In Harris v. Sam’s East, Inc., 4:20-CV-176 (CDL), 2022 WL 1631963 (M.D.Ga. May 23, 2022), the court, inter alia, denied defendant’s motion for summary judgment on plaintiff’s claim for retaliation under Title VII of the Civil Rights Act of 1964.
This case illustrates that a retaliation claim may survive, even though the underlying claim – i.e., the claim comprising conduct the complaints of which formed the basis for the retaliation claim – does not.
Here, while the court granted the defendant’s motion for summary judgment as to plaintiff’s hostile work environment claim, gender-motivated termination claim, and retaliatory termination claim based upon her complaints of a racially hostile work environment, it denied defendant’s motion as to plaintiff’s retaliatory termination claim based upon her complaints of a sexually hostile work environment.
The court explained:
Although the present record does not support a hostile work environment claim, Harris’s complaints about unlawful sexual harassment were objectively reasonable, and therefore, Title VII prevents her termination because of those complaints. The Court evaluates this claim using the familiar McDonnell Douglas framework. Bryant v. Jones, 575 F.3d 1281, 1307 (11th Cir. 2009) (further establishing that Title VII and § 1981 claims proceed under the same analytical framework). Harris must first establish a prima facie case by showing that she “engaged in a statutorily protected activity” and that there is a “causal link between the protected activity” and her termination. Id. at 1307–08. If the plaintiff establishes a prima facie case of retaliation, the burden shifts to the defendant to articulate a “legitimate, non-discriminatory reason” for the adverse action. Id. at 1308. To avoid summary judgment, the plaintiff must then point to sufficient evidence to create a genuine factual dispute that the defendant’s articulated reason was pretextual. Id.
The Court finds that Harris has made out a prima facie case of retaliation based on her complaints about sexual harassment. She clearly complained of sexual harassment, and those claims were objectively reasonable. Her fellow employee made unwelcomed comments about her sexuality and harassed her regarding an alleged sexual relationship with a fellow employee. Even if this conduct was not sufficiently severe or pervasive to rise to the level of altering the terms and conditions of her employment, she had a reasonable, good faith belief that it did. Jefferson v. Sewon Am., Inc., 891 F.3d 911, 924 (11th Cir. 2018) (“An employee’s complaint about discrimination constitutes protected activity if the employee could ‘reasonably form a good faith belief that the alleged discrimination existed.’ ” (quoting Taylor v. Runyon, 175 F.3d 861, 869 (11th Cir. 1999))). The next question is whether evidence exists from which a reasonable jury could conclude that Harris was terminated because she made these complaints. Gogel v. Kia Motors Mfg. of Ga., Inc., 967 F.3d 1121, 1135 (11th Cir. 2020) (en banc) (stating that a Title VII retaliation plaintiff must demonstrate that, but-for her protected activity, the employer would not have taken the adverse action). As with most cases, the employer here has not confessed to terminating Harris because of her complaints. It claims that it fired her because she harassed a fellow employee and she had an active previous disciplinary charge related to tardiness and unexcused absences. But an examination of the circumstances calls into question the Company’s articulated reason for the termination. The pretextual nature of the explanation, combined with other circumstantial evidence, requires that this claim be decided by a jury and not this Court as a matter of law.
Prior to her complaints about a sexually hostile work environment, no one ever complained that Harris had sexually harassed anyone. In fact, this finding of harassment on her part was discovered during the Company’s investigation of her sexual harassment claims against the Company’s employees. And even though the Company discovered evidence that Harris may have made inappropriate comments regarding a male employee, Skahan, that evidence likely did not amount to unlawful sexual harassment. According to Skahan, Harris said that “she had feelings for” him and that when he had a bad day that he “just need[s] to get laid.” Case Details at 31. Skahan also said in his Global Ethics interview that Harris “would talk to other associates about” wanting to have sex with Skahan. Id. But Skahan informed the Company that her sexual comments never made him “uncomfortable,” id., and Harris testified he was not offended by her remark about getting “laid.” Harris Aff. ¶ 28. Harris denies expressing a sexual interest in Skahan, and Global Ethics did not ask her about Skahan’s interview answers. Although Harris was ultimately terminated for her alleged harassment of a fellow employee, she had no meaningful opportunity to present her side of the story. According to her, she was not even asked about it, which could suggest that it was not the true reason for her termination.
Based on these scant allegations, which Harris was not permitted to rebut, her supervisor, to whom she had previously reported sexual harassment, fired her shortly after the investigation was completed. Her supervisor took this action even though the Company took no action against its employee-Otero-who Harris claims had made far more serious and pervasive sexually harassing comments about her and even though the Company’s investigators did not recommend Harris’s termination. Torres also chose not to terminate Johnson, who made inappropriate comments similar to those made by Harris.
Torres distinguished Johnson from Harris based upon Harris having another disciplinary record in her file related to unexcused absences and tardiness. While employee attendance and punctuality are certainly important, Torres’s decision to override the investigators’ recommended discipline and her purported conclusion that absenteeism and tardiness tipped the balance here in favor of firing an employee is something that should be considered by the jury. The Court notes that the investigators took Harris’s previous disciplinary record into consideration when making its recommendation that Torres rejected. The Court finds that evidence exists from which a reasonable jury could conclude that the Company’s articulated reason for terminating Harris’s employment was pretextual and that she was in fact terminated because she complained of a sexually hostile work environment. Accordingly, summary judgment is not appropriate on this claim.
The court did, however, dismiss plaintiff’s claim of retaliation that was predicated on her complaint of racial discrimination, finding that that complaint was not “objectively reasonable.”