Last week, the Sixth Circuit affirmed an employer’s jury verdict on Title VII retaliatory discharge claims where the employee had alleged that she was raped by a security guard, but the employer contended that the contact was consensual and violated its policy when she was still on-the-clock. Graf v. Morristown-Hamblen Hosp. Ass’n, No. 24-5798 (6th Cir. 9-10-25). Summary judgment was granted to the employer on her hostile work environment claims, which were not part of this appeal. Evidence of her post-incident interactions and communications with the guard were relevant to show whether she subjectively believed that he violated Title VII during the alleged incident and, thus, whether she engaged in protected conduct when she reported that he had raped her. The jury believed that the incident was consensual, and thus, she did not have a good faith belief that she was reporting a Title VII violation. The trial judge did not violate Federal Rule of Evidence 412 when he permitted the introduction of such evidence – limited to her interaction with that particular security guard –as evidence of her subjective belief regarding consent.
According to the Court’s decision, the plaintiff became
friendly with a security guard, hired through a contractor of the
employer. They exchanged hundreds of
texts and frequently met during breaks in stairwells and other places. The guard contended that they sometimes
discussed intimidate details, but the plaintiff disagreed that she ever initiated such conversations. One day, at the guard’s invitation, the
plaintiff snuck during her lunch break – when she was not required to clock out
-- into an unauthorized area to avoid being seen by the employer’s security
cameras. She contended that she was
handcuffed and raped. He contended it
was consensual and she never used their before-agreed safe words. She did not report the incident and returned
to work after crying in the bathroom.
However, they continued to text and exchange naked photos of each other
after the alleged rape. She claimed that
she had been to afraid to not comply. Six weeks later, she learned from his
supervisor that he had been accused of sexual harassment by other female staff
and she then reported the rape. He was
fired.
When the employer’s HR learned of it, they also interviewed
her, but did not conduct a further investigation since the guard had already
been fired. However, the employer
decided to terminate her employment because she was in an unauthorized location,
where she had snuck into to avoid being videotaped by security cameras, and had
relations while still on the clock. She brought suit for sexual harassment and
retaliatory discharge. The trial court dismissed the sexual
harassment claim on summary judgment. A
jury ruled in the employer’s favor after the court admitted evidence about her
alleged consent to the interaction with the guard -- as reflected in the post-incident texts, photos and videos -- and rejected her allegation
that she had been fired for reporting the alleged rape to the guard’s
supervisor.
The trial court refused to admit evidence about her conversations
with others about her sexual preferences and videos that she had exchanged with
the guard. However, it admitted the
texts and photos which she exchanged with the guard after the incident and the
fact that she had also sent videos. The
court found the jury could decide whether she had consented or not in determining
whether she had a good faith and reasonable belief that her conduct was
protected by Title VII. The Sixth
Circuit agreed that this did not violate Federal Rule of Evidence 412.
Rule 412 provides in relevant part that certain evidence is
not admissible.
Federal Rule of Evidence 412
prohibits the admission of two types of evidence in cases involving sexual
misconduct: “(1) evidence offered to prove that a victim engaged in other
sexual behavior; or (2) evidence offered to prove a victim’s sexual
predisposition.”
However, the second part of the Rule as exceptions in civil
cases: “the court may admit evidence offered to prove a victim’s sexual
behavior or sexual predisposition if its probative value substantially
outweighs the danger of harm to any victim and of unfair prejudice to any
party.” This Rule interacts with sexual
harassment cases in cases like these where the plaintiff’s consent is an issue. In this case, the plaintiff's consent was an issue as to whether she subjectively believed that the guard had violated Title VII when she reported him.
“[a] person opposing an apparently
discriminatory practice does not bear the entire risk that it is in fact
lawful; he or she must only have a good faith belief that the practice is
unlawful . . . . In the years since Booker, we have interpreted this language
to mean that, in order to prove that they engaged in protected conduct, a
retaliation claimant must demonstrate “that the opposition [was] based on ‘a
reasonable and good faith belief that the opposed practices were unlawful.’” .
. .
In holding that the
protected-conduct element of a retaliation claim includes this reasonable and
good-faith requirement, however, we have been careful to clarify that “the
operative question is not whether [the complained of] conduct was actually
unlawful, but whether Plaintiff held an objectively reasonable and good faith
belief to that effect.” . . . A retaliation claimant therefore “does not
need to oppose actual violations of Title VII in order to be protected from
retaliation.” . . .
The dispute at the center of this
case lies at the intersection of these two concepts. In alleging that [the
employer] retaliated against her for opposing sexual assault, [The plaintiff]
can succeed on her retaliation claim even if [the guard’s] conduct was not, as
a legal or factual matter, sexual assault. But [she] must prove that she had a
reasonable and good-faith belief that the conduct of which she complained was
unlawful under Title VII. In other words, she must show that her belief that
she was raped was reasonable and in good faith.
Importantly, the plaintiff was not required to prove that
she was the victim of a sexual assault, but she was
required to demonstrate her
reasonable and good-faith belief that [the guard’s] conduct violated Title VII.
And [the employer] was entitled to
introduce evidence rebutting [her] alleged good-faith belief in the purported
violative conduct she had reported, including evidence that [she] had consented
to the sexual encounter, because such evidence was directly relevant to the
reasonableness of [her] belief in whether Title VII prohibits that conduct. . .
.
. . . . But our inquiry is not whether a rape
violates Title VII (it does)—our inquiry is whether [she] had a good-faith
belief that [he] raped her at work. Therefore, although we need not determine
whether [he] raped [her], we must consider whether [she] “held an objectively
reasonable and good faith belief” that she reported a legitimate rape. . . .
To be sure, we have noted that a
lack of reasonable and good-faith belief may stem from “an unreasonable mistake
of law.” Wasek, 682 F.3d at 469. And a retaliation plaintiff could make an
unreasonable mistake of law by believing that conduct outside the scope of
Title VII’s protections was conduct falling within the statute’s protections.
But we have also stated that a plaintiff may fail to satisfy the reasonable and
good-faith belief standard where “there are not facts from which a plaintiff
could have reasonably believed that a violation occurred.” Id. And while we
have yet explicitly to so hold, several of our sister circuits have made clear
that Title VII retaliation plaintiffs do not engage in protected conduct
when they make a false, fabricated, or malicious complaint of unlawful conduct
because such plaintiffs do not reasonably and in good faith believe in the
truth of their complaint. . . . (emphasis
added).
. . . . The district court thus did not err in concluding that, in proving her retaliation claim to a jury, Graf was required to demonstrate that she reasonably and in good faith believed that, when she made her complaint against Ogle, she was reporting a rape. “Whether she actually held such a belief, a question of credibility,” was necessarily “left to [the] jury.”
The Court agreed that propensity evidence must still be
excluded as would reputational evidence.
What was relevant was her subjective belief as evidenced by her own
actions with the security guard.
NOTICE: This summary is designed merely to inform and alert
you of recent legal developments. It does not constitute legal advice and does
not apply to any particular situation because different facts could lead to
different results. Information here can change or be amended without notice.
Readers should not act upon this information without legal advice. If you have
any questions about anything you have read, you should consult with or retain
an employment attorney.
