Employee Who Was Repeatedly Sniffed by Co-Workers and Fired For Swatting a Fly May Bring Retaliation Claim

Kollman & Saucier
Kollman & Saucier

Accusations of coworkers repeatedly “sniffing and hovering.”  An employee terminated allegedly because she slammed a door and “swatted a fly harder than necessary.”  Sounds like a great place to work, doesn’t it?  This is the alleged work environment in a recent lawsuit decided by the United States Court of Appeals for the Fifth Circuit. Royal v. CCC&R Tres Arboles, LLC,  No. 12-11022 (5th Cir. Nov. 21, 2013).

Tonia Royal worked as a leasing manager at a Texas apartment complex.  Each of us has had bad days before, but Ms. Royal’s four-day stint at CCC&R (if her allegations are true) was truly horrendous.  According to Ms. Royal, two male maintenance workers came over to her and sniffed her on 12 separate occasions, despite her repeated requests not to do so, both when she was seated at her desk and when she exited the bathroom.  One of the maintenance workers later sat on a cabinet facing Ms. Royal while “visibly aroused” and engaged in a “stare-down” with her for several minutes.  The next day, at a staff meeting convened by Ms. Royal’s manager—a woman named Asia Brazil (we can only speculate what her middle name is) —Ms. Royal complained about the “sniffing and hovering.”  One maintenance worker claimed that his actions were the result of a medical condition, and the other stated that he “needed to get a release,” which Ms. Royal took to be sexual innuendo.  Ms. Royal asked Ms. Brazil about the behavior after the meeting, and was fired later that day.  CCC&R gave no reason for the firing at the time, but later claimed that Ms. Royal was fired for slamming a door and “swatt[ing] a fly harder than necessary.”  Ms. Royal then sued CCC&R for creating a hostile work environment and retaliating against her for her complaints of sexual harassment.

The trial court dismissed the lawsuit, but Royal appealed. Tthe Fifth Circuit reversed the district court’s grant of summary judgment to CCC&R on Ms. Royal’s retaliation claim.  (Ms. Royal did not seek to revive her hostile work environment claim.). The question on appeal was whether or not the conduct Royal complained about was sexual in nature, thereby bringing it within the purview of Title VII.

According to the court, sexual misconduct need only be either “sufficiently severe or pervasive” in order to create a hostile work environment; , the district court erred when it required Ms. Royal to demonstrate both severity and pervasiveness.  Relevant factors to consider in evaluating hostile work environment claims include the frequency and severity of the discriminatory conduct, whether it is physically threatening or humiliating, and whether it unreasonably interferes with the employee’s work performance.  Isolated incidents of sexual misconduct or teasing generally do not, by themselves, create a hostile work environment.

The Royal Court found that a reasonable jury could conclude that the conduct toward Ms. Royal was sexual in nature, based on the hovering, sniffing, and the “need a release” comment.  Moreover, even though there were no allegations of physical contact, the court concluded that twelve incidents of “sniffing and hovering” over only a four-day span, and carried out in a small office area by two men (including a former prison inmate), often as they stood directly over the plaintiff, was “physically threatening, humiliating, and frequent.”  The court found that terminating an employee for slamming a door and swatting a fly is a legitimate, non-discriminatory reason, but that it was a question for the jury as to whether CCC&R’s decision was pretextual.  Consequently, Ms. Royal’s retaliation claim may proceed.

The Royal decision reminds us that it is not just physical conduct that can create a hostile work environment. Sniffing your co-workers is creepy, to say the least, and its not surprising the court deemed it to be sexual in nature.  Furthermore, failing to investigate and police potentially harassing conduct—or, worse still, taking action against the complaining employee, rather than the alleged wrongdoer—can lead to litigation that becomes a real “fly in the ointment.”

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