Laura E. Alkins v. Sheriff of Gwinnett County

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13746
Non-Argument Calendar
____________________
LAURA E. ALKINS,
Plaintiff-Appellant,
versus
SHERIFF OF GWINNETT COUNTY,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:20-cv-00005-WMR
____________________
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2 Opinion of the Court 21-13746
Before WILSON, BRASHER, and ANDERSON, Circuit Judges.
PER CURIAM:
Laura Alkins appeals the summary judgment in favor of the
Sheriff of Gwinnett County on her retaliation claim under Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a). Alkins was
terminated after the Sheriff’s Office investigated her report that a
male supervisor kissed her without her consent. The district court
determined that Alkins’s report did not constitute statutorily pro-
tected activity under Title VII because she lacked a reasonable be-
lief that the unwanted kissing amounted to sexual harassment. For
the reasons that follow, we reverse the summary judgment and re-
mand for further proceedings.
I.
Alkins was employed as a peace officer in the 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. Specifi-
cally, 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 recip-
rocating, he stopped kissing her and left the room. Alkins was a
corporal at the time. She told only her husband about the
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21-13746 Opinion of the Court 3
incident—she did not report it up the chain of command. Based on
the incident, Alkins—who by 2018 had been promoted to lieuten-
ant herself—told Pelis that she feared that a transfer back to the jail
would require her to work under Spear—now a captain—and po-
tentially 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 in-
vestigation 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 termi-
nated three weeks after her initial allegation against Spear.
Alkins sued the Sheriff’s Office for terminating her in retali-
ation for engaging in activity protected by Title VII. She contended
that her report to Pelis about the incident with Spear, who she char-
acterized as a “superior officer” and “supervisor,” was protected
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4 Opinion of the Court 21-13746
activity. After discovery, the Sheriff’s Office moved for summary
judgment in part because Alkins failed to demonstrate a prima facie
case of retaliation. The Sheriff’s Office contended that Alkins had
to demonstrate that her report was based on conduct that gave rise
to an objective belief that the complained-of conduct was unlawful
harassment. A magistrate judge concluded that Alkins had no rea-
sonable basis to believe that the unwanted kiss constituted sexual
harassment and recommended granting the motion. That determi-
nation was based on a four-factor test this Court uses to determine
whether harassment by a supervisor is sufficiently severe or perva-
sive to give rise to a substantive claim. Alkins objected to the rec-
ommendation, contending that she was not required to “prov[e] or
establish[] an independent claim of sexual harassment under Title
VII” to survive a motion for summary judgment. The district court
adopted the recommendation over Alkins’s objection, and Alkins
appealed.
II.
We review an entry of summary judgment de novo, con-
struing all facts and drawing all reasonable inferences in favor of
the nonmoving party. Jones v. UPS Ground Freight, 683 F.3d 1283,
1291-92 (11th Cir. 2012). Summary judgment is warranted if “there
is no genuine dispute as to any material fact and the movant is en-
titled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
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21-13746 Opinion of the Court 5
III.
The sole issue on appeal is whether Alkins had a reasonable
belief that she suffered sexual harassment when her alleged super-
visor kissed her against her wishes, such that her report concerning
the incident is protected activity under Title VII. We agree with
Alkins that her report was protected activity.
Under Title VII’s opposition clause, an employer may not
retaliate against an employee because the employee “has opposed
any practice made an unlawful employment practice by this sub-
chapter.” 42 U.S.C. § 2000e-3(a). The employee bears the initial
burden to make a prima facie case by demonstrating that she en-
gaged 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. Furcron v. Mail Ctrs.
Plus, LLC, 843 F.3d 1295, 1310 (11th Cir. 2016). Once a prima facie
case is established, the burden shifts to the employer to come for-
ward with legitimate reasons for the employment action, and then
the burden shifts back to the employee to demonstrate that the
given reasons are pretextual. Id. at 1310-11.
The first requirement of Alkins’s prima facie case—whether
she was engaged in statutorily protected activity—is at issue here.
Reporting that a supervisor engaged in a substantively unlawful
employment practice is a protected activity. See id. at 1311. Even
reporting substantively lawful conduct is a protected activity, “so
long as [the employee] demonstrates a good faith, reasonable belief
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6 Opinion of the Court 21-13746
that the employer was engaged in unlawful employment prac-
tices.” Harper v. Blockbuster Ent. Corp., 139 F.3d 1385, 1388 (11th
Cir. 1998) (quotation omitted). To make that demonstration, a
plaintiff need only allege conduct that is “close enough” to an un-
lawful practice “to support an objectively reasonable belief that it
is.” Clover v. Total Sys. Servs., Inc., 176 F.3d 1346, 1351 (11th Cir.
1999).
We measure whether the conduct is “close enough” by look-
ing to controlling substantive law, but “the plaintiff is not required
to prove that the discriminatory conduct complained of was actu-
ally unlawful.” Furcron, 843 F.3d at 1311. So, for example, a plain-
tiff cannot bring a retaliation claim based on a belief that conduct
violates Title VII when “long-standing binding precedent hold[s]”
that it does not. Harper, 139 F.3d at 1389. Short of that circum-
stance, we have recognized that “this analysis is somewhat fact in-
tensive.” Mendoza v. Borden, Inc., 195 F.3d 1238, 1246 (11th Cir.
1999) (en banc).
We turn first to the question of whether Spear was Alkins’s
supervisor or her co-worker when the kiss occurred. The general
rule is that an employer is vicariously liable “for an actionable hos-
tile environment created by a supervisor with immediate (or suc-
cessively higher) authority” over the harassed employee. Faragher
v. City of Boca Raton, 524 U.S. 775, 807 (1998). But if a plaintiff
relies on the conduct of a co-worker, “the employer will be held
liable only if it knew or should have known of the harassing con-
duct but failed to take prompt remedial action.” Baldwin v. Blue
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21-13746 Opinion of the Court 7
Cross/Blue Shield of Alabama, 480 F.3d 1287, 1302 (11th Cir. 2007).
Here, no record evidence establishes the jail’s formal chain of com-
mand. Without any record evidence to the contrary, we are per-
suaded that a reasonable jury could conclude that Corporal Alkins
was subordinate to the higher ranked Lieutenant Spear. Accord-
ingly, we conclude that there is a genuine issue of fact as to whether
Spear was Alkins’s supervisor at the time of the unwanted kiss.
Turning now to whether Spear’s alleged conduct was “close
enough” to sexual harassment to make Alkins’s report a protected
activity, see Clover, 176 F.3d at 1351, 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 per-
vasive to alter the conditions of her employment and create an abu-
sive working environment.” Id. The severe-or-pervasive element
requires us to consider whether the harassment was “so objectively
offensive as to alter the conditions of the victim’s employment.”
See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81
(1998) (quotation omitted). We have identified four factors that
“determine[e] whether harassment objectively altered an em-
ployee’s terms or conditions of employment: (1) the frequency of
the conduct; (2) the severity of the conduct; (3) whether the con-
duct is physically threatening or humiliating, or a mere offensive
utterance; and (4) whether the conduct unreasonably interferes
with the employee's job performance.” Mendoza, 195 F.3d at 1246.
Here, these factors do not definitively point in a single
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direction. The frequency factor most clearly cuts against any sug-
gestion that the isolated, unwanted kiss altered Alkins’s employ-
ment conditions. See Gupta v. Fla. Bd. of Regents, 212 F.3d 571,
585 (11th Cir. 2000) (holding that two instances of unwanted touch-
ing over several months did not support a hostile-work-environ-
ment claim because “[e]ach incident was only momentary, and nei-
ther was coupled with any verbal suggestions or advances”). But,
applying the second factor, the conduct was severe; few types of
physical contact are more invasive than an open-mouthed kiss. We
have recognized that less severe conduct can nonetheless support
a sexual harassment claim. See Johnson v. Booker T. Washington
Broad. Serv., Inc., 234 F.3d 501, 509 (11th Cir. 2000) (concluding
that unwanted massages, “standing so close to [the plaintiff] that
[her supervisor’s] body parts touched [the plaintiff] from behind,”
and “reveal[ing] the imprint of [the supervisor’s] private parts” was
severe conduct). Further, our precedent does not foreclose the pos-
sibility that being subjected to an isolated, unwanted kiss by a su-
pervisor can establish a claim. Cf. Harper, 139 F.3d at 1389.
The third and fourth factors could go either way. For one
thing, Spear physically assaulted Alkins. But, on the other hand, Al-
kins 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. See Johnson, 234 F.3d at
509 (noting that the supervisor’s actions were physically threaten-
ing for the same reasons they were severe). Under the fourth fac-
tor, the Sheriff’s Office contends that Alkins’s job performance was
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21-13746 Opinion of the Court 9
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 be-
lief 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. For that
reason, a jury could find that she engaged in protected activity by
reporting the kiss to Pelis.
IV.
We REVERSE and REMAND for proceedings consistent
with this opinion.