UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF STETSON METTS CITY DIVISION

Transcription

1 LINDSAY BOOTH, UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF STETSON METTS CITY DIVISION #1721 v. Plaintiff DEFENDANT S MOTION TO DISMISS UNDER FRCP 12(b)(6) SUDDEN VALLEY CONSTRUCTION COMPANY, Defendant MEMORANDUM OF LAW Case No. 15: 17-cv CHR-ESM

2 TABLE OF CONTENTS QUESTIONS PRESENTED... 1 STATEMENT OF JURISDICTION... 1 STATEMENT OF FACTS... 1 SUMMARY OF ARGUMENT... 4 ARGUMENT... 4 POINT I. TITLE VII DOES NOT RECOGNIZE A CAUSE OF ACTION FOR DISCRIMINATION ON THE BASIS OF SEXUAL ORIENTATION... 5 A. The language of the statute makes it clear that Sex as defined by Title VII does not encompass sexual orientation... 6 B. Near unanimous precedent holds that Title VII s prohibition on discrimination because of sex is not violated unless men and women are treated unequally... 8 C. Conclusion POINT II. THE PLAINTIFF CANNOT ESTABLISH A PRIMA FACIE CASE OF RETALIATION A. Declining a sexual advance is not a protected activity under Title VII B. Sudden Valley did not know of Bowers Sexual Advance C. Booth did not suffer a materially adverse employment action D. Booth has failed to allege the required causal connection ii

3 E. Conclusion CONCLUSION iii

4 TABLE OF AUTHORITIES Cases Adolph v. Fed. Emergency Mgmt. Agency of the United States, 854 F.2d 732 (5th Cir. 1988)... 5 Bibby v. Philadelphia Coca Cola Bottling Co., 260 F.3d 257 (3d Cir. 2001)... 9 Blum v. Gulf Oil Corp., 597 F.2d 936 (5th Cir. 1979)... 6 Brown v. Bunge Corp., 297 F.3d 776 (5th Cir. 2000) Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) Clark Cnty. School Dist. v. Breeden, 121 S. Ct (2001) Crawford v. Metro Gov t of Nashville & Davidson Cnty., 555 U.S. 271 (2009) DeCintio v. Westchester Cnty. Med. Ctr., 807 F.2d 304 (2d Cir. 1986)... 6 Del Castillo v. Pathmark Stores, Inc., 941 F.Supp. 437 (S.D.N.Y. 1996) DeSantis v. Pacific Tel. & Tel. Co., 608 F.2d 327 (9th Cir. 1979)... 9 E.E.O.C. v. New Breed Logistics, 783 F.3d 1057 (6th Cir. 2015) Evans v. Georgia Reg l Hosp., 850 F.3d 1248 (11th Cir. 2017)... 9 Fernandez-Montes v. Allied Pilots Ass'n, 987 F.2d 278 (5th Cir. 1993)... 5 Frank v. Harris Cnty., 118 Fed.Appx. 799 (5th Cir. 2004) Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252 (1st Cir. 1999)... 8 Hively v. Ivy Tech Cmty. Coll. Of Indiana, 853 F.3d 339 (7th Cir. 2017)... 9 Kansa Reinsurance Co., Ltd. v. Congressional Mortgage Corp. of Texas, iv

5 20 F.3d 1362 (5th Cir. 1994)... 5 Laster v. City of Kalamazoo, 746 F.3d 714 (6th Cir. 2014) LeMaire v. Louisiana Dep t of Transp. & Dev., 480 F.3d 383 (5th Cir. 2007) Lorillard v. Pons, 434 U.S. 575 (1978)... 6 McMenemy v. City of Rochester, 241 F.3d 279 (2d Cir. 2001) Medina v. Income Support Div., 413 F.3d 1131 (10th Cir. 2005)... 9 Nichols v. Azteca Restaurant Enterpr. Inc., 256 F.3d 864 (9th Cir. 2001)... 9 Ogden v. Wax Works, Inc., 214 F.3d 999 (8th Cir. 2000) Oncale v. Sundowner Offshore Svcs., 490 U.S. 228 (1998)... 8 Pavelic & LeFlore v. Marvel Entm t Grp., 493 U.S. 120 (1989)... 8 Pennsylvania State Police v. Suders, 542 U.S. 129 (2004) Perry v. Harris Chernin, Inc., 126 F.3d 1010 (C.A ) Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)... 8 Rollins v. Fla. Dep t of Law Enforcement, 868 f.2d 397 (11 th Cir. 1989) Scanlan v. Texas A & M University, 343 F.3d 533 (5th Cir. 2003)... 4 Septimus v. University of Houston, 399 F.3d 601 (5th Cir. 2005) Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000)... 9 Texas Dep t of Community Affairs v. Burdine 450 U.S. 248 (1981)... 8 Ulane v. Eastern Airlines, Inc., 742 F.2d 1081 (7th Cir. 1984)... 6 Univ. of Tex. Southwestern Med. v. Nassar, 133 S.Ct (2013) Vickers v. Fairfield Med. Ctr., 453 F.3d 757 (6th Cir. 2006)... 9 v

6 Villarreal v. R.J. Reynolds Tobacco Co., 839 F.3d 958 (11th Cir. 2016) Wrightson v. Pizza Hut, 99 F.3d 138, 143 (4th Cir. 1996)... 9 Williamson v. A.G. Edwards & Sons, 876 F.2d 69 (8th Cir. 1989)... 6 Statutes U.S. CONST. Art U.S. CONST. Art U.S.C. 249(a)(2)(A) U.S.C U.S.C. 2000e U.S.C (b)(13)(A)... 7 FED. R. CIV. P. 12(b)(6)... 4 Other Authority Baldwin v. Foxx, EEOC Appeal No , 2015 WL , (July 16, 2015)... 9 Dillon v. Frank, EEOC Doc , 1990 WL (Feb. 14, 1990)... 6 vi

7 QUESTIONS PRESENTED 1. Should this Court ignore near unanimous judicial precedent to hold that Title VII prohibits discrimination on the basis of sexual orientation? Recommended Answer: No. 2. Are the plaintiff s allegations sufficient to plead a claim for retaliation under Title VII, including whether rejecting a supervisor s sexual advance constitutes a protected activity. Recommended Answer: No. STATEMENT OF JURISDICTION This Court has jurisdiction pursuant to 28 U.S.C. 1331, which provides that the district courts shall have original jurisdiction in all civil actions arising under the Constitution, laws, or treaties of the United States. Plaintiff has brought a claim seeking relief under Title VII, as such this court has original jurisdiction over this matter. STATEMENT OF FACTS On February 1, 2016, Defendant Sudden Valley Construction Company ( Sudden Valley ) hired the plaintiff, Lindsay Booth, an openly gay male, to serve as one of the four project engineers for a commercial and residential development project referred to as Milford Manor. Compl. at 5,8. The project was scheduled 1

8 to break ground on February 29, 2016, and was to be completed by Fall Id. at 6. Booth was hired by Sudden Valley s Vice President, Tobias Funk, and worked under the construction superintendent for the development of Milford Manor, Jesse Bowers. Id. at 6, 9. As construction superintendent, Bowers was responsible for the day-to-day operations of the construction team at Milford Manor. Id. at 10. Milford Manor s project engineers, including Booth, were required to submit weekly reports to Bowers, and further complete one-on-one meetings every two weeks to discuss any relevant updates or issues arising from the project. Id. at 11. As project engineer, Booth was in charge of twenty-eight (28) construction workers working on the northeast quadrant of Milford Manor. Id. at 14. The northeast quadrant was the anticipated location of several retail stores, three restaurants, and a Jaguar Land Rover ( Jaguar ) dealership. Id. at 14. A term of Jaguar s lease of the property required Sudden Valley to report its quarterly progress to Jaguar Land Rover. Id. at 15. Further, Jaguar was permitted to terminate the lease if there was any substantial delay in the development of the dealership. Id. at 15. The Milford Manor project began as scheduled, on February 29, Id. at 14. However, when Booth submitted his first quarterly report to Bowers and 2

9 Funk on June 28, 2016, the project had already fallen four days behind schedule. Id. at 17. Despite the delay, Bowers received a positive review as well as a $4, bonus. Id. at 17, 18. On September 12, 2016, Booth and Bowers became aware of a defect in the construction of the Jaguar dealership that required part of the dealership s foundation to be demolished and rebuilt, which caused further delay. Id. at 19. By October 8, 2016, the project was three weeks behind. Id. at 21. Booth received a second quarterly performance review which stated that Booth s performance between June and October had declined significantly, to the point that Milford Manor team may need to be restructured to accommodate for delays attributed to Booth s dreary leadership. Id. at 27. On November 2, 2016, Jaguar Land Rover elected to terminate its lease in Milford Manor due to the substantial delay in the development of the Northeast quadrant and the civil unrest in the United Kingdom caused by the Brexit referendum. Id. at 29. On November 8, 2016, Bowers me with Booth and informed that he would not be receiving a quarterly bonus, and was being demoted to the position of weekend shift supervisor in the Southwest quadrant. Id. at 32. When Booth asked Funk about his demotion, Funk responded that the change in position was permanent so long as the British continue[d] to be up in arms. Id. at 34. 3

10 Booth voluntarily resigned on November 14, Id. at 34. Only after he quit did Booth file a discrimination charge the EEOC. Id. at 36. Booth s charge alleged that Booth refused a sexual advance made by Bowers on October 19, 2016 and that he was retaliated against for refusing the alleged sexual advance. Id. at 36. Sudden Valley denies Booth s allegations. SUMMARY OF ARGUMENT COUNT I must be dismissed because Title VII does not recognize a cause of action for discrimination on the basis of sexual orientation and to hold otherwise would be contravene the language of the statute and logic itself. COUNT II must also be dismissed because Plaintiff s allegations, accepted as true, are insufficient to meet the elements of a prima facie case of retaliation under Title VII. ARGUMENT District courts may dismiss a complaint for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). A district court should grant a motion to dismiss under Rule 12(b)(6) in two situations. First, if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief, dismissal is proper. Scanlan v. Texas A & M University, 343 F.3d 533, 536 (5th Cir. 2003). Second, if the allegations, accepted as true, do not present a claim upon which relief legally can be obtained, 4

11 dismissal is also proper. Adolph v. Fed. Emergency Mgmt. Agency of the United States, 854 F.2d 732, 735 (5th Cir. 1988). In deciding whether to grant a motion to dismiss, the district court must not go outside the pleadings and must accept all well-pleaded facts as true, viewing those facts most favorably to the plaintiff. Id. While the district court must accept as true all factual allegations in the complaint, it need not resolve unclear questions of law in favor of the plaintiff. Kansa Reinsurance Co., Ltd. v. Congressional Mortgage Corp. of Texas, 20 F.3d 1362, 1366 (5 th Cir. 1994). In addition, conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss. Fernandez-Montes v. Allied Pilots Ass n, 987 F.2d 278, 284 (5 th Cir. 1993) (citation omitted). POINT I Title VII does not recognize a cause of action for discrimination on the basis of sexual orientation Booth alleges that Sudden Valley discriminated against him on the basis of his sexual orientation. Title VII, however, does not recognize a cause of action for discrimination on the basis of sexual orientation. Accordingly, Plaintiff s claim fails to state a claim upon which relief can be granted. 5

12 A. The language of the statute makes it clear that Sex as defined by Title VII does not encompass sexual orientation. Title VII prohibits private employers from [discriminating] against any individual... because of such individual s race, color, religion, sex, or national origin. 42 U.S.C. 2000e-2(a). Significantly, sexual orientation appears nowhere in the statute. Congress silence speaks volumes. Title VII has been amended multiple times since its enactment in Congress has had multiple chances to prohibit discrimination on the basis of sexual orientation, but it never did. When amending a statute Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it re-enacts a statute without change. Lorillard v. Pons, 434 U.S. 575 (1978). Prior to Congress amending Title VII in 1991, four Circuit Courts of Appeals had already held that Title VII does not prohibit discrimination on the basis of sexual orientation. See Williamson v. A.G. Edwards & Sons, 876 F.2d 69 (8 th Cir. 1989); Blum v. Gulf Oil Corp., 597 F.2d 936 (5 th Cir. 1979); DeCintio v. Westchester Cnty. Med. Ctr., 807 F.2d 304 (2d Cir. 1986); Ulane v. Eastern Airlines, Inc., 742 F.2d 1081 (7 th Cir. 1984). Further, prior to 1991, the EEOC, the administrative agency charged with enforcing Title VII, had also concluded that Title VII did not prohibit sexual discrimination on the basis of sexual orientation, prior to See Dillon v. Frank, EEOC Doc , 1990 WL , at *3 (Feb. 14, 1990). 6

13 Thus, Congress is presumed to have been aware that the EEOC and various Courts of Appeals had concluded that Title VII did not prohibit sexual discrimination based on sexual orientation. See Lorillard v. Pons, 434 U.S. 575 (1978). Accordingly, when Congress amended Title VII, it ratified the understanding that Title VII does not bar sexual orientation discrimination. Moreover, the language Congress uses when it does legislate against sexualorientation discrimination confirms that sex, as defined by Title VII, does not encompass sexual orientation. Specifically, the Violence Against Women Act of 1994 prohibits funded programs and activities from discriminating on the basis of actual or perceived race, color, religion, national origin, sex, gender identity,... sexual orientation, or disability. 42 U.S.C (b)(13)(A) (emphasis added). Further, the Federal Hate Crimes Act of 1968 imposes heightened punishment for causing, or attempting to cause, bodily injury to any person because of the actual or perceived religion, national origin, gender, sexual orientation... of any person. 18 U.S.C. 249(a)(2)(A) (emphasis added). Therefore, when Congress prohibits discrimination on the basis of sexual orientation it does so expressly. Congress did not do so when it initially drafted Title VII, or when it was amended several times after. Quite simply, it is the legislature s duty to draft laws and the court s duty to enforce and interpret them as written. Villarreal v. R.J. Reynolds Tobacco Co., 7

14 839 F.3d 958, 970 (11 th Cir. 2016) (emphasis added). see also, U.S. Const. Art. 1, 3. Courts must apply the text, not improve upon it. Pavelic & LeFlore v. Marvel Entm t Grp., 493 U.S. 120, 126 (1989). Accordingly, this Court should follow title VII s plain language a grant Sudden Valley s motion to dismiss under F.R.C.P. 12(b)(6), as holding otherwise would amount to an unwarranted judicial amendment of Title VII. B. Near unanimous precedent holds that Title VII s prohibition on discrimination because of sex is not violated unless men and women are treated unequally. The Supreme Court has held that sex as defined by Title VII is inextricably linked to gender and not sexual orientation. See Texas Dep t of Community Affairs v. Burdine 450 U.S. 248, (1981). (holding Title VII requires a showing that an employer has treated similarly situated employees of different sexes unequally.); Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (plurality op.) More recently, in Oncale v. Sundowner Offshore Svcs., the court held [t]he critical issue, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed. 523 U.S. 75 (1998) (emphasis added). Every Circuit Court that has ruled on this issue, with one outlier, has held that sex discrimination does not encompass sexual orientation discrimination. See, e.g., Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 259 (1st Cir. 1999); 8

15 Simonton v. Runyun, 232 F.3d 33, 36 (2d Cir. 2000); Bibby v. Philadelphia Coca Cola Bottling Co., 260 F.3d 257, 261 (3d Cir. 2001); Wrightson v. Pizza Hut, 99 F.3d 138, 143 (4th Cir. 1996); Blum v. Gulf Oil Corp., 597 F.2d 936 (5th Cir. 1979); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 763 (6th Cir. 2003); Williamson v. A.G. Edwards & Sons, 876 F.2d 69, 70 (8th Cir. 1989); DeSantis v. Pacific Tel. & Tel. Co., 608 F.2d 327, , (9th Cir. 1979) abrogated in part on other grounds, Nichols v. Azteca Restaurant Enterpr. Inc., 256 F.3d 864, (9th Cir. 2001); Medina v. Income Support Div., 413 F.3d 1131, 1135 (10 th Cir. 2005); Evans v. Georgia Reg l Hosp., 850 F.3d 1248, 1255; (11 th Cir. 2017); but see Hively v. Ivy Tech Cmty. Coll. Of Indiana, 853 F.3d 339, 344 (7th Cir. 2017). Plaintiff will likely argue that this Court should deny Sudden Valley s motion because the Seventh Circuit and the EEOC have recently flip-flopped on this issue. However, the reasoning set forth in those decisions relies entirely on flawed logic and do not warrant ignoring the abundance of jurisprudence that holds otherwise. First, the EEOC and the Seventh Circuit majority assert that sexual orientation discrimination is sex stereotyping because it necessarily targets an employee s non-conformance to gender norms. Baldwin v. Foxx, EEOC Appeal No , 2015 WL , at *5, *10 (July 16, 2015); see Hively, 853 F.3d at In Price Waterhouse, the Supreme Court stated, [r]emarks at 9

16 work that are based on sex stereotypes do not inevitably prove that gender played a part in a particular employment decision. 490 U.S. at 251. Rather, to prevail under Title VII [t]he plaintiff must show that the employer actually relied on her [or his] gender in making its decision. 490 U.S. at 251 (emphasis added). The Seventh Circuit majority and the EEOC erroneously presume that all sexual orientation based discrimination is necessarily related to the claimant s nonconformance to gender norms, which is prohibited under Price Waterhouse. While there may be circumstances in when such a relationship, exists Title VII does not prohibit discrimination on the sole-basis of sexual orientation. Accordingly, this argument fails, because an employer who discriminates solely on the basis of sexual orientation does not partake in sex stereotyping as prohibited in Price Waterhouse. Second, the EEOC and the Seventh Circuit majority characterize sexual orientation discrimination as associational discrimination on the basis of sex. EEOC App. at *10, Hively, 853 f.3d at They rely on cases addressing discrimination against employees in interracial relationships, reasoning that Title VII also prohibits discrimination based on the sex of those with whom an employee associates. EEOC App. at *10, Hively, 853 F.3d at This argument is flawed as well. 10

17 Title VII only prohibits an employer from discriminating against an employee in an interracial relationship because that constitutes discrimination against the individual... because of such individual s race, not because it constitutes associational discrimination. 42 U.S.C. 2000e-2(a). To illustrate, the employer is treating an employee of one race differently from similarly situated employees of the partner s race, solely because the employer deems the employee s own race to be inferior or superior to the partner s race. However, an employer who discriminates against an employee in a same-sex relationship is not engaged in sex-based treatment of one gender as inferior or superior to similarly situated of another gender, but rather is engaged in sex-neutral treatment of gay men and women alike. Accordingly, this Court should reject the flawed logic set forth by the outliers the EEOC and the Seventh Circuit and embrace the decisions of the Supreme Court and every other Circuit Court. C. Conclusion In conclusion, for the reasons stated above, this court must grant Sudden Valley s motion to dismiss pursuant to F.R.C.P. Rule 12(b)(6), as ruling otherwise would contravene the langue of the statute and near unanimous judicial precedent. 11

18 POINT II The plaintiff has not stated a prima facie case of retaliation In the context of retaliation, Title VII prohibits an employer from discriminating against an employee on two bases: (1) because the employee has opposed any practice made an unlawful employment practice or (2) because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under Title VII. 42 U.S.C. 2000e-3(a). Booth claims he opposed an unlawful employment practice by [Title VII], pursuant to 42 U.S.C. 2000e-3(a) when he rejected Bowers alleged unwanted sexual advance on October 19, (Compl. at 48). Further, Booth claims this alleged opposition resulted in his removal from his position as a construction project engineer and subsequent demotion, thereby constructively discharging Booth from his employment. (Compl. at 49). Therefore, Booth s claim of retaliation is governed under the first clause of 42 U.S.C. 2000e-3(a) ( the opposition clause ). To bring a claim under the opposition clause, an employee must first state a prima facie case of retaliation. See LeMaire v. Louisiana Dep t of Transp. & Dev., 480 F.3d 383, 388 (5th Cir. 2007). In order to establish a prima facie case of retaliation, the employee must allege: (1) participation in a protected activity; (2) that the defendant knew of the protected activity; (3) an adverse employment 12

19 action; and (4) a causal connection between the protected activity and the adverse employment action. See E.E.O.C. v. New Breed Logistics, 783 F.3d 1057, 1066 (6th Cir. 2015); McMenemy v. City of Rochester, 241 F.3d 279, 282 (2d Cir. 2001). A. Declining a sexual advance is not a protected activity under Title VII To engage in protected activity the employee must: (1) speak out or protest against activity; (2) have a reasonable, good-faith belief that the activity is unlawful under Title VII; and (3) protest in a reasonable manner. See Crawford v. Metro Gov t of Nashville & Davidson Cnty., 555 U.S. 271, 278 (2009); Clark Cnty. School Dist. v. Breeden, 121 S. Ct (2001); Rollins v. Fla. Dep t of Law Enforcement, 868 f.2d 397, 401 (11 th Cir. 1989). A complaint to a harassing supervisor qualifies as protected activity. New Breed Logistics, 783 F.3d at 1067 (emphasis added). However, merely declining a harasser s sexual advance cannot constitute protected activity. Del Castillo v. Pathmark Stores, Inc., 941 F.Supp. 437, (S.D.N.Y. 1996); see LeMaire, 480 F.3d at 389; Frank v. Harris Cnty., 118 Fed.Appx. 799, 804 (5th Cir. 2004) (holding a single express rejection of a sexual advance does not constitute a protected activity). In New Breed Logistics, the Court held the employees demand that the supervisor stop his sexual harassment, constituted a protected activity. 783 F.3d at On the contrary, Booth does not allege that he demanded Bowers to stop any 13

20 sexual advance, but merely told Bowers that he was not interested in a sexual relationship with his supervisor. (Compl. at 24). Expressing disinterest does not equate to opposing a sexual advance, whereas complaining, or at the very least demanding that the harassment stop, would suffice. See New Breed Logistics, 783 F.3d at 1067,68. Notably, the Court in LeMaire, had occasion to address the issue of whether rejecting a sexual advance was a protected activity, both after and before the employee had reported the incident. See 480 F.3d In doing so, the Court found that the mere rejection of the sexual advance was not a protected activity, but once the employee reported the incident, his report... is considered a protected activity. Id. at 390. While it is clear and undisputed that sexual harassment is an unlawful employment practice under Title VII, it is the opposition to an unlawful employment practice that the opposition clause protects, not merely experiencing such practice. 42 U.S.C. 2000e-3(a). Booth never told anyone about the alleged incident. He did not attempt to complain and never expressed any belief that he was being demoted as a result of rejecting Bowers. He simply remained silent about the alleged event throughout every decision regarding his employment. Without explaining his decision, he resigned and only after resigning did he file an EEO complaint. Under the facts alleged by Booth, he cannot claim he engaged in a protected 14

21 activity under Title VII by merely expressing disinterest in Bowers sexual advance without actual opposition; at the very least complaining of the conduct. B. Sudden Valley did not know of Bowers Sexual Advance For a claim of retaliation, an employee must allege that the defendant employer knew that the claimant engaged in a protected activity. See New Breed Logistics, 783 F.3d at The employer s knowledge may be found when the employee opposes an unlawful activity by complaining or protesting, because the act of opposition provides notice to the employer that one of its employees has engaged in unlawful conduct. See Ogden v. Wax Works, Inc., 214 F.3d 999, 1007 (8th Cir. 2000) (Holding the employer had notice of the employee s complaints of sexual harassment because the employee complained to management). In other words, the employee s opposition provided notice to the employer of the sexual harassment. See id. As stated above, Booth never engaged in protected opposition. He never complained, protested, or otherwise provided notice to Sudden Valley of Bowers alleged sexual advances. In fact, Booth had ample opportunity to do so. He went to Funk, Sudden Valley s Vice President and Bowers direct supervisor, to inquire about his change in position. (Compl. at 34). Shortly after, he returned to Funk to tender his letter of resignation. (Compl. at 35). Nevertheless, he chose not to 15

22 inform Funk of the incident. Booth merely declined the advance and remained silent about it. It does not suffice that Bowers knew of his own alleged conduct. Because an employee who sexually harasses a fellow employee would have no incentive to inform the employer of his actions, the knowledge of the harasser cannot fairly be imputed to his employer. Del Castillo, 941 F.Supp. at 439. Therefore, Sudden Valley never knew of Bower s alleged sexual advance because Booth never complained, protested, or otherwise provided notice to Sudden Valley. C. Booth did not suffer a materially adverse employment action. The anti-retaliation provision does not protect an employee from all retaliation, but only from retaliation that produces an injury or harm. Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2003). As such, a plaintiff is required to show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination. Id. Booth alleges that opposing Bowers sexual advance resulted in his constructive discharge because he was removed from his position as construction project engineer. (Compl. at 49). To claim constructive discharge, a plaintiff must allege working conditions so intolerable that a reasonable person would have felt compelled to resign. 16

23 Pennsylvania State Police v. Suders, 542 U.S. 129, 147 (2004); see Perry v. Harris Chernin, Inc., 126 F.3d 1010, 1015 (C.A ) ( [U]nless conditions are beyond ordinary discrimination, a complaining employee is expected to remain on the job while seeking redress. ). Furthermore, the employee must allege the employer (1) deliberately created intolerable working conditions, as perceived by a reasonable person, and (2) the employer did so with the intention of forcing the employee to quit. Laster v. City of Kalamazoo, 746 F.3d 714, (6th Cir. 2014). Whether a reasonable person would have [felt] compelled to resign depends on the facts of each case, but we consider the following factors relevant, singly or in combination: (1) demotion; (2) reduction in salary; (3) reduction in job responsibilities; (4) reassignment to menial or degrading work; (5) reassignment to work under a younger supervisor; (6) badgering, harassment, or humiliation by the employer calculated to encourage the employee's resignation; or (7) offers of early retirement or continued employment on terms less favorable than the employee's former status. Brown v. Bunge Corp., 297 F.3d 776, 782 (5th Cir. 2000). In Brown, the Court found that although the plaintiff had shown two of the factors, demotion and fewer job responsibilities, the absence of the other factors meant there was no constructive discharge. Id. Here, Booth has failed to tip the balance of factors in his favor. Despite his transfer from positions, his job responsibilities remained the same, supervising construction workers. A lateral transfer from one supervising position to another 17

24 does not constitute reassignment to menial or degrading work. Sudden Valley did not reassign Booth to work under a younger supervisor, or made him suffer from harassment or humiliation. At no point did Sudden Valley encourage his resignation, offer him retirement, or forced him to choose between quitting or taking a position on terms less favorable than his former position. He was simply removed from his position because the two-week delay in his quadrant caused Jaguar Land Rover to terminate its lease in Milford Manor. Whether a particular reassignment is materially adverse... should be judged from the perspective of a reasonable person in the plaintiff s position, considering all the circumstances. Burlington, 548 U.S. at 71. Considering the entirety of circumstances, including the loss of the dealership contract and significant delay in the project, no reasonable person could have found Booth s reassignment materially adverse. Additionally, no reasonable person under these circumstances would have found the reassignment so intolerable to have felt compelled to resign. Therefore, under the facts alleged by Booth, he did not suffer an adverse employment action. D. Booth has failed to allege the required causal connection The causation required by the opposition clause is that the adverse employment action taken against the plaintiff would not have occurred but for [his] protected conduct. Septimus v. University of Houston, 399 F.3d 601, 608 (5th Cir. 18

25 2005). In other words, the alleged facts must suggest that a desire to retaliat[e] was the but-for cause of the challenged employment action. Univ. of Tex. Southwestern Med. v. Nassar, 133 S.Ct. 2517, 2529 (2013) (holding but-for causation is more than a motivating factor standard). This standard is evidenced by the language of the provision, prohibiting discrimination because an employee engages in protected conduct. 42 U.S.C. 2000e-3(a). The facts alleged by Booth do not meet this standard. His performance in the Northeast Quadrant carries a strong inference that absent the alleged incident with Bowers, Booth would have been reassigned anyway. The progress in his quadrant went from a four-day delay on June 28, 2016, to falling two weeks behind schedule by October 28, During this period, Booth failed to correctly supervise the development of the Jaguar Land Rover dealership, resulting in a defect in construction. The failure to notice the defect in time caused a significant delay, prompting Jaguar Land Rover to terminate its lease. This meant a significant loss of revenue to Sudden Valley. In light of the significant delays and loss of Jaguar Land Rover s contract, caused by Booth s poor supervision, Booth cannot allege he would not have been reassigned but for rejecting Bowers sexual advance. E. Conclusion 19

26 For the reasons stated above, Sudden Valley s motion to dismiss should be granted because Booth has failed to allege sufficient facts to state a prima facie case of retaliation under 42 U.S.C. 2000e-3(a). Conclusion This Court should grant Sudden Valley s motion to dismiss, because (1) Title VII does not recognize a cause of action for discrimination on the basis of sexual orientation; and (2) the plaintiff cannot establish a prima facie case of retaliation. Dated September 19, 2017 Respectfully submitted, Attorneys for Defendant Sudden Valley Construction Co. 20