Caruso v. Delta Air Lines, Inc.
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Opinion
United States Court of Appeals For the First Circuit
No. 22-1175
SARA CARUSO,
Plaintiff, Appellant,
v.
DELTA AIR LINES, INC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Gelpí, Lynch, and Thompson, Circuit Judges.
Eric R. LeBlanc, with whom Michaela C. May and Bennett & Belfort, P.C. were on brief, for appellant. Lisa Stephanian Burton, with whom Patrick M. Curran, Jr., Lorenzo R. Cabantog, and Ogletree, Deakins, Nash, Smoak & Stewart, P.C. were on brief, for appellee.
August 21, 2024 LYNCH, Circuit Judge. Appellant Sara Caruso, then a
flight attendant with appellee Delta Air Lines, Inc., failed a
breathalyzer test when she reported for work on the morning of
August 4, 2018, after a layover in Dallas, Texas. Caruso believes
she was drugged and sexually assaulted by Delta First Officer James
Lucas on the night of August 3-4, 2018. The Dallas Police
Department concluded there was insufficient evidence to support
that an offense occurred. After conducting its own investigation,
Delta also took no action against Lucas. Caruso completed an
alcohol rehabilitation program as recommended by a Department of
Transportation ("DOT") psychologist and then sought accommodations
from Delta for post-traumatic stress disorder ("PTSD") arising
from the alleged assault. Caruso and Delta initially reached
agreement on a set of accommodations and Caruso returned to work
for just over a month before abruptly reversing course and
resigning.
Caruso brought a lawsuit against Delta in Massachusetts
state court, later removed to the U.S. District Court for the
District of Massachusetts, alleging Delta violated Massachusetts
General Laws chapter 151B; Title VII of the Civil Rights Act of
1964 ("Title VII"), 42 U.S.C. § 2000e; and the Americans with
Disabilities Act ("ADA"), 42 U.S.C. §§ 12112, 12203. The district
court granted summary judgment for Delta on all counts. Caruso v.
Delta Air Lines, Inc., No. 20-10180, 2022 WL 715709 (D. Mass. Mar.
- 2 - 9, 2022). We affirm entry against all of her claims. Title VII
and General Laws chapter 151B, while not identical, require
dismissal of a claim where, as here, there is no causal connection
between Delta's actions and the alleged harassment and Delta
responded reasonably to the alleged harassment. Caruso's
disability discrimination claims under both the ADA and chapter
151B fail because she did not engage in an interactive process in
good faith with Delta to develop reasonable accommodations.
I. Background
"We recount the facts 'in a light as favorable to
[Caruso] as the record will reasonably allow.'" Sarkisian v.
Austin Preparatory Sch., 85 F.4th 670, 671-72 (1st Cir. 2023)
(quoting Travers v. Flight Servs. & Sys., Inc., 737 F.3d 144, 145
(1st Cir. 2013)). Under both Title VII and Massachusetts General
Laws chapter 151B, Caruso's claims fail if she cannot show the
alleged harassment is causally connected to Delta's actions. She
has not shown any causal connection. See Noviello v. City of
Boston, 398 F.3d 76, 95 (1st Cir. 2005); Forsythe v. Wayfair Inc.,
27 F.4th 67, 72 (1st Cir. 2022). Further, Delta's actions under
the law may be reviewed only for reasonableness. And Caruso has
not shown Delta's actions were unreasonable, much less that they
were causally connected to any harm inflicted on her by a
co-worker. See Forsythe, 27 F.4th at 74.
- 3 - Delta hired Caruso as a flight attendant in March of
2016. Caruso's home base was Boston Logan International Airport,
and her duties frequently took her to other cities where sometimes
overnight stays were required.
a. Events of August 3-4, 2018
On August 3, 2018, Caruso worked as a flight attendant
on flight 1171 from Atlanta to Dallas alongside flight attendants
Emma Brown, Ashley Wells, and Victoria Mercer; First Officer James
Lucas; and Captain Randall McCormick. Lucas and Caruso did not
know and had never interacted with each other before this flight.
The crew arrived in Dallas in the early afternoon and traveled by
private shuttle to the Hyatt Regency hotel in downtown Dallas for
an overnight layover before their scheduled pick up at 5:30 am the
next day to work additional flights.
Caruso, Brown, Mercer, and Lucas made plans to meet in
the hotel lobby at 4:00 pm that day "to go out" in Deep Ellum,
Dallas's arts district. The group traveled together by Uber to a
restaurant in Deep Ellum, where the group ate dinner and began
drinking. At roughly 6:00 pm, the group walked "several blocks"
from the restaurant to a Deep Ellum bar, and then at 8:00 pm to
another bar. Caruso testified that she had three to four gin and
tonics and one tequila shot over the course of the night.
Just before 9:00 pm, Brown "passed out" at the final bar
and "the bartender told [the group] to take her home." Lucas
- 4 - called an Uber for the group and they arrived back at the hotel
around 9:00 pm. The group boarded the elevator together, and
Mercer got off on the seventeenth floor, leaving Caruso, Brown,
and Lucas on the elevator. Lucas and Caruso took Brown to Brown's
room.
It is undisputed that Caruso states she has no memory of
anything that happened between leaving Brown at her room just after
9:00 pm and waking up the following morning. Caruso stated that
she "struggle[s] to sleep" and had recently "started . . . a new
medication to help with the problem but [she] can't remember
anything after [she] take[s] it" in an August 4, 2018, email to
her Delta supervisor, Amy Broach.
Lucas stated in an August 9, 2018, statement that the
group
"returned to the hotel at approximately 9:00 pm. One of the flight attendants (Victoria [Mercer]) got off the elevator. The third flight attendant (Sara [Caruso]) and I walked the second flight attendant (Emma [Brown]) to her room and then decided to hang out and talk for a while. I later went to my room and had no further interaction with any of the flight attendants that evening."
Lucas testified at a deposition on May 14, 2021, after
Caruso had filed this lawsuit alleging sexual assault, that he and
Caruso left Brown's room "laughing and talking" and, sometime
between 9:30 and 10:00 pm, walked together to Caruso's room, which
was on the same floor as Brown's room. Caruso opened the door
- 5 - with her room key and Lucas followed her in, "continuing" their
"conversation and laughing about who knows what." Lucas testified
that he "sat down on the foot of [Caruso's] bed and [Caruso] stood
at the front of the room" while the two "continued talking and
laughing." Lucas did not consume any additional alcohol nor did
he see Caruso do so.
Lucas testified that after some time Caruso "pushed
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United States Court of Appeals For the First Circuit
No. 22-1175
SARA CARUSO,
Plaintiff, Appellant,
v.
DELTA AIR LINES, INC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Gelpí, Lynch, and Thompson, Circuit Judges.
Eric R. LeBlanc, with whom Michaela C. May and Bennett & Belfort, P.C. were on brief, for appellant. Lisa Stephanian Burton, with whom Patrick M. Curran, Jr., Lorenzo R. Cabantog, and Ogletree, Deakins, Nash, Smoak & Stewart, P.C. were on brief, for appellee.
August 21, 2024 LYNCH, Circuit Judge. Appellant Sara Caruso, then a
flight attendant with appellee Delta Air Lines, Inc., failed a
breathalyzer test when she reported for work on the morning of
August 4, 2018, after a layover in Dallas, Texas. Caruso believes
she was drugged and sexually assaulted by Delta First Officer James
Lucas on the night of August 3-4, 2018. The Dallas Police
Department concluded there was insufficient evidence to support
that an offense occurred. After conducting its own investigation,
Delta also took no action against Lucas. Caruso completed an
alcohol rehabilitation program as recommended by a Department of
Transportation ("DOT") psychologist and then sought accommodations
from Delta for post-traumatic stress disorder ("PTSD") arising
from the alleged assault. Caruso and Delta initially reached
agreement on a set of accommodations and Caruso returned to work
for just over a month before abruptly reversing course and
resigning.
Caruso brought a lawsuit against Delta in Massachusetts
state court, later removed to the U.S. District Court for the
District of Massachusetts, alleging Delta violated Massachusetts
General Laws chapter 151B; Title VII of the Civil Rights Act of
1964 ("Title VII"), 42 U.S.C. § 2000e; and the Americans with
Disabilities Act ("ADA"), 42 U.S.C. §§ 12112, 12203. The district
court granted summary judgment for Delta on all counts. Caruso v.
Delta Air Lines, Inc., No. 20-10180, 2022 WL 715709 (D. Mass. Mar.
- 2 - 9, 2022). We affirm entry against all of her claims. Title VII
and General Laws chapter 151B, while not identical, require
dismissal of a claim where, as here, there is no causal connection
between Delta's actions and the alleged harassment and Delta
responded reasonably to the alleged harassment. Caruso's
disability discrimination claims under both the ADA and chapter
151B fail because she did not engage in an interactive process in
good faith with Delta to develop reasonable accommodations.
I. Background
"We recount the facts 'in a light as favorable to
[Caruso] as the record will reasonably allow.'" Sarkisian v.
Austin Preparatory Sch., 85 F.4th 670, 671-72 (1st Cir. 2023)
(quoting Travers v. Flight Servs. & Sys., Inc., 737 F.3d 144, 145
(1st Cir. 2013)). Under both Title VII and Massachusetts General
Laws chapter 151B, Caruso's claims fail if she cannot show the
alleged harassment is causally connected to Delta's actions. She
has not shown any causal connection. See Noviello v. City of
Boston, 398 F.3d 76, 95 (1st Cir. 2005); Forsythe v. Wayfair Inc.,
27 F.4th 67, 72 (1st Cir. 2022). Further, Delta's actions under
the law may be reviewed only for reasonableness. And Caruso has
not shown Delta's actions were unreasonable, much less that they
were causally connected to any harm inflicted on her by a
co-worker. See Forsythe, 27 F.4th at 74.
- 3 - Delta hired Caruso as a flight attendant in March of
2016. Caruso's home base was Boston Logan International Airport,
and her duties frequently took her to other cities where sometimes
overnight stays were required.
a. Events of August 3-4, 2018
On August 3, 2018, Caruso worked as a flight attendant
on flight 1171 from Atlanta to Dallas alongside flight attendants
Emma Brown, Ashley Wells, and Victoria Mercer; First Officer James
Lucas; and Captain Randall McCormick. Lucas and Caruso did not
know and had never interacted with each other before this flight.
The crew arrived in Dallas in the early afternoon and traveled by
private shuttle to the Hyatt Regency hotel in downtown Dallas for
an overnight layover before their scheduled pick up at 5:30 am the
next day to work additional flights.
Caruso, Brown, Mercer, and Lucas made plans to meet in
the hotel lobby at 4:00 pm that day "to go out" in Deep Ellum,
Dallas's arts district. The group traveled together by Uber to a
restaurant in Deep Ellum, where the group ate dinner and began
drinking. At roughly 6:00 pm, the group walked "several blocks"
from the restaurant to a Deep Ellum bar, and then at 8:00 pm to
another bar. Caruso testified that she had three to four gin and
tonics and one tequila shot over the course of the night.
Just before 9:00 pm, Brown "passed out" at the final bar
and "the bartender told [the group] to take her home." Lucas
- 4 - called an Uber for the group and they arrived back at the hotel
around 9:00 pm. The group boarded the elevator together, and
Mercer got off on the seventeenth floor, leaving Caruso, Brown,
and Lucas on the elevator. Lucas and Caruso took Brown to Brown's
room.
It is undisputed that Caruso states she has no memory of
anything that happened between leaving Brown at her room just after
9:00 pm and waking up the following morning. Caruso stated that
she "struggle[s] to sleep" and had recently "started . . . a new
medication to help with the problem but [she] can't remember
anything after [she] take[s] it" in an August 4, 2018, email to
her Delta supervisor, Amy Broach.
Lucas stated in an August 9, 2018, statement that the
group
"returned to the hotel at approximately 9:00 pm. One of the flight attendants (Victoria [Mercer]) got off the elevator. The third flight attendant (Sara [Caruso]) and I walked the second flight attendant (Emma [Brown]) to her room and then decided to hang out and talk for a while. I later went to my room and had no further interaction with any of the flight attendants that evening."
Lucas testified at a deposition on May 14, 2021, after
Caruso had filed this lawsuit alleging sexual assault, that he and
Caruso left Brown's room "laughing and talking" and, sometime
between 9:30 and 10:00 pm, walked together to Caruso's room, which
was on the same floor as Brown's room. Caruso opened the door
- 5 - with her room key and Lucas followed her in, "continuing" their
"conversation and laughing about who knows what." Lucas testified
that he "sat down on the foot of [Caruso's] bed and [Caruso] stood
at the front of the room" while the two "continued talking and
laughing." Lucas did not consume any additional alcohol nor did
he see Caruso do so.
Lucas testified that after some time Caruso "pushed
[him] down" and the two "started kissing." Lucas testified that
he and Caruso engaged in oral and other sexual acts but not
penetrative sex and that Caruso did not appear intoxicated to him
at that time. Lucas testified that during these acts Caruso asked
him to engage in penetrative sex with her. Lucas testified that
when he told Caruso he did not have a condom with him in the room
she said, "Well, I am not gonna have sex with you without a condom."
Lucas then decided "to go back to [his] room and retrieve a
condom." When he left Caruso's room he took Caruso's room key
with him so that he "could let [him]self back in."
Lucas testified that he returned to his room, retrieved
a condom, and used the bathroom. When Lucas returned to Caruso's
room ten to twenty minutes later he found her naked "sitting in
the shower basin with the water running over her." Lucas testified
that Caruso "appeared intoxicated at this point, so [he] felt like
[he] wanted to get her dried off, put her into bed and then call
it a night." Lucas dried her off and attempted "to put her under
- 6 - the sheets so she could go to bed." While Lucas was attempting to
move Caruso to the bed she "threw up mostly off the side of the
bed, but it also caught a little bit of her arm." Lucas then
"helped her to her feet [and] walked her back to the bathroom,
turned on the shower, and put her back in the shower" where Caruso
"stood in the shower under her own power and she rinsed off."
Lucas then dried Caruso off again and placed her back in the bed.
Lucas testified that once Caruso was back in bed she
asked him to retrieve her panties from the floor, which he did,
and that Caruso then asked him to retrieve her medications from
her suitcase, which he also did. Lucas testified that, when he
saw that one of the medications Caruso was preparing to take was
Ambien, he told her, "Hey, don't take the Ambien. I don't think
you'll wake up," and that he did not see her take that medication.
Lucas testified that he turned off the lights and
returned to his room. Lucas testified he remembered that by the
time he returned to his room and prepared himself for bed he
"look[ed] at the clock and [was] happy that it had not reached
midnight, so [he]'d be able to get some sleep."
At 12:20 am Dallas time on August 4, 2018 -- roughly
thirty minutes after Lucas testified he had returned to his room
-- Caruso called Delta's Operations Control Center ("OCC"). The
OCC's documentation from that call states that Caruso "request[ed]
[First Officer] Lucas's phone number" and that Caruso "was unable
- 7 - to explain why she needed Lucas'[s] phone number besides the fact
that he said he was going to 'hang out'" and that Caruso stated
"Victoria [Mercer] and Emma [Brown] were also with her at the hotel
at that time." When the operator asked Caruso "if she had an
emergency, she said no, and that they just wanted to hang out."
The document states Caruso was "repetitive and incoherent,
speaking with slurred speech."1
Caruso also sent two text messages to Brown at 12:09 am
on August 4 which read "Where is my sit" and "Bang band pang,"
respectively. These text messages were submitted by Delta after
being produced from Caruso.
Brown testified that after she awoke the next morning
and went to the front desk, a hotel employee told her that Caruso
had been "running around in her bra and underwear banging on
people's doors yelling for [Lucas] and [Brown], so security was
called." The hotel also called Delta overnight to report as much.
The evidence as to Caruso's call, her text messages, and the
hotel's report does not conflict with Lucas's timeline of the
night.
In response to Caruso's call to the OCC, Delta "contacted
the Substance Testing hotline" based on reasonable suspicion that
1By all accounts, Caruso did not call to report a sexual assault to Delta (or any other emergency) and simply expressed to Delta that she wanted to "hang out" with Lucas.
- 8 - Caruso and her crewmates had been using alcohol in violation of
Delta policy. Delta arranged for a supervisor to intercept the
group at the Dallas airport the next morning to examine them for
possible testing. Delta also mobilized replacement flight
attendants to provide coverage in the event Brown, Mercer, or
Caruso needed to be pulled from their scheduled flights.
Caruso and her crewmates knew the schedule was for them
to be picked up by shuttle from the Hyatt Regency at 5:30 am on
August 4 to work their next flight. Caruso was the only crew
member who did not report to the lobby at the scheduled time.
Brown asked the front desk for access to Caruso's room to check on
her, at which point the employee at the front desk described
Caruso's behavior which led to hotel security being called.
Two hotel security guards took Brown to Caruso's hotel
room door, where Caruso, not fully dressed, answered the door.
Brown testified that Caruso's "luggage was a mess. She had her
stuff laying on the ground all around her bag, very disorganized.
That's pretty much it."2 Brown testified that Caruso "was in her
bra and underwear. She looked like she had a long night. Her
hair was kind of messy. Her eyes were very glassy and very
2 This description matches Caruso's description of her room in her later statement to Delta. "[M]y room was a mess," Caruso wrote, "and my suitcase had been thrown across the room."
- 9 - bloodshot" and that "[t]he only thing she was concerned about was
being late to work."
Brown and Caruso eventually joined the rest of the crew
in the lobby and the group traveled to the Dallas airport via the
planned shuttle. Delta Station Manager Hal Hayes met Caruso,
Brown, and Mercer at the airport and interviewed each separately
to evaluate Delta's suspicion of a violation of Delta and DOT
alcohol use policies and regulations. Hayes concluded based on
his assessment of Caruso as having "red eyes," "[g]lassy eyes,"
and "[d]rowsiness" that Caruso "warrant[ed] testing," to which
Caruso consented. A third party technician performed an initial
and a confirmatory breathalyzer test on Caruso, each of which
registered a blood alcohol content of 0.079, roughly four times
Delta's policy threshold of 0.020 and double the federal maximum
of 0.040.3 See 14 C.F.R. § 91.17(a)(4). Caruso was immediately
removed from duty, asked to change out of her uniform and hand in
her ID badge, and sent home to Boston on a flight later that day.
b. Delta begins investigating Caruso's alcohol use
Delta Field Service Manager Amy Broach, Caruso's direct
supervisor in Boston, asked her on August 4 for a "detailed
statement from when [the crew] arrived [at the Dallas hotel] until
they returned back to the hotel so [Delta] could gather the facts
3 Caruso also submitted to a drug test at the same time, which she passed.
- 10 - to determine what happened" with respect to Caruso's failed alcohol
test. Caruso supplied a statement later that day. In her
statement Caruso asserted she had had two gin and tonics, one
French 75 cocktail, and a tequila shot, then returned to the hotel,
went to her room, took her medications, and went to bed. She
stated she "ha[d] no recollection of making any phone call[]" to
the OCC "or doing anything after having gone to bed" such as
leaving her hotel room, banging on hotel doors, or interacting
with hotel security during the night. Caruso's statement also
listed ten prescription medications she takes. Caruso made no
allegations of sexual assault in this statement and referred to
Lucas only as "a pilot" who was a member of their group that
evening.
The same day, August 4, 2018, Delta suspended Caruso
pending further investigation, evaluation, and potential
treatment.
Mercer, Brown, and Lucas each gave a statement to Delta
in the following days. Mercer's and Lucas's statements, like
Caruso's initial statement, focused on the group's activities at
the various Dallas bars they had visited. Mercer's statement
referred to an "FO James," and she noted in an email that "James"
told her that he had "walked the girls ([Caruso and Brown]) to
their individual rooms" when they got back. On August 8, Broach
reported to other Delta officials that Brown told her "yes F/O
- 11 - Lucas escorted them to their rooms," going to Brown's room "first"
and then to Caruso's. As described, Lucas's August 9 statement,
requested by Delta, stated that after returning to the hotel he
and Caruso "decided to hang out and talk for a while" and that he
"later went to [his] room and had no further interaction with any
of the flight attendants that evening."
c. Caruso's actions immediately following suspension
On August 4, after learning she had been suspended and
without informing Delta, Caruso went to Beth Israel Deaconess
Hospital in Plymouth, Massachusetts, to "complete a sexual assault
kit." In that exam report, Caruso is recorded as "unsure" as to
the time of assault, number and identity of assailants, use of any
weapons, and all details of any purported sexual acts. Caruso's
physical exam was unremarkable except for a bruise on her right
hip, pain to her chin area, and petechiae -- small red spots --
around her eyes. Despite options to check "no" on the exam report
for whether the "assailant(s) attempt[ed] to strangle patient,"
the examiner checked "unsure" and wrote on the blank link following
"[i]f yes, describe," that "patient had petechiae around eyes."
The physical exam of Caruso's genitalia and anus in particular was
within normal limits. The kit also included the collection of
swabs, head hair combings, fingernail scrapings, clothing, and
samples of Caruso's blood and urine, for laboratory testing.
- 12 - On the morning of August 5, Caruso emailed Broach an
"[a]dditional statement" in which she stated for the first time
that she thought she was "potentially drugged and assaulted" at
the Dallas hotel. She stated she had completed a sexual assault
kit at the local hospital and that the kit was "being sent to Mass
state police to b[e] transferred to Texas." Caruso told Broach
that she had "petechia in my eyes that was indicative of attempted
strangulation" and later texted Broach that "they gave me
prophylactic antibiotics against stds, emergency contraceptive and
started me on HIV medication[.]" Caruso did not at this time
identify Lucas or anyone else as the individual she believed had
"potentially" drugged and assaulted her.
Caruso did not file a police report with either the
Dallas or Massachusetts authorities at that time, nor did she tell
Delta she had not done so.
d. Delta incorporates Caruso's concerns about possible sexual assault into its investigation
On August 7, 2018, in response to Caruso's August 5
allegation that she may have been sexually assaulted by an
unidentified individual, Delta Corporate Security requested hotel
key card swipe data for Caruso's room and any available video
footage of anyone coming in and out of her room from the Dallas
hotel.
- 13 - Also on August 7, 2018, Caruso met with a DOT
psychologist, Dr. John Murray, as arranged by Delta and pursuant
to corporate policy in response to a positive alcohol test, for an
evaluation of her mental state and potential substance abuse
disorder related to alcohol. On August 10, Dr. Murray told Caruso
that he was recommending she complete a thirty-day residential
rehabilitation program. Caruso agreed and arranged to report to
Cornerstone of Recovery in Tennessee for admission on August 20,
2018.
In the afternoon on Thursday, August 16, Delta learned
that a police report was necessary to access hotel video and key
swipe files. Delta believed that Caruso "had already filed a
police report," as a Delta corporate representative testified,
"based on" Caruso's statement "that when she went and had her
sexual assault kit completed, . . . she shared with [Delta] that
she was having that transferred from Massachusetts to Texas."
The following Monday, August 20, Caruso reported for
admission to Cornerstone. Cornerstone diagnosed Caruso with
"[a]lcohol use, unspecified with unspecified alcohol-induced
disorder." Delta's corporate representation testified that from
that point on to have any further "discussion[s] with [Caruso],
[Delta] had to wait until she returned from treatment."
- 14 - e. Caruso files a Massachusetts police report, Massachusetts police contact Dallas police, and Dallas police eventually inform Delta that Lucas is a suspect before concluding there is no evidence an offense occurred
Caruso was discharged from Cornerstone on
September 24, 2018. Caruso filed her first police report related
to the alleged sexual assault with the Middleboro Police Department
in Massachusetts4 two days later on September 26.
Caruso claims that she was unable to file a police report
from her inpatient rehabilitation program at Cornerstone.
However, Caruso did not report to the Cornerstone program until
August 20 and does not allege that she was unable to file during
the sixteen days between the alleged assault and her arrival at
the program. The record further indicates that, once admitted to
Cornerstone, Caruso had at least some access to her phone and used
it to contact outside individuals including Broach at Delta and
her father, whom she requested hire her an attorney. Indeed,
when Caruso told her Cornerstone counselors that she believed she
had been sexually assaulted in Dallas, those counselors offered to
help her file a police report. She did not accept that offer.
This police report states that Caruso "attempted to report 4
the sexual assault with the Dallas Police Department. Dallas PD told [Caruso] to the [sic] report the incident with a local police department and then have them contact the Dallas [police]." There is no evidence in the record of when this interaction between Caruso and the Dallas police occurred.
- 15 - Caruso filed the September 26 police report with
Detective Alan Cunningham of the Middleboro Police Department in
Massachusetts. As in her other narratives up to this point, Caruso
did not identify any particular individual as the person she
believed assaulted her. The report states that when Det.
Cunningham asked why Caruso would have been tested for alcohol
immediately upon arriving at the Dallas airport, Caruso stated
that "Delta Airlines received a call from the Hyatt Regency hotel
reporting th[at] [Caruso] was walking around the halls in her
underwear and talking incoherently around 1am." The record does
not establish that Caruso disclosed her own phone call to Delta
OCC to the police. When Det. Cunningham asked why it had taken
Caruso almost two months to file this police report, Caruso
"explained that she had been in a rehabilitation facility" since
August 20, but did not address the two-week period between the
alleged assault and her admission to that facility, her access to
communication with the outside world, or Cornerstone's offer to
help her report her allegations. Det. Cunningham transmitted the
report to the Dallas Police Department.
On October 1, 2018, Detective Chris Anderson of the
Dallas Police Department contacted Hyatt personnel to request any
video related to Caruso's allegations. Det. Anderson learned that
the video was unavailable as the hotel's systems automatically
overwrote files after twenty to twenty-five days in the normal
- 16 - course, meaning video of that night would have been deleted some
time between August 24 and 29, 2018.5 Det. Anderson shared this
information with Delta Corporate Security on October 3, 2018, the
first time Delta learned of it. No key card swipe data was
obtained.
On October 3, Det. Anderson told Delta that the Dallas
police were investigating Lucas in connection with Caruso's
allegations. Delta cooperated with Det. Anderson's investigation.
That day, Lance Mack of Delta Corporate Security sent to Det.
Anderson Lucas's official statement of August 9 as well as contact
information for Delta's Chief Pilot, Wayne Cochran, through whom
Det. Anderson could contact Lucas. On October 12, Det. Anderson
contacted Cochran, who agreed to reach out to Lucas and have him
contact Det. Anderson. On October 17, Det. Anderson made contact
with Lucas, who "asked to consult legal counsel before giving a
statement." Det. Anderson told Delta on the same day that Lucas
"[was] cooperating." Mack followed up with Det. Anderson again on
December 19.
As best we can tell from the record, the Dallas police
did not receive any of the materials from Caruso's August 4 sexual
5 Hyatt personnel also agreed in response to Det. Anderson's email to attempt to locate the security guards who interacted with Caruso on the night in question, but responded that "there [wa]s no incident report that has any employee names." Nothing in the record suggests that anything came of this attempt.
- 17 - assault kit, nor did the samples in that kit undergo any testing,
until Det. Anderson began investigating in October 2018. Det.
Anderson received serology results from Caruso's sexual assault
kit swabs on January 3, 2019, and toxicology results from her blood
and urine samples on January 7. All swab samples tested negative
for seminal fluid and identified only trace evidence of "[a]pparent
hair," "[a]pparent fibers," and "[d]ebris." Based on those
preliminary results the forensic lab concluded that "no DNA testing
[wa]s warranted." Caruso's blood and urine samples tested positive
for only two substances other than her prescription medications:
diphenhydramine (Benadryl) and a "[p]ossible" positive result for
adrafinil, a stimulant.
On January 7, Det. Anderson concluded there was "no
evidence to support that an offense occurred" and closed the case.
The same day, Det. Anderson shared the conclusion that "[t]here is
insufficient evidence to support criminal charges being filed in
this case" with Delta corporate security. Det. Anderson told Delta
in the same email that "Mr. Lucas did not cooperate with the
investigation." The record does not establish that Delta had
previously been informed that Mr. Lucas was "not cooperat[ing],"
and suggests that the last that Delta heard of Lucas's involvement
with the investigation was Det. Anderson's October 17, 2018
statement that "[Lucas] [was] cooperating." Delta inquired as to,
- 18 - but Det. Anderson did not send, the results of Caruso's sexual
assault kit testing.
f. Delta continues to investigate even after Dallas police inform Delta they are closing their investigation; Caruso files a discrimination complaint
On December 18, 2018, Caruso filed a complaint with the
Massachusetts Commission Against Discrimination ("MCAD") alleging
several counts of retaliation and discrimination in violation of
Title VII and Massachusetts General Laws chapter 151B against Delta
and Broach.
Three Delta employees including Chief Pilot Bryan
Dickerson and Senior Human Resources Manager Nicole Bell
interviewed Lucas in response to this complaint on April 3, 2019.
Lucas's union representative accompanied Lucas pursuant to Delta's
collective bargaining agreement with its pilots. Dickerson's
notes from this interview record Lucas as stating he and Caruso
"kissed and touched, there was no intercourse. Everything [they]
did was consensual." Consistent with Lucas's deposition testimony
in this case, albeit providing less detail, Lucas stated:
I left twice. We had physical interaction, she wanted to have sex but I didn't have a condom. I decided to go get a condom. Was gone for 15-20 minutes. When I came back, she was in bathroom, in the shower sitting with water coming down on her. I decided she was too intoxicated. Helped her into bed. When I left, she was in bed topless, in panties. The last time I left was around midnight.
- 19 - Dickerson and Delta's corporate representative both testified that
they found Lucas's interview statements "credible." Given the
information it had obtained through its investigation up to that
point, Delta declined to conduct any further investigation.
g. Caruso negotiates her return to work and then resigns
Caruso was on leave in various forms between
August 4, 2018, and June 2, 2019, and did not have any contact
with Lucas nor did she work any flights during this time. On
February 4, 2019, Caruso, through counsel, requested disability
accommodations from Delta for PTSD arising from her belief that
she was drugged and sexually assaulted on the night of
August 3-4, 2018. Caruso requested, as later clarified and
documented with Caruso's healthcare provider, four principal
accommodations: (1) reassignment to a new supervisor; (2) to not
work on the same flight as Lucas; (3) to not be in enclosed spaces
with Lucas; and (4) to have the ability to remove herself from
situations in which Lucas was present such as, for example, the
ability to change her layover hotel or transportation method if
necessary to avoid Lucas.
Delta and Caruso engaged in an interactive process by
phone on May 21, 2019, to determine the feasibility of her
requested accommodations should she resume her duties. During
that phone call, Delta told Caruso that it would reassign her to
- 20 - a new supervisor. Delta told Caruso that its scheduling system
was not capable of ensuring two specific employees never
encountered one another and thus that it could not grant Caruso
her other requested accommodations. Instead, Delta recommended
that Caruso "bid on flights that [Lucas] is not certified to fly"
and provided her with Lucas's current certification information.
Delta further recommended that she attempt to trade any flights
she was scheduled to fly with Lucas and stated that she "could
change [her layover] hotels or utilize different transportation"
if necessary to avoid Lucas "but Delta would not automatically
assume responsibility for th[ose] cost[s]" and instead would
"review[] [them] on a case-by-case basis." Delta also told Caruso
that it "would be happy to reevaluate [her] request, and [engage
in] another interactive accommodation discussion" "[s]hould
circumstances change."
Caruso accepted these proposed accommodations in an
email to Delta personnel on May 22, 2019, and returned to work on
June 2, 2019, under her new supervisor, Courtney Roosevelt. At no
time did she encounter Lucas after the night of August 3-4, 2018.
On June 8, 2019, after having worked seven flights under
this accommodation structure without incident, Caruso was
scheduled to work flights that included a layover hotel stay in
Dallas at the same Hyatt Regency hotel. When she expressed
concerns to the supervisor on site, Brian LaPlante, he offered her
- 21 - the option "to make alternate hotel arrangements for herself at
another hotel" in Dallas but "she did[] not want to do that."
LaPlante observed that Caruso "was having difficulty breathing and
communicating, and therefore [he] made the decision to remove her
from the trip" she was scheduled to work.
Caruso worked two further flights, one on each of June
9 and 10. Caruso's June 10 flight was the last flight listed in
the record she worked as a Delta employee.
At some point between June 10 and June 16, Caruso was
"admitted to [a] specialty hospital" due to a "suicide attempt."
On June 16 Caruso requested from Delta a "hardship transfer" to
Salt Lake City, where her parents lived, "to have [her] family
support [her] mental health and have easier access to [her]
psychiatrist and psychotherapist." Caruso submitted the completed
paperwork for this request on June 27, and Delta approved it on
July 4, 2019.
On July 22, 2019, Caruso completed paperwork related to
a "conditional offer of employment" she had received to work as a
dispatcher with Salt Lake Valley Emergency Communications Center
with an expected hire date of July 29, 2019. In that paperwork,
Caruso listed July 26, 2019, as her final day of employment with
Delta.
On July 24, 2019, two days after Caruso had completed
paperwork for this new job, Caruso's attorney sent a letter to
- 22 - Delta demanding "Delta's wholesale reversal and its unequivocal
grant of the accommodations [Caruso] sought, in full" by "Friday,
July 26, 2019," or else "Caruso w[ould] be considered
constructively discharged." Caruso's letter attached a second
MCAD complaint which added an allegation that, on the basis of
Delta's discrimination and failure to provide reasonable
accommodations, Caruso had been constructively discharged.
On July 26, Delta requested an extension of Caruso's
forty-eight-hour deadline for Delta to respond to her demand for
a revision of her accommodations plan. Caruso declined.
July 31, 2019, Caruso emailed Roosevelt to ask where she should
send her ID and equipment "since [she] resigned as of July of [sic]
26th." Roosevelt responded that "this [was] the first [she was]
hearing that [Caruso] had resigned."
II. District Court Proceedings
On December 30, 2019, Caruso filed a nine-count
complaint in Massachusetts state court alleging Delta committed
multiple violations of federal law under Title VII (Counts II and
VIII) and the ADA (Counts IV and IX) and of Massachusetts General
Laws chapter 151B (Counts I, III, V, VI, and VII). Delta removed
the lawsuit to federal court on January 29, 2020.
After discovery by both sides over eighteen months,
Delta moved for summary judgment on all claims on August 3, 2021.
- 23 - The district court granted Delta's motion on March 9, 2022.
Caruso, 2022 WL 715709, at *10.
Caruso timely appealed.
III. Analysis
We review an award of summary judgment de novo and may
affirm "on any ground supported by the record." Burt v. Bd. of
Tr. of Univ. of R.I., 84 F.4th 42, 54 (1st Cir. 2023). "Summary
judgment is appropriate when the moving party . . . has shown that
there is no genuine issue as to any material fact and that it is
entitled to judgment as a matter of law." Id.
Caruso argues she has demonstrated genuine issues of
material fact as to three categories of claims: sex discrimination,
disability discrimination, and retaliation, each in violation of
both federal and state law. We examine each category in turn.
A.
We begin with Caruso's sex discrimination claims under
both Title VII and Massachusetts General Laws chapter 151B. We
analyze each statute separately.
a. Title VII
To defeat Delta's motion for summary judgment on her
Title VII claim, Caruso:
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
- 24 - 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.
Forsythe, 27 F.4th at 72 (alteration in original) (quoting Ponte
v. Steelcase Inc., 741 F.3d 310, 320 (1st Cir. 2014)). Caruso
argues that the district court erred in holding she failed to carry
her burden as to (6), that is, a basis for employer liability. We
agree with the district court.6
"The Supreme Court has divided the universe of employer
liability [under Title VII] along a line that separates supervisors
from non-supervisors." Noviello, 398 F.3d at 94. The district
court concluded "Caruso has not presented facts sufficient to
permit a finding that Lucas was her supervisor," Caruso, 2022 WL
715709, at *4, and Caruso does not argue this was error.
As the district court correctly concluded, "Delta can be
liable for Lucas' alleged misconduct only if the purported
harassment is causally connected to [Delta]'s negligence." Id. at
*5. As Noviello held, "[w]hen coworkers, rather than supervisors,
are responsible for . . . a hostile work environment . . . an
6Because Caruso's Title VII claim depends on establishing that Delta was liable, no issue is presented as to whether Caruso was in fact subjected to unwelcome sexual advances.
- 25 - employer can only be liable if the harassment is causally connected
to some negligence on the employer's part." 398 F.3d at 95. The
negligence analysis requires the court to review the employer's
actions for reasonableness, not conduct an independent review of
the underlying allegations. See Forsythe, 27 F.4th at 74 (asking
whether employer conducted adequate investigation or "cho[se] to
do nothing more than ask the accused about those allegations and
then credit self-serving denials"; and noting that "[n]or, on this
record, do we see how a reasonable juror could find that [the
investigator's] credibility assessment of [the alleged harasser]
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.'").
To succeed here Caruso must show a genuine issue of material fact
both as to (1) a causal connection between Delta's action and the
harassment she allegedly experienced and (2) that those actions by
Delta amounted to negligence. We hold she has failed to carry her
burden on both points.
First, Caruso cannot, as she must under the caselaw and
the text of Title VII, show a genuine issue of material fact as to
any causal connection between Delta's actions and the harassment
she alleges she experienced.7 Our cases make clear that such a
7Even if there were disputes of material fact as to the nature of the sexual encounter between Lucas and Caruso and any
- 26 - causal connection is a necessary prerequisite to employer
liability. See, e.g., Noviello, 398 F.3d at 95 (requiring "that
the employer knew or should have known about the harassment, yet
failed to take prompt action to stop it"); Forsythe, 27 F.4th at
73 (same); Crowley v. L.L. Bean, Inc., 303 F.3d 387, 403 (1st Cir.
2002) (same).
More recently this causation requirement was affirmed by
the Supreme Court. In Muldrow v. City of St. Louis, the Supreme
Court emphasized that the text of Title VII "requires that the
employer have acted for discriminatory reasons," 144 S. Ct. 967,
976 (2024), in ways that create "'differences in treatment that
injure' employees . . . 'with respect to' employment 'terms [or]
conditions,'" id. at 974 (second alteration in original) (first
quoting Bostock v. Clayton County, 590 U.S. 644, 681 (2020); and
then quoting 42 U.S.C. § 2000e-2(a)1)). Where there is no causal
connection between an employer's actions and a co-worker's
creation of a hostile work environment, it cannot be said that the
"employer ha[s] acted for discriminatory reasons." Id. at 976
(emphasis added). Indeed, in Burlington Industries, Inc. v.
Ellerth, 524 U.S. 742 (1998), the Court held that employer
consent, that does not go to the issue in this case, which is of Delta's liability and not Lucas's liability. The record does not reveal whether Caruso ever brought a separate action against Lucas; he is not a defendant in this case. Nothing in this opinion should be taken as approval of the conduct alleged.
- 27 - liability for hostile work environment claims must satisfy agency
principles of principal liability for agent actions, id. at 758.
Every co-worker harassment case that Caruso cites from
this circuit is inapposite; each involved co-worker harassment
that occurred or continued after the employer knew or should have
known it was occurring. See Noviello, 398 F.3d at 82-83;8 Forrest
v. Brinker Int'l Payroll Co., 511 F.3d 225, 227-28 (1st Cir. 2007).
This court's decision in Forsythe supports the result we reach.
Forsythe establishes that an employer cannot be held liable where
there is no causal relationship between its investigation and the
harassment. See 27 F.4th at 72-74.
Caruso does not argue, nor could the record support,
that Delta should have known before August 3, 2018, that Lucas
might sexually assault a flight attendant. Rather, Caruso argues
that there is a genuine issue of material fact as to whether Delta
"declined to conduct a thorough and good-faith investigation of
. . . Caruso's sexual harassment and/or failed to take prompt
action to stop and prevent further sexual harassment." Not so.
As Delta argues, the record makes clear, and Caruso does
not dispute, that Caruso was on leave from August 4, 2018, through
8 Noviello involved one claim based on a single incident of harassment, and the court declined to hold the employer liable for it, noting that "there is no evidence that [the plaintiff] was forced to work with [the alleged harasser] or was exposed to further harassment by him [after the initial harassment occurred]." 398 F.3d at 97.
- 28 - June 2, 2019, and, in the brief period of time she worked between
June 2 and July 26, 2019, she "never encountered Lucas, never
requested to either swap or be removed from a flight, never had a
scheduled flight with him, [and] did not require alternative
lodging or transportation [to avoid Lucas]."
On these facts there is no genuine dispute of material
fact that Caruso's allegations of a hostile work environment, which
arise out of an alleged sexual assault the night of August 3-4,
2018, are causally connected to any actions by Delta.9 See
Noviello¸ 398 F.3d at 97 (upholding summary judgment for employer
where "[t]he first that the city knew (or could have known) about
. . . assaultive demeanor was when it received the initial report
of the attack" and there was "no evidence that [plaintiff] was
forced to work with him or was exposed to further harassment by
him"). That suffices to warrant entry of summary judgment for
Second, and independently, Caruso cannot show a genuine
issue of material fact as to whether Delta was negligent in its
9 Caruso argues that "[a] jury is entitled to find that [her] medical leave was unlawfully prolonged by" Delta's failure to remedy "the hostile work environment." This record would not allow for such a finding. As we discuss, Delta and Caruso engaged in an interactive process to develop accommodations that would allow her to return to work. Caruso accepted those accommodations and voluntarily returned to work despite knowing that Delta had taken none of the actions she now argues were essential to remedying this allegedly hostile work environment.
- 29 - response to her allegations. Once Delta "knew or should have
known" that Caruso had alleged she had experienced sexual
harassment that "alter[ed] the conditions of [her] employment and
create[d] an abusive work environment," Delta did "take prompt
action to stop it" by "conduct[ing] a reasonable investigation
into the allegations." Forsythe¸ 27 F.4th at 72-73. Delta's duty
to investigate the issue did not arise until Delta know or should
have known that Caruso believed Lucas was her alleged assailant.
Caruso does not argue that Delta had a duty under Title VII to
investigate an alleged sexual assault during a layover in Dallas
if that sexual assault was committed by an individual who was not
a Delta employee.
Caruso's first report to Delta of a possible sexual
assault was on August 5, 2018, and Caruso did not then identify
anyone, much less a Delta coworker, as her alleged assailant.
Delta promptly investigated. Caruso's argument is wrong that Delta
should have known she believed Lucas had assaulted her simply
because "within [six] days of the incident, Delta knew" that Caruso
believed she had been sexually assaulted that evening and that
Lucas had been a member of the group that had gone out in Dallas,
had escorted her to her room, and had "hung out" in that room for
some amount of time. The record makes clear that Caruso herself
did not tell Delta until December 18, 2018, when she filed her
first MCAD complaint, that she believed Lucas was her alleged
- 30 - assailant. Neither Caruso's statements to Delta, nor her recorded
statement when she went to Beth Israel Deaconess Hospital on August
4 to complete a sexual assault kit, nor her statement to
Middleborough police on September 26 make any reference to anyone
as an alleged assailant, much less Lucas.
The earliest evidence in the record that Delta
reasonably had notice that its employee Lucas might be suspected
of having assaulted Caruso dates from October 3, 2019, when Det.
Anderson contacted Delta's Mack and Broach to discuss Caruso's
allegations and to request that Delta provide information about
Lucas. There is no genuine dispute that the earliest possible
date that Delta knew or should have known that Caruso believed
Lucas had been the person who assaulted her was October 3.
Only at the point of notice must an employer engage in
a "good faith effort to implement an effective remedial measure."
Crowley, 303 F.3d at 404. Where the employer investigates but
concludes it need go no further, that investigation must be
reasonable. Forsythe, 27 F.4th at 73. Summary judgment for the
employer is appropriate where there is no genuine dispute of
material fact that the employer's investigation "was [not] so
deficient that it would not permit [the employer] to rely on its
finding." Id.
On this record, there is no genuine dispute of material
fact that Delta's investigation "was [not] so deficient that it
- 31 - would not permit [Delta] to rely on its finding." Id. Delta had
already collected statements from every potential witness within
its control as of August 8, including flight attendants Brown,
Mercer, and Caruso, as well as Lucas and the Delta representative
who answered Caruso's midnight phone call to the OCC. Delta was
also aware of Caruso's erratic behavior at the hotel overnight and
failed alcohol test the following morning, for which Caruso had
never offered any explanation. As of October 3, Delta had been
reliably informed that the Dallas hotel had overwritten video
footage of the night in question by late August,10 and that neither
the police nor Delta could obtain the tapes. And the reason for
that was because Caruso had not filed a police report earlier
(despite strongly suggesting to Delta that she had already done
so).11 By early January 2019, Delta had learned that Dallas police
had concluded that there was "no evidence to support that an
10 The record does not support Caruso's argument that Delta employees were offered the opportunity to travel to the Dallas hotel to view the security footage at some unidentified point but negligently failed to do so. As such, Caruso has failed to carry her burden to "present sufficient affirmative evidence of [her] own to create material issues of fact." Bannon v. Godin, 99 F.4th 63, 83 (1st Cir. 2024). 11 Caruso argues that Delta was negligent for failing to request that the hotel preserve the footage and/or failing to coordinate with her to ensure a police report was filed. This argument ignores the fact, as we hold, that Delta was on notice no earlier than October 3 that Caruso believed her alleged assailant was a Delta employee. It also ignores Delta's objectively reasonable belief that she had filed such a report, as well as her later unsupported explanations for why she had not done so.
- 32 - offense occurred." Until that point, Delta had reason to think
that Lucas was cooperating with the police investigation, and Det.
Anderson did not notify Delta that Lucas was not cooperating until
early January 2019. Delta then interviewed Lucas, and there is no
indication in the record that Delta somehow shielded Lucas from
the police investigation. In this context, the police's conclusion
alone strongly supports Delta's "rel[iance] on its findings,"
Forsythe, 27 F.4th at 74, that were consistent with that police
investigation. Like Forsythe, "[t]his is not a case in which . . .
the investigation involved the employer choosing to do nothing
more than ask the accused about th[e] allegations and then credit
self-serving denials." Id.
Even after that police conclusion, Delta continued to
take action. Three Delta employees, including at least one
individual "responsible for taking disciplinary action against"
Lucas for any misconduct, interviewed Lucas on April 3, 2019.
These Delta employees concluded that Lucas's statements that his
sexual encounter with Caruso was consensual, in light of consistent
witness statements and other evidence, were credible.12 We do not
12Caruso argues that emails between Delta and counsel for the pilots' union demonstrate that Delta conducted this interview "not with an eye toward disciplining him or otherwise holding him accountable." These emails have nothing to do with Delta's investigatory posture during Lucas's April 2019 interview. The emails Caruso cites are from January 2020, nine months after Lucas was interviewed in April 2019, and refer to Delta's posture as to some meeting to come later in 2020. Indeed, they specifically
- 33 - "see how a reasonable juror could find that [Delta]'s credibility
assessment of [Lucas] was itself so lacking in support that the
company acted unreasonably." Id. Summary judgment for Delta was
appropriate.
b. Chapter 151B
We turn next to Caruso's Massachusetts state law sex
discrimination claim under chapter 151B, which we analyze
separately from Caruso's Title VII claim. The two standards, while
similar, are not identical. The Massachusetts Supreme Judicial
Court ("SJC") has held that employers are liable under chapter
151B for a hostile work environment created by a coworker rather
than a supervisor where "the employer is aware of sexual harassment
in the workplace . . . and fails to take adequate steps to remedy
the situation." College-Town, Div. of Interco, Inc. v. Mass.
Comm'n Against Discrimination, 508 N.E.2d 587, 591 (Mass. 1987).
Similarly to the Title VII analysis, courts focus on the
reasonableness of the employee's investigatory process. See id.
at 594 (holding that investigation was inadequate for reasons
including that the plaintiff was "never informed about the staff
meeting, while [the harasser] was present throughout," "[t]he
staff were never questioned individually," and the plaintiff "was
state that Bryan Dickerson, the individual with disciplinary powers who in fact attended Lucas's April 2019 interview, "will not be in the meeting" the emails attempt to arrange.
- 34 - never provided an opportunity to confront [the alleged harasser],
nor was she interviewed after [the alleged harasser] had been
approached."); Trinh v. Gentle Commc'ns., LLC, 881 N.E.2d 1177,
1185 (Mass. App. Ct. 2008) (asking, among other things, whether
interviewer asked relevant questions, whether the plaintiff was
kept informed and given opportunities to participate, and how
questioning proceeded).
The text of chapter 151B and state caselaw require that
there be (1) a causal relationship between the employer's response
to its notice of harassment and the employee's experience of it
and (2) that the employer's response be inadequate.13 See, e.g.,
College-Town, 508 N.E.2d at 591 (holding liability would require
employer to have failed to take adequate remedial steps once
aware). Caruso has failed to demonstrate a genuine issue of
material fact on both points.
Caruso's chapter 151B claim against Delta must fail
because there is no evidence in the record creating a genuine
dispute that Delta's response had any causal relationship to
Caruso's allegedly being sexually assaulted on the night of
August 3-4, the only alleged harassment in this case. See Trinh,
881 N.E.2d at 1184 ("An employer may be found directly liable for
13Because Caruso's chapter 151B claim depends on establishing that Delta was liable, no issue is presented as to whether Caruso was in fact subjected to unwelcome sexual advances.
- 35 - discrimination under [chapter 151B] if it is notified of sexual
harassment in its workplace and fails to take adequate remedial
action."); City of Springfield v. United Pub. Serv. Emps. Union,
47 N.E.3d 447, 453 (Mass. App. Ct. 2016) ("[Chapter 151B] requires
an employer to take some remedial action in cases of confirmed
sexual harassment." (emphasis added)). Summary judgment for Delta
on Caruso's chapter 151B sex discrimination claim was appropriate
on this basis alone.
Caruso's state law claim also independently fails for
her failure to demonstrate a genuine issue of material fact as to
whether Delta's response to her allegations of sexual harassment
was inadequate under Massachusetts state law. As discussed, on
this record there can be no genuine dispute that the earliest
possible date that Delta "[wa]s aware of sexual harassment in the
workplace," College-Town, 508 N.E.2d at 591, was October 3.
To determine whether Delta's actions after this date
were "adequate" under Massachusetts state law, the SJC has held
that we are "not to focus solely upon whether the remedial activity
ultimately succeeded, but instead should determine whether the
employer's total response was reasonable under the circumstances
as then existed." Mod. Cont'l/Obayashi v. Mass. Comm'n Against
Discrimination, 833 N.E.2d 1130, 1140 (Mass. 2005) (quoting Berry
v. Delta Airlines, Inc., 260 F.3d 803, 811 (7th Cir. 2001)). The
SJC has held that employer liability can be inappropriate even
- 36 - where harassment in the workplace continues after the employer's
response. Id. ("[I]t is not always possible for an employer to
completely eliminate offensive behavior." (quoting Turnbull v.
Topeka State Hosp., 255 F.3d 1238, 1245 (10th Cir. 2001))). This
is so because "the effectiveness inquiry looks not to whether
offensive behavior actually ceased but to whether the 'remedial
and preventative action was reasonably calculated to end the
harassment.'" Id. (emphasis added) (quoting Turnbull, 255 F.3d at
1245).
Where the employer determines based on a reasonable
investigation under the circumstances that it cannot find
sufficient evidence to support the employee's allegations,
employer liability is inappropriate. Id. at 1143. "Thus, a
plaintiff does not establish an employer's liability merely by
showing that the employer 'could have done more.'" Id. at 1140
(quoting Berry, 260 F.3d at 813). "Nor is an employer required to
take what would, with hindsight, be considered better or more
effective measures." Id. Instead, "the plaintiff must show 'that
the steps that [the employer] actually took were not
reasonabl[e],'" id. (first alteration in original) (quoting Berry,
260 F.3d at 813), and "the mere fact that the victim is not
satisfied with the employer's response does not suffice to render
that response unreasonable," id. at 1141.
- 37 - Delta's post-notice investigation "was reasonable under
the circumstances as [they] existed" after October 3. Id. at 1140
(quoting Berry, 260 F.3d at 811). In Modern Continental, the SJC
reversed the MCAD's conclusion that Modern Continental's
investigation into allegations of sexual harassment on a
construction site was unreasonable. Id. at 1142-43. The SJC held,
contrary to the MCAD's conclusion, that Modern Continental had
acted reasonably "as a matter of law" in investigating the identity
of the alleged harasser[s] where, as here, the victim "herself
could not make any identification of the perpetrators . . . from
her recollection of the incident," and the employer nevertheless
"made efforts to uncover the identity of the various perpetrators"
but was unable to do so. Id. at 1141, 1142. This was particularly
so given that the employer sought the help of a third party in its
investigation but was rebuffed. Id. at 1142. Here, like in Modern
Continental, Delta sought assistance from a third party, the Dallas
hotel, who declined to assist Delta unless Caruso filed a police
report. Caruso failed to do so, despite several opportunities and
strongly suggesting to Delta that she already had.
Indeed, the employer in Modern Continental conducted an
investigation that was reasonable as a matter of law despite
failing to identify and speak with additional "employees who were
in the vicinity" at the time of the alleged assault. Id. at 1143.
Here, in contrast, it is undisputed that Delta spoke with every
- 38 - individual who conceivably had information about the events of
August 3-4, 2018. And although, as discussed, instances of
harassment post-notice are not necessarily sufficient to support
employer liability, the SJC in Modern Continental cited as evidence
in support of its holding denying employer liability the fact that
"there was no form of sexual harassment perpetrated []after" the
investigation. Id. The same is true here.
Like the employer in Trinh and unlike the employer in
College Town, Delta investigators "asked their interview subjects
relevant questions about the behavior of all involved regarding
the plaintiff's allegations," and "questioned [employees]
individually, thereby allowing them to speak more freely." Trinh,
881 N.E.2d at 1185; see also College Town, 508 N.E.2d at 594
(upholding MCAD finding of inadequate investigation where, inter
alia, "staff were never questioned individually").14
The reasonableness of Delta's investigation is
established by the independent conclusion reached by the Dallas
police that there was "no evidence to support that an offense
occurred." The record does not support a conclusion that Delta
14The SJC in College Town also found the employer's investigation inadequate in part because the victim "was never provided an opportunity to confront [her alleged harasser] nor was she interviewed after [other employees] had been approached." 508 N.E.2d at 594. Caruso does not argue that Delta's investigation was inadequate for failing to take any such steps, nor does anything in the record establish whether she desired or would have participated in any such investigative actions if offered.
- 39 - shielded Lucas from the police investigation, and Delta was not
informed that Lucas was "not cooperat[ing]" with the investigation
until early January 2019. Delta continued its investigation after
the police investigation closed and concluded, after interviewing
Lucas on April 3, 2019, that his version of events was credible.
The record here does not compel the conclusion that Delta had to
accept Caruso's version of the events of August 3-4, 2018. This
case presents, at most, "a difficult personnel matter on a
contested complaint" on which the employer declined to impose
discipline, a circumstance in which Massachusetts courts decline
to impose employer liability. Trinh, 881 N.E.2d at 1185 (upholding
on that basis judgment for defendant employer notwithstanding jury
verdict for plaintiff).
There is no genuine dispute of material fact on this
record that Delta's investigation and conclusions "w[ere]
[un]reasonable under the circumstances as then existed." Mod.
Cont'l, 833 N.E.2d at 1140 (quoting Berry, 260 F.3d at 811).
Summary judgment for Delta on Caruso's chapter 151B sex
discrimination claims was also appropriate on this independent
ground.
B.
We turn next to Caruso's claims under the ADA and chapter
151B for disability discrimination. "We 'analyze claims under the
ADA and under [chapter 151B] using the same framework.' Thus,
- 40 - '[a]lthough we write in terms of the ADA, our comments apply with
equal force to [Caruso]'s claim under its state-law counterpart.'"
Sarkisian¸ 85 F.4th at 675 (citations omitted) (second alteration
in original) (first quoting Jones v. Nationwide Life Ins. Co., 696
F.3d 78, 86 (1st Cir. 2012); and then quoting Gillen v. Fallon
Ambulance Serv., Inc., 283 F.3d 11, 20 n.5 (1st Cir. 2002)).
An employee's request for accommodation of a covered
disability triggers a duty that both employer and employee engage
in an interactive process in good faith to develop reasonable
accommodations. See, e.g., Ortiz-Martínez v. Fresenius Health
Partners, PR, LLC, 853 F.3d 599, 605 (1st Cir. 2017). Where the
employee does not cooperate in that process in good faith, "the
employer cannot be held liable . . . for a failure to provide
reasonable accommodations." Id. (quoting Enica v. Principi, 544
F.3d 328, 339 (1st Cir. 2008)).
Caruso declined to cooperate in an interactive process
to develop reasonable accommodations in response to her
July 24, 2019, demand that Delta reconsider her accommodations and
so cannot hold Delta liable for an alleged failure to provide
accommodations. The parties engaged in an interactive process to
develop accommodations in May 2019, developing a set of
accommodations Caruso accepted and under which she returned to
work. Then on July 24, Caruso demanded that Delta capitulate to
all her originally requested accommodations within forty-eight
- 41 - hours or she would consider herself constructively discharged as
of July 26.
This demand triggered Caruso's and Delta's mutual
obligation to once again engage in an interactive process in good
faith. By declining Delta's request for discussion and an
extension of Caruso's forty-eight-hour deadline, Caruso failed to
do so. Indeed, the record shows that by July 22, two days before
she sent this demand letter through counsel, Caruso had obtained
an offer of employment elsewhere and recorded in that application
that July 26 would be her last day as a Delta employee. Summary
judgment on her disability discrimination claims under the ADA and
chapter 151B was appropriate.
C.
Caruso's final claim is for retaliation in violation of
federal and state law. Under both federal and state law Caruso
must "show that (1) she undertook protected conduct; (2) she
suffered an adverse employment action[;] and (3) the two were
causally linked." Cherkaoui v. City of Quincy, 877 F.3d 14, 28
(1st Cir. 2017) (quoting Noviello, 398 F.3d at 88).
Caruso argues that she suffered two adverse actions:
First, that Delta "dragged out the disability accommodations
process, forcing [her] to remain on medical leave for four months."
Caruso did not raise this argument to the district court and thus
may not raise it now on appeal. See Vázquez-Rivera v. Figueroa,
- 42 - 759 F.3d 44, 49 (1st Cir. 2014) (holding argument made for first
time on appeal waived).
Second, Caruso argues that "Delta gave her a verbal
warning about her efforts to locate . . . Lucas for the purpose of
service of legal process and removed her from a flight, causing
[her] to lose income." Caruso failed to develop this argument in
her opening brief and so it is waived. See United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues adverted to in
a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived.").
IV. Conclusion
For the foregoing reasons we affirm the district court's
entry of summary judgment for Delta on all counts.
-Dissenting Opinion Follows-
- 43 - THOMPSON, Circuit Judge, dissenting in part.
Opening
The majority is flat wrong to say that Caruso raises not
even one material fact in reasonable dispute under governing law
on whether Delta adequately investigated her sexual-assault charge
against Lucas. Which is why I'd vacate the summary-judgment grant
to Delta on Caruso's Title VII and chapter 151B claims.
Misreading the Facts
Caruso and Delta engage in a factual scrum. And the
majority joins Delta's side. But because summary judgment isn't
a time for factfinding by judges (district or circuit) — that's
what trials are for — we must accept (for present purposes only)
Caruso's properly documented account (without vouching for its
accuracy), resolving evidentiary conflicts, credibility calls, and
competing inferences in her favor (even though a jury might later
find Delta's story more believable). See, e.g., Tolan v. Cotton,
572 U.S. 650, 659-60 (2014) (per curiam); Marcano-Martínez v.
Cooperativa de Seguros Múltiples de P.R., 991 F.3d 336, 338 (1st
Cir. 2021); Kuperman v. Wrenn, 645 F.3d 69, 73 (1st Cir. 2011);
Morelli v. Webster, 552 F.3d 12, 18-19 (1st Cir. 2009). See
generally Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52
(1986) (stating that summary judgment is proper only if the
evidence "is so one-sided that one party must prevail as a matter
of law" (emphases added)). Yet in a script-flipping move, the
- 44 - majority relies on Delta's version rather than hers. To see the
point, consider these examples — separated into numbered sections
and discussed (for the most part) in the order in which they appear
in the lead opinion.
1. The majority says that "[t]he evidence as to Caruso's
call, her text messages, and the hotel's report" (all of which
occurred in August 2018) "does not conflict with Lucas's timeline
of the night."
What the majority subtly implies is that these pieces of
evidence corroborate Lucas's story. Hardly.
Lucas claims "that his sexual encounter with Caruso was
consensual" (a quote lifted from the majority opinion), offered as
push back against Caruso's claim that she was too impaired to
consent. And viewed from her perspective, the trio of evidence
the majority highlights — her drunk call to Delta, her drunk texts
to flight attendant Brown, and her drunk hotel run in nothing but
her underwear (none of which she remembers doing) — assists
Caruso's claim because it undercuts Delta's investigative
conclusion that the sexual activity was all right consent-wise.
Perhaps if one squints hard enough one might be able to
infer consent from her asking for Lucas by name during the Delta
call. But even that doesn't rebut Caruso's point about being too
impaired. Not only can't we draw adverse inferences against her.
But as the majority notes — yet (somehow) doesn't consider helpful
- 45 - to her case — she (per Delta documents) spoke to the Delta operator
"with slurred speech," rambling "repetitive[ly]" and
"incoherent[ly]." And Delta was so worried that she might still
be too impaired to do her job hours later that it initiated its
alcohol-screening protocols.
A persistent theme in the majority opinion (here and
elsewhere) is that Lucas told a "consistent" story — from his
August 2018 statement, through his April 2019 interview, and up to
his May 2021 deposition. If only. See generally Tarrify Props.,
LLC v. Cuyahoga Cnty., 37 F.4th 1101, 1110 (6th Cir. 2022)
(recognizing that "[r]epetition of the key theme . . . does not
make it so").
Take Lucas's August 2018 statement. Lucas reported that
he and the "three flight . . . attendants" went to "dinner"; that
he and Caruso "walked" flight attendant Brown "to her room and
then decided to hang out and talk for a while"; and that he "later
went to [his] room and had no further interaction with any of the
flight attendants that evening." Lucas didn't mention going to
bars or to Caruso's room after walking Brown to hers (he never
says where he and Caruso "h[u]ng out and talk[ed] for a while").
And he didn't say a peep there about his sexual activities with
Caruso.
Next consider Lucas's April 2019 interview. Lucas
revealed for the first time there that he and the flight attendants
- 46 - went to "bars" (plural); that he bought them "drinks" (though he
couldn't remember how many); that Caruso "was fine" when the group
returned to the hotel (she wasn't drunk); that to his knowledge
she didn't have anything to drink when the group got back to the
hotel; that he "[h]ung out" with Caruso "in her room"; that he and
Caruso consensually "kissed and touched" each other; and that when
he returned to her room after a getting a condom from his (which
took him "15-20 minutes") she "was too intoxicated" and so he
"[h]elped her into bed" and left. Lucas copped to all this only
after Delta told him that the interview was "not a disciplinary
hearing" and that Delta was "operating under the premise that FO
Lucas has told and will continue to tell the truth" (emphases
added). The reader can be forgiven for not knowing Delta's truth-
telling presumption until now because the majority doesn't mention
it, let alone say why that presumption doesn't affect its Delta-
reasonably-investigated conclusion.
Finally ponder Lucas's May 2021 deposition. Lucas
admitted for the first time there that he "follow[ed]" Caruso into
her room, undressed her, performed oral sex on her, penetrated her
vagina and anus with his fingers, and put his penis "where her
face was"; that Caruso was "under the influence of alcohol" between
9 p.m. and midnight (a period that covered his sexual encounter
with her); and that an intoxicated person is "incapable of giving
consent." Taking the facts and all justifiable inferences arising
- 47 - from them in the light most sympathetic to Caruso, a rational jury
could conclude that a person "under the influence of alcohol"
during sexual activity and "intoxicated" within "15-20 minutes"
after that activity ended didn't have the ability to consent during
the activity.
Given how significant Lucas's inconsistencies are, the
majority can't handwave them away by saying that some of his
descriptions simply provided "less detail" than others.
2. In the majority's recounting, "Mercer's and Lucas's
statements, like Caruso's initial statement, focused on the
group's activities at the various Dallas bars they had visited."
Mercer's and Caruso's statements mentioned "drinks."
Lucas's didn't (as I just noted) — his only mentioned "dinner."
3. The majority writes that "Caruso's physical exam was
unremarkable except for a bruise on her right hip, pain to her
chin area, and petechiae — small red spots — around her eyes,"
noting too that "[d]espite options to check 'no' on the exam report
for whether the 'assailant(s) attempt[ed] to strangle patient,'
the examiner checked 'unsure' and wrote on the blank line following
'[i]f yes, describe,' that 'patient had petechiae around eyes.'"
The phrase "unremarkable except for" (among other
things) "petechiae" is like the proverbial "other than that, Mrs.
Lincoln, how was the play?" That is because petechiae can result
from strangulation — something Caruso's nurse examiner couldn't
- 48 - rule out. The majority mentions this and other like-evidence in
its fact section — i.e., Caruso's telling Delta that she had
petechiae in her "eyes that was indicative of attempted
strangulation" — but not in its analysis section. And the majority
never explains why we can ignore that evidence and still stamp
Delta's investigation reasonable.
4. The majority notes that "Caruso['s]" August 5, 2018
email to Delta's Amy Broach "did not identify Lucas or anyone else
as the individual she believed had 'potentially' drugged and
assaulted her at this time."
That's true but is only half the story. Thanks to flight
attendant Mercer's statement (a statement the majority also quotes
from), Delta knew by August 6 that Lucas (whom Mercer referred to
as first officer "James") had partied with the flight attendants
and then had taken Caruso to her hotel room. Broach (as the
majority notes) also emailed Delta officials on August 8 that
flight attendant Brown said "yes F/O Lucas escorted them to their
rooms," going "first" to Brown's and then to Caruso's. Anyway,
the majority never runs these facts through its reasonable-
investigation analysis.
5. "Caruso," the majority adds, "did not file a police
report with either the Dallas or Massachusetts authorities" two
days after her claimed assault, "nor did she tell Delta she had
not done so."
- 49 - One could infer that the majority believes that Caruso's
not immediately filing a police report is evidence that she hadn't
been sexually assaulted at all. But that victim-shaming intimation
is indefensible given that we must view the facts and draw
reasonable inferences in the light most generous to Caruso. See,
e.g., Marcano-Martínez, 991 F.3d at 338; Kuperman, 645 F.3d at 73;
Morelli, 552 F.3d at 18-19. Common sense and experience teach
that lots of survivors hesitate to report sexual assaults for many
legitimate reasons. And on that point, Caruso's nurse examiner
wrote — where the form asked about "the patient's general physical
appearance and demeanor" — that Caruso was "teary, quiet"; had a
"friend at bedside to hold her hand [and] support her"; "took a
lot of convincing to stay [and] do [rape] kit"; and was "self-
blaming," "then angry [and] scared" (emphases added). If what the
majority implies (without citing any authority) is that
responsible jurors could draw an adverse credibility inference
from Caruso's report-filing delay, I need only remind that we must
resolve "reasonable doubts and issues of credibility" in her
"favor" — not Delta's. See Marcano-Martínez, 991 F.3d at 338
(quoting Hernandez-Loring v. Universidad Metropolitana, 233 F.3d
49, 51 (1st Cir. 2000)).
6. A subheading in the majority opinion reads matter-
of-factly, "Delta" in August 2018 "incorporate[d] Caruso's
concerns about possible sexual assault into its investigation."
- 50 - Notably missing from the majority's recounting is this: Caruso's
supervisor (Broach), whose fingerprints are all over this case
(Delta tasked her with "gather[ing] the facts to determine what
happened"), agreed that she "had no role with respect to any
investigation into . . . Lucas regarding allegations of sexual
assault" — even though Caruso told Broach that she (Caruso) was
"terrifie[d] . . . to think that [she] was potentially drugged and
assaulted and ha[d] no memory of it." Also notably missing is
this: When Broach asked Lucas for his statement (which he
initially refused to give), she (per a Delta employee in the know)
made the "request[]" because Caruso "failed a breathalyzer when
reporting for duty" on August 4 — not because of any sexual-assault
allegations. And notably missing is this too: Lucas answered
"no" when asked in his 2021 deposition whether (to his knowledge)
he had "ever been the subject of an investigation" during his time
at Delta (emphases added). The majority doesn't say why these
facts have no role in its reasonable-investigation inquiry.
7. "Caruso," according to the majority, did not
"disclose[] her own phone call to Delta OCC to the police."
The majority is talking about the Middleborough police
report narrative, one written by the interviewing officer (it's
not a self-authored victim statement). And, yes, that narrative
doesn't include her disclosing the call (she had no independent
memory of making the call). But maybe she did disclose it and the
- 51 - officer failed to include it (absence of evidence isn't evidence
of absence (as the saying goes)). To the extent the majority
(again) looks to damage Caruso's credibility with this did-not-
disclose comment, I (yet again) fall back on the baseline rule
that we must (not may, but must) resolve "reasonable doubts and
issues of credibility" in her "favor" — not Delta's. See id.
(quoting Hernandez-Loring, 233 F.3d at 51).
8. "Delta cooperated with Det. Anderson's
investigation," or so the majority insists.
Looking for support, the majority reports that in
October 2018 (a) Delta sent Anderson Lucas's August 2018 statement
and helped him contact a Delta pilot who then contacted Lucas, and
(b) Anderson told Delta that Lucas was "cooperating." But (a very
big "but") Anderson bluntly told Delta in January 2019 (when the
police stopped investigating) that "Lucas did not cooperate with
the investigation" (emphasis added) — a fact the majority mentions
in the fact section but ignores in the analysis section.
Given Anderson's Lucas-didn't-cooperate finding, the
majority's later claim that the police's ending their inquiry
"alone strongly supports" the reasonableness of Delta's
investigation is jarringly improper. Delta (as explained before)
responded to that Lucas-didn't-cooperate appraisal by still
presuming him to be a reliable truth-teller when its functionaries
questioned him in April 2019 — a fact (to repeat) the majority
- 52 - pays no mind to. And approaching the record from the required
Caruso-friendly vantage, a sensible jury could conclude that the
police's actions undermine rather than support (to say nothing of
"strongly support[]") Delta's Lucas-is-credible position.
9. To keep quoting the majority, "[t]he record makes
clear that Caruso herself did not tell Delta until December 18,
2018, when she filed her first MCAD complaint, that she believed
Lucas was her alleged assailant."
That's correct but is irrelevant. The majority itself
acknowledges (in the very next paragraph) that Dallas police
"contacted Delta's [Lance] Mack [(of Delta corporate security)]
and [Amy] Broach [(Caruso's then-Delta supervisor)]" on October 3,
2018 "to discuss Caruso's allegations and to request that Delta
provide information about Lucas." And about a week later Dallas
police (as said above) informed Delta that Lucas was a "suspect"
(emphasis added). If the majority is implying (sans case cites)
that a levelheaded jury could make an adverse credibility inference
based on when Caruso ID'd Lucas, I need only resay (kind of cut-
and-paste style) that we must settle "reasonable doubts and issues
of credibility" in Caruso's "favor" — not Delta's. See id.
10. In the majority's words, "the reason" neither the
police nor Delta could get the hotel tapes "was because Caruso had
not filed a police report earlier (despite strongly suggesting to
- 53 - Delta that she had already done so)."
Construing all facts and inferences in the light most
sympathetic to Caruso instead of Delta, one sees that the company
failed to follow its own policy by not asking the hotel to preserve
key-card data and video recordings after "an allegation of a crime"
— i.e., an "allegation[] of someone being intoxicated, drugged and
possibly assaulted." And Delta still had the chance to review
(though not keep) the hotel's videos, but did not — even though
Delta conceded that footage "from the night of the alleged assault
[would] be important to review." The majority never mentions any
of this and so never says how its reasonable-investigation idea
can still stand given these Delta missteps.
11. "Delta," the majority asserts, "interviewed Lucas"
in April 2019, "and there is no indication in the record that Delta
somehow shielded Lucas from the police investigation."
My point isn't that Delta obstructed the police
investigation. It's that viewing the evidence and inferences in
the light most pleasing to Caruso, a sensible jury could find
Delta's Lucas-is-credible stance so flawed that the company acted
unreasonably. And if the majority is suggesting that Delta had to
interfere with the police's investigation to be on the liability
hook here, it offers no legal authority for that proposition (and
I know of none).
12. The majority contends that "[e]ven after" the police
- 54 - closed the case "Delta continued to take action."
One of Delta's "action[s]" was to (finally!) interview
Lucas in April 2019 (eight months after the Dallas events), but
only after telling him (as noted above) that "[t]his [was] not a
disciplinary interview" and that Delta "operat[ed] under the
premise that [he] has told and will continue to tell the truth"
(emphasis added). And Delta viewed him as a truth-teller — which
the majority fails to mention, let alone grapple with — even though
he didn't cooperate with the police (that's law enforcement's
ultimate conclusion) and pushed an ever-shifting account of what
had happened. Only by averting its eyes from these facts can the
majority say that it doesn't "see how a reasonable juror could
find that [Delta]'s credibility assessment of [Lucas] was itself
so lacking in support that the company acted unreasonably"
(quotation marks omitted but bracketed words added by the
majority).
13. The majority declares that "disputes of material
fact as to the nature of the sexual encounter between Lucas and
Caruso and any consent" don't matter because (the theory continues)
they don't "go to the issue in this case, which is . . . Delta's
liability and not Lucas's."
But these "disputes" matter a great deal. When Delta
(at long last) interviewed Lucas in April 2019, it already had
plenty of info indicating that Caruso was too impaired to consent
- 55 - to sexual activity (info the majority relays in some in detail, by
the way). And a clearsighted jury could find that by buying
Lucas's claim of "consensual" sexual conduct, Delta's Lucas-is-
credible take was (as said before, and despite what the majority
says) so unsupported that the company acted unreasonably.
Misreading the Law
Not only do genuine fact disputes preclude summary
judgment for Delta. But the law doesn't compel summary judgment
for Delta either.
To give credit where credit is due, the majority is right
that in the Title VII and chapter 151B milieus, "courts focus on
the reasonableness" of the company's "investigatory process." But
I see no support for the majority's Kafkaesque suggestion that
because Caruso wasn't sexually assaulted a second time she can't
defeat summary judgment on her insufficient-investigation theory
against Delta.
Starting with Title VII, the majority talks a lot about
"causal connection," proclaiming (for example) that Caruso must
show a genuine dispute of material fact about whether "a causal
connection" exists "between Delta's action and the harassment she
alleges she experienced." The majority cites Noviello v. City of
Boston, 398 F.3d 76 (1st Cir. 2005), abrogation on other grounds
recognized by Stratton v. Bentley Univ., No. 22-1061, 2024 WL
3823034, at *10 (1st Cir. Aug. 15, 2024). And some of Noviello's
- 56 - language seems to offer some surface support for the majority's
apparent view that an employer's poor investigation must cause
further harassment to trigger liability. On that point, the
majority plays up how Noviello said that "[w]hen coworkers . . .
are responsible for . . . a hostile work environment . . . an
employer can only be liable if the harassment is causally connected
to some negligence on the employer's part." 398 F.3d at 95. The
majority also emphasizes how Noviello said that liability
typically turns on whether "the employer knew or should have known
about the harassment, yet failed to take prompt action to stop
it." Id.
A deeper dive, however, shows that Noviello said all
this in analyzing a retaliation claim. On the insufficient-
response claim, Noviello analyzed the employer's response after
the employee's complaint without requiring a second assault for
her to win. Noviello held that the employer reacted to the
plaintiff's assault charge "swift[ly], effective[ly], and non-
negligent[ly]," id. at 81 (emphasis added), and also concluded
that "a rational jury" could only find that the employer performed
"professional[ly]" and "appropriate[ly]" in addressing the assault
charge, id. at 97-98. But (as mentioned earlier) a sensible jury
could readily find that Delta acted in precisely the opposite way
here.
- 57 - Still pushing Noviello, the majority spotlights another
quote from that opinion (with the bracketed words added by the
majority) — "there is no evidence that [the plaintiff] was forced
to work with [the alleged harasser] or was exposed to further
harassment by him [after the initial harassment occurred]." Id.
at 97. Noviello said that in response to the plaintiff's claim
that the "seven days" that "elapsed between the time of the assault
and the commencement of disciplinary proceedings" was too long, to
which Noviello also said that "there is nothing to indicate that
the [employer] acted here in a dilatory manner." See id. But the
passage the majority trumpets is irrelevant because Delta never
disciplined Lucas, meaning that quote can't do the work the
majority asks of it.
A more on-point case is Forsythe v. Wayfair Inc., 27
F.4th 67 (1st Cir. 2022), which — regardless of what the majority
thinks — helps (not hurts) Caruso. Emily Forsythe told her
employer that a coworker had sexually harassed her. Forsythe, 27
F.4th at 70. The employer investigated. Id. The opinion gives
no hint that anyone harassed her after she reported what had
happened. See id. at 70-75. And in language useful to Caruso,
Forsythe noted that her claim "hinge[d] on whether [the company]
reasonably investigated the allegations" — i.e., her summary-
judgment challenge "turn[ed] on the strength of her contention
that a reasonable juror could find that the investigation . . .
- 58 - was so deficient that it would not permit" the company "to rely on
its finding" that the sexual harassment couldn't "be
substantiated." Id. at 73 (emphases added).15 So if — as the
majority strongly implies — a judge could jettison such a claim
for lack of re-harassment after the plaintiff reports the original
harassment, then Forsythe wouldn't have had to examine the
investigation's adequacy.
Invoking Forsythe, the majority writes (and this is a
quote quoted above) that it can't "see how a reasonable juror could
find that [Delta's] credibility assessment of [Lucas] was itself
majority). But I see reasons aplenty to question the legitimacy
of Delta's credibility take and thus the reasonableness of its
investigation. To pick just three (most of which should sound
familiar by now): Delta (to begin) had gobs of evidence that
Caruso was heavily (and I do mean heavily) intoxicated on the night
of August 3 — her drunk call to Delta, her drunk texts to Brown,
and her drunk dash through the hotel in her underwear are dead
giveaways. Caruso recalled none of this, from which a reasonable
Citing to page 73 of Forsythe, the majority supposes that 15
if "the employer investigates but concludes it need go no further, that investigation must be reasonable." But Forsythe doesn't say that any "investigation" will do. Forsythe instead requires that the company conduct an adequate investigation "to rely on its finding[s]." See id. at 73.
- 59 - jury could find she was blackout drunk. Also a dead giveaway is
her flunking a breathalyzer hours later with a BAC (short for blood
alcohol content) 4 times Delta's limit. A rational jury could
conclude that Delta should've looked at Lucas's claim — that Caruso
had "consented" to "kissing and touching" yet minutes later was
"too intoxicated" for sexual intercourse — with extreme skepticism
(if not a jaundiced eye). And (to continue) given Anderson's
Lucas-didn't-cooperate ultimate finding, a logical jury could also
conclude that Delta acted negligently by giving Lucas truth-teller
status. A reasonable jury (to wrap up) could further find that
the glaring inconsistencies in Lucas's story so undermined his
credibility as to also call into question the soundness of Delta's
actions.
The majority is also mistaken if it thinks that Muldrow
v. City of St. Louis, 601 U.S. 346 (2024), damages Caruso's case.
Muldrow held that an employee fighting a job transfer under Title
VII needn't show "that the harm incurred was 'significant'" or
"serious, or substantial, or any similar adjective suggesting that
the disadvantage to the employee must exceed a heightened bar,"
id. at 355 — she "need show only some injury respecting her
employment terms or conditions," id. at 359. Caruso's situation
isn't like Muldrow, seeing how hers involves an insufficient-
investigation claim and Muldrow's doesn't. If we can squeeze any
guidance out of Muldrow, it is that judges can't impose heightened-
- 60 - injury standards not found in statutory texts. See id. at 354-
59. Yet that is exactly what the majority does by requiring Caruso
to show — as part of her insufficient-investigation claim — that
a Delta employee re-harassed her after she put Delta on notice.
The majority does no better in arguing against liability
under chapter 151B — a statute requiring employers to do a
"thorough investigation" of an employee's sexual-harassment claim,
not one that's "incomplete, inadequate, insensitive to [her] and
deferential to [the accused]." See Coll.-Town, Div. of Interco,
Inc. v. Mass. Comm'n Against Discrimination, 508 N.E.2d 587, 590
(second quote), 594 (first quote) (Mass. 1987).
Relying on Mod. Cont'l/Obayashi v. Mass. Comm'n Against
Discrimination, 833 N.E.2d 1130, 1143 (Mass. 2005) ("Mod.
Cont'l"), the majority's core premise here is that when "the
employer determines based on a reasonable investigation under the
circumstances that it cannot find sufficient evidence to support
the employee's allegations, employer liability is inappropriate."
But the majority's conclusion that Caruso can't win because Delta
conducted a "'reasonable'" investigation "'under the circumstances
as [they] existed' after October 3" (quoting id. at 1140 (emphasis
added)) is — for the many reasons already recited — way off the
mark: I re-mention (as a paradigmatic example) that Delta
considered the harasser credible despite a bucket full of grounds
- 61 - not to, while Mod. Cont'l discloses no whisper that the employer
there did anything like that.16
Trinh v. Gentle Commc'ns, LLC, 881 N.E.2d 1177 (Mass.
App. Ct. 2008), offers no aid to the majority either.
Interestingly — and tellingly — the majority cites Trinh for the
idea that Massachusetts law "focus[es] on the reasonableness of
the [company's] investigatory process." Just so. And nothing in
Trinh remotely alludes to any requirement that Caruso had to be
re-harassed after she reported the harassment to win on her
insufficient-investigation theory. The majority also argues that
Delta's investigation was just like the one ruled reasonable in
Trinh. But night-and-day differences separate Caruso's case from
Trinh. Unlike here, Trinh's witnesses corroborated the alleged
harasser. See id. at 1185. Also unlike here, Trinh's alleged
harassee didn't participate in the company's investigation despite
being "given several opportunities" to do so. See id. And
(without going through everything again) unlike here, Trinh's at-
issue company didn't anoint the accused harasser a truth-teller
16 The majority makes much of Mod. Cont'l's saying that "'there
was no form of sexual harassment perpetrated []after' the investigation" (quoting id. at 1143, though with the majority inserting the empty brackets). But Mod. Cont'l addressed the "remedial steps" the employer took after a "prompt" investigation identified a harasser "within two days" of a harassing event, with the powers-that-be not finding the harasser's story credible despite all the evidence (properly viewed) showing that it wasn't. Id. at 1141-42. So (to reiterate) that case is worlds apart from Caruso's.
- 62 - despite chameleonic changes in his story and despite his ultimately
being labeled uncooperative by the police.
Ending
I'm not saying that Caruso should win on her Title VII
and chapter 151B claims. I'm just saying that — under the facts
(properly seen) and the law (correctly understood) — hers is a
story of an insufficient investigation that a reasonable jury could
believe. So she should get a chance to tell it at trial. And the
jurors can then do with it what they will.
The majority viewing this differently, I respectfully —
but emphatically — dissent from that part (and only that part) of
its decision.
- 63 -
Related
Cite This Page — Counsel Stack
113 F.4th 56, Counsel Stack Legal Research, https://law.counselstack.com/opinion/caruso-v-delta-air-lines-inc-ca1-2024.