Labor & Employment Law Daily Wrap Up, DISCRIMINATION—SEXUAL HARASSMENT—S.D. Fla.: Patient services supervisor failed to establish liability for supervisor’s alleged harassment, (May 9, 2025)

By Molly Platnick

The employee did not meet the elements of a Title VII or Florida Civil Rights Act sexual harassment claim and failed to rebut the employer’s Faragher-Ellerth affirmative defense.

A federal in Florida granted a hospitality service management provider’s motion for summary judgment in a case brought by a former employee who was demoted with a corresponding pay reduction. The employee alleged the company was vicariously liable for sexual harassment in violation of the Florida Civil Rights Act (FCA) and Title VII because she suffered an adverse employment action after rebuffing her supervisor’s sexual advances. The company raised a Faragher-Ellerth affirmative defense to liability, to which the employee failed to adequately respond. Nor did she proffer sufficient evidence for a prima facie sexual harassment claim (Dawn v. NEXDINE Hospitality, No. 4-CV-80117-RLR (S.D. Fla. May 2, 2025)).

Demoted. The employee worked for the hospitality company as a hospital patient services supervisor from January to April 2023. Her supervisor repeatedly received complaints about her performance, including that she was routinely tardy or absent, used profanity toward other employees, and “provided little to no leadership in the kitchen.” The supervisor warned the employee multiple times, but she did not change her behavior. In February 2023, the supervisor demoted the employee to cashier, which reduced her pay by $2 an hour, but did not change her lunch breaks.

The hospitality company had in place an anti-harassment policy that directed employees to immediately report harassment to the HR department. The policy stated all reports would be investigated and violators would be appropriately disciplined with no retaliation against the reporting employee. The employee signed the policy but did not report her supervisor’s alleged harassment until after she was terminated.

She brought suit in Florida state court in December 2023. The company timely removed to federal court in February 2024. After “two rounds” of amended complaints, the former employee proceeded with only the sexual harassment claims under the FCA and Title VII.

Title VII and FCRA Claims. An employe has met the necessary elements of a sexual harassment claim under the FCRA or Title VII if she shows she is (1) a member of a protected class (2) subject to unwanted harassment (3) based on a perceived characteristic, and (4) the harassment is sufficiently severe of pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment, and (5) there is a basis to hold the employer liable. An employer can prevail on a motion for summary judgment if it can prove there is insufficient evidence to support plaintiff’s claims, at which point the burden shifts to the employee to show sufficient evidence.

Adverse action. Here, the court was concerned with the fifth element, whether the former employee proffered enough evidence to establish a basis for the hospitality company’s liability. She argued she was demoted and had her pay reduced and lunch breaks taken away because she rejected her supervisor’s advances. The company, however, offered evidence she was demoted because of her bad performance. It also provided evidence there was no change to her lunch breaks following the demotion.

The court found the employee did not cogently refute the company’s arguments because her only evidence was citing an affidavit in which she attested the allegations about her performance were a pretext for firing her because she spurned her manager. However, in her deposition the employee admitted that she engaged in some of the conduct cited as reasons for her demotion.

The court noted that “when a plaintiff admits that she engaged in at least some of the conduct that led to the adverse employment action, the plaintiff cannot show that the reasons for the adverse action were pretextual.” It was unpersuaded the affidavit was enough to defeat a motion for summary judgment when there was deposition evidence contradicting the claims. The employee could not show she had met her burden to produce evidence of a tangible employment action resulting from sexual harassment.

Affirmative defense. The hospitality company argued that even if the employee suffered severe and pervasive conduct that negatively altered the terms and conditions of her work, it was not liable under a Faragher-Ellerth affirmative defense. Faragher-Ellerth holds an employer is not liable if it can show by a preponderance of evidence it exercised reasonable care to prevent and correct promptly any sexually harassing behavior and the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

Here, the court found the company’s anti-harassment policy satisfied the first prong and that it was unreasonable for the former employee’s to not report her supervisor after reading and signing the policy. The employee did not respond to the Faragher defense, nor offer evidence to dispute the company’s factual allegations. She could not establish a basis for the company’s liability and the company prevailed on the Faragher-Ellerth affirmative defense.

The case is No. 24-CV-80117-RLR.

Judge: Rosenberg, R.

Attorneys: Robert Ian Rubin (Law Offices of Robert I. Rubin) for Symphony Dawn. Nicole M. Wall (Cole, Scott, & Kissane) for NEXDINE Hospitality.

Companies: NEXDINE Hospitality

Cases: SexualHarassment Discrimination StateLawClaims FloridaNews