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EEOC v. Rite Way Service, Inc., No. 15-60380 (5th Cir. Apr. 8, 2016)

The Fifth Circuit affirms that an employee interviewed as part of a company's internal investigation into sex harassment complaints is protected under the "opposition" prong of the anti-retaliation section of Title VII. Yet it also holds that the witness must manifest at least a "reasonable belief" that what she witnessed rose to a violation of that act.

EEOC v. Rite Way Service, Inc., No. 15-60380 (5th Cir. Apr. 8, 2016): Claimant Ms. Tennort within one week reportedly "observed two interactions between [supervisor] Harris and an other general cleaner, [Ms.] Quarles, that troubled her. The first involved Harris pretending to smack Quarles's bottom and saying, 'ooh wee.'" The second was when Harris said he "could tell what was in Quarles's pants pocket and stated that 'somebody must be looking real hard at [Quarles's] behind,'" supposedly adding for emphasis that "I'm a man, I'm gonna look."

In response to her employer's request, Tennort submitted a written report about the second incident. That week, Harris was transferred away, but the school replaced Harris with his br other-in-law:

"Over the next five weeks, she received two written warnings and up to two oral warnings for poor job performance Her alleged infractions included not properly cleaning areas assigned to her, tardiness, and insubordination. These warnings were the first that Tennort had received since beginning her employment with Rite Way in 2009."

Ms. Tennort was finally fired for alleged "neglect of duty," little more than a month after filing her witness statement.

The district court concluded as a matter of law that "that Tennort did not engage in protected conduct under Title VII's anti retaliation provision," but the Fifth Circuit reverses.

Title VII's opposition clause in section 704(a), 42 U.S.C. § 2000e-3(a), requires opposition of a practice made unlawful by Title VII ("he has opposed any practice made an unlawful employment practice by this subchapter"). Thus, courts have generally required that the employee had an objectively reasonable belief that the practice "opposed" was illegal. Courts have not generally considered, though, the situation where the party "opposing" the practice was a third-party witness to an event, responding passively to an employer's request for information.

The Fifth Circuit concludes that the "reasonable belief" standard applies equally to persons cooperating in an investigation. The EEOC argued based on Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee, 555 U.S. 271 (2009), that it was enough that the employee "opposed" conduct "by responding to someone else's question." Yet the panel holds that "creating a lower threshold for reactive plaintiffs bringing retaliation claims would be at odds with Crawford's reasoning that the language of the opposition clause does not permit courts to treat reactive opposition any differently than proactive opposition."

The panel also rejects the policy argument proffered by the EEOC that "requiring reactive complainants to have a reasonable belief regarding the unlawfulness of the behavior they have witnessed" would discourage employees from cooperating with internal investigations. It holds that the "reasonable belief" standard already resolves the tension between "too parsimonious a grant of protection under the opposition clause" and "still maintain[ing] a connection between what the plaintiff is 'opposing' and the discriminatory conduct Title VII forbids." Any further compromise, the panel holds, would unteThere the retaliation claim entirely from the text of the statute.

Notwithstanding its refusal to budge from the "reasonable belief" standard, the panel reverses summary judgment. Even if the one incident the claimant witnessed would not by itself constitute harassment as a legal matter, the circumstances might tilt into gray-zone "reasonable belief" - at least enough to allow a jury to decide it. "She heard Harris tell Quarles that he was looking at and admiring her rear end ... [T]his was conduct directed at a specific fellow employee. That it came from a person in a supervisory position is an other important consideration." The earlier near-slap is also "relevant to how she assessed the seriousness of Harris's later comment that he was 'gonna look' at Quarles's rear end because he was a man."

Finally, Ms. Tennort's belief was informed by a pamphlet furnished by the employer that "sexual harassment" - including "unwelcomed sexual . . . comments" and " other verbal or physical conduct of a sexual nature" - should be reported. In sum, "If Tennort had not yet reached a view that Harris violated federal employment law when he made offensive comments and gestures about Quarles's rear end, the circumstances surrounding her questioning may very well have caused her to do so."

The panel also rejected the employer's alternative argument - that the EEOC failed to create a genuine dispute of material fact about causation - citing "strong temporal proximity between her written report and her termination."

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