Semmami v. UG2 LLC

CHAMA SEMMAMI, Plaintiff, v. UG2 LLC and AGOSTINHO CORREIA, Defendants.

Civil Action No. 18-12396

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

March 22, 2021

MEMORANDUM AND ORDER

CASPER, J.

I. Introduction

Plaintiff Chama Semmami ("Semmami") has filed this lawsuit against Defendants UG2 LLC ("UG2") and Agostinho Correia ("Correia") (collectively, "Defendants") alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 ("Title VII"), and Mass. Gen. L. c. 151B ("Chapter 151B"). D. 1. Defendants move for summary judgment, D. 82, and seek to strike portions of Semmami's deposition errata sheet, D. 74. For the reasons discussed below, the Court DENIES Defendants' motion to strike, D. 74, and ALLOWS in part and DENIES in part Defendants' motion for summary judgment, D. 82.

II. Standard of Review

The Court grants summary judgment where there is no genuine dispute as to any material fact and the undisputed facts demonstrate that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). "A fact is material if it carries with it the potential to affect the outcome of the suit under applicable law." Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir. 2000) (quoting Sánchez v. Alvarado, 101 F.3d 223, 227 (1st Cir. 1996)) (internal quotation marks omitted). The movant bears the burden of demonstrating the absence of a genuine issue of material fact. Carmona v. Toledo, 215 F.3d 124, 132 (1st Cir. 2000); see Celotex v. Catrett, 477 U.S. 317, 323 (1986). If the movant meets its burden, the non-moving party may not rest on the allegations or denials in its pleadings, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986), but must come forward with specific admissible facts showing that there is a genuine issue for trial. Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010). The Court "view[s] the record in the light most favorable to the nonmovant, drawing reasonable inferences in his favor." Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir. 2009).

III. Factual Background

The following facts are undisputed unless otherwise noted and are drawn from the parties' submission of material facts, D. 84, D. 92. UG2 is a services company that provides janitorial, maintenance and other services for office buildings and other facilities. D. 84 ¶ 1; D. 92 ¶ 1. Semmami worked at the Athenahealth/Arsenal on the Charles site ("Athenahealth Site") for a company called UNICCO before joining Janitronics in March 2014. D. 84 ¶ 2; D. 92 ¶ 2.

1. Sexual Harassment Allegations

Semmami testified that Correia, her supervisor at UG2, sexually harassed her from 2014 through May 2017. D. 84 ¶ 10; D. 92 ¶ 10. On or about August 22, 2017, Semmami filed a complaint against Janitronics and Correia with the Massachusetts Commission Against Discrimination ("MCAD"), in which she alleged that Correia discriminated against her based on race, national origin and religion, "favored Cape Verdeans and Hispanics" and treated Semmami disparately in terms of hours and other terms and conditions of employment. D. 84 ¶ 11; D. 92 ¶11. In the complaint, Semmami alleged that "[i]n or around September 2016, Mr. Correia cut [her] hours from 28 per week to 20," and that when she complained to her union, Correia told her "he would transfer [her] if [she] wanted but [she] declined." Id.

2. September 2017 Incident

UG2 won the Athenahealth contract effective September 1, 2017, after which Semmami and all other cleaners at the site, including Correia and Alexi Ventura ("Ventura"), became UG2 employees. D. 84 ¶ 3; D. 92 ¶ 3. Correia was Semmami's manager for the entirety of Semmami's tenure at Janitronics. D. 84 ¶ 7; D. 92 ¶ 7. Ventura was the Athenahealth site supervisor and worked under Correia during Semmami's tenure at Janitronics. D. 84 ¶ 8; D. 92 ¶ 8. Semmami was assigned to clean several Athenahealth Site buildings under Janitronics. D. 84 ¶ 6; D. 92 ¶ 6. The daily routine for Semmami and the other cleaners remained the same at Janitronics and UG2. D. 84 ¶ 9; D. 92 ¶ 9.

On or about September 15, 2017, Ventura yelled at Semmami about a coffee stain. Semmami believes Correia directed Ventura to yell at Semmami in an attempt to upset Semmami to produce grounds for termination. D. 84 ¶ 17; D. 92 ¶ 17. In an October 18, 2017 meeting related to this incident, Semmami spoke with Carol Ambler ("Ambler"), UG2's Human Resources Manager. D. 84 ¶ 23; D. 92 ¶ 23. On October 20, 2017, Semmami submitted a letter to UG2's Human Resources Department ("HR"), requesting a transfer to a full-time position close to her home. D. 84 ¶ 26; D. 92 ¶ 26. The letter referenced that she had been discriminated against by her former manager and supervisor. Id. Ambler and Olga Suazo Marin ("Suazo"), a UG2 Human Resources Administrator, interviewed Correia and Ventura on October 13 and October 26, 2017. D. 84 ¶ 27; D. 92 ¶ 27. During the interview, Correia described Semmami as a difficult employee who would not take direction from him or Ventura. Id. Ventura claimed that Semmami yelled athim when he approached her about the coffee stain on September 15, 2017, and that he "shushed" her given the other Athenahealth employees nearby. Id. Following the interviews, Ambler determined there was no Equal Employment Opportunity issue, as the confrontation was deemed a personality or interpersonal conflict that did not involve harassment or discrimination. D. 84 ¶ 28; D. 92 ¶ 28. Ambler attempted to find a full-time position for Semmami at another site but was unsuccessful in doing so. D. 84 ¶ 29; D. 92 ¶ 29. Following the investigation, in November 2017, Semmami told Suazo that Correia had looked at her up and down with, what Suazo called, "elevator eyes." D. 84 ¶ 31; D. 92 ¶ 31.

3. Semmami's Suspension and Termination

In December 2017, Correia and one of the UG2 cleaners at the Athenahealth site, Francisco Sevilla ("Sevilla") reported to Robert Desaulniers ("Desaulniers"), Correia's manager, that Semmami was acting in a verbally and physically inappropriate manner towards co-workers. D. 84 ¶ 42; D. 92 ¶ 42. Desaulniers reached out to Ambler to tell her about the report. D. 84 ¶ 43; D. 92 ¶ 43. On December 11, 2017, at Ambler's request, Desaulniers sent Ambler a list of names and telephone numbers he received from Correia. D. 84 ¶ 45; D. 92 ¶ 45. On December 15, 2017, a cleaner from the Athenahealth site, Renan Reyes ("Reyes"), went to UG2's headquarters in Boston to report to Ambler that Semmami, on December 14, 2017, had allegedly called her coworkers dogs and raised her middle finger at them. D. 84 ¶ 47; D. 92 ¶ 47. Reyes reported that when he confronted Semmami about her behavior, Semmami responded by saying, "I am a woman and you are a faggot . . ." Id. Following the alleged incident, Ambler decided to suspend Semmami, without pay, pending further investigation. D. 84 ¶ 49; D. 92 ¶ 49.

Ambler interviewed three other co-workers from the Athenahealth site who reported that Semmami had made other inappropriate or offensive comments. D. 84 ¶ 52; D. 92 ¶ 52. OnDecember 17, 2017, Reyes wrote a statement describing the incident in which Semmami allegedly insulted him. D. 84 ¶ 55; D. 92 ¶ 55. In late December, Ambler provided the witness interview notes and Reyes' statement to her supervisor, George Keches ("Keches"). D. 84 ¶ 58. On January 2, 2018, Ambler and another HR representative interviewed Semmami. D. 84 ¶ 60; D. 92 ¶ 60. At the interview, Semmami denied using the word "faggot" and stated her belief that the co-worker complaints were orchestrated by Correia. D. 84 ¶ 61; D. 92 ¶ 61.

Ultimately, Ambler met with Keches and Walter Crow ("Crow"), UG2's outside General Counsel, and collectively decided the allegations against Semmami were sufficiently corroborated. D. 84 ¶ 69; D. 92 ¶ 69. Keches, who had the final decision-making authority in the matter, decided that Semmami should be terminated. D. 84 ¶ 70; D. 92 ¶ 70. Semmami was terminated on January 24, 2018. D. 84 ¶ 71; D. 92 ¶ 71.

IV. Procedural History

Semmami instituted this action on November 16, 2018. D. 1. Defendants moved to dismiss on January 18, 2019. D. 6. The Court allowed the motion to dismiss in part and denied in part. D. 17. The Court allowed Defendants' motion to dismiss with respect to Counts II and VI (and as much of Counts III and VI as alleged disparate treatment) without prejudice, Counts IV and VIII (retaliation against Correia only) without prejudice, Count IX (coercion, intimidation, interference and threats) and Count XI (negligence). D. 17. Semmami subsequently withdrew Counts III and VII (race/religion/national origin harassment claim). Accordingly, her remaining claims are the Counts I and V (hostile work environment against UG2 only), Counts IV and VIII (retaliation against UG2 only) and Count X (aiding and abetting against UG2 and Correia). Id. The Court heard the parties on Defendants' motion for summary judgment on the remaining claims and their motion to strike the deposition errata sheet and took these matters under advisement. D. 95.

V. Discussion

A. Motion to Strike

Defendants ask the Court to strike portions of Semmami's errata sheet, relating to Day 1 of her deposition, September 25, 2019, in which she testified that no sexual harassment occurred at UG2 beyond a single instance in which Correia stared at her. D. 74 at 1. Pursuant to Fed. R. Civ. P. 30(e), a deponent must be given "30 days after being notified . . . that the [deposition] transcript or recording is available in which: (A) to review the transcript or recording; and (B) if there are changes in form or substance, to sign a statement [often called an errata sheet] listing the changes and the reasons for making them." Fed. R. Civ. P. 30(e)(1). Defendants contend that Semmami's errata sheet should be struck because it was untimely and it included statements that contradict her deposition testimony. D. 74 at 1-2.

As to the timeliness of Semmami's errata sheet,...