Seyfarth Synopsis: In EEOC v. Konos, Inc., Case No. 1:20-CV-973 (W.D. Mich. June 3, 2021), the EEOC filed a lawsuit on behalf of a claimant against her employer, alleging it subjected to her to a hostile work environment and retaliation after she was sent home for complaining about a supervisor’s sexual harassment. The Court denied the employer Defendant’s motion to dismiss both claims, holding that when taking all factual allegations as true, the EEOC’s complaint sufficiently plead violations of Title VII of the Civil Rights Act of 1964.
This ruling exemplifies that based on the low notice pleading threshold under Rule 8(a)(2), it is very difficult for employers to dispose of EEOC-initiated lawsuits at the responsive pleading stage.
The claimant started working for Defendant on or about April 12, 2017 as an egg inspector at its facility in Martin, Michigan. Id. at 1. Shortly thereafter, a supervisor allegedly began sexually harassing the claimant. The harassment included text messages soliciting an intimate relationship, which she rejected. In addition, he sexually assaulted her on three separate occasions, including forced kissing, groping, and vaginal penetration. The claimant reported the assault to Defendant and the police, and obtained a personal protection order against him. The supervisor was prosecuted and pled no contest to fourth degree criminal sexual conduct. After the claimant complained about the alleged sexual harassment, Defendant the sent the claimant home, and she never returned to work.
On October 9, 2020, the EEOC filed a lawsuit on behalf of the claimant alleging that: (1) the Defendant violated Title VII of the Civil rights Act of 1964 by subjecting the claimant to a hostile work environment, and (2) that it violated Title VII by retaliating against her for objecting to and complaining about a sexually hostile work environment. Id. at 2. Defendant moved to dismiss both claims, arguing that the EEOC failed to allege specific facts demonstrating a hostile work environment based on sexual harassment, and failed to allege specific facts to establish a claim for retaliation under Title VII.
The Court’s Decision
The court denied Defendant’s motion to dismiss. First, the Court explained that to succeed on a hostile work environment claim, a plaintiff must show that (1) he or she was a member of a protected class; (2) he or she was subjected to unwelcome sexual harassment; (3) the harassment complained of was based on sex; (4) the charged sexual harassment created a hostile work environment; and (5) the employer is liable. Id. at 4 (citation omitted).
Defendant argued that the EEOC did not sufficiently plead the fourth and fifth elements of a hostile work environment claim. In regards to the fourth element, the Court explained that a hostile work environment occurs, “when the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Id. at 4 (citation omitted). Applied here, the Court noted that the EEOC alleged that the claimant was subjected to unwanted text messages, forced kissing, groping, and vaginal penetration by a supervisor. Rejecting Defendant’s argument, the Court held that while these instances of sexual harassment varied in their severity, when viewed in their totality, they were sufficient to state a claim for relief under Title VII.
Turning to the fifth element of a hostile work environment claim, Defendant argued that in order to establish this element, the EEOC must prove either a supervisor participated in the harassment that created the hostile work environment, or that the employer was negligent in discovering or remedying the harassment. The Court explained that although the EEOC did not specify in its complaint whether the supervisor was claimant’s actual supervisor, employer liability may still be established if the employer knew or should have known of a non-supervisor’s charged sexual harassment, and failed to implement prompt and appropriate corrective action. Id. at 5. The EEOC alleged that after the claimant complained about the harassment, she was sent home. Accordingly, this employer response (taken as true for Rule 12(b)(6) purposes) manifested indifference in light of the alleged harassment regardless of whether he was claimant’s direct supervisor, and thus satisfied the fifth element. The Court therefore denied Defendant’s motion to dismiss the hostile work environment claim.
The Court also rejected Defendant’s argument that the complaint failed to allege specific facts to establish a claim for retaliation under Title VII. Id. at 6. To establish a claim for retaliation under Title VII, a plaintiff must establish (1) an individual has engaged in protected activity; (2) the individual suffered a materially adverse employment action; and (3) a causal link between the protected activity and the adverse employment action. Id. (citation omitted). Defendant argued that the EEOC failed to establish any of these elements.
In regards to the first element, the Court noted that a protected activity includes “complaining to anyone (management, unions, other employees, or newspapers) about allegedly unlawful practices.” Id. at 6 (citation omitted). Since the EEOC alleged that the claimant reported the sexual harassment to Defendant, the Court held that the first element was established. Second, the Court held that the EEOC properly plead a materially adverse employment action since the claimant was sent home. Third, the Court held that the EEOC sufficiently plead that a causal link existed between the protected activity (complaining about harassment) and the adverse employment action (being sent home). Accordingly, the Court denied Defendant’s motion to dismiss the retaliation claim.
Implications For Employer
For employers facing EEOC-initiated litigation, this ruling illustrates that at the pleading stage, courts will not wade into the merits of whether each element of a claim are proven, but rather will analyze whether they were sufficiently alleged. Accordingly, when preparing a responsive pleading strategy, employers should consider this ruling to assess whether filing a motion to dismiss will be a cost effective defense tactic.