On January 31, 2014, the First Circuit Court of Appeals affirmed the United States District Court for the District of Massachusetts’ entry of summary judgment dismissing claims of sexual harassment and retaliation against Steelcase Inc. Steelcase was represented by Tracy Thomas Boland, a partner at Morgan, Brown & Joy LLP.
Plaintiff, Nicole Ponte, alleged that she suffered sexual harassment when her supervisor drove her to her hotel after a company training. Ms. Ponte alleged that her supervisor reached his arm over her headrest while he drove and commented that he had done a lot to get her hired and he expected her to “do the right thing by him.” Ms. Ponte alleged this happened on two occasions.
In dismissing these allegations as insufficient to prove sexual harassment, the First Circuit ruled the conduct was not “severe and pervasive.” While the Court acknowledged that such conduct might make an employee uncomfortable, the Court said “however, discomfort is not the test.”
Ms. Ponte also alleged that she reported sexual harassment and that she believed her subsequent termination was in retaliation for having made that report. The First Circuit disagreed. First, Ms. Ponte alleges she told her Human Resources contact only that she was made to feel “uncomfortable.” The First Circuit agreed with Steelcase that such a comment, not made until several months after the alleged incident, “was far from a clear complaint about harassing behavior.”
Moreover, the First Circuit found that, even if that complaint was sufficient to establish Ms. Ponte had engaged in “protected activity,” her retaliation claim still fails because she could not prove that her termination was causally connected to her complaint. Rather, the record demonstrated that Ms. Ponte’s performance was unsatisfactory from the start of her employment with Steelcase and well before she ever complained to Human Resources. In addition, Ms. Ponte’s supervisor received unsolicited negative reports about her performance both from internal sources and from clients throughout her tenure, her performance was rated as “below expectations” in her annual review, and she failed to improve despite an extensive web of support put in place by her supervisor.
To support her claim of retaliation, Ms. Ponte pointed to the fact that she was terminated a few months after she allegedly reported sexual harassment. However, the First Circuit found that “chronological proximity does not itself establish causality, particularly if ‘the larger picture undercuts any claim of causation.’”
This ruling is good news for employers. It demonstrates first that the courts do not expect Human Resources professionals to act as private investigators when someone walks through their door with a complaint. The employee must do enough to make it clear that he or she is asserting a right protected by law, not just complaining about a supervisor generally. To constitute sexual harassment, the alleged conduct must have an impact that goes beyond making the employee feel uncomfortable.
This decision also establishes that, where there is evidence that the employee’s performance problems predated the employee’s report of unlawful conduct, the mere fact that the employee made a complaint of unlawful conduct will not be enough to establish causation between that complaint and a subsequent discharge (or other adverse employment action). In other words, where the handwriting was on the wall that the employee was not long for the company, and there is evidence to prove it, the employer’s actions will be defensible and the employee’ s claim of retaliation likely will be dismissed.