Filed: Jan. 31, 2014
Latest Update: Mar. 02, 2020
Summary: 4, In this email, Lau also informed Curry that Ponte had said, her mother was suffering from stage 4 cancer.8, Before the decision to terminate Ponte's employment was, made final, Waalkes consulted with Chestnut regarding Ponte's, history at Steelcase.City of Boston, 398 F.3d 76, 84 (1st Cir.
United States Court of Appeals
For the First Circuit
No. 13-2011
NICOLE PONTE,
Plaintiff, Appellant,
v.
STEELCASE INC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Lynch, Chief Judge,
Souter,* Associate Justice,
and Selya, Circuit Judge.
John A. Markey, Jr., with whom Moses Smith & Markey, LLC was
on brief, for appellant.
Tracy Thomas Boland, with whom Morgan, Brown & Joy, LLP was on
brief, for appellee.
January 31, 2014
*
Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
LYNCH, Chief Judge. Nicole Ponte appeals from the
district court's grant of summary judgment in favor of her former
employer, Steelcase Inc., on her claims under Title VII, 42 U.S.C.
§ 2000e et seq., and Mass. Gen. Laws ch. 151B that (1) she was
subject to sexual harassment while employed there, and (2) she was
terminated in retaliation for her reports of such harassment. We
apply the but-for causation standard announced in University of
Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517
(2013), to plaintiff's Title VII retaliation claim. We affirm.
I.
Because this appeal is from entry of summary judgment, we
recite the facts in the light most favorable to Ponte, and also
rely on undisputed material facts. See Winslow v. Aroostook Cnty.,
736 F.3d 23, 24 (1st Cir. 2013).
Steelcase is a Michigan company that manufactures
furnishings and sells a variety of workplace products and services;
its sales are primarily conducted through its dealers, who are
effectively Steelcase's clients. Steelcase, for its healthcare
division, hired Ponte in mid-June 2010 as an Area Manager in New
England, and she was employed there for less than a year, until May
27, 2011. Ponte was the only Area Manager for the New England
region.
Robert Lau, the Regional Manager for Eastern Area
Healthcare Sales, hired Ponte and was her direct supervisor
-2-
throughout.1 Lau and Ponte both worked for Nurture, Steelcase's
healthcare division, but Lau was based in Kentucky while Ponte was
based in Boston. Lau reported directly to Kyle Williams, head of
Nurture.
Lau instructed Ponte to spend her first ninety days at
Steelcase completing her training, "listening and learning," and
building her relationships with her three key dealers: Susan Hughes
at Office Environments of New England ("OENE"), Suzanne Ludlow at
Business Interiors, and Edward Kuchar at BKM.
Ponte's performance problems began almost immediately.
In June 2010, Mary Chestnut, Ponte's Human Resources contact, noted
that she had received feedback from another Steelcase employee that
Ponte was having "more issues" with the initial "on-boarding"
process than other recent hires.
Early on, Lau received sua sponte complaints about Ponte
from one of her dealers. On July 8, 2010, after Ponte failed to
attend a meeting at OENE that she had said she would attend, Susan
Hughes emailed Bob Kelly, the CEO of OENE, to detail that episode
and to outline her general problems with Ponte's early performance.
In the three weeks that Ponte had been working, Hughes found her to
1
There were Area Managers in the other regions of the
country. Area Managers are responsible for maintaining existing
relationships with key regional dealers and for advancing sales of
Steelcase products in their regions. Lau also supervised Area
Healthcare Managers from ten other regions on the East coast, in
addition to Ponte.
-3-
be "too impulsive, making assumptions, not following through on
what she says she will do, and not planning ahead or communicating
well." There had been "little or no prep for any meeting I have
attended with her." On July 15, CEO Kelly forwarded this email to
Lau.
Two Incidents Alleged to Be Sexual Harassment
Soon after Hughes's July 8 email, Ponte attended training
at Steelcase headquarters in Grand Rapids, Michigan. A portion of
the training was specific to Nurture employees, while another
portion of it was part of a more general "Escalate" training
program, received by all Steelcase sales employees. After training
ended one evening, Lau, Ponte, and two other trainees went out for
dinner. Following dinner, though Ponte was set to go back to her
hotel with the other trainees, Lau was "persistent" that Ponte join
him in the car so that he could drive her back to her hotel. Of
the three trainees, Ponte was the only one who reported to Lau.
The other two trainees, Robin Goldhawk and Jared Mejeur, reported
to Benjamin Pratt, Lau's West coast counterpart. During the
roughly fifteen-minute drive to the hotel, Lau reached his arm
around Ponte's seat to put his hand on her right shoulder, and left
his hand there for about a minute. During that ride, he emphasized
-4-
to Ponte that he had done a lot to get her this job, and that she
owed him to do "the right thing by him."2
Ponte recounted the events of the car trip to Goldhawk
and Mejeur. Mejeur testified that Ponte said she "had an
interesting car ride back to the hotel" and that she had felt
"taken aback" by Lau's actions. Goldhawk testified that Ponte said
"something like Rob hit on her," but reported it to Goldhawk on a
different evening.
Later during Ponte's training in Grand Rapids, she and
Lau attended a dinner with a different group of Steelcase
employees. Lau again insisted on driving Ponte back to her hotel,
over her insistence that she had a ride with other trainees.3
During this drive, Lau again reached his arm around Ponte to rest
his hand on her shoulder, and kept his hand there for the majority
of the fifteen- to twenty-minute drive back to the hotel. She did
not request that he remove his hand. Ponte did not report this
incident to her peers. Nor did she report either incident at the
time to Steelcase supervisors. Lau's actions during the two car
2
Lau admits that he drove Ponte back to her hotel on one
occasion, however he denies putting his arm around Ponte and making
comments implying that she owed him for the role he played in
getting her the job. Lau later testified that he wanted to
"understand how the training [was] going, how the class [was]
going, . . . [was] she comfortable with the company and the
culture." Because we view the facts in Ponte's favor, we assume
that these events transpired as she describes.
3
Lau denies that a second car ride with Ponte took place.
Again, we assume it did.
-5-
rides are the only incidents on which Ponte's sexual harassment
claim rests.
After the training in Grand Rapids, on July 23, 2010, Lau
sent Ponte a brief email, and told her that he had received
"[p]ositive feedback" from Hughes at OENE. Lau also arranged for
John Curry, a Steelcase Regional Sales Manager based in Boston, to
meet with and coach Ponte.4
Four days later, on July 27, Ponte called Chestnut in
Human Resources and expressed concerns about losing her job,
explaining that she had both been late to and not prepared for a
meeting with the CEO of OENE. This was separate from her earlier
failure to show up at the OENE meeting with Hughes. Chestnut told
Ponte that Ponte's performance was "not meeting expectations," and
that Ponte needed to discuss that with Lau. Chestnut offered to be
a part of any such meeting, but Ponte declined the offer. Ponte
does not claim to have told Chestnut in this call about the two
incidents or to have made any assertion of improper conduct by Lau.
Ponte does not dispute that she and Lau had weekly phone
calls beginning in August 2010, in which Lau provided Ponte with
coaching and support, though Ponte's later view was that these
calls were insufficient. The calls continued until the end of
Ponte's employment. Also, in August 2010, Lau arranged for Brenda
4
In this email, Lau also informed Curry that Ponte had said
her mother was suffering from "stage 4 cancer."
-6-
Brewer, a Regional Performance Consultant, to assist Ponte in her
professional development.
Months later, Ponte called Chestnut to report she was
having problems with Lau. She does not give a date or offer a
record of the call, other than she recalled it being in February or
March 2011. It is this phone call that Ponte relies upon as the
protected activity of reporting harassment for which she was
allegedly terminated in May 2011. Ponte told Chestnut that she
perceived a lack of support from Lau, and that she "thought a lot
of it was related to something that happened in July." Ponte
testified that she "didn't go into detail" about the July
incidents. She did not characterize them as sexual harassment.
She did say that she was "in a position with Rob [Lau] where [she]
was alone [on] a couple of occasions and [] was made to feel
uncomfortable." But Ponte also told Chestnut that she did not want
to pursue this issue. She told Chestnut that she "didn't want to
get anybody in trouble but [] felt that it was still impacting" her
performance. This call was seven or eight months after the July
events.
Chestnut testified that she did not recall the specific
call Ponte recounted. However, she noted that when Ponte did call
Chestnut, it was to explain personal issues regarding Ponte's
mother's illness, and "not about anything going on at work." We
take as true that the call was as Ponte has recounted.
-7-
On March 2, 2011, Suzanne Ludlow of Business Interiors,
another one of Ponte's three major dealers, emailed Lau to express
several concerns and complaints about Ponte's job performance to
that point. Ludlow also noted in the email that she had spoken to
Hughes, Ponte's main dealer at OENE, about Ponte and that the two
were "on the same page."
In response, Lau spoke with Ponte the next day about
Ludlow and Hughes's complaints. On March 11 Lau emailed his notes
about the meeting with Ponte to himself and to Chestnut in Human
Resources. The notes say Lau covered with Ponte the complaints he
had received from the dealers, reminded Ponte of the crucial
importance of clear communication, and set out a series of
expectations for her going forward. He also noted that Ponte
stated she felt there was "no basis" for the dealers' concerns.
Ponte did not deny these complaints were made, and does not deny
the conversation with Lau.
On March 11, Ponte and Lau had another phone
conversation. She said that she had learned that morning that she
had skin cancer. She also said that she had been an hour late for
her meeting with Hughes at OENE, due to traffic. Though Ponte said
that she had called Hughes to let her know she would be late,
Hughes was upset and did not want to speak with Ponte after she was
an hour late. Lau's own notes on the conversation state that his
-8-
expectation was that he and Ponte were to "make this work" with OENE.
Also on March 11, 2011, Lau forwarded to Chestnut two of
his earlier emails about Ponte from late July 2010. Ponte argues
that Lau began forwarding these emails to Chestnut only after Ponte
spoke to Chestnut in February or March about Lau, but the record is
inconclusive as to timing. By contrast, Steelcase contends that
Lau began forwarding these emails to Chestnut when he was preparing
Ponte's annual performance review for the period ending on February
28, 2011 and it was clear that the review would be negative.
Steelcase's evidence is that Lau's standard practice was to inform
Human Resources in advance of giving an employee a negative review.
There is no evidence to the contrary.
On March 21, Ponte engaged in an email colloquy with
Ludlow and Gary Lague from Business Interiors, one of Ponte's main
dealers, about an order for several types of furniture for an
office. Ponte provided listings and price information for
furniture. In response to a question about whether bed headboards
were available, Ponte responded: "Just heard from a colleague that
headboards CAN be ordered through specials. So, you may want to
get a quote prior to the meeting Thursday." Ludlow forwarded
Ponte's response to Lau and said that she was concerned because it
"appears [Ponte] is taking the word of colleagues" and was not sure
whether her own company carried this product. Ludlow said she
-9-
"automatically see[s] a red flag here." Lau then followed up with
Ludlow immediately to provide the information Ludlow requested.
A week later, presumably after Lau and Ponte had spoken
to discuss Ludlow's concerns, Ludlow emailed Lau to report
positively on a client meeting that she had attended with Ponte.
Ludlow noted that Ponte was "prepared and ready" for the meeting
and that they were "on the right track."
Annual Performance Review Process and Aftermath
On April 21, the day before Ponte was scheduled to have
her performance review with Lau, she sent Chestnut, at about 8:30
p.m., an email requesting a personal day the next day (April 22) to
be with her mother, who had been hospitalized. That request was
granted, so Ponte's performance review did not take place on April
22, as planned.
In her email, Ponte also wrote:
I enjoy my job thoroughly and I feel since
coming back from the sales meeting in March,
that I have been able to work strategically
and begin to build the necessary relationships
that are essential to be successful. I have
several projects that I have been working on
and had a recent win.
She went on to note that she knew that Lau "continually talks about
[her] communication problems," but that she felt "he is not aware
of the complexities of this territory and some of the historically
difficult personalities that exist and have been discussed by other
Steelcase employees." Ponte expressed regret about her tardiness
-10-
to meetings, and also noted her perception that, as a general
matter, she did not have Lau's support. She stated that "it seems
like I am continually asking him for support by the weekly phone
calls and requests for a territory visit." Her email concluded:
I am taking your advice and listening to Rob's
[performance] assessment despite my strong
feelings about him. I know that you keep
telling me that I am the only one that has a
problem with Rob, but again, I am not a
veteran who feels his remarks and the turnover
at Nurture is so high that they hope not to
deal with him very long.
It also said: "I ask that you do not share this letter with Rob for
fear of any sort of actions he might make towards me. It is clear
to others and to me, he wants me out of the organization and will
make his word believable."
Chestnut testified that in response to this email she
communicated to Ponte that she, Chestnut, could not move forward
with any kind of complaint or action if Ponte told her not to
reveal the information. Chestnut also explained to Ponte that the
company had "other avenues of communicating if [Ponte] has any
concerns, because [Chestnut] did not understand what [Ponte's]
concerns were." Chestnut reminded Ponte that Steelcase had a
"Global Integrity Hotline" that employees could call to report
problems, and that Kyle Williams, Lau's supervisor, was also
available to Ponte. Ponte does not dispute Chestnut's account.
Ponte never called the company's hotline and did not contact
-11-
Williams about Lau until almost a month later, when the decision to
terminate her employment had already been made.
Also on April 21, Lau forwarded to Chestnut an email that
he had sent to himself a few minutes earlier, about two hours after
Ponte emailed Chestnut. The Lau email covered further performance
problems that he was having with Ponte. Specifically, after Ponte
had expressed to him her view that Lau was not supporting her, he
responded that he was going behind the scenes to ask the dealers to
continue to give Ponte a chance in her role, and that they would be
discussing these issues in her performance review. He also voiced
his concern that she was not a good fit for her role, and that they
"need[ed] to work through this."
Ponte contends that because Lau forwarded this email to
Chestnut less than two hours after Ponte emailed Chestnut regarding
Lau, it supports the inference that Lau "knew" Ponte was "speaking
to Human Resources," and this supports her claim of retaliation.
However, there is no evidence that Chestnut ever disclosed to Lau
the content of Ponte's April 21 email, and Chestnut denies she did
so. Lau had begun forwarding his notes about Ponte to Chestnut
over a month earlier, on March 11.
Ponte took her requested personal day on Friday, April
22, postponing her performance review. On the following Monday,
April 25, Lau forwarded Ponte's formal performance review to Kyle
Williams, his supervisor, and explained that Ponte had not been
-12-
able to have her performance review on the scheduled date because
of her mother's illness.
As Ponte's direct supervisor, Lau prepared her MAPP
review5 and provided it to her. That formal review, for the period
ending on February 28, 2011,6 gave Ponte an overall rating of
"Below Performance Expectations," and in each subcategory she was
rated as "Below Objective" or "Development Need." The evaluation
noted that there "have been consistent concerns from a variety of
professionals regarding Nicole's clarity of communication, meeting
commitments . . . being on time, organizing, and ability to
prioritize to become more effective." In the sales portion of her
review, which counted for 40% of the overall evaluation, Ponte's
review was poor: the sales plan for the region was $1.965 million,
and only "$680k" of those sales were realized. The evaluation
notes that Steelcase will "evaluate this [employee situation]
closely [over the] next 30 days."
5
The formal review process for Area Healthcare Managers is
based on a Measurable Annual Performance Plan (MAPP). The MAPP is
based in part on the employee's measurable sales objectives, and is
shared with each employee at the start of the year so that they are
aware of their goals. The formal MAPP performance review document
is uniform across Area Healthcare Managers. Once the manager has
completed the review, it is shared with the employee; in order for
the review to be marked as "complete" in Steelcase's online review
system, both the manager and the employee must sign off on it.
6
Steelcase's MAPP process runs on an annual schedule
beginning each year in March. Ponte began working at Steelcase in
the middle of the 2010-2011 MAPP year, so her evaluation did not
span a full twelve months.
-13-
After reading her evaluation,7 Ponte emailed Lau on April
25, 2011, and stated that she "felt as though there were not any
surprises from our weekly discussions." Ponte's email said that
she "appreciate[d] the trust and the risk [Lau] took" in hiring
her, and reiterated her commitment to improving in her job.
Finally, Ponte reviewed some of the details for Lau's upcoming
visit to the New England region and concluded: "I thoroughly enjoy
when you come out to the territory and look forward to your trip
here."
On May 4, Ponte and Lau were communicating via email with
Jim Maguire, a dealer from Office Concepts. In response to a
direct request, Ponte sent a number of sales figures. Maguire
replied to both Ponte and Lau that the figures were incorrect and
inapplicable to his company. Lau responded solely to Ponte: "Not
good to share wrong information. Please correct." Ponte then
corrected her error and re-sent the corrected information soon
after.
Lau visited the New England region and met with Ponte on
May 12 and 13. Ponte was responsible for planning the visit.
Afterward, Lau emailed notes to himself that his visit was poorly
organized, and that he had told Ponte that it could have been done
7
The record is silent on how Ponte received her review;
however, Ponte's April 25, 2011 email to Lau stated that she
"checked the appropriate box on the MAPP [Fiscal Year] [20]11
acknowledging we reviewed the appraisal together." We assume that
she reviewed the document electronically.
-14-
in one day instead of two. Lau's notes also state that he thought
her ability to "lead the sales effort [was] questionable," and that
she was "playing a support role" and "not proactively targeting
accounts." Lau testified that the May visit was when he began
seriously considering terminating Ponte's employment.
Termination of Ponte's Employment
Lau made the ultimate decision to terminate Ponte's
employment, in consultation with others, as is normal Steelcase
procedure. He did so after consulting with his supervisor Kyle
Williams, with Human Resources, and with the company's legal
department. By May 2011, Chestnut had moved to a different role
within the company, and she was replaced in Human Resources by Dawn
Waalkes.8 Ultimately, Lau concluded, with Williams' full support,
that Ponte's performance continued to be unsatisfactory and that
the best course of action was to terminate her employment.
By May 20, 2011, Ponte had been notified that Lau and
Waalkes were traveling to Boston to meet with her on May 27. She
then emailed Williams to request a phone conversation with him; she
stated that she had reached out to Chestnut and others about her
"concerns about Rob" and that she "shared what happened with Robin
[Goldhawk] and Jared [Mejeur] about some private issues that
8
Before the decision to terminate Ponte's employment was
made final, Waalkes consulted with Chestnut regarding Ponte's
history at Steelcase. Chestnut testified that she spoke to Waalkes
about Ponte, but that she did not participate in any conversation
at which the final decision about termination was made.
-15-
happened." She again did not describe any sexually harassing
conduct.
Williams forwarded this email to Waalkes, who responded
that Ponte had also called her on May 20. Waalkes's view was that
Ponte offered "a lot of excuses and blaming of others for things
that haven't gone well." Ponte had given Waalkes a list of people
who Ponte felt would corroborate her view. The list included
Ludlow, who had previously criticized Ponte's work, but not
Goldhawk or Mejeur.
A few days later, on May 24, Ponte emailed Lau, Waalkes,
and Williams asking for advance information as to her upcoming
meeting with Lau and Waalkes. Specifically, she requested a short
agenda identifying the most important issues and incidents that
were to be discussed. She also asked that she be permitted to tape
record the meeting so that she would be able to "accurately recall
and understand the feedback" provided.
In response to this email, also on May 24, Williams
emailed Waalkes and Lau to ask whether, given these emails, Ponte's
"tone of surprise[,] and the current lack of an immediate
replacement," Steelcase was "rushing this termination." Williams
clarified that he did not disagree with the decision to terminate
her. Waalkes responded about an hour later and stated that after
consulting with Chestnut and Lau, she was "convinced this [wa]s the
appropriate next step."
-16-
On May 27, Lau and Waalkes met with Ponte and terminated
her employment. Lau informed her that "things weren't working."
The formal exit document she was given stated that the reason for
her termination was her unacceptable level of sales performance.
After Lau left the room, leaving Waalkes and Ponte alone to deal
with various Human Resources matters, Ponte did not mention any
incidents of sexual harassment.
After her termination, Ponte filed suit in Massachusetts
Superior Court for Suffolk County on December 12, 2011, asserting
claims of sexual harassment and unlawful retaliation under both
Title VII and Massachusetts General Laws Chapter 151B. Steelcase
removed the case to federal court on diversity grounds. Steelcase
moved for summary judgment on all counts at the close of discovery.
On July 25, 2013, the district court granted the motion in full,
and this appeal followed.
II.
Our review of the district court's grant of summary
judgment is de novo, and we draw all reasonable inferences in favor
of the nonmoving party. Bose Corp. v. Ejaz, 732 F.3d 17, 21 (1st
Cir. 2013). "Summary judgment is appropriate when there is no
genuine issue of material fact and the moving party is entitled to
judgment as a matter of law." Cortés-Rivera v. Dept. of Corr. &
Rehab. of the Comm. of P.R.,
626 F.3d 21, 26 (1st Cir. 2010).
-17-
A. Sexual Harassment and Hostile Work Environment Claim
Ponte argues that the district court erred in concluding
that no reasonable juror could conclude that the two incidents were
severe or pervasive enough to create a hostile work environment.9
To prevail on a hostile work environment claim, a
plaintiff must establish:
(1) that she (or he) is a member of a
protected class; (2) that she was subjected to
unwelcome sexual harassment; (3) that the
harassment was based upon sex; (4) that the
harassment was sufficiently severe or
pervasive so as to alter the conditions of
plaintiff's employment and create an abusive
work environment; (5) that sexually
objectionable conduct was both objectively and
subjectively offensive, such that a reasonable
person would find it hostile or abusive and
the victim in fact did perceive it to be so;
and (6) that some basis for employer liability
has been established.
Forrest v. Brinker Int'l Payroll Co., 511 F.3d 225, 228 (1st Cir.
2007) (quoting Crowley v. L.L. Bean, Inc.,
303 F.3d 387, 395 (1st
Cir. 2002)). For brevity, we will assume that Lau's conduct in the
two car rides with Ponte satisfies the first three elements of the
test. Surely a new female employee feeling her supervisor's
unwelcome arm around her shoulder as he insisted on driving her
9
While Ponte brings claims under both Title VII and
Massachusetts state law, she does not argue that the two claims
should be treated differently. The Massachusetts Supreme Judicial
Court has said that it is "our practice to apply Federal case law
construing the Federal anti-discrimination statutes in interpreting
G.L. ch. 151B." Wheatley v. Am. Tel & Tel. Co., 636 N.E.2d 265,
268 (Mass. 1994); see also Bourbeau v. City of Chicopee, 445 F.
Supp. 2d 106, 111 (D. Mass. 2006).
-18-
alone back to her hotel after work would feel very uncomfortable.
However, discomfort is not the test. See Oncale v. Sundowner
Offshore Servs., Inc., 523 U.S. 75, 81 (1998) (noting that Title
VII was not intended to be a "general civility code" for the
workplace).
The factors we review in assessing whether harassing
treatment meets the "severe or pervasive" standard include "the
severity of the conduct, its frequency, whether it is physically
threatening or not, and whether it interfered with the victim's
work performance." Gerald v. Univ. of P.R., 707 F.3d 7, 18 (1st
Cir. 2013). There were two occasions of inappropriate behavior in
July 2010; Goldhawk, Ponte's peer, described Ponte's assessment as
an incident of Lau "hitting on" Ponte. While his physical contact
with Ponte was inappropriate, as was the subtle hint that she owed
Lau for hiring her, it ended quickly. In the next ten months Ponte
did not experience any other inappropriate or harassing conduct,
although Lau was physically present with her on more than one
occasion. Nor did any of his communications by email or phone
contain any harassing language. Lau's objectionable conduct was
not pervasive by any measure.
It is true that isolated incidents may, "if egregious
enough, suffice to evince a hostile work environment." Noviello v.
City of Boston, 398 F.3d 76, 84 (1st Cir. 2005). But here, Ponte
does not show that her contact with Lau in Grand Rapids was
-19-
egregious, or so egregious as to evince a hostile work environment.
It was not severe enough to cause her even to use the term "sexual
harassment" in complaining about it to Chestnut months later. On
the scale of what has been recognized as egregious conduct rising
to the required level, this was not close. See, e.g., Oncale, 523
U.S. at 77, 81 (holding that a male employee working on an oil
platform had a cause of action for a hostile work environment
against his male coworkers who subjected him to "sex-related,
humiliating actions" and threatened him with rape); Billings v.
Town of Grafton,
515 F.3d 39, 47-50 (1st Cir. 2008) (reversing a
grant of summary judgment in favor of employer on a hostile work
environment claim where supervisor repeatedly and egregiously
stared at a female employee's breasts on many occasions over a
multi-year period); Marrero v. Goya of P.R., Inc.,
304 F.3d 7, 19
(1st Cir. 2002) (affirming jury finding of a hostile work
environment where female plaintiff was subject to "harassment on a
daily basis, including humiliating sexual remarks and innuendos,"
for over a year);
Crowley, 303 F.3d at 397 (affirming Title VII
judgment in favor of female employee where a four-month period of
a coworker's unwanted touching and innuendo culminated in his
breaking into the employee's home and accosting her); O'Rourke v.
City of Providence,
235 F.3d 713, 718-20 (1st Cir. 2001)
(reinstating a hostile work environment verdict in favor of fire
department's first female firefighter where one coworker
-20-
"constantly discussed sexual positions and oral sex," and another
"blew in her ear, rubbed his cheek against hers, and stood over her
with their bodies squarely touching as she made copies," among
other things).
No reasonable jury could conclude that these incidents
"amount[ed] to a change in the 'terms and conditions of
employment,'" Faragher v. City of Boca Raton, 524 U.S. 775, 788
(1998), or created a hostile work environment. The record does not
support a finding that the two incidents interfered with Ponte's
job performance. At most, Ponte testified that Lau's behavior
[i]mpacted the relationship that I feel I
needed to have in this role. I know that in
this role that it was a big opportunity with a
lot of responsibilities that I know I needed
coaching in. . . . Because we didn't have a
good relationship that ultimately impacted my
role and my performance.
This does not state a claim that harassment interfered with her
performance. What she refers to as a lack of a good relationship
is not, on the record, tied to any harassment. Cf. Pomales v.
Celulares Telefónica, 447 F.3d 79, 84 (1st Cir. 2006) (affirming
summary judgment where there was no evidence that the complained of
conduct negatively affected the plaintiff's ability to perform her
job functions).
Summary judgment is an "appropriate vehicle for
'polic[ing] the baseline for hostile environment claims.'" Id. at
83 (alteration in original) (quoting Mendoza v. Borden, Inc., 195
-21-
F.3d 1238, 1244 (11th Cir. 1999) (en banc)). Ponte's claim falls
below our established baseline, and we affirm the district court's
grant of summary judgment in Steelcase's favor.
B. Retaliatory Termination Claims
Ponte's second claim is that her termination was, rather
than a result of her performance problems, a retaliatory response
to her complaints to Chestnut about Lau. The Supreme Court
recently held as to Title VII retaliation claims that "[t]he text,
structure, and history of Title VII demonstrate that a plaintiff
making a retaliation claim under § 2000e-3(a) must establish that
his or her protected activity was a but-for cause of the alleged
adverse action by the employer." Univ. of Tex. Sw. Med. Ctr. v.
Nassar, 133 S. Ct. 2517, 2534 (2013). It rejected the less
stringent standard that the plaintiff must show only that
retaliation was a "motivating" factor. On this record, no
reasonable factfinder could reach the conclusion that this but-for
standard has been met.
Retaliatory termination claims based on circumstantial
evidence are evaluated using the McDonnell Douglas burden-shifting
framework. Gerald, 707 F.3d at 24. To make a prima facie showing
of retaliation, the plaintiff must show that she engaged in
protected conduct, that she suffered an adverse employment action,
and that a causal nexus exists between the protected activity and
the adverse action.
Id. There is no question that Ponte suffered
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an adverse employment action; we address the other requirements in
turn.
Ponte argues that her February-March 2011 phone call to
Chestnut saying she was uncomfortable with Lau's behavior was
protected conduct, as the call contained what a factfinder could
conclude was an implicit complaint of harassment.10 The call, which
came several months after the incidents, was far from a clear
complaint about harassing behavior. See Fantini v. Salem State
Coll., 557 F.3d 22, 32 (1st Cir. 2009) ("The term protected
activity refers to action taken to protest or oppose statutorily
prohibited discrimination." (quoting Cruz v. Coach Stores Inc., 202
F.3d 560, 566 (2d Cir. 2000)) (internal quotation marks omitted)).
But Ponte's report to Chestnut did not "go into detail" and did not
indicate that she felt she had been sexually harassed. We are
doubtful that she engaged in protected conduct, but we do not rest
on that ground.
Even assuming that Ponte's call to Chestnut constituted
protected activity, Ponte has failed to make a prima facie case.
10
In her brief, Ponte also attempts to characterize her April
21 email to Chestnut as protected conduct, but that email does not
qualify. It does not complain of sexual harassment at all. The
conduct complained of in that email -- a lack of support from Lau,
her superior -- is not prohibited by Title VII, 42 U.S.C. § 2000e-
(3), or by chapter 151B of the Massachusetts General Laws. See
Walker v. City of Holyoke, 523 F. Supp. 2d 86, 113 (D. Mass. 2007)
(noting that conduct is not protected in a retaliation context
where it does not allege an employment practice prohibited by
either statute).
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A reasonable factfinder could not find there was a causal nexus
between Ponte's vague statements to Chestnut and the termination of
her employment in May 2011. Ponte argues that the relatively short
period of time between her February-March 2011 call to Chestnut and
her termination in May 2011 supports the inference that this report
caused her termination. "[C]hronological proximity does not by
itself establish causality, particularly if '[t]he larger picture
undercuts any claim of causation.'" Wright v. CompUSA, Inc., 352
F.3d 472, 478 (1st Cir. 2003) (second alteration in original)
(quoting Soileau v. Guilford of Me., Inc.,
105 F.3d 12, 16 (1st
Cir. 1997)). Here, the larger picture quite clearly undermines
Ponte's claim.
First, it is noteworthy but not itself conclusive that
Ponte's performance problems began before the harassing incidents
took place. Before her training in Grand Rapids, Ponte's trouble
getting up to speed internally was noted by Mary Chestnut of Human
Resources. Indeed, one of Ponte's main dealers, Susan Hughes of
OENE, complained about Ponte's performance as early as July 8,
2010.
Second, the complaints about Ponte's performance came
from people other than Lau, from men and women who worked directly
with her. Nor did the complaints go only to Lau. They went also
to Chestnut. In fact, Lau arranged for Ponte to get performance
assistance from Brenda Brewer and John Curry. There is no evidence
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that Lau, who seldom saw Ponte face-to-face and who communicated
with her primarily via phone and email, prevented Ponte from
performing well in her job.
Further, Ponte admitted she had failed often and was
having problems performing her job. As early as her July 27, 2010
call with Chestnut, she indicated an early concern about losing her
job and recounted an instance where she was late to and unprepared
for a meeting with OENE's CEO. Nine months later, Ponte emailed
Lau that based on their weekly conversations, she "felt as though
there were not any surprises" in her negative performance review.
As to timing, her performance review advised Ponte that her
situation would be monitored "closely" over the next thirty days.
Her employment termination was roughly one month later.
In that month, she did not redeem herself. Ponte made a
mistake with a dealer when she sent him incorrect sales
information, as the dealer pointed out to her and Lau.
Furthermore, others aside from Lau shared the view it was time to
terminate her employment. Lau's supervisor Kyle Williams signed
off on the decision, as did Waalkes from Human Resources, as did
Steelcase's legal department.11 After consulting with Lau and
11
The retaliating party must be aware of the protected
activity that he is believed to be retaliating against. See
Medina-Rivera v. MVM, Inc., 713 F.3d 132, 139 (1st Cir. 2013).
Ponte urges us to find it reasonable to infer Lau's awareness of
these specific reports from the fact that Lau told her that he knew
she was speaking to Human Resources. The record does not support
such an inference, as Chestnut denied relaying Ponte's complaints
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Chestnut, Waalkes was "convinced" that termination was the correct
course of action.
Even if she had made a prima facie case of retaliation,
which she did not, Steelcase met its burden to establish a
"legitimate, non-retaliatory" reason for the termination, so the
final burden rests with Ponte to show that this proffered reason
was mere pretext. Alvarado v. Donahoe, 687 F.3d 453, 458 (1st Cir.
2012) (quoting Roman v. Potter,
604 F.3d 34, 39 (1st Cir. 2010))
(internal quotation mark omitted). She has not met this burden.
The pretext inquiry focuses on the employer, and whether
the employer believed that its stated reason for the termination
was credible. See Meléndez v. Autogermana, Inc., 622 F.3d 46, 53
(1st Cir. 2010). For a plaintiff to "impugn the veracity" of the
employer's proffered reason is insufficient; instead, a plaintiff
must proffer specific facts that would enable a reasonable
factfinder to conclude that the employer's reason for termination
was a "sham" intended to cover up the employer's true motive.
Mesnick v. Gen. Elec. Co.,
950 F.2d 816, 824 (1st Cir. 1991).
Ponte falls well short of this threshold, for the reasons we have
amply discussed.
Ponte makes a pretext argument that the "$680k" of sales
she was credited with in her evaluation was artificially reduced
about Lau to Lau. Regardless, such an inference would not, on this
record, meet the causal standard.
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for the purpose of her evaluation, and that her region's sales in
fact totaled $1.23 million. Steelcase provided unrebutted evidence
that the difference between the $680,000 and $1.23 million was due
to a standard adjustment to Steelcase's regional sales numbers due
to a dealer called "Fens." Fens is a dealer with locations in
North Carolina, Atlanta, and upstate New York, but it places all of
its orders through Boston. As a result, all of the Fens sales are
initially credited to the New England region. Later, the sales
credits are reallocated to the regions to which the Fens 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. The evidence is that Ponte
and her peers in other regions understood this policy, and that all
of the relevant sales data was available to them. Ponte did not
object to the "$680k" figure at any point during the evaluation
process. Ponte does not deny this.
III.
We affirm entry of summary judgment. Costs are awarded
to Steelcase.
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