Dallas woman wins appeal on retaliation claim for complaining about sexual harassment
This Dallas employment retaliation case can be best summed up in three letters: WTF? Not only are the facts of the case full of WTF but the decision of our very own federal District of Northern Texas tries to keep up with the conduct of the alleged harassers. I decided to write about this case, Royal v. CCC&R Tres Arboles, L.L.C., not only because it is a local Dallas decision but also because it reflects a significant legal issue for employment attorneys in the Dallas-Fort Worth area and our clients. Just read this and see how long it takes before your WTF meter reaches overload.
The facts (according to Ms. Royal)
The facts of this story take place in just four short days. Ms. Royal was hired as a leasing manager by an apartment complex owned by CCC&R somewhere in Dallas. Over the course of four days, Ms. Royal alleges, two maintenance workers would periodically come into the office and sniff her. In total, the two men sniffed her twelve times each. In addition to the sniffs, the two men engaged in other conduct in her presence designed to either make her uncomfortable or indicate their sexual arousal towards her. Ms. Royal complained to the assistant manager, who told her to let it slide.
Then management decided to intervene, just not in the way you would expect. The manager then held a staff meeting and opened the floor to the employees to air out any issues they wanted to raise. Ms. Royal again complained about the conduct. One of the two maintenance workers said he had a medical condition. The other said he, “needed to get a release.” After this meeting, the managers and Ms. Royal had a follow up meeting where she again complained about the maintenance men. Later that afternoon, the manager fired her with no reason given. At oral arguments on the appeal, the employer’s attorney stated the reasons for discharge were: (1) she swatted a fly harder than necessary; and (2) she slammed a door.
Ms. Royal brought a charge of discrimination against CCC&R for sexual harassment and retaliation. At summary judgment, before a federal magistrate in Dallas, the magistrate held Ms. Royal’s sexual harassment claim did not meet all of the elements of the law (she did not prove the conduct was objectively offensive) and the retaliation claim failed because, “a reasonable person would not believe that the reported conduct constituted an unlawful employment practice under Title VII.” Federal district Judge Kinkeade entered the order granting summary judgment. Ms. Royal appealed the retaliation claim.
The law (briefly)
Ms. Royal’s discrimination allegations included both hostile work environment and retaliation. I won’t go into a full explanation of either claim, especially since the retaliation claim is the only one raised on appeal. (You can read full explanations of the law surrounding on their respective pages on this website: hostile work environment and retaliation.) What is important to understand is that Ms. Royal did not have to prevail on her sexual harassment claim to prevail on her retaliation claim. Even if the magistrate was correct that, among other things, being sniffed multiple times at work would not be offensive to a reasonable person, to also lose her retaliation claim the court had to believe a reasonable person would not believe a complaint of that conduct would be a complaint of sexual harassment. Of course, the magistrate did make that argument. The reasonableness of identifying her complaint as opposition to a discriminatory practice is the key issue on appeal.
However, before turning to the appellate court’s decision, let’s briefly talk about the legal standard for proving a retaliation claim. To state a claim for retaliation under Title VII, the section of the 1964 Civil Rights Act that prohibits sex discrimination, a plaintiff must show that: (1) he or she engaged in a protected activity, such as complaining about a discriminatory practice; (2) the employee suffered an adverse employment action, like termination; and (3) there was a connection between the protected activity and the adverse employment action. When showing that the employee engaged in a protected activity, the plaintiff-employee does not have to prove the underlying discrimination claim. Rather, as the magistrate explained, the complaint only has to be reasonably perceived as opposition to prohibited discrimination. The reason for this standard is to require the plaintiff to prove that the employer took the adverse employment action because the employee opposed discrimination, not because the employee was the victim of discrimination. This is often an issue in harassment cases where the employee complains of harassment before it has gotten really out of hand and the employer takes adverse action against the employee for reporting the harassment. The harassment may not be severe enough to prevail in court on the harassment claim but it doesn’t change that the employer took adverse action because of the opposition.
What the Fifth Circuit Court of Appeals said
The Fifth Circuit took up Ms. Royal’s appeal of the retaliation claim on two issues: (1) whether her complaints could be reasonably perceived as opposition to prohibited discrimination; and (2) whether her opposition caused her termination. The appellate court held that there was a question of material fact whether the sniffing and other conduct was sexual harassment under Title VII. The court put it most succinctly in this sentence: “Indeed, it is difficult to imagine the maintenance men sniffing and hovering over Royal if she were a man.” Additionally, the court reviewed the facts and determined a question of material fact also existed whether the manager was aware of the complaints and the sexual nature of the complaints and that awareness caused him to discharge her. The existence of these questions of fact, the court held, warranted the district court to allow the case to go to trial for a jury (or the judge) to determine the merits of the factual allegations of the parties.
Why this case matters
This case does not prove anything novel but it is a glaring example of the issues faced in bringing discrimination claims in the federal Northern District of Texas. Our federal judges tend to enjoy more conservative opinions that seem to include a high degree of suspicion regarding employment claims, especially those involving discrimination. This is not the first time the Fifth Ciruit, or the Supreme Court, has overruled one of our district judges on an employment discrimination lawsuit. District judges are overruled by the appellate courts all the time but it should be particularly alarming here given that the Fifth Circuit itself is a conservative appellate court itself.
When I hear of plaintiffs in employment discrimination cases going into federal court on their own (pro se) it makes me sad because there is an extremely low probability that they will prevail, especially in the federal courts here in Dallas and Fort Worth. Not only is federal court more rules-governed and strict than state court, but the judges are much tougher on employment discrimination plaintiffs than the judges at the state courts (although they also tend to be conservative judges). Employment discrimination law is very technical and a deep understanding of the legal standards involved is extremely important to the success of any plaintiff. It’s a challenging hurdle for pro se plaintiffs to overcome, especially when the employers often hire large firms that can and will put multiple lawyers on a case to research every applicable aspect of the law.
If you have an employment discrimination claim in the Dallas-Fort Worth area, I strongly encourage you to talk to a local employment lawyer about your claims even before you file an administrative charge of discrimination. How you file, where you file and what you include in the charge, are all critical components of setting yourself up to give you the greatest chance to overcome the judicial bias against your claims. The earlier you get professional representation for your claims, the better off you are. Contact my office today to discuss your claims.
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