Facts unknown to CFO while employed don’t establish hostile environment, but gender bias, retaliation claims
Thursday, April 16, 2020

Facts unknown to CFO while employed don’t establish hostile environment, but gender bias, retaliation claims

By Vicki Krueger, J.D.

Allegations of unwanted hugs, offensive comments, and exclusion from male-only social activities were not severe or pervasive enough to create a hostile work environment.

Although a CFO’s evidence failed to establish a hostile work environment, a federal district court in Florida concluded that the same evidence was enough for her to have a reasonable, good faith belief that she was complaining of behavior prohibited by Title VII, making her multiple complaints about the association president’s sexualized view of women qualify as protected activity. Accordingly, that she was denied a bonus while a similarly situated male employee was granted one within a short time of her latest complaint allowed her retaliation complaint to proceed to trial, as did her claims for disparate treatment and equal pay (Marquardt v. Ocean Reef Community Association, April 9, 2020, Altonaga, J.).

No hostile work environment. The CFO’s disputed facts failed to establish an intolerable working environment under Title VII. Although the CFO, one of the vice presidents of a townhome association, presented evidence that another employee brought a sexual harassment lawsuit against the association (ORCA) president and that the president had nude pictures of women on his work computer, she was unaware of those facts while she worked for ORCA and could not rely on them to support her claim. An employee alleging a hostile work environment cannot complain about conduct of which she was oblivious for the purpose of proving that her work environment was objectively hostile.

Consequently, the CFO was forced to rely on the following evidence: her exclusion from work-related social events attended by male colleagues, being subjected to and witnessing unwanted hugs and offensive gender-based comments over a two-year period, and witnessing a male coworker hit a female employee on the butt with a folder. These events, while inappropriate, did not permeate the CFO’s day-to-day environment nor reach the frequency or severity required to establish a hostile work environment. She never contended that she or her female colleagues felt threatened or humiliated by the behavior or that it interfered with her job performance. As such, her hostile work environment and constructive discharge claims based on the working environment failed.

Retaliation claims may proceed. The CFO also brought retaliation claims under Title VII and Florida law claiming that her reports of illicit conduct to her supervisor were protected activity. The CFO might have a reasonable, good faith belief that she was being sexually harassed even if the conduct complained of was not so severe or pervasive that it altered her working conditions and was legally actionable. Here, for instance, the CFO reported another vice president’s inappropriate conduct to the association president at least three times, which were statutorily protected.

The court concluded there was a genuine issue of material fact as to whether the behavior, particularly the vice president’s hugging of female employees, was sexual. At the time the CFO complained about the hugging, she was also aware that the vice president had hit another female employee on the buttocks with a folder; thus, the CFO’s complaints were not objectively unreasonable.

Adverse actions. The CFO identified two adverse employment actions that followed her reports: the denial of a bonus after her work involving insurance claims following Hurricane Irma and her constructive discharge. The bonus denial was sufficient to constitute an adverse employment action, said the court, plus, the short period of time between her complaints and the bonus denial—within the same month as her final complaint about inappropriate workplace conduct—may show causation.

ORCA attempted to justify the failure to pay a bonus to the CFO even though another (male) VP received his (by saying it was not in the budget), but even if the reasons were sufficient, a jury could conclude that the proffered justifications are a thin cover for the association president’s retaliation against the CFO and his sexualized views of women in the workplace. Summary judgment was denied on the CFO’s retaliation claim.

Disparate treatment. The CFO’s Title VII disparate treatment claim relied on the same adverse action—the denial of her bonus—as her retaliation claim, but she also claimed a similarly situated individual outside her protected class was treated differently. Both the CFO and the male employee were vice presidents who reported to the president and worked long hours on Hurricane Irma-related tasks, yet he received a bonus, and she did not. As with the retaliation claim, the court reasoned a jury could conclude that any proffered justifications offered by the ORCA defendants were a pretext for the association president’s retaliation against the CFO and his sexualized views of women.

Equal pay act. Finally, for the same reasons, the court found a triable issue of fact as to whether the CFO was paid less than a male employee for similar work, so her equal pay claim may proceed as well.

Although ORCA’s motion for summary judgment on the CFO’s hostile work environment claim was granted, summary judgment was denied as to the CFO’s claims of retaliation, disparate treatment, and equal pay.

The case is No. 19:10110-CIV-ALTONAGA/Goodman.

Attorneys: Marguerite Clare Racher Snyder (Weil Quaranta, P. A.) for Elizabeth Marquardt. Ingrid Hamann Ponce (Stearns Weaver Miller Weissler Alhadeff & Sitterson PA) for Ocean Reef Community Association Inc.

Companies: Ocean Reef Community Association Inc.

Cases: Discrimination SexDiscrimination SexualHarassment Retaliation Discharge PayDiscrimination FloridaNews

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