Labor & Employment Law Daily In context of all-male construction crew, taunting and touching didn’t violate Title VII
Monday, April 16, 2018

In context of all-male construction crew, taunting and touching didn’t violate Title VII

By Lorene D. Park, J.D.

Granting summary judgment against Title VII claims by a construction worker who claimed he was sexually harassed by a coworker on his all-male crew and experienced sex discrimination and retaliation because the CEO threatened to fire him if he went to court on criminal charges, a federal court in Georgia found that he did not suffer an adverse employment action because he continued to work for months after going to court so couldn’t reasonably believe he was fired for going to court again. Moreover, the evidence indicated he left for a higher-paying job. The court also found that the alleged harassment he suffered was not severe or pervasive in the context of an all-male construction crew (Davis v. Lakay Enterprises, Inc., April 11, 2018, Treadwell, M.).

Taunting and touching “all in good fun?” The employee was hired to be a cement finisher in January 2013, and he worked on an all-male crew. The following September, he complained to the company CEO that a coworker was subjecting him to homophobic slurs, taunting, and unwanted touching. He said the coworker was trying to fight him and “feel on” him. This was the first complaint the employer had received about the alleged harasser, who admitted that he “flicked” the employee on the chest near his shirt pocket and “lightly tapped” the employee on his “rear end” but claimed it was “all in good fun and was not intended to be harassing.” The CEO admonished the alleged harasser and said he would be terminated if the behavior continued.

Thereafter, the employee’s coworker allegedly was “fussing and cussing” and asking why he told the CEO about the touching and grabbing. The coworker allegedly said he would “whup [the employee’s] ass” and the employee called the sheriff’s department to report a “simple assault.” The sheriff’s deputy arrived at the scene at the same time as the CEO, and after everyone calmed down, the deputy told the employee he could charge the coworker at the courthouse if he wanted.

“If you go to court, don’t come back.” The CEO sent both men home for the weekend and on Monday assigned them to different crews. According to the employee, the CEO also told him “If you go to court, don’t come back.” The CEO denied saying this, and others the employee claimed overheard it testified that they did not recall the comment either. Either way, a few days later the employee went to court to file criminal charges (his first charge erroneously named the CEO so he went a second time to name the coworker). Thereafter, the employee continued to work, with no discussion of the criminal charges and no further complaints about the coworker. After a February 2014 hearing on the criminal charge, the employee never returned to work.

No adverse action. Granting summary judgment against the employee’s sex discrimination and retaliation claims under Title VII, the court concluded that he failed to make out a prima facie case because he could not show he was subjected to an adverse employment action. According to the employee, he was fired the day he attended the hearing on his criminal charges, because the CEO had threatened five months earlier that he couldn’t come back if he went to court. To the court, though, the undisputed evidence could not support this conclusion.

Unreasonable to think he couldn’t return after hearing. Even accepting that the CEO actually made the threat, said the court, “a threat of adverse employment action does not amount to an adverse employment action.” Moreover, to prove an adverse action he had to show a reasonable person in his position would view the action as adverse. Thus, the employee’s subjective belief that he couldn’t return to work after the hearing was irrelevant. And in the court’s view, there was no evidence here from which a reasonable person would think that the employee had lost his job because he pursued legal charges for assault.

The court also noted that the February 2014 hearing was not the employee’s first trip to court on the matter. He first went there a few days after the CEO’s alleged threat (erroneously filing charges against the CEO) yet he returned to work. And he returned again after his second trip to court, when he filed assault charges against the correct individual. On these facts, there was no reasonable basis for the employee to believe he had been fired due to his third trip to court.

Quit for better-paying job. In addition, the employer presented undisputed evidence that the employee actually quit his job for more lucrative employment, including testimony by coworkers that the employee said he could make more money elsewhere and was quitting for that reason.

Alleged hostility not “because of … sex.” Also granting summary judgment against the employee’s sexual harassment claim, the court first explained that the alleged harassment was not based on his gender. There was no evidence the alleged harasser was homosexual or motivated by sexual desire other than the employee’s testimony that the coworker said he “f***ed men,” and that was not enough to avoid summary judgment, particularly given that the coworker was either engaged to a woman or married to a woman throughout the relevant time. Moreover, there was no evidence the coworker was hostile towards men in general.

Not severe or pervasive. Also, while it was undisputed that the employee perceived the alleged harassment to be severe and pervasive, the court found it was not objectively so, especially when viewed in the context of an all-male construction crew. In context, the alleged harassment was “more akin to ‘simple teasing or roughhousing among members of the same sex.’”

No basis for liability. The court also found as a matter of law that the employer took reasonable remedial action after learning of the alleged harassment, admonishing the coworker and telling him he would be fired if it continued. These measures were not only reasonable, but it appeared they were successful. Thus, the employer could not be liable under Title VII.

Employee denied voluntary dismissal without prejudice. After the employer’s motion was fully briefed, the employee moved to have the suit dismissed without prejudice, claiming he could no longer afford to prosecute. Denying his motion, the court found that the employer would be prejudiced by such a dismissal because it spent significant time and resources on the suit and the parties had completed discovery, including depositions of the employee and the employer’s corporate rep. Moreover, it was undisputed the employee has a contingency-fee arrangement and would not pay attorneys’ fees unless he was awarded damages or a settlement.

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