By Marjorie Johnson, J.D.
She also failed to show that lewd comments and an attempted kiss by a subcontractor, which was "egged on" by a higher-level male employee who had previously remarked that he wished he had met her before he got married, were severe and pervasive enough to create an actionable HWE.
A housing authority’s property manager failed to refute that she was fired because she violated its policy that employees maintain possession of master keys at all time and not because of her gender or sexual harassment complaint, the Eleventh Circuit ruled in an unpublished opinion affirming dismissal of her Title VII claims on summary judgment. The employee presented evidence that she was terminated five days after having complained about an incident in which a subcontractor subjected her to sexually objectifying comments, nonconsensual touching, and an attempted nonconsensual kiss, and that a higher-level employee failed to prevent and in fact participated in this unacceptable conduct. Nevertheless, she failed to cast doubt on her employer’s "honest impression" that termination was warranted after she lost control of master keys (which enabled access to all apartment units in the building) and failed to report that fact to her superiors (Williams v. Housing Authority of Savannah, Inc., October 29, 2020, per curiam, umpublished).
Entrusted with master keys. The employee worked for the city housing authority as an assistant asset manager at two publicly subsidized apartment complexes. To complete her duties, she was given a set of keys that enabled her near-universal access to the buildings, including all apartment units. She was warned not let the keys out of her sight and understood that losing them could put residents and others in danger.
Inappropriate comments. On Friday, February 2, 2018, the employee conducted apartment inspections along with the male facilities director, a female real estate analyst, and a male subcontractor. The task entailed looking for anything that needed fixing and if a unit was unoccupied, they left an inspection notice signed by the employee. At one point, the subcontractor remarked that the employee was "pretty" and had a "cute" rear end and a "sexy walk." The director responded, "yeah, she’s pretty, look at her heels," and made another joke about her. When she and the analyst both asked them to stop, they said they were just joking. The director had also allegedly commented to the employee a few months earlier that he wished he had met her before he got married, and the subcontractor had previously called her "Sweetie."
Towards the end of the day, the employee informed the director that she had been unable to relock an apartment’s utility door. He allegedly told her to give her keys to the subcontractor and when she refused, told her, "I’m your boss, give him the keys." The subcontractor then grabbed her and tried to kiss her and take the keys, prompting her to punch him and warn him "not to ever touch [her]." The director joked that the two needed "a private moment" and again ordered her to hand over her keys. She did so and left. HR was gone for the day, but she alerted her supervisor about the harassment, who told her she couldn’t do anything about it.
On Monday, February 5, she complained to HR and provided a statement which focused on the subcontractor’s inappropriate conduct but did not relay the director’s order to hand over her keys. That same day, her supervisor notified management that she had received master keys from a resident who stated they had been left in her unit by the employee, who had not reported her keys missing.
The next day, the employee was given her termination notice, which stated that she was being fired because she "left a set of master keys in a[n] occupied unit and never reported the keys as missing," putting residents in danger and placing the housing authority at extreme risk of liability. She then explained for the first time that the facilities director had ordered her to give the keys to the subcontractor. The HR director told her she could appeal her firing, but she declined to do so.
No inference of bias or retaliation. The Eleventh Circuit rejected her contention that the district court erred in applying the McDonnell Douglas framework to her gender bias claim, and not the "mixed-motive" or "convincing mosaic" standards. Regardless of which theory or framework was applied, no reasonable inference could be made that the decision to terminate her was motivated by her sex, let alone that her sex was the "true reason." She was also unable to revive her reprisal claim since she failed to show that the proffered reason for her termination—that she lost possession of her keys and failed to report that fact—was a pretext for retaliation.
Didn’t refute "honest impression." The employee failed to cast doubt on the employer’s "honest impression" that she violated a work rule and that termination was warranted. It was undisputed that her master keys were found in the resident’s unit and that she had not previously informed her supervisor that they were outside her control. She also admittedly knew the policy required her to maintain possession of her keys and that lost keys could put residents in danger and her employer at risk of liability.
Pretext was also not shown by the fact that the director ordered her to give her keys to the subcontractor since she admittedly did not disclose this fact until her termination and declined the option of appealing that decision. Moreover, even with this new information, the employer had reason to believe that she violated policy by failing to regain possession of her keys or reporting that they were outside her control. Its failure to excuse her policy violation did not mean that its actions were discriminatory.
Additionally, while the decisionmakers were arguably aware of the comments when they terminated her, there was no evidence that either of the alleged harassers played any role in the decision. The employee also failed to identify any comparators who were treated more favorably, and the record indicated that she was replaced by another female.
HWE claim. The employee also failed to revive her HWE claim Though the alleged conduct by the subcontractor and facilities director was indefensible and "without a doubt inappropriate and demeaning," it was not sufficiently severe and pervasive to create an actionable HWE under Eleventh Circuit precedent. Moreover, soon after the employer learned of her complaints against the subcontractor, it arranged that he would no longer be working at its complexes in the city.
The case is No. 20-10809.
Attorneys: Adian R. Miller (Barrett & Farahany) for Monica Williams. Dana F. Braun (Ellis Painter Ratterree & Adams) for Housing Authority of Savannah, Inc.
Companies: Housing Authority of Savannah, Inc.
Cases: Discrimination SexDiscrimination SexualHarassment Retaliation AlabamaNews FloridaNews GeorgiaNews
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