Mass.: Court Rejects Employee’s Claims of Sexual Harassment, Retaliation

By Diane Cadrain Feb 12, 2015

A federal court rejected a Massachusetts health care employee’s claims of sexual harassment and retaliation.

Kimberley Thirkield worked as a medical assistant at a small, family-run obstetrics and gynecology practice in Worcester, where Faye Hunter, the daughter of one of the owners of the practice, was a receptionist. Thirkield said that on many occasions, Hunter had groped her and made sexually explicit comments, and that she had seen her do the same with other female employees, Tara Doherty and Alexandra Cook. She spoke to office manager Kathy Cregg and practice manager Paul Rieth about it on Feb. 29, 2012, presenting them at that time with a list of four incidents of harassment which she had witnessed, or of which she had been the target, going back about a month.

In response to Thirkield’s statement, the two managers met with her, apologized to her, stated that the conduct was unacceptable, and subsequently spoke with Hunter, telling her that the behavior had to stop. But Thirkield said that after she reported Hunter’s conduct, other employees of Neary & Hunter gave her the “cold shoulder,” making the workplace so hostile that she felt she had to resign, and did so. She sued the medical practice on a number of bases, including sexual harassment and retaliation. The defendants asked the court to dismiss the case at an early stage.

On her sexual harassment claim, the court decided that Thirkield had shown evidence of some of the factors that she was required to prove: that she was a member of a protected class and that she was subjected to unwanted sexual harassment which was severe and pervasive and which a reasonable person would find offensive.

Her evidence failed, though, on the issue of Neary & Hunter’s liability for Hunter’s behavior. On this point, Thirkield had to show that the practice knew or should have known of the behavior and failed to stop it. Here, the court found that two complaints that were made about Hunter’s behavior—one by Thirkield and one by Cook—were made on the same day, so that the practice had no previous knowledge of the behavior at the time Thirkield made her complaint. Also, the court said, Thirkield was not able to show that the practice failed to take prompt remedial action. She met with Cregg and Rieth; they said the behavior was unacceptable and apologized to her. They met with Hunter, told her to stop and Hunter never again behaved that way toward Thirkield. The court decided their response had been appropriate, and that therefore, Thirkield had not been able to prove all the elements of her sexual harassment case against the practice. The court dismissed that part of her claim.

On her retaliation claim the court said that Thirkield had to show that (1) she engaged in a protected activity; (2) she suffered a materially adverse action; and (3) there was a causal connection between the protected activity and the adverse action. To show that she had suffered a materially adverse employment action, the court said, she had to show that her employer took some objectively and materially adverse action against her because she opposed a practice forbidden by the anti-discrimination statutes. On this issue, Thirkield pointed to her coworkers’ shunning of her after she made her complaint. The court responded by pointing out that cases were unanimous in holding that an employee who is shunned or subjected to the silent treatment after reporting sexual harassment has not suffered a materially adverse employment action. On that basis, the court dismissed the retaliation claim as well.

Thirkield v. Neary, D. Mass.,Civil Action No. 12-cv-40110-TSH (Jan. 2, 2015).

Diane Cadrain is an attorney who has been writing about employment law issues for more than 20 years.

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