By Joy P. Waltemath, J.D. Although the EEOC lost its argument that an employee who “reactively” opposed discriminatory behavior did not have to show she reasonably believed it violated Title VII, the Fifth Circuit nonetheless found a jury question to overturn summary judgment concerning whether, when she responded as a witness to her employer’s investigation of allegedly harassing behavior, her belief that it was sexual harassment was, in that context, reasonable. The court considered the fact that although the comments were isolated, they were made by a supervisor; and that during the investigation, an HR investigator used “language strongly insinuating that Rite Way would rather [she] not corroborate [the] sexual harassment complaint and would subject her to reprisal if she did” (EEOC v. Rite Way Service, Inc., April 8, 2016, Costa, G.). The general cleaner for Rite Way, a janitorial services contractor for a school district, had been given a new supervisor when, within his first week, she saw him pretend to smack another female employee’s butt. That same week he commented about how tight that employee’s pants were and that he was a man and he was “gonna look,” which visibly upset the other employee, who internally complained and named the cleaner as a witness. During the HR department investigation, the witness said she was told that the complaining employee was “nothing but trouble,” and “you know what they do to people who do stuff like this.” She filed a report anyway. Rite Way subsequently replaced her supervisor with the supervisor’s brother-in-law. Over the next five weeks, the witness received two written warnings and up to two oral warnings for poor job performance (two written warnings were logged in her personnel file, though she alleged no one ever had spoken to her). She had never before been subject to any discipline, and she was ultimately fired for “neglect of duty” and “not following directions.” Opposition clause “reasonable belief” requirement. After the EEOC sued on the witness’ behalf for retaliation it lost on summary judgment. The district court found that she did not engage in protected conduct. Specifically, it found that in responding as a third-party witness to a company investigation, she needed to have a “reasonable belief” that a Title VII violation occurred, and she could not have reasonably believed that the supervisor’s conduct violated Title VII. Under the opposition clause, every circuit has adopted an objective “reasonable belief” requirement for plaintiffs, said the court; most also include a subjective “good faith” requirement, it continued, pointing out that the Supreme Court has not taken a position on the reasonable belief standard. Here, the EEOC argued the reasonable belief requirement should not apply because the witness did not affirmatively complain but merely spoke up in response to questioning. But, reasoned the Fifth Circuit, creating a lower threshold for “reactive” plaintiffs bringing retaliation claims would be at odds with Supreme Court precedent that the language of the opposition clause does not permit courts to treat reactive opposition any differently than proactive opposition. And all the policy arguments the EEOC advanced for treating reactive opposition more leniently could be made about proactive complainants as well. Plus the EEOC recognized that the opposed conduct must have something to do with Title VII in order to support a retaliation claim, but it had articulated no standard that would require some relationship between the opposition and a Title VII violation, except a showing that was somehow “less than” a reasonable belief that Title VII was violated. The Fifth Circuit accordingly was unmoved to apply a different standard. Was her belief reasonable? Even so, the appeals court reviewed the evidence de novo and considered whether the witness had a reasonable belief that Title VII was being violated. Although it was undisputed that the harassment the employee observed was not “severe or pervasive,” opposition clause claims grounded in isolated comments, like these, are not always doomed to summary judgment. Considering the context, the court noted she personally witnessed the conduct directed at a specific employee, who found it objectionable; it came from a supervisor; and it was made in a reactive setting. Setting. In that setting, the Fifth Circuit cited the following factors: As a part of rehiring process at the beginning of each school year that had just occurred, the witness received a pamphlet informing her that “sexual harassment”—including “unwelcomed sexual ... comments”—is a type of workplace “discrimination” that Rite Way does not tolerate. When she was asked about the incidents by an HR manager, that individual used “language strongly insinuating that Rite Way would rather [she] not corroborate [the] sexual harassment complaint and would subject her to reprisal if she did,” said the court. This was enough to find a fact issue concerning whether the witness could have reasonably believed that the conduct about which she responded violated Title VII. Pretext. Alternatively, Rite Way emphasized certain customer complaints about areas of the school for which the witness allegedly was responsible as evidence of a nonretaliatory justification for her termination. But the EEOC had competing evidence that would allow a jury to find that the customer complaints were a pretextual reason for firing her, including strong temporal proximity between her written report and her termination, and her unblemished disciplinary record until she made a report about her supervisor’s actions, after which she became “a problem employee.” Then there were “two cryptic statements from her supervisors from which a jury could infer retaliatory intent.” First, there was the previously cited HR manager who warned “you know what they do to people who do stuff like this.” Second, the firing supervisor—the allegedly harassing supervisor’s brother-in-law—told the witness on the first day she began working under him that Mississippi is an “at will” state and that she would be denied unemployment benefits when she was fired. This raised a jury issue on pretext, the court concluded, reversing and remanding.
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