Team No. 1721

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF STETSON

METTS CITY DIVISION LINDSAY BOOTH,

CASE NO.: 15: 17-cv-0068-CHR-ESM Plaintiff

v. SUDDEN VALLEY CONSTRUCTION COMPANY,

Defendant ____________________________________

PLAINTIFF’S MEMORANDUM OF LAW IN RESPONSE TO DEFENDANT’S MOTION TO DISMISS COMPLAINT

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TABLE OF CONTENTS

TABLE OF AUTHORITIES………………………………………………...….....iv

QUESTIONS PRESENTED…………………………………...…………………..1

STATEMENT OF FACTS………………………………………………...……….1

STATEMENT OF JURISDICTION…………………………………………...…..3

SUMMARY OF ARGUMENT…………………………………………...….…….3

ARGUMENT………………………………………………………………...……..4

I. SEXUAL ORIENTATION IS A PROTECTED CLASS UNDER THE TERM “SEX” IN TITLE VII……………………………………………….5

A. The Plain Meaning of “Sex” in Title VII includes Sexual Orientation…………………………………………………………...6

B. Sex Discrimination Includes Any Discrimination “Because Of” Sex, Including Sexual Orientation Discrimination……….……………….7

C. The Supreme Court’s Broad Interpretation of Title VII Supports Sexual Orientation as Inherent in the Term “Sex.”…………………..9

D. Title VII Should Prohibit Sexual Orientation Discrimination Because it Prohibits Associational Discrimination…………………………..11

E. Dismissal is Improper Under a 12(b)(6) Motion to Dismiss Because the Law is Unsettled………………………………………………...12

II. PLAINTIFF HAS STATED A CLAIM OF RETALIATION…………….13

A. Plaintiff Engaged in a Protected Activity Protected by Title VII..…14

B. Defendant Knew of Plaintiff’s Protected Activity……………….…16

C. Defendant Took Materially Adverse Actions Against Plaintiff……16

ii

1. Plaintiff’s Negative Performance Review and Demotion

Were Materially Adverse Employment Actions…...………17

2. Plaintiff Was Subjected to a Hostile Work Environment Which Constituted a Materially Adverse Action for Retaliation Purposes.……………………………………….18

3. Plaintiff Was Constructively Discharged From Employment at SVCC……………………………………………………19

D. There is a Causal Link Between Plaintiff’s Protected Activity and the

Retaliation…………………………………………………….…….20

CONCLUSION…………………………………………………………………...21

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TABLE OF AUTHORITIES

Cases:

Baldwin v. Foxx, E.E.O.C. Decision No. 0120133080, 2015 EEOPUB LEXIS 1905

(2015)…………………………………......…………………...……….........8

Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005)……………...…….8, 10

Berthiaume v. Appalachian Christian Vill.Found., Inc., No. 2:07-cv-46, 2008 U.S.

Dist. LEXIS 78724…………………………………………………………14

Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006)...….14, 17

Cobb v. Stringer, 850 F.2d 356 (8th Cir. 1988)……………………………………9

Coe v. N. Pipe Prods., Inc., 589 F.Supp.2d 1055 (N. D. Iowa, 2008)……………15

Culpepper v. Reynolds Metals Co., 421 F.2d 888 (5th Cir. 1970)………………...9

Deffenbaugh-Williams v. Wal-Mart Stores, 156 F.3d 581 (5th Cir. 1998)……….10

EEOC v. Avery Dennison Corp., 104 F.3d 858 (6th Cir. 1997)………………..…14

EEOC v. New Breed Logistics, 783 F.3d 1057 (6th Cir. 2015)…………………...14

EEOC v. Townley Eng'g & Mfg. Co., 859 F. 2d. 610 (9th Cir. 1988)…………....10

Fairbrother v. Morrison, 412 F.3d 39 (2d Cir. 2005)…………………………….18

Farrell v. Planters Lifesavers Co., 206 F.3d 271 (3d Cir. 2000)…………………20

Furr v. Ridgewood Surgery & Endoscopy Ctr., LLC, 192 F. Supp. 3d 1230 (D.

Kan. 2016)………………………………………………………………….19

Galper v. JP Morgan Chase Bank, N.A., 803 F.3d 437(2d Cir. 2015)……………..5

iv

Green v. Adm’rs of Tulane Educ. Fund, 284 F.3d 642 (5th Cir. 2002)…………...15

Griggs v. Duke Power Co., 401 U.S. 424 (1971)…………………………………..8

Gunnell v. Utah Valley State College, 152 F.3d 1253, 1264 (10th Cir. 1998)……17

Harris v. City of New York, 186 F.3d 243 (2d Cir.1999)…………………………..5

Hively v. Ivy Tech Cmty. College of Ind., 853 F.3d 339 (7th Cir. 20………8, 10, 12

Holcomb v. Iona Coll., 521 F.3d 130 (2d Cir. 2008)……………………………...11

Holly D. v. Cal. Inst. of Tech., 339 F.3d 1158 (9th Cir. 2003)……………………16

INS v. Cardoza-Fonseca, 480 U.S. 421 (1987)…………………………………….7

Loving v. Va, 388 U.S. 1 (1967)…………………………………………………..11

Marra v. Philadelphia Hous. Auth., 497 F.3d 286 (3d Cir. 2007)………………..20

Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986)………………………...9

Moberly v. Midcontinent Commun., 711 F.Supp.2d 1028 (D.S.D. 2010)……...…15

Noviello v. City of Boston, 398 F.3d 76 (1st Cir. 2005)…………………………..19

Obergefell v. Hodges, 135 S.Ct. 2584 (2015)……………………………………...9

Ogden v. Wax Works, Inc., 214 F.3d 999 (8th Cir. 2000)………………………...14

Oncale v. Sundowner Offshore Servs., 523 U.S. 75 (1998)………………7, 8, 9, 17

Pennsylvania State Police v. Suders, 542 U.S. 129 (2004)……………………….19

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)…………………………6, 8, 11

Reed v. Cracker Barrel Old Country Store, Inc., 133 F.Supp.2d 1055 (M.D.Tenn.

2000)………………………………………………………………………..14

v

Reynolds & Reynolds Co. v. Universal Forms, Labels & Sys., 965 F. Supp. 1392

(C. D. Ca. 1997)……………………………………………………………..9

Sanders v. N.Y.C. Human Res. Admin., 361 F.3d 749 (2d Cir. 2004)…………….18

Schwenk v. Hartford 204 F.3d 1187 (9th Cir. 2000)……………………………….6

Sprogis v. United Air Lines, 444 F.2d 1194 (7th Cir. 1971)……………………….8

Steele v. Offshore Shipbuilding, Inc., 867 F.2d 1311 (11th Cir. 1989)…………...16

Tart v. Illinois Power Co., 366 F.3d 461 (7th Cir. 2004)…………………………18

Toth v. Gates Rubber Co., 2000 U.S. App. LEXIS 14374………………………..17

Ybarra v. San Jose, 503 F.2d 1041 (9th Cir. 1974)……………………………….12

Statutes: 28 U.S.C. § 1331……………………………………..…………………………….5

42 U.S.C. § 2000e-2………………………………………………………………..6

42 U.S.C. § 2000e-3(a)……………………………………………………13, 14, 20

Rules:

Fed. R. Civ. P. 12(b)(6)…………………………………………………………….4

Other Authorities: Black’s Law Dictionary (5th pocket ed. 2016)……………………………………..6 CORRECTED BRIEF, on behalf of Appellant William Allen Moore, Jr. and

Melissa Zarda, Zarda v. Altitude Express, Inc., (June 28, 2017) (No. 15-

3775)………………………………………………………………………..13

vi

EEOC Enforcement Guidance on Retaliation and Related Issues………………..16 Gender, merriam-webster.com/dictionary/gender (Last viewed Sept. 12,

2017)………………………………………………………………………....7

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QUESTIONS PRESENTED

1. Does Title VII include protection from discrimination based on sexual

orientation?

Answer: Yes.

2. Did Plaintiff’s rejection of his supervisor’s sexual advance qualify as a

protected activity for the purpose of establishing a retaliation claim under

Title VII?

Answer: Yes.

STATEMENT OF FACTS

After Lindsay Booth rejected his supervisor’s sexual advance on October 16,

2016, his position at Sudden Valley Construction Company quickly took a turn for

the worse. The plaintiff, Lindsay Booth, an openly gay male, was hired by the

defendant, Sudden Valley Construction Company (“SVCC”) on February 1, 2016.

Compl.at ¶ 5, 8. As a construction project engineer, SVCC agreed to pay Booth

$85,000 per year plus quarterly bonuses to supervise a team of twenty-eight

construction workers. Id. at ¶ 6, 7. Booth reported directly to Jesse Bowers, the

construction superintendent. Id. at ¶ 9, 10. Booth submitted weekly reports to

Bowers, to keep him updated on the project’s progress. Id. at ¶ 11.

Bowers gave Booth his first quarterly performance review on June 28,

2016. Id. at ¶ 17. In the review, Bowers indicated that Booth was “an efficient and

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effective project engineer” and “handled the stresses and problems of the first

quarter of development with ease,” even though the project was four days behind

schedule. Id. at ¶ 17. Based on this review, Booth received a $4,500 bonus. Id. at

¶ 18.

On September 12, 2016, Booth and Bowers became aware of a defect in

construction. Id. at ¶ 19. Booth immediately fired four construction workers

responsible for the defect, but the defendant would not hire replacement workers.

Id. at ¶ 20. Construction fell three weeks behind schedule, and Booth informed

Bowers on October 11, 2016. Id. at ¶ 21, 22. Bowers said he would work

overtime with Booth in order to rectify the delay. Id. at ¶ 22.

On the night of October 19, 2016, Bowers and Booth were working alone

when Bowers asked Booth if he was worried about his upcoming performance

review. Id. at ¶ 23. When Booth said he was nervous, Bowers said he was

“impressed with Booth’s diligence.” Id. He then grabbed Booth’s buttocks, and

said he would “take care of the review, if [Booth] took care of him.” Id. Booth

immediately backed away from Bowers, and told him he was not interested. Id. at

¶ 24. As soon as Booth rejected Bowers, Bowers left the project site and did not

return to help Booth for a week. Id. at ¶ 25.

Five days after the sexual advance, one of Booth’s co-workers told Booth

that Bowers had called Booth a gay slur. Id. at ¶ 26. Four days later, Bowers gave

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Booth a performance review dramatically different from the first, indicating that

Booth’s performance had “declined significantly,” that he had “dreary leadership,”

and that he lacked “strong moral values.” Id.at ¶ 27.On November 7, 2016,

Bowers verbally attacked Booth personally and professionally in a meeting with

SVCC’s Vice President. Id. at ¶ 30.

The next day, when Booth expected to receive his quarterly bonus, he was

instead demoted to weekend shift supervisor. Id. at ¶ 31, 32. This demotion cut

Booth’s work-week to three days, and from $85,000 per year to $18 per hour. Id. at

¶ 33. Bowers said this demotion would allow Booth to “spend more time with his

spouse.” Id. at ¶ 32. The demotion made Booth’s work conditions so unbearable

that he resigned and filed a discrimination charge with the Equal Employment

Opportunity Commission (“EEOC”). Id. at ¶ 35, 36.

STATEMENT OF JURISDICTION

This case presents a federal question under 42 U.S.C. § 2000e, or Title VII

of the Civil Rights Act of 1964, because the Civil Right Act of 1964 is a federal

law. District Courts have original jurisdiction for civil actions arising under the

Constitution, laws, or treaties of the United States. 28 U.S.C. § 1331.

SUMMARY OF ARGUMENT

Title VII was created to eradicate discrimination in the workplace. Sexual

orientation may not have been the focus at the time of enactment, but it would be a

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disservice to the language and spirit of the law to refuse to an entire class of

people, just because the law does not explicitly say “sexual orientation.” Over

time, courts have expanded Title VII to include multiple classes that are not

explicitly stated. It is clear that an employee should not be subjected to

discrimination at work just because he is gay. Title VII has the power and the

purpose to protect such victims and it should not be constrained to an arbitrary

definition based on an outdated understanding of “sex”.

When Plaintiff, Lindsay Booth rejected his immediate supervisor’s sexual

advance, he engaged in a protected activity under Title VII. In retaliation for this

rejection, Booth faced multiple materially adverse actions including a negative

performance review, a significant employment demotion, a hostile work

environment, and ultimately, retaliatory constructive discharge.

For the forgoing reasons, we respectfully request this court should deny the

defendant’s motion to dismiss.

ARGUMENT

Rule 12(b)(6) allows a motion to dismiss for “failure to state a claim upon

which relief can be granted.” Fed. R. Civ. P. 12(b)(6). Considering a motion to

dismiss pursuant to Rule 12(b)(6), a court is “required to accept as true the facts

alleged in the complaint, consider those facts in a light most favorable to the

plaintiff, and determine whether the complaint sets forth a plausible basis for

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relief.” Galper v. JP Morgan Chase Bank, N.A., 803 F.3d 437, 443-444 (2d Cir.

2015). Additionally, the plaintiff’s burden for a complaint is light. “The district

court should grant such a motion only if, after viewing plaintiff's allegations in this

favorable light, it appears beyond doubt that the plaintiff can prove no set of facts

in support of his claim which would entitle him to relief.” Harris v. City of New

York, 186 F.3d 243, 247 (2d Cir.1999).

I. SEXUAL ORIENTATION IS A PROTECTED CLASS UNDER THE TERM “SEX” IN TITLE VII. Title VII prohibits sexual orientation discrimination as a form of sex

discrimination. When looking at Title VII as a whole, this Court should find that

(1) the plain meaning of the term “sex” within the statute encompasses sexual

orientation, the common usage of “sex” is consistent with court decisions, and both

support the proposition that Title VII prohibits sexual orientation discrimination;

(2) the statute prohibits discrimination “because of…sex,” which should cover

sexual orientation because it is a sex-based distinction; (3) the remedial purpose of

the statute and the broad construction given by the courts support prohibiting

sexual orientation discrimination under Title VII; and (4) Title VII prohibits

discrimination based on association, and sexual orientation is inherently a matter of

association. A court should not grant a 12(b)(6) motion to dismiss when a matter of

law is unsettled.

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A. The Plain Meaning of “Sex” in Title VII includes Sexual Orientation.

The term “sex” in Title VII also means gender, and therefore protects sexual

orientation. Title VII makes it unlawful for an employer “to discriminate against

any individual with respect to his compensation, terms, conditions, or privileges of

employment, because of such individual's…sex.” 42 U.S.C. § 2000e-2.

Addressing sex discrimination under Title VII, courts use the terms sex and gender

interchangeably. See generally Price Waterhouse v. Hopkins, 490 U.S. 228

(1989). The Ninth Circuit in Schwenk v. Hartford explained, “Under Price

Waterhouse, ‘sex’ under Title VII encompasses both sex – that is, the biological

differences between men and women – and gender.” 204 F.3d 1187, 1202 (9th

Cir. 2000).See also Black’s Law Dictionary (5th pocket ed. 2016)(defining sex as

the “sum of the peculiarities of structure and function that distinguish a male from

a female; gender.”).

The common usage of “sex” also encompasses gender. Gender is either

“the behavioral, cultural, or psychological traits typically associated with one sex,”

or simply, “sex.” Gender, merriam-webster.com/dictionary/gender (Last viewed

Sept. 12, 2017). When gender and sex are treated as one, it necessarily includes

both the biological traits and the behavioral, cultural, and psychological traits that

accompany them. To consider sexual orientation as either a psychological,

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cultural, or behavioral trait of sex would be reasonable. To say it has no relation to

any of them would not.

The defendant argues that the plain meaning of sex does not include sexual

orientation, relying on the fact that Congress has not defined sex to include sexual

orientation. This argument also assumes the inverse: Congress has not defined sex

to exclude sexual orientation. Essentially, the defense asks this Court to refrain

from defining sex at all, and wait for a legislative definition that may never come.

That would be unnecessary and unjust. The Court is “bound to ‘assume that the

legislative purpose is expressed by the ordinary meaning of the words used.’” INS

v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987). If the Court applies the ordinary

meaning of “sex” to Title VII, it is clear that “sex” encompasses sexual orientation.

B. Sex Discrimination Includes Any Discrimination “Because Of” Sex, Including Sexual Orientation Discrimination.

Under Title VII, discrimination based on sexual orientation is just as bad as

discrimination based on biological sex.

Statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed. Title VII prohibits "discrimination . . . because of . . . sex" in the "terms" or "conditions" of employment. Our holding that this includes sexual harassment must extend to sexual harassment of any kind that meets the statutory requirements.

Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 79-80 (1998). The Supreme

Court holds there that Title VII protects against any discrimination “because of”

8

sex, to combat discrimination not be explicitly stated in the statute. “Because of”

means sex-based considerations that are not facially “sex,” but require an employer

to consider the employee’s sex as a factor. In fact, “the scope of the Act should not

be confined to explicit discriminations based ‘solely’ on sex.” Sprogis v. United

Air Lines, 444 F.2d 1194 (7th Cir. 1971). Courts continue to find that

discrimination that is comparable to sex discrimination is still prohibited by the

statute. See, E.g., Price Waterhouse, 490 U.S. 228 (1989) (gender-based

stereotypes are discrimination); Oncale, 523 U.S. at 78 (same-sex harassment is

discrimination); Barnes v. City of Cincinnati, 401 F.3d 729, 739 (6th Cir. 2005)

(transgender people are a protected class under Title VII).

Sex is inherent in any analysis of sexual orientation. The Seventh Circuit

stated in Hively v. Ivy Tech Cmty. College of Ind., “it would require considerable

calisthenics to remove the ‘sex’ from ‘sexual orientation.’ The effort to do so has

led to confusing and contradictory results.” 853 F.3d 339, 350 (7th Cir. 2017). The

EEOC agreed. “Sexual orientation as a concept cannot be defined or understood

without reference to sex.” Baldwin v. Foxx, E.E.O.C. Decision No. 0120133080,

2015 EEOPUB LEXIS 1905 (2015). The Supreme Court has stated that EEOC

interpretations are entitled to great deference. Griggs v. Duke Power Co., 401 U.S.

424, 434-435 (1971). If courts intend Title VII to prohibit discrimination

“because of” sex, it must prohibit sexual orientation discrimination.

9

C. The Supreme Court’s Broad Interpretation of Title VII Supports Sexual Orientation as Inherent in the Term “Sex.”

It is well understood that the law respects form less than substance.

Reynolds & Reynolds Co. v. Universal Forms, Labels & Sys., 965 F. Supp. 1392

(C. D. Ca. 1997).The Supreme Court has recognized that the Title VII “evinces a

congressional intent to strike at the entire spectrum of disparate treatment of men

and women in employment.” Oncale, 523 U.S. at 78 (1998) (quoting Meritor

Savings Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986)). The Supreme Court’s

broad interpretation of Title VII’s language creates an umbrella that covers a

variety of sex-based discrimination. “The Act should thus be liberally construed

and not hampered by a combination of a strict construction of the statute and a

battle with semantics." Culpepper v. Reynolds Metals Co., 421 F.2d 888, 891 (5th

Cir. 1970).

Title VII is also designed to serve remedial purposes. Cobb v. Stringer, 850

F.2d 356 (8th Cir. 1988). As a statute designed to remedy sex-based wrongs in the

workplace, its construction should not exclude an entire class of people from

protection. If understood as the defendant contends it should be, Title VII would

give employers license to discriminate based on sexual orientation. In Obergefell

v. Hodges, 135 S.Ct. 2584 (2015), the Supreme Court decided that same-sex

couples have a Constitutional right to marry. As the Seventh Circuit aptly

described, a Title VII that does not protect sexual orientation would “create a

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paradoxical legal landscape in which a person can be married on Saturday and then

fired on Monday for just that act.” Hively, 853 F.3d at 351-352 (7th Cir. 2017).

An interpretation of Title VII that allows employers to discriminate based on

sexual orientation would undermine the purpose of the statute and produce absurd

results. This cannot be what the legislature intended, and not how courts have

interpreted the language of this statute. The legislature created Title VII to protect

against any discrimination in the workplace. This Court should not afford sexual

orientation any less protection.

It is therefore it is not necessary for “sexual orientation” to be included as a

separate protected class. As Courts have interpreted Title VII, each new protection

does not require the legislature to add a new protected class. Instead, courts have

expanded the enumerated classes. See Barnes, 401 F.3d at 739 (transgender people

are included under “sex”); Deffenbaugh-Williams v. Wal-Mart Stores, 156 F.3d

581 (5th Cir. 1998) (interracial relationships are included under “race”); EEOC v.

Townley Eng'g & Mfg. Co., 859 F. 2d. 610, 621 (9th Cir. 1988) (atheists are

included under “religion”).Even when a Court is slow to recognize a protection,

when it does it incorporates the new protections into the established classes. To

require explicit language that prohibits sexual orientation discrimination would be

inconsistent with fifty years of Title VII precedent.

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D. Title VII Should Prohibit Sexual Orientation Discrimination Because it Prohibits Associational Discrimination.

The Supreme Court decision in Loving v. Va, 388 U.S. 1 (1967), set the

precedent that associational discrimination will no longer be permitted. The

decision struck down miscegenation laws and demonstrated that discrimination

against an interracial relationship is inherently based on race. The Supreme Court

rooted its decision in the Equal Protection Clause of the Fourteenth Amendment,

but circuit courts have carried associational discrimination to Title VII. In

Holcomb v. Iona Coll., the Second Circuit held, “where an employee is subjected

to adverse action because an employer disapproves of interracial association, the

employee suffers discrimination because of the employee's own race.” Holcomb v.

Iona Coll., 521 F.3d 130 (2d Cir. 2008).

Title VII draws no distinctions between the protected classes. SeePrice

Waterhouse, 490 U.S. at 244 n.9. “The statute on its face treats each of the

enumerated categories exactly the same.” Id. Therefore, the Court must protect

against associational discrimination for race, color, religion, sex, or national origin.

Just as an employer cannot discriminate when a white person marries a black

person, it cannot discriminate just because a man marries a man. Interracial

relationships are protected under Title VII because an employee has a right to

decide with whom he/she associates. Similarly, he/she should be able to associate

12

with either sex without fear of discrimination. In fact, sexual orientation itself is

essentially a question of association; i.e., does this person associate sexually with

males or females? If an employer cannot discriminate based on association, it

should not be able to discriminate based on sexual orientation.

E. Dismissal is Improper Under a 12(b)(6) Motion to Dismiss Because the Law is Unsettled.

“A legal principle so unsettled does not constitute an "insuperable bar to

relief," and therefore does not justify dismissal for failure to state a claim upon

which relief may be granted.” Ybarra v. San Jose, 503 F.2d 1041, 1043 (9th Cir.

1974). A 12(b)(6) motion may be denied if the legal deficiency in the claim is a

result of unsettled law. Conflicting results in different circuits indicate an issue

that should be heard at its fullest potential, not the limited scope of a 12(b)(6)

motion. This issue is also of first impression, so the Court is not bound by its own

precedent and should consider the broad expanse of law on the subject. Therefore,

this Court should deny the motion and allow the case to proceed.

The defense may argue that this is settled, as the Seventh Circuit is the only

Circuit to date that holds sexual orientation as a protected class under Title VII.

However, the Supreme Court has not ruled on the issue, and the Seventh Circuit

decision, Hively, is merely the newest in a long line of cases across the Country re-

examining the protected classes in Title VII. The Second Circuit is also about to

rehear a case about sexual orientation discrimination under Title VII as an en banc

13

Court. See CORRECTED BRIEF, on behalf of Appellant William Allen Moore,

Jr. and Melissa Zarda, Zarda v. Altitude Express, Inc., (June 28, 2017) (No. 15-

3775). Circuit Courts are in fact more divided than ever on the issue of sexual

orientation in Title VII, and a 12(b)(6) motion is not the proper time for this Court

to choose a side.

II. PLAINTIFF HAS STATED A CLAIM OF RETALIATION.

Title VII prohibits employer discrimination against an employee because the

employee (1) “has opposed any practice made an unlawful employment practice”

or because the employee has (2) “made a charge, testified, assisted, or participated

in any manner in an investigation, proceeding, or hearing” under Title VII. 42

U.S.C. § 2000e-3(a).

On October 19, 2016, Booth opposed an unlawful employment practice

under Title VII, when he rejected a sexual advance by his immediate supervisor. In

response to Booth’s protected activity, Defendant retaliated by issuing a negative

performance review, demoting Booth to a weekend supervisor, and subjecting

Booth to a hostile work environment. The culmination of these events forced

Booth to resign.

To state a claim under the opposition clause of Title VII, Booth must allege

that “(1) plaintiff engaged in activity protected by Title VII; (2) plaintiff’s exercise

of his civil rights was known by the defendant; (3) that, thereafter, the defendant

14

took an employment action adverse to the plaintiff; and (4) that there was a causal

connection between the protected activity and the adverse employment action.

EEOC v. Avery Dennison Corp., 104 F.3d 858, 860 (6th Cir. 1997).

A. Plaintiff Engaged in a Protected Activity Protected by Title VII. The Supreme Court has understood that Title VII seeks to prevent an

employer “from interfering (through retaliation) with an employee’s efforts to

secure or advance enforcement of the Act’s basic guarantees”. Burlington Northern

and Santa Fe Ry. Co. v. White, 548 U.S. 53, 63 (2006). The efforts to secure and

advance enforcement can be understood as protected activities. Under Title VII,

protected activity includes either participating in an EEOC process or opposing

discrimination. 42 U.S.C. § 2000e-3(a). Here, Booth’s rejection of Bowers’ sexual

advance was an act of opposition to discrimination under Title VII.

Under Title VII, courts have held that a sexual advance constitutes a

protected activity. “An employee ‘engaged in the most basic form of protected

activity when she told her supervisor…to stop his offensive conduct’”. EEOC v.

New Breed Logistics, 783 F.3d 1057, 1067 (6th Cir. 2015) (quoting Berthiaume v.

Appalachian Christian Vill. Found., Inc., No. 2:07-cv-46, 2008 U.S. Dist. LEXIS

78724, at *4 (quoting Ogden v. Wax Works, Inc., 214 F.3d 999, 1007 (8th Cir.

2000)); see Reed v. Cracker Barrel Old Country Store, Inc., 133 F.Supp.2d 1055,

1070 (M.D.Tenn. 2000) (“A plaintiff who tells her immediate supervisor that he

15

must stop sexually harassing her is engaging in the most basic form of protected

conduct; namely, telling a harasser…to cease all forms…of harassment”).

The Fifth Circuit noted that demanding the harassment stop would have

sufficed for a protected activity, but simply saying “no” was not. Green v. Adm’rs

of Tulane Educ. Fund, 284 F.3d 642, 647 (5th Cir. 2002). However, whether or not

such a rejection of a sexual advance qualifies as a protected activity is highly

dependent on the specific facts of the case. See Coe v. N. Pipe Prods., Inc., 589

F.Supp.2d 1055, 1104 (N. D. Iowa, 2008).

When Bowers physically embraced Booth’s buttocks, Booth stated that “he

was not interested in a sexual relationship with his immediate supervisor.”

Compl.at ¶24. Booth did not need to explicitly say “stop harassing me” as the court

in Green would have preferred. Instead, Booth’s immediate rejection suits the

common goal of Title VII to protect employees who reject sexual advances at

work.

“An employee need not establish that the conduct she opposed was in fact

discriminatory, but rather must demonstrate a good faith, reasonable belief that the

underlying conduct violated the law.” Moberly v. Midcontinent Commun., 711

F.Supp.2d 1028, 1044 (D.S.D. 2010). In this case, Booth demonstrated a good

faith, reasonable belief that the conduct was illegal when he rejected the sexual

advance.

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Additionally, the EEOC, the agency charged with interpreting and enforcing

Title VII, has issued compelling guidance that the rejection of a sexual advance is a

protected activity. See EEOC Enforcement Guidance on Retaliation and Related

Issues, Section II (“In response to a supervisor’s repeated sexual comments to her,

an employee tells the supervisor ‘leave me alone’ and ‘stop it.’”). Booth “backed

away from Bowers”, “unequivocally told Bowers that he was not interested in a

sexual relationship with his supervisor.” Compl. at ¶ 24. Booth’s conduct falls

squarely within the EEOC’s definition of a protected activity.

B. Defendant Knew of Plaintiff’s Protected Activity.

“When a supervisor requires sexual favors as a quid pro quo for job

benefits, the supervisor, by definition, acts as the company”. Steele v. Offshore

Shipbuilding, Inc., 867 F.2d 1311, 1316 (11th Cir. 1989); Holly D. v. Cal. Inst. of

Tech., 339 F.3d 1158, 1169 (9th Cir. 2003) (“Only a supervisor, or other person

acting with the authority of the company can successfully employ this sort of

leverage”). Bowers made clear that Booth’s employment status would suffer if

Booth rejected him stating, that he would “take care of the review, if [Plaintiff]

took care of him”. Compl.at ¶ 23. Additionally, as Booth’s immediate supervisor

and the sexual aggressor, Bowers knew of Booth’s protected activity.

C. The Defendant Took Materially Adverse Actions Against the Plaintiff.

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To state a claim of retaliation, the Supreme Court has held that “[w]hether a

particular reassignment is materially adverse depends upon the circumstances of

the particular case, and ‘should be judged from the perspective of a reasonable

person in the plaintiff’s position, considering all the circumstances.’”Id. (quoting

Oncale, 523 U.S. at 118).The “EEOC has consistently found ‘[r]etaliatory work

assignments’ to be a classic and ‘widely recognized’ example of ‘forbidden

retaliation.’”Burlington Northern & Santa Fe Ry., 548 U.S. at 71 (quoting 2 EEOC

1991 Manual § 614.7, pp 614-31 to 614-32).

Here, Booth alleges numerous materially adverse employment actions

including a negative performance review, a significant demotion of wage and

status, a hostile work environment, and retaliatory constructive discharge.

1. Plaintiff’s Negative Performance Review and Demotion Were Materially Adverse Employment Actions.

“[A]ctions having an adverse impact on future employment opportunities

can constitute adverse employment actions for purposes of Title VII retaliation

claims”. Toth v. Gates Rubber Co., 2000 U.S. App. LEXIS 14374 at *31. The 10th

Circuit liberally construes the phrase “adverse employment action” See Id.;Gunnell

v. Utah Valley State College, 152 F.3d 1253, 1264 (10th Cir. 1998). Examples of a

materially adverse employment action include “termination of employment, a

demotion evidenced by a decrease in wage or salary, a less distinguished title, a

material loss of benefits, significantly diminished material responsibilities, or other

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indices…unique to a particular situation”. Sanders v. N.Y.C. Human Res. Admin.,

361 F.3d 749, 755 (2d Cir. 2004); Tart v. Illinois Power Co., 366 F.3d 461, 474

(7th Cir. 2004).

Only nine days after Booth rejected the sexual advance, Bowers stated in a

performance review that Booth’s performance had “declined significantly” and

Booth displayed “dreary leadership.” Compl. at ¶27. Alone, a negative

performance review is not always enough to establish an adverse employment

action. Fairbrother v. Morrison, 412 F.3d 39, 56-57 (2d Cir. 2005). Booth,

however, was demoted from his job as a construction superintendent to a weekend

shift supervisor. Booth started at a salary of $85,000 plus quarterly bonuses. As a

weekend shift supervisor, Booth dropped to a three-day work week at $18 per

hour, with the crew working sporadically on weekends. This insulting demotion of

hours, wage, and status amounted to a materially adverse action.

2. Plaintiff was Subjected to a Hostile Work Environment Which Constitutes a Materially Adverse Action for Retaliation Purposes.

While Booth is not required to make a claim for hostile work environment,

elements of a hostile work environment are examples of materially adverse actions.

“Reading [Title VII] to provide a remedy for retaliatory harassment that expresses

itself in the form of a hostile work environment thus furthers the goal of ensuring

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access to the statute’s remedial mechanisms.” Noviello v. City of Boston, 398 F.3d

76, 90 (1st Cir. 2005).

After the rejected sexual advance, Bowers went on a profanity-ridden tirade

against Booth that included both professional and personal attacks. Additionally,

Bowers referred to Booth as a derogatory slur for gay people to Booth’s co-worker.

Booth overheard this same derogatory slur being usedby a co-worker. These

comments amount to a retaliatory hostile work environment.

3. Plaintiff Was Constructively Discharged From Employment at SVCC.

It is possible that an employee, who was not able to succeed on a

constructive discharge claim, can still prevail on a claim of retaliation based on

retaliatory constructive discharge. SeeFurr v. Ridgewood Surgery & Endoscopy

Ctr., LLC, 192 F. Supp. 3d 1230, 1252 (D. Kan. 2016). A retaliatory constructive

discharge is a materially adverse action. A traditional constructive discharge claim

requires that the plaintiff “show working conditions so intolerable that a reasonable

person would have felt compelled to resign.” Pennsylvania State Police v. Suders,

542 U.S. 129, 147 (2004).

In the span of one month, Booth went from a career as a salaried

construction superintendent to a weekend supervisor making an hourly wage.

Booth was sexually harassed by his immediate supervisor, declared to lack strong

moral values in a performance review, professionally and personally attacked in a

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meeting with his supervisor, and called a gay slur at work. Objectively, any

reasonable person would find the conditions intolerable.

D. There is a Causal Link Between Plaintiff’s Protected Activity and the Retaliation.

A case of retaliation is not made unless retaliation relates to employee’s

opposition to employer’s violation of Title VII. 42 U.S.C. § 2000e-3(a).To show a

causal connection between the employee's protected activity and the employer's

adverse action, a plaintiff may rely on a “broad array of evidence.” Farrell v.

Planters Lifesavers Co., 206 F.3d 271, 284 (3d Cir. 2000).Additionally, an

“unusually suggestive proximity in time between the protected activity and the

adverse action may be sufficient, on its own, to establish the requisite causal

connection”. Marra v. Philadelphia Hous.Auth., 497 F.3d 286, 302 (3d Cir. 2007).

After the rejected sexual advance of October 19, 2016,Booth’s performance

reviews went from glowing to dismal. Booth’s first performance review on June

28, 2016 stated that he was “an efficient and effective project engineer” who

“handled stresses and problems of the first quarter of development with ease.”

Compl. at¶17. This performance review was conducted knowing that Booth’s

project was four days behind schedule and Booth later received a bonus of

$4,500.00. As the project hit delays, Bowers was kept informed and even told

Booth that they would both work overtime to ensure the delay was remedied. After

Booth rejected Bowers’ sexual advance, everything changed. The very next day,

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Bowers stopped assisting Booth on overtime work. Just over a week later, Booth

received his first negative performance review (signed by Bowers) that set the

stage for the demotion and loss of bonus.

While temporal proximity alone is not enough to establish a causal link,

Booth has presented a sufficiently broad array of evidence to establish causation.

In addition to the negative reviews, demotion, and lack of help from Bowers,

Bowers’ comments create a causal link between the rejected sexual advance and

the materially adverse actions. Bowers signed the first review that noted that Booth

“lacks strong moral values”. Id. at ¶27. At the meeting where Booth was demoted,

Bowers commented disingenuously that the demotion would allow Booth to

“spend more time with his spouse”. Id. ¶ 32. Bowers called Booth a gay slur to a

co-worker. Afterward, Booth overheard this same gay slur repeated by his co-

worker. These comments create an impenetrable link between the Bowers’ rejected

sexual advance and the materially adverse actions Booth was made to suffer. In

sum, Booth has alleged a classic case of retaliation and has fully established a

causal connection.

CONCLUSION

For the foregoing reasons, the Plaintiff respectfully requests that this Court

deny Defendant’s motion in its entirety.

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Dated: September 19, 2017 Respectfully submitted,

Attorneys for Plaintiff, Lindsay Booth