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Creepy Shoulder Touching By Boss Not Sexual Harassment: 1st Cir.

By Aditi Mukherji, JD on February 06, 2014 | Last updated on March 21, 2019

A female former sales manager claimed that her male supervisor twice reached around and placed a hand on her shoulder while driving her to a hotel after work. He allegedly told her "she owed him" for hiring her. The First Circuit conceded such actions "would feel very uncomfortable" but that they didn't rise to the level of actionable sexual harassment.

The case centered on what constitutes severe and pervasive conduct and the "but-for" causation in unlawful terminations.

Two Creepy Shoulder Touches

In 2010, Steelcase regional manager Robert Lau hired Nicole Ponte to serve as the New England area manager of Nurture, its healthcare division.

During an employee training in Michigan, Lau twice insisted on driving her back to her hotel after dinners with other trainees. Ponte alleged that during both rides, Lau reached his arm around her seat and placed his hand on her shoulder. He kept his hand there for several minutes. Lau also allegedly told Ponte that she "owed him to do 'the right thing by him'" because he had "done a lot" to get her hired.

Ten months following the incident, Lau and other Steelcase officials fired Ponte purportedly for her poor sales performance. Ponte then filed sexual harassment retaliation claims against Steelcase in Massachusetts.

Not Severe or Pervasive

Writing for the court, Judge Sandra L. Lynch affirmed the lower court's ruling. Lau's shoulder touches, albeit creepy and inappropriate, were not 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 panel ruled.

While a single incident of harassment can maintain a hostile work environment claim, it must be egregious. Lynch referenced cases that involved rape threats by colleagues, unwanted touching, and humiliating sexual comments and innuendos.

In this case, the panel noted that Ponte didn't experience any other incidents of harassment, never formally reported the incident, and didn't seem to consider it severe enough to describe it as "sexual harassment" when eventually complaining about it.

Alas, "discomfort is not the test," Lynch wrote.

No But-For Causation

Relying on the standard set forth by University of Texas Southwestern Medical Center v. Nassar, the appeals panel said Ponte did not demonstrate that her purported complaint about her supervisor's actions was the "but-for cause" of her termination.

Part of the difficulty with Ponte's sexual harassment claims is that she received several complaints from clients that seemed to tie-in more directly with her termination.

During her first 90 days of employment, one of Ponte's clients complained about her being ill-prepared for meetings, failing to follow through with plans, and for poor communication skills. Ponte was fired after she sent incorrect sales figures to a client. The stated reason for termination on her formal exit document was her "unacceptable level of sales performance."

Ponte told an HR manager that she felt she wasn't getting mentored properly by Lau because of the incident, an issue that may have caused her work performance to suffer. But the court didn't buy the argument.

As a result, the appeals panel ruled the employer was entitled to summary judgment on the Ponte's sexual harassment and retaliation claims.

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