UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Sabrina Alberg
v. Case No. 17-cv-79-AJ Opinion No. 2018 DNH 232 Foss Motors, Inc.
MEMORANDUM ORDER
Sabrina Alberg alleges that her former employer, Foss
Motors, Inc., subjected her to a hostile work environment in
violation of federal and state employment law. The parties
consented to the jurisdiction of the undersigned magistrate
judge (doc. no. 9), and Foss Motors moved for summary judgment
(doc. no. 18). The court held a hearing on September 21, 2018,
and at that time indicated that it would deny Foss Motors'
motion. This order provides the specific bases for that ruling.
See, e.g., United States v. Joubert, 980 F. Supp. 2d 53, 55 n.1
(D.N.H. 2014), aff'd, 778 F.3d 247 (1st Cir. 2015) (citing In re
Mosley, 494 F.3d 1320, 1328 (11th Cir. 2007)) (noting a district
court's authority to later reduce its prior oral findings and
rulings to writing).
In short, this case must go to a jury because there are
genuine disputes in the record whether Alberg faced harassment
at Foss Motors so severe or pervasive that it altered the
conditions of her employment, whether Foss Motors implemented prompt and appropriate action in response to that harassment,
and whether Alberg was constructively discharged.
I. LEGAL STANDARD
At the summary-judgment stage, the court "view[s] the facts
in the light most favorable to the non-moving party" and
"draw[s] all reasonable inferences in the nonmovant's
favor . . . ." Garmon v. Nat’l R.R. Passenger Corp., 844 F.3d
307, 312 (1st Cir. 2016) (citation and quotation marks omitted).
The court may only grant summary judgment if the moving party
"shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law."
Fed. R. Civ. P. 56(a). The moving party has the initial burden
of "identify[ing] for the district court the portions of the
record that show the absence of any genuine issue of material
fact." Flovac, Inc. v. Airvac, Inc., 817 F.3d 849, 853 (1st
Cir. 2016). If the movant does so, "the burden shifts to the
nonmoving party, who must, with respect to each issue on which
[s]he would bear the burden of proof at trial, demonstrate that
a trier of fact could reasonably resolve that issue in [her]
favor." Id. (citation omitted).
2 II. BACKGROUND
The facts, when viewed in the light most favorable to
Alberg, are as follows. 1 Foss Motors is an automotive sales and
service facility with approximately 40 to 50 employees. Doc.
no. 18-3 at 5. Larry Foss owns and manages Foss Motors, id. at
5-6, and David Andonian serves as general manager, doc. no. 18-4
at 5. From October 1, 2015, to June 9, 2016, Alberg worked for
Foss Motors as a service writer. Doc. no. 19 at 16, 21, 26,
109. Alberg's schedule called for her to work approximately 45
hours per week, plus certain Saturdays. Id. at 33-34. She
reported to Dave Barry, Foss Motors' service manager. Id. at
21.
A. Comments
During her tenure, Alberg received unwelcomed comments from
other Foss Motors employees. Keith Richardson, a diesel
technician, made many of these comments. On Alberg's first
Saturday, Richardson commented on how "hot" or "sexy" she looked
1 The following narrative is based in large part on Alberg’s deposition testimony. Several other individuals involved in the relevant events have provided materially different testimony. At this stage, however, the court must credit Alberg’s deposition to the extent it is based on her personal knowledge and material to the outcome. See Velazquez-Garcia v. Horizon Lines of P.R., Inc., 473 F.3d 11, 18 (1st Cir. 2007). Indeed, accepting contrary testimony would require the type of weight and credibility judgments the court may not make at the summary- judgment stage. See Hicks v. Johnson, 755 F.3d 738, 743 (1st Cir. 2014).
3 and stated that he would like to "throw [her] up on his desk."
Id. at 99; 106; doc. no. 18-6 at 2. On a different occasion,
Richardson grabbed a receipt that Alberg had taken out of her
pocketbook and told Alberg that he was making sure she was not
on welfare and "wasn't one of those moms." Doc. no. 19 at 98-
99. Richardson further stated he was "pretty sure [he knew] why
[Alberg's] husband left [her] to begin with." Id. at 98-99.
Richardson commented about Alberg's ex-husband on other
occasions, including wondering aloud whether her ex-husband
"traded [her] in for some hot blonde." Id. at 108.
Richardson's comments made Alberg feel degraded and
belittled, particularly as a single mother. Id. at 99-100. On
at least one occasion she reported the comments to Andonian.
Id. Alberg specifically asked Andonian whether she was expected
to work in an environment where she felt that people did not
view her as a person. Id. at 100. Andonian responded that it
was just "[Richardson] being [Richardson]," that it was part of
Richardson's attitude, and that Richardson did not mean anything
by it. Id. at 99-100. Alberg also raised Richardson's conduct
with Barry "multiple times," offering to quit after Richardson's
comment about the receipt because it made her "feel like crap."
Id. at 107-09. There is no indication in the record that
Andonian, Barry, or anyone else ever addressed the comments with
Richardson.
4 Alberg was also the target of a comment by a Foss Motors
employee identified in the record only as "Wayne." On Tuesday,
June 7, 2016, Foss called Alberg and requested that someone
remove a Siemens Electric truck from the truck bay so that Foss
could park his motor home. Id. at 51. Alberg relayed this
request to Wayne, who responded by offering to "give [Alberg]
some semen in [her] mouth." Id. at 51-52. Alberg reported
Wayne's comment to Barry and Andonian, stating that "enough is
enough" and that she did not need "13-year[-]old comments of
what [Wayne] wants to do because it was a Siemens Electric
truck." Id. at 52. Barry responded, "Ah it's Wayne, you know.
I'll talk to him. It's Wayne." Id. Andonian said nothing.
Id. It is unclear from the record whether any Foss Motors
employee ever address this comment with Wayne. 2
B. June 8 and 9, 2016
In June 2016, Richardson twice slapped Alberg on the butt.
The first slap occurred on June 8, when Alberg was speaking with
a customer at her desk. Id. at 56-59. Alberg told Richardson
not to put his hands on her. Id. at 57, 59, 63. Richardson
laughed and walked away. Id. at 59, 62, 63. Alberg’s face
2Alberg contends that she was the target of other similar comments, as well as whistling and catcalling, but does not provide specifics with respect to those incidents. Doc. no. 18- 6 at 2. There is no indication in the record that she ever mentioned these other incidents to her coworkers or reported them to her superiors.
5 turned red and her eyes welled up. Id. at 57. Once Alberg
finished with the customer, Foss Motors' parts manager, Brian
Dion, approached her. Id. at 60-61; doc. no. 18-5 at 9-10.
Alberg told Dion what Richardson had done, and Dion brought her
to Andonian’s office. Doc. no. 19 at 61; doc. no. 18-3 at 9-15.
With Dion present, Alberg reported Richardson's conduct to
Andonian. Doc. no. 19 at 61-62; doc. no. 18-5 at 13. Alberg
was upset and indicated that, while she had tolerated some of
the previous comments, physical contact crossed a line. Doc.
no. 19 at 61-63. Though Andonian apologized and noted that
there had been issues with Richardson in the past, he also
indicated that Richardson was Foss Motors' only diesel mechanic
and made the company a lot of money. Id. at 64-65. Andonian
noted that Richardson would be on vacation the following week.
Id. at 65. After speaking with Andonian, Alberg returned to
work, id. at 67, and Andonian reported to Foss what had
happened, doc. no. 18-3 at 11. Foss scheduled a meeting with
Andonian and Alberg for the following morning. Id. at 11-12.
Alberg met with Foss and Andonian the next morning as
scheduled. Doc. no. 19 at 68. At that meeting, Andonian stated
that his first thought was to let Richardson go. Id. at 68-69.
Andonian again mentioned that Richardson generated a lot of
business for Foss Motors but suggested that this meant
Richardson should be held to a higher standard. Id. Foss
6 suggested that the technicians were a "good old boys' club" that
he should have addressed a long time ago, but at the same time
mentioned that Richardson made Foss Motors a lot of money. Id.
at 69. Foss noted that Richardson was on vacation the following
week and suggested that it "should help" to let time pass, but
also noted that Richardson would "drinking all week" with his
"biker buddies," which Foss thought might make his conduct
worse. Id. at 69-70. Foss ultimately indicated that he would
speak with Richardson and "go from there." Id. at 70. He also
suggested that it might be time to bring somebody in to provide
sexual-harassment training. Id. at 70-71. Alberg testified at
her deposition that she never told Andonian or Foss not to
discipline or fire Richardson, but that she could not recall
whether she requested that he be fired. Id. at 70.
Foss and Andonian met with Richardson after meeting with
Alberg. Id. at 71. According to Foss and Andonian, they
reprimanded Richardson and told him that they would deal with
his conduct after his vacation. See doc. no. 18-3 at 14-15, 21-
23; doc. no. 18-4 at 14-15. There is no evidence in the record
that Richardson received any other punishment, and Foss
testified that he did not conduct any additional investigation.
Doc. no. 18-3 at 21. Neither Foss nor Andonian ever informed
Alberg what was discussed at that meeting. Doc. no. 19 at 71.
7 Alberg observed Richardson return to work once the meeting
ended. Id. 3
Later that same day, Richardson slapped Alberg on the butt
again, this time so hard it stung. Id. at 71. Alberg went to
Andonian's office, told him what had happened, and indicated
that Foss Motors might not be the right place for her to work.
Id. Andonian responded that he wanted to speak with Richardson.
Id. Alberg returned to her desk, and Andonian called Richardson
into his office. Id. After speaking with Andonian, Richardson
went back to work. Id. As he passed Alberg's desk, Richardson
shook his head and made a noise. Id. at 76. Though she did not
know what Andonian and Richardson had discussed, it was clear to
Alberg that Richardson had not been fired. Id. at 76, 79-80.
Alberg immediately grabbed her pocketbook and went to
Andonian's office. Id. at 71-72, 76. On her way, she
encountered Wayne, who invited her down to his bay in the garage
and promised he would not slap her butt. Id. at 76. Once she
got to Andonian's office, Alberg noted that Richardson had hit
3The record is ambiguous as to when this meeting occurred. Alberg testified that Richardson met with Foss and Andonian on the morning of June 9 and then met with Andonian again after the second slap later that day. See infra pp. 8, 17-18. Foss and Andonian both testified that only one meeting occurred, but disagreed whether it happened after the first or second slap. Compare doc. no. 18-3 at 15-16 with doc. no. 18-4 at 15-16. The court adopts Alberg's version for the purposes of this narrative, but notes this discrepancy because it arises again in the discussion below.
8 her two days in a row and asked Andonian how she was supposed to
feel comfortable working at Foss Motors under the circumstances.
Id. at 71-72. Andonian responded that maybe Alberg "should take
the day and think about it." Id. Upset, Alberg replied, "I
should think about it? I didn't do anything. He hit me two
days in a row. I asked him not to. And it was two days in a
row. And I should think about it?" Id. Alberg left Foss
Motors and did not return the following day. Id. at 80.
C. Aftermath
Alberg's last day at Foss Motors was June 9, 2016. Id. at
16. Foss left Alberg a voicemail after she left, and then
emailed her on June 10 asking whether she had received the
voicemail and suggesting that they meet the following Monday.
Id. at 80-81. Alberg did not respond to Foss's call or email.
Id.
Barry, who was out on the day of the incidents, also called
Alberg on June 10 to ask what happened and see if she was okay.
Id. at 82. Barry asked whether anyone had offered to terminate
Richardson. Id. When Alberg responded no, Barry stated that it
was "harassment 101." Id. Barry asked whether Alberg would be
willing to come in the following week to train another employee,
but Alberg declined. Id. Barry asked whether Alberg would
return to work if Richardson was fired, and Alberg said she
would. Id. at 82-83.
9 The day after Alberg left, Foss contacted an attorney about
how to handle the situation. Doc. no. 18-3 at 26-27. The
following week, Foss decided to terminate Richardson. Id. at
27. When Richardson returned from vacation, Andonian informed
him that he was being let go due to his actions. Doc. no. 18-4
at 18, 20. Alberg timely filed a charge of discrimination with
the New Hampshire Commission for Human Rights and the Equal
Employment Opportunity Commission. Doc. no. 1 ¶ 5. Only then
did she learn that Richardson had been fired. Doc. no. 19 at
83.
III. DISCUSSION
Alberg contends that Foss Motors violated Title VII of the
Civil Rights Act 4 (Count I) and the New Hampshire Law Against
Discrimination 5 (Count II) by subjecting her to a hostile work
environment. Foss Motors moves for summary judgment on both
counts, raising three alternative arguments. First, Foss Motors
contends that the record fails to show sufficiently severe and
pervasive harassment for Alberg's claims to go to a jury. Next,
Foss Motors argues that the record demonstrates as a matter of
law that it implemented prompt and appropriate action in
response to any harassment. Finally, Foss Motors argues that
4 42 U.S.C. § 2000e
5 N.H. Rev. Stat. Ann. § 354-A:7.
10 there is insufficient evidence to support Alberg's assertion
that she was constructively discharged, and that the court
should limit her recovery accordingly. 6 Alberg counters that
material disputes in the record preclude summary judgment on any
aspect of her claims.
The court considers each of Foss Motors' arguments in turn.
In doing so, the court assumes (as do the parties in their
papers) that both claims may be analyzed together under the
federal standard. See Rolfs v. Home Depot U.S.A., Inc., 971 F.
Supp. 2d 197, 208 (D.N.H. 2013) (citations omitted) (“Because
the New Hampshire Supreme Court relies on Title VII cases to
analyze claims under [§] 354–A, the court will address Rolfs’
state and federal claims together using the Title VII standard.”
(brackets and internal question marks omitted)); Madeja v. MPB
Corp., 149 N.H. 371, 379 (2003) (relying on federal precedent to
construe a claim under § 354-A).
A. Hostile Work Environment
"To succeed with a hostile work environment claim, a
plaintiff must show harassment sufficiently severe or pervasive
6 Alberg does not bring a separate claim for constructive discharge, but does allege that the hostile work environment to which she was subjected "result[ed] in her constructive termination." Doc. no. 1 ¶ 51. At the hearing, Foss Motors clarified that it did not seek to have Alberg's claims dismissed for lack of evidence of constructive discharge, but did ask that her recovery be limited.
11 so as to alter the conditions of her employment and create an
abusive work environment." Maldonado-Catala v. Municipality of
Naranjito, 876 F.3d 1, 10 (1st Cir. 2017) (citations, brackets,
and internal quotation marks omitted). "The challenged conduct
must be both objectively and subjectively offensive, such that a
reasonable person would find it hostile or abusive and the
plaintiff did in fact perceive it to be so." Id. (same
omissions). When analyzing a hostile work environment claim, "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
interfered with an employee's work performance." Id. (same
omissions). In essence, a court must "distinguish [] between
the ordinary, if occasionally unpleasant, vicissitudes of the
workplace and actual harassment." Rivera-Rivera v. Medina &
Medina, Inc., 898 F.3d 77, 91 (1st Cir. 2018) (same omissions).
"Subject to some policing at the outer bounds, it is for the
jury to weigh [the relevant] factors and decide whether the
harassment was of a kind or to a degree that a reasonable person
would have felt that it affected the conditions of her
employment." Id. (same omissions).
The court has little trouble concluding that a jury must
decide whether Alberg faced harassment so severe or pervasive
12 that it violated Title VII and § 354-A. Alberg testified at her
deposition that Richardson twice slapped her on the butt, the
second time so hard it stung. She testified that she reported
both incidents to Andonian, but that each time Richardson was
allowed to return to work. She further testified that in little
more than eight months working for Foss Motors, her coworkers
subjected her to numerous comments that, when viewed in her
favor, were at least inappropriate and at times sexually
explicit. These included Richardson telling her that he wanted
to "throw [her] up on his desk" and Wayne offering to give her
"some semen in [her] mouth." She testified that she raised
these comments at least once with Andonian and multiple times
with Barry, at one point offering to quit. When considering
this evidence in its totality, a reasonable jury could conclude
both that Alberg found the conduct at issue to be subjectively
hostile or abusive and that it was objectively reasonable for
her to feel that way. Summary judgment is therefore not
appropriate.
Foss Motors resists this conclusion by painting the
comments as irrelevant to the court's analysis. This is so,
according to Foss Motors, because Alberg did not find the
comments subjectively offensive and because the comments were
too sporadic to amount to actionable harassment. The former
argument is inconsistent with the record: while Alberg indicated
13 during her deposition that she tolerated some of the comments,
she also testified that she reported certain comments to Barry
and Andonian, questioned whether she should have to work in an
environment where such comments were made, and one time offered
to quit due to one of the comments. From this testimony, a jury
could find that Alberg subjectively believed the comments were
offensive. And while "offhand" comments alone are not enough to
support a hostile work environment claim, see Flood v. Bank of
Am. Corp., 780 F.3d 1, 12 (1st Cir. 2015), the record here is
not so limited. As discussed, there is evidence in this case
that at least two of the comments were sexually explicit and,
more importantly, that Richardson twice slapped Alberg's butt.
Such evidence pushes this case from one not involving actionable
harassment as a matter of law to one a jury must decide. See
Rivera-Rivera, 898 F.3d at 93,
Foss Motors disputes this last point, arguing that the
conduct at issue here is less severe than conduct courts have
previously found insufficient to support hostile work
environment claims. Foss Motors cites five cases to support
this contention, but only two are binding on this court:
Chamberlin v. 101 Realty, Inc., 915 F.2d 777 (1st Cir. 1990),
and Morgan v. Massachusetts General Hospital, 901 F.2d 186 (1st
Cir. 1990). But even assuming these decades-old decisions
reflect the modern state of Title VII jurisprudence in this
14 Circuit, neither requires an entry of summary judgment for Foss
Motors. Chamberlin is readily distinguishable because it did
not involve the sort of sexually explicit comments alleged in
this case and because the only physical contact at issue there
was the defendant's president twice taking the plaintiff's hand
without permission. 915 F.2d at 780. Likewise, the three
incidents of harassment alleged in Morgan — that the plaintiff's
coworker stood behind the plaintiff when he mopped, causing the
plaintiff to bump into the coworker; that the coworker stood
next to plaintiff in the restroom and "peeped" at the
plaintiff's "privates"; and that the coworker "pull[ed] on" the
plaintiff while trying to get the plaintiff to dance at a
Christmas party, see 901 F.2d at 188-89, 192-93 — bear little
resemblance to the circumstances here. Without belaboring the
point, nothing in Chamberlin or Morgan persuades the court that
Foss Motors is entitled to judgment on this issue as a matter of
law.
B. Employer Liability
Because Alberg contends that she was harassed by coworkers,
not supervisors, she must make an additional showing for
liability to extend to Foss Motors. Namely, she must
demonstrate Foss Motors "knew or should have known of the
charged sexual harassment and failed to implement prompt and
appropriate action." Forrest v. Brinker Int'l Payroll Co., LP,
15 511 F.3d 225, 230 (1st Cir. 2007) (citations and internal
quotation marks omitted). Foss Motors does not meaningfully
dispute that it knew that Richardson slapped Alberg's butt on
two separate occasions. And while Foss Motors contends that
Alberg never informed it of her coworkers' comments, Alberg
testified that she reported at least some of those comments to
Andonian and Barry. The court therefore focuses its analysis on
whether Foss Motors' response was prompt and appropriate. In
doing so, the court bears in mind that this determination "often
requires the sort of case-by-case, fact-intensive analysis best
left to a jury," id. at 232, and that summary judgment is only
appropriate "when the undisputed facts show that a reasonable
jury could not help but conclude that the employer's response
was both timely and appropriate," Wilson v. Moulison N. Corp.,
639 F.3d 1, 8 (1st Cir. 2011) (citation omitted).
A jury considering the present record could reasonably
conclude that Foss Motors failed to promptly and appropriately
respond to Alberg's reports of harassment. Preliminarily,
Alberg testified during her deposition that Andonian and Barry
both downplayed Richardson and Wayne's comments, and there is no
indication that anyone at Foss Motors ever addressed those
comments with Richardson or Wayne. Far more important, however,
is Foss Motors' response when informed that Richardson had
slapped Alberg's butt. On this count, there is no dispute that
16 Foss and Andonian at most reprimanded Richardson and told him
that they would take the matter up once Richardson returned from
vacation. There is similarly no dispute that Foss and Andonian
allowed Richardson to return to work and to take his scheduled
vacation, and Foss testified that he did not decide to terminate
Richardson until sometime the following week. In contrast,
Alberg testified that when she questioned whether she could
continue to work at Foss Motors under the circumstances,
Andonian suggested that she "take the day to think about it."
Construing this evidence in the light most favorable to Alberg,
the court cannot conclude that Foss Motors' response was prompt
and appropriate as a matter of law.
This conclusion stands regardless of the version of events
the court accepts. As noted above, the record is unclear as to
how many times Richardson met with Foss or Andonian and when
those meetings occurred. Alberg testified that Richardson met
with Foss and Andonian after the first slap and with just
Andonian after the second. Andonian and Foss both testified
that they only met with Richardson once, but disagreed whether
that meeting occurred after the first or second slap. There is
no dispute, however, that Richardson was only disciplined once
before he left on vacation. Thus, a jury could reasonably
conclude, depending on which version it believes, that Foss
Motors' response was not prompt or appropriate either because
17 (1) Richardson was not disciplined at all after the first slap
or (2) received no additional discipline when he slapped Alberg
a second time. Additionally, the court is unaware of any case
holding that it is an appropriate as matter of law to allow an
employee to return to work under the circumstances presented
here. Rather, this case requires the precise sort of "fact-
intensive analysis best left to a jury." Forrest, 511 F.3d 225,
230.
The court reaches this conclusion cognizant that Title VII
"does not invariably require termination or suspension as a
response to harassment (even very serious harassment)." Wilson,
639 F.3d at 8 (citation omitted). The court imposes no such
requirement. Indeed, Foss Motors may well be able to
persuasively argue that its response in this case was timely and
appropriate given the specific circumstances it faced. All the
court holds now is that a jury, not the court, must resolve this
issue.
C. Constructive Discharge
Foss Motors argues that even if it is not entitled to
summary judgment on the merits, the court should still conclude
that Foss Motors did not constructively discharge Alberg and
should limit her recovery accordingly. A party alleging
constructive discharge "must show that (1) a reasonable person
in her position would have felt compelled to resign and (2) she
18 actually resigned." Cherkaoui v. City of Quincy, 877 F.3d 14,
29 (1st Cir. 2017) (brackets, internal quotation marks, and
citations omitted). 7 When assessing this issue, a court "must
gauge whether the working conditions imposed by the employer had
become so onerous, abusive, or unpleasant that a reasonable
person in the employee's position would have felt compelled to
resign." Id. (citation omitted). This test "is one of
objective reasonableness." Id. at 30 (citation omitted).
Because there is no dispute Alberg resigned on June 9, the
sole question is whether a reasonable person in her position
would have felt compelled to do so. There is evidence in this
case that: (1) when meeting with Alberg after the first slap,
Andonian and Foss both commented on how much money or business
Richardson brought in; (2) Foss suggested during that meeting
that he would allow Richardson to take his vacation; (3) Foss
ultimately decided to speak with Richardson and "go from there";
(4) Richardson was allowed to return to work after both slaps;
(5) no one ever informed Alberg of the discipline Richardson
received; and (6) after allowing Richardson to return to work a
7 Because Foss Motors' constructive-discharge arguments focus on the calculation of damages rather than an underlying claim, they would arguably have been more appropriately raised in a motion in limine or some other pretrial motion. The court nonetheless addresses this issue now, as both parties briefed it and presented argument at the hearing. In doing so, the court applies the standard used by courts assessing constructive discharge as an independent cause of action.
19 second time, Andonian suggested that Alberg "take the day and
think about it" when she questioned whether Foss Motors was a
place she could continue to work. There is also evidence that
Andonian and Barry downplayed Richardson and Wayne's comments,
that neither Richardson nor Wayne was ever disciplined for those
comments, and that the comments continued up until the day
Alberg resigned. A jury presented with this evidence could
conclude that it was objectively reasonable for Alberg to
believe that Richardson would not face meaningful reprisal for
his conduct and that resignation was the only way to avoid
future harassment.
Foss Motors makes three arguments as to why it is entitled
to summary judgment despite this evidence. First, Foss Motors
contends that Alberg unreasonably failed to return to work or
respond to Foss's voicemail and email. But as Foss Motors
itself acknowledges, the court's analysis focuses on a
plaintiff's circumstances at the time of her resignation, not
what happened after the fact. See doc. no. 18-1 at 13.
Whatever relevance these post-resignation facts might have to
other issues in this case (such as mitigation of damages), they
do not bear on whether a reasonable person in Alberg's position
would have felt compelled to resign when she did.
Foss Motors also argues that it was unreasonable for Alberg
to resign without knowing what discipline Richardson had
20 received. This argument similarly overstates the scope of the
court's analysis. While the test is an objective one, there is
no requirement that the evidence be viewed from the perspective
of an omniscient third party. Rather, the question is whether a
reasonable person in the plaintiff's position would have felt
that she had no choice but to resign. See Cherkaoui v. City of
Quincy, 877 F.3d at 29. A reasonable jury could answer this
question in the affirmative.
Finally, Foss Motors contends that Alberg unreasonably
insisted that Richardson be summarily fired. This misconstrues
Alberg's constructive-discharge argument. Alberg does not argue
that she was constructively discharged because Foss Motors did
not impose discipline with which she agreed. Cf. Wilson, 639
F.3d at 9 ("[T]he discipline imposed need not be such as will
satisfy the complainant."). She instead contends that at the
time of her resignation, it was objectively reasonable for her
to conclude that Foss Motors had not and would not address
Richardson's conduct in a way that would protect her from future
harassment. When construed in her favor, the record supports
this conclusion.
IV. CONCLUSION
In sum, genuine disputes of material fact preclude the
court from entering summary judgment in Foss Motors' favor on
21 any aspect of Alberg's claims. Foss Motors' motion for summary
judgment (doc. no. 18) is accordingly denied.
SO ORDERED.
__________________________ Andrea K. Johnstone United States Magistrate Judge
November 27, 2018
cc: H. Jonathan Meyer, Esq. Daniel P. Schwarz, Esq. K. Joshua Scott, Esq