Labor & Employment Law Daily Conditioning employee’s bonus on dates with potential client could support quid pro quo claim, but not here
Thursday, May 24, 2018

Conditioning employee’s bonus on dates with potential client could support quid pro quo claim, but not here

By Lorene D. Park, J.D.

Affirming summary judgment against quid pro quo sexual harassment claims by an employee who alleged that she was denied a bonus after refusing a supervisor’s requests that she date a potential client, the Fifth Circuit explained that requesting sexual favors on behalf of a third party may support a quid pro quo claim—since the supervisor was still one making the overtures—but the employee failed to produce evidence that she was actually eligible for a bonus, much less that her supervisor made a recommendation one way or the other. Her constructive discharge claim also failed because she did not include in her EEOC charge any allegations related to that claim, so did not exhaust her administrative remedies on that claim (Davenport v. Edward D. Jones & Co., May 16 (unpublished) May 22 (published), Davis, W.).

Manager suggests employee date potential client. The employee was hired as a branch office administrator at an Edward Jones financial planning office and, according to her, the supervisor who hired her created a volatile work relationship. He allegedly insulted and shouted at her and used profanity to describe her personality and performance, though he still gave her a $400 bonus in March 2015 for “exceeding expectations.” Sometime the following September, his comments allegedly became sexual in nature and, upon learning that a wealthy potential client was interested in the employee, he suggested she “date” the potential client in exchange for “big bonuses.” She responded that she had a boyfriend and wasn’t interested. The supervisor repeated his offer, but the employee never dated the individual.

On October 1, 2015, the employee again was rated as exceeding expectations and got a 4% raise, but she received no bonus. Later that month the supervisor suggested to the employee, in front of the potential client she had just encouraged to switch to their office, that “maybe we can get some nudie pictures of you . . . that might entice him.” Though there were no nude pictures, the incident embarrassed the employee, who complained to the district manager. She was also granted her request for extended leave. She filed an EEOC charge in November and described the nude picture incident but did not mention the alleged bonus offers. She did not return, resigning instead after her request for transfer was denied. She promptly secured another job.

Lawsuit. The employee filed suit alleging quid pro quo sexual harassment under Title VII and false light invasion of privacy under state law. Dismissing her constructive discharge quid pro quo claim, the court found it unexhausted. Her bonus quid-pro-quo claim was dismissed because, according to the district court, the circuit did not recognize such claims based on a supervisor’s request that a subordinate date a third party in exchange for monetary bonuses. Alternatively, the court found she had not raised a genuine dispute on whether she suffered a tangible employment action as required to succeed on her quid pro quo Title VII claim.

Did not exhaust constructive discharge claim. Affirming, the Fifth Circuit first agreed with the lower court that the employee did not administratively exhaust her constructive discharge claim. Though she didn’t have to use the magic words “constructive discharge” in her EEOC charge, she did have to include allegations “like or related to” the claim and she didn’t do that here. Specifically, she failed to allege facts suggesting she endured severe or pervasive harassment that would have compelled a reasonable employee to quit. Her description of the nude picture incident, in which the supervisor inappropriately discussed a nude picture of her in front of a customer, was not enough and she suggested no link between that incident and her departure.

Sexual overtures for third party can support claim, but not here. Assuming without deciding that the employee adequately exhausted her administrative remedies on the bonus-based claim, it nonetheless failed on the merits. Before reaching this conclusion, however, the Fifth Circuit made it a point to state that requesting that a subordinate date a third party in exchange for a monetary bonus can support a quid pro quo claim. The district court was therefore wrong on that point. The appeals court explained that it was the harasser who was conditioning “big bonuses” on the employee’s submission to his request that she date a potential client. Thus, even if a third party was to be the beneficiary of the supervisor’s request, the supervisor was still the harasser.

Failed to show bonus denied because she refused to date client. That said, the employee’s quid pro quo claim based on a bonus still failed as a matter of law because she did not come forward with sufficient evidence that she was denied a bonus for refusing to date the client. All she knew was that she received a $400 bonus in March of 2015 after completing training and that she received an “exceeds expectations” rating on her first review. Based on that, she reasonably believed the supervisor could influence subsequent bonus, but she produced no evidence that she was actually eligible for, or scheduled to receive, a bonus in October 2015 simply because she received an “exceeds expectations” rating again. Nor did she produce evidence that the supervisor made any recommendation concerning a bonus at that time. Consequently, she produced no summary judgment evidence that the supervisor and the employer denied her a bonus because she refused to date the prospective client.

No invasion of privacy either. Also, affirming summary judgment against the false light invasion of privacy claim, the Fifth Circuit explained that while the employee said the supervisor’s nude picture comment embarrassed her, she conceded that it was merely an unsuccessful joke. Under the circumstances, the appeals court could not disagree with the lower court’s conclusion that the nude picture joke did not constitute an unreasonable invasion of the employee’s privacy.

Dissent. Judge Higginson dissented as to the quid pro quo sexual harassment claim based on the bonus. He pointed to evidence that the employee’s boss told her at least three times that she would receive “big bonuses” in exchange for dating a potential customer and, when she refused, she received no bonus. That was sufficient to raise a triable issue in Judge Higginson’s view.

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