The Fifth Circuit Court of Appeals recently affirmed the dismissal of a Title VII retaliation claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim where the plaintiff premised her retaliation claim on her earlier filing of an internal complaint of harassment based on a single allegedly offensive text message. The plaintiff’s internal complaint did not constitute protected activity sufficient to give rise to a retaliation claim because she could not have reasonably believed that receipt of a singular text message violated any law. Taliaferro v. Lone Star Implementation and Electronic Corporation, No. 16-51152 (June 9, 2017).
Dana Taliaferro received an after-hours text message from Ronnie Hobbs, the owner of the company for which she worked. Hobbs first asked Taliaferro where her kids were, and Taliaferro responded that her kids were at home and asked Hobbs why he was asking about them. Hobbs replied, “Just came by in the Vette looking for a hot date! Oh ya! You are going to be in trouble when he finds out!”
Taliaferro denied any prior personal relationship with Hobbs, and she claimed to be confounded by Hobbs’s message. Taliaferro showed the message to her husband, who reacted with “vitriolic fury.” Taliaferro’s husband concluded that Hobbs and his wife were having an affair.
The following day, Taliaferro arrived at work upset and explained to Hobbs that she needed her job. Hobbs expressed regret at the message and told Taliaferro she would have a job as long as she desired. Taliaferro also complained that Hobbs’s text had caused difficulty at home and requested time off from work to deal with the issues, which Hobbs allowed. Later that evening, and only two days after the text message exchange, Hobbs discharged Taliaferro, saying the following:
Dana, I have been thinking for the past couple of days and unfortunately I think it best if you no longer work for Lone Star. It has made everyone including myself very awkward and I can’t afford to have someone running my company who’s [sic] husband and best friend want to see Lone Star fail and who threaten me.
Thereafter, Taliaferro sued Lone Star, alleging retaliatory discharge in violation of Title VII of the Civil Rights Act of 1964. The district court dismissed her Title VII claim under Rule 12(b)(6), holding that Taliaferro had not adequately pleaded facts showing that she engaged in protected activity, which is an essential element of her retaliation claim. In particular, Taliaferro had not shown that she reasonably believed that Hobbs’s single text message conversation constituted sexual harassment.
The Fifth Circuit’s Analysis
To establish a prima facie case of retaliation, Taliaferro was required to establish: “(1) she participated in an activity protected by Title VII; (2) her employer took an adverse employment action against her; and (3) a causal connection exists between the protected activity and the materially adverse action.” Regarding the first element, Taliaferro had the burden to show that she had engaged in protected activity when she had opposed a practice made unlawful by Title VII.
While Taliaferro was not required to show opposition to conduct that actually violated Title VII, Taliaferro was required to “at least show a reasonable belief that it did.” In assessing the reasonableness of Taliaferro’s belief, the district court assessed the severity and frequency of the alleged conduct, as well as the context of Taliaferro’s opposition to it. The district court concluded that Taliaferro failed to plead sufficient facts to show a reasonable belief that Hobbs’s text message constituted sexual harassment.
On appeal, Taliaferro claimed that the lower court failed to consider what effect, if any, the strict “zero tolerance” policy found in the employee handbook had in evaluating what constitutes a reasonable belief that an unlawful employment practice occurred. Unpersuaded, the Fifth Circuit held that, as a matter of law, “a reasonable employee would not believe, based on the Employee Handbook, that telling a single sexually-oriented joke was unlawful. Rather, a reasonable employee would understand that the company was being proactive in curtailing conduct before it arose to unlawful discrimination.” Accordingly, the Fifth Circuit affirmed the dismissal of Taliaferro’s claims for failure to state a claim upon which relief may be granted.
While Rule 12(b)(6) motions are often viewed by the courts with disfavor, the facts of the Taliaferro case are of the type for which such early motions to dismiss are intended. Of course, this sort of strategical decision must be made early in the litigation, as a Rule 12(b)(6) motion must be filed within the deadline for filing an answer to a complaint. In short, don’t assume early dismissal is out of the question.