Wallace v. Performance Contractors, No. 21-30482 (5th Cir. 2023)
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Plaintiff worked for a construction company, Performance Contractors (Performance). She sued under Title VII alleging sex discrimination, sexual harassment, and retaliation. The district court granted summary judgment to the construction company. On appeal Plaintiff argued that when Performance prevented her from working at elevation because she was a woman, it effectively demoted her, which amounts to an adverse employment action. Second, Plaintiff argued that her hostile-work environment claim survives summary judgment because Performance knew (or should have known) about the severe or pervasive harassment, and because Performance is not entitled to the Ellerth/Faragher affirmative defense. Third, she argues that a reasonable jury could find that Performance retaliated against her for opposing conduct that she reasonably believed would violate Title VI.
The Fifth Circuit reversed and remanded concluding that Plaintiff raised genuine material fact issues on each claim. The court held that a reasonable jury could find that Plaintiff was suspended and later fired because of her rejection of other employees’ harassment. Further, the court held that Performance was not entitled to summary judgment because reasonable jurors could find that Plaintiff was kept on the ground because she was a woman, and that she otherwise would have been allowed to work at elevation. Moreover, there is a material fact issue about whether Performance effectively implemented its anti-harassment policy.
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