All Kisses Are Not Necessarily Alike For Title VII Purposes

Written on 12/10/2022

Laura Alkins was employed as a peace officer in the Gwinnett County Sheriff’s Office for nearly two decades. In 2018, she was notified that she would be reassigned back to the County jail, where she had worked several years earlier. In a meeting with her super­visor, Major Raymond Pelis, Alkins stated that during her prior tenure at the jail, then-Lieutenant Jon Spear kissed her without her permission. Specifically, Alkins alleged that Spear called her into an empty office and, without warning, “stepped toward” her and “began kissing her with his mouth open.”

When Spear realized Alkins was not reciprocating, he stopped kissing her and left the room. Alkins was a corporal at the time. She told only her husband about the incident, and she did not report it up the chain of command. Based on the incident, Alkins told Pelis that she feared that a transfer back to the jail would require her to work under Spear, who was now a captain, and potentially expose her to further unwanted contact.

An investigation into Alkins’s allegation ensued. Alkins took a polygraph test and was placed on ad­ministrative leave. The investigation ultimately failed to prove or disprove her allegation. However, during the unwanted-kissing investigation, Alk­ins made statements about superior officers’ reactions to her allegation that prompted a subsequent investigation. The second investigation concluded that Alkins had been untruthful in violation of Sheriff’s Office policy, and she was demoted.

Alkins was informed of her de­motion by Chief Deputy Luis Solis. During that meeting, Alkins made another allegation that prompted a third investigation. She alleged that when she initially informed Pelis about the incident with Spear, Pelis stated that he was aware of other on-the-job sexual allegations concerning Spear. A brief investigation failed to substantiate that allegation, and Solis informed Alkins that the Sheriff’s Office had “lost confidence in her ability to effectively provide leadership.” Alkins was terminated three weeks after her initial allegation against Spear.

Alkins sued the Sheriff’s Office for terminating her in retaliation for engaging in activity protected by Title VII. She contended that her report to Pelis about the incident with Spear, who she characterized as a “superior officer” and “supervisor,” was protected activity. When Alkins lost at the trial court level, she appealed to the federal 11th Circuit Court of Appeals.

The Court reinstated Alkins’ lawsuit. The Court noted that under Title VII, an employer may not retal­iate against an employee because the employee “has opposed any practice made an unlawful employment practice by this sub-chapter.” Under Title VII, the employee bears the initial burden to make a prima facie case by demon­strating that she engaged in statutorily protected activity; that she suffered an adverse employment action; and that there was a causal link between the protected activity and the adverse action. Once a prima facie case is established, the burden shifts to the employer to come forward with legitimate reasons for the employment action, and then the burden shifts back to the employee to demonstrate that the given reasons are pretextual.

The Court homed in on the first requirement of Alkins’s prima facie case – whether she was engaged in statutorily protected activity. The Court found that “reporting that a supervisor engaged in a substantively unlawful employment practice is a protected activity. Even reporting substantively lawful conduct is a protected activity, so long as the employee demonstrates a good faith, reasonable belief that the employer was engaged in unlawful employment practices. To make that demonstration, a plaintiff need only allege conduct that is ‘close enough’ to an unlawful practice to support an objectively reasonable belief that it is.

“Turning now to whether Spear’s alleged conduct was ‘close enough’ to sexual harassment to make Alkins’s report a protected activity, we conclude that it was. To establish a substantive Title VII claim based on sexual harass­ment, a plaintiff must establish that the harassment occurred because of her sex, and that the harassment was sufficiently severe or pervasive to alter the conditions of her employment and create an abusive working environment.

“Here, these factors do not defin­itively point in a single direction. The frequency factor most clearly cuts against any suggestion that the isolated, un­wanted kiss altered Alkins’s employment conditions. But, applying the second factor, the conduct was severe; few types of physical contact are more invasive than an open-mouthed kiss.

“The third and fourth factors could go either way. For one thing, Spear phys­ically assaulted Alkins. But, on the other hand, Alkins has not alleged that she was threatened by the kiss, aside from her suggestion that being summoned into an empty room ratcheted up the severity of the conduct. Under the fourth factor, the Sheriff’s Office contends that Alkins’s job performance was not impacted by the kiss because she received promotions and commendations in the years that fol­lowed. But Alkins contends that the kiss eventually impacted her job performance when she faced the prospect of working under Spear again.

“Construing the facts in Alkins’s favor, we conclude that the conduct she alleged is close enough to give rise to a reasonable belief that she was sexually harassed by Spear. A reasonable person in Alkins’s shoes could believe that receiving an unwanted, open-mouthed kiss from a supervisor was sexual harassment.”

Alkins v. Sheriff of Gwinnett County, 2022 WL 3582128 (11th Cir. 2022).

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