First Circuit Clarifies "Severe or Pervasive" Standard in Hostile Work Environment Claim

The employee was hired as the Area Manager for a national company and began experiencing performance problems almost immediately. She was fired less than a year after beginning her employment and subsequently filed a lawsuit alleging that she was subject to sexual harassment and was terminated in retaliation after reporting the harassment.  

The employee appealed from the district court's grant of summary judgment in favor of the employer, alleging that the court erred in finding that no reasonable juror could conclude that (1) the two incidents of harassment were "severe or pervasive enough to create a hostile work environment" and (2) the employee satisfied the but-for standard of alleged adverse action by the employer to support her claim for retaliation.

The First Circuit affirmed the entry of summary judgment regarding the harassment claim, finding that the conduct of the employee's supervisor of putting his arm around her on two separate occasions, although inappropriate physical contact, was "not pervasive by any measure" and thus could not constitute a hostile work environment.  In upholding the judgment in favor of the employer on the retaliation claim, the First Circuit noted that the employee's performance problems begin before the two harassing incidents, the complaints about the performance issues came from the clients themselves and not her supervisor, and she admitted to the performance problems. The First Circuit held that, even assuming the employee made a prima facia case of retaliation, the employer met its burden of establishing a "legitimate, non-retaliatory" basis for the termination, i.e. performance issues, and that the employee did not proffer specific facts to allow a fact finder to determine that the reason for her termination was mere pretext.  

This decision provides guidance as to evaluating hostile work environment claims predicated on allegations of limited inappropriate physical contact and confirms that documented performance issues may very well defeat a claim for retaliation.