In Cobbs v First Transit Co. et. al., Case No. 6:16-cv-00015 (W.D. Va. Dec. 16, 2016), a federal judge in Lynchburg, Virginia ruled that a bus company took an adverse employment action against an employee by ending her light duty assignment. In so holding, the court ruled that an employee had pled a cause of action for “quid pro quo” sexual harassment under Title VII and denied the defendants’ motion to dismiss.
The case involved an employee named Helen Cobbs, who worked for Central Virginia Transit Management Company as a bus operator. In December, 2013, Ms. Cobbs was injured at work and then restricted to light duty assignments.
According to her complaint, after being assigned to light duty, Ms. Cobbs’ male supervisor began commenting on her appearance, sending her cards, sending her text messages, and making other unwelcome advances. He also allegedly required her to accompany him on trips out of the office and placed his hand on her knee. When she told him to stop, the supervisor allegedly told Ms. Cobbs that he could “fix it where there wouldn’t be any light duty work available for her” and she would be required to “stay home and get partial pay.” The unwanted text messages and other advance towards her continued, and, when Ms. Cobb did not respond, her supervisor told her there was no more light duty and instructed her to stay home.
Ms. Cobbs filed an EEOC charge and subsequently filed suit in federal court. Among other claims, Ms. Cobbs alleged quid pro quo sexual harassment. Defendants moved to dismiss the claim, arguing that Ms. Cobbs had failed to plead that her rejection of sexual advances led to a “tangible employment action such as discharge, demotion, or undesirable reassignment,” as required by the Supreme Court’s 1998 decision in Burlington Industries, Inc., v. Ellerth. Judge Norman Moon (my law school trial advocacy professor) found that this raised the novel legal question of “whether the loss of light duty work – which in turn required Plaintiff to take time off and receive workers’ compensation in lieu of regular pay – constitutes a tangible employment action” for Title VII purposes. Because the practical import of her employer’s action was to remove Ms. Cobbs from full time work and place her on a leave of absence where she received only two-thirds pay, Judge Moon found this to be a “significant change in benefits” with a “direct economic impact” and, therefore, sufficient to establish a “tangible employment action.”
Judge Moon’s ruling should not be a surprise to an employer that understands it obligations under Title VII. If Ms. Cobbs’ allegations are true, her supervisor placed on a leave with only partial pay as a direct result of her rejection of his advances. This is precisely the type of conduct the Supreme Court found to be unlawful nearly 20 years ago.