Plaintiff loses sexual harassment and retaliation appeal

This sexual harassment case involves a woman who was terminated from AutoZone after she complained about a hostile work environment based on gender. Both her discrimination and retaliation claims were dismissed by the district court, and the Court of Appeals affirms, providing clarity on when someone is a supervisor under Title VII such that his discriminatory actions are automatically imputed to the employer.

The case is Bentley v. AutoZoners, LLC, issued on August 19. After plaintiff complained about Valentin's sexist comments in the workplace, management undertook an investigation. Plaintiff was then fired a month later. While plaintiff claims the termination was in retaliation for reporting the harassment, her claim fails. The employer discovered that plaintiff had directed a crude and vulgar remark toward Valentin. While plaintiff claims her termination was an overreaction, and she cites a Seventh Circuit case holding that an employer cannot "swat[] a fly with a sledgehammer" by terminating someone for eating another employee's potato chips, the Court of Appeals (Raggi, Winter and Cabranes) says this is not that case. "The remark Bentley directed at Valentin was extremely crude and would not be tolerated in any workplace outside, perhaps, of a locker room." (Plaintiff told Valentin he "need[ed] to get your dick sucked"). Her termination for this reason is not a pretext for discrimination.

Plaintiff also brings a hostile work environment case, based on Valentin's repeated sexist comments that women are "lazy" and should be home baking cookies. Plaintiff argues the employer is strictly liable for Valentin's comments because he was a supervisor. That argument has some facial plausibility. The Supreme Court has said that supervisory sexual harassment is automatically imputed to the employer. But it has also limited the definition of "supervisor," holding in Vance v. Ball State University, 570 U.S. 421 (2013), that "the ability to direct another employee's tasks" is not enough to make him a "supervisor" under Title VII, and that he is a supervisor only "when the employer has empowered that employee to take tangible employment actions against the victim, i.e., to effect a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significant responsibilities, or a decision causing a significant change in benefits."  The "hallmark of the tangible employment action thus used to identify a supervisor is its potential to 'inflict economic injury.'"

Under that narrow definition of "supervisor," Valentin was not a supervisor, even though he had authority to oversee plaintiff's day-to-day performance of assigned tasks. Valentin did not have power to take tangible employment actions that could have inflicted direct economic injury. While Valentin threatened to cut plaintiff's hours, to send her home and even to fire her, "there is no evidence that the employer had actually empowered Valentin to take such actions, and he never took such actions," or any actions that diminished Bentley's or any other employee's earnings. Plaintiff does point to deposition testimony from a district manager that Valentin had "the authority to discipline Ms. Bentley if the circumstances warranted it." But this district manager also testified that Valentin could not formally discipline Bentley, alter her hours or change her compensation.

Since Valentin was not a supervisor, the only way plaintiff can win her sexual harassment case is by showing that management had negligently handed her complaint about the working environment. But there is no evidence of that, because the only reasonable inference is that plaintiff reported the harassment in August 2014, and not sooner (as set forth in this blog post) which prompted an immediate investigation that resulted in Valentin's termination.