Forsythe v. Wayfair Inc.

27 F.4th 67

Emily FORSYTHE, Plaintiff, Appellant,

v.WAYFAIR INC., Defendant, Appellee.

No. 21-1095

United States Court of Appeals, First Circuit.

February 28, 2022

Robert E. Goodman, Jr., with whom Kilgore & Kilgore, PLLC was on brief, for appellant.

Lynn A. Kappelman, with whom Dawn Reddy Solowey and Seyfarth Shaw LLP were on brief, for appellee.

Before Kayatta, Selya, and Barron, Circuit Judges.

BARRON, Circuit Judge.

Emily Forsythe appeals from the grant of summary judgment to her former employer, Wayfair, an online home furnishings company with a principal place of business in Massachusetts, on the federal and Massachusetts state law employment discrimination claims that she brought against it. We affirm in part and reverse in part.

I.

In recounting the travel of the case, we begin with a preliminary review of the events that precipitated Forsythe's suit against Wayfair, based on facts that are not in dispute. We then briefly recount the relevant procedural history.

A.

Forsythe began working at Wayfair in January 2017 as a senior manager. She was still employed there on August 14, 2019, when she sent an email to Matt Witte, her former direct manager who by that time had assumed a different supervisory position at the company.

The email described inappropriate conduct towards Forsythe by a coworker, Michael McDole, who was not Forsythe's supervisor. The email alleged:

(1) In January 2019, during an in-person meeting at Wayfair's Perris, California facility, McDole moved his chair next to Forsythe and placed his hand on her leg;

(2) In March 2019, during an in-person meeting at Wayfair's offices in Boston, Massachusetts, McDole again moved his chair next to Forsythe, so that his legs touched hers;

(3) In July 2019, at an in-person meeting -- again at Wayfair's Perris facility -- McDole touched the buttons "running up the front in the middle" of Forsythe's shirt and "a spot that was part of the shirt";

(4) Later that same day, McDole initiated a discussion with her about online dating applications and Forsythe's personal life and asked Forsythe about her dinner plans;

(5) On other occasions McDole communicated with Forsythe in an inappropriate manner, including by sending her aggressive, critical emails.

Four or five days after receiving the email, Witte "notified" Talent Management, Wayfair's human resources division, of the allegations against McDole. Witte did so by forwarding the email from Forsythe that set forth the allegations against McDole. Thereafter, an employee from Talent Management, Trevor Shaffer-Figueroa, began an investigation into Forsythe's allegations in the email.

After completing that investigation, Shaffer-Figueroa told Forsythe on September 16, 2019 that the allegations were unsubstantiated. The next day, on September 17, 2019,¹ Forsythe emailed Shaffer-Figueroa and alleged that another employee at the company, Kory McKnight, who had become Forsythe's direct supervisor as of August 5, 2019, threatened to "get[ ] [her] off his team." Forsythe stated in the email: "As Kory is aware of my complaint to HR and the allegations I made against Michael McDole, I feel that I am being retaliated against due to my complaint of harassment and sexual harassment."

On Thursday, September 19th, Shaffer-Figueroa informed Forsythe over the phone that he was unable to substantiate her allegation that McKnight had retaliated against her. Forsythe then told Shaffer-Figueroa during that phone call (which she recorded): "I would be very interest[ed] in having you talk to Candice [Smith] and your team and putting together a compelling severance package."

Immediately after that conversation, Shaffer-Figueroa called Candice Smith, Wayfair's Director of Talent Management for field locations, and informed her about the call with Forsythe. That day or the following day, Smith discussed Forsythe's situation with both her "boss," Marcy Axelrad, and Wayfair's in-house counsel, Mike Berendt.² Shaffer-Figueroa also discussed Forsythe's request regarding a severance package with Berendt on Friday, September 20th, and in the days thereafter.

Forsythe took paid time off on Friday the 20th, and she checked work-related emails that day and over the following weekend. She planned to take a business trip to Atlanta on Tuesday, September 24th.³

On Monday, September 23, 2019, Shaffer-Figueroa sent Forsythe an email in which he "indicat[ed] that [Wayfair] had accepted her resignation." That email had a severance agreement attached to it. Forsythe did not go on the business trip she planned to take on the 24th.

On or after September 23, Berendt informed McKnight and Witte that Forsythe had resigned. Forsythe's last day at Wayfair was either September 23 or 24, 2019.

B.

On October 2, 2019, Forsythe filed a charge against Wayfair with the U.S. Equal Employment Opportunity Commission ("EEOC"), for joint filing with the Massachusetts Commission against Discrimination. The charge claimed sexual harassment, other sex discrimination, and retaliation based on the events described above that had occurred up to September 19, 2019.

On December 16, 2019, Forsythe filed a second charge of discrimination against Wayfair in the same fora. This charge alleged sex discrimination based on the events that took place after September 19, 2019 and through what she alleged was her involuntary termination -- rather than resignation -- from employment at the company.

Forsythe received a notice of right to sue from the EEOC with respect to both charges.⁴ On January 3, 2020, Forsythe sued Wayfair in the District Court for the District of Massachusetts.⁵ She brought claims under both Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and Chapter 151B, §§ 4.1, 4.4, and 4.4A of the Massachusetts General Laws.

Wayfair moved for summary judgment on November 6, 2020, as to all of Forsythe's claims. The District Court granted the motion. Forsythe v. Wayfair, LLC, No. CV 20-10002, 2021 WL 102649, at *1 (D. Mass. Jan. 12, 2021). Forsythe then timely filed this appeal.

II.

We first address Forsythe's challenge to the District Court's grant of summary judgment to Wayfair on her state and federal claims that seek to hold the company liable for its allegedly negligent failure to remedy McDole's sexual harassment of her. The District Court granted summary judgment to Wayfair on these claims on two independent grounds. Reviewing de novo, see Murray v. Kindred Nursing Ctrs. W. LLC, 789 F.3d 20, 25 (1st Cir. 2015), we uphold the District Court's grant of summary judgment to Wayfair on these claims.

A.

Although Forsythe brings claims against Wayfair for negligently failing to remedy McDole's sexual harassment of her under both Title VII and Massachusetts's anti-discrimination law, she does not dispute that if her claim in that regard under Title VII cannot survive summary judgment, then neither can her state law version of it. We thus focus on her Title VII claim.

To defeat summary judgment on the Title VII claim, Forsythe must show that the record contains evidence from which a reasonable juror could find:

(1) that she ... 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.

Ponte v. Steelcase Inc., 741 F.3d 310, 320 (1st Cir. 2014) (quoting Forrest v. Brinker Int'l Payroll Co., 511 F.3d 225, 228 (1st Cir. 2007) ).

The District Court ruled first that Forsythe's attempt to defeat summary judgment on this claim failed under the fourth prong of the test because the nature of McDole's alleged conduct was such that, as a matter of law, it did not constitute severe or pervasive sexual harassment. Forsythe, 2021 WL 102649, at *5 ; see Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (holding that Title VII covers only "[c]onduct ... severe or pervasive enough to create an objectively hostile or abusive work environment"). The District Court also granted summary judgment to Wayfair on her Title VII claim on the separate ground that, as a matter of law, Forsythe failed to establish a basis for employer liability. Forsythe, 2021 WL 102649, at *5. It is on this second ground that our opinion rests.

B.

In ruling that Forsythe had not established a basis for employer liability, the District Court explained that McDole was a nonsupervisory coworker of Forsythe and that Forsythe was suing Wayfair, as her employer, rather than McDole. It further explained that Wayfair could be liable under Title VII based on McDole's alleged sexual harassment of Forsythe "only ... if the harassment is causally connected to some negligence on" Wayfair's part. Id. (quoting Noviello v. City of Boston, 398 F.3d 76, 95 (1st Cir. 2005) ); see also Coll.-Town, Div. of Interco, Inc. v. Mass. Comm'n Against Discrimination, 508 N.E.2d 587, 593 (Mass. 1987) ("An employer is liable [under Massachusetts law] for sexual harassment in the workplace if the employer is notified of the condition and fails to take adequate steps to remedy the situation.").

The District Court then considered whether the record provided a supportable basis upon which a reasonable juror could find that Wayfair "knew or should have known about the harassment, yet failed to take prompt action to stop it." Forsythe, 2021 WL 102649, at *5 (quoting Noviello, 398 F.3d at 95 ). As to that issue, the District Court held, the record would not permit a reasonable juror to so find. More specifically, the District Court concluded:

[Forsythe] does not offer any evidence that investigators acted in bad faith or failed to consider

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