Under Title VII, an employer can be held liable for retaliation by a non-supervisory co-worker if (1) the conduct is sufficiently severe to dissuade a complaint of discrimination; (2) management was aware of the behavior; and (3) management condoned or tolerated the conduct. Family drama spilled over into the workplace in a West Tennessee case showcasing how employers can get into trouble if they are perceived as tolerating unlawful retaliation for reporting a sexual harassment complaint.
FACTS:
In late 2017, Taylor Benoist (age 22) started working for Titan Medical Manufacturing (Titan), a medical device manufacturer, in Bartlett, Tennessee. Benoist had a special connection to Titan—her mother's long-term boyfriend, Jeff Kenyon, was a manager there and his family-owned and ran the company. Technically, Kenyon was not Benoist's step-father, but he testified that he considered himself to fill that role. In February 2018, Benoist and her boyfriend moved in with Kenyon and her mom. The living arrangement agitated Kenyon, who didn't like the fact that Benoist's boyfriend was unemployed.
On February 28, 2018, Kenyon (who had no supervisory role over Benoist) confronted Benoist at work to express his displeasure with her boyfriend. During the course of the conversation, Benoist cried and Kenyon hugged her. At one point, Benoist turned away to face her work computer, at which point Kenyon grabbed her on both sides of the face, turned it toward him, and planted a kiss on her mouth for eight seconds. Benoist described the kiss as "slobbery" and uninvited. Kenyon, however, claimed that he benignly kissed her on the side of her mouth in an unromantic "step-father" kind of way in the same way that he would kiss one of his own children.
Following the incident, Benoist tearfully complained to members of Titan management. Although she didn't present proof of text messages, she claimed that over the course of several months (including when she worked at Titan), Kenyon routinely sent her inappropriate text messages, such as stating that she had a "hot body" and that he wished she would drop her towel when she got out of the shower. After Benoist complained, Kenyon left her an angry voicemail stating "I kissed you on the side of the mouth" and "You and that boy can pack your sh*t and head to Aberdeen." Benoist and her boyfriend moved out (and, actually, had already started making plans to do so before Kenyon left the voicemail).
Following an investigation, Titan concluded that Benoist was not subject to sexual harassment and warned both Benoist and Kenyon to keep their personal affairs out of the workplace. Titan issued Benoist a formal written reprimand and told her that she shouldn't have discussed the "incident" with others in the workplace. Benoist claimed that the "incident" referred to the kissing incident, whereas Titan claimed that it was referring to the whole course of conduct that day with Kenyon. Although it provided a similar warning to Kenyon, Titan didn't reprimand Kenyon for leaving the voicemail.
According to Benoist, after she complained, her co-workers' demeanor became hostile to her and she was ostracized. She began seeing a psychologist in March 2018 and resigned the following month, claiming that she was constructively discharged. Benoist filed suit in federal court, claiming that she was the victim of sexual harassment and retaliation in violation of Title VII.
OUTCOME:
Dismissing Benoist's sexual harassment claim on summary judgment, the district court noted that "Kenyon was not in Benoist's chain of command" and concluded that "Titan's actions were reasonably calculated to end the harassment." In fact, it noted that Benoist admitted that Kenyon didn't harass her further after that day. The court also found that Benoist wasn't constructively discharged because she failed to come forward with sufficient evidence from which a jury could reasonably conclude that, at the time she quit, the working conditions were so intolerable that a reasonable person would feel compelled to quit.
The court, on the other hand, declined to dismiss Benoist's retaliation claim and allowed her to present that claim to a jury. At trial, Benoist argued to the jury that Titan retaliated against her for complaining in two ways. First, she claimed Titan retaliated against her by issuing the warning after she complained. She maintained that the effect of the warning was to dissuade her and others from reporting harassment. Second, she argued that Kenyon's angry voicemail rose to the level of retaliation. Stressing that Titan was a closely-held company owned by Kenyon's family and that his brother was CEO, Benoist contended that Titan tolerated the voicemail by not reprimanding Kenyon for leaving it or doing anything about it. She claimed that Titan was less interested in stopping harassment and more interested in protecting Kenyon.
After a five-day trial, the jury concluded that Benoist proved she was a victim of unlawful retaliation. It awarded her compensatory damages of $250,000 and an additional $250,000 in punitive damages. Applying the statutory damages cap, however, the district court reduced the judgment to $50,000, but it awarded Benoist over $235,000 in attorney's fees and court costs. Benoist v. Titan Med. Mfg., LLC, No. 2:19-cv-02704 (W.D. Tenn.).
BOTTOM LINE:
Needless to say, there are many lessons to be learned from this saga, but we'll stick to the legal ones and not the familial ones . . . . This case serves as yet another example of the danger to employers of a claim of retaliation action—something that is all too often overlooked. As the court found, Benoist was not legally harmed by Kenyon's alleged conduct, but instead, by the aftermath. Titan should have made clear that it was perfectly appropriately for Benoist to complain, that it would take her complaint seriously, and that it wouldn't treat her differently for complaining. Under no circumstances should an employer ever create the appearance that an employee is being reprimanded for voicing a complaint about sexual harassment or any other type of unlawful discrimination. Titan should have been crystal clear about this, but it wasn't.
This case also shows how an employer can get into trouble for retaliation even if the retaliation is not being perpetrated by senior management or someone with supervisory authority over the victim. In situations like this, it's often a good idea for HR or someone else in management to periodically check in with a worker who has reported harassment to ensure that the employee doesn't feel like he/she is being retaliated against. By being proactive, the risk of a lawsuit can be mitigated.
In addition, this case illustrates the dangers that lurk when the employer is a family-owned business and the alleged perpetrator is a member of the family. All too often, such employers tend to let their guard down and deviate from their standard protocols so as to protect family members. This case certainly has all the tell-tale signs of such a situation. Employers should be reminded that, if they choose to handle business that way, they could get smacked with a big lawsuit.
On a final note, this case demonstrates interesting aspects about damages. On one hand, Titan got lucky and benefitted from statutory damages caps insofar as a $500,000 jury award got reduced to $50,000. That's a big difference. On the other hand, Benoist's lawyer was still able to recover over $230,000 based on statute. Because a plaintiff who prevails in a Title VII case such as this is entitled to his/her attorney's fees, it is increasingly common for that to be the biggest element of a plaintiff's damages recovery. It's very expensive to try a lawsuit, and an employer can get hit with a huge attorney's fees award even in a situation in which the plaintiff is awarded a very small amount of compensatory damages. Thus, such a pyrrhic victory may still come at a steep price for employers.
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