“Quid Pro Quo” Sexual Harassment Claim Dismissed, Notwithstanding “Flirtatious, Offensive, and Altogether Inappropriate” Comments

In Karpaitis v. Mandal’s, Inc., 21-cv-305, 2022 WL 2445004 (S.D. Miss. July 5, 2022), the court, inter alia, dismissed plaintiff’s quid pro quo sexual harassment claim.

From the decision:

[A] quid pro quo sexual harassment claim requires that the plaintiff suffer a tangible employment action for her refusal to submit to a supervisor’s sexual demands. Ellerth, 524 U.S. at 753-54 (characterizing quid pro quo claims as those in which “a plaintiff proves that a tangible employment action resulted from a refusal to submit to a supervisor’s sexual demands”); Henson v. City of Dundee, 682 F.2d 897, 910 (11th Cir. 1982) (“In such a case [of quid pro quo sexual harassment], the supervisor relies upon his apparent or actual authority to extort sexual consideration from an employee.”). Here, Plaintiff has alleged that she was terminated by Owens for rejecting his sexual harassment. (Compl. ¶¶ 65-74, ECF No. 1). Plaintiff’s termination is clearly a “tangible employment action” which supports a quid pro quo claim under Title VII. See Ellerth, 524 U.S. at 761 (“A tangible employment action constitutes a significant change in employment status, such as … firing.”).

At the other end of the exchange, Plaintiff must allege that she was terminated for refusing to submit to a sexual demand or favor. For instance, in a case where the plaintiff alleged nine incidents of sexual harassment, which largely consisted of gender-based comments, questions, and compliments, a federal district court in Texas found that this conduct could “be described as flirtatious, and perhaps are indicative of [the supervisor]’s amorous interest in [the plaintiff].” Pfeil v. Intecom Telecomms., 90 F.Supp.2d 742, 745-46 (N.D. Tex. 2000). “Some of the remarks certainly could be considered insensitive, boorish, uncouth, or even offensive.” Id. at 747-48. But because the supervisor “never propositioned [the plaintiff] for sex,” nor “had sex with her,” nor “threatened her or in any way implied that her continued employment was conditioned on granting him sexual favors,” nor “touched her or fondled her,” nor “commented on her sex life,” nor “promoted a sexually charged environment,” nor “implied or stated that she was incompetent because of her sex,” the conduct and comments “as a matter of law do not constitute sexual harassment.” Id. at 748.1 The Fifth Circuit has held that where the alleged harasser “did not discuss sexual matters, cause any physical contact, or make any threats or promises related to her rejection or acceptance of his affections,” such conduct could not support a quid pro quo claim as a matter of law. Ellert v. Univ. Tex. at Dallas, 52 F.3d 543, 545 (5th Cir. 1995).

Here, Plaintiff does not allege that Owens made any sexual advances or threats towards her. Rather, in her response brief, she states her quid pro quo claim in the following way:

A reasonable jury could conclude based on those facts that the employer terminated Plaintiff because Plaintiff would not agree to her supervisor’s demands that he be allowed to continue making sexist jokes in the workplace that demeaned women.

(Pl.’s Resp. Def.’s Mot. Dismiss ¶ 11, ECF No. 11). Like Pfeil, the Court finds that Owens’ comments were flirtatious, offensive, and altogether inappropriate, but not by themselves actionable as quid pro quo sexual harassment under Title VII. See Pfeil, 90 F.Supp.2d at 745-48. In other words, on this Rule 12(b)(6) motion to dismiss, the Court finds that Plaintiff has failed to support her quid pro quo claim with allegations that Owens propositioned her for sex or made any other sexual demand, advance, touch, or threat of any kind. Nor are there specific factual allegations that her employment was conditioned on her responsiveness to any such demands.

Based on this, the court held that the complaint failed, as a matter of law, to state a quid pro quo theory of sexual harassment.

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