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In a per curiam decision on April 23, 2001, the U.S. Supreme Court issued its ruling in Clark County School District v. Breeden, No. 00-866. Although the primary claims in Breedenconcerned plaintiff’s retaliation claims, the court’s decision has significance for sexual harassment claims as well. The plaintiff in Breedenalleged two separate adverse employment actions taken against her in response to two different protected activities in connection with a complaint of sexual harassment. The Court reversed the 9th U.S. Circuit Court of Appeals and upheld the district court’s original granting of summary judgment in favor of the employer, concluding that the plaintiff failed to demonstrate retaliation with respect to either of her alleged protected activities. In its decision, the Court reaffirmed that “sexual harassment is actionable under Title VII only if it is so “severe and pervasive” as to alter the conditions of the victim’s employment and create an abusive working environment.” The Court further held that in order to establish a causal connection based merely on the temporal proximity between an employer’s knowledge of a protected activity and an adverse employment action, “the temporal proximity must be “very close.’” The plaintiff, Shirley Breeden, was employed by the Clark County School District. In October 1994, Breeden met with her male supervisor and another male employee to review the psychological evaluation reports of four applicants for a police officer position. One applicant’s evaluation disclosed that the applicant had once commented to a co-worker, “I hear making love to you is like making love to the Grand Canyon.” At the meeting, Breeden’s supervisor read the comment out loud, looked at Breeden, and stated, “I don’t know what that means.” The other male employee responded, “Well, I’ll tell you later,” and both men chuckled. Offended by the comment, Breeden complained to the employee, the employee’s supervisor, who was an assistant superintendent, and to another assistant superintendent. Shortly afterwards, in December 1994, Breeden’s job duties were changed, resulting in a loss of supervisory responsibility. In 1995, Breeden filed a formal charge with the state human rights agency and Equal Employment Opportunity Commission alleging sexual harassment and retaliation. AMENDED COMPLAINT In April 1997, Breeden filed her complaint in federal court. After the filing of the complaint, but prior to service of the complaint, Breeden’s supervisor initiated plans to transfer Breeden to a new position. Breeden later amended her complaint to reflect both the 1994 and 1997 changes to her job duties. The U.S. District Court for the District of Nevada granted summary judgment in favor of the school district. In an unpublished opinion, the 9th Circuit reversed and allowed Breeden’s retaliation claim to proceed. Despite finding that the single incident in 1994 did not constitute sexual harassment, the 9th Circuit found Breeden’s complaint to be protected under Title VII. Under the opposition clause of Title VII’s retaliation provision, the 9th Circuit reasoned that Breeden’s 1994 complaint constituted protected activity “only if she had a reasonable, good faith belief that the incident involving the sexually explicit remark constituted unlawful sexual harassment.” The 9th Circuit concluded that Breeden’s belief that the incident constituted unlawful harassment was objectively reasonable. The 9th Circuit also held that Breeden could proceed on her retaliation claim regarding her 1997 complaint and subsequent transfer. As to the 1994 complaint, the Supreme Court held that “no one could reasonably believe that the [1994] incident … violated Title VII.” The court reiterated that, “sexual harassment is actionable under Title VII only if it is so “severe and pervasive” as to alter the conditions of the victim’s employment and create an abusive working environment.” The court further stated that, “isolated incidents (unless extremely serious) will not amount to discriminatory changes in the “terms and conditions of employment.’” The court concluded that the 1994 incident was “at worst an ‘isolated incident’ that cannot remotely be considered ‘extremely serious.’” Because isolated incidents, such as that which occurred in 1994, cannot reasonably constitute sexual harassment, Breeden’s complaint was not protected activity under Title VII. Thus, it appears, a claim of retaliation that is based on a complaint in opposition to sexual harassment must be grounded in an objectively reasonable, good-faith belief that the complained-of conduct was, in fact, sexual harassment. Moreover, a single isolated incident, unless extremely serious, cannot support such a good-faith belief. As to the 1997 transfer, Breeden relied on temporal proximity to show a causal connection between her protected activities and the transfer. Breeden filed her administrative charge in 1995. Breeden filed her lawsuit on April 1, 1997; however the complaint was not served on the employer until April 11, 1997. Three months earlier, the EEOC issued Breeden a right-to-sue letter. CAUSAL CONNECTION On April 10, 1997, Breeden’s supervisor indicated that she intended to transfer Breeden to another position. This transfer was effectuated in May 1997. The 9th Circuit relied on two factors in determining there was sufficient causal connection to allow Breeden to avoid summary judgment: the right-to-sue letter preceded the announcement of Breeden’s transfer by three months; and Breeden’s transfer occurred one month after Breeden’s supervisor learned of her lawsuit. The Supreme Court determined that Breeden failed to show a causal connection between her protected activities and the adverse employment decision. The Court deemed the fact that Breeden’s actual transfer occurred one month after the school district learned of Breeden’s suit to be “immaterial in light of the fact that petitioner concededly was contemplating the transfer before it learned of the suit.” The Supreme Court also rejected Breeden’s contention that the right-to-sue letter, issued by the EEOC, is a protected activity. The Court observed there to be no indication that Breeden’s supervisor knew of the right-to-sue letter when she proposed Breeden’s transfer. Even if this fact were presumed, the Court reasoned further that, “one must also presume that she knew … almost two years earlier about the protected action (filing of the EEOC complaint) that the letter supposedly disclosed.” Breeden’s transfer was 20 months after Breeden filed her complaint. Based on this interval of time, the court held that a causal connection could not be established. Temporal proximity between an employer’s knowledge of protected activity and an adverse employment action must be “very close” for causation to be established. Action taken 20 months later, the Court concluded, “Suggests, by itself, no causality at all.” In Breeden, the Court reaffirms the rule that isolated incidents, unless extremely serious, do not amount to discriminatory changes in the terms and conditions of employment. Of perhaps even greater import however, Breedenrequires employees who seek to take advantage of the opposition clause in Title VII’s retaliation provision to have an objectively reasonable, good faith belief that the complained of conduct constituted sexual harassment. Finally, the Court’s ruling further clarifies that proximity between protected activity and adverse employment action must be “very close.” Susan Krell is a partner and Michael G. Petrie is an associate in the Harford, Conn. office of Jackson Lewis Schnitzler & Krupman.

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