Retaliation Claims Under Title VII and the Opposition Clause

Brian Peter Battaglia

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“No pat formula exists for determining with certainty whether the sum of harassing workplace incidents rises to the level of an actionable hostile work environment." Noviello v. City of Boston, 398 F.3d 76, 94 (1st Cir. 2005) (citing Harris v. Forklift Sys., 510 U.S. 17, 22 (U.S. 1993)). It is for the trier of fact to weigh the totality of the circumstances and assess the matter on a case-by-case basis. Berry v. Essilor of America, Inc., 123 F. Supp. 2d 1342, 1348 (M.D. Fla. 2000); Lipsett v. Univ. of P.R., 864 F.2d 881, 898 & n.18 (1st Cir. 1988). The trial court’s role is that of a screener to determine whether facts exist that would allow a reasonable jury to reach such a conclusion. Rivera-Rodriguez v. Frito Lay Snacks Caribbean, 265 F.3d 15, 24 (1st Cir. 2001). The trial court must resolve all reasonable doubts in favor of the non-moving party in a similar fashion. Celotex Corp v. Catrett, 477 U.S. 317 (1986). “In order to establish a prima facie case of retaliation, the plaintiff must show: (1) he [or she] engaged in protected activity; (2) he [or she] suffered an adverse employment action; and (3) there was a causal link between his protected activity and the adverse employment action." Bass v. Bd. of County Comm'rs, 256 F.3d 1095, 1117 (11th Cir. 2001) (citing Gupta v. Florida Bd. of Regents, 212 F.3d 571, 587 (11th Cir. 2000); Farley v. Nationwide Mut. Ins., 197 F.3d 1322, 1336 (11th Cir.1999); Little v. United Techns., 103 F.3d 956, 959 (11th Cir.1997)); See Harper v. Blockbuster Entertainment Corp., 139 F.3d 1385, 1388 (11th Cir. 1998).

Under Title VII, it is illegal to retaliate against an employee for (1) opposing sexual harassment or (2) participating in an investigation concerning sexual harassment. These two clauses are called the “opposition clause" and the “participation clause". There can be many kinds of conduct that an employee takes to oppose sexual harassment under the opposition clause. There is no requirement that there be a pending charge of sexual harassment. Thus no formal proceeding need be in existence under the opposition clause. The reporting of sexual harassment conduct engaged in by a Company employee can be by speaking out in opposition, helping support a co-worker who has been harassed, complaining about it to a superior can be protected activity under the “opposition clause". An employee does not have to prove the sexual harassment, only that he or she had a good faith belief of harassment. Barlow v. Conagra Foods, Inc., 2005 U.S. Dist. LEXIS 31398 (M.D. Fla. 2005). An employee who seeks protection under the opposition clause must have a "good faith, reasonable belief" that his employer has engaged in unlawful discrimination. See Little, 103 F.3d at 960; Clover, 176 F.3d at 1351. The belief must also be objectively reasonable. Lipphardt v. Durango Steakhouse, 267 F.3d 1183, 1187 (11th Cir. 2001) (employee does not have to prove the sexual harassment to recover for retaliation). The complaining employee should have a good faith reasonable belief when he or she reports another employee engaged in prohibited sexual harassment. Such belief should be based upon training, the employer's sexual harassment policy, and understanding of the laws prohibiting sexual harassment. Properly documenting the conduct in a written report and observations of the incident(s) can be important. Employers in the past have relied upon the decision in Mendoza v. Borden, Inc., 195 F.3d 1238 (11th Cir. 1999) to support arguments for dismissal of these cases at the summary judgment stage. Mendoza however does not always support the position taken by an employer at summary judgment. Specifically, in Mendoza the majority of the Plaintiff’s allegations concerned her belief that her harasser was “watching her" and “looking her up and down." The Plaintiff admitted that the harasser “never said anything" to her during certain instances where she believed she was being harassed and the only allegation made by the Plaintiff in Mendoza concerning any physical contact was one instance where the harasser rubbed his right hip up against Plaintiff’s left hip. In its decision, the Eleventh Circuit indicated that with regard to the facts in Mendoza, they were simply not sufficiently severe or pervasive to alter Mendoza’s terms or conditions or terms of employment, and therefore the Eleventh Circuit did not desire to establish “a baseline of actionable conduct that is far below that established by other circuits." Mendoza, 195 F.3d at 1251.

Generally, an employee does not have to prove that the complained of conduct legally constituted sexual harassment in order to establish a prima facie case for retaliation under Title VII. Lipphardt, 267 F.3d at 1187. In Lipphardt, the Court held that the Plaintiff was not required to prove that the harasser’s behavior legally constituted harassment in order to recover for retaliation, but rather that Plaintiff had a good faith reasonable belief, which led Plaintiff to report the conduct to the Defendant. Lipphardt, 267 F.3d at 1187; see also Sullivan v. National R.R. Passenger Corp., 170 F.3d 1056, 1058 (11th Cir. 1999) (“the fact that the jury concluded that Sullivan’s claims did not meet all the elements for a successful sexual harassment action does not mean that it could not have found the incident did take place and that Sullivan could have reasonably believed himself the victim of sexual harassment."); Little, 103 F.3d at 960. In Lipphardt, Plaintiff, who had previously been intimate with her supervisor, alleged “on several occasions [the supervisor] brushed up against her in a way that Lipphardt testified that was sexual and made her uncomfortable." The jury found against Plaintiff on her sexual harassment claim, but in her favor on the retaliation claim. Lipphardt, 267 F.3d at 1184 n.1. However, after the trial the magistrate judge granted Durango Steakhouse’s renewed motion for judgment as a matter of law as to the retaliation claim finding that the harassment was based on Plaintiff’s “status as the harasser’s former lover and not on her status as female." The Eleventh Circuit reversed the magistrate judge referring to its decision in Succar v. Dade County School Board, 229 F.3d 1343 (11th Cir. 2000) stating as follows:

On a claim for retaliation, the standard is not whether there is a valid hostile work environment claim, but whether [Plaintiff] had a good faith reasonable belief that [Plaintiff] was the victim of sexual harassment. Reasonable minds could disagree on this issue, which makes it an inappropriate for a candidate for judgment as a matter of law. Lipphardt, 267 F.3d at 1188.

Importantly the Eleventh Circuit in Lipphardt also held that “when a person sexually harasses another, i.e., makes comments or advances of an erotic or sexual nature we infer that the harasser is making advances toward the victim because the gender that the harasser prefers." Citing Llampallas v. The Mini-Circuits Lab, Inc., 163 F.3d 1236, 1246 (11th Cir. 1998). In Lipphardt, unlike Borden, the court pointed out that there were several occasions where the harasser had brushed up against the Plaintiff in an inappropriate way while at work. An important factor is that the reporting employee suffered an adverse employment action. An adverse employment action includes being fired. See, Neal v. Manpower Intl., 2001 US Dist. LEXIS 25805, *43 (N.D. Fla. 2001). In addition, is there a causal connection between the protected activity and the employment action? Under Title VII to show a causal connection, “at a minimum, a plaintiff must generally establish that the employer was actually aware of the protected expression at the time it took adverse employment action." Neal, 2001 US Dist. LEXIS 25805, *35 (quoting Goldsmith v. City of Atmore, 996 F.2d 1155, 1163 (11th Cir. 1993)); Raney v. Vinson Guard Serv., 120 F.3d 1192, 1197 (11th Cir. 1997); Johnson, 234 F. 3d at 507).

The employer's will argue in many cases that even if the employee can establish a prima facie case for retaliation that the employer/Defendant(s) had a legitimate reason for firing or other adverse employment action. In order to establish a pretext, the “Eleventh Circuit has explained that at this point in the inquiry, ‘the district court must evaluate whether the plaintiff has demonstrated such weaknesses,’ implausibility’s, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable fact finder could find them unworthy of credence." Flagg v. Collier County, 2003 U.S. Dist. LEXIS 25580, *17 (D. Fla. 2003) (quoting Silvera v. Orange County Sch. Bd., 244 F.3d 1253, 1258 (11th Cir. 2001) (quoting Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997)). Circumstantial evidence and evidentiary support in the record may allow the case to be decided by a jury. See Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1363 (11th Cir. 1999). Close temporal proximity between the protected activity and adverse employment action is also proof of a causal connection. “For purposes of a prima facie case, ‘close temporal proximity’ may be sufficient to show that the protected activity and the adverse action were not ‘wholly unrelated.’" Gupta, 212 F.3d at 590. If there is temporal proximity, a causal link may be established between the protected activity and the adverse employment action. See, Donnellon v. Fruehauf Corp., 794 F.2d 598 (11th Cir. 1986) (finding that one month was evidence of retaliation); See Farley v. Nationwide Mut. Ins. Co., 197 F. 3d 1322, 1337 (11th Cir. 1999) (seven weeks between complaint and termination establishes causal connection). Padron, 196 F. Supp. 2d at 1256 (month or two could constitute close temporal proximity).

In conclusion it should be noted that each claim that may possibly exist, rests upon the specific facts and application of the law to those facts.

PLEASE NOTE: This article does not constitute the giving of legal advice but is for educational purposes only. A lawyer should be consulted for your particular problem or issue.

Additional Resources

See, the Equal Employment Opportunity Commission (EEOC) website at: http://www.eeoc.gov/ See, the Florida Commission on Human Rights (FCHR) website at: http://fchr.state.fl.us/ See, Pinellas County, Florida Office of Human Rights website at: http://www.pinellascounty.org/humanrights/default.htm PLEASE NOTE: This article does not constitute the giving of legal advice but is for educational purposes only. A lawyer should be consulted for your particular problem or issue.

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