The First Circuit holds that denial of an employee’s request for office space may be a materially adverse action for purposes of a Title VII retaliation claim, though on the individual facts affirms summary judgment for the employer. The Eleventh Circuit grants en banc review in a sex harassment case, mere months after giving full-bench review to another harassment case.
Lockridge v. University of Southern Maine, No. 09-1895 (1st Cir. Mar. 10, 2010): The plaintif in this case commenced a Title VII sex discrimination case alleging (1) sex discrimination (denial of a pay raise); (2) retaliation (relating to the denial of her request to move to another office); and (3) hostile work environment. The panel affirms summary judgment in full, but for purposes of commentary we focus on the second claim.
The appeal focused on whether the employer’s failure to assign the employee office space was materially adverse. The panel states that “materially adverse” action must be one that could “dissuade a reasonable worker from making or supporting a charge of discrimination.” Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006). The district court held that denial of office space was categorically insufficient to be considered adverse. On this point, the First Circuit disagrees:
“After Burlington Northern, employment actions are less susceptible to categorical treatment when it comes to the question of whether they are or are not materially adverse. We think that, under certain circumstances, the denial of an employee’s request for office space could dissuade a reasonable person from making or supporting a charge of discrimination. Indeed, we have previously concluded that ‘disadvantageous transfers or assignments’ can be materially adverse, although in the context of conditions more severe than those attending the usual employee office space request.”
What the plaintiff failed to accomplish in this case, though, was to prove that the non-assignment of office space in any meaningful way singled her out, versus her colleagues:
“[O]n the undisputed record, Lockridge’s continued location in a satellite office was not unique. The attendant inconveniences may not have been optimal, but neither did they affect Lockridge more adversely than they did some of her colleagues. Lockridge herself observes that other faculty members within the Department, including those senior to her such as Shedletsky, were similarly located in satellite offices. So, although Lockridge’s request for a better office may have been a reasonable one, the fact remains that the denial left her in no worse a position than that held by similarly situated faculty members.”
Corbitt v. Home Depot U.S.A., Inc., No. 08-12199 (11th Cir. Mar. 10, 2010): In January 2010, the Eleventh Circuit published a unanimous, en banc opinion reversing summary judgment in a Title VII, hostile work environment case, Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798 (11th Cir. 2010). (My blog entry here.) Now the same court, just seven weeks later, grants review in another such case, Corbitt v. Home Depot U.S.A., Inc., 589 F.3d 1136 (11th Cir. 2009). This case, alleging male-on-male harassment by a supervisor against two employees, failed on summary judgment — as affirmed by the panel majority — because the harassment supposedly was not severe or pervasive. The panel majority held that the preponderance of supervisor’s cited comments were only about the employees’ appearance or were deemed “flirtatious” (e.g. comments about their looks, their clothes and that they were “cute”), combined with 4-6 incidents of brief touching and explicit sexual comments per employee. The dissenting judge in the case thought that if the same behavior had been directed by a male supervisor against female employees, it would manifestly have raised a jury issue. (The plaintiffs also filed a Title VII retaliation claim, and the panel reversed summary judgment on that count; that claim does not appear to be the subject of rehearing.)