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Davenport v. Edward D. Jones & Co., LP, No. 17-30388 (5th Cir. May 22, 2018)

Can a boss's repeated offer of a "big bonus" to a woman employee as an inducement to date an important customer constitute quid pro quo sexual harassment? The Fifth Circuit today holds that it can ... but also holds (2-1) that the plaintiff failed to present a genuine dispute that she was entitled to such a bonus in the first place.

Davenport v. Edward D. Jones & Co., LP, No. 17-30388 (5th Cir. May 22, 2018): Davenport worked as the Branch Office Administrator for a manager named Coyne. The panel summarized the facts as follows:

"After learning that Harry Fisher ('Fisher'), a wealthy potential client, was interested in dating Davenport, Coyne told Davenport that she should 'date' Fisher in exchange for 'big bonuses.' Davenport responded that she had a boyfriend and that she was not interested in dating Fisher. Coyne repeated his offer approximately three more times within thirty days, but Davenport never dated Fisher."

The next year, Coyne rated Davenport as "exceeding expectations," and recommended that she receive a 4% salary increase, but she received no bonus. Davenport complained about Coyne's behavior and eventually resigned. She filed a complaint alleging quid pro quo sex harassment based on the "big bonus" comments, as well as constructive discharge. The district court granted summary judgment, holding that no such claim could lie because "the sexual advances related to the alleged tangible employment action must relate to advances with the supervisor."

The Fifth Circuit, while rejecting some of the district court's rationale, affirms summary judgment. The panel first holds that Davenport had failed to submit the constructive discharge claim to the EEOC for investigation, and thus forfeited her right to bring it in court.

The panel then addresses the bonus issue. It holds that "denial of a raise" is a tangible employment action, citing the U.S. Supreme Court's decision in Burlington Industries, Inc., v. Ellerth. Contrary to the district court, the panel also holds that the propositioning in a quid pro quo case does not need to be directly by or for the supervisor's benefit.

"Coyne allegedly conditioned the receipt of 'big bonuses' upon Davenport's submission to his requests that she date Fisher. Because Coyne made the requests, he engaged in the sexual harassment, not Fisher. It is of no consequence that a third-party was to be the beneficiary-Coyne was the harasser."

The panel also holds that even the open-ended suggestion that Davenport "date" Fisher could constitute actionable harassment, as it may be regarded as a "request for sexual favors."

Nevertheless, two of the panelists hold that Davenport failed to present evidence that the employer took a tangible employment actions against her, and affirm summary judgment on that basis.

"Davenport produced no summary-judgment evidence that, under Edward Jones's bonus policy, she was eligible for a bonus in October 2015 that Coyne could either approve or disapprove. Consequently, Davenport produced no summary judgment evidence that Coyne and Edward Jones denied her a bonus because she refused to date Fisher."

Dissenting in part, Judge Higginson would have held that there was a genuine dispute of material fact whether Coyne possessed such authority. "

"Coyne hired Davenport, formally evaluated her work performance, and approved her salary increases and bonuses. In March of 2015, Coyne approved a $400 bonus for Davenport. As Edward Jones' attorney conceded at oral argument, Coyne 'was responsible for giving [Davenport] a bonus' and could have approved a bonus 'based on good performance or any other vague thing.'"

Thus whether "Coyne was joking or lying about a bonus" or was being honest was a credibility issue that belonged to a jury.

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