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Federal judge denies Fuller’s request to toss harassment claims

A federal court judge has blocked requests by the state’s largest heating oil company to set aside portions of a sexual harassment lawsuit involving its owner and two former employees who claim he made unsolicited physical advances and then fired one of them when the other formally complained.

Lawyers for the business, Fred Fuller Oil Co., had asked the court to dismiss one of the women’s allegations, saying they do not constitute sexual harassment, and that her friendship with the second plaintiff, Nichole Wilkins, fails to prove that her firing in November 2011 was linked to Wilkins’s having threatened a month earlier to complain to the state.

By then, Wilkins had already resigned from the company after Fuller allegedly fondled her breasts and made inappropriate sexual comments. Fuller was later arrested for the incident and pleaded no contest to a reduced charge of simple assault.

Beverly Mulcahey, the first plaintiff, was fired three weeks after Wilkins notified Fuller of her intent to contact the Equal Employment Opportunity Commission. A letter from the company explained that Mulcahey “was not making enough phone calls.”

In addition to a wrongful termination, the suit claims Fuller created a hostile work environment for Mulcahey by making several sexually charged comments to her, by hugging and flirting with her female co-workers, by forcing her to work more than others out of sexual favoritism, and by harassing Wilkins, her close friend.

The company’s attorneys countered that Fuller’s alleged comments included only one crude gesture – a crotch grab – and were not objectively offensive. But in a ruling Friday, Judge Paul Barbadoro, of the U.S. district court in Concord, disagreed.

“When these allegations are viewed together, they are more than sufficient to plead a viable claim that Mulcahey was sexually harassed,” he wrote.

Barbadoro went on to say he was yet unconvinced of the company’s argument regarding the plaintiffs’ friendship, but would consider revisiting it as the case moves forward. While Mulcahey’s claim might not hold up in court, he wrote, “the close temporal proximity” between her firing and the date of Wilkins’s threat, “when viewed together with the other evidence . . . is sufficient to allow this claim to survive.”

The suit, which was filed in June by the employment commission and is set for trial this fall, seeks lost wages and punitive damages for both women. It is the second time the commission has sued Fuller Oil; the Hudson-based company paid $780,000 to settle the first, brought on behalf of five women, in 2005.

The suit describes numerous inappropriate advances by Fuller toward Wilkins, including at least three occasions when he allegedly slipped his fingers inside her blouse and touched her breasts.

In addition to the suit, Fuller has come under intense fire in recent weeks for delivery backlog that he claims was caused by a malfunction in the company’s phone system. The delays became enough of a headache that the state set up an emergency hotline for customers to file complaints and set up rush deliveries amid sub-zero winter temperatures.

In a letter sent Saturday to the director of the state’s Homeland Security and Emergency Management division, Fuller said it will fully reimburse the state for any costs it incurred and intends to create a fund “to assist those customers of ours that were inconvenienced by this situation.”

(Jeremy Blackman can be reached at 369-3319, or on Twitter @JBlackmanCM.)

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