Villa v. Cavamezze Grill, LLC, No. 15-2543 (4th Cir. June 7, 2017), is an important new decision addressing when an employer can be held liable under Title VII of the Civil Rights Act of 1964 for firing someone that the employer believes has falsely reported sexual harassment.
In this case, Patricia Villa, a lower-level restaurant manager, alleged that an employee she had supervised, Judy Bonilla, told her that the restaurant’s General Manager, Marcelo Butron, had offered to promote Bonilla in exchange for sex. Villa contacted Rob Gresham, the Director of Operations, and relayed what Bonilla had allegedly told her, and she also told Gresham that she suspected that another former employee, Jessica Arias, had quit because Butron had made the same offer to her. After investigating the allegations, the employer concluded that Villa had made everything up, and it fired her.
The Fourth Circuit rejected Villa's claim that she was fired in retaliation for reporting sexual harassment. The court reasoned that a plaintiff bringing a Title VII retaliation claim must prove that “the desire to retaliate was the but-for cause of the challenged employment action.” Thus, it is not enough that the plaintiff's conduct have caused the termination. The employer must also have been motivated by retaliatory animus, rather than merely the desire to discipline an employee for what the employer honestly believed was misconduct.
The EEOC, by contrast, argued in its amicus brief that "[a] jury should resolve retaliation claims where (1) an employee has engaged in protected activity under the opposition clause of Title VII's anti-retaliation clause . . . ; (2) the employer claims that it took adverse action because the employee fabricated allegations of unlawful activity; and (3) there are disputed issues of fact as to the evidence on which the employer relied or the adequacy of the employer's investigation."
As I see it, neither the Fourth Circuit nor the EEOC has it exactly right. Although I agree with the EEOC that the Fourth Circuit's approach may be too narrow, the EEOC's alternative is muddled and provides insufficient guidance. The EEOC suggests that a jury should resolve a retaliation claim when the adequacy of the employer's investigation is at issue, but the EEOC does not explain how the jury is supposed to resolve the claim. Presumably, there must be some guiding legal principles, but if so, the EEOC does not identify them.
In my view, an alternative grounds for liability could be an employer's negligence. If someone alleges unlawful discrimination, the employer has a responsibility to respond in a reasonable manner to that complaint. If the employer fails to act reasonably and, as a result, takes an adverse action based on the honest but unreasonable and mistaken belief that an employee lied about alleged discrimination, then a plaintiff should be able to establish employer liability for retaliation based on the employer's negligence. Holding an employer liable under such circumstances is akin to holding an employer liable for sexual harassment by a coworker where an employer honestly but unreasonably believed that no harassment occurred because it failed to conduct an adequate investigation.
In this case, however, I don’t think the alleged facts support potential employer liability based on negligence. The evidence showed that the employer spoke with Bonilla and Aria, and they both denied that they were sexually harassed by Butron. The employer also spoke with a witness who allegedly overheard Bonilla tell Villa about Butron's harassment, and the witness denied that Bonilla made such an accusation.
It is true, as the EEOC notes, that there were factual disputes about the adequacy of the investigation, such as the failure to question the alleged harasser and the lack of a harassment policy, but neither of those possible shortcomings seems relevant to why the employer believed that Villa had lied. Take the failure to interview the alleged harasser. The employer interviewed the alleged victim, and she denied that the harassment occurred. Although Bonilla stated in her deposition that she had in fact told Villa that Butron had sexually harassed her, she also stated that she had lied to Villa about the offer. Thus, even if the employer had interviewed Butron, that almost certainly would not have affected its determination that Villa had lied since he obviously would not have admitted to misconduct that never occurred. Similarly, it’s not at all clear how the lack of a harassment policy could have affected the employer’s determination that Villa lied.
In the end, negligence may be a viable theory for holding an employer liable for retaliation, but it's hard to fault the court for not adopting that position when neither the plaintiff nor the EEOC argued in its favor. Moreover, even if such a theory were available, it seems unlikely that it would have affected the outcome.
This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.
