NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-1144
KATE FERRIE
vs.
DEPARTMENT OF CORRECTION.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a hearing in the Superior Court, a judge ordered
summary judgment to enter for the defendant, the Department of
Correction (DOC), on the plaintiff, Kate Ferrie's, complaint for
retaliation in violation of G. L. c. 151B, § 4 (4). 1 Ferrie
appeals, claiming there are genuine issues of material fact as
to whether the DOC knew that Ferrie was subjected to
retaliation. She also claims that the judge erred in failing to
consider recent precedent. Concluding that there are genuine
issues of material fact, we reverse the judgment.
1. Background. We recite the facts and all reasonable
inferences in the light most favorable to Ferrie. See Verdrager
1 The DOC also sought dismissal of Ferrie's sexual harassment claim; however, the judge denied the motion as moot, as the complaint did not contain such a cause of action. v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., 474 Mass.
382, 395 (2016).
In August 2014, Ferrie was hired by the DOC as a correction
officer. In December 2014, Ferrie reported that she had been
sexually harassed by a captain. The DOC initiated an
investigation, and it concluded that the captain engaged in
misconduct, resulting in his suspension and transfer to another
DOC facility. Thereafter, Ferrie claimed that she experienced
hostility from her coworkers and supervisors, in retaliation for
filing the sexual harassment complaint. She alleged that
coworkers wrote derogatory phrases on her academy portrait, and
left them in places that she would find them. Ferrie also
complained that coworkers would "go quiet" when she entered a
room, hung up on her when she called on the telephone, and
believed her relationship with the captain was "consensual."
Ferrie claimed that her supervisors were both aware of and
engaged in the retaliation. She alleged that while she was five
or six months pregnant, a sergeant assigned her to a search team
to assist with a combative inmate. When Ferrie arrived at the
inmate's cell, a lieutenant and another officer asked why she
was there, knowing that she was pregnant and that the inmate was
known to punch and kick staff. Ferrie did not assist with the
inmate; later when she asked the sergeant why she was sent to
help with a combative inmate, she was told to take it up with
2 the union. Ferrie reported this to a captain and told him that
she "couldn't deal with the retaliation anymore." The captain
told Ferrie that he would talk with the sergeant but "nothing
ever came out of it."
In the summer of 2015, Ferrie sought treatment for anxiety
and depression that she attributed to feeling "ostracize[d]" and
treated unfairly at work. She alleged that the "retaliatory
conduct from her coworkers and supervisors for being labeled a
'snitch' continued and worsened" between the summer of 2015 and
November 2016. As a result, in November 2016, Ferrie took
medical leave for work-related stress, and received workers'
compensation payments.
While she was on leave, and consistent with its procedures,
the DOC conducted surveillance of Ferrie. The surveillance
revealed that Ferrie was in violation of the DOC's tobacco
policy that prohibited correction officers from using tobacco
both on and off the job. 2 See G. L. c. 27, § 2. Ferrie entered
into a last-chance settlement agreement in August 2017 for
violating the tobacco policy; after another violation, a second
2 Ferrie contends that the DOC changed the tobacco policy to allow employees to use tobacco while not on DOC property. Although there was a change in policy, it did not apply to correction officers. See G. L. c. 27, § 2.
3 last-chance settlement agreement was circulated in January 2018,
but Ferrie never signed it. 3
On December 11, 2018, Ferrie's therapist wrote a letter
that Ferrie "[wa]s able to return to full duty employment with
no restrictions at this time." The letter anticipated a return
date "on or around 2/10/19." Thereafter, the DOC terminated
Ferrie's workers' compensation benefits. Ferrie's therapist
wrote a clarifying letter that stated that Ferrie needed six
more weeks to prepare for her return to work, and Ferrie began
preparations to return to work. On February 6, 2019, about four
days before her scheduled return, the DOC terminated Ferrie's
employment for violation of the tobacco policy and pursuant to
the terms of the first last-chance settlement agreement. 4
2. Discussion. "We review a grant of summary judgment de
novo." Blake v. Hometown Am. Communities, Inc., 486 Mass. 268,
272 (2020), quoting DeWolfe v. Hingham Centre, Ltd., 464 Mass.
795, 799 (2013). The moving party, here the DOC, has "the
burden of establishing that there is no genuine issue as to any
material fact and that [it is] entitled to judgment as a matter
3 In February 2018, Ferrie filed a complaint against the DOC for retaliation with the Massachusetts Commission Against Discrimination, which she eventually withdrew in favor of filing this action in Superior Court. 4 There was an additional observation of Ferrie in violation of
the tobacco policy, but her termination was not based thereon.
4 of law." DeWolfe, supra. See Mass. R. Civ. P. 56 (c), as
amended, 436 Mass. 1404 (2002).
"To make out [a] prima facie case [for retaliation under
G. L. c. 151B, § 4, the plaintiff] [must] show that [s]he
engaged in protected conduct, that [s]he suffered some adverse
action, and that a causal connection existed between the
protected conduct and the adverse action." Osborne-Trussell v.
Children's Hosp. Corp., 488 Mass. 248, 260 (2021), quoting Mole
v. University of Mass., 442 Mass. 582, 591-592 (2004). Here,
Ferrie alleged that she engaged in protected activity by
reporting sexual harassment, and that as a result, she was
harassed by her coworkers, investigated by the DOC, and
terminated.
On the DOC's motion for summary judgment, the judge ruled,
and we agree, that Ferrie's report of sexual harassment was a
protected activity and that there was sufficient evidence "to
support an inference that the allegedly retaliatory acts were
casually connected to [that] report." 5 The remaining question is
whether, for purposes of summary judgment, Ferrie provided
sufficient evidence that the DOC knew or should have known about
the retaliatory acts directed at Ferrie. The judge concluded
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-1144
KATE FERRIE
vs.
DEPARTMENT OF CORRECTION.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a hearing in the Superior Court, a judge ordered
summary judgment to enter for the defendant, the Department of
Correction (DOC), on the plaintiff, Kate Ferrie's, complaint for
retaliation in violation of G. L. c. 151B, § 4 (4). 1 Ferrie
appeals, claiming there are genuine issues of material fact as
to whether the DOC knew that Ferrie was subjected to
retaliation. She also claims that the judge erred in failing to
consider recent precedent. Concluding that there are genuine
issues of material fact, we reverse the judgment.
1. Background. We recite the facts and all reasonable
inferences in the light most favorable to Ferrie. See Verdrager
1 The DOC also sought dismissal of Ferrie's sexual harassment claim; however, the judge denied the motion as moot, as the complaint did not contain such a cause of action. v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., 474 Mass.
382, 395 (2016).
In August 2014, Ferrie was hired by the DOC as a correction
officer. In December 2014, Ferrie reported that she had been
sexually harassed by a captain. The DOC initiated an
investigation, and it concluded that the captain engaged in
misconduct, resulting in his suspension and transfer to another
DOC facility. Thereafter, Ferrie claimed that she experienced
hostility from her coworkers and supervisors, in retaliation for
filing the sexual harassment complaint. She alleged that
coworkers wrote derogatory phrases on her academy portrait, and
left them in places that she would find them. Ferrie also
complained that coworkers would "go quiet" when she entered a
room, hung up on her when she called on the telephone, and
believed her relationship with the captain was "consensual."
Ferrie claimed that her supervisors were both aware of and
engaged in the retaliation. She alleged that while she was five
or six months pregnant, a sergeant assigned her to a search team
to assist with a combative inmate. When Ferrie arrived at the
inmate's cell, a lieutenant and another officer asked why she
was there, knowing that she was pregnant and that the inmate was
known to punch and kick staff. Ferrie did not assist with the
inmate; later when she asked the sergeant why she was sent to
help with a combative inmate, she was told to take it up with
2 the union. Ferrie reported this to a captain and told him that
she "couldn't deal with the retaliation anymore." The captain
told Ferrie that he would talk with the sergeant but "nothing
ever came out of it."
In the summer of 2015, Ferrie sought treatment for anxiety
and depression that she attributed to feeling "ostracize[d]" and
treated unfairly at work. She alleged that the "retaliatory
conduct from her coworkers and supervisors for being labeled a
'snitch' continued and worsened" between the summer of 2015 and
November 2016. As a result, in November 2016, Ferrie took
medical leave for work-related stress, and received workers'
compensation payments.
While she was on leave, and consistent with its procedures,
the DOC conducted surveillance of Ferrie. The surveillance
revealed that Ferrie was in violation of the DOC's tobacco
policy that prohibited correction officers from using tobacco
both on and off the job. 2 See G. L. c. 27, § 2. Ferrie entered
into a last-chance settlement agreement in August 2017 for
violating the tobacco policy; after another violation, a second
2 Ferrie contends that the DOC changed the tobacco policy to allow employees to use tobacco while not on DOC property. Although there was a change in policy, it did not apply to correction officers. See G. L. c. 27, § 2.
3 last-chance settlement agreement was circulated in January 2018,
but Ferrie never signed it. 3
On December 11, 2018, Ferrie's therapist wrote a letter
that Ferrie "[wa]s able to return to full duty employment with
no restrictions at this time." The letter anticipated a return
date "on or around 2/10/19." Thereafter, the DOC terminated
Ferrie's workers' compensation benefits. Ferrie's therapist
wrote a clarifying letter that stated that Ferrie needed six
more weeks to prepare for her return to work, and Ferrie began
preparations to return to work. On February 6, 2019, about four
days before her scheduled return, the DOC terminated Ferrie's
employment for violation of the tobacco policy and pursuant to
the terms of the first last-chance settlement agreement. 4
2. Discussion. "We review a grant of summary judgment de
novo." Blake v. Hometown Am. Communities, Inc., 486 Mass. 268,
272 (2020), quoting DeWolfe v. Hingham Centre, Ltd., 464 Mass.
795, 799 (2013). The moving party, here the DOC, has "the
burden of establishing that there is no genuine issue as to any
material fact and that [it is] entitled to judgment as a matter
3 In February 2018, Ferrie filed a complaint against the DOC for retaliation with the Massachusetts Commission Against Discrimination, which she eventually withdrew in favor of filing this action in Superior Court. 4 There was an additional observation of Ferrie in violation of
the tobacco policy, but her termination was not based thereon.
4 of law." DeWolfe, supra. See Mass. R. Civ. P. 56 (c), as
amended, 436 Mass. 1404 (2002).
"To make out [a] prima facie case [for retaliation under
G. L. c. 151B, § 4, the plaintiff] [must] show that [s]he
engaged in protected conduct, that [s]he suffered some adverse
action, and that a causal connection existed between the
protected conduct and the adverse action." Osborne-Trussell v.
Children's Hosp. Corp., 488 Mass. 248, 260 (2021), quoting Mole
v. University of Mass., 442 Mass. 582, 591-592 (2004). Here,
Ferrie alleged that she engaged in protected activity by
reporting sexual harassment, and that as a result, she was
harassed by her coworkers, investigated by the DOC, and
terminated.
On the DOC's motion for summary judgment, the judge ruled,
and we agree, that Ferrie's report of sexual harassment was a
protected activity and that there was sufficient evidence "to
support an inference that the allegedly retaliatory acts were
casually connected to [that] report." 5 The remaining question is
whether, for purposes of summary judgment, Ferrie provided
sufficient evidence that the DOC knew or should have known about
the retaliatory acts directed at Ferrie. The judge concluded
that the evidence that the DOC was aware of the hostile work
5 The DOC does not meaningfully contest these conclusions.
5 environment was "scant," and granted summary judgment to the
DOC. On appeal, Ferrie claims that there were disputed issues
of fact as to the DOC's knowledge. 6 As detailed supra, and taken
in the light most favorable to Ferrie, the record supports an
inference that, at a minimum, Ferrie complained about a
sergeant's allegedly-retaliatory behavior to a captain, and was
promised that it would be dealt with. Under agency principles,
this knowledge is imputed to the DOC. See Merrimack College v.
KPMG LLP, 480 Mass. 614, 620 (2018) ("Knowledge that an agent
acquires in the scope of his or her employment can also be
imputed to [a] principal").
Though we agree with the judge's characterization of this
evidence as "scant," 7 we conclude that it is sufficient to create
a genuine dispute of material fact in order to survive a motion
for summary judgment. 8 See Sullivan v. Liberty Mut. Ins. Co.,
444 Mass. 34, 45 (2005) ("the plaintiff's initial burden of
establishing a prima facie case [in an employment discrimination
case] is not intended to be onerous. It is meant to be a small
6 The DOC conceded that if Ferrie's supervisors were either aware of or perpetrating the hostility, this proved its knowledge. 7 "Scant" is defined as "barely or scarcely sufficient."
Webster's Third New International Dictionary 2025 (2002). 8 We do not opine on the merits of the case, and nothing herein
should be considered as such.
6 showing that is easily made" [citations and quotations
omitted]). 9
Judgment reversed.
By the Court (Milkey, Blake & Sacks, JJ. 10),
Clerk
Entered: October 19, 2023.
9 Ferrie contends that the judge erred in failing to apply "relevant new precedent." In light of our disposition, we need not address this claim, but note that the case she referenced predates the judge's decision here. 10 The panelists are listed in order of seniority.