Jury to decide EEOC quid pro quo claims on behalf of teen Subway applicants who alleged manager asked for sex
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Tuesday, July 17, 2018

Jury to decide EEOC quid pro quo claims on behalf of teen Subway applicants who alleged manager asked for sex

By Kathleen Kapusta, J.D.

The Title VII quid pro quo sex discrimination claims brought by the EEOC on behalf of two 17-year-old girls who alleged a Subway manager sent them texts asking for sex after they applied for a job can proceed to trial, a federal district court in New York determined, denying cross-motions for summary judgment. After denying summary judgment based on failure to exhaust administrative remedies, the court, turning to the merits, found that a supervisor purportedly sending a sexually explicit text to the first applicant shortly following her interview could constitute quid quo pro discrimination, especially when she was not hired after refusing the advance. As for the second applicant’s claim, which hinged on whether she reasonably believed the manager had the authority to hire her, the court found this best resolved by a jury (EEOC v. Draper Development LLC, July 11, 2018, Sharpe, G.).

First applicant. After the first applicant applied in person for a crew member position at a Subway owned by Draper Development, the general manager interviewed her at a food court in the mall where the restaurant was located. While it was unclear whether he offered her a job at that time, it was undisputed he intended to offer her a job and that he told her he would get back to her. Following the interview, he purportedly sent her a sexually explicit text in which, she alleged, he requested that she have sex with him in exchange for the job (whether he actually texted her and the contents of the text were disputed). She then returned to the restaurant to complain and, she claimed, after being given the owner’s cell phone number by a female manager, she was hung up on. She was never hired for the job.

Second applicant. The second applicant, who submitted an online application for a Subway crew member job, never interviewed with the manager. Rather, he got her cell phone number from her application and from a Draper restaurant, texted her asking: “Hi how badly do you need a job.” When she asked who he was, he responded “An employer” and asked “Would you sleep with the manager to get the job?” Although he was not authorized to hire assistant managers, he told her he was looking for one and stated, “Bang my brains out the job is yours.” The applicant and her boyfriend when to the restaurant to complain and later filed an incident report with the police. The manager was later fired after Draper heard about the incident from a news report.

Exhaustion. Moving for summary judgment against the EEOC’s claims, Draper first argued that the charging parties failed to exhaust administrative remedies. Although it was undisputed the second applicant’s charge was not verified, the court pointed out that her signature appeared on both the charge and the intake questionnaire and she indicated that she swore or affirmed she “read the above charge and that it is true to the best of [her] knowledge, information[,] and belief.” Further, the charge clearly described the identity of the parties and the alleged discriminatory conduct and enabled the EEOC to notify Draper that it was investigating her Title VII sex discrimination claim based on “sexual harassment and failure to hire.”

In addition, the EEOC provided Draper with a copy of the charge, the parties engaged in a conciliation process, and Draper’s CEO responded to the charge on the merits. And while Draper failed to show it suffered any prejudice from this technical defect, the applicant, said the court, would be severely prejudiced if the claim were dismissed for lack of verification. As to its assertion that the first applicant’s claim should be dismissed because the EEOC did not file this action within 180 days of the alleged wrongful act, the court observed that the charge listed the NYSDHR in the state agency box, it was sworn to by her, and thus it was reasonably inferred that the charge was filed with the NYSDHR so as to extend the filing window to 300 days. Thus this portion of Draper’s motion was denied.

Quid pro quo. As to the merits, Draper argued that because the manager’s alleged actions did not culminate in a tangible employment action, it could rely on the Faragher/Ellerth affirmative defense. For its part, the EEOC, conceding that it was precluded from seeking summary judgment on the first applicant’s claims given the dispute over the alleged texts, sought summary judgment on the claim involving the second applicant.

Regarding the first applicant, Draper argued that even assuming the manager sent her a text asking if she wanted to have sex, he was not alleged to have offered her a job or to have identified himself as a manager at the time. Unconvinced, the court explained that if he did send such a text, he did so shortly after her interview while he was deciding to hire her. “Because a supervisor sending such a sexually explicit text to a young female shortly following an interview may constitute quid pro quo sex discrimination––especially when she is not hired after refusing such an advance––Draper’s motion must be denied,” the court concluded.

Turning to Draper’s assertion that the manager was not empowered to hire the second applicant for the assistant manager job he offered, the court pointed out that it was undisputed Draper was hiring for a crew member and an assistant manager at the manager’s restaurant. It was also undisputed the manager sent explicit, offensive, and unwelcome texts to the applicant offering her a job in exchange for sex. And he initially asked her if she would have sex with him to get “the job,” which, the court noted, could be reasonably inferred to mean the crew member position for which she had applied.

Apparent authority. While he offered her the assistant manager job later in the text, a reasonable factfinder could find it was reasonable to believe he had apparent authority to offer her that position based on the circumstances: She was 17, had applied for a position at Draper and provided her contact information on her application, Draper empowered him to access and review applications, and he held himself out as having such authority to hire her for the assistant manager position. Further, it was undisputed she refused his sexual advances and he did not hire her despite her qualifications. This was clearly a tangible employment action, said the court, finding that a jury would have to decide whether she reasonably believed the GM had the authority to hire her.

Punitive damages. Next the court rejected Draper’s claim that punitive damages were unobtainable here because it did not act with malice or reckless indifference. The court could not say, after examining the evidence in the light most favorable to the nonmovant and given the reasonable inferences that exist at this stage, that no reasonable juror could find an award of punitive damages to be appropriate.

Sanctions. Finally, the court denied Draper’s motion for sanctions based on the applicants’ failure to preserve their electronic devices containing the text messages. The second applicant preserved screen shots of the texts, and Draper did not dispute their accuracy or authenticity. And while Draper argued that everything on the first applicant’s hard drive was wiped clean intentionally, there was no proof that any failure to preserve on her part occurred after a duty to preserve was triggered. Further, said the court, Draper’s position was belied by her testimony that she never erased the relevant text message.

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