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Fifth Circuit Holds That Employees Interviewed As Part Of A Sexual Harassment Investigation Have Greater Protection From Retaliation

June 7, 2016

Mark Oberti writes:

Recently, the U.S. Court of Appeals for the Fifth Circuit, which covers Texas, Mississippi, and Louisiana, affirmed that an employee interviewed as part of a company’s internal investigation into sex harassment complaints is protected from retaliation under Title VII. In EEOC v. Rite Way Service, Inc., No. 15-60380 (5th Cir. Apr. 8, 2016), an employee named Ms. Tennort reportedly “observed two interactions between [supervisor] Harris and another general cleaner, [Ms.] Quarles, that troubled her. The first involved Harris pretending to smack Quarles’s bottom and saying, ‘ooh wee.'” The second was when Harris said he “could tell what was in Quarles’s pants pocket and stated that ‘somebody must be looking real hard at [Quarles’s] behind,'” supposedly adding for emphasis that “I’m a man, I’m gonna look.”

In response to her employer’s request, Tennort submitted a written report about the second incident. That week, Harris was transferred away, but the school replaced Harris with his brother-in-law. After that, “[o]ver the next five weeks, she [Tennort] received two written warnings and up to two oral warnings for poor job performance Her alleged infractions included not properly cleaning areas assigned to her, tardiness, and insubordination. These warnings were the first that Tennort had received since beginning her employment with Rite Way in 2009.”

Ms. Tennort was fired for alleged “neglect of duty,” about a month after filing her witness statement. The EEOC sued Rite Way on her behalf, claiming that her termination was in retaliation for her report, and violated Title VII’s prohibition against retaliation.

The district court concluded as a matter of law that “that Tennort did not engage in protected conduct under Title VII’s anti-retaliation provision,” and granted summary judgment for the employer. On appeal, however, the Fifth Circuit reversed, and sent the case back to the district court for a jury trial.
Title VII’s opposition clause in section 704(a), 42 U.S.C. § 2000e-3(a), requires opposition of a practice made unlawful by Title VII (“he has opposed any practice made an unlawful employment practice by this subchapter”). Thus, courts have generally required that the employee had an objectively reasonable belief that the practice “opposed” was illegal. Courts have not generally considered, though, the situation where the party “opposing” the practice was a third-party witness to an event, responding passively to an employer’s request for information. That was the case here.

The Fifth Circuit concluded that the “reasonable belief” standard applies equally to persons cooperating in an investigation. The EEOC argued based on Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee, 555 U.S. 271 (2009), that it was enough that the employee “opposed” conduct “by responding to someone else’s question.” The Court rejected that argument, stating that “creating a lower threshold for reactive plaintiffs bringing retaliation claims would be at odds with Crawford’s reasoning that the language of the opposition clause does not permit courts to treat reactive opposition any differently than proactive opposition.”

Notwithstanding its refusal to budge from the “reasonable belief” standard, the Court still reversed summary judgment. Even if the one incident the claimant witnessed would not by itself constitute harassment as a legal matter, the circumstances might tilt into gray-zone “reasonable belief” – at least enough to allow a jury to decide it. “She heard Harris tell Quarles that he was looking at and admiring her rear end … [T]his was conduct directed at a specific fellow employee. That it came from a person in a supervisory position is another important consideration.” The earlier near-slap is also “relevant to how she assessed the seriousness of Harris’s later comment that he was ‘gonna look’ at Quarles’s rear end because he was a man.”

Finally, Tennort’s belief was informed by a pamphlet furnished by the employer that “sexual harassment” – including “unwelcomed sexual . . . comments” and “other verbal or physical conduct of a sexual nature” – should be reported. In sum, “If Tennort had not yet reached a view that Harris violated federal employment law when he made offensive comments and gestures about Quarles’s rear end, the circumstances surrounding her questioning may very well have caused her to do so.” Thus, the Court found that Tennort had a reasonable belief that what she reported was actually sexual harassment that violated Title VII, and so the district court’s summary judgment was reversed and the case sent back to the district court for a jury trial on the question of whether Tennort had been fired because of her report.

This decision was written by Judge Gregory Costa.

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