Employers should take note of a handful of recent decisions issued by the Eleventh Circuit Court of Appeals in June:
On June 1, 2012, the court reversed summary judgment that had been granted in favor of an employer in Kurtts v. Chiropractic Strategies Group, Inc. The court first confirmed that an “employee complaining of sexual harassment is vested with no legal right to demand removal of the alleged harasser before an investigation has been undertaken by the employer: there is no doctrine of removal, first; investigate, later.” But the panel then found that there were questions of fact on the affirmative defense. Evidence that the person to whom the plaintiff complained (and to whom she forwarded some of the supervisor’s graphic texts) responded that she “was unsure what she was going to do” and “asked whether [plaintiff] wanted her last paycheck” tipped the scales on the plaintiff’s harassment claim. The court further relied on that evidence to find that there were also questions of fact on the plaintiff’s retaliation claim.
On June 4, 2012, the court recognized a Title VII retaliatory hostile work environment claim in Gowski v. Peake. This was no surprise in light of the Circuit consensus. The court upheld the jury’s verdict in favor of two physicians employed at a VA hospital, explaining: “The evidence here showed that the administration intended to retaliate against [the two doctors] because of their EEO activity and then created a hostile environment by spreading rumors about the doctors, damaging their reputations, and disciplining them. . . . And this scheme was both severe and pervasive.”
A week later the court again reversed summary judgment that had been granted in favor of an employer on a plaintiff’s Title VII and Section 1981 hostile work environment claims in Jones v. UPS Ground Freight. In this case, the truck driver plaintiff alleged, among other facts, that he began to find banana peels or remnants of bananas on the back of his truck’s trailer or on the steps to his cab, never saw bananas on any other truck, and never found any other trash on his truck. The district court had found the evidence insufficient to satisfy the “objectively reasonable” standard. The Eleventh Circuit noted that while the employer was free to argue to a jury that “the presence of banana pieces or peels had nothing whatsoever to do with [plaintiff], as an individual, or his race,” “when viewed in its totality, this evidence would allow a rational trier of fact to conclude that someone was placing the bananas on [plaintiff’s] truck to send a message of racial intolerance.” Although the court noted that plaintiff’s allegations of seven incidents did not include any “overt” racial references or physical threats, it explained that a jury “could also conclude that it was no coincidence that three employees happened to come to work wearing clothing bearing the Confederate flag on the same day and around the same time that the bananas began to appear . . . with greater frequency.”
On the same day as the Jones decision, the same Eleventh Circuit panel reversed summary judgment, in part, in Chapter 7 Trustee v. Gate Gourmet, Inc. Rejecting any contention that the plaintiff had to use the McDonnell Douglas framework, the court found there was enough circumstantial evidence to support the plaintiff’s pregnancy discrimination claim, particularly where the employer disciplined the plaintiff’s former supervisor for firing the plaintiff in a “totally unacceptable” way that “constituted discrimination in violation of Title VII.” (Indeed, the magistrate judge had recommended that summary judgment on the pregnancy claim be entered in favor of the plaintiff.) More importantly, the court reversed summary judgment on the retaliation claim. The evidence showed that the employer had decided to unconditionally offer the plaintiff a light-duty position with back pay, but once it learned that she had filed an EEOC charge, the employer changed its offer and conditioned it on her dropping the charge. Rejecting the employer’s argument that offers to settle EEOC charges are not retaliatory, the court found a “reasonable inference” that the plaintiff suffered a materially adverse action where the plaintiff’s refusal to settle caused the employer to deny her the position.
Although those of us who do defense work may have wondered whether this series of decisions signals a trend, on closer examination, we may be able to chalk those two weeks up to cases with just really bad facts. We’ll see . . .
Tracey T. Barbaree is a shareholder in the Atlanta office of Ogletree Deakins.