240 So. 3d 733
Fla. Dist. Ct. App.2018Background
- Employee (dispatcher) alleged Chief made sexual advances at a private, non-work-sponsored party: groping at a table and later in a bedroom pressing her hand to his erect penis after she declined his advances.
- Employee told coworkers about the incident; Chief was soon promoted to police chief and thereafter denied the Employee training and promotions and otherwise treated her adversely at work.
- Sexual-harassment claim was dismissed on summary judgment; case proceeded to jury on FCRA retaliation claim (opposition clause). Jury awarded $401,500. Village appealed.
- Village argued directed verdict should have been granted because (a) a one-time, off-duty advance cannot be an unlawful employment practice and (b) the Employee’s refusal was not protected “opposition” nor did it provide notice. Trial court denied directed verdict and gave a causation instruction the Village later challenged.
- Fourth District affirmed denial of directed verdict (evidence sufficient for jury) but reversed and remanded for a new trial because the causation instruction used a lower standard than the Supreme Court’s but-for standard for Title VII/FCRA retaliation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a one-event, off-duty sexual advance can constitute an unlawful employment practice supporting retaliation | One severe one-time sexual encounter (groping and forced contact with erect penis) is sufficiently "unwelcome" and severe to be an unlawful employment practice | Isolated, non-work-sponsored incident cannot be an employment practice supporting FCRA retaliation | Court: One-event sexual conduct can support liability if severe; jury could decide severity — directed verdict properly denied |
| Whether the Employee’s refusal/opposition was statutorily protected activity | Saying she was married, refusing a backrub/sex, and leaving the room constituted opposition to unlawful sexual conduct | A single verbal refusal or avoidance is not protected opposition; Employee’s willingness to accept a private apology shows no opposition or put the employer on notice | Court: Rejection/telling the supervisor to stop qualifies as protected opposition under the opposition clause; directed verdict properly denied |
| Whether failure to report the conduct to higher management/HR negates retaliation claim (notice) | Not required where adverse employment action by the supervisor itself constitutes a tangible employment action and gives rise to vicarious liability | Employee’s failure to report meant the Village lacked notice, so retaliation element fails | Court: Notice to employer not required for tangible employment actions caused by the supervisor; causation remains the critical issue |
| Proper causation standard for FCRA retaliation (jury instruction) | Causation must meet Supreme Court but-for standard (Nassar); Employee argued causal connection existed | Trial court used a lower standard ("not completely unrelated"/"not wholly unrelated") | Court: Instruction erroneous; must apply but-for causation; reversal and new trial required. Attorney fees award reversed as outcome-dependent |
Key Cases Cited
- Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (sexual harassment can encompass same-sex and varied factual contexts)
- Meritor Savings Bank v. Vinson, 477 U.S. 57 (unwelcome sexual advances are the gravamen of sexual harassment)
- Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (tangible employment action based on refusal to submit to sexual demands is actionable)
- University of Texas Southwestern Med. Ctr. v. Nassar, 570 U.S. 338 (retaliation claims require but-for causation)
- Crawford v. Metropolitan Gov't of Nashville & Davidson Cty., 555 U.S. 271 (scope of opposition/participation protections)
- New Breed Logistics v. EEOC, 783 F.3d 1057 (6th Cir.) (telling a supervisor to stop can be protected activity)
- Ogden v. Wax Works, Inc., 214 F.3d 999 (8th Cir.) (refusal/telling supervisor to stop is protected opposition)
- LeMaire v. La. Dep’t of Transp. & Dev., 480 F.3d 383 (5th Cir.) (contrasting view that single rejection may not be protected activity)