About Us  |  About Cheetah®  |  Contact Us

Retaliation claim proceeds against staffing agency as ‘employment agency,’ not as temp worker’s ‘employer’

By Marjorie Johnson, J.D.

A temporary employee who never heard from her staffing agency after she complained about sexual harassment at the business where she was placed stated a plausible Title VII reprisal claim against the agency in its capacity as an “employment agency” but not as her “employer,” a federal magistrate judge in Pennsylvania ruled, granting in part the agency’s motion to dismiss. The employee failed to plausibly allege the agency was her joint employer and it fell squarely within the definition of an employment agency under Title VII. However, its purported failure to contact her to procure employment after she reported the harassment plausibly violated Title VII’s anti-retaliation provision with respect to employment agencies (Deeter v. Trinity Services Group, Inc., September 23, 2015, Kelly, M.).

The staffing agency placed the employee at the business and she worked in the kitchen. In mid-May of 2013, she was allegedly subjected to unwelcome sexual harassment by a male supervisor. She reported the harassment to a female supervisor in mid-June and was contacted by the staffing agency two days later.

No future job placements. She met with three representatives of the staffing agency and informed them that she was being sexually harassed by the male supervisor. In response, she was purportedly told she was no longer to report to that business and the agency would be in touch with her about future job placements. She never heard from anyone at the agency following this meeting, and thus claimed the agency discharged her.

She filed suit asserting a Title VII claim of sexual harassment against the business where she had been placed and a Title VII retaliation claim against the staffing agency. At issue was the staffing agency’s motion to dismiss, in which it argued that it was not her employer and that she failed to plausibly allege that it took an adverse employment action against her.

Not her employer. The employee failed to plausibly allege that the staffing agency was her employer and thus it could not be held liable as such under Title VII, ruled the court. Although the staffing agency might have been an employer as defined by the statute, the employee failed to plausibly allege that it was her employer. And although an employment agency can be considered a joint employer under certain circumstances, those circumstances did not exist here since there was no indication that the staffing agency maintained any control over her employment once it placed her at the business at which she was purportedly harassed.

Moreover, under Title VII, an employment agency is separately defined as “any person regularly undertaking with or without compensation to procure employees for an employer or to procure for employees opportunities to work for an employer and includes an agent of such a person.” Because the employee alleged that the staffing agency procured employment for her with an employer, it fell squarely within the definition of an employment agency. Thus, the court dismissed her retaliation claim to the extent that she sought to hold the staffing agency liable as her employer.

Liable as employment agency. However, Title VII’s anti-retaliation provision also makes it unlawful for an employment agency to retaliate against “any individual” because he or she opposed an unlawful employment practice. Here, the employee alleged that after she informed the staffing agency that she was being sexually harassed at the business where she had been placed, she was told not to report back there and then never heard from the agency against despite their counsel that they would “be in touch.”

Failure to procure employment. These actions appeared to be sufficiently adverse to state a claim for retaliation against the staffing agency as an employment agency, ruled the court. Indeed, procuring opportunities for employees to work for an employer is precisely the role of an employment agency. Thus, failing or refusing to refer an individual who has made complaints of sexual harassment necessarily constitutes retaliatory conduct as contemplated by Title VII’s anti-retaliation provision with respect to employment agencies.

Adverse actions. The court squarely rejected the staffing agency’s assertion that removing the employee from employment at the site of the harassment and failing to refer her to other jobs did not constitute adverse employment actions. With one exception, all of the cases relied on by the agency involved employees who had brought claims pursuant to Title VII’s intentional discrimination provisions and not the anti-retaliation provision. More importantly, all of these cases were decided on summary judgment and not at the motion to dismiss stage.

The instant action was also distinguishable from the only case cited by the agency that was brought under Title VII’s anti-retaliation provision and decided by a district court at the motion to dismiss stage since the court in that case determined that the staffing agency served as the plaintiff’s employer. Because the staffing agency in the instant action was not the employee’s employer, her failure to allege that it took an adverse action that was normally attributable to employers was not pertinent. Rather, she alleged that the staffing agency, as an employment agency (which by definition “procures for employees opportunities to work for an employer”) removed her from employment after she complained of harassment and subsequently failed to contact her to procure other employment. Thus, she alleged sufficient facts at this early stage to state a claim for Title VII retaliation against the agency as an employment agency.