IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF STETSON METTS CITY DIVISION. Civil Action No. 15:17-cv-0068-CHR-ESM

IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF STETSON METTS CITY DIVISION Team 1725 Civil Action No. 15:17-cv-0068-CHR-ESM Lindsay Booth, Plaintiff, v. Sudden Valley Construction Company Defendant. Defendant s Memorandum of Law in Support of Defendant s Motion for Dismissal /s/ Team 1725 Reinhold, Zuckerton & Oscar, PLLC Attorneys for Defendant 1700 North Tampa Street Gordon, Stetson 86753 Phone: (323)331-1010 Facsimile: (326)529-5612

TABLE OF CONTENTS TABLE OF AUTHORITIES... III QUESTIONS PRESENTED... 1 STATEMENT OF JURISDICTION... 1 STATEMENT OF FACTS... 1 SUMMARY OF THE ARGUMENT... 3 ARGUMENT... 5 I. TITLE VII DOES NOT, NOR HAS IT EVER, PROTECTED AN EMPLOYEE FROM EMPLOYER DISCRIMINATION BASED ON AN EMPLOYEE S SEXUAL ORIENTATION... 5 A. CONGRESS NEVER INTENDED FOR SEXUAL ORIENTATION TO BE A PROTECTED CLASS UNDER TITLE VII... 6 B. THE COURTS HAVE NEVER INCLUDED SEXUAL ORIENTATION AS A PROTECTED CLASS WHEN INTERPRETING TITLE VII... 7 C. EVEN IF THE COURT FINDS SEXUAL ORIENTATION TO NOW BE A PROTECTED CLASS UNDER TITLE VII, PLAINTIFF FAILS TO SHOW DISCRIMINATION BASED ON HIS SEXUAL ORIENTATION... 12 i

II. PLAINTIFF S COMPLAINT IS IMPROPER AS IT DOES NOT COMPLY WITH IQBAL AND TWOMBLY STANDARDS FOR A PROPER PLEADING... 13 A. PLAINTIFF FAILED TO PROPERLY PLEAD A RETALIATION CLAIM UNDER TITLE VII BY FAILING TO MEET THE SET REQUIREMENTS... 14 B. REJECTING SEXUAL ADVANCES IS NOT A PROTECTED ACTIVITY... 15 C. PLAINTIFF HAS FAILED TO PROVIDE ANY FACTUAL ALLEGATIONS TO SUPPORT A CLAIM THAT SVCC S LEGITIMATE, NONDISCRIMINATORY REASON FOR ADVERSE EMPLOYMENT ACTION WAS A PRETEXT FOR DISCRIMINATION.... 17 CONCLUSION... 19 ii

TABLE OF AUTHORITIES Cases Ashcroft v. Iqbal. Ashcroft v. Iqbal, 556 U.S. 662 (2009)... 4, 13 Barnes v. GenCorp, Inc., 896 F.2d 1457, 1489 (6th Cir. 1990)... 19 Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d 257, 261 (3d Cir. 2001)... 10 Blum v. Gulf Oil Corp. 597 F.2d 936, 938 (5th Cir. 1979)... 8 Complainant, EEOC DOC 0120133080, 2015 WL 4397641, at *4 (July 16, 2015) 6 Day v. Colt Const. and Dev. Co., 28 F.3d 1446, 1458 (7 th Cir. 1994)... 17 Del Castillo v. Pathmark Stores, Inc., 941 F.Supp. 437, 438-439 (S.D.N.Y. 1996)... 15 Evans v. Georgia Reg'l Hosp. 850 F.3d 1248, 1256 (11th Cir. 2017)... 8, 10 Hamner v. St. Vincent Hosp. & Health Care Ctr., Inc., 224 F.3d 701, 704 (7th Cir. 2000)... 10 Harvill v. Westward Commc ns, L.L.C., 433 F.3d 428, 439 (5 th Cir. 2005)... 14 Hively v. Ivy Tech Cmty. Coll. of Indiana, 853 F.3d 339, 344 (7th Cir. 2017)... 7,11,12 Imwalle v. Reliance Med. Prods., 515 F.3d 531, 545 (6 th Cir. 2008)... 18 Kotcher v. Rosa and Sullivan Appliance Ctr., Inc. 957 F.2d 59, 65 (2d Cir. 1992) 15 LeMaire v. Louisiana Dept. of Tranp. And Development, 480 F.d 383, 388 (5 th Cir 2007)... 14 iii

Magnusson v. Cty. of Suffolk No. 16-1876-CV, 2017 WL 1958699 (2d Cir. May 11, 2017)... 7 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)... 14, 18 Miller v. Am Family Mutual Ins Co., 203 F.3d 997, 1008 (7 th Cir. 2000)... 17 N.L.R.B. v. Datapoint Corp., 642 F.2d 123, 129 (5th Cir. 1981)... 9 Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 118 (1998)... 8, 9 Price Waterhouse v. Hopkins, 490 U.S. 228, 109 (1989)... 8, 9, 10 Rachel-Smith v. FTData, Inc., 247 F.Supp.2d 734, 741 (2004)... 16, 17 Sitar v. Indiana Dep t of Transp., 344 F.3d 720, 727 (7 th Cir. 2003)... 16 Texas Dep t of Cmty. Affairs v. Burdine. 450 U.S. 248, 256, (1981)... 18 Thompson v. Ohio State University. Thompson v. Ohio State Univ., 639 F.App x 333, 341 (6th Cir. 2016)... 19 Twombly Bell Atlantic Corp. v.twombly, 550 U.S. 544, 545 (2007)... 4, 13, 18 Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762 (6th Cir. 2006)... 10 White v. Baxter Healthcare Corp., 533 F.3d 381, 393 (6 th Cir. 2008)... 18 Wikins v. Bozzuto & Assocs., Inc., No. CIV. 09-2581, 2009 WL 4756381, at *2 (E.D. Pa. Dec. 10, 2009)... 13 Statutes 28 U.S.C. 1391... 1 iv

42 U.S.C. 2000e-3(a)... 1, 15 42 U.S.C. 2000e-2... 1,6,15 Fed. R. Civ. P. 12(b)(6)... 20 Other Authorities 3:13.Sexual Orientation as Basis for Protection Under Federal Discrimination Laws, 1 Emp. Discrim. Coord. Analysis of Federal Law 3:13 (West, 2017). 5, 6 27 No. 16 Cal. Emp. L. Letter 10 (West, 2017)... 12 v

QUESTIONS PRESENTED I. Has Title VII has been expanded to protect an employee from discrimination based on his sexual orientation? II. Did Plaintiff Lindsay Booth properly plead a claim for retaliation under 42 U.S.C. 2000e-3(a) when he failed to show factual allegations, beyond suspicion or speculation, of retaliation based on rejecting a supervisor s sexual advance? STATEMENT OF JURISDICTION The United States District Court Southern District of Stetson Metts City Division has subject matter jurisdiction over Plaintiff Lindsay Booth s alleged claims of violations under Title VII of the Civil Rights Act of 1964 ( Title VII ), 42 U.S.C. 2000e-2, 2000e-3. Venue is proper under 28 U.S.C. 1391. Plaintiff Lindsay Booth is a United States citizen and resident of Metts City in the state of Stetson. Defendant Sudden Valley Construction Company is a Stetson corporation and, at all times material to this case, maintained a place of business within the limits of Metts City, Stetson. STATEMENT OF FACTS On November 29, 2016, Lindsay Booth ( Plaintiff ) tendered his resignation from Sudden Valley Construction Company ( SVCC or Defendant ). Compl. 1

35. Plaintiff, a homosexual, subsequently improperly filed a charge of discrimination, based in part on sexual orientation, against SVCC with the Equal Employment Opportunity Commission ( EEOC ) that same day. Compl. 8, 36, 42. Plaintiff alleges that the limiting of his hours by SVCC, due to development delays and loss of investment, resulted in a constructive discharge from employment. Compl. 28, 29, 35. Plaintiff further alleges that the so-called constructive discharge was the retaliation against him for refusing a sexual advance by a supervisor, Jesse Bowers ( Mr. Bowers ), also employed by SVCC, Compl. 36. In the Fall of 2015, Mr. Bowers was assigned by SVCC to oversee the construction of a large development called Milford Manor. Compl. 9. In that role, Mr. Bowers oversaw Plaintiff and his team, who were assigned on February 29, 2016, to construct the Northeast quadrant of Milford Manor which would be leased, in turn, by the dealership Jaguar Land Rover. Compl. 11, 14. Jaguar Land Rover required quarterly updates on the construction progress and maintained a clause in the lease that allowed them to withdraw if any substantial delay in construction occurred. Compl. 15. While construction progressed on pace, Plaintiff received positive job performance reviews and bonuses from SVCC at Mr. Bower s recommendation. Compl. 16, 17. However, following the discovery of a defective foundation in the construction work being overseen by Plaintiff, 2

portions of the Northeast quadrant had to be demolished and rebuilt. Compl. 19. The project subsequently fell four weeks behind schedule and was still two weeks behind at the time Jaguar Land Rover received its quarterly report on progress. Compl. 19, 21, 28. Jaguar Land Rover then terminated its lease in the development due to the delay resulting in a tense meeting between Mr. Tobias Funk, Vice President of SVCC, Mr. Bowers, and Plaintiff. Compl. 29, 30. Following the meeting, due to that lack of oversight on the construction in the Northeast quadrant, Plaintiff was demoted to the weekend supervisor of the Southwest quadrant. Compl. 32. Plaintiff alleges that this demotion is not due to the noted construction flaws, delays, and investment loss under his watch, but rather because Mr. Bowers made a single sexual advance toward Plaintiff on October 19, 2016, which Plaintiff rebuffed. Compl. 23, 24. Plaintiff now improperly alleges sexual discrimination due to sexual orientation and subsequent retaliation under Title VII. See generally Compl. SUMMARY OF THE ARGUMENT Defendant s supplemental briefing addresses two issues: (1) whether Title VII has been broadened to protect an employee from discrimination based on sexual orientation and (2) whether Plaintiff s claim for Title VII retaliation was 3

properly pleaded where there is no factual basis, beyond suspicion, that his demotion was based on retaliation for rebutting a sexual advance by a supervisor. The circuit courts have broadly found that sexual orientation is not a protected class under Title VII. Neither Congress nor the Supreme Court have clearly and directly changed that. While there are instances where claims of discrimination based on sex or gender are valid under Title VII, these exceptions are valid only because the employer has relied on either sex or gender specifically in perpetrating a discriminatory action. Discrimination claims based solely on sexual orientation are not valid under Title VII. The Seventh Circuit Court of Appeals is the only circuit to open the doors explicitly to protections under Title VII based on sexual orientation. Even then, however, Plaintiff has failed to factually show an analogous situation to that of the Seventh Circuit case, further precluding him from claiming such an expanded interpretation before this court. The Supreme Court s rulings in Twombly and Iqbal require that proper pleadings contain enough factual allegations to support the claim for relief in order to be a proper pleading. The Plaintiff failed to meet the Twombly/Iqbal standard by failing to provide facts that support the Plaintiff s claim for relief under Title VII. Utilizing the Supreme Court s ruling in McDonnell Douglas v. Green, retaliation complaints require Plaintiff to establish both a prima facie case for retaliation and to rebut a legitimate nondiscriminatory reason given by the employer for the action 4

taken against the employee. However, Plaintiff failed to produce facts that meet both of these requirements in his complaint. ARGUMENT I. TITLE VII DOES NOT, NOR HAS IT EVER, PROTECTED AN EMPLOYEE FROM EMPLOYER DISCRIMINATION BASED ON AN EMPLOYEE S SEXUAL ORIENTATION No federal law expressly prohibits employment discrimination because of sexual orientation. 3:13.Sexual Orientation as Basis for Protection Under Federal Discrimination Laws, 1 Emp. Discrim. Coord. Analysis of Federal Law 3:13 (West, 2017). Therefore, the United States District Court Southern District of Stetson Metts City Division should grant Defendant Sudden Valley Construction Company s ( SVCC or Defendant ), motion to dismiss Plaintiff Lindsay Booth s ( Plaintiff ) Complaint in part because sexual orientation is not a protected class under Title VII. At the time the statute was passed, it was not the legislative intent of Congress to include sexual orientation as a protected class. Furthermore, since its enactment, the courts have never interpreted the statute in such a broad context as to include sexual orientation as a protected class. Finally, even should this court determine that sexual orientation is a protected class under Title VII, Plaintiff has failed to show discrimination based on such a classification. 5

A. Congress Never Intended for Sexual Orientation to be a Protected Class Under Title VII Sexual lifestyles were not considered within the ambit of Title VII's sex discrimination prohibition by Congress when the law was enacted. Thus, the statute does not protect a person from discrimination exclusively based on his or her sexual proclivities, practices, orientation, or activities. 3:13.Sexual Orientation as Basis for Protection Under Federal Discrimination Laws, 1 Emp. Discrim. Coord. Analysis of Federal Law 3:13 (West, 2017). Title VII states in pertinent part that [i]t shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his.... employment because of such individual's race, color, religion, sex, or national origin. 42 U.S.C.A. 2000e-2 (West, 2017). The Equal Employment Opportunity Commission ( EEOC ), even in finding in favor of a complainant for sex discrimination under Title VII, noted the absence of sexual orientation protection explicitly under the statute stating that [w]hen an employee raises a claim of sexual orientation discrimination as sex discrimination under Title VII, the question is not whether sexual orientation is explicitly listed in Title VII as a prohibited basis for employment actions. It is not. Complainant, EEOC DOC 0120133080, 2015 WL 4397641, at *4 (July 16, 2015) (emphasis added). In fact, the EEOC went on to rely on the explicit language of the statute when finding that if an employer has relied on sex-based considerations 6

or take[n] gender into account when taking the challenged employment action, only then is such a claim covered under Title VII. Complainant, EEOC DOC 0120133080, 2015 WL 4397641, at *4 (July 16, 2015). However, if the employer relied on sexual orientation alone in their decision, it is not covered under Title VII. The Seventh Circuit Court of Appeals noted in its recent, outlying, landmark decision of Hively v. Ivy Tech Cmty. Coll. of Indiana, that Congress has frequently considered amending Title VII to add the words sexual orientation to the list of prohibited characteristics, yet it has never done so. Many of our sister circuits have also noted this fact. 853 F.3d 339, 344 (7th Cir. 2017). Congress did not intend for protection from discrimination on the basis of sexual orientation to be included at the time Title VII was enacted into law and have clearly done nothing to change that position. Title VII does not protect an employee from discrimination based solely on his or her sexual orientation. B. The Courts Have Never Included Sexual Orientation as a Protected Class When Interpreting Title VII As recently as May of 2017, the Second Circuit Court of Appeals in Magnusson v. Cty. of Suffolk held that [s]exual orientation discrimination is not actionable under Title VII, and plaintiffs may not shoehorn what are truly claims of sexual orientation discrimination into Title VII by framing them as claims of 7

discrimination based on gender stereotypes.... No. 16-1876-CV, 2017 WL 1958699 (2d Cir. May 11, 2017). The Second Circuit followed the decades long precedent across circuit courts, all of which found the same restraints for claims under Title VII, excluding protections for discrimination based solely on one s sexual orientation. The Eleventh Circuit Court of Appeals delved into this precedent at some length in the case of Evans v. Georgia Reg'l Hosp., which is similarly situated to the present complaint. In Evans, a lesbian employee brought suit against her employer in part for alleged discrimination based on sexual orientation. The employee claimed she was denied equal pay or work, harassed, and physically assaulted or battered [and that] [s]he was discriminated against on the basis of her sex and targeted for termination for failing to carry herself in a traditional woman[ly] manner. Evans v. Georgia Reg'l Hosp., 850 F.3d 1248, 1251 (11th Cir. 2017). While Evans and the EEOC levied that the Supreme Court decisions in Price Waterhouse v. Hopkins, 490 U.S. 228, 109 (1989), and Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 118 (1998) arguably showed an indirect inclination by the Court to expand Title VII to address sexual orientation, the Eleventh Circuit maintained that it was restrained by its own binding precedent in Blum v. Gulf Oil Corp. 597 F.2d 936, 938 (5th Cir. 1979). There it held that [d]ischarge for [sexual orientation] is not prohibited by Title VII. Blum v. Gulf 8

Oil Corp. 597 F.2d at 938. In doing so it noted that [w]hile an intervening decision of the Supreme Court can overrule the decision of a prior panel of our court, the Supreme Court decision must be clearly on point and [w]ithout a clearly contrary opinion of the Supreme Court or of this court sitting en banc, we cannot overrule a decision of a prior panel of this court.... Id. (quoting N.L.R.B. v. Datapoint Corp., 642 F.2d 123, 129 (5th Cir. 1981)). It is important to note that the reason both of these above referenced Supreme Court cases, Price Waterhouse v. Hopkins and Oncale v. Sundowner Offshore Servs., Inc., are not on point to claim Title VII protection from discrimination based on sexual orientation is clearly discussed in their rulings. Justice Scalia, in rendering his opinion in Oncale, noted that Title VII prohibits discriminat[ion]... because of... sex in the terms or conditions of employment. Our holding that this includes sexual harassment must extend to sexual harassment of any kind that meets the statutory requirements. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. at 79 80. Justice Brennan, in Price Waterhouse, found similarly when stating that: [T]he statute forbids an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate with respect to his compensation, terms, conditions, or privileges of employment, or to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's... sex. 9

Price Waterhouse v. Hopkins, 490 U.S at 240. However, he was careful to note that the Court took the words to mean that gender must be irrelevant to employment decisions. Id. Essentially, both cases made clear that any inclination toward sexual orientation protections under Title VII must be factually evidenced sex or gender discrimination, and not solely based on one s sexual orientation. The Eleventh Circuit in Evans went on to note the myriad of other cases that have also held that sexual orientation was not a protected class under Title VII. For instance, the First Circuit Court of Appeals in Higgins v. New Balance Athletic Shoe, Inc., found Title VII does not proscribe harassment simply because of sexual orientation. 194 F.3d 252, 259 (1st Cir. 1999). The Second Circuit Court of Appeals found likewise in Simonton v. Runyon holding Simonton has alleged that he was discriminated against not because he was a man, but because of his sexual orientation. Such a claim remains non-cognizable under Title VII. 232 F.3d 33, 36 (2d Cir. 2000). See also Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d 257, 261 (3d Cir. 2001) (holding Title VII does not prohibit discrimination based on sexual orientation. ); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762 (6th Cir. 2006) (noting [s]exual orientation is not a prohibited basis for discriminatory acts under Title VII. ); Hamner v. St. Vincent Hosp. & Health Care Ctr., Inc., 224 F.3d 701, 704 (7th Cir. 2000) (determining that [h]arassment based solely upon a person's 10

sexual preference or orientation (and not on one's sex) is not an unlawful employment practice under Title VII. ). Such extensive appellate level consensus shows clearly that the Seventh Circuit is an exceptional outlier when it arguably upended three decades of precedent in Hively v. Ivy Tech Cmty. Coll. of Indiana where it broadened Title VII to include protections based on sexual orientation. In Hively, an employee of a community college claimed she was denied full-time employment and was passed up for promotions because of her sexual orientation. Hively v. Ivy Tech Cmty. Coll. of Indiana, at 341. While noting that [i]t would require considerable calisthenics to remove the sex from sexual orientation, the court then proceeded to attempt to add orientation to the already Title VII protected class of sex. Id. at 350. The court ultimately decided that sexual orientation was covered as a form of sexual discrimination under Title VII, but does so only through the thin rationalization that sexual orientation is intrinsically linked to sex and gender. Id. at 351-52. The court measured this link by evaluating whether the discriminatory act would persist if the gender of the claimant was changed. Id. at 349. This is a measurement that found solace only in the facts of Hively and is not found in any other precedent case on either the appellate or the Supreme Court level. Legal guidance in the State of California even noted, following the ruling, that the 7th Circuit... likely set the issue up for review by the U.S. Supreme Court, and 11

clarified that the decision applies only in Illinois, Indiana, and Wisconsin. 27 No. 16 Cal. Emp. L. Letter 10 (West, 2017). Such a strained, outside opinion should be left to that jurisdiction and not applied in this court today. C. Even If the Court Finds Sexual Orientation to Now Be a Protected Class Under Title VII, Plaintiff Fails to Show Discrimination Based on His Sexual Orientation If this court should find that such an upending of precedent and subsequent broadening of Title VII protections is due, the very test employed by the Seventh Circuit in Hively would preclude any claim by the Plaintiff here. The court noted specifically that [i]f we were to change the sex of one partner in a lesbian relationship, the outcome would be different, which the court claimed reveal[ed] that the discrimination rests on distinctions drawn according to sex. Id. at 349. Here, were this court to change the sex of either the Plaintiff or his partner, the outcome would remain the same, even when interpreting the facts in a manner most favorable to the Plaintiff. Therefore, the claim for discrimination due to sexual orientation fails even under the analysis set forth in the sole circuit supportive of the Plaintiff s Title VII expansion request. Ultimately, the Plaintiff s reassignment at work was the result of the Plaintiff s failure to properly supervise the construction of the Northeast quadrant, which resulted in costly repairs, substantial delays, and the loss of a tenant. Compl. 21, 28, 29. Were it not for The Plaintiff s overall lack of proper oversight, the 12

Plaintiff would likely not have experienced the cut in hours and pay following his subsequent poor review. The Plaintiff s sexual orientation, neither factually nor circumstantially, contributed to that result. II. PLAINTIFF S COMPLAINT IS IMPROPER AS IT DOES NOT COMPLY WITH IQBAL AND TWOMBLY STANDARDS FOR A PROPER PLEADING In accordance with the Supreme Court precedent, the Plaintiff must provide enough factual allegations, assumed to be true, to state a plausible claim for relief. Bell Atlantic Corp. v.twombly, 550 U.S. 544, 545 (2007). This standard was expanded to all civil cases with the Supreme Court s ruling in Ashcroft v. Iqbal. Ashcroft v. Iqbal, 556 U.S. 662 (2009). Under the Twombly standard, a plaintiff filing a Title VII complaint must make factual allegations that show more than the mere possibility of misconduct and be at higher level than suspicion or speculation. Wikins v. Bozzuto & Assocs., Inc., No. CIV. 09-2581, 2009 WL 4756381, at *2 (E.D. Pa. Dec. 10, 2009). Plaintiff, however, failed to make factual allegations that reach the Twombly standard in support of his claim of retaliation under Title VII. Therefore, the United States District Court Southern District of Stetson Metts City Division should grant Defendant s motion to dismiss Plaintiff s complaint for failure to state a claim. 13

A. Plaintiff Failed to Properly Plead a Retaliation Claim Under Title VII by Failing to Meet the Set Requirements All retaliation complaints must begin with the plaintiff providing factual allegations that establish a prima facie case for retaliation. There must be facts to establish (1) he engaged in an activity that Title VII protects, (2) he was subjected to an adverse employment action; and (3) a causal link exists between the protected activity and the adverse employment action. LeMaire v. Louisiana Dept. of Trans. And Development, 480 F.d 383, 388 (5 th Cir 2007) (quoting Harvill v. Westward Commc ns, L.L.C., 433 F.3d 428, 439 (5 th Cir. 2005)). Once the prima facie case is established, the employer has the opportunity to articulate some legitimate nondiscriminatory reason for the adverse employment effect. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). After the defendant responds with a legitimate, nondiscriminatory reason, the plaintiff must then give factual allegations that demonstrate the employer s reason is a pretext for the material, adverse effect the employee suffered. McDonnell Douglas Corp. v. Green, 411 U.S. at 806. Plaintiff has failed to provide factual allegations that establish a prima facie case since the plaintiff was not engaged in an activity protected under Title VII when he rejected Mr. Bower s sexual advances. Even if the court were to determine the Plaintiff has met his burden of establishing a prima facie case, he has 14

failed to provide factual allegations in response to the SVCC s legitimate nondiscriminatory reason for the reassignment. B. Rejecting Sexual Advances is Not a Protected Activity 42 U.S.C. 2000e-2 states, in pertinent part, [i]t shall be an unlawful employment practice for an employer to discriminate against any of his employees because he has opposed any practice made unlawful employment practice by this subchapter 42 U.S.C. 2000e-2 (West, 2017). The intent behind the retaliation clause of Title VII is to ensure protection for any employee that speaks out against discrimination at his or her workplace. While courts have expressly embraced a broad definition of protected activity, even the broadest interpretation of a retaliation claim cannot encompass instances where the alleged protected activity consists simply of declining a harasser s sexual advances as the employee has not opposed discrimination protected against under Title VII. Del Castillo v. Pathmark Stores, Inc., 941 F.Supp. 437, 438-439 (S.D.N.Y. 1996). The court in Del Castillo even broadly defined opposition beyond making complaints to management and included writing critical letters to customers, or expressing support of coworkers who have filed charges. Del Castillo v. Pathmark Stores, Inc., 941 F.Supp. at 438. However, the court still expressly chose not into include rejecting sexual advances in its definition of opposition. Id. at 438-439; see also Kotcher v. Rosa and Sullivan Appliance Ctr., Inc. 957 F.2d 59, 65 (2d Cir. 1992) 15

(holding that the analysis of Congress seeking to protect a wide range of activities in an earlier case involving age discrimination applied to Title VII cases). The District Court of Maryland, in Rachel-Smith v. FTData, delved further into this precedent and found that even multiple rejections were not enough to constitute statutorily defined opposition under Title VII. Rachel-Smith v. FTData, Inc., 247 F.Supp.2d 734, 741 (2004). Rachel-Smith s supervisor, McLallen, made multiple sexual advances over the course of several weeks that Rachel-Smith rejected both in-person and in an email. Rachel-Smith v. FTData, Inc., 247 F.Supp.2d at 741. However, the court found Rachel-Smith s rejection failed to be reach the statutory opposition standard for two reasons. The first being that Rachel- Smith failed to communicate that she was requesting [the ceasing of the sexual advances]... because she believed his advances to be illegal. Id. at 748. The second reason was that Rachel-Smith needed to speak out against McLallen s behavior or report the behavior to either an authority or an outsider in order to be protected by the opposition clause. Id. at 748-749. For both of these reasons, Rachel-Smith failed to establish a prima facie case of retaliation. Id. at 749. While the latter reason is quite clear, the former would seem to create a battle over words. Yet Title VII does not require the plaintiff to use magic words to bring her speech within Title VII s retaliation protections. Sitar v. Indiana Dep t of Transp., 344 F.3d 720, 727 (7 th Cir. 2003) (quoting Miller v. Am 16

Family Mutual Ins Co., 203 F.3d 997, 1008 (7 th Cir. 2000) and Day v. Colt Const. and Dev. Co., 28 F.3d 1446, 1458 (7 th Cir. 1994)). However, Title VII does require that the Plaintiff use language that makes it explicit to the employer that the employee is speaking out against a Title VII violation. This holding makes common sense. An employer cannot retaliate against an employee if the employer is unaware the employee is claiming a Title VII violation. This is exactly what has happened to SVCC. Plaintiff, just like Rachel- Smith, failed to communicate both during the rejection itself and, afterwards, to upper management that he believed there was a Title VII violation. In the same manner as Rachel-Smith, Plaintiff simply denied the sexual advance, stating he did not want to engage in a sexual relationship. Plaintiff then failed to report Mr. Bowers behavior to upper management; just like Rachel-Smith failed to report McLallen s behavior. Plaintiff has failed to plead facts to support opposition to an alleged Title VII violation. Without such facts, there cannot be a protected activity. Without a protected activity, the Plaintiff has failed to plead a prima facie case for retaliation. C. Plaintiff has Failed to Provide Any Factual Allegations to Support a Claim that SVCC s Legitimate, Nondiscriminatory Reason for Adverse Employment Action was a Pretext for Discrimination. In accordance with the ruling in McDonnell v. Green, once the employer has given a legitimate nondiscriminatory reason for the actions taken against the 17

employee, the plaintiff has the burden of demonstrating that the reason was only a pretext for discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. at 804. The Supreme Court, in Texas Dep t of Cmty. Affairs v. Burdine, found that pretext can be shown by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer s proffered explanation is unworthy of credence. Texas Dep t of Cmty. Affairs v. Burdine. 450 U.S. 248, 256, (1981). Plaintiffs usually demonstrate this by showing that the employer s stated reason for the adverse employment action either (1) has no basis in fact, (2) was not the actual reason, [and] (3) is insufficient to explain the employer s action. White v. Baxter Healthcare Corp., 533 F.3d 381, 393 (6 th Cir. 2008); see also Imwalle v. Reliance Med. Prods., 515 F.3d 531, 545 (6 th Cir. 2008) (holding that the plaintiff can use any of the three methods to give enough facts such that a jury could reasonably find the employer s rationale was false). Courts have found, in accordance with the holding in Twombly, that the Plaintiff must give specific evidence demonstrating the pretext. For instances, the District Court of Michigan, Southern Division, in the motion for summary judgment hearing in Henry v. Shawnee Specialties, Inc., found that plaintiff had provided sufficient evidence that a jury could find the employer s reason could be a pretext by casting doubt on the supervisor s credibility through multiple, specific instances. Henry v. Shawnee 18

Specialties, Inc., Case No. 1:13-CV-1234 2016 WL 1253041(W.D. Mich. Mar. 31, 2016). The specific evidence requirement was also adopted by the Sixth Circuit in its ruling in Thompson v. Ohio State University. Thompson v. Ohio State Univ., 639 F.App x 333, 341 (6th Cir. 2016). The Sixth Circuit Court found that Thompson cannot establish pretext by referring again to the statistics alone. Accordingly, absent a showing that Schweikhart s [Ohio State] explanations are inherently suspect or other direct or circumstantial evidence suggesting that the proffered reasons are not true Thompson v. Ohio State Univ., 639 F.App x at 341 (quoting Barnes v. GenCorp, Inc., 896 F.2d 1457, 1489 (6th Cir. 1990)). Plaintiff in this matter has provided even less than Thompson. Plaintiff simply pleaded SVCC s stated reasoning behind the demotion and constructive termination is a pretext Compl. 51. Plaintiff provided no facts to support this allegation; rather just gave a conclusory statement. In fact, under the Twombly approach, conclusory statements are to be ignored by the court in determining whether or not a plaintiff has stated a claim for relief. Without facts to support the allegations of a pretext by the employer, Plaintiff has again failed to meet his burden for a properly pleaded claim for retaliation. CONCLUSION 19

For the foregoing reasons, Defendant respectfully requests this court dismiss Plaintiff s Complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim. Respectfully Submitted /s/ Team 1725 Attorneys for Defendant 20