "stay away" from the plaintiff as she was "trouble."

Insofar as the plaintiff is attempting to introduce this statement

as evidence of other coworkers' harassing behavior, it is hearsay;

its probative value ultimately depends on the truth of the

declarant's own unsworn out-of-court utterance. It is, therefore,
2Were that statement offered as evidence of the declarant's

contribution to the hostile work environment, it would likely be

admissible. In that event, its effect on the plaintiff would be

the same regardless of the truth of the matter asserted. See Mota,

261 F.3d at 526 n.46. Here, however, the plaintiff's affidavit

takes the air out of any suggestion that the declarant's statement

was itself a product of retaliatory animus.

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inadmissible.2 See Fed. R. Evid. 801, 802; see also Vazquez, 134

F.3d at 34. A similar problem exists with respect to the

plaintiff's assertion that a tow truck driver said that Gilardi had

been circulating a petition to have the plaintiff fired.

Consequently, we cannot consider the content of either statement in

analyzing the plaintiff's claims. See LaRou v. Ridlon, 98 F.3d

659, 663 (1st Cir. 1996) (branding incompetent on summary judgment

portions of a party's affidavit recounting inadmissible hearsay).

B. Timeliness.

The first question that we must answer pertains to

timeliness. In order to prosecute a harassment claim under either

Massachusetts or federal law, an aggrieved party must first file a

timely administrative complaint. The time parameters for these

filings differ. In 1999, chapter 151B mandated filing with the

MCAD within six months of the alleged violation. See Mass. Gen.

Laws ch. 151B, § 5 (1989) (amended 2002). By contrast, the EEOC

filing had to occur within 300 days of the date of the alleged

violation. See 42 U.S.C. § 2000e-5(e)(1); see also Sabree v.

United Bhd. of Carpenters & Joiners, 921 F.2d 396, 399 & n.5 (1st

Cir. 1990) (discussing timely filing of charges of discrimination
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with the EEOC in "deferral" states, i.e., states such as

Massachusetts, which have their own civil rights statute and

agency). There is no dispute that the plaintiff met these

administrative deadlines; the earliest incident of alleged

harassment occurred on September 11, 1999, and the plaintiff's

administrative complaint was filed with both agencies on March 6,

2000.

A claimant who wishes to sue under chapter 151B must

allow a waiting period to pass, file her suit, and notify the MCAD

(which is then required to dismiss the administrative proceeding).

Mass. Gen. Laws ch. 151B, § 9. This civil suit must be instituted

no later than three years after the occurrence of the alleged

violation. See id. The federal prototype is different. A Title

VII claimant may sue only after the EEOC issues a right-to-sue

letter. 42 U.S.C. § 2000e-5(f)(1). Once such a letter is

received, the claimant must file her suit within ninety days. Id.

The fact that an analogous state statute of limitations has expired

with respect to a parallel state harassment action does not create

a temporal bar to a Title VII suit. See Burgh v. Borough Council,

251 F.3d 465, 473 (3d Cir. 2001); Kirk v. Rockwell Int'l Corp., 578

F.2d 814, 819 (9th Cir. 1978); Draper v. U.S. Pipe & Foundry Co.,

527 F.2d 515, 522 (6th Cir. 1975).

Here, the plaintiff's Title VII claims are unquestionably

timely: she received a right-to-sue letter on April 25, 2003 and
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added her Title VII claims to her pending suit on May 19, 2003.

The situation is more tenebrous with regard to the chapter 151B

claims. The plaintiff first brought suit on these claims on

November 1, 2002. Based on the three-year statute of limitations

applicable to chapter 151B actions, this would seem to foreclose

recovery for any incidents that occurred prior to November 1, 1999,

including the original sexual harassment and several of the

instances of alleged retaliation.

The plaintiff offers a theory as to why these claims

nonetheless are timely. After reviewing her thesis, we conclude

that her state-law claims based on the Ortiz imbroglio are barred

but that her retaliation claims are not. We explain briefly.

Massachusetts law recognizes that "some claims of

discrimination involve a series of related events that have to be

viewed in their totality in order to assess adequately their

discriminatory nature and impact." Cuddyer v. Stop & Shop

Supermarket Co., 750 N.E.2d 928, 936 (Mass. 2001). Under this

continuing violation doctrine, a plaintiff who ordinarily would be

unable to recover damages for discrete acts of discrimination

falling outside the limitations period may avoid that bar if those

acts are shown to be part of a pattern of discrimination anchored

by acts that occurred within the limitations period. Id. at 936-

37. Hostile environment claims, by their nature, often fall within

this rubric. See id. at 937; Clifton v. Mass. Bay Transp. Auth.,
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815 N.E.2d 614, 624 (Mass. App. Ct. 2004). In such situations,

however, the anchoring event must "substantially relate[] to

earlier incidents of abuse and substantially contribute[] to the

continuation of a hostile work environment." Cuddyer, 750 N.E.2d

at 938.

The application of the continuing violation doctrine

sometimes has the effect of expanding the three-year filing

deadline for suits under chapter 151B. See, e.g., Clifton, 815

N.E.2d at 620-21; Carter v. Comm'r of Corr., 681 N.E.2d 1255, 1261-

62 (Mass. App. Ct. 1997). We thus confront the question of whether

the facts in this case, taken in the light most favorable to the

plaintiff, make out a continuing violation.

On the one hand, we think that reasonable jurors could

find that the distasteful and unpleasant actions undertaken by the

plaintiff's coworkers before and after November 1, 1999 were part

of a pattern of retaliation. For one thing, the harassment began

soon after the plaintiff lodged her initial complaint about Ortiz's

boorishness and surfaced most frequently in the first few months

after Ortiz was dismissed. When harassment follows hard on the

heels of protected activity, the timing often is strongly

suggestive of retaliation. See Oliver v. Digital Equip. Corp.,

846 F.2d 103, 110 (1st Cir. 1988); Mole v. Univ. of Mass., 814

N.E.2d 329, 341 (Mass. 2004). For another thing, the harassment

itself offered circumstantial evidence of causation; coworkers
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referred to the plaintiff as a "rat" (a term that connotes an

informer or snitch), lamented the firing of their "good

supervisor," and took up a collection for his benefit. Even as

late as 2001, Gilardi committed an act of harassment and, shortly

thereafter, made reference to the plaintiff's upcoming "payday."

Up to that point, we believe that reasonable jurors could deem the

listed incidents to comprise a pattern of retaliatory harassment.

Since this pattern includes events within and without the

limitations period, we are free to use incidents from both periods

in deciding whether the plaintiff has made out a prima facie case

of a hostile work environment under chapter 151B.

That said, we find unpersuasive the plaintiff's labored

effort to include Ortiz's solitary act of sexual harassment as part

of the pattern of subsequent retaliatory acts. This attempted

agglomeration relies heavily, but mistakenly, upon the MCAD's

decision in Muise v. Credit Exch., 17 M.D.L.R. 1684 (MCAD 1995), a

case in which the agency said that timely incidents of retaliation

may anchor an untimely incident of sexual harassment if "the charge

of retaliation is inextricably related to the original charge of

sexual harassment." Id. at 1690. The plaintiff overlooks that in

order to invoke this doctrine, a claimant must show at a bare

minimum a series of discriminatory acts that emanate from the same

discriminatory animus. See Provencher v. CVS Pharmacy, 145 F.3d 5,
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14 (1st Cir. 1998); see also Morrisey v. Holiday Inn, 25 M.D.L.R.

74, 86 n.12 (MCAD 2003) (citing Provencher). We explain briefly.

When an individual sexually harasses a victim and then

engages in non-sexual retaliatory harassment, the sexual and nonsexual harassment arguably may be part and parcel of the same

violation. Cf. O'Rourke, 235 F.3d at 729 (noting that, in such

circumstances, the non-sexual harassment is still charged with the

original animus). But cf. Morris v. Oldham County Fiscal Court,

201 F.3d 784, 790-91 (6th Cir. 2000) (refusing to aggregate sexual

harassment and non-sexual retaliatory harassment undertaken by a

single supervisor). That was the fact pattern in Muise, 17

M.D.L.R. at 1686-87.

The majority of cases are not cut from this seamless

cloth. Even when retaliation is derivative of a particular act of

harassment, it normally does not stem from the same animus. Most

often, retaliation is a distinct and independent act of

discrimination, motivated by a discrete intention to punish a

person who has rocked the boat by complaining about an unlawful

employment practice. See, e.g., Ruffino v. State St. Bank & Trust

Co., 908 F. Supp. 1019, 1040 (D. Mass. 1995); Tinkham v. Flatley

Co., No. 98-BEM-0437, 2004 WL 1746070, at *12 (MCAD July 7, 2004)

(quoting Ruffino). That is a different animus than the sexual

animus that drove the original harassment.
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This case aptly illustrates the disparity of motives.

Ortiz's attack was a one-time incident of sexual harassment. By

contrast, the retaliatory harassment consisted of a series of

discrete acts orchestrated by a cohort of different individuals

(not including Ortiz) and occurring over a period of many months

(beginning only after Ortiz was suspended). Of critical

importance, nothing in the record indicates that these retaliatory

acts were undertaken for reasons related to the plaintiff's gender.

As such, the sexual harassment and retaliatory harassment in this

case must be viewed for what they are: two separate and

independent harms. See Goguen v. Quality Plan Adm'rs, 11 Mass. L.

Rptr. 288, 2000 WL 282485, at *4 (Mass. Super. Ct. 2000) (holding

that sexual harassment by one person and subsequent retaliation by

another are not sufficiently related to add up to a single

continuing violation); cf. Sitar v. Ind. Dep't. of Transp., 344

F.3d 720, 726 (7th Cir. 2003) (noting generally that "retaliation

. . . and sexual harassment charges are not 'like or reasonably

related' to one another to permit an EEOC charge of one type of

wrong to support a subsequent civil suit for another"). The

plaintiff cannot rely on the second to revive the first.

For much the same reason, we decline the plaintiff's

invitation to treat her case as one involving a "mixed-motive"

claim. In support of this entreaty, the plaintiff relies upon Lam

v. Univ. of Hawai'i, 40 F.3d 1551 (9th Cir. 1994), and Hicks v.
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Gates Rubber Co., 833 F.2d 1406 (10th Cir. 1987). Both decisions

held, however, that race and sex may be aggregated under Title VII

where the allegations involved discrimination against a subclass of

people sharing both protected traits but not against those sharing

only one or the other. See Lam, 40 F.3d at 1561-62 (involving

discrimination against a subclass of Asian women); Hicks, 833 F.2d

at 1416 & n.2 (involving discrimination against a subclass of black

women). Such a claim still involves a single wrong and a single

harm, prompted by a single animus. That is clearly not the case

here: Ortiz's assault was not directed at the plaintiff due to her

status as a complaining woman, as she was not yet a member of that

subclass when the assault occurred. Lam and Hicks are, therefore,

inapposite.

To sum up, we find timely the plaintiff's Title VII

sexual harassment claim and her federal and state claims for

retaliatory harassment. We find untimely, however, her state-law

sexual harassment claim (and, therefore, affirm the district

court's entry of summary judgment for the defendant on that claim).

C. Retaliatory Hostile Work Environment: Cognizability.

We turn now to the cognizability of the retaliatory

harassment claims. Both Title VII and chapter 151B contain

provisions that make it unlawful for employers to retaliate against

persons who complain about unlawfully discriminatory employment

practices. See 42 U.S.C. § 2000e-3(a); Mass. Gen. Laws ch. 151B,
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§ 4(4). To engage the gears of either statute, a plaintiff must

show that (i) she undertook protected conduct, (ii) she suffered an

adverse employment action, and (iii) the two were causally linked.

See Dressler v. Daniel, 315 F.3d 75, 78 (1st Cir. 2003) (Title

VII); Sullivan v. Raytheon Co., 262 F.3d 41, 48 (1st Cir. 2001)

(chapter 151B).

Here, there is no dispute that the plaintiff engaged in

protected activity by filing a complaint. The parties instead spar

over the second and third elements, which in this instance collapse

into a single question: did the plaintiff sustain an adverse

employment action in the form of a hostile work environment based

on retaliation for filing a sexual harassment complaint against

Ortiz?

Typically, an adverse employment action involves a

discrete change in the terms and conditions of employment (say, a

discharge, demotion, or reduction in pay). This case is more

nuanced. In order for the plaintiff to survive summary judgment on

this record, she must show that, as a legal matter, the creation

and perpetuation of a hostile work environment itself can

constitute a retaliatory adverse employment action. She also must

show that, as a factual matter, her coworkers' actions furnished a

sufficient basis to ground a finding that a hostile work

environment actually existed.
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As to the legal point, the plaintiff maintains that a

hostile work environment may constitute an adverse employment

action for purposes of both Title VII and chapter 151B. The city

demurs. It notes that the plaintiff has not been cashiered,

demoted, denied promotion, stripped of meaningful duties, or

otherwise materially disadvantaged in the terms and conditions of

her employment. Thus, the city argues, she cannot be said to have

suffered an adverse employment action.

This precise question — whether a hostile work

environment can constitute a retaliatory adverse employment action

— has never been fully addressed either by this court (with regard

to Title VII) or by the Massachusetts Supreme Judicial Court (with

regard to chapter 151B). We look at the federal and state claims

separately.

1. Title VII. The weight of authority supports the view

that, under Title VII, the creation and perpetuation of a hostile

work environment can comprise a retaliatory adverse employment

action under 42 U.S.C. § 2000e-3(a). See, e.g., Von Gunten v.

Maryland, 243 F.3d 858, 864-65 (4th Cir. 2001); Ray v. Henderson,

217 F.3d 1234, 1244-45 (9th Cir. 2000); Morris, 201 F.3d at 791;

Richardson v. N.Y. State Dep't of Corr. Serv., 180 F.3d 426, 446

(2d Cir. 1999); Gunnell v. Utah Valley State Coll., 152 F.3d 1253,

1264 (10th Cir. 1998); Wideman v. Wal-Mart Stores, Inc., 141 F.3d

1453, 1456 (11th Cir. 1998); Knox v. Indiana, 93 F.3d 1327, 1334-35
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(7th Cir. 1996). That view has engendered a circuit split. The

Fifth Circuit has held that a hostile work environment cannot

constitute a retaliatory adverse employment action; instead,

retaliation requires an "ultimate employment decision . . . such as

hiring, granting leave, discharging, promoting, and compensating."

Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir. 1997);

see also id. at 709. The Eighth Circuit also requires an "ultimate

employment decision," Ledergerber v. Stangler, 122 F.3d 1142, 1144

(8th Cir. 1997), but defines that term somewhat more elastically,

see, e.g., Scusa v. Nestle U.S.A. Co., 181 F.3d 958, 968-69 (8th

Cir. 1999).

Although this court has never fully analyzed the

question, our case law tilts noticeably toward the majority view.

The pertinent decisions form a totem pole. At the base of the pole

is Wyatt v. City of Boston, 35 F.3d 13 (1st Cir. 1994) (per

curiam), where, in dictum, we cited a treatise for the proposition

that "toleration of harassment by other employees" might amount to

an adverse employment action. Id. at 15-16 (citing 3 Arthur Larson

& Lex K. Larson, Employment Discrimination § 87.20 (1994)). That

led to a series of epibolies: in Hernandez-Torres v.

Intercontinental Trading, Inc., 158 F.3d 43, 47 (1st Cir. 1998), we

paraphrased the Wyatt dictum; in White v. New Hampshire Department

of Corrections, 221 F.3d 254, 262 (1st Cir. 2000), we noted the

Hernandez-Torres paraphrase with approbation; in Marrero v. Goya of
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Puerto Rico, Inc., 304 F.3d 7, 26 (1st Cir. 2002), we approvingly

cited White's reference; and in Che v. Massachusetts Bay

Transportation Authority, 342 F.3d 31, 40 (1st Cir. 2003), we made

a bow in the direction of Marrero. This totem pole is highly

suggestive. Today, we cap it off and hold explicitly that a

hostile work environment, tolerated by the employer, is cognizable

as a retalitory adverse employment action for purposes of 42 U.S.C.

§ 2000e-3(a). This means that workplace harassment, if

sufficiently severe or pervasive, may in and of itself constitute

an adverse employment action sufficient to satisfy the second prong

of the prima facie case for Title VII retaliation cases.

This conclusion is compelled by the statutory text and

comports with congressional intent. The operative provision of

Title VII makes it unlawful "to discriminate against any individual

with respect to his compensation, terms, conditions, or privileges

of employment, because of such individual's . . . sex." 42 U.S.C.

§ 2000e-2(a)(1). Given Congress's intention "to strike at the

entire spectrum of disparate treatment of men and women in

employment, which includes requiring people to work in a

discriminatorily hostile or abusive environment," Harris, 510 U.S.

at 21 (citation and internal quotation marks omitted), it makes

sense to construe the qualifier (regarding "compensation, terms,

conditions, or privileges of employment") broadly. On that basis,

the verb "discriminate," as used in section 2000e-2(a)(1),
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logically includes subjecting a person to a hostile work

environment. See Morris, 201 F.3d at 791-92.

We move next to Title VII's anti-retaliation provision.

That provision directs an employer not to discriminate against any

employee "because [the employee] has made a charge, testified,

assisted, or participated in any manner in an investigation,

proceeding, or hearing under [Title VII]." 42 U.S.C. § 2000e-3(a).

Here, the term "discriminate" appears without the qualifier. A

familiar canon of construction teaches that "[a] term appearing in

several places in a statutory text is generally read the same way

each time it appears." Ratzlaf v. United States, 510 U.S. 135, 143

(1994). We apply that canon here. The result: the verb

"discriminate" in the anti-retaliation clause includes subjecting

a person to a hostile work environment. See Morris, 201 F.3d at

792; see also Knox, 93 F.3d at 1334 ("Nothing indicates why . . .

retaliating against a complainant by permitting her fellow

employees to punish her for invoking her rights under Title VII .

. . does not fall within the statute.").

Our interpretation of the statutory text is shared by the

EEOC, which finds the lack of any qualifier on the term

"discriminate" in the anti-retaliation context to evince a purpose

to "prohibit any discrimination that is reasonably likely to deter

protected activity." EEOC Compl. Man. (CCH) ¶ 8005, § 8-II.D.3

(2004). This is important because an administrative interpretation
3We emphasize that we refer here only to Skidmore deference,

not Chevron deference. Compare Skidmore v. Swift & Co., 323 U.S.

134, 140 (1944), with Chevron U.S.A. Inc. v. Natural Res. Def.

Council, Inc., 467 U.S. 837, 843-44 (1984). After all, statements

in the EEOC's Compliance Manual are neither adjudicatory nor the

product of notice-and-comment rulemaking. See United States v.

City of New York, 359 F.3d 83, 93 (2d Cir. 2004); cf. Navarro v.

Pfizer Corp., 261 F.3d 90, 99 (1st Cir. 2001). They are,

therefore, entitled to deference only to the extent that they have

the power to persuade. See Christensen v. Harris County, 529 U.S.

576, 587 (2000).

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of a federal statute by the agency charged with its enforcement,

while not controlling upon the courts, constitutes an informed

judgment to which some deference ordinarily is due.3 See Meritor

Sav. Bank v. Vinson, 477 U.S. 57, 65 (1986).

If more were needed — and we doubt that it is — this

capacious reading of section 2000e-3(a) is consonant with its

purpose of "[m]aintaining unfettered access to statutory remedial

mechanisms." Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997).

Harassment by coworkers as a punishment for undertaking protected

activity is a paradigmatic example of adverse treatment spurred by

retaliatory motives and, as such, is likely to deter the

complaining party (or others) from engaging in protected activity.

Ray, 217 F.3d at 1245; Wideman, 141 F.3d at 1456. Reading the

statute to provide a remedy for retaliatory harassment that

expresses itself in the form of a hostile work environment thus

furthers the goal of ensuring access to the statute's remedial

mechanisms.
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2. Chapter 151B. As for the state-law claim, we believe

that, were the Massachusetts Supreme Judicial Court (SJC) squarely

presented with the question, it would find a retaliatory hostile

work environment to be an adverse employment action cognizable

under chapter 151B, § 4(4). Several factors enter into this

determination.

First and foremost, the statute's anti-discrimination and

anti-retaliation provisions are very similar to the counterpart

provisions contained in Title VII. Where such linguistic

similarity exists, the SJC frequently looks to federal court

interpretations of Title VII for guidance. See Wheatley v. AT&T

Co., 636 N.E.2d 265, 268 (Mass. 1994) ("It is our practice to apply

Federal case law construing the Federal anti-discrimination

statutes in interpreting [chapter] 151B."); College-Town, Div. of

Interco, Inc. v. MCAD, 508 N.E.2d 587, 591 (Mass. 1987) (describing

federal precedents as "helpful"). We are, therefore, confident

that the SJC, if confronted with this precise question, would quite

likely interpret the anti-retaliation provision of chapter 151B

exactly as we have interpreted the counterpart provision of Title

VII.

Second, to the extent that any ambiguity lurks in the

statutory language, Massachusetts law explicitly directs that the

provisions of chapter 151B "shall be construed liberally for the

accomplishment of its purposes." Mass. Gen. Laws ch. 151B, § 9.
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As with Title VII, the purpose of the anti-retaliation provision in

chapter 151B is to allow parties to "seek redress for allegations

of discrimination without fear of retaliation for or interference

with the exercise of that right." Sahli v. Bull HN Info. Sys.,

Inc., 774 N.E.2d 1085, 1090 (Mass. 2002). Construing chapter

151B's text to protect complaining employees from retaliatory

harassment that results in the creation and perpetuation of a

hostile work environment advances that purpose.

Third, although the SJC has not spoken directly to the

subject, the Appeals Court has recognized a claim of retaliatory

harassment based on a hostile work environment. See Clifton, 815

N.E.2d at 618, 624. While this holding is not indisputably

authoritative — the highest court of a state is, after all, the

final arbiter of state-law questions, Acadia Ins. Co. v. McNeil,

116 F.3d 599, 604 (1st Cir. 1997) — the decision of an intermediate

appellate court of the state generally constitutes a reliable piece

of evidence. See West v. ATCT Co., 311 U.S. 223, 237 (1940);

Fortini v. Murphy, 257 F.3d 39, 49 (1st Cir. 2001); Losacco v. F.D.

Rich Constr. Co., 992 F.2d 382, 384 (1st Cir. 1993). This evidence

seems all the more compelling in this case because the MCAD — whose

decisions construing chapter 151B are ceded some deference by the

SJC, Cuddyer, 750 N.E.2d at 938 — has interpreted chapter 151B's

anti-retaliation language to include retaliatory harassment

culminating in a hostile work environment. See MCAD Sexual
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Harassment in the Workplace Guidelines IX.B (2002) ("An employer

takes adverse action under § 4(4) when it materially disadvantages

the complainant with regard to any of the terms or conditions of

her employment. The term 'adverse action' can encompass . . .

hostile or abusive workplace treatment."); Wareing v. New Bedford

Sch. Dep't, No. 99-BEM-3363, 2004 WL 2361016, at *8 (MCAD Oct. 6,

2004) ("Retaliation may . . . take the form of hostile or abusive

workplace treatment.).

To say more on this topic would be to paint the lily.

For the reasons elucidated above, we hold that, under Massachusetts

law as under Title VII, subjecting an employee to a hostile work

environment in retaliation for protected activity constitutes an

adverse employment action (and, thus, triggers the statutory

prophylaxis).

D. Retaliatory Hostile Work Environment: Sufficiency of Proof.

We have established that, as a theoretical matter,

subjecting a party to a hostile work environment in retaliation for

protected activity may be actionable under both Title VII and

chapter 151B. That poses the question whether the evidence in this

case, viewed in the light most favorable to the plaintiff, Garside,

895 F.2d at 48, shows that a hostile work environment existed. We

turn to that question.

1. Elements of the Cause of Action. An allegedly

retaliatory act must rise to some level of substantiality before it
-28-

can be actionable. Wideman, 141 F.3d at 1456; MacCormack v. Boston

Edison Co., 672 N.E.2d 1, 7-8 (Mass. 1996). The hostile work

environment doctrine, as developed in the anti-discrimination

jurisprudence of Title VII, embodies that prerequisite.

In order to prove a hostile work environment, a plaintiff

must show that she was subjected to severe or pervasive harassment

that materially altered the conditions of her employment.

Faragher, 524 U.S. at 786. 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 787. In determining whether a reasonable person

would find particular conduct hostile or abusive, a court must mull

the totality of the circumstances, including factors such as the

"frequency of the discriminatory conduct; its severity; whether it

is physically threatening or humiliating, or a mere offensive

utterance; and whether it unreasonably interferes with an

employee's work performance." Id. at 787-88 (quoting Harris, 510

U.S. at 23). The thrust of this inquiry is to distinguish between

the ordinary, if occasionally unpleasant, vicissitudes of the

workplace and actual harassment. Id. at 788.

This framework is readily transferable to the retaliatory

harassment context. On the one hand, if protected activity leads

only to commonplace indignities typical of the workplace (such as

tepid jokes, teasing, or aloofness), a reasonable person would not
-29-

be deterred from such activity. After all, an employee reasonably

can expect to encounter such tribulations even if she eschews any

involvement in protected activity. On the other hand, severe or

pervasive harassment in retaliation for engaging in protected

activity threatens to deter due enforcement of the rights conferred

by statutes such as Title VII and chapter 151B.

Along this continuum, rudeness or ostracism, standing

alone, usually is not enough to support a hostile work environment

claim. See Manatt v. Bank of Am., 339 F.3d 792, 803 (9th Cir.

2003); Gagnon v. Sprint Corp., 284 F.3d 839, 850 (8th Cir. 2002);

cf. Simas v. First Citizens' Fed. Credit Union, 170 F.3d 37, 52

n.12 (1st Cir. 1999) (noting, in related context, that "social

ostracism alone is rarely actionable"). The anti-discrimination

laws were not enacted to create or enforce a "general civility

code." Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80

(1998). So too the anti-retaliation laws.

2. Applying the Requirements. Having sketched the

contours of retaliatory hostile work environments in the Title VII

and chapter 151B milieus, we reach the central question presented

in this appeal: viewing the totality of the circumstances in the

light most flattering to the plaintiff, is the evidence of

retaliatory harassment adequate to allow a reasonable jury to find

that she was confronted by a hostile work environment?
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At the outset, we take note of a unique difficulty posed

by allegations of retaliatory harassment. When dealing with

discriminatory harassment (e.g., harassment based on gender, race,

or the like), there is seldom, if ever, a defensible purpose behind

the injurious actions. The only question is whether the bad acts,

taken in the aggregate, are sufficiently severe or pervasive to

constitute actionable harassment. See, e.g., Cardenas v. Massey,

269 F.3d 251, 261-62 (3d Cir. 2001); Johnson v. City of Fort Wayne,

91 F.3d 922, 932 (7th Cir. 1996).

Retaliatory harassment, however, requires a more nuanced

analysis. The very act of filing a charge against a coworker will

invariably cause tension and result in a less agreeable workplace.

Von Gunten, 243 F.3d at 870. The target of the complaint likely

will have coworker-friends who come to his defense, while other

coworkers will seek to steer clear of trouble by avoiding both the

complainant and the target. Although admittedly a source of

unpleasantness in the workplace, such behavior should not be seen

as contributing to a retaliatory hostile work environment. Id.

After all, there is nothing inherently wrong either with supporting

a friend or with striving to avoid controversy. We think it

follows that those actions that are hurtful to a complainant only

because coworkers do not take her side in a work-related dispute

may not be considered as contributing to a retaliatory hostile work

environment. It is only those actions, directed at a complainant,
-31-

that stem from a retaliatory animus which may be factored into the

hostile work environment calculus. 

Even with these nuances in mind, we conclude that the

evidence in this case, viewed in the light most favorable to the

plaintiff, would permit — although certainly not compel — a

reasonable jury to find that the plaintiff was subjected to a

retaliation-based hostile work environment. In reaching this

conclusion, we take into account the relative ubiquity of the

retaliatory conduct, its severity, its natural tendency to

humiliate (and, on occasion, physically threaten) a reasonable

person, and its capacity to interfere with the plaintiff's work

performance. See Harris, 510 U.S. at 23.

In the months immediately following the plaintiff's

initial series of complaints about Ortiz's actions, she was

subjected to a steady stream of abuse. Much of this was

significant and was of a kind that courts historically have found

persuasive as evidence of a hostile work environment. She was

falsely accused of misconduct (DiGirolamo levied a baseless charge

against her in the tampon-throwing incident) — and the case law

recognizes that false accusations of misconduct can contribute to

the creation of a hostile work environment. See Ray, 217 F.3d at

1245; Aviles v. Cornell Forge Co., 183 F.3d 598, 606 (7th Cir.

1999). DiGirolamo also interfered with the plaintiff's working

conditions by falsely informing her that she was required to take
4To be sure, the mere fact that coworkers collect money on

behalf of a person accused of discrimination is not actionable.

Such behavior falls outside the realm of conduct undertaken out of

animus toward a complainant and should not be considered for

purposes of determining whether there was a hostile work

environment. The fact that coworkers rubbed the plaintiff's nose

in the collection is a horse of a different hue. If the incident

occurred as the plaintiff suggests (an assumption that we must

indulge at the summary judgment stage), it was a clear indication

of open hostility directed at the plaintiff and would have

deleteriously affected her working conditions.

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her dinner breaks alone — and "work sabotage, exclusion, [and]

denial of support" also may contribute to the creation of a hostile

work environment. O'Rourke, 235 F.3d at 730. The harassing

insults directed at the plaintiff are likewise entitled to some

weight in the decisional calculus. See Bolden v. PRC Inc., 43 F.3d

545, 551 (10th Cir. 1994) (noting that even infrequent harassing

insults should be considered, along with other instances of

harassment). So too the taunting of the plaintiff with the

collection on behalf of Ortiz.4 Marrero, 304 F.3d at 26 (finding

that taunting plaintiff in relation to her filing of an EEOC

complaint was evidence of retaliatory harassment); cf. Oncale, 523

U.S. at 80 (noting that open and direct hostility clearly based on

protected status is evidence of hostile work environment).

Gilardi's continued tormenting of the plaintiff is also

relevant. Soon after the collection incident, Gilardi interfered

with the plaintiff's ability to work by leaving her out in the cold

(literally, not figuratively). This conduct may be seen as having

contributed to the creation of a hostile work environment. See
-33-

Gorski v. N.H. Dep't of Corr., 290 F.3d 466, 472 (1st Cir. 2002);

O'Rourke, 235 F.3d at 730. Gilardi later placed the plaintiff at

risk of physical harm by coming close to striking her with a van;

if that was intentional (and, for now, we must credit the

plaintiff's averment that it was), it is a cogent indicator of an

adverse change in the conditions of the plaintiff's employment.

Cf. White v. BFI Waste Servs., LLC, 375 F.3d 288, 298 n.6 (4th Cir.

2004) (noting that "the presence of physical threats undeniably

strengthens a hostile work environment claim"); Raniola v. Bratton,

243 F.3d 610, 621 (2d Cir. 2001) (similar). To cinch matters, the

plaintiff offered evidence that these incidents contributed to

physical and psychological problems that required treatment, thus

underscoring the negative effect on her work performance.

Of course, no pat formula exists for determining with

certainty whether the sum of harassing workplace incidents rises to

the level of an actionable hostile work environment. See Harris,

510 U.S. at 22. Such a determination requires the trier of fact to

assess the matter on a case-by-case basis, weighing the totality of

the circumstances. Lipsett v. Univ. of P.R., 864 F.2d 881, 898 &

n.18 (1st Cir. 1988). Our function is one of screening, that is,

to determine whether, on particular facts, a reasonable jury could

reach such a conclusion. Rivera-Rodríguez v. Frito Lay Snacks

Caribbean, 265 F.3d 15, 24 (1st Cir. 2001). Taking the aggregate

facts of record in the light most favorable to the plaintiff, we
-34-

believe that a jury rationally could find that the plaintiff was

subjected to a hostile work environment arising out of retaliation

for her complaint against a popular coworker.

E. The Liability Standard.

This conclusion takes us to the liability standard. In

importing the hostile work environment doctrine into the antiretaliation context, courts are left to draw the standards for

employer liability from the case law involving hostile work

environments in the anti-discrimination context. The Supreme Court

has divided the universe of employer liability along a line that

separates supervisors from non-supervisors. When a supervisor

creates a hostile work environment, the employer is vicariously

liable for it, subject, however, to a possible affirmative defense.

See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998);

Faragher, 524 U.S. at 807-08.

This defense, familiarly known as the Faragher/Ellerth

defense, consists of two elements which, if proven, permit the

employer to avoid liability. First, the employer must show that it

"exercised reasonable care to prevent and correct promptly" the

harassment. Ellerth, 524 U.S. at 765. Second, the employer must

show that the employee "unreasonably failed to take advantage of

any preventive or corrective opportunities provided by the employer

or to avoid harm otherwise." Id.
-35-

As with Title VII, chapter 151B makes employers

vicariously liable for hostile work environments created by

supervisors. College-Town, 508 N.E.2d at 592. Unlike Title VII,

however, chapter 151B does not afford employers any affirmative

defenses to liability. Based on the legislative mandate that

chapter 151B must be construed liberally to effectuate its

purposes, see Mass. Gen. Laws ch. 151B, § 9, the SJC has endorsed

a rule that holds employers strictly liable for supervisory

harassment. See College-Town, 508 N.E.2d at 591-94 (rejecting a

"reasonable care" standard as a defense to a hostile work

environment claim); see also Blockel v. J.C. Penney Co., 337 F.3d

17, 28 n.3 (1st Cir. 2003) (noting that the Faragher/Ellerth

defense does not apply to chapter 151B actions). Because the

reasoning of College-Town belies any meaningful distinction between

discriminatory harassment and retaliatory harassment where

supervisors are concerned, we conclude that no Faragher/Ellerth

type of affirmative defense is available under chapter 151B to an

employer whose supervisors create a retaliatory hostile work

environment.

When coworkers, rather than supervisors, are responsible

for the creation and perpetuation of a hostile work environment,

Title VII and chapter 151B seem essentially coterminous as they

relate to employer liability. Notwithstanding the absence of a

controlling Supreme Court precedent, several federal courts,
-36-

including this court, have held that, in such situations, an

employer can only be liable if the harassment is causally connected

to some negligence on the employer's part. See, e.g., Wyninger v.

New Venture Gear, Inc., 361 F.3d 965, 976 (7th Cir. 2004);

Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 333-34 (4th Cir.

2003); Crowley v. L.L. Bean, Inc., 303 F.3d 387, 401 (1st Cir.

2002). 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. See Crowley, 303 F.3d at 401.

Similarly, under chapter 151B, employer liability for coworker

harassment requires a showing that the employer knew or should have

known about the harassment, yet failed to halt it. Messina v.

Araserve, Inc., 906 F. Supp. 34, 37-38 (D. Mass. 1995) (discussing

Massachusetts law); College-Town, 508 N.E.2d at 593.

At the summary judgment stage, these determinations are

complicated. The question of whether an employee is a supervisor

in the relevant sense is itself factual in nature. Hrobowski v.

Worthington Steel Co., 358 F.3d 473, 478 (7th Cir. 2004). Here,

the lower court found only coworker harassment; it declared that

the evidence showed that the retaliation had been undertaken by

"subordinate officials, none of whom had control over terms and

conditions of [the plaintiff's] employment."

The district court's skepticism about the claimed

supervisory status of some of the harassers seems well-founded.
5The Second Circuit takes a somewhat broader view. That court

considers a supervisor to be someone who has actual authority to

direct an employee's work-related tasks in a way that could

increase her workload or saddle her with less desirable tasks.

Mack v. Otis Elev. Co., 326 F.3d 116, 126-27 (2d Cir. 2003). Even

were we to adopt this less demanding test, the nominal supervisors

here would not qualify as supervisors in fact.

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The key to determining supervisory status is the degree of

authority possessed by the putative supervisor. Joens v. John

Morrell & Co., 354 F.3d 938, 940 (8th Cir. 2004); Parkins v. Civil

Constructors of Ill., Inc., 163 F.3d 1027, 1033 (7th Cir. 1998).

Thus, courts must distinguish "employees who are supervisors merely

as a function of nomenclature from those who are entrusted with

actual supervisory powers." Parkins, 163 F.3d at 1033; accord

Mikels v. City of Durham, 183 F.3d 323, 334 (4th Cir. 1999).

Having in mind both common law agency principles and the purposes

of the anti-discrimination and anti-retaliation laws, we agree with

the Seventh Circuit that "the essence of supervisory status is the

authority to affect the terms and conditions of the victim's

employment." Parkins, 163 F.3d at 1034. This authority "primarily

consists of the power to hire, fire, demote, promote, transfer, or

discipline an employee." Id. at 1034. 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.5

See id. at 1033-34. We think that the same standard applies under

chapter 151B. See College-Town, 508 N.E.2d at 593 (observing that
-38-

the power wielded by a harassing supervisor may range from

"discharge to assignment of work, particularly exacting scrutiny,

or refusal to protect the employee from coworker harassment").

In this case, the plaintiff has not presented facts

sufficient to show that she was harassed at the hands of persons

who qualify as supervisors. The deposition of Irene Landry

provides the clearest evidence of the organizational structure of

the workplace. The parking enforcement officers are on the lowest

rung of the ladder. On the next rung are the shift supervisors,

who drive the parking enforcement officers to their assigned routes

and pick them up. The third rung is occupied by more senior

supervisors, (each of whom holds the title "senior supervisor II").

The functions of these individuals include dealing with personnel

problems. During the time in question, Landry held the position of

senior supervisor II. She reported to Moccia, a higher-level

official who held the title of senior supervisor of parking

enforcement. Moccia had authority to handle a wide variety of

employee issues and complaints.

The plaintiff uses the word "supervisor"

indiscriminately, referring to people on the second, third, and

fourth rungs as "supervisors" and making no distinctions among

them. That approach elevates nomenclature over actual authority.

When we shift the focus to those persons whose actual authority
-39-

made them supervisors in the relevant sense, a different picture

emerges. 

Landry and Moccia each appear to have possessed the

requisite authority, but neither of them were guilty of any

retaliatory harassment. The only two "supervisors" whose actions

rationally can be said to have contributed to the hostile work

environment are Gilardi and DiGirolamo. Gilardi was a second-rung

shift supervisor, and DiGirolamo's level of authority seems no

greater (the record only permits us to speculate on this point, and

the lack of proof counts against the plaintiff). The plaintiff has

presented us with no evidence that either woman had the power to

terminate, discipline, or otherwise affect the terms and conditions

of her employment. In the absence of such evidence, the city

cannot be held vicariously responsible for their harassment.

The plaintiff's claim thus reduces to one of coworker

harassment. The viability of that claim depends on whether there

is sufficient evidence to permit a finding that the employer knew

or should have known about the hostile work environment, yet failed

to stop it. We conclude that sufficient evidence exists.

Plaintiff complained of the harassment to two senior supervisors

(Landry and Moccia). Landry did not deal with the plaintiff's

complaints at all and Moccia, rather than rectifying the situation,

speculated that the harassment would likely become "ten times

worse" with the plaintiff's recent shift change. Moreover, the
6This claim is, of course, limited to Title VII. Insofar as

it might have been brought under chapter 151B, it is time-barred.

See supra Part II(B).

-40-

deputy commissioner was aware of the harassment, but did nothing to

dispel it. Since Landry, Moccia, and the deputy commissioner were

appropriate recipients of the plaintiff's complaints, there is

enough evidence to allow a finding of actual notice on the city's

part. See Crowley, 303 F.3d at 403; Breda v. Wolf Camera & Video,

222 F.3d 886, 889 (11th Cir. 2000).

The city's only rejoinder is that the supervisors

responded to the plaintiff's allegations in an appropriate manner.

At best, this presents a factual dispute that is not amenable to

resolution on summary judgment. Consequently, there is a

trialworthy issue as to whether the city was negligent in not

putting a stop to the harassment.

F. Sexual Harassment Under Title VII.

This brings us to the plaintiff's claim that Ortiz's

assault subjected her to a hostile work environment based on her

sex.6 Even if the assault was sufficient, in and of itself, to

create a hostile work environment — a proposition that we regard as

highly dubious — the plaintiff cannot prevail. Though she refers

to Ortiz as her "supervisor," the record contains a paucity of

evidence about his job description and authority. That which does

appear indicates that Ortiz, like Gilardi, was merely a second-rung

shift supervisor. As the plaintiff provided no evidence that such
-41-

an employee had the authority to hire, fire, or otherwise dictate

the terms and conditions of employment, vicarious liability is off

the table. It follows that the plaintiff can survive summary

judgment only if she can show that a rational jury could find the

city negligent because it knew or should have known of the

harassment yet failed to take prompt action to stop it. Crowley,

303 F.3d at 401.

The plaintiff cannot carry this burden. There is no

evidence of any prior misconduct on Ortiz's part. The first that

the city knew (or could have known) about his assaultive demeanor

was when it received the initial report of the attack. The

undisputed evidence shows that a mere seven days elapsed between

the time of the assault and the commencement of disciplinary

proceedings (which began with Ortiz's immediate suspension and

culminated in his discharge). Between the assault and the

suspension, the plaintiff says that she "encountered" Ortiz in the

workplace, but there is no evidence that she was forced to work

with him or was exposed to further harassment by him. While we

leave open the possibility that, under certain extreme

circumstances, a delay of seven days in separating a harasser and

his victim might evince negligence, there is nothing to indicate

that the city acted here in a dilatory manner. On this record, a

rational jury could only conclude that, as to the Title VII sexual

harassment claim, the city acted in a professional and appropriate
-42-

manner to resolve the problem. No more was exigible. See, e.g.,

Reed v. MBNA Mktg. Sys., Inc., 333 F.3d 27, 34-35 (1st Cir. 2003)

(noting that investigation of sexual assault by employer, quickly

leading to malefactor's termination, indicates reasonable care on

behalf of employer).

That ends this aspect of the matter. One of the main

purposes of Title VII is to encourage proactive resolution of

workplace harassment. We would undermine that purpose were we to

subject the city to sexual harassment liability despite its prompt

and effective action in investigating the incident and removing the

perpetrator from the workplace.

III. CONCLUSION

We need go no further. To recapitulate, we hold that the

plaintiff has presented sufficient evidence to survive summary

judgment on her retaliatory harassment claims under Title VII and

chapter 151B. As to her sexual harassment claims, however, we

reach a different conclusion. Her chapter 151B claim is timebarred and her Title VII claim is foreclosed by her failure to

present a trialworthy issue about whether the city was negligent in

its handling of the Ortiz situation.

Affirmed in part, vacated in part, and remanded. No

costs.