A recent appeal to the First Circuit Court of Appeals confirmed an earlier grant of summary judgment to the employer in a sexual harassment case discussed in a 2022 HR Edge article.  Summary judgment will only be granted when there are no material facts in dispute but the plaintiff, a flight attendant, contends in her appeal that there are facts related to her claims.

This case began when a group of Boston-based flight attendants on a layover at a Dallas hotel went out for drinks. Upon returning to the hotel, the plaintiff alleged that the first officer of the flight crew sexually assaulted her in her room, claiming he gave her drugs to incapacitate her.  The first officer disputed her account, stating that she consented to, and even initiated, some kissing and touching, and that he left when he realized she was highly intoxicated.

The employee brought this appeal of the lower court’s grant of summary judgment to the First Circuit, alleging that there were outstanding issues of fact related to her federal and state claims of harassment, retaliation, and disability discrimination.  The disability claim arose from post-traumatic stress disorder (PTSD) that she experienced following the incident.

The First Circuit affirmed the decision on the following federal and state law bases:

• Harassment under Title VII – In analyzing the federal claim of harassment, the court found that the claim was not supported by any facts indicating that the airline was negligent or that its negligence had a causal connection to the harassment.  This is required under Title VII when the harasser is a coworker.  The court affirmed that the employer undertook an investigation and sought to remediate and that its investigation was not deficient. Although the employer’s investigation did not substantiate the employee’s account of the incident, the employer went to great lengths to allow the employee medical leave in the following months, including alcoholism treatment. The employer also provided accommodations for the employee’s PTSD.
• Harassment under M.G.L. c. 151B – The Appeals Court’s majority analyzed the harassment claim under Massachusetts law, indicating that it will find an employer liable for coworker harassment where 1) a causal relationship between the employer’s response to its notice of harassment and the employee’s experience of it and (2) the employer’s response is inadequate.  In this case, the employer was not informed of the harassment before the event, eliminating the possibility of a causal connection.  A dissenting opinion to this case points to the absurdity of establishing a causal connection when the employer has no knowledge of the harassment and posits that only victims harassed a second time after reporting the first can succeed on this point (see discussion of the dissenting opinion below).  The court also found that the employer’s investigation method was reasonable.
• Disability discrimination under Americans with Disabilities Act (ADA) and M.G.L. c. 151B – The plaintiff’s PTSD disability claims failed because the employee failed to engage in a good faith interactive process as required by the ADA and its state law counterpart.  The airline and the employee agreed on specific accommodations, and then several months later, the employee requested additional accommodations.  The second demand included a two-day deadline, after which the employee would consider herself constructively discharged. She refused the employer’s request to extend the deadline.  With this, the employee did not participate in good faith in the interactive process required by both federal and state law.
• Retaliation under Title VII and M.G.L. c. 151B – The court found that the employee had not included one of the employer’s actions that she believed to be retaliatory when the case was brought in the lower court, meaning that she is foreclosed from raising it on appeal.  The other basis for her retaliation claim was a reprimand she received from the company about her efforts on social media to locate the accused in order to serve him notice of her lawsuit. Although this was timely raised, her appeal did not develop this and there was no evidence that it was retaliatory.  Neither basis for the retaliation claim was found to have open issues of material fact.

One of the three First Circuit judges who heard the case added a vociferous dissent to the majority opinion concerning Title VII and M.G.L. c. 151B claims of harassment.  She generally disagrees with the majority’s acceptance of the employer’s account of the events as fact and points out a number of inconsistencies that should preclude a summary judgment award.  For example, when first interviewed by the employer, the first officer did not admit to having gone to the employee’s hotel room.  Eight months later, he changed his story to include that information after another crew member said he had returned to her room.  The dissent questioned the adequacy of the airline’s investigation of the incident, pointing out that the airline failed to request that the hotel preserve surveillance video from that night.  By the time it was sought, the footage had been erased.

However, the focus of the dissent is on the application of M.G.L. c. 151B, and its requirement of a causal connection between the employer’s actions and the harassment.  The judge points out that the requirement originated in a retaliation case rather than a harassment claim, and the standard was misapplied in this case.

The facts of this case may never be firmly established, as is often the case in sexual harassment claims.  However, the employer’s actions after reporting the incident are critical to avoiding liability.  Here, the company successfully showed that it properly investigated the employee’s claims.

Resources

AIM members interested in discussing this or any other HR-related matter may contact the AIM helpline at 1-800-470-6277 at helpline@AIMnet.org .

Ensure your workplace is safe, respectful, and compliant with AIM HR Solutions’ Harassment and Discrimination Prevention Training. Tailored for supervisors and employees, our training equips your team with the tools to recognize, prevent, and respond to workplace harassment. With a focus on Massachusetts laws, our sessions include real-world scenarios and practical guidance to promote an inclusive work culture.