“No, Thank You,” is Not Protected Activity

Darrell VanDeusen
Darrell VanDeusen

Ok, students in my employment discrimination law class, here’s a pop quiz.  “Would you like to go grab dinner with me?” said the boss to his subordinate employee.  “No, thanks,” responds the employee, “I don’t believe in mixing business with pleasure.”   A few weeks later, the employee is reassigned or terminated.  Was the employee’s rejection of a dinner offer stated opposition to sexual harassment that qualifies as protected activity under Title VII?   If so, and causality is shown, the employee has a viable retaliation claim.

Well, like many things in the law, the answer is “it depends.”  But federal district court judge Vanessa Boyd in Connecticut just answered the question “no” when confronted with a somewhat analogous fact pattern.  Brauer v. MXD Grp., Inc.,2019 U.S. Dist. LEXIS 149983 (D. Conn. Sep. 4, 2019).

The decision was on MXD’s motion for summary judgment, so the facts are recited in the light most favorable to the plaintiff.   Teresa Brauer worked in a “temp to hire” position for MXD, a logistics services firm. Allen Martin was her supervisor. While working at MXD, Brauer’s performance had been good.   At some point, however, Martin became dissatisfied with her work and asked that a replacement be found for her.  He asked that the temp agency not tell Brauer of his request until a replacement was found.

Brauer claimed that she was replaced because she had rebuffed his advances.  But it was undisputed that the request to have her replaced was made eight days before the alleged protected activity.

Here’s what happened.  Martin had often called Brauer “sunshine” or “ray of sunshine.”   She did not complain.  One day Brauer noticed that Martin seemed depressed and flustered. The court opinion continued the story this way:  “[Brauer] asked Martin if he was alright, and Martin stated that he and his wife were having issues and he did not think the marriage would survive.  [Brauer], who had previously been married and divorced, told Martin that if he needed to talk, she was there.  Martin indicated that he knew [Brauer] was single and that he thought she was attractive.  He asked whether she might want to go to dinner with him sometime.  [Brauer] interpreted these comments, as well as Martin’s use of pet names for her, as an expression of his romantic and sexual interest in her.  [Brauer] declined the invitation, stating that she does not mix business with pleasure.  Martin apologized and did not make further comments of a personal or romantic nature.

It was undisputed that “Martin did not offer or state, either explicitly or implicitly, that [Brauer] would receive any employment benefit or preferential treatment if she engaged in any romantic or sexual conduct with him.  Nor did Martin ever state or threaten, either explicitly or implicitly, that [Brauer] would be penalized or subject to adverse action if [she] declined to engage in romantic or sexual conduct with him.”

After her assignment ended, Brauer sued under Connecticut’s anti-discrimination law for, among other things, retaliation and sexual harassment.  The court keyed in on the issue of whether Brauer’s rejection of the dinner invitation was protected activity to support the retaliation claim, and that’s the part of the case we will focus on here.

Engaging in protected activity, of course, is the first prong of the prima faciecase of retaliation.  If there’s no protected activity there cannot be retaliation.  It was undisputed that Brauer never complained about the pet names Martin used.  Before she was released, Brauer never complained to anyone that Martin’s comments or actions were unwelcome.

Here the court noted that the “no, thanks” to the dinner invite could not rise to the level of protected activity because it did not “come close to resembling a complaint, formal or informal, against sexual harassment. [Brauer’s] declination simply clarified what she intended to convey when she offered Martin emotional support. It is not akin to an opposition of unlawful workplace discrimination and does not put the employer on notice of the improper conduct.”

The court further noted that “finding Plaintiff’s declination was a complaint could sanction a retaliation trap because Plaintiff offered to have a personal relationship with Martin when she suggested he speak to her about his marital problems.”

Judge Boyd granted defendant’s motion for summary judgment in full.   But not all courts follow Judge Boyd’s approach.  The court’s opinion reviewed a number of decisions from other courts that fall on both sides of the road, recognizing that there is no uniform approach here. That is not surprising, because these sorts of cases necessarily need to be considered on their own facts.

What’s the takeaway from today’s lesson?   Here’s the easy one – don’t ask the subordinate employee you intend to release out to dinner.  And here’s another easy one – don’t use pet names for employees.  But, remember there is nothing inherently wrong about seeing if a co-worker wants to grab a bite to eat.  The current vice-president’s views notwithstanding, it does not matter whether the co-worker is of the same or opposite gender.  And, for goodness sake, please do not make your choice based on that fact. (Seehttps://www.latimes.com/local/abcarian/la-me-abcarian-pence-marriage-20170405-story.html).





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