Forsythe v. Wayfair, LLC ( 2022 )

United States Court of Appeals
For the First Circuit
No. 21-1095
EMILY FORSYTHE,
Plaintiff, Appellant,
v.
WAYFAIR INC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Kayatta, Selya, and Barron,
Circuit Judges.
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.
February 28, 2022
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;
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(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
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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
1Forsythe's briefing states that she complained of
retaliation on September 19, but in support cites to Forsythe's
deposition testimony that she complained on September 17.
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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
2 The record spells the surname of Wayfair's internal counsel
as "Berendt," "Behrendt," and "Barent." We use the spelling
provided by Shaffer-Figueroa during his deposition.
3 The question posed to Forsythe in her deposition refers to
"the last day that [she] w[as] at Walmart," which we treat as a
slip of the tongue intended to refer to Wayfair.
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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,
4 Although Forsythe alleges in her complaint that she received
a notice of right to sue from the EEOC with respect to both charges
she filed with it, Wayfair denies this allegation in its answer.
The parties do not appear to have taken further steps to develop
or contest this factual allegation and so we set it forth as
undisputed for purposes of this appeal.
5 Forsythe filed an amended complaint on February 13, 2020.
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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
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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 (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.
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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:
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[Forsythe] does not offer any evidence that
investigators acted in bad faith or failed to
consider any relevant information. She merely
asserts, without any support in the record,
that Shaffer-Figueroa's determination was
"based largely, if not exclusively, upon
McDole's denial," despite voluminous evidence
in the record that Shaffer-Figueroa weighed
the testimony of several colleagues familiar
with the relationship between . . . Forsythe
and McDole, the content and tone of emails
Forsythe alleged to be aggressive and
bullying, and the wavering inconsistencies in
Forsythe's versions of events over time. The
court accordingly will enter judgment for
Wayfair on these [sexual harassment] claims.
Id. (internal citations omitted).
Forsythe's allegations in her email to Witte regarding
McDole included allegations that McDole not only verbally harassed
her but also inappropriately touched her. Shaffer-Figueroa
investigated the allegations concerning the verbal harassment as
distinct from her allegations about McDole's inappropriate
touching. Forsythe does not argue to us that the alleged verbal
harassment by McDole in and of itself can establish a predicate
hostile environment that Wayfair could be held liable for failing
to remedy. She thus appears to accept the necessary premise of
the District Court's ruling: that Wayfair is not liable under Title
VII for failing to remedy the alleged sexual harassment of her by
McDole if Wayfair conducted a reasonable investigation into the
allegations about him and concluded that the allegations regarding
McDole's inappropriate touching could not be substantiated. See
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Vance v. Ball State Univ., 570 U.S. 421, 427 (2013) ("[A]n employer
is directly liable for [a non-supervisory] employee's unlawful
harassment if the employer was negligent with respect to the
offensive behavior." (citing Faragher v. City of Boca Raton, 524
U.S. 775, 789 (1998))).
Forsythe also does not dispute that her sexual
harassment-based claim against Wayfair under Title VII hinges on
whether Wayfair reasonably investigated the allegations regarding
the inappropriate touching by McDole. Thus, her challenge to the
District Court's summary judgment ruling necessarily turns on the
strength of her contention that a reasonable juror could find that
the investigation that Shaffer-Figueroa conducted was so deficient
that it would not permit Wayfair to rely on its finding that the
alleged inappropriate touching could not be substantiated.6
We are cognizant of the jury's role in assessing factual
questions about the adequacy of an employer's investigation into
alleged sexual harassment. But, although Forsythe contends that
the District Court invaded the jury's province in ruling as it
did, we are not persuaded.
Forsythe contends to us, as she contended below, that
part of the reason why a juror supportably could find Shaffer-
6 Forsythe objected to use of Shaffer-Figueroa's conclusion
as summary judgment evidence on the grounds that it constituted
"improper lay opinion under [Federal Rule of Evidence] 701
and . . . hearsay under [Federal Rule of Evidence] 801."
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Figueroa's investigation deficient was because it assessed the
allegations concerning McDole's inappropriate touching by relying
solely on McDole's denials of those allegations, notwithstanding
the evident reasons to disbelieve him. Cf. Hathaway v. Runyon,
132 F.3d 1214, 1224 (8th Cir. 1997) ("It is not a remedy for the
employer to do nothing simply because the coworker denies that the
harassment occurred . . . ."). Forsythe points out that the
record shows that McDole did admit to Shaffer-Figueroa that he
discussed dating applications with Forsythe and invited her to
lunch, and she contends that a reasonable juror could find on this
record that Shaffer-Figueroa had reasons to question McDole's
credibility in denying the incidents involving the alleged
inappropriate touching, especially given the aspects of her
allegations that he admitted. Yet, Forsythe argues, the record
shows that Shaffer-Figueroa found, following McDole's denials,
that her allegations regarding the inappropriate touching could
not be substantiated.
It does not follow from what we have just described,
however, that a juror reasonably could find that Shaffer-
Figueroa's investigation into the alleged physical harassment was
too deficient for Wayfair to rely on its findings. This is not a
case in which, with respect to the allegations of inappropriate
touching, the investigation involved the employer choosing to do
nothing more than ask the accused about those allegations and then
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credit self-serving denials. The record shows without dispute
that Shaffer-Figueroa asked Forsythe whether there were any
eyewitnesses to the alleged incidents of inappropriate touching
and that she said that there were none. Forsythe also does not
argue -- nor could she argue -- that the record shows that Shaffer-
Figueroa ever declined to interview any witness whom Forsythe
herself had identified as having relevant information as to those
incidents.
In fact, Forsythe herself acknowledges that Shaffer-
Figueroa spoke during the investigation to "one other
employee . . . about the nature of [McDole and Forsythe's]
relationship," and the record shows without dispute that Shaffer-
Figueroa found that employee, Brittaney Skaggs, did not
substantiate the contention that McDole "had been suggestively
inappropriate or flirtatious with [Forsythe]."7 Nor, on this
record, do we see how a reasonable juror could find that Shaffer-
Figueroa's credibility assessment of McDole was itself so lacking
in support that the company acted unreasonably in relying on his
investigation's finding that the allegations of inappropriate
touching were "unsubstantiated."
Forsythe asserts that "there were inaccuracies in Shaffer's
7
notes concerning his conversations with Skaggs," but she does not
cite support for this assertion, nor does she specify what those
inaccuracies were.
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Forsythe does assert that investigative steps that
Shaffer-Figueroa undertook were deficient in other respects. But,
in the main, none of those assertions identifies evidence in the
record from which a reasonable juror could find that Shaffer-
Figueroa reached his conclusion about the allegations concerning
inappropriate touching based on an investigation into them too
deficient for Wayfair reasonably to rely upon. That is either
because the record does not in fact support her contentions about
the ways in which those aspects of the investigation fell short,
or because those contentions concern alleged flaws in the
investigation that simply do not bear on the investigation into
the incidents involving the alleged inappropriate touching.
But, one of the claimed deficiencies does merit more
extended consideration -- Forsythe's contention, which Wayfair
does not dispute, that neither Shaffer-Figueroa nor anyone else at
the company asked her whether anyone who did not work there could
corroborate her allegations about the inappropriate touching.
Forsythe emphasizes that the record shows that if she had been
asked that question, she could have identified a friend who could
have confirmed that Forsythe contemporaneously reported to her the
incidents involving the inappropriate touching by McDole that
Forsythe's email to Witte alleged.
The record conclusively shows, however, both that
Shaffer-Figueroa followed up with every potential witness that
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Forsythe herself identified to him and that no meaningful lead
emerged during the investigation that he (or anyone else at
Wayfair) failed to pursue. Nor is there anything in the record
that would suggest that the investigation was conducted in a manner
that indicated that the company would not have followed up if
Forsythe had volunteered that she had a means of corroborating any
of her allegations based on the contemporaneous account that she
claims that she gave to someone not employed at Wayfair.8
Thus, Forsythe is necessarily asserting that the failure
by Wayfair's investigator (or anyone else at the company) to have
affirmatively asked her for corroboration for her allegations in
the form of a contemporaneous report to someone who did not work
at Wayfair in and of itself sufficed to permit a reasonable jury
to find that the investigation into those allegations was
inadequate. Forsythe identifies no authority, though, from this
or any circuit -- nor are we aware of any -- to support the
proposition that an investigation may reasonably be deemed
inadequate whenever (and merely because) an employer fails to ask
a complainant whether she provided a contemporaneous account to
anyone outside the workplace.
8In fact, Shaffer-Figueroa's notes indicate that, when he
"shared that the allegations of inappropriate physical contact
[were] found to be unsubstantiated," he "asked Emily [Forsythe] if
she had any additional witnesses or evidence to support her
allegations. Emily indicated that she did not."
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That is not to say that it is prudent for an employer to
investigate alleged sexual harassment without affirmatively asking
the complainant whether she is aware of any such external
corroboration. But, nothing in this record suggests that Wayfair
communicated to Forsythe, even implicitly, that she was not free
to volunteer that such corroboration existed or that it would have
been futile for her to have done so. We thus cannot say that a
juror reasonably could find that this investigation -- which, as
we have explained, a reasonable juror could not find was otherwise
inadequate -- was rendered inadequate because Forsythe was not
affirmatively asked for the external corroboration that she did
not volunteer.9
C.
For these reasons, we conclude that the District Court
did not err in granting summary judgment to Wayfair on Forsythe's
Title VII claim against it for failing to remedy sexual harassment
of her by a coworker. We thus also conclude that the District
Court did not err in granting summary judgment to Wayfair on the
parallel claim that Forsythe brought against the company under
9Forsythe also argues that the District Court, in ruling
against her on her sexual harassment claims, wrongly determined
that her testimony regarding the conduct to which McDole subjected
her was inconsistent and wrongly dismissed her objections to pieces
of Wayfair's summary judgment evidence on which our analysis does
not turn. But, even if she is right in so contending, it is of no
moment, given that the record is wanting with respect to the
alleged inadequacy of the investigation.
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Massachusetts law. See Noviello, 398 F.3d at 95 ("When coworkers,
rather than supervisors, are responsible for the creation and
perpetuation of a hostile work environment, Title VII and
chapter 151B seem essentially coterminous as they relate to
employer liability.").
III.
We now turn to Forsythe's challenge to the District
Court's grant of summary judgment to Wayfair on her retaliation
claims under federal and state anti-discrimination law. To the
extent that Forsythe can defeat Wayfair's motion for summary
judgment on her Title VII retaliation claim, she necessarily also
can defeat the company's motion for summary judgment on her state
anti-discrimination law claim for retaliation. See Mole v. Univ.
of Mass., 814 N.E.2d 329, 338 (Mass. 2004). We thus again focus
our analysis on whether Forsythe showed what she must to defeat
summary judgment on her Title VII claim, as we conclude that,
contrary to the ruling of the District Court in granting summary
judgment to Wayfair on that claim, she has made the requisite
showing to defeat Wayfair's motion for summary judgment on it.
A.
To determine whether Forsythe's retaliation claim under
Title VII can survive a motion for summary judgment, we use a
three-step burden-shifting framework drawn from McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). Under this framework,
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Forsythe must first make out a prima facie case of retaliation.
See Ponte, 741 F.3d at 321. To do so, she must show that a
reasonable juror could find "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.
If Forsythe can make such a showing, the burden of
production then shifts to Wayfair, which must articulate a
"'legitimate, non-retaliatory' reason" for its challenged adverse
action. Id. at 323 (quoting Alvarado v. Donahoe, 687 F.3d 453,
458 (1st Cir. 2012)). If Wayfair offers a legitimate, non-
retaliatory justification for the adverse action, then Forsythe
must show in turn that a reasonable juror could find that Wayfair's
"proffered reason was mere pretext" for retaliation. Id.On appeal, Forsythe rests her challenge to the District
Court's grant of summary judgment on her Title VII claim for
retaliation -- at least in any developed way10 -- on the following
10 In a footnote of her brief, Forsythe also alleges that
"McKnight's threat was clearly actionable as retaliation under
Burlington Northern & Santa Fe Railway Company v. White, 548 U.S.
53 at 67–70 (2006)." She did not raise this argument below, and
the District Court did not address it. The argument is therefore
waived. See United States v. Slade, 980 F.2d 27, 30 (1st Cir.
1992) ("It is a bedrock rule that when a party has not presented
an argument to the district court, she may not unveil it in the
court of appeals."); United States v. Zannino, 895 F.2d 1, 17 (1st
Cir. 1990) ("[W]e see no reason to abandon the settled appellate
rule that issues adverted to in a perfunctory manner, unaccompanied
by some effort at developed argumentation, are deemed waived.").
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understanding of the claim: that she was terminated from her
employment at Wayfair in retaliation for her having engaged in
protected conduct by complaining about both McDole's misconduct
and McKnight's alleged threat to replace her. The District Court
granted summary judgment to Wayfair on that claim on three
independent grounds: (1) that the record showed that, as a matter
of law, she had not been terminated but instead had tendered an
offer to resign that Wayfair accepted, Forsythe, 2021 WL 102649,
at *6, and so could not meet the "adverse employment action"
element of the prima facie case; (2) that, even assuming that a
reasonable juror could find on this record that Forsythe had been
subjected to an adverse employment action, no reasonable juror on
this record could find the causal link that she alleged between
her termination and her protected conduct, id.; and (3) that with
respect to the pretext portion of the inquiry, Wayfair had
articulated a legitimate reason for her termination -- a "good
faith, even if mistaken, interpretation of her request for a
severance package as an offer of resignation" -- and that Forsythe
had offered no evidence from which a reasonable jury could infer
that reason was pretextual. Id.11 For the reasons that we will
11 The District Court only discussed this holding in its
analysis of Forsythe's discrimination claims. Id. However, both
parties on appeal address this analysis by presenting pretext
arguments for both Forsythe's retaliation and discrimination
claims.
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next explain, we conclude, reviewing de novo, see Murray, 789 F.3d
at 25, that none of these grounds supports the grant of summary
judgment to Wayfair on this claim.
B.
We start with the District Court's ruling that the record
provides no basis for finding that Wayfair terminated Forsythe's
employment at the company involuntarily and thus that she cannot
satisfy the "adverse employment action" element of the prima facie
case for a Title VII retaliation claim. To do so, it is necessary
first to describe in some detail the portions of the record that
are relevant to this aspect of the District Court's ruling. We
then turn to our reasons for reaching a different conclusion from
the District Court.
1.
The record supportably shows the following facts. On
Thursday, September 19, 2019, Shaffer-Figueroa called Forsythe to
inform her that he could not substantiate her retaliation
complaint. The call was recorded and transcribed; the parties do
not dispute the accuracy of the transcript. The pertinent section
of the transcript reads:
EMILY FORSYTHE: . . . I would be very
interesting [sic] in having you talk to
Candice and your team and putting together a
compelling severance package. I would really
be interested in pursuing that . . . . I
think that would be the best path forward for
me.
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TREVOR SHAFFER-FIGUEROA: And obviously, I
can't commit anything now or even talk about
whether that's even an option, but I can
certainly present your request. What does
"compelling" mean?
EMILY FORSYTHE: You guys start, and then I'll
have my lawyer work with you at that point.
TREVOR SHAFFER-FIGUEROA: I can certainly bring
that request forward. Obviously, I can't make
any promises. That would just be something
that I could share that this is being sought
and requested and kind of see where things go
from there.
Immediately after this conversation concluded, Shaffer-
Figueroa called Candice Smith and informed Smith about the call
with Forsythe. That day or the following day, Smith had a
conversation about Forsythe with Marcy Axelrad, the Director of
Talent Management for North America, and Wayfair's internal
counsel, Mike Berendt. Between the 19th and the 24th, Shaffer-
Figueroa also spoke with Berendt about Forsythe. Wayfair's counsel
instructed Smith and Shaffer-Figueroa in their depositions not to
discuss the contents of these conversations due to attorney-client
privilege.
On September 20th, Forsythe requested a paid day off and
did not go into the office. That day and over the weekend, she
checked work-related emails and expected to take a business trip
to Atlanta on Tuesday, September 24. On Monday, September 23,
however, Shaffer-Figueroa sent Forsythe an email that contained
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what Forsythe referred to in her deposition as a "separation
agreement." The email, according to Shaffer-Figueroa's
description of it in his deposition, "indicat[ed] that [Wayfair]
had accepted her resignation" offer of September 19.
Forsythe explained that she did not take the business
trip she had planned for the 24th because "[t]he night before I
was supposed to leave Shaffer[-Figueroa] told me I was terminated."
There is no direct evidence that Wayfair specifically instructed
Forsythe not to travel to Atlanta on September 24th.12
On or after September 23, Berendt informed McKnight and
Witte -- Forsythe's direct supervisor and her former supervisor,
respectively -- that Forsythe had resigned. The record does not
indicate that Forsythe objected contemporaneously to Wayfair's
purported acceptance of her resignation.
2.
The District Court ruled that, on this record, it is
indisputable that Forsythe resigned and so was not terminated.
12Shaffer-Figueroa testified that he did not know that it was
ever communicated to Forsythe that she should not take the trip to
Atlanta. Smith testified that a decision to tell Forsythe not to
go to Atlanta was "part of [Smith's] conversation with [in-house
counsel]," but immediately thereafter testified that she in fact
did not know prior to Tuesday the 24th that Forsythe had had a
business trip scheduled for that day. When asked by Forsythe's
counsel, "Somebody said [to Forsythe], 'Do not go to Atlanta;
you're fired?'", McKnight testified, "I believe so. I can't say
that, no," and did not say he knew that someone told Forsythe not
to go to Atlanta.
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The District Court reasoned that "[n]o reasonable juror could find
that Forsythe's explicit request for a severance package amounted
to anything other than a voluntary offer to resign, whatever her
later regret." Forsythe, 2021 WL 102649, at *6. We cannot agree.
A reasonable juror could find on this record that
Forsythe did not offer to resign while inquiring about a severance
package during the September 19 phone call. In addition, precisely
because Forsythe had not made an offer of resignation for Wayfair
to accept, a reasonable juror could find that she reasonably
construed Shaffer-Figueroa's email purporting to accept her
resignation on September 23rd as an involuntary termination that
required no clarification.
The transcript of the September 19 phone call between
Forsythe and Shaffer-Figueroa shows that, although she clearly
requested a severance package proposal and expressed concerns
about continuing to work at the company, she at no point stated
that she was putting forward an offer to resign that was capable
of acceptance. Indeed, the transcript supportably shows, instead,
that she informed Shaffer-Figueroa that she was asking for a
proposal regarding severance that, with the aid of her lawyer, she
would evaluate upon receipt.
This understanding of what Forsythe had represented to
Shaffer-Figueroa during the September 19 phone call draws
additional support from Shaffer-Figueroa's deposition testimony.
- 23 -
When asked, "You had no expectation when you set up [the meeting
to tell Forsythe that Wayfair had accepted her resignation] that
Ms. Forsythe was going to agree that she had resigned, did you?"
Shaffer-Figueroa replied, "I had no idea."
True, the email purporting to accept the supposed offer
to resign does not appear to be in the record, and the record
provides scant information about what exactly Forsythe did in the
days following September 23rd. But, given that a reasonable juror
could find on this record that Forsythe had never offered to resign
and had merely inquired about a severance package, we conclude
that a reasonable juror also could find that Forsythe reasonably
understood Wayfair's September 23 email purporting to accept her
offer to resign as an involuntary termination of her employment
rather than an innocent misinterpretation of her earlier request.
Accordingly, we cannot agree with the District Court
that, as a matter of law, Forsythe resigned and so for that reason
was not subject to an adverse employment action. Rather, we
conclude that the record provides a supportable basis for
concluding that even though she had never made an offer to resign,
she was treated as if she had and thereby terminated from her
employment against her wishes.13
13 Forsythe's briefing additionally implies that "a decision
by Wayfair to advise . . . that she should not [travel to Atlanta]"
constituted " a communication of involuntary termination." Because
- 24 -
C.
The District Court separately held that, even assuming
that Wayfair had involuntarily terminated Forsythe's employment at
the company, she failed as a matter of law to establish a "causal[]
link" between the termination and any protected activity and so
cannot meet that element of the prima facie case. Forsythe, 2021
WL 102649, at *6. But, once again, we cannot agree.
The record supportably shows that Forsythe complained to
Wayfair of sexual harassment on August 19th and of retaliation on
September 19th, a Thursday, and that on Monday, September 23rd,
Wayfair sent her the message that marked the end of her employment.
Given that the decisionmakers at Wayfair who allegedly terminated
Forsythe's employment involuntarily were aware of her protected
conduct, the temporal proximity between the protected conduct and
the alleged involuntary termination of her employment establishes
a basis upon which a reasonable juror could find the requisite
"causal connection" between the former and the latter. See Calero-
Cerezo v. DOJ, 355 F.3d 6, 25–26 (1st Cir. 2004) (noting, in case
involving adverse employment action "roughly a month" after
Forsythe has cited no evidence that Wayfair actually communicated
to her that she should not travel to Atlanta on September 24 --
though she identifies some equivocal evidence that Wayfair made a
decision to so communicate -- we do not consider whether the
evidence in the record would provide a supportable basis for
finding that her employment had been involuntarily terminated on
the basis of such a communication.
- 25 -
defendant employer was informed of protected activity, that "a
showing of discharge soon after the employee engages in an activity
specifically protected by . . . Title VII . . . is indirect proof
of a causal connection between the firing and the activity because
it is strongly suggestive of retaliation" (omissions in original)
(quoting Oliver v. Digital Equip. Corp., 846 F.2d 103, 110 (1st
Cir. 1988))); Wright v. CompUSA, Inc., 352 F.3d 472, 474–75, 478
(1st Cir. 2003) (holding, under the Americans with Disabilities
Act, that "a reasonable juror could infer . . . retaliatory
motives" when an employer terminated an employee six days after
his return from medical leave and the record did not "undercut"
causation).
D.
We come, then, to what the parties treat as the District
Court's no-pretext-based ground for granting summary judgment to
Wayfair on her retaliation claim under Title VII. Here, the
District Court based its ruling on the determination that Wayfair
asserted that it reasonably believed that Forsythe offered to
resign and that Forsythe failed to point to evidence in the record
that could suffice to show that Wayfair's assertion in that regard
was pretextual. See Forsythe, 2021 WL 102649, at *6.
In order to survive Wayfair's motion for summary
judgment on her retaliation claim, it is not enough for Forsythe
merely to make out a prima facie case. She must show that there
- 26 -
is a supportable basis for a juror to conclude, by a preponderance
of the evidence, that Wayfair took an adverse employment action
against her in retaliation for her protected conduct. See Ponte,
741 F.3d at 323. Wayfair contends that Forsythe cannot do so -
- even if she can supportably make out a prima facie case of
retaliation -- because she has failed to show what she must with
respect to pretext. We do not agree.
To make out a supportable case that Wayfair's proffered
reason for ending her employment was a pretext for retaliation, it
is not enough for Forsythe "to 'impugn the veracity' of" Wayfair's
stated reason for doing so -- namely, that it was merely accepting
her offer to resign. Id. (quoting Mesnick v. Gen. Elec. Co., 950
F.2d 816, 824 (1st Cir. 1991)). Instead, she "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." Id. On this
record, given that Forsythe has made out a supportable prima facie
case of retaliation, by supportably showing Wayfair's proffered
reason to have been a "sham," she then would have provided a juror
with a reasonable basis for finding that the reason Wayfair gave
for terminating her employment was a pretext for retaliation.
Moreover, one way in which a plaintiff can establish that an
employer's proffered explanation was a pretext to conceal its true
motives is the way that Forsythe has supportably done so here: by
- 27 -
showing that the employer's explanation is not just wrong, but
that it is so implausible that the employer more likely than not
does not believe it. See Collazo-Rosado v. Univ. of Puerto Rico,
765 F.3d 86, 93 (1st Cir. 2014).
In so concluding, we may assume that Wayfair's
assertion that it was accepting what it understood to be Forsythe's
offer of resignation constitutes a legitimate, non-retaliatory
explanation for terminating her employment, notwithstanding
Forsythe's contention that "Wayfair[] fail[ed] to meet its burden
of establishing a legitimate non-discriminatory ground for
termination." Even if that is so, Forsythe is still right that a
juror reasonably could find on this record that this explanation
for such an involuntary termination of her employment was so
implausible that Wayfair more likely than not did not believe it.
As we have explained, Wayfair acknowledges that the
offer to resign by Forsythe that it purported to accept was the
offer that it contends that she put forth during her September 19
phone call with Shaffer-Figueroa. Wayfair does not suggest that
she communicated such an offer at any other point in time. That
poses a problem for Wayfair, however, because the transcript of
that phone call reveals that she did not state that she was in
fact offering to resign at any point during it.
To be sure, Forsythe did express concerns, according to
the transcript, about continuing to work at the company, given
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what she alleged was McKnight's conduct towards her. And, after
having done so, the transcript shows, she did then request for
Shaffer-Figueroa to "talk to Candice and your team and put[]
together a compelling severance package," noting, "I would really
be interested in pursuing that . . . . I think that would be the
best path forward for me."
But, Forsythe also stated, "You guys start, and then
I'll have my lawyer work with you at that point," without
indicating that she had made an offer to resign that could be
accepted by merely delivering a severance package of Wayfair's own
design. Nor does the transcript indicate that Shaffer-Figueroa
understood Forsythe to be offering to resign during that call,
either right then and there or contingent upon her mere receipt of
a severance package that Wayfair unilaterally deemed sufficient to
satisfy her request that it be "compelling." Instead, Shaffer-
Figueroa during the phone call repeatedly referred only to
Forsythe's "request" for a proposed severance package without
adverting to her having made any offer to resign. And, consistent
with the notion that Forsythe had not put such an offer on the
table during that call and that Shaffer-Figueroa did not understand
her to have done so, he testified in his deposition that he had no
idea how she would respond to the purported "acceptance" of her
"resignation."
- 29 -
The record does contain testimony from Shaffer-Figueroa
and Smith in their respective depositions that could support a
finding that, following Shaffer-Figueroa's call with Forsythe, he
told Smith only that Forsythe "was requesting a severance package,"
and that, according to Smith, "ask[ing] for severance[,] . . . in
our world[,] is resigning." But, given that a transcript of the
call between Forsythe and Shaffer-Figueroa is in the record, we
conclude that a juror could reasonably find that an accurate
description of what Forsythe communicated to Shaffer-Figueroa
during that call was relayed to Smith.
Thus, the evidence in the record would permit a juror to
find that Wayfair brought Forsythe's employment to an end based on
her purported resignation when it knew she had not offered to
resign. And, because, as we have already explained, a reasonable
juror could find that Forsythe has made out a prima facie case of
retaliation by supportably showing a causal link between her
protected conduct and the alleged termination, her retaliation
claim under Title VII may go forward. See Collazo-Rosado, 765
F.3d at 94; see also Tosca-Reynoso v. Prajapati, No. CV 18-11571,
2021 WL 1088124, at *3 (D. Mass. Feb. 10, 2021) (finding triable
issue regarding pretext when the employer's understanding of a
purported resignation was in dispute).
- 30 -
E.
Wayfair does not dispute that, insofar as it is not
entitled to summary judgment on Forsythe's Title VII retaliation
claim on any of the three grounds identified by the District Court,
its grant of summary judgment to the company on that claim must be
reversed. Nor does Wayfair dispute that if the District Court's
grant of summary judgment to it on Forsythe's Title VII retaliation
claim must be reversed, then so, too, must the District Court's
grant of summary judgment to it on her state law retaliation claim.
Accordingly, we reverse the District Court's grant of summary
judgment on Forsythe's federal and state retaliation claims.
IV.
Forsythe's final set of challenges on appeal concerns
the District Court's grant of summary judgment to Wayfair on her
claims under state and federal anti-discrimination law of
disparate treatment based on her gender in consequence of her
termination from employment. The District Court held that these
claims failed as a matter of law on two independent grounds, each
of which was also at issue in connection with Wayfair's motion for
summary judgment on her retaliation claims. The first ground is
that "[n]o reasonable juror could find that Forsythe's explicit
request for a severance package amounted to anything other than a
voluntary offer to resign." Forsythe, 2021 WL 102649, at *6. The
second ground is that, even assuming Forsythe's employment had
- 31 -
been terminated involuntarily, Wayfair articulated a legitimate
reason for involuntarily terminating Forsythe's employment that
she has failed to show a juror reasonably could find to be
pretextual -- namely, that the company reasonably thought that she
had offered to resign on September 19th and that it was merely
accepting that offer, rather than terminating her employment
against her will. Id.We begin with Forsythe's claim under Title VII, because
the parties agree that if Wayfair is not entitled to summary
judgment on that claim, then it also is not entitled to summary
judgment on her state law version of it. Our review is de novo.
Murray, 789 F.3d at 25.
A.
To determine whether a plaintiff may defeat summary
judgment on a gender-based disparate treatment termination claim
under Title VII, we apply the McDonnell Douglas framework. To
make out a prima facie case for such a claim, the plaintiff must
show that a reasonable juror could find "that (1) she was within
a protected class, (2) [she] possessed the necessary
qualifications and adequately performed her job, (3) but was
nevertheless dismissed and (4) her employer sought someone of
roughly equivalent qualifications to perform substantially the
same work." Gómez-González v. Rural Opportunities, Inc., 626 F.3d
654, 662 (1st Cir. 2010) (alteration in original) (quoting
- 32 -
Rodriguez–Torres v. Caribbean Forms Mfr., Inc., 399 F.3d 52, 58
(1st Cir. 2005)); see also Blare v. Husky Injection Molding Sys.
Bos., Inc., 646 N.E.2d 111, 115 (Mass. 1995) (stating similar four-
element test). If the plaintiff can make that showing, the burden
of production shifts to the employer at the second step of the
analysis, as the employer must articulate a legitimate,
nondiscriminatory reason for the termination. If the employer
does so, then at the third stage of the inquiry, the plaintiff
must show that a reasonable juror could find that the asserted
reason for the termination is a pretext for discrimination.
We have already explained that the record does not
support the District Court's determination that the record
compelled the finding that Forsythe offered to resign. The
District Court did not identify any other defect in Forsythe's
prima facie case, see Forsythe, 2021 WL 102649, at *6, nor does
Wayfair argue here that Forsythe failed to meet any other element
of the prima facie case for this claim. We therefore conclude
that Forsythe has shown what she must with respect to the prima
facie case.
With respect to pretext, we have already explained that,
contrary to the ruling by the District Court, a juror reasonably
could find that Wayfair knew that its asserted reason for the
termination of Forsythe's employment -- that the company
reasonably thought that she had offered to resign and that it was
- 33 -
accepting that offer -- was not its real reason for bringing her
employment to an end. Nonetheless, Wayfair contends that we must
still affirm the District Court's grant of summary judgment on
this Title VII claim because there is no basis for inferring
gender-based animus in the decision to terminate Forsythe's
employment, insofar as a juror reasonably could find that Wayfair
had terminated it. See Ponte, 741 F.3d at 323.
A showing that a juror could find an employer's stated
reason for terminating employment to be "mendaci[ous]," Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000) (quoting
St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993)), will
"not . . . always be adequate to sustain a jury's finding of
liability," id. 148. For example, judgment as a matter of law in
an employer's favor would be appropriate in a case in which "the
record conclusively revealed some other, nondiscriminatory reason
for the employer's decision, or if the plaintiff created only a
weak issue of fact as to whether the employer's reason was untrue
and there was abundant and uncontroverted independent evidence
that no discrimination had occurred." Id. More generally, Reeves
counsels,
[w]hether judgment as a matter of law is
appropriate in any particular case will depend
on a number of factors. Those include the
strength of the plaintiff's prima facie case,
the probative value of the proof that the
employer's explanation is false, and any other
evidence that supports the employer's case and
- 34 -
that properly may be considered on a motion
for judgment as a matter of law.
Id. at 148–49.
Although Forsythe's claim under Title VII does concern
a termination that followed her having made complaints about her
treatment at the company, the complaints consisted of an allegation
of sexual harassment and an allegation that her supervisor had
retaliated against her for having complained about that gender-
based harassment. In addition, the record supportably shows that
she was then replaced, as to at least some her job duties, by a
man following the termination of her employment. 14 Thus, in light
of these specific features of the record, and given the showing
that Forsythe has made as to each of the elements of the prima
facie case and the fact that she has supportably shown not merely
that Wayfair's stated reason for ending her employment at the
company was false but that Wayfair knew that it was false, Forsythe
14Forsythe has put forth evidence that suffices to create a
factual dispute as to whether Forsythe was ultimately replaced by
a male employee, Mike Thayer, whom her supervisor, McKnight, had
earlier identified to Forsythe as someone he wanted to hire. In
particular, Forsythe points to the testimony of a Wayfair employee,
Brittaney Skaggs, who, when asked "who replaced Emily after she
left?" answered, "[m]y current boss, Mike Thayer." Wayfair
counters this evidence with the undisputed fact that Thayer was
hired for a position that was open even during Forsythe's
employment. But, Wayfair's brief does appear to credit Skaggs's
testimony to the extent it shows that "Thayer assumed some of
[Forsythe's] role" after her departure.
- 35 -
has supportably shown what she must for this claim to survive
summary judgment.
Nor, given the fact-specific nature of the inquiry that
Reeves requires, do we see how Wayfair's reliance on Ponte v.
Steelcase or Meléndez v. Autogermana, Inc. suggests otherwise. In
those cases, unlike this one, the employers justified their
decisions by invoking objective evidence of the plaintiffs' poor
performance rather than by identifying a purported resignation.
See Ponte, 741 F.3d at 323 (holding that plaintiff's termination
on stated grounds of poor performance was "a reasonable business
practice" and not pretextual); Meléndez v. Autogermana, Inc., 622
F.3d 46, 52–53 (1st Cir. 2010) (holding that evidence that an
employer had erroneously applied performance standards to the
plaintiff would have been insufficient for a reasonable trier of
fact to find the employer's evaluation of the employee's
performance to have been "a pretext masking its impermissible
discriminatory animus"). And, the same is true of Feliciano de la
Cruz v. El Conquistador Resort & Country Club, on which Meléndez
relied. See 218 F.3d 1, 7–8 (1st Cir. 2000) (noting that a finding
that an employer decided to fire an employee who was performing
well -- for stated, performance-based reasons that a reasonable
juror could have disbelieved -- might be "unfair," but would not
in itself be "sufficient to state a claim under Title VII.").
- 36 -
Thus, we decline to follow Wayfair's suggestion that we
affirm the District Court's summary judgment on the ground -- not
relied on by the District Court -- that the record provides no
basis for a reasonable juror to infer a discriminatory motive for
her involuntary termination. Instead, we conclude on this record
that a juror reasonably could make such an inference as to the
true motive for the company's decision to treat her as having
offered to resign.
B.
There remains only Forsythe's parallel gender-based
disparate treatment termination claim under Massachusetts law.
But, it is clear that if a claim of gender-based discriminatory
termination under Title VII can survive summary judgment, such a
claim under Massachusetts anti-discrimination law can as well.
See Bulwer v. Mount Auburn Hosp., 46 N.E.3d 24, 33 (Mass. 2016)
("Massachusetts is a pretext only jurisdiction." (quoting Blare,
646 N.E.2d at 116)). Thus, we must reverse the District Court's
ruling granting summary judgment on that state law claim as well.
V.
For the reasons discussed above, we affirm the District
Court's grant of summary judgment on Forsythe's state and federal
claims against Wayfair for failing to remedy sexual harassment.
As to Forsythe's remaining state and federal claims, we reverse
- 37 -
and remand to the District Court for further proceedings consistent
with this opinion.
The parties shall bear their own costs.
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