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Retaliation claim bolstered by overheard comment

Idle hallway banter between two healthcare workers led a Newport News federal judge to say a comment about a “closet” could have been “sexually charged,” keeping alive a woman’s Title VII retaliation suit.

The female plaintiff’s specific allegations about three comments by a male coworker were not enough to support her hostile environment claim outright, but when she added allegations about the hallway conversation, she had enough for a retaliation claim.

The Pavilion at Williamsburg Place, an inpatient psychiatric facility, hired plaintiff Milov Sonnier as a social worker in September 2012. Sonnier, an African-American female, alleged that over the next several months, coworker Greg Thomas made harassing comments that prompted her complaints to management.

Thomas’ first “statement of a sexual nature” was to tell Sonnier that “she was in his closet,” Sonnier claimed. Later, he followed up with “You look nice in that blouse,” and when he saw Sonnier bending over a chart rack, he “leered” at her and told her she looked “nice in those pants.” Sonnier said she told Thomas she did not appreciate the pants comment and that he apologized.

Nevertheless, Sonnier complained to management about her discomfort around Thomas and, unsatisfied with their response, she ultimately resigned in March 2013. She sued the employer, alleging a hostile environment and retaliation for her complaints.

U.S. District Judge Mark Davis dismissed Sonnier’s harassment claim but let her retaliation claim go forward, bolstered by the extra allegations about the hallway conversation.

Sonnier’s husband, who also worked for Pavilion, allegedly overheard  Thomas tell “mental health tech Tydell” that Sonnier’s wife used to work at Pavilion. Thomas then “began laughing” and stated “boy I sure tried to get inside her,” which Sonnier said referred to her. Thomas went on to “boast about inappropriate sexual comments that he made during the time she was employed with the company,” and Tydell allegedly responded, “if I felt that I can get involved with a married woman I would have done the same thing.” The complaint alleged the two then laughed in a way that suggested Thomas “had gotten away with his misconduct involving” the plaintiff.

Thomas allegedly pondered aloud, “I wonder if the brother is taking care of her at home.” When the plaintiff’s husband walked around the corner, the two stopped talking, the plaintiff alleged.

This alleged chat cast the plaintiff’s claims in a different light, and suggested that Thomas’ “facially-innocent comments to Plaintiff about his closet and her blouse might have had a sexual connotation,” Davis said.

That conversation, which occurred after the plaintiff resigned, did not make her perception of harassment reasonable enough to survive a motion to dismiss, but it was enough to bump up her retaliation claim under the lower standard for retaliation.

“At first blush, it may seem incongruous” to reach this result, Davis said. However, it’s Title VII’s “twofold remedial scheme” that accounts for the disparate results.

“A retaliation plaintiff need only establish a reasonable belief that an employment practice is unlawful, whereas a hostile work environment plaintiff must establish that an employer engaged in an actual unlawful employment practice,” Davis said in his June 15 opinion in Sonnier v. Diamond Healthcare Corp.


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