In a decision that may make it easier for plaintiffs to survive summary judgment with their sexual harassment retaliation claims, the U.S. Court of Appeals for the Fifth Circuit has reversed a trial court decision dismissing a female employee’s claim that she was “fired” after complaining that two co-workers “sniffed her in a sexually suggestive manner.”

The background to the Fifth Circuit’s Nov. 21 decision in Tonia Denise J. Royal v. CCC&R Tres Arboles is as follows, according to the opinion.
CCC&R Tres Arboles apartment complex hired Tonia Denise J. Royal as a leasing manager on Aug. 3, 2009. Her supervisor fired her four days later, according to the opinion.
According to Royal, two maintenance workers would enter her small office, hover over her at her desk and sniff her. This occurred about 12 times over the four days of Royal’s employment. She complained to her supervisors to no avail, including to an assistant manager who told her, “You know how men are like when they get out of prison,” according to the opinion.
Royal also brought up the alleged harassment during an employee staff meeting, saying she didn’t like for the men to “sniff over her all of the time.” In response, one of the maintenance men claimed he had a medical condition. The other maintenance man, Royal claimed, stated that he “needed to get a release,” according to the opinion.
After the meeting, a supervisor “discharged” Royal, supplying no reason, according to Royal. Later CCC&R argued that Royal’s offenses were “swatting a fly harder than was necessary and slamming a door,” according to the opinion.
Royal sued CCC&R in a Northern District of Texas trial court, claiming sexual harassment and retaliation under Title VII of the Civil Rights Act of 1964, as well as violations of various Texas laws. Ruling on CCC&R’s motion for summary judgment, a U.S. magistrate judge held that CCC& R’s employees’ alleged conduct was not objectively offensive as required for a Title VII hostile work environment claim. The magistrate judge reasoned that, with a limited exception, “no one touched Royal” and concluded that Royal had failed by make out a prima facie case of retaliation. The district court accepted the magistrate judge’s decision, which Royal appealed to the Fifth Circuit.

“Or” Not “And”

The Fifth Circuit concluded that the magistrate judge used the wrong legal standard in dismissing Royal’s retaliation claims by citing two previous Fifth Circuit decisions that require the alleged prohibited conduct to be “severe and pervasive” instead of “severe or pervasive,” as the U.S. Supreme Court requires.
“We think this is error. A reasonable jury could conclude that the described conduct was pervasive: Royal worked in a small office area and was subject to each maintenance man’s objectionable conduct approximately twelve times over four days. The only thing interrupting this conduct seems to have been Royal’s termination,” wrote Judge E. Grady Jolly in a decision joined by Judge Leslie Southwick and Senior Judge Harold DeMoss.
“These menacing acts, which were done over Royal as she was sitting and some of which were done by a man who had previously been in prison, can certainly be seen as ‘physically threatening,’ ‘humiliating’ and frequent, three factors that indicate sexual harassment. …”
“Furthermore, we think that the magistrate judge also overemphasized the lack of physical contact,” Jolly wrote, vacating the district court’s order and remanding the case for further consideration. “Certainly, lack of physical contact is a factor to consider. But it is hardly dispositive. It is unsurprising that we have held previously that a reasonable jury could find that coworkers created a hostile work environment despite having no physical contact with the plaintiff.”
Brian Sanford, a partner in Richardson’s SanfordBethune who represents Royal, is pleased with the decision.
“The Fifth Circuit has come down with some cases that seem to set the bar of severe and pervasive at a high level … and they distance themselves from these cases” in Royal, Sanford said.
“Hopefully with this opinion, the trial courts will consider that the bar for the minimum level of harassment is not so daunting,” Sanford said.
“They emphasized that physical touching is not a requirement, and they said that harassment over a short period of time is sometimes more severe and pervasive than over a long period of time,” Sanford said of the Fifth Circuit’s decision. “Context matters.”
Robert James Wood Jr., a Dallas solo who represents CCC&R Tres Arboles, did not return a call for comment.