Employment

Roberts v. Glenn Industrial Group, Inc., — F.3d — , 2021 WL 2021812 (4th Cir. May 21, 2021), available at http://www.ca4.uscourts.gov/opinions/191215P.pdf

A company that provides underwater inspection and repair services to utilities hired a male employee to work as a diver’s assistant. The assistant’s supervisor, also male, harassed the employee from the outset, repeatedly calling the employee gay, making sexually explicit comments, and on two occasions, physically assaulting the employee. Although the company’s handbook required all complaints of sexual harassment to be reported to the company’s CEO, the employee did not tell the CEO about the supervisor’s conduct. The employee complained to a higher-ranking supervisor, another supervisor, and ultimately to the company’s vice president and human resources manager, who was also the CEO’s spouse. Despite these complaints, the supervisor was not disciplined, and continued to harass the employee. Several months later, the employee was burned at work when, according to the company, he failed to wear his safety gloves; the employee contended that he was wearing safety gloves. The CEO met with the employee, told them employee that his conduct was unsafe, and said the employee would be discharged from employment if he had another safety incident. The employee did not tell the CEO about the supervisor’s harassment. Several weeks later, the employee had another incident where he appeared at a job site acting erratic and confused. He met with the CEO again after this incident. The CEO said he terminated the employee’s employment for this second incident, while the employee said he was told to take a few days off, but was never called back to work. The employee again did not tell the CEO about the supervisor’s harassment. 

After exhausting his administrative remedies, the employee sued the company, alleging sexual harassment and retaliation claims under Title VII of the Civil Rights Act of 1964. The district court entered summary judgment in favor of the company on the sexual harassment claim, rejecting the employee’s allegation that his supervisor harassed him on the basis of sex. The district court also entered summary judgment for the company on the retaliation claim, because the employee failed to show a causal relationship between his complaints and the termination of his employment, and because the safety violations provided a legitimate non-retaliatory reason for termination. On the employee’s appeal, the Fourth Circuit affirmed summary judgment on the retaliation claim, but vacated and remanded for further proceedings on the sexual harassment claim.

Title VII prohibits discrimination against an employee on the basis of sex. The existence of a hostile work environment—where the workplace is permeated with discriminatory harassment—violates Title VII. To establish a prima facie case of sex discrimination based on a hostile work environment, a plaintiff must prove (1) unwelcome conduct; (2) based on the plaintiff’s sex; (3) sufficiently severe or pervasive to alter the plaintiff’s conditions of employment and create an abusive work environment; and (4) that the conduct is imputable to the employer. The Supreme Court recognized in Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998), that nothing in Title VII bars a sex discrimination claim merely because the harasser and victim are of the same sex. The Oncale Court identified three ways a plaintiff could prove that same-sex harassment based on sex: (1) when there is credible evidence that the harasser is gay and the harassing conduct involves explicit or implicit proposals of sexual activity; (2) when the “sex-specific and derogatory terms” of the harassment indicate general hostility to the presence of members of the victim’s sex in the workplace; and (3) when comparative evidence shows that the harasser treated members of one sex worse than members of the other sex in a mixed-sex workplace. The district court ruled that the second and third theories identified in Oncale did not apply, because there was no evidence that the supervisor was motivated by general hostility to men in the workplace, and it was not a mixed-sex workplace—all employees were male. The district court concluded that the employee could not prove his claim under the first Oncale theory, because the only evidence was that the supervisor was straight, and he did not make proposals of sexual activity to the employee. Because the employee’s case did not come within any of the Oncale theories, the district court concluded that the employee could not establish that the supervisor’s conduct was based on sex.

The Fourth Circuit rejected the district court’s interpretation of Oncale as providing the exclusive circumstances under which an employee can prove sex-based harassment by a person of the same sex. The Fourth Circuit noted that even the facts in Oncale did not fit under one of those three theories, but the Supreme Court reversed summary judgment entered in favor of the employer. The Fourth Circuit acknowledged that it had suggested in a 2019 unpublished opinion that the three theories identified in Oncale are exclusive. However, citing cases from other circuits, the Fourth Circuit announced that it was adopting the “well-reasoned view” that Oncale does not limit the evidentiary routes by which an employee may prove same-sex sexual harassment. The Fourth Circuit also rejected the company’s effort to reframe the employee’s claim as being based on sexual orientation, rather than sex, citing Bostock v. Clayton County, 140 S. Ct. 1731 (2020), where the Supreme Court held that discrimination on the basis of sexual orientation is sex-based discrimination in violation of Title VII.

Because the district court erred by treating the Oncale theories as exclusive, the Fourth Circuit vacated the summary judgment order as to the employee’s sexual harassment claim, and remanded for further proceedings. In doing so, the Fourth Circuit also concluded that the district court erred by failing to consider evidence of the supervisor’s physical assaults in determining whether there was a hostile work environment. The Fourth Circuit directed the district court to consider the supervisor’s physical assaults when deciding, on remand, whether the employee made out a prima facie case of sexual harassment in violation of Title VII.

Turning to the Title VII retaliation claim, the Fourth Circuit affirmed summary judgment in favor of the company. To make out a prima facie case of retaliation under the McDonnell Douglas framework, an employee must show that the employee engaged in protected activity, the employer took adverse action, and a causal relationship existed between the protected activity and the adverse action. If the employee makes out a prima facie case, the burden shifts to the employer to show a legitimate non-retaliatory reason for the adverse action. The burden then shifts back to the employee to attempt to establish that the reason was a pretext for illegal discrimination. Although the employee showed that he engaged in protected activity by complaining about harassment, and an adverse action was taken, the Fourth Circuit agreed with the company that the employee failed to show a causal connection between the protected activity and termination of his employment—the decisionmaker did not have the required actual knowledge of the protected activity, and no causal inference could be drawn from the timing of termination, three months after the employee’s complaints. Because the employee could not make out a prima facie case on the causation element of his retaliation claim, the Fourth Circuit ruled that the district court properly granted summary judgment in favor of the company.

Billioni v. Bryant, — F.3d — , 2021 WL 2096363 (4th Cir. May 25, 2021), available at http://www.ca4.uscourts.gov/opinions/201420P.pdf

A detention center employee disclosed confidential information about an inmate’s death to the employee’s spouse, who worked for a local news station. The employee’s spouse disclosed the information to an investigative reporter, setting off a wave of media attention focused on the actions of detention officers leading up to the inmate’s death. The sheriff initiated an internal investigation to determine how the confidential information was disclosed. The employee first lied to investigators and denied that he was the source of the leak, but later admitted his actions. The employee declined the opportunity to resign, and the sheriff terminated the employee’s employment. The employee sued the sheriff under 42 U.S.C. § 1983, alleging wrongful termination in retaliation for the employee’s exercise of his First Amendment rights. The district court initially ruled that the employee’s speech in disclosing information about the inmate’s death was protected by the First Amendment, because the employee’s speech did not cause any disruption at his place of employment. On appeal, the Fourth Circuit reversed on the ground that the district court applied an incorrect legal standard; the district court should have considered whether the speech caused a reasonable apprehension of disruption, not whether it caused actual disruption. Applying the reasonable apprehension standard on remand, the district court ruled that the employee’s speech was not protected by the First Amendment, and therefore granted the sheriff’s motion for summary judgment. On the employee’s appeal, the Fourth Circuit affirmed.

Under Pickering v. Board of Education, 391 U.S. 563 (1968), to determine whether a public employee can prove a claim for retaliatory discharge in violation of the First Amendment, courts consider (1) whether the public employee was speaking as a citizen upon a matter of public concern or as an employee about a matter of personal interest; (2) whether the employee’s interest in speaking upon the matter of public concern outweighed the government’s interest in providing effective and efficient services to the public; and (3) whether the employee’s speech was a substantial factor in the employee’s termination decision. Only the second prong, known as “Pickering balancing,” was at issue on the employee’s appeal. To conduct the balancing test, courts take into account the context of the employee’s speech and the extent to which it disrupts the operation and mission of the public employer. The public employer need not prove that the employee’s speech actually disrupted efficiency; it is sufficient that the employer show that an adverse effect was reasonably to be apprehended.

Applying this test, the Fourth Circuit concluded that the employee’s speech was not protected. The Fourth Circuit explained that the employee’s interest in speaking about the death of the inmate should be afforded diminished weight, because the employee was not offering an informed opinion—the employee was not present at the time of the inmate’s death, and only reviewed security footage and news articles to inform his speech. The employee also made no effort to report his concerns up the chain of command before disclosing information outside the sheriff’s office. On the other hand, the Fourth Circuit concluded that the record demonstrated the sheriff’s reasonable apprehension that the speech would be disruptive. The employee disclosed unconfirmed information about the inmate’s death at a time when the official investigation was ongoing. The Fourth Circuit concluded that, as a matter of law, the sheriff’s reasonable apprehension of disruption outweighed the employee’s interest in the speech, making the speech unprotected. Because the employee’s speech was not protected by the First Amendment, the Fourth Circuit affirmed the entry of summary judgment in favor of the sheriff.

Judge Floyd wrote a dissenting opinion. While Judge Floyd agreed with the majority that the Court was to balance the employee’s interest in the speech against the employer’s reasonable apprehension of disruption, Judge Floyd explained that, in his view, the employee had a heightened interest in speaking about a matter as significant as law enforcement misconduct. Therefore, Judge Floyd would have concluded that the balance tipped in favor of the employee’s interests.