A U.S. magistrate judge has ruled that a college professor can move forward with a lawsuit accusing her supervisor — who allegedly sexually harassed her at work — of aiding and abetting employment discrimination.
The supervisor argued that the aiding and abetting count must be dismissed as a matter of law because the professor’s complaint failed to plead facts separate and distinct from her discrimination and unlawful retaliation claims.
But Judge Kenneth P. Neiman in Mass-achusetts disagreed, denying a motion to dismiss brought by the defendant supervisor and co-defendant Bay Path College, or BPC.
“While the bulk of the factual material supporting Plaintiff’s main claims of discrimination against [the supervisor] focuses on unwelcome verbal threats and sexual contact, the complaint also contains other allegations,” Neiman wrote, “particularly those relating to BPC’s investigation of Plaintiff’s claims of sexual harassment and the role [the supervisor] played in that investigation, plausibly demonstrating [her] supporting role in BPC’s discrimination.”
Neiman’s findings were recently adopted by U.S. District Court Judge Michael A. Ponsor, who was assigned to oversee the case.
The 32-page decision is Zhao v. Bay Path College, et al.
Splitting up claims
Bonita M. Riggins, counsel to the plaintiff, said the judge issued a 90-day stay. The Florida lawyer, who is handling the case with Wendy A. Kaplan of Boston, said she is hoping to sit down with opposing counsel for mediation during that period.
Riggins said the judge’s ruling was warranted based on the facts contained in her complaint.
“Just like any other case, when you have separate causes of action, you are permitted to bring the claim,” she said. “Even though they sometimes overlap and the facts are the same, the judge’s ruling recognized that both claims are perfectly valid.”
Anne C. Rosenberg of Cunningham, Machanic, Cetlin, Johnson & Harney in Natick, Mass., represented the defendant in a 2012 federal District Court case cited by Neiman, Fisher v. Town of Orange.
Rosenberg said the defense in Zhao properly sought to challenge the claim before Neiman but was unsuccessful due to the low standard of proof needed to survive a dismissal motion.
Viewing the facts in the light most favorable to the plaintiff, the judge found that the aiding and abetting allegations related to the school’s allegedly inadequate investigation and improper conduct, while the rest of the suit was focused on the discrimination, she said.
“I would’ve made the same argument as the defense did [in Zhao] if I were in their place, but, unfortunately, at a motion to dismiss stage, as long as there are sufficient facts pleaded, they can get over that initial hurdle,” Rosenberg said. “That’s the problem that we had in the Fisher case, where the plaintiff actually pleaded just one word that essentially got her over the hurdle.”
While the evidentiary standard is low, Rosenberg said, a plaintiff must assert in a complaint that a defendant had the requisite intent to discriminate.
“Then they have to prove that the defendant committed individual and distinct wrongs that are separate from the plaintiff’s main claim,” she said. “They also have to establish that the defendant knew of his or her supporting role in this effort, which was intended to deprive the plaintiff of a right under 151B.”
Harold Lichten, an employee-side attorney from Boston, was plaintiffs’ counsel in a 2012 Supreme Judicial Court aiding and abetting case involving allegedly biased police-officer promotion exams.
In that case, Lopez v. Commonwealth, which was cited by Neiman, the SJC dismissed the aiding and abetting claim on grounds that a plaintiff must show a defendant committed a wholly distinct wrong separate from the underlying discrimination claim, Lichten said.
“I think that what [Neiman] is saying is that … because the [school] could be liable on its own for not taking proper action to quell the sexual harassment, and since that’s an independent act of discrimination, that means [the supervisor] could be liable for aiding and abetting that illegal conduct,” said Lichten, a lawyer at Lichten & Liss-Riordan.
Jessica L. Herbster of Schwartz Hannum in Andover, Mass., who represents the defendants, could not be reached for comment before deadline.
Job gone bad
The plaintiff was hired as a full-time assistant professor of mathematics at BPC in 2005. Her supervisor, up until 2010, was defendant Gina Semprebon.
At the outset of the plaintiff’s employment, Semprebon allegedly told her she was close friends with the school president and that she had used her influence to facilitate the plaintiff’s hiring.
According to the plaintiff’s complaint, Semprebon impressed upon the plaintiff that BPC was a small college and that the plaintiff would need her protection.
In 2006, the plaintiff said, Semprebon came to her office to profess her sexual and romantic feelings toward her. The plaintiff responded that she was married and rebuffed Semprebon’s advances, according to the complaint.
In January 2007, “overcome by confusion and fear regarding her future at BPC given Semprebon’s stated and apparent authority and power over [her] professional life,” the plaintiff gave in to the sexual advances, she said. In May, Semprebon pressured the plaintiff into joining her at a conference in Europe, where she was subjected to repeated unwelcome sexual contacts, the plaintiff alleged.
When the plaintiff tried to end the situation, Semprebon allegedly reminded her of her influence and implied that she would use her position to instigate her downfall, according to the plaintiff.
The plaintiff reported her workplace problems to the dean in late 2007, but said she was too fearful to report any sexual conduct. She also requested that the school separate the math department from the science department so she could “get away from” Semprebon.
The sexual contact continued the following academic year until the plaintiff confronted Semprebon and refused to engage in sexual contact with her.
From that point on, the plaintiff alleged, Semprebon mistreated her and created a hostile work environment. Even after the plaintiff disclosed the sexual contact, the school failed to properly investigate the claims, she said. She alleged in her suit that Semprebon continued to play an active role in that investigation.
When the school fired her in November 2011, the plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission and the Massachusetts Comm-ission Against Discrimination. The case was removed federal court in January 2012.
In denying the supervisor’s motion to dismiss, Neiman noted that courts are generally supposed to construe Chapter 151B liberally to accomplish its stated goal of discouraging discriminatory conduct.
He said the language included in G.L.c. 151B, §4(5) expressly prohibits people from aiding, abetting or inciting the commission of any conduct barred under the statute.
The judge said the plaintiff’s complaint contained distinct factual allegations supporting the discrimination claims against both the school and supervisor, thereby facilitating the independent aiding and abetting claim.
“These events, it should be remembered, involve multiple participants,” Neiman said.
“If Plaintiff is able to prove that BPC refused to adequately investigate her claims, as she alleges, [the supervisor’s] role in BPC’s investigation, if proven, would involve acts separate from those forming the direct discrimination claim against her,” he added.
The judge also rejected the defendants’ argument that the common law claims were barred by the exclusivity provision of Chapter 151B insofar as they were founded on the same allegations as the plaintiff’s statutory discrimination and retaliation claims.