Trending the Employee Way – The Fifth Circuit Reverses Another Employer Summary Judgment

Employees seeking protection under the employment laws, including claims of employment discrimination and employment retaliation, have started to see better days in federal court.  It’s been no secret that federal courts in Texas have not been friendly to employment plaintiffs, and nowhere was that more apparent than in the Fifth Circuit Court of Appeals in New Orleans. But that trend seems to be reversing itself, at least a little bit. In the past two years, the court of appeals has reversed a number of summary judgments granted to employers by the district courts and, in doing so, given the employee the benefit of the doubt that she or he previously was not afforded.

The most recent evidence of this reversal comes from the Fifth Circuit’s opinion in EEOC v. Rite Way Service, Inc. There, the plaintiff/employee, Mekeva Tennort, was asked questions about possible sexual harassment by supervisor Willie Harris. The claim was initiated by another employee, Linda Quarles, who complained that immediately upon becoming their supervisor, Harris began sexually harassing her, including staring at Quarles’ behind and pretending to smack Quarles’s bottom and saying “ooh wee.”

Although Rite Way started an investigation, Tennort claimed Rite Way attempted to discourage her from truthfully reporting what she witnessed.  Tennort refused and gave a statement supporting Quarles’ concern about staring at her behind. Two days later, Rite way transferred Harris to another school and installed a new supervisor over both Tennort and Quarles—Harris’ brother in law. Not surprising to anyone, Tennort’s new supervisor engaged in a concerted effort to get rid of Tennort, which he accomplished only five weeks after becoming her supervisor.

The Equal Employment Opportunity Commission filed suit on Tennort’s behalf alleging unlawful retaliation for Tennort giving the truthful statement concerning Harris’ misconduct. The district court granted Rite Way summary judgment (meaning the court dismissed the claim as having no merit) concluding that Tennort had not engaged in protected activity. The district court ruled that the conduct about which Quarles complained—and about which Tennort gave her statement—was not actionable sexual harassment, and thus Tennort did not have a good faith belief that the conduct complained of violated the law. Thus, she had not engaged in protected activity.

Title VII makes it unlawful for an employer to retaliate against an employee for opposing any practice made an unlawful employment practice by Title VII (referred to as the “opposition clause”) or for an employee making a charge, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing under Title VII (referred to as the “participation clause”). On appeal, the EEOC argued Tennort’s statement was protected activity under the opposition clause.

The court of appeals started by noting that opposition alone is not enough—the opposition must be opposition to “a practice made unlawful by Title VII.” As an example, the court noted that an employee “who believes she was fired for making statements about accounting fraud in response to an internal investigation” would not be able to bring a Title VII retaliation claim, as Title VII does not make accounting fraud unlawful (other statutes may and do, but that is another issue).

At the same time, an employee does not have to prove that her opposition (or participation) is to a practice that is an actual violation of Title VII. It is enough if the employee had a reasonable belief (that is, a belief that a reasonable person would have) that the practice could be a violation of Title VII. (This is called an objective standard, meaning we look at whether reasonable people would think the same way. This is opposed to a subjective standard, which means we look only at whether the person in question actually thinks that way.).

While the court of appeals concluded that the conduct Tennort reported in her written statement (Harris staring at Quarles behind and making a suggestive comment) would not, by itself, create an actionable hostile work environment, the court held the reasonable belief standard “recognizes there is some zone of conduct that falls short of an actual violation but could be reasonably perceived to violate Title VII.” Thus, the court asked, “Could an employee like Tennort, not instructed on Title VII law as a jury would be, reasonably believe that she was providing information about a Title VII violation?” Yes, it could. The Fifth Circuit reversed the summary judgment and sent the case back to the district court for trial.

This last part—giving the employee the benefit of the doubt—is the part that is starting to trend in an employee’s favor and away from the courts making these calls themselves (what we refer to as “a matter of law”). It is easy for an attorney, especially a federal judge, who is well versed in the law, to identify what is and what is not “actionable” sexual harassment.  But for employees not having the benefit of legal education and decades as a practicing lawyer and/or judge, it simply is not that easy.  That is why juries are properly asked to resolve these questions, rather than judges making these calls themselves. As the court of appeals concluded, “[T]he difficult task of resolving [a] conflict in substantial evidence falls to the jury.” And more and more frequently over the past two years, that is exactly what we are starting to see happen in the Fifth Circuit.

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