First Circuit Says Boss's Shoulder Touching Not Severe or Pervasive Sexual Harassment

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By Jay-Anne B. Casuga  

Feb. 3 — A female former sales manager who alleged that her male supervisor twice placed his hand on her shoulder while driving her back to a hotel and said she owed him for hiring her lacks a triable sexual harassment claim under federal and state law, the U.S. Court of Appeals for the First Circuit held Jan. 31 (Ponte v. Steelcase Inc.,1st Cir., No. 13-2011, 1/31/14).

Affirming summary judgment to Steelcase Inc., the First Circuit found that Nicole Ponte failed to show that her supervisor's inappropriate behavior was sufficiently pervasive or severe to support hostile work environment claims under Title VII of the 1964 Civil Rights Act and Massachusetts General Laws Chapter 151B.

The court also ruled that Steelcase was entitled to summary judgment on Ponte's Title VII and state law retaliation claims.

Relying on the standard set forth by the U.S. Supreme Court in University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517, 118 FEP Cases 1504 (2013), the appeals court said Ponte did not demonstrate that her purported complaint about her supervisor's actions was the “but-for cause” of her termination.

Judge Sandra L. Lynch wrote the opinion, joined by Judge Bruce M. Selya and Associate Justice David H. Souter.

Worker Had Performance Issues From Beginning

According to the court, Steelcase regional manager Robert Lau hired Ponte to serve as the New England area manager of Nurture, its healthcare division, in June 2010.

During her first 90 days, Ponte received complaints from one of her clients about failing to attend or adequately prepare for meetings, not following through with plans and not effectively communicating.

In July, Ponte attended training at Steelcase's headquarters in Grand Rapids, Mich. While there, she claimed that Lau twice insisted on driving her back to her hotel after dinners with other trainees.

During both rides, Ponte alleged that Lau reached his arm around her seat to place his hand on her right shoulder and kept his hand there for several minutes. Lau also purportedly told Ponte that he had “done a lot” to hire her and that she “owed him to do ‘the right thing by him.' ”

Although Ponte said she felt “taken aback” by Lau's actions, she did not report the incidents to Steelcase officials.

At the end of the month, Ponte contacted Mary Chestnut, a human resources representative, and said she was concerned about losing her job because she had arrived late to and didn't prepare for a client meeting.

In August, Ponte began to have weekly phone calls with Lau, in which he provided coaching and support. However, around February or March 2011, Ponte complained to Chestnut about what she believed was a lack of support from Lau related to “something that happened in July” that made her “feel uncomfortable.” But Ponte did not provide further detail about the shoulder touching in July 2010 and did not characterize the incidents as sexual harassment.

Ponte continued to receive complaints from clients and she eventually received an overall performance evaluation rating her as “below performance expectations.” The review stated that Ponte would be evaluated “closely” over the next 30 days.

Ponte later sent incorrect sales figures to a client in May and Lau, as well as other Steelcase officials, decided to fire her. Ponte's formal exit document states that she was fired because of her “unacceptable level of sales performance.”

Ponte filed sexual harassment and retaliation claims against Steelcase in a Massachusetts state court in December 2011 and the company removed the case to the U.S. District Court for the District of Massachusetts.

“Surely a new female employee feeling her supervisor's unwelcome arm around her shoulder as he insisted on driving her alone back to her hotel after work would feel very uncomfortable,” the court said. “However, discomfort is not the test.”

The district court granted summary judgment to Steelcase in July 2013, and Ponte appealed.

No Severe or Pervasive Harassment, Court Says

Affirming, the First Circuit ruled that Ponte's allegation about Lau's shoulder touching did not amount to severe or pervasive harassment under Title VII or Massachusetts law.

“Surely a new female employee feeling her supervisor's unwelcome arm around her shoulder as he insisted on driving her alone back to her hotel after work would feel very uncomfortable,” the court said. “However, discomfort is not the test.”

In assessing the severity or pervasiveness of alleged harassing conduct, the court said it must consider the frequency of the offensive behavior, whether it was physically threatening and whether it interfered with Ponte's work performance.

Here, Ponte alleged only two instances of inappropriate conduct by Lau in July 2010, the court said. It added that she experienced no other purportedly harassing conduct from Lau between that time and her termination 10 months later.

“While [Lau's] physical contact with Ponte was inappropriate, as was the subtle hint that she owed [him] for hiring her, it ended quickly,” the court said. “Lau's objectionable conduct was not pervasive by any measure.”

The appeals court observed that a single incident of harassment may be egregious enough to maintain a hostile work environment claim, citing cases in which employees had alleged rape threats by co-workers, unwanted touching and humiliating sexual remarks and innuendos.

However, Ponte's claim about Lau's actions do not rise to that level, the court said.

“It was not severe enough to cause her even to use the term ‘sexual harassment' in complaining about it … months later,” the court said. “On the scale of what has been recognized as egregious conduct rising to the required level, this was not close.”

Purported Complaint Not But-For Cause of Firing

The First Circuit also affirmed summary judgment to Steelcase on Ponte's Title VII and state law retaliation claims, finding that she failed establish that her protected activity was a but-for cause of her termination, as required by Nassar.

The court first expressed doubt that Ponte's February/March 2011 phone call to Chestnut constituted protected activity. The call, in which Ponte said Lau's behavior made her feel uncomfortable, occurred roughly seven months after the alleged incidents and “was far from a clear complaint about [sexually] harassing behavior.”

But even if Ponte engaged in protected activity, the court said, she still cannot satisfy a prima facie case of retaliation because she did not demonstrate a causal link between her “vague statements to Chestnut” and her discharge about two months later.

Temporal proximity alone does not show causation, “particularly if ‘[t]he larger picture undercuts any claim of causation,' ” the court said.

The appeals court pointed out that Ponte's performance issues began before Lau's shoulder touching took place, that complaints about Ponte's work came from a number of sources apart from Lau and that Ponte herself admitted as early as July 2010 that she was having performance problems and acknowledged there were no surprises in the negative evaluation she received in 2011.

Additionally, Ponte was advised that her work would be monitored “closely” for 30 days after the review, and she “did not redeem herself,” the court said. For example, it said, Ponte sent incorrect sales information to a dealer.

“Here, the larger picture quite clearly undermines Ponte's claim,” the court said.

Moreover, the First Circuit held that Ponte failed to show pretext in Steelcase's stated non-retaliatory reason for her termination.

The court rejected Ponte's attempt to raise pretext by alleging that Steelcase “artificially” reduced her sales to $680,000 from $1.23 million.

Steelcase explained that one of its clients, which had locations in North Carolina, Atlanta and New York, placed all of its orders through Boston, the court said.

“As a result, all of the … sales are initially credited to the New England region,” the court said. “Later, the sales credits reallocated to the regions to which the … orders actually ship, and the Boston sales totals are reduced accordingly. This is a reasonable business practice and not evidence of retaliatory application of its rules.”

John A. Markey Jr. of Moses, Smith & Markey in New Bedford, Mass., represented Ponte. Tracy T. Boland of Morgan, Brown & Joy in Boston represented Steelcase.

 

To contact the reporter on this story: Jay-Anne B. Casuga in Washington at jcasuga@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

Text of the opinion is available at http://www.bloomberglaw.com/public/document/Ponte_v_Steelcase_Inc_Docket_No_1302011_1st_Cir_Aug_14_2013_Court.