Employment Law Daily Seven incidents, two men, three years, no touching: no Title VII harassment, retaliation
Tuesday, August 9, 2016

Seven incidents, two men, three years, no touching: no Title VII harassment, retaliation

By Kathleen Kapusta, J.D. Seven alleged incidents of harassment by two different men spanning nearly a three-year period—none of which involved touching and some that were not definitely sexual in nature—were not sufficient to support a pro se employee’s sexual harassment claim, a divided Eighth Circuit panel ruled. Further, her inclusion of her letter of removal in her complaint showed on its face that her harassment complaints were not the "but-for" cause of her removal, said the court, affirming the dismissal of her Title VII sexual harassment and retaliation claim. Dissenting, Judge Beam argued that the employer litigated the claims as though they were being decided on a motion for summary judgment rather than on a Rule 12(b) dismissal motion, and the district court continued that course of action (Blomker v. Jewell, August 5, 2016, Smith, L.). Alleged harassment . . . The Department of Interior employee alleged that her coworker moved his finger toward a button on her shirt, stopping just inches from her breasts; walked up to her while sexually aroused and with a smirk on his face and stood extremely close to her; played with candy in a basket while smirking; stood extremely close to her; and briefly blocked her from exiting her cubicle. She also alleged that a second male coworker on two occasions picked at a seam in the crotch of his pants with his legs spread apart while having a conversation with her and that on another occasion, he had an erection while speaking to her. This conduct all purportedly occurred between February 2010 and January 2013. . . . and retaliation. She claimed that after she reported the harassment, her work performance and attendance was criticized; she was not kept up-to-date on office news or invited to office events; there was poor communication between her and her coworkers; people talked about her EEO complaints; her coworkers sometimes did her job; she had an antagonistic relationship with her bosses; she did not receive a pay raise; and she was suspended and ultimately terminated. She subsequently sued, alleging sexual harassment based on a hostile work environment and retaliation. The district court dismissed her claims, finding that she could not state a claim for discrimination or retaliation. Sexual harassment claim. Even accepting her factual allegations as true and granting her the benefit of all reasonable inferences, the appeals court found as a matter of law that the alleged facts failed to show harassment so severe or pervasive as to support her HWE claim. Although the alleged behavior might have been vile or inappropriate, it did not rise to the level of actionable sexual harassment, said the court, noting that the seven incidents by two different men spanned nearly a three-year period. Further, none of the incidents involved actual touching, and some, such as playing with the candy, were not definitely sexual in nature. Accordingly, the court affirmed the dismissal of her sexual harassment claim. Retaliation. Turning to the employee’s retaliation claim, the court pointed out that she had to plausibly allege that the retaliation was a "but-for" cause of the adverse action. Here, she pointed to four "specifications" from her letter of removal, which was attached to the complaint, that she contended were direct evidence of retaliation. While two of those specifications mentioned her intent to file an EEO complaint, the court nonetheless found that her evidence failed as a matter of law for lack of causation. She failed to plausibly allege that retaliation was the but-for cause of the adverse action as the letter of removal also included other specifications unrelated to any protected activity, including calling her supervisor a "g---d---ed f------ liar" and grabbing and twisting the supervisor’s forearm. The letter also detailed a confrontation with her supervisor in which the employee aggressively followed her into an elevator and then engaged in a shouting match with her. It cited her past disciplinary record, which included a letter of reprimand for inappropriate conduct and a seven-day suspension for failure to follow a supervisory directive. Her inclusion of the letter, said the court, showed on its face that her protected activity was not a but-for cause of the alleged adverse action. Dissent. Judge Beam dissented, argued that at this stage of the proceedings, the employee satisfied her burden to plausibly plead HWE and retaliation. Noting that as an alternative ground, the employer argued that the employee had not properly exhausted her claims, an issue the district court expressly declined to decide, Judge Beam stated that failure to exhaust is an affirmative defense that must be proved by the defendant. Because the exhaustion issue was not decided by the lower court, the dissenting judge would have reversed and remanded so that the parties could litigate this issue. And if the employee did exhaust her claims, she should be allowed to litigate her harassment and retaliation claims, the dissent asserted.

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