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Published by Eric Meyer
Two men, one woman, 24 sniffs, possible retaliation clam (5th Cir. 2013)
Two men, one woman, 24 sniffs, possible retaliation clam (5th Cir. 2013)

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Published by: Eric Meyer on Nov 25, 2013
Copyright:Attribution Non-commercial


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No. 12-11022TONIA DENISE J. ROYAL,Plaintiff - Appellantv.CCC&R TRES ARBOLES, L.L.C., A Texas Limited Liability Company,Defendant - Appellee Appeal from the United States District Courtfor the Northern District of TexasBefore JOLLY, DeMOSS, and SOUTHWICK, Circuit Judges.E.
JOLLY, Circuit Judge:We learn from this Title VII appeal that Tonia Royal worked at anapartment complex for only four days before she was fired by defendant CCC&R. During this brief time, she was regularly visited in her small office by twomaintenance men who hovered over her and sniffed her in a sexually suggestivemanner. When she complained to her superiors about this behavior, she wasthen fired for unspecific reasons.This appeal arises from the district court’s grant of summary judgmentdismissing her complaint on the grounds that the alleged misconduct was notobjectively unreasonable nor a practice made unlawful by Title VII. Royal onlyappeals her retaliation claim, that is, her discharge, which she claims resulted
United States Court of AppealsFifth Circuit
November 21, 2013Lyle W. CayceClerk
 Case: 12-11022 Document: 00512449991 Page: 1 Date Filed: 11/21/2013
No. 12-11022from her complaints about sexual harassment. The question presented onappeal is whether the facts of this case present genuine disputes of material factrelating to her claim of harassment based on sex. We hold that genuine disputesof material fact require us to vacate the grant of summary judgment and remandfor further proceedings.I. A.Royal was hired by a CCC&R Tres Arboles, L.L.C. (“CCC&R”) apartmentcomplex as a leasing manager on Monday, August 3, 2009. She was fired onThursday, August 6, by her supervisor, Asia Brazil. Royal worked at the onlydesk in a small front office. According to Royal, two maintenance workers would enter her office andwould hover over her as she sat at her desk and sniff her. This harassmentoccurred about twelve times, for each worker, over the four days of Royal’s brief employment. Sometimes each would come alone, and sometimes they wouldcome together. Royal told them several times that she did not like theirbehavior. Apparently they were undeterred. The workers would sometimes sniff and hover directly over Royal’s head when she was seated. Sometimes the menwould sniff even when Royal exited the bathroom.There were also other incidents of objectionable conduct, one of whichinvolved one of the maintenance workers sitting on a cabinet behind Royal withhis legs open. He was an arm’s length away and wearing shorts. She allegedthat he was visibly aroused. For three to five minutes, Royal reports that heengaged in a “stare-down.” Another incident occurred when Royal was gathering files. Turningaround, she encountered the Assistant Manager, Robin Granger, who wasstanding behind her. She then stumbled into him with her whole body. Brazil,Royal’s supervisor, was present when this happened.2
 Case: 12-11022 Document: 00512449991 Page: 2 Date Filed: 11/21/2013
No. 12-11022Royal reported her complaint to Granger, the Assistant Manager, onWednesday. According to Royal, Granger told her to “let it slide” and statedsomething along the lines of “you know how men are like when they get out of prison.”Brazil held a staff meeting the following day. According to Royal, Brazilheld the meeting so that people could “get things off their chest” and speak aboutwhatever was bothering them. Royal spoke up at the meeting and said that shedid not like for the men to sniff over her all the time. In response, one of themaintenance men claimed he had a medical condition. The other maintenanceman, according to Royal, stated that he “needed to get a release.” A differentcoworker said in response that the maintenance man had “got [his] mind on thewrong thing.” Royal took the comment about needing a release as sexualinnuendo. After the staff meeting, there was another follow-up meeting withRoyal, Brazil, and Granger in which Royal purports to have again asked aboutthe maintenance men’s conduct.That same afternoon, Brazil called Royal into her office and dischargedher. According to Royal, Brazil supplied no reason. Brazil states that she madethis decision alone, and that Granger had no involvement in it. CCC&R assertedat oral argument that Royal’s offenses were swatting a fly harder than wasnecessary and slamming a door.B. After filing an Equal Employment Opportunity Commission complaint,Royal timely sued CCC&R in the District Court for the Northern District of Texas. She claimed sexual harassment and retaliation under Title VII of theCivil Rights Act of 1964 as well as violations of various Texas state laws.Ruling on CCC&R’s motion for summary judgment, a magistrate judgeheld that the CCC&R employees’ conduct was not objectively offensive asrequired for a Title VII hostile work environment claim. She reasoned that, with3
 Case: 12-11022 Document: 00512449991 Page: 3 Date Filed: 11/21/2013

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