Gerrie v. Karl Storz Endovision, Inc.

20 Mass. L. Rptr. 412
CourtMassachusetts Superior Court
DecidedDecember 29, 2005
DocketNo. 992452A
StatusPublished

This text of 20 Mass. L. Rptr. 412 (Gerrie v. Karl Storz Endovision, Inc.) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gerrie v. Karl Storz Endovision, Inc., 20 Mass. L. Rptr. 412 (Mass. Ct. App. 2005).

Opinion

Billings, Thomas P., J.

The plaintiff filed a lawsuit on December 17, 1999 against the defendants, her previous employer and supervisor respectively, for multiple counts of sexual harassment. The defendants filed a Motion for Summary Judgment on all counts on March 14, 2003. In a decision entered July 15, 2003, I allowed the Motion in part and denied the Motion in part [17 Mass. L. Rptr. 101). This Court then dismissed the plaintiffs claim of retaliation (among other claims).

On October 17, 2005, the plaintiff filed a Motion for Reconsideration of this Court’s dismissal of plaintiffs retaliation claim on the grounds of change in applicable law. The reason given is the First Circuit’s recent decision in Noviello v. City of Boston, 398 F.3d 76 (1st Cir. 2005), addressing the concept of “retaliatory harassment.” Two days ago, the retaliatory harassment doctrine was more firmly rooted in Massachusetts law, and its relationship to the continuing violation doctrine more clearly articulated, in the SJC’s decision in Clifton v. Massachusetts Bay Transp. Auth., (12/21/05). This opinion takes account of these recent developments.

For the following reasons, the plaintiffs Motion for Reconsideration is ALLOWED, and her retaliation claim — to the extent it relates to “retaliatory harassment” — is restored to the case to be tried.

FACTS

The facts of the case that are either undisputed on the summary judgment record or taken in the light most favorable to the plaintiff are as follows. At the time this lawsuit was filed, Mary “Sandy” Gerrie (“Gerrie” or “plaintiff’) was a sixfy-six-year-old gay female who had been working as a quality assurance inspector for Karl Storz Endovision, Inc. (“Karl Storz”) in California since 1990. Prior to this litigation, plaintiff had approximately twenty years of experience and extensive technical training in her field. In 1992, plaintiff was sent by Karl Storz to Massachusetts to found the quality assurance department (“QAD”) at the Karl Storz facility in Charlton, Massachusetts. For eight months, plaintiff set up and ran this department as its acting manager completely on her own. Plaintiff was commended by Karl Storz’s President for her work on this assignment.

In April 1993, Rod Boucher (“Boucher,” collectively with Karl Storz, “Defendants”) was hired as the new manager of plaintiffs department and plaintiff returned to her job as an Inspector for the QAD. About the time of Boucher’s arrival, the inspectors of the QAD began to share working space with the testing component of the QAD. It was at this time that the plaintiff began working in close physical proximity with Earl Harris (“Harris”) and Bob Ertsgard (“Ertsgard”), and later, about April 1995, with Michael Gilbert (“Gilbert”). Boucher, as manager of the QAD, was the immediate supervisor to all of these individuals and his office space was in close proximity to their desks. Boucher in turn was supervised by Tom Cooksey.

1. Co-workers’ Actions Against the Plaintiff

Shortly after plaintiffs arrival in Massachusetts, she began to be subjected to harassment by certain of her co-workers, which worsened considerably after the inspection and testing components of the QAD merged. Ertsgard, Harris, and later Gilbert consistently and repeatedly made harassing and offensive comments to and around the plaintiff. Either Harris [413]*413or Ertsgard addressed the plaintiff, at least once a day, with a variety of highly offensive terras whose common themes were sexual preference, gender, age, and physical appearance. The trio also referred to the plaintiff with these terms publicly in conversations with each other and to others in the QAD. Harris and Ertsgard additionally frequently made comments to the plaintiff that she dressed like a dyke; that she should not be in a man’s job such as inspection; and that only filing and answering the phone were suitable work for her as a woman. Once Gilbert began working in the QAD, he refused to interact with the plaintiff, never making eye contact or speaking with plaintiff. Harris’s abuse continued until he was transferred to another department in August 1996; Ertsgard’s abuse continued until he left Karl Storz in September 1996; and Gilbert’s abuse continued until the plaintiff left Karl Storz in January 1997.

Harris, Gilbert, and Ertsgard also engaged in physical acts calculated to make the plaintiff uncomfortable. They frequently would stare at the plaintiff without blinking for long periods of time, occasionally mumbling to each other and laughing. Ertsgard would deliberately walk into the plaintiff, forcing her to go around him or be knocked down. On multiple occasions, Ertsgard followed the plaintiff into the ladies’ bathroom, turned the lights out, and threw balls of wet paper towels at the plaintiffs stall. Ertsgard and Gilbert also on multiple occasions displaced the plaintiffs work equipment and erased data that she put into the computers.

In April 1996, Boucher instructed plaintiff to train Gilbert. Plaintiff first asked why she had not received this training although she had requested it. Plaintiff was informed that she was not receiving the training because she was planning to retire; plaintiff, however, had no plans to retire for several more years. Plaintiff attempted to train Gilbert, but as per usual, Gilbert refused to make eye contact or speak directly to plaintiff. Instead, Gilbert informed Boucher and others in the QAD that he did not work with old women, fat women, and dykes. In one incident on or about April 30, 1996, plaintiff informed Gilbert that he had incorrectly entered numbers in a log and suggested that he change them; Gilbert had no response, but Ertsgard, who was also present, said, “he doesn’t have- to do that you old bitch.” Plaintiff reported the incident to Boucher. Although Boucher did speak to Ertsgard, plaintiff was also blamed for refusing to train Gilbert.

In the summer of 1996, criminal charges were filed against Ertsgard and another employee for threatening the life of a witness. Karl Storz was conducting an investigation into a sexual harassment complaint that another female Karl Storz employee had filed with the Massachusetts Commission Against Discrimination (“MCAD”).

2. Karl Storz’s Harassment Policy and Plaintiff’s Complaints

Prior to November 5, 1996, Karl Storz’s office policy, as published to its employees, directed that individuals who felt they were being discriminated against were to report the offenders to the complaining individual’s supervisor and to the human resources department (“HRD”). It was not until November 5, 1996 that Karl Storz’s written policy finally informed Karl Storz’s employees that in addition to internal complaints, if they felt they were being harassed, they had the legal right to file a complaint with the MCAD or to file a lawsuit.

Pursuant to the office policy in effect at Karl Storz for the bulk of plaintiff s employ, plaintiff reported her harassment to Boucher. It is not clear when plaintiff first complained to Boucher, though it might have been on or about June or July 1993. Plaintiff undoubtedly made numerous complaints. Plaintiff made repeated complaints to Boucher about the physical and verbal behavior exhibited by Harris, Erstgard, and Gilbert against her. Boucher was in fact present for some of the interactions between Harris, Erstgard, Gilbert, and plaintiff and thus witnessed some of the offensive conduct.

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Gerrie v. Karl Storz Endovision, Inc.
17 Mass. L. Rptr. 101 (Massachusetts Superior Court, 2003)

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Bluebook (online)
20 Mass. L. Rptr. 412, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gerrie-v-karl-storz-endovision-inc-masssuperct-2005.