This unpublished decision, overturing a jury verdict for the plaintiff in a Title VII retaliation case and directing entry of judgment for the employer, highlights a gap in the statutory scheme in need of re-thinking: that the anti-retaliation section seemingly does not protect an employee who cooperates in the investigation of a single incident of co-worker harassment.
Robinson v. Cavalry Portfolio Svcs, LLC, No. 08-5020 (10th Cir. Feb. 10, 2010): The plaintiff (KaRon Robinson) is a white woman married to an African-American man. Plaintiff Robinson, according to the record, was subjected to ugly racial comments by a co-worker named Torres. The incident was witnessed and reported to management by another co-worker (named Cooper). A manager (named Bemore), in response to Cooper’s complaint, interviewed several witnesses. Bemore interviewed plaintiff Robinson first, who said:
“Mark [Torres] and I [plaintiff] were having lunch and Mark politely asked me if I only dated black guys like Mariza did. I told him no I was attracted to both I just happened to end up [with] one of a different race. He responded [with] the fact that he would never date someone of another race, he just couldn’t stand having to listen to them complain about the whole sla very topics. He thought they used it as a crutch. Mark continued to express that he’s not a racist that he just didn’t really like blacks until he got to know them. Which is fine however there were several times he used the word ‘Nigger’ while referring to them. He explained that he just didn’t like the fact that they can call each other by that word but he can’t call them that. I’m pretty sure he wasn’t using the term neg[atively] he was just using the term to describe a certain situation. However there were several people in the break room and I’m sure they over-heard him using the term. I did [talk to] him outside after lunch bec[ause] I was offended and Mark explained to me that he was using the word to explain himself in that situation but he wasn’t calling anyone here that. He apologized to me for even using the term and I explained to him that I understood if he felt that however work is not the place to discuss it. He had also made a comment that he didn’t have black in his bloodline because if he did he would be scraping that sh_t off. I told him that was a very racist thing to say and once again he cont[inued] to explain that he has black friends, and he’s not a racist.”
Although Torres denied much of this incident, the company counseled him and he was fired two days later (for tardiness). Although Torres returned to the worksite to harass and threaten plaintiff and her spouse, the company expelled him from the property. But within six months of the incident, plaintiff resigned as well. “She claimed Cavalry gave her fewer and less lucrative accounts, had her commissions lowered and told her she could not be seen with her husband even though other couples were free to mingle. She also claimed she was not promoted out of Academy Bay when other less competent employees graduated to the floor. She alleged she was subject to verbal abuse and inequitable disciplinary measures by her supervisors and the conditions of her work forced her to resign.”
At trial, the plaintiff — representing herself — tried Title VII claims of disparate treatment, harassment and retaliation. She won a jury verdict of $150,001 in compensatory damages and $150,000 in back pay. The back pay award was vacated, and a second trial resulted in a back pay award of $12,141.71 including interest.
On appeal, the panel vacates the liability findings and mandates entry of judgment for the employer. Though the discrimination and harassment claims presented principally factual issues (and will be omitted here, for brevity’s sake), the retaliation claim tottered on a straight legal issue.
According to the panel, the plaintiff’s cooperation with an investigation of an allegation of harassment was not a protected activity under § 704(a) of Title VII. The panel observes that under a recent decision, Crawford v. Metro. Gov’t. of Nashville & Davidson County, Tenn., 129 S. Ct. 846 (2009), it is indeed a protected activity to participate in an internal investigation. But citing a highly-controversial Fourth Circuit decision from 2006, Jordan v. Alternative Res., Corp., 458 F.3d 332 (4th Cir.), en banc reh. denied by an equally divided court, 467 F.3d 378 (4th Cir. 2006), cert. denied, 549 U.S. 1362 (2007), the panel holds that no reasonable person could have believed that the lunchroom talk was racial harassment: “No reasonable person could have believed that the single Torres incident violated Title VII’s standard. It is undisputed the employees’ reports, including [plaintiff] KaRon’s, do not claim Cavalry did anything wrong. They state a co-employee made a racial slur. In the words of the Fourth Circuit: ‘[N]othing in our ruling condones the contemptible comment made by the coworker in this case . . . . [But] complaining about an isolated racial slur is not opposition protected by Title VII.’ Jordan, 467 F.3d at 380. Thus, KaRon failed to establish her prima facie retaliation case.”
Where this leaves us is this: unless the harassment has ripened to the point where it is arguably already “severe or pervasive,” and the employer has arguably failed to take corrective steps, there can be no Title VII retaliation claim for reporting the earliest incidents. This result means (paradoxically) that employees get more protection the longer that they’re willing to tolerate abuse, and not report it to the employer. This benefits nobody (except the harassers of the world). Employer and employee advocates ought to join forces to lobby the EEOC and Congress for a patch on this section, to encourage early reporting of alleged harassment.