Fisher v. Town of Orange

885 F. Supp. 2d 468, 95 Empl. Prac. Dec. (CCH) 44,427, 2012 WL 639461, 2012 U.S. Dist. LEXIS 23488
CourtDistrict Court, D. Massachusetts
DecidedFebruary 24, 2012
DocketCivil Action No. 10-30172-FDS
StatusPublished
Cited by14 cases

This text of 885 F. Supp. 2d 468 (Fisher v. Town of Orange) is published on Counsel Stack Legal Research, covering District Court, D. Massachusetts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fisher v. Town of Orange, 885 F. Supp. 2d 468, 95 Empl. Prac. Dec. (CCH) 44,427, 2012 WL 639461, 2012 U.S. Dist. LEXIS 23488 (D. Mass. 2012).

Opinion

MEMORANDUM AND ORDER ON DEFENDANTS’ MOTION TO DISMISS

SAYLOR, District Judge.

This action arises from alleged gender discrimination in the workplace in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and Mass. Gen. Laws ch. 151B, § 4. Plaintiff Rebecca Fisher was hired as a full-time firefighter by the Town of Orange, Massachusetts, in October 2007. She alleges that she was discriminated against on the basis of her gender both during the hiring process and while she worked at the Orange Fire Department, and that this discrimination resulted in her constructive discharge in May 2008. Jurisdiction is proper under 28 U.S.C. §§ 1331 and 1367.

Defendants have moved under Fed. R.Civ.P. 12(b)(6) to dismiss the complaint for failure to state a claim. In alternative, they argue that all claims against the Orange Fire Department and defendant Dennis M. Annear must be dismissed because they are not properly named defendants in the action. For the following reasons, the motion will be granted in part and denied in part.

I. Background

The facts are stated as alleged in the amended complaint.1

Plaintiff Rebecca Fisher resides in Orange, Massachusetts. (Compl. ¶¶ 1-2). At all times relevant to this action, defendant Dennis M. Annear was chief of the Orange Fire Department, where defendants Mark T. Vitale and James R. Young were employed. {Id. ¶¶ 4-6).

In July 2007, the Town posted a notice of vacancy for the position of full-time firefighter/EMT with the fire department. {Id. ¶ 9). Fisher applied for the position that August, but the hiring process was put on hold in response to her application. {Id. ¶ 10). On about October 1, Fisher was informed that she was one of a group of applicants who would be evaluated by an independent assessment center. {Id. ¶ 12). The Town had never used this independent assessment process when hiring firefighters in the past. {Id.). Nor had it conceived of using the process in filling the vacancy at issue here until Fisher submitted her application, when it decided to do so because she was female. {Id.). Fisher participated in the evaluation; she was found qualified for the position and received a top rating. {Id. ¶¶ 13-14).

On October 15, Chief Annear, along with Deputies Gale and Blackmer, arranged to interview three candidates, including Fisher. {Id. ¶¶ 15, 16). She was the third of the candidates to be interviewed. {Id. ¶ 15). Immediately before her interview, Tim Matthews, one of the other applicants, indicated to Fisher that, during his inter[472]*472view, Chief Annear had told him that he was hired for the position. (Id. ¶ 17). According to the independent assessment that had been prepared, Matthews was less qualified for the position than Fisher. (Id.)

During Fisher’s interview, each of the three interviewers asked Fisher one prepared question. (Id. ¶ 16). Deputy Gale then asked Fisher, “do you think you will be accepted by the other firefighters?” (Id.). In addition, Deputy Blackmer stated that the Town was “not ready for a female firefighter.” (Id.).

The next day, Chief Annear contacted Fisher and told her that he had met with a Town administrator who had told him that the Town “could not see a way around” hiring Fisher. (Id. ¶ 18). Accordingly, Chief Annear offered Fisher the job. (Id.). Later that day, she was appointed as a full-time firefighter. (Id. ¶ 19). After a forty-hour training program, she was assigned to Group 2, which consisted of her and another fire department employee, Phillip Sheridan. (Id.). Her shift supervisor was defendant Young. (Id. ¶ 21).

During the period when she worked for the Orange Fire Department, Fisher contends that Young, Vitale, and other employees of the department engaged in conduct that subjected her to an intimidating, hostile, humiliating, and sexually offensive work environment. (Id. ¶ 21). The complaint provides seven examples of such conduct, alleging that:

(1) Vitale reset the home page on Fisher’s computer to a pornographic website;
(2) Vitale falsely stated to co-workers that Fisher walked around the station wearing only her bra;
(3) Young made statements to co-workers that Fisher read romance novels and watched soap operas while at the fire station;
(4) Young told Fisher that she should not have received the job because she did not deserve it;
(5) Vitale and another coworkers left sexually offensive material at Fisher’s work station;
(6) Young and the Town refused to allow Fisher to share a bunk room with other employees and forced her to sleep in a chair in the common room; and
(7) Annear and the Town failed to provide Fisher with separate sleeping quarters while she was assigned to 24-hour shifts.

(Id.).

Fisher also asserts that Chief Annear and the Town were aware or should have been aware of this conduct. (Id. ¶ 22). On multiple occasions, Chief Annear was told that Fisher had been told that “pink didn’t belong in the fire station.” (Id.). He had also been made aware that employees were spreading rumors that Fisher wore only a bra during her shift. (Id.). Neither Annear nor the Town took any action to investigate or prevent this conduct. (Id.).

Because of this harassment, she resigned in May 2008. (Id. ¶ 23).

In August 2008, Fisher filed a complaint with the Massachusetts Commission Against Discrimination (“MCAD”) and the Equal Employment Opportunity Commission (“EEOC”), alleging sex discrimination, sexual harassment, gender harassment, and constructive discharge. (Id. ¶ 25). On December 23, 2009, the MCAD issued notice that it had found probable cause to support the allegations. (Id. ¶ 26).

Fisher filed this action on August 19, 2010. On November 12, 2010, defendants filed a motion to dismiss the original complaint. During oral argument on that mo[473]*473tion, counsel for Fisher indicated its willingness to drop certain counts and to amend the complaint to provide factual details in support of the remaining claims. The Court accordingly granted Fisher leave to file an amended complaint and denied the motion to dismiss without prejudice.

On April 11, 2011, plaintiff filed an amended complaint. It alleges, under Title VII, discrimination in hiring (Count 1), sexual harassment (Count 2), constructive discharge (Count 3), and retaliation (Count 4). It also alleges analogous claims under Mass. Gen. Laws ch. 151B (Counts 5, 6, 7, and 8). Defendants have renewed the motion to dismiss.

II.

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885 F. Supp. 2d 468, 95 Empl. Prac. Dec. (CCH) 44,427, 2012 WL 639461, 2012 U.S. Dist. LEXIS 23488, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fisher-v-town-of-orange-mad-2012.