By Marjorie Johnson, J.D.
A male employee who claimed he was fired for complaining that his female supervisor was sexually harassing him and that his complaint would have been taken more seriously had the gender roles been reversed advanced to trial on his Title VII retaliation claims since he had a “good enough” objective belief he was complaining about unlawful activity, a federal district court in Alabama ruled. However, his hostile work environment and gender bias claims were tossed on summary judgment since the harassment was not sufficiently severe or pervasive and he failed to show that a similarly situated female employee was treated more favorably (Gilley v. Kelly & Picerne, Inc. dba Alabaster Bay Apartment Homes
, February 29, 2016, Walker, S.).
The employee worked as a maintenance supervisor at an apartment complex managed by his employer, a property management company, and his benefits included free housing. On January 30, 2013, after over a year on the job, a new female manager was hired and became his supervisor. She began flirting with him, telling him he was attractive and looked good. She also asked him over several times, including once when her fiance was out of town. He repeatedly rejected her advances, once telling her not to make things “awkward” at work.
Just a “mistake.”
On February 25, she sent him text messages inviting him to “hit pipe for 5 min” (which he took as an invitation for sex) and stating that he looked “Hott.” He immediately complained to the maintenance director (who was out of state), who directed him to “work it out” and thought it was more drug-related than a sexual innuendo. When the employee confronted her, she claimed the messages were intended for her fiance.
What if gender roles reversed?
When he reported her response to the director, he declined to take any further action. Unhappy, the employee complained that if he had been female, his complaint would have been “looked into more in depth.” He also confronted the VP, who responded that he thought it was a misunderstanding and was solved. The employee again complained that if the gender roles were reversed, it would have already been handled.
At HR’s direction, the VP met with the supervisor and employee. The supervisor again denied that the texts were meant for him. A “shouting match,” ensued, culminating in the VP directing both of them to take sexual harassment training. The employee claimed he was fired and told to move out the next day (two days after he first complained), while the VP claimed that he quit.
The employee’s HWE claim failed since his supervisor’s conduct was not sufficiently severe or pervasive, even if the “hit pipe” comment was an invitation for sex (which was unclear as the court could not find a slang definition for the term and it possibly also suggested drug use). While the number of unwanted advances (around 10) was high for the length of time (19 days), she never touched him physically or made overtly gender-related remarks. Moreover, though her conduct made him uncomfortable and she (perhaps) invited him for sexual relations, she did not directly ask him for sex.
No gender bias.
His gender bias claim also failed since he could not show that he was treated less favorably than similarly situated employees. Although he argued that his supervisor was not fired after their “shouting match,” he did not explain how this constituted gender bias. To the extent he argued that his complaint would have been handled differently had he been female, his supervisor did not complain about sexual harassment and held an entirely different job.
Moreover, although the director testified that, looking back, he would not have told a female to confront her male harasser, he also added that “I wouldn’t have done the same thing for a male either ... . I probably would have sent them home for the day until somebody else could have got there and mediated.” Thus, he did admit that he would have treated similarly situated men and women differently and his testimony was not direct evidence of bias.
“Close enough” belief.
Allowing his reprisal claims to advance, the court found he engaged in protected activity both when he complained about his supervisor’s harassment and that a female’s complaint would have been handled differently. First, he “came close enough” to showing a HWE since the supervisor’s texts and earlier advances could have been considered of a “sexual nature.” Moreover, evidence the employer insisted he and the supervisor take sexual harassment training indicated it thought there was a possibility that sexual harassment had occurred. Finally, the number of sexual advances in a relatively short period was “close enough” to be objectively considered to be pervasive.
“Gender roles” complaint.
He also engaged in protected activity when he complained that he would have been treated differently if the gender roles had been reversed. While he did not identify a valid comparator, a jury could find his complaint was “close enough” to be protected. Moreover, the causal connection was established through the exceptionally close temporal proximity since he complained to the VP about gender disparity with regard to sexual harassment complaints on both the day before and day of his alleged termination. That nexus was sufficient to demonstrate both causation and pretext.