Claims by two female employees that their former supervisor subjected them to a hostile work environment based on their gender and retaliated against them when they complained of the discrimination presented genuine, material disputes of fact foreclosing summary judgment in favor of the defendants, a federal judge has ruled.

Although the defendants argued that the allegations lacked any overt references to gender and that the supervisor was simply a demanding manager who engaged in close oversight, U.S. District Court Judge Joseph N. Laplante determined that a jury should make the call.

“The summary judgment record can be reasonably interpreted in multiple ways,” Laplante wrote. “It may reflect only personality conflicts between a demanding boss attempting to reorient a troubled organization and employees with different work styles. Or it may suggest that these disputes were driven, at least in part, by board-level machinations. But viewing the facts and drawing all reasonable inferences in the plaintiffs’ favor, as Rule 56 requires, the summary judgment record can be read to show gender-based discrimination and retaliation.”

LaPlante, a member of the judiciary in New Hampshire, was sitting by designation in Rhode Island because Chief Judge William E. Smith is a YMCA board member.

John D. Doran Jr. of Providence, who represented the defendants, said though the summary judgment standard can be difficult to meet, he thought it had been here.

“[But] the judge thought the case should be decided by a jury, and we’re happy to do that,” Doran said.

Providence attorney David S. Cass, who represented the plaintiffs, said the order may prove useful for plaintiffs, particularly as employment discrimination cases have changed in recent years.

“As plaintiffs’ counsel, we are seeing a reduction in overt statements of discrimination and seeing more expectation-based discrimination, where either minorities or female employees are expected to behave in a certain way and accept a certain form of behavior against them,” he said.

The 34-page decision is Cooper, et al. v. The Greater Providence Young Men’s Christian Association, et al.

Working relationships at issue

Lynda Dykeman was hired as the chief financial officer of the Greater Providence Young Men’s Christian Association in March 2016. Karen Cooper joined the organization in December 2016 as chief marketing and development officer.

The YMCA also hired Steven O’Donnell as chief executive officer in October 2016, at a time when the organization was in significant financial distress. Both women reported directly to O’Donnell and were members of the senior leadership team.

Dykeman testified that O’Donnell skipped a meeting at which she presented the annual budget but did not miss meetings with the male members of the senior leadership team. She alleged that he asked her questions without letting her provide full explanations or face-to-face interactions, as he did with male executives.

She recounted an incident in which he asked for an article of her clothing to use in order to shine his shoes, and that O’Donnell also made repeated comments about how she “needed a few drinks.”

Cooper’s working relationship with O’Donnell faced similar challenges, she told the court. He required that all donor solicitations go through him, which Cooper said excluded her from the process and prevented her from doing her job, while her male colleagues were allowed to act without O’Donnell’s explicit approval.

Both Cooper and Dykeman complained about O’Donnell and stated they believed his actions were based on their gender. After the chair of the board attempted to discuss the issues with O’Donnell, he began an effort to have her removed from the position.

The YMCA retained a third party to investigate Cooper and Dykeman’s claims. They objected that the scope of the investigation was incomplete and that its findings were mischaracterized. Both women started working from home rather than come into the office.

O’Donnell emailed both Cooper and Dykeman to state that if they did not return, they would be presumed to have abandoned their jobs.

They filed suit, asserting 18 claims against the YMCA and O’Donnell under both state and federal law for discrimination and retaliation.

The defendants moved for summary judgment on all claims. They argued that the plaintiffs failed to produce evidence that O’Donnell’s treatment of Cooper and Dykeman was related to their gender, that the alleged harassment was insufficiently severe or pervasive, and that neither plaintiff suffered an adverse work action, nor were they constructively discharged.

‘Lack of overt reference to gender’

Laplante began by rejecting the defendants’ request to apply the “same actor inference” with regard to Cooper, who was hired by O’Donnell shortly before the allegedly discriminatory activity began.

The judge found that the facts of the case varied from the intent of the inference that a putative discriminator would not hire someone from a group he or she does not like (in this situation, women).

Cooper’s hiring occurred early in O’Donnell’s tenure, Laplante noted, and it was “unclear that he would have been able to exclude candidates based on any discriminatory prejudice.”

Further, “[i]t is not difficult to imagine a supervisor who is willing to hire members of a protected class, but then expects those individuals to tolerate unlawful discriminatory treatment at the workplace,” he wrote.

Turning to the plaintiffs’ hostile work environment claims, Laplante determined they offered sufficient evidence of sex as a basis for the harassment and the severity and pervasiveness of the harassment to avoid summary judgment.

The “lack of overt reference to gender is not dispositive,” he said, particularly as the plaintiffs pointed to evidence from the former board chair and the investigative report that O’Donnell treated them more harshly than their male peers.

Other evidence reasonably implicating gender included the shoe-shining incident with Dykeman, which “arguably suggests gender-based assumptions and privileges,” and testimony that “O’Donnell used terms for the plaintiffs and other women that were not explicitly sexist, but in context arguably reflected gender-bias,” Laplante said.

The defendants countered that male members of the senior leadership team had similar concerns regarding O’Donnell’s management style and that O’Donnell’s positive treatment of other female employees demonstrated that his conflicts with the plaintiffs were not based on gender.

“These are potentially sound, even persuasive, arguments to make at trial,” Laplante wrote. “But, viewing all facts and drawing all reasonable inferences in the light most favorable to the plaintiffs, they do not foreclose a reasonable factfinder from finding discrimination based on gender.”

Similarly, the severity or pervasiveness of the alleged harassment was an issue for the jury to decide, Laplante said, as the evidence “can be reasonably interpreted in very different ways, but thus presents genuine issues of material fact.”

The plaintiffs’ claims for retaliation and constructive discharge met the same fate. While the defendants argued that the plaintiffs failed to show they suffered any adverse action because there was no increase in discrimination or harassment after their complaints, “a reasonable factfinder might also find that the plaintiffs have shown that CEO O’Donnell’s treatment of the plaintiffs intensified and worsened after he became aware of their oral or written complaints,” Laplante wrote, “or that the actions taken by O’Donnell and the GPYMCA board concerning the investigation of those complaints harmed the plaintiffs and would ‘dissuade a reasonable worker from making’ similar complaints.”