Retaliation Claim Sufficiently Alleged, Notwithstanding Dismissal of Underlying Sexual Harassment Claim

In Sharp v. S&S Activewear, LLC, 2021 WL 5826310 (D.Nev. Dec. 8, 2021), the court, inter alia, denied defendant’s motion to dismiss plaintiff’s claim of retaliation. This case illustrates that a retaliation claim may succeed even where the underlying allegations constituting “protected activity” – here, a claim of sexual harassment based on, among other things, allegedly misogynistic music – do not suffice to make out the underlying claim.

The court explained:

when stating a retaliation claim under Title VII, “[i]t is unnecessary that the employment practice actually be unlawful; opposition thereto is protected when it is ‘based on a ‘reasonable belief’ that the employer has engaged in an unlawful employment practice.’ ” Little v. Windermere Relocation, Inc., 301 F.3d 958, 970 (9th Cir. 2002) (quoting Moyo v. Gomez, 40 F.3d 982, 984 (9th Cir. 1994) (emphasis in original, citation omitted); see also Smith v. Cnty. of Santa Clara, Case No. 5:11-cv-05643-EJD, 2016 WL 4076193 (N.D. Cal. Aug. 1, 2016) (“[A] retaliation can still survive .. when an employee complains of or opposes a practice that … she reasonably believes is unlawful, even a court later determines the conduct was not actually prohibited”).

As explained above, Plaintiffs have not adequately alleged their sexual harassment claim. However, it may be that Plaintiffs reasonably believed playing the offensive music—or other alleged offending conduct—constituted sexual harassment. Taking all allegations in the FAC as true, the Court could justifiably infer that Plaintiffs sincerely and reasonably believed Defendant’s actions violated Title VII. Thus, the Court rejects Defendant’s assertion that the retaliation claim necessarily fails solely because the sexual harassment claim does.

The Court is likewise unpersuaded that a failed harassment claim necessarily defeats a constructive discharge allegation. Defendant argues that if Plaintiffs fail to state a viable claim for sexual harassment, they necessary cannot raise a claim for constructive discharge. (ECF No. 9 at 16.) But that maxim applies when the alleged harassment is insufficiently severe or pervasive. See Brooks, 229 F.3d at 930 (“Where a plaintiff fails to demonstrate the severe or pervasive harassment necessary to support a hostile work environment claim, it will be impossible for her to meet the higher standard of constructive discharge: conditions so intolerable that a reasonable person would leave the job.”). Here, Plaintiffs’ claim fails not because the alleged harassment was insufficiently severe, but because there was no link between Plaintiffs’ sex and the offending conduct. The antiretaliation provision of Title VII operates not to prevent offending conduct, but to protect employees who complain about believed violations.

Finally, the Court rejects Defendant’s argument that Sharp and Speight fail to allege an adverse employment action. Despite that the FAC alleges scant facts relating to Sharp and Speight’s constructive discharge, both Plaintiffs do allege that their working conditions were intolerable because of the offending conduct, and that they quit as a result. “[C]onstructive discharge occurs when the working conditions deteriorate, as a result of discrimination, to the point that they become ‘sufficiently extraordinary and egregious to overcome the normal motivation of a competent, diligent, and reasonable employee to remain on the job and earn a livelihood and to serve his or her employer.’ ” Brooks, 229 F.3d at 930 (quoting Turner v. Anheuser-Busch, Inc., 876 P.2d 1022, 1026 (Cal. 1994)).

Plaintiffs having alleged this, the court denied defendant’s motion to dismiss.

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