00-1058
IN THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
_____________________
No. 00-1058
_____________________
BARBARA VON GUNTEN,
Plaintiff-Appellant,
v.
STATE OF MARYLAND,
MARYLAND DEPARTMENT OF THE ENVIRONMENT,
Defendant-Appellee.
______________________________________________
Appeal from the United States District Court
for the District of Maryland
______________________________________________
BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF
________________________________________________
C. GREGORY STEWART
General Counsel
PHILIP B. SKLOVER
Associate General Counsel
VINCENT J. BLACKWOOD
Assistant General Counsel
BARBARA L. SLOAN
Attorney
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION
1801 L Street, N.W.
Office of the General Counsel
Washington, D.C. 20507
(202) 663-4721
TABLE OF CONTENTS
Page(s)
TABLE OF AUTHORITIES ii
STATEMENT OF INTEREST 1
STATEMENT OF THE ISSUE 2
STATEMENT OF STANDARD OF REVIEW 2
STATEMENT OF THE CASE
1. Nature of the Case and Course of Proceedings 2
2. Statement of Facts 3
3. District Court's Decision 8
SUMMARY OF ARGUMENT 11
ARGUMENT
TITLE VII'S ANTI-RETALIATION PROVISION PROHIBITS
ANY RETALIATORY CONDUCT BY AN EMPLOYER THAT IS
REASONABLY LIKELY TO DETER PROTECTED ACTIVITY
EVEN IF IT DOES NOT TAKE THE FORM OF
AN "ULTIMATE EMPLOYMENT DECISION". 13
A. The Conduct Challenged in this Case
is Actionable Under Section 704 14
B. Section 704's Protections Are Not Limited
To What The District Court Termed
"Ultimate Employment Decisions" 24
CONCLUSION 30
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
ADDENDUM
Statutory Materials
TABLE OF AUTHORITIES
CASES Page(s)
Anderson v. Liberty Lobby,
477 U.S. 242 (1986) 2
Bassett v. City of Minneapolis,
2000 WL 371135 (8th Cir. April 12, 2000) 23, 28
Beckham v. Grand Affair of N.C.,
671 F. Supp. 415 (W.D.N.C. 1987) 19-20
Berry v. Stevinson Chevrolet,
74 F.3d 980 (10th Cir. 1996) 19
Bill Johnson's Restaurant v. NLRB,
461 U.S. 731 (1983) 18
Boone v. Goldin,
178 F.3d 253 (4th Cir. 1999) 22
Collins v. State of Illinois,
830 F.2d 692 (7th Cir. 1987) 21
Davis v. Tri-State Mack Distributors,
981 F.2d 340 (8th Cir. 1992) 20
Dominic v. Consolidated Edison Co.,
822 F.2d 1249 (2d Cir. 1987) 20
Durham Life Insurance Co. v. Evans,
166 F.3d 139 (3d Cir. 1999) 19
EEOC v. Board of Governors,
957 F.2d at 426-30 20
EEOC v. L.B. Foster Co.,
123 F.3d 746 (3d Cir. 1997) 21, 27
EEOC v. Ohio Edison Co.,
7 F.3d 541 (6th Cir. 1993) 16
English v. Whitfield,
858 F.2d 957 (4th Cir. 1988) 23
Garcia v. Lawn,
805 F.2d 1400 (9th Cir. 1986) 21
Glover v. South Carolina Law Enforcement Division,
170 F.3d 411 (4th Cir. 1999) 16
Hashimoto v. Dalton,
118 F.3d 671 (9th Cir. 1997) 21
Kaiser Alum. & Chemical Corp. v. Bonjorno,
494 U.S. 827 (1990) 14
Kim v. Nash Finch Co.,
123 F.3d 1046 (8th Cir. 1997) 20, 23, 28
Knox v. State of Indiana,
93 F.3d 1327 (7th Cir. 1996) 15
Ledergerber v. Strangler,
122 F.3d 1142 (8th Cir. 1997) 28
Mattern v. Eastman Kodak Co.,
104 F.3d 702 (5th Cir. 1997) 15, 28
McDonnell v. Cisneros,
84 F.3d 256 (7th Cir. 1996) 15
Mitchell v. Robert DeMario Jewelry,
361 U.S. 288 (1960) 17
Mondzelewski v. Pathmark Stores,
162 F.3d 778 (3d Cir. 1998) 21
Morris v. Oldham County Fiscal Court,
201 F.3d 784 (6th Cir. 2000) 23
Munday v. Waste Management,
126 F.3d 239 (4th Cir. 1997) 24
NLRB v. Scrivener,
405 U.S. 117 (1972) 18-19
Nash v. Florida Industrial Commission,
389 U.S. 235 (1967) 19
Page v. Bolger,
645 F.2d 227 (4th Cir. 1981) 8, 12, 24-27
Parker v. Baltimore & Ohio Railway Co.,
652 F.2d 1012 (D.C. Cir. 1981) 17
Passantino v. Johnson & Johnson Consumer Products,
2000 WL 562037 (9th Cir. April 27, 2000) 16, 29
Passer v. American Chemical Society,
935 F.2d 322 (D.C. Cir. 1991) 15, 19
Paxton v. Union National Bank,
688 F.2d 552 (8th Cir. 1982) 20
Pennsylvania v. Local Union No. 542,
347 F. Supp. 268 (E.D. Pa. 1972) 20
Pettway v. American Cast Iron Pipe Co.,
411 F.2d 998 (5th Cir. 1969) 17, 18
Randlett v. Shalala,
118 F.3d 857 (1st Cir. 1997) 16, 22
Richardson v. New York Department of Correctional Services,
180 F.3d 426 (2d Cir. 1999) 23
Robinson v. Shell Oil Co.,
70 F.3d 325 (4th Cir. 1995),
rev'd, 519 U.S. 337 (1997) 17-18
Robinson v. Shell Oil Co.,
519 U.S. 337 (1997) 11-12, 16-18, 21, 27
Ross v. Communications Satellite Corp.,
759 F.2d 355 (4th Cir. 1985) 23
Russello v. United States,
464 U.S. 16 (1983) 15
Smith v. First Union National Bank,
202 F.3d 234 (4th Cir. 2000) 25
Smith v. St. Louis University,
109 F.3d 1261 (8th Cir. 1997) 28
Smith v. Secretary of Navy,
659 F.2d 1113 (D.C. Cir. 1981) 15, 21
Wideman v. Wal-Mart Stores,
141 F.2d 1453 (11th Cir. 1998) 20, 27, 28
Wyatt v. City of Boston,
35 F.3d 13 (1st Cir. 1994) 20
Yartzoff v. Thomas,
809 F.2d 1371 (9th Cir. 1987) 21
STATUTES
29 U.S.C. § 158(a)(4) 18
29 U.S.C. § 623(d) 14
Title VII of the Civil Rights Act of 1964,
42 U.S.C. §§ 2000e et seq. passim
42 U.S.C. § 2000e-2(a) 15
42 U.S.C.§ 2000e-3 passim
42 U.S.C. § 2000e-16 26
OTHER AUTHORITY
EEOC: Guidance on Investigating,
Analyzing Retaliation Claims,
8 FEP Manual (BNA) 405:7581, 7589 (1998) 16, 29
IN THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
_____________________
No. 00-1058
_____________________
BARBARA VON GUNTEN,
Plaintiff-Appellant,
v.
STATE OF MARYLAND,
MARYLAND DEPARTMENT OF THE ENVIRONMENT,
Defendant-Appellee.
______________________________________________
Appeal from the United States District Court
for the District of Maryland
______________________________________________
BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF
________________________________________________
STATEMENT OF INTEREST
The Equal Employment Opportunity Commission is the agency charged by
Congress to administer, interpret and enforce Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and other federal fair
employment statutes. This case raises important questions concerning
the scope of Title VII's anti-retaliation provision. The district court
held that retaliatory conduct is actionable only if it constitutes an
"ultimate employment decision," which the court defined as "hiring,
granting leave, discharging, promoting and compensating." Thus, under
the decision, an employer is free to retaliate against an employee for
protected activity in ways that are likely to chill protected activity --
for example, by downgrading her performance evaluation, transferring her
to a job she does not want, or papering her file with negative reports
and otherwise harassing her -- as long as the employer's conduct falls
short of an "ultimate employment decision." If allowed to stand, this
ruling would substantially erode the protections Congress extended
to individuals who attempt to assert their rights under Title VII.
We therefore offer our views to this Court.
STATEMENT OF THE ISSUE
Whether an employer violates § 704 of Title VII when it retaliates
against an employee because she complained of sexual harassment, even
if the retaliation does not take the form of an "ultimate employment
decision," such as a discharge, demotion or reduction in pay.
STATEMENT OF STANDARD OF REVIEW
This Court reviews a grant of summary judgment de novo. Anderson
v. Liberty Lobby, 477 U.S. 242, 255 (1986).
STATEMENT OF THE CASE
1. Nature of the Case and Course of Proceedings
This is an appeal from a final judgment. Plaintiff alleges that
defendant violated Title VII by subjecting her to a sexually hostile
work environment and then retaliating against her for complaining about
the harassment. Docket entry number ("R.") 1. On September 20, 1999,
the district court granted summary judgment dismissing plaintiff's
retaliation claim, but denied summary judgment on the claims of sexual
harassment. R.15. After trial, a jury found for the defendant on the
remaining claims. Final judgment was entered on December 17, 1999.
R.39.
2. Statement of Facts
Barbara von Gunten was hired as an Environmental Health Aide III with
the Shellfish Monitoring Section of the Maryland Department of the
Environment in December 1995. Employees in that position spend the
winter months performing "shoreline sanitary surveys," where they place
tracer dye in the toilets and washing machine of a coastal resident
and later check the surrounding areas for leaks in the septic system.
Von Gunten Dep. 29-30, 34. During the remainder of the year, employees
work on two-person boats, sampling water quality in various locations on
the Chesapeake Bay and its tributaries. See id. For von Gunten, the
boat work was a major attraction of the job. See id. at 21 (intended
to earn a captain's license); 87-90 (was told she could expect to get
the necessary boating hours for captain's license); see also id. at 34
(boat work was described as "almost recreational").
Because the Shellfish Monitoring Section was in the process of purchasing
new boats, von Gunten conducted shoreline surveys through early June
1996. Her initial performance evaluation indicated that her work was
satisfactory. Von Gunten Dep. 49-51. Boat work finally began in June.
At that time, von Gunten was paired with Vernon Burch, a veteran "team
leader" who, at a minimum, lacked social skills. See, e.g., Steinfort
Dep. 133 (Burch was not "the most socially astute individual"). In early
August 1996, von Gunten made her first complaint that Burch was sexually
harassing her and refusing to train her properly because of her sex.
Joint Appendix("JA")475. Her superiors, William Beatty and John
Steinfort, met with von Gunten and Burch in an effort to address these
complaints. Id. According to von Gunten, however, Burch's conduct did
not improve. See JA475-76. Finally, she alleged, in early December,
Burch hit her across the buttocks with an oar. Extremely distressed,
she called Steinfort at home and asked to be taken off the boat until
the incident could be investigated and resolved. Von Gunten Dep. 269.
She alleges that Steinfort responded that she had mental problems, that
it was not surprising that Burch was hostile to her since she had accused
him of sexual harassment, and that she should resign. Id. at 262-65.
The next day, von Gunten informed Steinfort that she intended to file a
complaint of harassment and retaliation with the department's internal
EEO office. Before she did so, however, Steinfort contacted the
office himself to say that, in the event von Gunten filed a complaint,
her claims could not be substantiated. JA476. He also indicated
that he wanted to have her examined by the State Medical Director.
JA352 (Bieber Memo, noting Steinfort's view that psychological
examination was needed because von Gunten "was becoming violent").
He then sought approval from his superiors for the examination, but
the request was denied. Steinfort Dep. 153-55; JA354 (request for
evaluation). See also Steinfort Dep. 161-65, 170-72 (conceding that
he also contacted von Gunten's previous employers to see whether she
had had any problems there). The request and related materials were
retained in von Gunten's personnel file.
The day after Steinfort's call, von Gunten filed an internal complaint.
JA476-77. The EEO office conducted an investigation and determined
that, although von Gunten had been harassed, the harassment was not
severe or pervasive enough to be actionable. Id.; JA368 (EEO findings).
While the complaint was pending, von Gunten was taken off the boat and
assigned to do shoreline surveys. Since only a few days of the water
sampling season remained, Burch completed the work alone. At the same
time, von Gunten's state-owned vehicle was taken away, purportedly
because the department needed to reassign it to someone else, so von
Gunten was required to use her private vehicle for the surveys. JA477;
cf. von Gunten Dep. 319 (noting that she was assured at initial interview
that she would not have to use her own aging vehicle for surveys).
In early January 1997, Beatty received a citizen complaint that,
in doing a survey, von Gunten entered a home without permission.
She explained that the homeowners' housekeeper had admitted her.
Von Gunten Dep. 298-306. Pending an investigation, von Gunten was placed
on administrative leave with pay. One of her superiors recommended that
she be suspended without pay for five days, but the recommendation
was canceled at a higher level. Compare Steinfort Dep. 217-20
(asserting that he was not involved in disciplinary decision) with
Beatty Dep. 248-50 (asserting that he believed written reprimand would
be appropriate, but Steinfort told him von Gunten should be suspended
without pay); JA371-72 (suspension notice); JA388 (memo canceling
proposed suspension). The suspension notice and related materials
remained in von Gunten's file.
Around the same time, von Gunten alleges, Beatty and Steinfort also
began scrutinizing her sick leave and mileage records, insisting
that she provide written documentation for doctor's appointments,
demanding that she call in to the office daily, and requiring that
other office staff closely monitor her actions at the office. See,
e.g., von Gunten Dep. 287-97 (also noting that Steinfort accused her
of racially harassing two coworkers), 301 (requiring that she document
sick leave use for doctor's appointment), 309-18 (discussing sick leave
and mileage records, adding that sick leave requirement was later
rescinded as inconsistent with agency rules), 364-67 (disparaged by
supervisors, followed around office), 370-71 (time sheets went missing,
necessary files were locked away), 378-81 (hassled about jury duty).
Related notices and memos were retained in her file.
In February 1997, Beatty gave von Gunten an unsatisfactory performance
evaluation, although he authorized an annual pay raise. See JA404,
414 (stressing among other things that von Gunten did not get
along with coworkers). Beatty indicated that her score fell between
satisfactory and unsatisfactory, so he opted to rate her unsatisfactory.
Beatty Dep. 98. He also explained that key differences in tone
between this evaluation and the earlier satisfactory one were due to
his earlier misunderstanding as to how the form should be completed.
See id. at 76-87 (noting misunderstanding), 103-07 (discussing changes
in evaluation); see also, e.g., id. at 100-02 (admitting that he did
not correct other employees' evaluations to reflect new understanding
of forms). Compare JA392-403 (initial evaluation) with JA404-21
(annual evaluation).
Soon thereafter, von Gunten filed an EEOC charge. The charge and
internal complaint proceeded to mediation. When spring arrived,
von Gunten was advised that she would not be returning to boat work
in view of the circumstances involving Burch -- he was assigned a new
partner and von Gunten continued doing shoreline survey work, which she
contends was less interesting and more strenuous and offered no training
opportunity with boats. See, e.g., Von Gunten Dep. 271 (boat work days
were shorter, Friday was generally off-day, work was clean and easy);
id. at 270-73 (survey work days were longer, entailed more paperwork,
required tramping through bug or snake infested areas and potential
exposure to pathogens); see also id. at 345 (Beatty confirmed that she
could not get captain's license without boat work).
In late summer or early fall, von Gunten was tentatively offered a
newly-created position that might involve some boat work. See Von
Gunten Dep. 389-90 (job entailed little boat work). She rejected the
offer, largely because it would require her to work with Steinfort and
Beatty, who she believed had been retaliating against her because of her
harassment complaints. Id. at 391. On November 12, 1997, she resigned.
Von Gunten filed suit, alleging sexual harassment and retaliation.
The harassment claim was tried to a jury, which found for defendant
in a general verdict. The district court granted summary judgment on
plaintiff's Title VII retaliation claim.
3. District Court's Decision
In rejecting von Gunten's retaliation claim, the district court
initially noted that, to establish a claim of unlawful retaliation,
a plaintiff must show that she engaged in protected activity, that her
employer took adverse employment action against her, and that a causal
connection exists between the protected activity and the adverse action.
According to the court, defendant conceded the first and third elements
-- protected activity and causal connection -- but argued that plaintiff
could not show that the agency "took 'adverse employment action' against
her within the meaning of Title VII as that concept has been construed by
[appellate and district court] decisions." JA488.
The court asserted that "the leading Fourth Circuit case" defining
"adverse employment action" is Page v. Bolger, 645 F.2d 227 (4th
Cir. 1981). JA489. According to the court, in Page, the Fourth
Circuit directed courts to "focus on the question whether there has been
discrimination 'in what could be characterized as ultimate employment
decisions such as hiring, granting leave, discharging, promoting, and
compensating.'" These decisions contrast with "'many interlocutory
or mediate decisions' which," the district court explained, "have no
immediate effect upon employment conditions and . . . were not intended
to fall within the proscriptions of Title VII." Id. The court added
that the Fourth Circuit had never "'found an adverse employment action
to encompass a [particular] situation . . . without evidence that the
terms, conditions or benefits of [plaintiff's] employment were adversely
affected.'" JA489-90 (citing Munday v. Waste Mgt., 126 F.3d 239, 243
(4th Cir. 1997))(brackets and ellipses by district court).
Applying this analysis, the court held that plaintiff had produced no
evidence that defendant took adverse employment action against her
after she engaged in protected activity. According to the court,
plaintiff challenged her reassignment to shoreline survey work, her
unsatisfactory performance evaluation, her loss of a state vehicle
and the extra scrutiny to which she was subjected after her harassment
complaint. In the court's view, none of these events, either singly
or in the aggregate, could be characterized as an ultimate employment
decision since plaintiff remained employed as an environmental health
aide III and "the essential terms, conditions and benefits" of her job
were not adversely affected. JA490-91.
The court rejected plaintiff's argument that she could challenge
her "downgrade" to permanent shoreline survey work. The court
stated, "[a]bsent any decrease in compensation, job title, level of
responsibility, or opportunity for promotion, reassignment to a new
position commensurate with one's salary level does not constitute
an adverse employment action even if the new job causes some modest
stress not present in the old position." JA490-91 (transfer with no
pay change and only "minor change" in working conditions "cannot rise
to the level of a materially adverse employment action"). "Otherwise,"
the court reasoned, "every trivial personnel action that an irritable,
chip-on-the-shoulder employee did not like would form the basis of a
discrimination suit." JA491. The court further noted that, here, the
agency had simply granted von Gunten's request for reassignment away
from Burch, and her original job had included at least some shoreline
survey work. JA491-92.
The court also held that plaintiff could not challenge her unsatisfactory
performance evaluation. The court concluded that it was merely
a "mediate step" which could -- but did not -- lead to an adverse
employment action. Indeed, the court pointed out, the agency approved an
annual pay increase for her despite the unsatisfactory rating. JA492.
As for the other incidents, the court concluded that many of them
were simply attributable "to a predictable increase of tension at the
office" after plaintiff filed her complaint and did not amount to adverse
employment actions. JA492-93. Noting that "Title VII does not prohibit
all verbal and physical harassment in the workplace," the court stated
that courts must pay careful attention "to the requirements of Title VII
to avoid the risk of transforming the statute into 'a general civility
code for the American workplace.'" JA493-94. Thus, the court concluded,
"[h]ostility directed at a plaintiff from supervisors or fellow employees
does not . . . amount to adverse employment action." Id.
SUMMARY OF ARGUMENT
The district court erred in dismissing Barbara von Gunten's Title
VII retaliation claim. The court held that retaliation short of an
"ultimate employment decision" -- specifically, "hiring, granting
leave, discharging promoting and compensating" -- does not violate §
704, Title VII's anti-retaliation provision. On the contrary, S 704
flatly prohibits any "discrimination" against an individual because
she has opposed a practice made illegal under Title VII. In Robinson
v. Shell Oil Co., 519 U.S. 337 (1997), the Supreme Court confirmed that
the provision must be interpreted broadly to effectuate its purpose:
ensuring that aggrieved individuals have "unfettered access to statutory
remedial mechanisms" and can complain about discrimination without fear
of reprisal. Because effective reprisal need not take the form of
an employment action, § 704's broad proscription against retaliatory
discrimination should be read, as Congress intended, to prohibit any
retaliatory conduct by an employer that is reasonably likely to deter
aggrieved individuals from asserting rights under Title VII.
The actions plaintiff challenges in this suit -- downgrading her
performance evaluation, reassignment to a job that did not provide
the same advancement opportunities, harassment and intimidation -- if
based on a retaliatory motive, are clearly likely to deter protected
activity. Indeed, courts have repeatedly held that similar conduct
is actionable retaliation. The district court therefore improperly
rejected plaintiff's claim under § 704.
The district court based its ruling on a misreading of Page v. Bolger,
645 F.2d 227 (4th Cir. 1981), a federal sector race discrimination
suit challenging denial of a promotion. The court read Page as
holding that Title VII prohibits discrimination only in "ultimate
employment decisions," as defined by the district court. In fact,
the Page Court simply held that, in analyzing plaintiff's claim of
promotion discrimination under the McDonnell Douglas framework, the
pretext inquiry must focus on the decision itself, rather than on the
racial composition of the selection committee. Consistent with Page,
therefore, the court here should focus on plaintiff's performance
evaluation, for example, rather than the evaluator's characteristics.
However, Page did not -- and could not -- hold that employers may
retaliate against individuals because of their protected activity as
long as the retaliatory discrimination stops short of an "ultimate
employment decision." Such a result is inconsistent not only with the
language and purpose of § 704 but also with Robinson's holding that
the provision covers former employees. Since employers do not make
"ultimate employment decisions" regarding former employees, coverage
would be unnecessary if § 704 applied only to such decisions.
The district court expressed concern that, unless § 704 were limited to
"ultimate employment decisions," suits challenging trivial slights would
flood the courts. While this concern is valid, the court's response goes
too far since it also immunizes retaliatory conduct that Congress clearly
intended to prohibit and, so, significantly weakens the protections
Congress provided in § 704. This Court should therefore hold that §
704 prohibits any retaliatory conduct by an employer that is reasonably
likely to deter protected activity. Because the conduct challenged
here meets that standard, summary judgment should be reversed.
ARGUMENT
TITLE VII'S ANTI-RETALIATION PROVISION PROHIBITS ANY RETALIATORY CONDUCT
BY AN EMPLOYER THAT IS REASONABLY LIKELY TO DETER PROTECTED ACTIVITY
EVEN IF IT DOES NOT TAKE THE FORM OF AN "ULTIMATE EMPLOYMENT DECISION".
The district court held that, even if the defendant took the adverse
actions alleged by the plaintiff -- downgrading her performance
evaluation, reassigning her to a job that does not provide the same
opportunities for advancement, and subjecting her to harassment and
intimidation -- in retaliation for her complaints of sexual harassment,
it did not violate § 704 of Title VII because none of the challenged
conduct constitutes an "ultimate employment decision." This holding
cannot be reconciled with the language or purpose of Title VII's
anti-retaliation provision, which broadly prohibits an employer from
"discriminating" against an employee because she has participated in
Title VII proceedings or opposed practices made unlawful by Title VII.
To accomplish its objective of protecting the EEOC's sources of
information about discriminatory practices, this provision should be
construed to prohibit any retaliatory actions by an employer that is
reasonably likely to deter protected activity. Since the challenged
conduct here clearly meets that standard, it is actionable under Title
VII.
A. The Conduct Challenged in this Case is Actionable Under Section 704.
The key issue in this appeal is whether § 704 of Title VII prohibits
the retaliatory conduct von Gunten challenges. The starting point
for interpreting a statute is the language of the statute itself.
Kaiser Alum. & Chem. Corp. v. Bonjorno, 494 U.S. 827, 835 (1990).
Section 704 makes it unlawful for an employer "to discriminate against
any of his employees or applicants for employment" because the individual
has "opposed any practice made an unlawful employment practice" or
"filed a charge, testified, assisted, or participated in any manner
in an investigation [or] proceeding" under Title VII. 42 U.S.C. §
2000e-3(a); see also 29 U.S.C. § 623(d) (parallel ADEA provision).
Congress did not qualify the word "discriminate" in § 704. By its plain
terms, the provision prohibits any form or degree of "discrimination"
in response to protected activity. See Smith v. Secretary of Navy, 659
F.2d 1113, 1119 n.56 (D.C. Cir. 1981) (§ 704 "speaks unconditionally,
without limitation to acts causing particular harms such as the loss
of a particular job or promotion"); see also Knox v. State of Indiana,
93 F.3d 1327, 1334 (7th Cir. 1996) (law does not "restrict[] the type
of retaliatory act that might be visited upon an employee who seeks
to invoke her rights by filing a complaint"). Thus, an employer
discriminates within the meaning of the provision when it permits
consideration of an individual's protected activity to infect its
dealings with that individual such that she is treated differently than
otherwise similarly situated persons are treated or than she herself
would be treated, but for the protected activity.<1>
On the other hand, § 704 was not intended to encourage suits over
"petty slights or trivial annoyances." EEOC: Guidance on Investigating,
Analyzing Retaliation Claims, 8 FEP Manual (BNA) 405:7581, 7589 (1998)
("Guidance"); see also Randlett v. Shalala, 118 F.3d 857, 862 (1st
Cir. 1997) ("possibly there is room for a de minimis threshold").
Accordingly, the provision should be read to prohibit only conduct
"that is based on a retaliatory motive and is reasonably likely to
deter protected activity." Guidance, 8 FEP Manual at 405:7589; see
also Passantino v. Johnson & Johnson Consumer Prods., 2000 WL 562037,
*8 (9th Cir. April 27, 2000) (§ 704 "bar[s] employers from taking
actions which could have a deleterious effect on the exercise of
[rights protected by Title VII]").
This interpretation accords with the purposes of § 704. See, e.g.,
Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997) (statutory
interpretation should include consideration of overall purpose
of provision). The provision is designed to ensure both that "no
person [is] deterred from exercising his rights . . . by the threat of
discriminatory retaliation," EEOC v. Ohio Edison Co., 7 F.3d 541, 543
(6th Cir. 1993), and that "unfettered access to statutory remedial
mechanisms" is maintained. See, e.g., Robinson, 519 U.S. at 346
(discussing § 704); Glover v. South Carolina Law Enforcement Div., 170
F.3d 411, 414 (4th Cir. 1999) (ensure that "employers cannot intimidate
their employees into foregoing the Title VII grievance process" and
that "investigators will have access to the unchilled testimony of
witnesses").
Under Title VII's enforcement scheme, the Commission is largely
dependent upon aggrieved individuals to provide notice of potential
violations. Parker v. Baltimore & Ohio Ry. Co., 652 F.2d 1012, 1019
(D.C. Cir. 1981) (scheme "relies heavily on the initiative of aggrieved
employees"); Pettway v. American Cast Iron Pipe Co., 411 F.2d 998, 1005
(5th Cir. 1969) ("filing of charges and the giving of information by
employees [are] essential to [EEOC's] administration of Title VII" and
"the carrying out of the congressional policy embodied in the Act").
Fear of reprisal would deter employees from filing charges and, so, limit
the Commission's ability to remedy Title VII violations. Thus, effective
enforcement can only be expected "if employees [feel] free to approach
officials with their grievances." Mitchell v. Robert DeMario Jewelry,
361 U.S. 288, 292 (1960) (discussing similar provision in FLSA).
In Robinson v. Shell Oil Co., 519 U.S. 337, the Supreme Court recently
confirmed that § 704 must be interpreted broadly to effectuate its
purposes. The plaintiff in Robinson alleged that his former employer
violated § 704 by providing negative job references after he filed a
charge complaining that his termination was discriminatory. This Court
held that Title VII does not cover former employees, reasoning that
because, in its view, Title VII applies only to "adverse employment
actions," the statute does not redress post-employment conduct. 70 F.3d
325, 331 (4th Cir. 1995). The Supreme Court reversed, holding that
former employees are covered by § 704. The Court explained that denying
coverage to former employees would permit employers to "retaliate with
impunity against an entire class of acts under Title VII." Id. at 346.
That, the Court concluded, would "undermine the effectiveness of Title
VII by allowing the threat of post-employment retaliation to deter
victims of discrimination from complaining to the EEOC." Id.
Robinson is the latest in a line of cases in which the Supreme Court
has taken an expansive view of anti-retaliation provisions in federal
statutes. The Court held, for example, that, notwithstanding the
importance of the right of access to the courts, the filing of a lawsuit
for a retaliatory purpose may, in appropriate circumstances, constitute
unlawful retaliation.<2> See Bill Johnson's Restaurant v. NLRB, 461
U.S. 731, 749 (1983) ("baseless" state suit brought for retaliatory
purposes may be enjoined). The Court reasoned that such suits provide "a
powerful instrument of coercion or retaliation" since, by bringing such
a suit, "an employer can place its employees on notice that anyone who
[engages in protected activity] is subjecting himself to the possibility
of a burdensome lawsuit." Id. at 740. See also NLRB v. Scrivener,
405 U.S. 117, 121-22 (1972) (extending NLRA anti-retaliation provision
beyond its literal terms to include participation in investigation
of charge "to prevent the Board's channels of information from being
dried up by employer intimidation"); Nash v. Florida Indus. Comm'n, 389
U.S. 235, 238 (1967) (holding that, because "Congress has made it clear
[by prohibiting "discrimination" based on protected activity] that it
wishes all persons with information about [unfair labor practices] to
be completely free from coercion against reporting them to the Board,"
state may not preclude persons who are out of work due to labor dispute
from obtaining unemployment compensation).
Following the Supreme Court's lead, lower courts have applied
the anti-retaliation provisions of Title VII and the other federal
employment statutes to a wide range of retaliatory conduct. For example,
the D.C. Circuit held that the plaintiff stated a claim for illegal
retaliation where his employer canceled a testimonial dinner in his
honor in response to his charge protesting his termination. See Passer
v. American Chem. Soc'y, 935 F.2d 322, 331 (D.C. Cir. 1991) (ADEA case).
Protection has also been extended where the employer initiated judicial
proceedings against the employee,<3> used threats or intimidation against
the individual,<4> or otherwise engaged in conduct that was reasonably
likely to deter protected activity.<5>
Accordingly, this Court should hold that the conduct von Gunten is
challenging -- her negative performance evaluation, reassignment to
a position that did not involve any boat work, retaliatory harassment
-- is actionable under § 704. Regarding the performance evaluation,
courts have repeatedly recognized that an employer may not downgrade
an individual's performance evaluation because of the individual's
protected activity. See, e.g., Kim v. Nash Finch Co., 123 F.3d 1046,
1060 (8th Cir. 1997) (conduct included lowered performance evaluation,
reduced duties and special remedial training); Wyatt v. City of Boston,
35 F.3d 13, 15 (1st Cir. 1994) (conduct included negative performance
evaluation, transfer to another location); Dominic v. Consolidated
Edison Co., 822 F.2d 1249, 1254 (2d Cir. 1987) (conduct included poor
performance rating, relocation of office to building under construction,
deluge of additional menial work); Yartzoff v. Thomas, 809 F.2d 1371,
1375 (9th Cir. 1987) (undeserved performance rating, transfer of job
duties); Smith v. Secretary of Navy, 659 F.2d at 1119-20 (negative
performance evaluations). Significantly, retaliatory performance
evaluations are analogous to the retaliatory job references at issue in
Robinson, 519 U.S. 337. Although the holding in Robinson was limited
to coverage, the decision suggests that the underlying conduct is also
actionable, as other courts have held. See, e.g., EEOC v. L.B. Foster
Co., 123 F.3d 746, 753-54 & n.4 (3d Cir. 1997); Hashimoto v. Dalton,
118 F.3d 671, 674-76 (9th Cir. 1997). Thus, if von Gunten can prove
that her performance evaluation was downgraded in retaliation for her
protected activity, that states a § 704 claim.
Case law also confirms that von Gunten's reassignment to permanent
shoreline survey work is actionable. See Collins v. State of Illinois,
830 F.2d 692, 702-03 (7th Cir. 1987) (lateral transfer was actionable
where plaintiff was "transferred away from a job she enjoyed," new
supervisors did not know what her duties and authority were, and
plaintiff lost her private office and other perks); Yartzoff, 809
F.2d at 1376 (retaliatory change in job duties was actionable); Garcia
v. Lawn, 805 F.2d 1400, 1401 (9th Cir. 1986) (inter-city transfer was
actionable). See also Mondzelewski v. Pathmark Stores, 162 F.3d 778,
786-87 (3d Cir. 1998) (retaliatory transfer of employee to 9-5 shift
was actionable where evidence showed that employees generally disfavored
shift); cf. Randlett, 118 F.3d at 862-83 (retaliatory denial of transfer
was actionable).
The district court rejected this claim on the ground that it was not
a "materially adverse employment action" which, in the court's view,
would entail more than "minor" changes in pay, benefits and working
conditions. On the contrary, to the extent "materially adverse"
conduct is required, any change in pay, benefits, job duties, working
conditions and/or employment opportunities that is reasonably likely
to deter protected activity is materially adverse if it was made to
retaliate against an employee for exercising Title VII rights. Here,
a jury could find that von Gunten's reassignment meets that standard,
particularly because, by eliminating the boat work, it affected her
ability to progress to other jobs requiring expertise and experience on
the water. Compare Boone v. Goldin, 178 F.3d 253, 255-56 (4th Cir. 1999)
(reassignment was not actionable where promotion opportunities, as well
as other employment terms, were not affected).<6>
As for the other conduct von Gunten challenges, this Court and others
have recognized a claim for retaliatory harassment under federal law.
See English v. Whitfield, 858 F.2d 957, 963-64 (4th Cir. 1988)
(holding, by analogy to Meritor Savings Bank v. Vinson, 477 U.S. 57,
64 (1985), that retaliatory harassment under whistle blower statute
is actionable); Ross v. Communications Satellite Corp., 759 F.2d 355,
364-65 (4th Cir. 1985) (reversing summary judgment on retaliatory
harassment claim under Title VII); see also, e.g., Morris v. Oldham
County Fiscal Ct., 201 F.3d 784, 791 (6th Cir. 2000) (holding that
supervisor's retaliatory harassment may violate § 704); Richardson v. New
York Dep't of Correctional Serv., 180 F.3d 426, 445-46 (2d Cir. 1999)
(holding that unchecked coworker harassment may violate § 704); Kim,
123 F.3d at 1060 ("papering personnel file with negative reports").
Such harassment need not involve a termination or other similar
employment decision. See Bassett v. City of Minneapolis, 2000 WL
371135, *7 n.16 (8th Cir. April 12, 2000) ("no question" that "a series
of retaliatory conduct falling short of discharge or termination can,
as a matter of law, constitute an adverse action"). The district court
was simply wrong, therefore, in holding that hostility by supervisors
and/or coworkers, if caused by plaintiff's assertion of Title VII
rights and substantial enough to deter protected activity, does not
violate Title VII. Rather, if von Gunten can establish that she was
subjected to harassment in the form of loss of her state-owned vehicle,
heightened scrutiny of her actions, unjustified disciplinary action and
other similar conduct in retaliation for engaging in protected activity,
a jury could find a violation of § 704.
B. Section 704's Protections Are Not Limited To What The District Court
Termed "Ultimate Employment Decisions".
In finding no actionable retaliation, the district court erroneously held
that § 704 prohibits only "ultimate employment decisions" -- "hiring,
granting leave, discharging, promoting and compensating." Section
704 contains no such limitation, but the court did not purport to base
its decision on either the language or the purpose of § 704. Rather,
the court relied primarily on this Court's decision in Page v. Bolger,
645 F.2d 227, 233 (4th Cir. 1981), which it described as the "leading
Fourth Circuit case dealing with the requirements for determining
under Title VII whether an employer has taken an 'adverse employment
action.'" JA489.<7> According to the court, Page directs that courts
"focus on the question whether there has been discrimination 'in what
could be characterized as ultimate employment decisions such as hiring,
granting leave, discharging, promoting and compensating,'" and reject
claims challenging "'interlocutory or mediate decisions,'" which,
apparently, encompass anything else. See id.
Page does not control this case for several reasons. Cf. Smith v. First
Union Nat'l Bank, 202 F.3d 234, 248 (4th Cir. 2000) (acknowledging Page
but stating that Fourth Circuit has "not resolved" ultimate employment
decision issue). First, Page does not stand for the proposition that
Title VII's protections are limited to hiring, firing, promotion,
leave, and pay decisions. The language the district court referred to
is taken out of context.
The plaintiff in Page, a postal worker, argued that he was denied
a promotion because of his race, but this Court concluded the lower
court's contrary determination was not clearly erroneous. The plaintiff
then argued that the employer should be required to articulate a reason
for the absence of a minority member on the selection committee and
plaintiff could prevail if he could show that this reason, rather than
the reason for his non-promotion, was pretextual. Page, 645 F.2d at 232.
The Court rejected that argument, holding that the focus must remain
on the actual or "ultimate" decision the plaintiff was challenging --
there, the denial of a promotion. Id. at 233. The Court reasoned that
"mediate decisions having no immediate effect on employment conditions
. . . such as those concerning composition of the review committees"
are "simply steps" in the process for making "end-decisions such as
those to hire, to promote, etc." and, so, were not intended to fall
within the proscriptions of Title VII. Id. at 233-34 & n.11.
This decision is unremarkable, particularly in light of the plaintiff's
failure to show that the selection decision itself was discriminatory.
By analogy, here, defendant need not explain, for example, why a man,
rather than a woman, completed von Gunten's performance evaluation --
the focus must be on the evaluation itself. However, Page simply does
not hold, as the district court -- and other courts -- have concluded,
that employers are free to retaliate against employees except in "hiring,
granting leave, discharging, promoting or compensating."
Moreover, Page was not a retaliation case and, accordingly, does not
address the type of conduct actionable under § 704. Indeed, Page was
a federal sector case. Section 717, which applies to federal sector
claims, provides: "All personnel actions affecting employees shall be
made free from any discrimination based on . . . sex." 42 U.S.C. §
2000e-16 (emphasis added). In light of this language, it is arguable
that § 717 is limited to employment actions -- albeit not only "ultimate
employment decisions" as the district court construed that phrase.
In contrast, § 704 does not mention "personnel actions" but rather
prohibits any sort of "discrimination" in response to protected activity.
Thus, even if the district court's reading of Page were correct, it
would not mandate rejection of von Gunten's § 704 claims in this case.
Furthermore, case law since Page confirms that conduct short of
an "ultimate employment decision" is actionable under § 704. Most
significantly, Robinson cannot be reconciled with such a ruling since
post-employment retaliation against a former employee would rarely,
if ever, involve "hiring, granting leave, discharging, promoting
or compensating."<8> In addition, most circuits have implicitly or
explicitly held that an ultimate employment decision is not required.
See Wideman v. Wal-Mart Stores, 141 F.2d 1453, 1456 (11th Cir. 1998)
(holding that "Title VII's protection against retaliatory discrimination
extends to adverse actions which fall short of ultimate employment
decisions"); see also cases cited supra at pp. 16-23 & nn. 3-5.
We recognize that two circuits have adopted an "ultimate employment
decision" standard like the district court's. See Mattern v. Eastman
Kodak Co., 104 F.3d 702, 707-09 (5th Cir. 1997) (based in part on
misreading of Page); see also Ledergerber v. Strangler, 122 F.3d 1142,
1144 (8th Cir. 1997); but see Bassett, 2000 WL 371135, at *7 n.16
("series of retaliatory conduct falling short of discharge or termination
can, as a matter of law, constitute an adverse action"); Kim, 123 F.3d at
1060 (reduced work duties, lowered performance evaluation, "papering"
personnel file are actionable); Smith v. St. Louis Univ., 109 F.3d
1261, 1266 (8th Cir. 1997) (retaliatory job references are actionable).
However, neither court attempts to explain how allowing employers to
take retaliatory measures, short of an "ultimate employment decision,"
against employees who assert their Title VII rights would further
the purposes of § 704. On the contrary, it would stifle employees'
willingness to complain of discrimination. Wideman, 141 F.3d at 1456.
In justifying its adoption of the standard, the district court expressed
concern that, unless retaliation claims were limited to "ultimate" and
"materially adverse" employment decisions, "every trivial personnel
action that an irritable, chip-on-the-shoulder employee did not like
would form the basis of a discrimination suit." JA491. This concern
is valid. However, while limiting § 704's protection to "ultimate
employment decisions" would doubtless stop some potential plaintiffs
from challenging trivial slights, it would also prevent redress for more
substantial wrongs. Moreover, no such drastic limitation is required.
This Court instead should simply hold that § 704 prohibits any adverse
treatment that is based on a retaliatory motive and is reasonably likely
to deter a charging party or others from engaging in protected activity.
See Guidance, 8 FEP Manual at 405:7589; Passantino, 2000 WL 562037, at
*8 (conduct that could have "deleterious effect" on exercise of Title
VII rights). This standard not only adequately addresses the court's
concerns but also fully conforms with the language and purposes of §
704.
As the Supreme Court recently reaffirmed, to effectuate the purposes
of Congress, § 704 must be read to afford broad protection against
retaliation for those who attempt to vindicate civil rights through Title
VII. Had Congress shared the district court's view that retaliatory
conduct like that alleged in this case is unimportant, it could have
limited the protections of the provision to "ultimate" or "materially
adverse" employment decisions. Instead, Congress plainly stated that
employers could not treat employees differently in any significant manner
because of their participation in Title VII proceedings. The effect of
the court's decision is to rewrite the statute in a way that drastically
weakens the protection Congress provided. We therefore urge the Court
to hold that § 704 prohibits any kind of retaliatory conduct that
is reasonably likely to deter protected activity under Title VII.
Because the conduct alleged here meets that standard, the judgment
should be reversed.
CONCLUSION
For the foregoing reasons, the judgment below should be reversed and this
case should be remanded to the district court for further proceedings
on the retaliation claim.
Respectfully submitted,
C. GREGORY STEWART
General Counsel
PHILIP B. SKLOVER
Associate General Counsel
VINCENT J. BLACKWOOD
Assistant General Counsel
_______________________________
BARBARA L. SLOAN
Attorney
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION
Office of General Counsel
1801 L Street, N.W.
Washington, D.C. 20507
(202) 663-4721
CERTIFICATE OF COMPLIANCE
In accordance with Federal Rule of Appellate Procedure 32, I certify
that this brief was prepared with Work Perfect, Courier New (monospaced)
typeface, 12 point font, and contains 6996 words, from the Statement
of Interest through the Conclusion.
____________________________
Barbara L. SloanCERTIFICATE OF SERVICE
I, Barbara L. Sloan, hereby certify that two copies of the attached Brief
of the Equal Employment Opportunity Commission As Amicus Curiae were sent
this 30th day of May, 2000, by first class mail, postage prepaid, to:
Neil L. Henrichsen
Joanna R. Onorato
MITTERHOFF, HENRICHSEN & STEWART
1850 M Street, N.W., Suite 250
Washington, DC 20036
Kenneth W. Long, Jr.
Norma Jean Kraus Belt
Office of the Attorney General
Department of the Environment
2500 Broening Highway
Baltimore, MD 21224
_______________________________
Barbara L. Sloan
ADDENDUM
Statutory Materials
1 Some courts have construed § 704 like § 703,
42 U.S.C. § 2000e-2(a), as limited to employment actions. See, e.g.,
Mattern v. Eastman Kodak Co., 104 F.3d 702, 708-09 (5th Cir. 1997).
This Court need not reach the issue to resolve this case, where only
employment-related conduct is alleged. The construction, however,
is incorrect. Unlike § 703, which prohibits discrimination based
on protected characteristics in hiring, firing, compensation, terms,
or conditions of employment, § 704 "does not limit its reach only to
acts ... that take the form of cognizable employment actions." Passer
v. American Chem. Soc'y, 935 F.2d 322, 331 (D.C. Cir. 1991) (discussing
ADEA). "Where Congress includes particular language in one section of a
statute but omits it in another section of the same Act, it is generally
presumed that Congress acts intentionally and purposely in the disparate
inclusion or exclusion." Russello v. United States, 464 U.S. 16, 23
(1983). Moreover, the difference between §§ 703 and 704 makes sense.
Since an employer can intimidate employees by conduct that is not an
employment action, Congress did not limit § 704 to specific employment
actions. See McDonnell v. Cisneros, 84 F.3d 256, 259 (7th Cir. 1996)
(provision "may intentionally be broader [than substantive prohibitions]
since it is obvious that effective retaliation ... need not take the
form of a job action").
2 Bill Johnson's Restaurant arose under § 8(a)(4) of the NLRA,
a provision that resembles § 704. See Pettway, 411 F.2d at 1005-06
(NLRA case law provides a guide to interpreting § 704 although scope of
Title VII's provision is "even broader" than NLRA's).
3 See, e.g., Durham Life Ins. Co. v. Evans, 166 F.3d 139, 157
(3d Cir. 1999) (employer brought retaliatory suit against plaintiff to
enforce non-compete agreement and filed misleading complaint with state
insurance agency); Berry v. Stevinson Chevrolet, 74 F.3d 980, 986-87 (10th
Cir. 1996) (employer caused sales manager to bring criminal complaint
against plaintiff); Beckham v. Grand Affair of N.C., 671 F. Supp. 415,
419 (W.D.N.C. 1987) (employer had charging party arrested and prosecuted
for trespass).
4 See, e.g., Wideman v. Wal-Mart Stores, 141 F.3d 1453, 1455-56
(11th Cir. 1998) (threats, reprimands, scheduling changes, one-day
suspension); Paxton v. Union Nat'l Bank, 688 F.2d 552, 572 (8th Cir. 1982)
(intensive interrogation by employer). See also Pennsylvania v. Local
Union No. 542, 347 F. Supp. 268, 287 (E.D. Pa. 1972) (noting that §
704's protection "will truly have little relevancy . . . if [it] is
interpreted to give a court power to reinstate an employee who is fired
[for protected activity] but [not to restrain] overt acts of violence
against Title VII plaintiffs").
5 See, e.g., EEOC v. Board of Governors, 957 F.2d at 426-30
(denial of grievance procedure made available to other employees);
Davis v. Tri-State Mack Distributors, 981 F.2d 340, 344 (8th Cir. 1992)
(imposed more onerous working conditions).
6 Arguably, the conduct in Boone -- reassignment to a wind tunnel --
could chill protected activity. The case is distinguishable, however,
since the Court found that the transfer would not affect plaintiff's
employment opportunities and plaintiff's main complaint was merely that
the work was more stressful.
7 The court also cited Munday v. Waste Management, 126 F.3d 239 (4th
Cir. 1997). While we disagree with Munday, the case is distinguishable.
The plaintiff in Munday alleged that, in retaliation for her earlier
protected activity, her supervisor ordered other employees to ignore
and spy on her, yelled at her, and failed to address her concerns.
Id. at 243. Central to the Court's determination that she had alleged no
actionable conduct was the fact that, to the extent the plaintiff raised
employment-related concerns, those concerns were promptly addressed albeit
not by the hostile supervisor. Id.; see also id. at 244 (noting that she
never complained about being ignored, and there was no evidence employees
actually spied on her). In contrast, here, despite repeated complaints,
von Gunten's concerns were not addressed, and she is challenging her
performance evaluation and reassignment, in addition to the harassment.
8 It is true that an employer could retaliate by refusing to rehire
a former employee who had engaged in protected activity -- but, in that
case, the individual would be covered as an "applicant." See 42 U.S.C.§
2000e-3 (prohibiting discrimination against "employees or applicants").
There would be no need to extend § 704's protections to former employees.
In addition, although a former employee might experience discrimination in
hiring if a second employer refused to hire her based on a retaliatory job
reference provided by a former employer, "the [retaliatory] dissemination
of adverse employment references can constitute a violation of Title VII,"
whether or not the dissemination actually resulted in a refusal to hire.
L.B. Foster, 123 F.3d at 753 & n.4. "An employer who retaliates cannot
escape liability merely because the retaliation falls short of its
intended result." Id.
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