Temporary Relocation to Bug-Infested Storage Room Insufficient to Show Retaliation

Takeaway: Employers must promptly investigate harassment they are aware of, regardless of whether a complaint is filed with a supervisor or human resources. Employers must also promptly separate the accuser from the accused without inflicting any adverse treatment.

The 5th U.S. Circuit Court of Appeals refused to reinstate a racial and sexual harassment and retaliation lawsuit brought by a Black female employee under Title VII of the Civil Rights Act of 1964, even though her employer temporarily relocated her to a bug-infested storage room.

The plaintiff worked as an administrative coordinator performing administrative duties for the employer’s veterinarians. On Aug. 10, 2018, one of the male veterinarians reportedly slapped the plaintiff on her buttocks. This incident allegedly was predated by many acts of sexual and racial harassment over several months, including the veterinarian looking down her blouse three or four times, talking about having sex with Black women with a co-worker in the plaintiff’s presence, and suggesting five times that he and the plaintiff get together.

On Aug. 14, the plaintiff complained to her supervisor, and on Aug. 16, after complaining to HR, she was temporarily relocated. The plaintiff was first relocated to a separate facility for five days on Aug. 20-24. On Aug. 27, the employer initiated an investigation and moved the plaintiff back to the facility where she had worked. However, she was assigned to work in a storage room that was full of gnats, emitted an odor and had windows covered in black paper. The plaintiff complained about the insect problem and was provided with bug sprays.

On Sept. 18, the employer substantiated the plaintiff’s complaint and permitted her to return to her original workspace. The veterinarian who had allegedly harassed the plaintiff was moved to another workspace.

The plaintiff brought claims for racial and sexual harassment and retaliation under Title VII.

On appeal, the 5th Circuit considered the requirements for alleging sexual or racial harassment in violation of Title VII, opining that since the plaintiff did not allege that any of the employer’s conduct resulted in a tangible employment action, such as a firing or demotion, then the plaintiff had to show that the harassment created a hostile or abusive working environment.

To demonstrate this, the plaintiff needed to show that: 1) she is a member of a protected group; 2) she was the victim of uninvited sexual or racial harassment; 3) the harassment was based on sex or race; 4) the harassment affected a term, condition or privilege of the plaintiff’s employment; and 5) her employer knew or should have known of the harassment and failed to take prompt remedial action.

The 5th Circuit affirmed the district court’s summary judgment decision finding that the plaintiff failed to satisfy the fifth element by showing that the employer knew or should have known of the harassment and failed to take prompt remedial action. The appeals court noted that following the veterinarian’s slapping of her buttocks, the employer moved the plaintiff to a different workspace two business days after she made the complaint to her direct supervisor, and it commenced its investigation within 11 calendar days of her complaint to HR.

As to the veterinarian’s prior harassing conduct, the 5th Circuit disregarded the plaintiff’s contradictory allegations of previously reporting this conduct under the sham-affidavit exception. The plaintiff’s affidavit contradicted her own deposition testimony that she never reported the prior conduct to her supervisor or HR. The 5th Circuit also found that a prior complaint made against the veterinarian by an intern did not suggest that the employer was on notice that the veterinarian might engage in the behavior the plaintiff alleged, nor did it imply that the employer knew of the veterinarian’s conduct toward the plaintiff prior to her complaint.

The 5th Circuit also affirmed the district court’s summary judgment decision finding that the employer had provided a legitimate, nonretaliatory reason for the plaintiff’s relocation to the storage room and the plaintiff had not advanced any evidence of pretext. The employer’s intention behind the relocation was to separate the plaintiff from the veterinarian during the investigation.

Johnson v. Board of Supervisors of Louisiana State University and Agricultural and Mechanical College, 5th Cir., No. 22-30699 (Jan. 8, 2024).

Maria Cáceres-Boneau is an attorney with Duane Morris LLP in New York City.