In Alkins v. Sheriff of Gwinnett County, No. 21-13746, 2022 WL 3582128 (11th Cir. Aug. 22, 2022), the U.S. Court of Appeals for the Eleventh Circuit reversed a lower court’s order granting summary judgment to defendant on plaintiff’s claim of retaliation asserted under Title VII of the Civil Rights Act of 1964.
Here, the plaintiff, a peace officer, contends that the defendant retaliated against her by terminating her after she reported an unwanted kiss from her alleged supervisor. The lower court held that plaintiff did not engage in “protected activity” because she had no reasonable basis to believe that the unwanted kiss constituted sexual harassment, and on that basis granted defendant’s motion for summary judgment.
The Eleventh Circuit disagreed, reasoning:
The sole issue on appeal is whether Alkins had a reasonable belief that she suffered sexual harassment when her alleged supervisor 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 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. 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 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. 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 that the employer was engaged in unlawful employment practices.” 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 unlawful 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 looking to controlling substantive law, but “the plaintiff is not required to prove that the discriminatory conduct complained of was actually unlawful.” Furcron, 843 F.3d at 1311. So, for example, a plaintiff 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 circumstance, we have recognized that “this analysis is somewhat fact intensive.” 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 hostile environment created by a supervisor with immediate (or successively 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 conduct but failed to take prompt remedial action.” Baldwin v. Blue Cross/Blue Shield of Alabama, 480 F.3d 1287, 1302 (11th Cir. 2007). Here, no record evidence establishes the jail’s formal chain of command. Without any record evidence to the contrary, we are persuaded that a reasonable jury could conclude that Corporal Alkins was subordinate to the higher ranked Lieutenant Spear. Accordingly, 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 pervasive to alter the conditions of her employment and create an abusive 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 employee’s terms or conditions of employment: (1) the frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct 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 direction. The frequency factor most clearly cuts against any suggestion that the isolated, unwanted kiss altered Alkins’s employment conditions. See Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 585 (11th Cir. 2000) (holding that two instances of unwanted touching over several months did not support a hostile-work-environment claim because “[e]ach incident was only momentary, and neither 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 possibility that being subjected to an isolated, unwanted kiss by a supervisor 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, 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. See Johnson, 234 F.3d at 509 (noting that the supervisor’s actions were physically threatening for the same reasons they were severe). 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.
The court concluded that, construing (as it must) the facts in plaintiff’s favor, the alleged conduct “is close enough to give rise to a reasonable belief that she was sexually harassed,” that “[a] reasonable person in Alkins’s shoes could believe that receiving an unwanted, open-mouthed kiss from a supervisor was sexual harassment,” and, therefore, “a jury could find that she engaged in protected activity by reporting the kiss.”