Brief as appelle
June 30, 2005
No. 04-4178
IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Plaintiff-Appellee,
v.
SUNDANCE REHABILITATION CORPORATION,
Defendant-Appellant.
______________________________________________________
On Appeal from the United States District Court for the
Northern District of Ohio, Eastern Division
Docket No. 01-1867
Hon. Lesley Wells
______________________________________________________
BRIEF OF APPELLEE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
______________________________________________________
ERIC S. DREIBAND U.S. EQUAL EMPLOYMENT
General Counsel OPPORTUNITY COMMISSION
Office of General Counsel
VINCENT J. BLACKWOOD 1801 L Street, N.W., Room 7020
Acting Associate General Counsel Washington, D.C. 20507
(202) 663-4571
LORRAINE C. DAVIS daniel.vail@eeoc.gov
Assistant General Counsel
DANIEL T. VAIL
Attorney
CORPORATE DISCLOSURE STATEMENT
As an agency of the United States government, the EEOC is exempt
from filing
a corporate affiliate/financial interest disclosure statement. See 6
Cir. R. 26.1(a).
TABLE OF CONTENTS
Page
FACT SHEET FOR TITLE VII APPEALS . . . . . . . . . . . . . . . iv
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . .v
STATEMENT IN SUPPORT OF ORAL ARGUMENT. . . . . . . . . . . . . .1
STATEMENT ON JURISDICTION. . . . . . . . . . . . . . . . . . . .2
STATEMENT OF THE ISSUES. . . . . . . . . . . . . . . . . . . . .2
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . .3
A. The Nature of the Case and the Course of Proceedings .3
B. Statement of Facts . . . . . . . . . . . . . . . . . .4
C. The District Court's Decision. . . . . . . . . . . . .9
SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . 12
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
A. Standard of Review . . . . . . . . . . . . . . . . . 16
B. The District Court Correctly Held that SunDance Violated
the Anti-Retaliation Rules in the EPA, Title VII,
the ADEA, and the ADA. . . . . . . . . . . . . . . . 17
C. The District Court Appropriately Exercised Its Broad Discretion
to Award Relief Required to Eliminate the Effects of
Illegal Retaliation. . . . . . . . . . . . . . . . . 48
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 54
CERTIFICATE OF COMPLIANCE WITH RULE 32(a). . . . . . . . . . . 55
ADDENDA. . . . . . . . . . . . . . . . . . . . . . . . . . . .A-1
Appellee's Designation of Contents of Joint Appendix. . .A-2
Complete Text of Statutory Anti-Retaliation Rules . . . .A-5
EEOC's Enforcement Guidance on Non-Waivable Employee
Rights . . . . . . . . . . . . . . . . . . . . . . . . . A-7
CERTIFICATE OF SERVICE
UNITED STATES COURT OF APPEALS, SIXTH CIRCUIT
FACT SHEET FOR TITLE VII APPEALS
6th Cir. R. 28(c) requires that counsel for the appellant and for
the appellee file a one-page fact sheet in all Title VII appeals.
The fact sheet should be the same size as the pages in the brief.
It should be placed in the briefs of the parties immediately
following the table of contents and preceding the statement of
issues presented for review. Use this form, 6CA-56.
Case Name and Number: EEOC v. SunDance Rehabilitation Corp.
04-4178 (6th Cir.); 01-1867 (N.D. Ohio)
Person Reporting: Daniel Travis Vail, Counsel for Appellee EEOC
1. Date EEOC complaint filed: Apr. 20, 1999
2. Was any compromise reached by the state civil rights agency?:
No. By EEOC?: No.
3. Date EEOC right to sue letter issued: Sept. 30, 1999
4. Date present action filed: August 1, 2001
5. Have all filings been timely?: Yes
If not, are any "tolling" arguments available?: N/A
If so, describe: N/A
6. Nature of claims of discrimination and date(s) of
occurrence:
The EEOC alleges that SunDance violated the anti-retaliation
provision of Title VII (and other federal employment
discrimination laws) by conditioning the provision of
severance benefits on the waiver of the right to file an EEOC
charge and participate in EEOC proceedings, and by otherwise
using a "Separation Agreement, General Release and Covenant
Not to Sue." These unlawful employment practices have been
occurring since at least March 5, 1999.
7. Disposition Below:
The district court (Hon. Lesley Wells, presiding) granted the
EEOC's motion for summary judgment on July 26, 2004, and
issued appropriate affirmative and injunctive relief.
TABLE OF AUTHORITIES
Page
Cases
Abbott v. Crown Motor Co., Inc.,
348 F.3d 537 (6th Cir. 2003). . . . . . . . . . . . . . . 18
Albemarle Paper Co. v. Moody,
422 U.S. 405 (1975) . . . . . . . . . . . . . . . . . .49-50
American Airlines, Inc. v. Cardoza-Rodriguez,
133 F.3d 111 (1st Cir. 1998). . . . . . . . . . . 36, 43, 45
Bachelder v. America West Airlines, Inc.,
259 F.3d 1112 (9th Cir. 2001) . . . . . . . . . . . . . . 32
Barnes v. City of Cincinnati,
401 F.3d 729 (6th Cir. 2005). . . . . . . . . . . . . . . 17
Brown v. City of Tuscon,
336 F.3d 1181 (9th Cir. 2003) . . . . . . . . . . . . . . 34
Cal. Acrylic Indus., Inc. v. NLRB,
150 F.3d 1095 (9th Cir. 1998) . . . . . . . . . . . . . . 31
Callicotte v. Carlucci,
698 F. Supp. 944 (D.D.C. 1988). . . . . . . . . . . . . . 43
Celotex Corp. v. Catrett,
477 U.S. 317 (1986) . . . . . . . . . . . . . . . . . . . 17
Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc.,
467 U.S. 837 (1984) . . . . . . . . . . . . . . . . . . . 36
Clark v. United Parcel Serv., Inc.,
400 F.3d 341 (6th Cir. 2005). . . . . . . . . . . . . . . 16
Conn. v. Teal,
457 U.S. 440 (1982) . . . . . . . . . . . . . . . . . .37-38
Dayton Newspapers, Inc. v. NLRB,
402 F.3d 651 (6th Cir. 2005). . . . . . . . . . . . . .31-32
EEOC v. Astra, Inc.,
94 F.3d 738 (1st Cir. 1996) . . . . . . . . . . . 44, 47, 51
EEOC v. Bd. of Governors of State Coll. & Univ.,
957 F.2d 424 (7th Cir. 1992). . . . . . .9, 13-15, 21-30, 48
EEOC v. Cosmair, Inc., L'Oreal Hair Care Div.,
821 F.2d 1085 (5th Cir. 1987) . . . . . . . . 43, 45, 47, 50
EEOC v. Frank's Nursery & Crafts, Inc.,
177 F.3d 448 (6th Cir. 1999). . . . . . . . . 39, 40, 42, 50
EEOC v. Joe's Stone Crab,
220 F.3d 1263 (11th Cir. 2000). . . . . . . . . . . . . . 38
EEOC v. Johnson & Higgins, Inc.,
91 F.3d 1529 (2d Cir. 1996) . . . . . . . . . . . . . . . 42
EEOC v. Ohio Edison Co.,
7 F.3d 541 (6th Cir. 1993). . . . . . . . .19, 21, 29, 38-39
EEOC v. Romeo Cmty. Sch.,
976 F.2d 985 (6th Cir. 1992). . . . . . . . . . . . . .18-19
EEOC v. Seafarers Int'l Union,
394 F.3d 197 (4th Cir. 2005). . . . . . . . . . . . . . . 36
EEOC v. Shell Oil Co.,
466 U.S. 54 (1984). . . . . . . . . . . . . . . . . . .40-41
EEOC v. U.S. Steel Corp.,
671 F. Supp. 351 (W.D. Pa. 1987). . . .21-22, 24, 29, 39, 42
EEOC v. Waffle House,
534 U.S. 279 (2002) . . . . . . . . . . . . . . . . . .41-42
EEOC v. Wilson Metal Casket Co.,
24 F.3d 836 (6th Cir. 1994) . . . . . . . . . . . . . . . 50
Everson v. Mich. Dep't of Corr.,
391 F.3d 737 (6th Cir. 2004). . . . . . . . . . . . . . . 38
Faris v. Williams WPC-I, Inc.,
332 F.3d 316 (5th Cir. 2003). . . . . . . . . . . . . . . 43
Frank v. United Air Lines, Inc.,
216 F.3d 845 (9th Cir. 2000). . . . . . . . . . . . . . . 38
Franks v. Bowman Transp. Co., Inc.,
424 U.S. 747 (1976) . . . . . . . . . . . . . . . . . . . 50
Gen. Tel. Co. of N.W., Inc. v. EEOC,
446 U.S. 318 (1980) . . . . . . . . . . . . . . . . . . . 40
Gilmer v. Interstate/Johnson Lane Corp.,
500 U.S. 20 (1991) . . . . . . . . . . . . . . . . . . . 42
Hazen Paper Co. v. Biggins,
507 U.S. 604 (1993) . . . . . . . . . . . . . . . . . . . 37
Healey v. Southwood Psychiatric Hosp.,
78 F.3d 128 (3d Cir. 1996). . . . . . . . . . . . . . . . 38
Hishon v. King & Spalding,
467 U.S. 69 (1984). . . . . . . . . . . . . . . . . . 14, 25
Howlett v. Holiday Inns, Inc.,
120 F.3d 598 (6th Cir. 1997). . . . . . . . . . . . . . . 48
Int'l Union, UAW v. Johnson Controls,
499 U.S. 187 (1991) . . . . . . . . . . . . . . . . . . . 37
Johnson v. Univ. of Cincinnati,
215 F.3d 561 (6th Cir. 2000). . . . . . . . . . . . . . . 19
Kralman v. Ill. Dep't of Veterans' Affairs,
23 F.3d 150 (7th Cir. 1994) . . . . . . . . . . . . . . . 36
Lorance v. AT&T Techs., Inc.,
490 U.S. 900 (1989) . . . . . . . . . . . . . . . . . . . 37
Lovejoy-Wilson v. NOCO Motor Fuel, Inc.,
263 F.3d 208 (2d Cir. 2001) . . . . . . . . . . . . . 27, 35
McCall v. U.S. Postal Service,
839 F.2d 664 (Fed. Cir. 1988) . . . . . . . . . . . . . . 43
McKnight v. General Motors Corp.,
908 F.2d 104 (7th Cir. 1990). . . . . . . . . . . . . . . 29
Meritor Sav. Bank FSB v. Vinson,
477 U.S. 57 (1986). . . . . . . . . . . . . . . . . . . . 21
Mich. Prot. & Advocacy Serv., Inc. v. Babin,
18 F.3d 337(6th Cir. 1994). . . . . . . . . . . . . . . . 34
Minadeo v. ICI Paints,
398 F.3d 751 (6th Cir. 2005). . . . . . . . . . . . . . . 16
Mondzelewski v. Pathmark Stores, Inc.,
162 F.3d 778 (3d Cir. 1998) . . . . . . . . . . . . . . . 35
NLRB v. Coca-Cola Co. Foods Div.,
670 F.2d 84 (7th Cir. 1982) . . . . . . . . . . . . . . . 32
NLRB v. Gissel Packing Co.,
395 U.S. 575 (1969) . . . . . . . . . . . . . . . . . . . 32
Nev. Dep't of Human Res. v. Hibbs,
538 U.S. 721 (2003) . . . . . . . . . . . . . . . . . 15, 37
Nguyen v. Cleveland,
229 F.3d 559 (6th Cir. 2000). . . . . . . . . . . . . 15, 38
Northcross v. Bd. of Educ. of Memphis City Schs.,
412 U.S. 427 (1973) . . . . . . . . . . . . . . . . . . . 33
Occidental Life Ins. Co. of Cal. v. EEOC,
432 U.S. 355 (1977) . . . . . . . . . . . . . . . . . . . 40
Robinson v. Shell Oil Co.,
519 U.S. 337 (1997) . . . . . . . . . . . . . 12, 19, 29, 38
Smith v. City of Salem,
378 F.3d 566 (6th Cir. 2004). . . . . . . . . . . . . . . 27
Tasty Baking Co. v. NLRB,
254 F.3d 114 (D.C. Cir. 2001) . . . . . . . . . . . . .31-32
Town of Newton v. Rumery,
480 U.S. 386 (1987) . . . . . . . . . . . . . . . . . . . 47
Walborn v. Erie County Care Facility,
150 F.3d 584 (6th Cir. 1998). . . . . . . . . . . . . . . 27
Wastak v. Lehigh Valley Health Network,
342 F.3d 281 (3d Cir. 2003) . . . . . . . . . 10, 36, 43, 52
Weigel v. Baptist Hosp. of E. Tenn.,
302 F.3d 367 (6th Cir. 2002). . . . . . . . . . . . . . . 27
White v. Burlington N. & Santa Fe Railway Co.,
364 F.3d 789 (6th Cir. 2004). . . . . . . . . . . . . . . 27
Statutes
Equal Pay Act of 1963,
29 U.S.C. § 206(d). . . . . . . . . . . . . . . . . . passim
Title VII of the Civil Rights Act of 1964,
42 U.S.C. §§ 2000e et seq.. . . . . . . . . . . . . . passim
Age Discrimination in Employment Act of 1967,
29 U.S.C. §§ 621 et seq.. . . . . . . . . . . . . . . passim
Americans with Disabilities Act of 1990,
42 U.S.C. §§ 12101 et seq.. . . . . . . . . . . . . . passim
TABLE OF AUTHORITIES (con't)
Page
28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . .2
28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . .2
28 U.S.C. § 1337 . . . . . . . . . . . . . . . . . . . . . . . .2
28 U.S.C. § 1343 . . . . . . . . . . . . . . . . . . . . . . . .2
28 U.S.C. § 1345 . . . . . . . . . . . . . . . . . . . . . . . .2
29 U.S.C. § 158(a)(1). . . . . . . . . . . . . . . . . . . . . 31
29 U.S.C. § 211. . . . . . . . . . . . . . . . . . . . . . . . 41
29 U.S.C. § 215(a)(3). . . . . . . . . . . . . . . . . . . . . 18
29 U.S.C. § 216(b) . . . . . . . . . . . . . . . . . . . . . . 49
29 U.S.C. § 623(d) . . . . . . . . . . . . . . . . . . . . . . 18
29 U.S.C. § 626(a) . . . . . . . . . . . . . . . . . . . . . . 41
29 U.S.C. § 626(b) . . . . . . . . . . . . . . . . . . . . 49, 53
29 U.S.C. § 626(c) . . . . . . . . . . . . . . . . . . . . . . 53
29 U.S.C. § 626(d) . . . . . . . . . . . . . . . . . . . . . . 53
29 U.S.C. § 626(f)(4). . . . . . . . . . . . . . . .14, 18, 35-36
29 U.S.C. § 628. . . . . . . . . . . . . . . . . . . . . . . . 36
29 U.S.C. § 2615(a)(1) . . . . . . . . . . . . . . . . . . . . 32
42 U.S.C. § 3617 . . . . . . . . . . . . . . . . . . . . . . . 33
42 U.S.C. § 2000e-3(a) . . . . . . . . . . . . . . . . . . . . 18
42 U.S.C. § 2000e-5(b) . . . . . . . . . . . . . . . . . . 41, 53
42 U.S.C. § 2000e-5(f)(1). . . . . . . . . . . . . . . . . . . 53
42 U.S.C. § 2000e-5(g)(1). . . . . . . . . . . . . . . . . . . 49
42 U.S.C. § 12117(a) . . . . . . . . . . . . . . . . . 41, 49, 53
42 U.S.C. § 12203(a) . . . . . . . . . . . . . . . . . . . . . 18
42 U.S.C. § 12203(b) . . . . . . . . . . . . . . . 15, 18, 31, 34
42 U.S.C. § 12203(c) . . . . . . . . . . . . . . . . . . . . . 49
Legislative History
H.R. Rep. No. 485(II), 101st Cong., 2d Sess. 138 (1990),
reprinted in 1990 U.S.C.C.A.N. 303. . . . . . . . . . . . 33
Regulations
24 C.F.R. § 100.400. . . . . . . . . . . . . . . . . . . . . . 33
29 C.F.R. § 1622(k). . . . . . . . . . . . . . . . . . . . . . 36
29 C.F.R. § 1625.22(i)(2). . . . . . . . . . . . . . . . . . . 52
29 C.F.R. § 1625.22(i)(3). . . . . . . . . . . . . . . . . . . 36
29 C.F.R. § 1625.23(b) . . . . . . . . . . . . . . . . . . . . 52
TABLE OF AUTHORITIES (con't)
Page
29 C.F.R. § 1626.15(b) . . . . . . . . . . . . . . . . . . . . 53
29 C.F.R. § 1630.12(b) . . . . . . . . . . . . . . . . . . . . 31
Rules
Fed. R. App. P. 4(a)(1)(B) . . . . . . . . . . . . . . . . . . .2
Fed. R. App. P. 32(a)(5) . . . . . . . . . . . . . . . . . . . 55
Fed. R. App. P. 32(a)(6) . . . . . . . . . . . . . . . . . . . 55
Fed. R. App. P. 32(a)(7)(B). . . . . . . . . . . . . . . . . . 55
Fed. R. App. P. 32(a)(7)(B)(iii) . . . . . . . . . . . . . . . 55
Fed. R. App. P. 34(a)(2)(C). . . . . . . . . . . . . . . . . . .1
Fed. R. Civ. P. 56(c). . . . . . . . . . . . . . . . . . . . . 17
6 Cir. R. 26.1(a). . . . . . . . . . . . . . . . . . . . . . . .i
6 Cir. R. 28(c). . . . . . . . . . . . . . . . . . . . . . . . iv
6 Cir. R. 28(d). . . . . . . . . . . . . . . . . . . . . . . .A-3
6 Cir. R. 30(f). . . . . . . . . . . . . . . . . . . . . . . .A-4
6 Cir. R. 34(a). . . . . . . . . . . . . . . . . . . . . . . . .1
6 Cir. R. 34(j)(2)(C). . . . . . . . . . . . . . . . . . . . . .1
TABLE OF AUTHORITIES (con't)
Page
Administrative Guidance
EEOC Compl. Man., Section 8: Retaliation (1998),
(available at http://www.eeoc.gov/policy/docs/retal.html) . . 18-20
EEOC Notice 915.001: EEOC Enforcement Guidance on
Non-Waivable Rights under EEOC Enforced Statutes (1997),
(available at http://www.eeoc.gov/policy/docs/waiver.html) . 20-21, 41-42
Miscellaneous
B. Lindemann & P. Grossman, Employment Discrimination Law
(3d ed. 1996) . . . . . . . . . . . . . . . . . . . . . . .41
STATEMENT IN SUPPORT OF ORAL ARGUMENT
This appeal requires this Court to interpret and apply the anti-retaliation
provisions of the four principal federal employment discrimination
laws – the Equal
Pay Act of 1963 (the "EPA"), 29 U.S.C. § 206(d), Title VII of the
Civil Rights Act
of 1964 ("Title VII"), 42 U.S.C. §§ 2000e et seq., the Age Discrimination in
Employment Act of 1967 (the "ADEA"), 29 U.S.C. §§ 621 et seq., and the Americans
with Disabilities Act of 1990 (the "ADA"), 42 U.S.C. §§ 12101 et seq.
This appeal
requires this Court to decide whether an employer retaliates in
violation of these laws
if the employer refuses to pay its employees severance benefits unless
the employees
agree to waive their right to file a charge with the EEOC and/or to
participate in
EEOC proceedings. This appeal also requires this Court to decide
whether the district
court appropriately exercised its broad discretion to award equitable
relief necessary
to eradicate the effects of illegal discrimination. Due to the
importance of these
issues, plaintiff-appellee Equal Employment Opportunity Commission believes oral
argument would significantly aid this Court's decisional process. See
Fed. R. App.
P. 34(a)(2)(C); 6 Cir. R. 34(j)(2)(C). The EEOC thus asks this Court
to grant oral
argument in this matter. See 6 Cir. R. 34(a).
STATEMENT ON JURISDICTION
The EEOC filed this lawsuit against SunDance Rehabilitation Corporation
under the four main federal employment discrimination laws. (R.1,<1>
Complaint pgs.1-
3, Apx.7-9.<2>) The district court thus had jurisdiction over the
EEOC's suit under 28
U.S.C. §§ 1331, 1337, 1343, and 1345. The district court entered
final judgment in
favor of the EEOC on July 26, 2004. (R.44, Judgment Entry Order, Apx.212.)
SunDance filed a timely notice of appeal on September 23, 2004.
(R.46, Notice of
Appeal, Apx.215.) See Fed. R. App. P. 4(a)(1)(B). This Court has appellate
jurisdiction under 28 U.S.C. § 1291.
STATEMENT OF THE ISSUES
• Whether the district court correctly ruled that portions of SunDance's
severance agreement violate the anti-retaliation provisions of
the EPA, Title
VII, the ADEA, and the ADA.
• Whether the district court's order should be affirmed as an
appropriate exercise
of the district court's discretion to award equitable relief
required to remedy
illegal discrimination.
STATEMENT OF THE CASE
A. The Nature of the Case and the Course of Proceedings
The EEOC filed this lawsuit on August 1, 2001, alleging that SunDance's use
of a "Severance Agreement and General Release" – conditioning severance benefits
on the waiver of the right to engage in statutorily-protected EEOC-related
administrative activity – violated the anti-retaliation provisions of
the four principal
federal employment discrimination laws. (R.1, Complaint, Apx.7.)
According to the
Commission's Complaint, "[s]ince at least March 5, 1999, Defendant SunDance has
engaged in continuing unlawful employment practices at its North Olmsted, Ohio,
facility" including "retaliating against individuals affected by its [severance
agreement] . . . because of their right to file a charge with the EEOC
or participate in
an EEOC investigation or proceeding." (R.1, Complaint pgs.4, 5, 6 ¶¶
11, 14, 16, 18,
Apx.10,11,12.) Accordingly, the EEOC sought an order providing injunctive and
affirmative relief, including (1) reforming the relevant severance agreement to
expressly permit employees to file charges with the EEOC and participate in EEOC
investigations or proceedings without losing their severance pay; (2)
paying charging
party Elizabeth Salsbury and similarly situated individuals severance
pay; and (3)
instituting further measures to remove barriers to employees who wish
to file a charge
with the EEOC or participate in an EEOC investigation or proceeding. (R.1,
Complaint pg.7 Prayer for Relief ¶ D, Apx.13.). The EEOC also sought an order
requiring SunDance to deliver a corrective notice to former employees
and tolling all
limitations periods for filing charges or claims. (R.1, Complaint
pg.7 Prayer for
Relief ¶ D, Apx.13.)
Both sides moved for summary judgment. (R.24, SunDance's Motion for SJ);
(R.33, EEOC's Cross Motion for SJ.) A Magistrate Judge recommended that the
EEOC's motion for summary judgment be denied and that SunDance's motion for
summary judgment be granted. (R.39, Magistrate Judge's Report and
Recommendation ("R&R", Apx.136.) The EEOC filed objections to the Magistrate
Judge's R&R. (R.41, EEOC's Objections to R&R, Apx.152.) On July 26, 2004, the
district court rejected the Magistrate Judge's R&R, denied SunDance's motion for
summary judgment, and granted the EEOC's motion for summary judgment. (R.43,
Memorandum of Opinion and Order Denying SunDance's Motion for SJ and
Granting EEOC's Motion for SJ (the "O&"O), Apx.188.) The district court
simultaneously entered judgment for the EEOC. (R.44, Judgment Entry Order,
Apx.212.) SunDance then appealed. (R.46, Notice of Appeal, Apx.215.)
B. Statement of Facts
SunDance is a Connecticut corporation doing business in at least 35 states,
including Ohio. (R.7, Answer pg.2 ¶ 4). In and around the beginning of 1999,
SunDance terminated a multitude of employees as part of a company-wide
reduction-
in-force ("RIF"). (R.24, McNett Aff. pg.1 ¶ 2, Apx.29.); (R.25, Smith Decl.
Docs.321-23, Apx.81-83.); (R.25, Salsbury Decl. Ex.A-1 Doc.87, Apx.66.)
SunDance offered severance benefits to all employees terminated
in the RIF.
(R.25, Smith Decl. Doc.321, Apx.81.) However, SunDance's severance policy
explicitly states that SunDance's offer of severance does not apply to
employees who
"[h]ave not signed an approved Separation Agreement and General Release" (the
"Release") (R.25, Smith Decl. Doc.321, Apx.81); (R.25, Smith Decl. Doc.322,
Apx.82.) The Release included the following language:
Severance Pay: . . . . Releasor promises . . . not to make any statements
or take any actions that would reflect negatively upon [SunDance].
Failure of the Releasor to comply with this agreement will result in the
immediate repayment by Releasor of the total severance amount to
[SunDance].
General Release: In consideration of the payment made to Releasor by
[SunDance], Releasor . . . does hereby voluntarily and knowingly
release [SunDance] . . . from any and all claims . . . arising before the
execution of this Release . . . . This . . . includes but is not
limited to any
claims which Releasor may have . . . under federal or state law
prohibiting employment discrimination . . . including without limitation
[Title VII and the ADA] . . . . Releasor . . . expressly agrees
that she will
not . . . pursue any proceeding, action, complaint, claim, charge, or
grievance against [SunDance] . . . in any administrative, judicial or
other forum whatsoever . . . .
Return of Severance Pay: . . . [If] this Agreement [is] violated, Releasor
agrees that [SunDance] shall have the right to . . . injunctive relief and
damages . . . including the right to the return of the entire amount of the
consideration paid by [SunDance] under this Agreement, plus any other
damages proven, including reasonable attorneys' fees and costs.
Releasor further expressly agrees that if any portion of this Agreement
and the Release incorporated herein is ruled to be unenforceable as the
result of a challenge brought by the Releasor to the Agreement's or
release's validity, then Releasor shall return to the Company the entire
amount of consideration paid hereunder. . . .
Confidentiality: Releasor agrees to hold strictly in confidence the
terms, amount, and fact of this Release. Releasor will not disclose any
such information, orally or in writing, to anyone else . . . .
(R.25, Salsbury Decl. Ex.A-1 Docs.90-93, Apx.68-70 (emphasis added).)
Elizabeth Salsbury, who worked in SunDance's North Olmsted, Ohio office as
a speech-language pathologist, was discharged on March 1, 1999, in
conjunction with
SunDance's company-wide RIF. (R.24, McNett Aff. pg.1 ¶ 3, Apx.29-30); (R.25,
Salsbury Decl. pgs.1-2 ¶¶ 1, 2, Apx.62-63); (R.25, Salsbury Decl. Ex.A-1 Doc.87,
Apx.66.) Under SunDance's severance policy, Salsbury was entitled to
80 hours of
severance pay. (R.25, Salsbury Decl. Ex.A-1 Doc.87, Apx.66); (R.25, Smith Decl.
Doc.323, Apx.83.) SunDance required Salsbury to sign the Release to get this
benefit. (R.25, Salsbury Decl. pg.2 ¶ 3, Apx.63); (R.25, Salsbury Decl. Ex.A-1
Doc.87, Apx.66 (". . . [Y]ou will receive 80 hours of severance pay .
. . after you sign
a Separation Agreement and General release . . .")); (R.25, Salsbury
Decl. Ex.A-1
Doc.88, Apx.67); (R.25, Salsbury Decl. Ex.A-1 Doc.90, Apx.68.)
Salsbury believed that SunDance discriminated against her on the
basis of her
sex by denying her a promotion in 1998 and then including her in the
RIF in 1999.
(R.25, Salsbury Decl. pg.2 ¶ 5, Apx.63); (R.25, Salsbury Decl. Ex.A-2 Charge of
Discrimination, Apx.72.) She thus wanted to file a charge of sex discrimination
against SunDance with the EEOC. (R.25, Salsbury Decl. pg.2 ¶ 5,
Apx.63.) Because
the Release would prohibit Salsbury from reporting this alleged
discrimination to the
EEOC – and would subject her to a suit by SunDance to reclaim the severance
benefits and for lawyers' fees and costs if she did file an EEOC
charge – Salsbury
believed she could not sign the Release. (R.25, Salsbury Decl. pg.2
¶¶ 5, 6, Apx.63.)
Salsbury inquired of SunDance's Human Resources department whether she
could strike out the part of the Release prohibiting her from filing a
charge with the
EEOC. (R.25, Salsbury Decl. pg.2 ¶ 7, Apx.63.) A SunDance representative
informed Salsbury she could not alter the agreement, and told her that most
terminated employees simply signed the Release to get their severance payment.
(R.25, Salsbury Decl. pgs.2-3 ¶ 7, Apx.63-64.) Salsbury decided not
to sign. (R.25,
Salsbury Decl. pg.3 ¶ 8, Apx.64.) Instead, on April 20, 1999, she
filed a charge of
sex discrimination with the EEOC challenging SunDance's failure to
promote her and
its decision to discharge her. (Id.); (R.25, Salsbury Decl. Ex.A-2 Charge of
Discrimination, Apx.72.) Salsbury's charge also stated:
I was . . . asked to sign a separation agreement, general release and
covenant not to sue agreement in order to get a lump sum payment of 80
hours. I did not sign this release because I believe it violates the Laws
administered by the EEOC.
(R.25, Salsbury Decl. Ex.A-2 Charge of Discrimination, Apx.72.)
In a Determination Letter dated September 30, 1999, the Commission found
that there was not reasonable cause to believe that SunDance had
refused to promote
and/or had terminated Salsbury because of her sex. (R.24, McNett Aff. Ex.A-3
Doc.12, Apx.38.) However, the EEOC did find that the Release "may produce a
chilling effect, thereby undermining the Commission's ability to
enforce the ADEA,
Title VII, the EPA and the ADA," and that parts of the Release "may
intimidate or
have the effect of intimidating employees and create disincentives for them to
cooperate with EEOC in safeguarding the public interest." (R.24,
McNett Aff. Ex.A-
3 Doc.13, Apx.39.) The EEOC thus concluded there was reasonable cause
to believe
that by asking Salsbury to sign the Release, SunDance violated the
anti-retaliation
provisions of the EPA, Title VII, the ADEA, and the ADA.<3> (Id.)
C. The District Court's Decision
In its decision granting the EEOC's motion for summary judgment,
the district
court noted that the EEOC "is responsible for bringing actions for the
public good,
such as the one in this case, on behalf of a group of people subject
to a retaliatory
policy." (R.43, O&O pg.22, Apx.209.) The district court recognized
that "the thrust
of the EEOC's argument is that the SunDance Separation Agreement is facially
retaliatory" – that is, that it is a per se violation of the
anti-retaliation provisions of
the EPA, Title VII, the ADEA, and the ADA. (R.43, O&O pgs.8, 10, 11,
12, 17, 18,
23, Apx.195,197,198,199,204,205.) The district court then explained
that the gist of
this "facial retaliation claim is that even before either party takes any action
(engaging in protected activity or adverse employment action), the
policy by its terms
authorizes the employer to take adverse employment action once an employee does
engage in some protected activity." (R.43, O&O pg.17 n.8, Apx.208.)
Here, the district court pointed out, the Release allows SunDance to seek
injunctive relief and damages – including the return of the severance
payment – if
signing employees violate the terms of the Release by filing a charge
with the EEOC.
(R.43, O&O pg.18, Apx.205.) The district court concluded, relying primarily on
EEOC v. Board of Governors of State Colleges & Universities, 957 F.2d
424 (7th Cir.
1992), that this was a classic case of a per se retaliatory employment
practice. (R.43,
O&O pg.19, Apx.206.) According to the district court, "when an
employer requires
an employee as part of a separation agreement to give up her right to
file a charge
with the EEOC in exchange for severance benefits, the employer
violates the anti-
retaliation provisions of the laws enforced by the EEOC." (R.43, O&O pg.20,
Apx.207.) The District Court held that "the provision of the SunDance
Separation
Agreement conditioning severance payments on an employee agreeing not to file a
charge with the EEOC is facially retaliatory in violation of the ADA, ADEA, EPA,
and Title VII."<4> (R.43, O&O pg.20, Apx.207.)
Accordingly, the district court ordered relief for Salsbury and
other "similarly
situated" individuals. The relief the district court ordered was
essentially the same
as the relief the EEOC requested in its Complaint. The district court
ordered that
SunDance:
• is "permanently enjoined from engaging in the institution, maintenance
and/or management of the portion of the April 1999 SunDance
Separation Agreement, or any other similar plan, requiring all
employees and former employees to waive their right to file a charge
with the EEOC or participate in an EEOC investigation or proceeding"
(R.43, O&O pg.23, Apx.210); (R.44, Judgment Entry Order pg.1,
Apx.212);
• is "permanently enjoined from retaliating because of an employee or
former employee's right to file a charge with the EEOC or
participate in
an EEOC investigation or proceeding" (R.43, O&O pg.23, Apx.210);
(R.44, Judgment Entry Order pg.2, Apx.213);
• must "institute and carry out policies, practices and programs which
provide equal employment opportunities for employees who wish to file
charges with the EEOC or participate in an EEOC investigation or
proceeding" (R.43, O&O pg.23-24, Apx.210-11); (R.44, Judgment
Entry Order pg.2, Apx.213);
• must "make whole [Salsbury] and other similarly situated employees"
and "reform the April 1999 SunDance Separation Agreement to
expressly permit all employees and former employees to file charges
with the EEOC and participate in EEOC investigations or proceedings
without losing their severance pay" (R.43, O&O pg.24, Apx.211);
(R.44, Judgment Entry Order pg.2, Apx.213);
• must "pay to [Salsbury] and other similarly situated employees any and
all withheld severance pay with prejudgment interest" (R.43, O&O
pg.24, Apx.211); (R.44, Judgment Entry Order pg.2, Apx.213); and
• must "deliver a corrective notice with a reformed [Release]
to [Salsbury]
and similarly situated employees." (R.43, O&O pg.24, Apx.211); (R.44,
Judgment Entry Order pg.2, Apx.213.)
The District Court further ordered that "[a]ll limitations
periods for filing a
charge or claim are tolled and will run anew from the date of actual
delivery of the
reformed notice." (R.43, O&O pg.24, Apx.211); (R.44, Judgment Entry
Order pg.2,
Apx.213.) The District Court also ordered SunDance to pay the EEOC's costs.
(R.43, O&O pg.24, Apx.211); (R.44, Judgment Entry Order pg.3, Apx.214.)
SUMMARY OF ARGUMENT
The district court correctly concluded that SunDance's Release
constitutes a
per se violation of the anti-retaliation rules found in all four
federal employment
discrimination laws. The primary purpose for these anti-retaliation rules is to
preserve, for victims of and witnesses to discrimination, "unfettered access to
statutory remedial mechanisms." Robinson v. Shell Oil Co., 519 U.S.
337 (1997).
These anti-retaliation provisions thus prohibit employers from taking
adverse actions
against employees or former employees who oppose unlawful discrimination or
participate in EEOC proceedings (e.g., file an EEOC charge or testify in an EEOC
investigation). The district court correctly ruled that the Release
in this case, like the
practice at issue in EEOC v. Board of Governors of State Colleges &
Universities,
957 F.2d 424 (7th Cir. 1992), embodies an employer policy which
conditions benefits
on the waiver of the right to engage in these statutorily-protected
activities, and as
such is per se retaliatory and constitutes a facial violation of all
four federal anti-
discrimination laws.
On its face, SunDance's Release is a preemptive strike against
future protected
activity. By design, it seeks to prevent discharged employees from ever filing
charges with the EEOC and participating in any EEOC proceeding. Under the
Release, SunDance refuses to pay severance benefits unless and until putative
recipients relinquish their right to oppose unlawful employment practices and
participate in administrative anti-discrimination proceedings (e.g.,
by filing charges
of discrimination with the EEOC). Under the Release, SunDance threatens
retribution – in the form of a lawsuit for return of severance and
additional damages,
attorneys' fees, and costs – should a signatory subsequently engage in
such protected
activity. SunDance is thus using the Release – the fear of economic
retaliation – to
chill discharged employees from reporting to the United States
government alleged
violations of the federal civil rights employment laws.
It is clear from the statutory language of the anti-retaliation
clauses, the
legislative purposes underlying these rules, and case law that this
type of preemptive
retaliatory policy is illegal. The only Circuit decision to address
this issue, the
Seventh Circuit's opinion in Board of Governors, held as much. SunDance's
attempts to distinguish Board of Governors are unconvincing. SunDance
argues, for
example, that Board of Governors is inapposite because it dealt with a
"bargained for
employment benefit – the right to file a grievance pursuant to a
collective bargaining
agreement." Yet the Supreme Court made clear in Hishon v. King & Spalding, 467
U.S. 69, 75 (1984), that the fact that SunDance was under no obligation to pay
severance at all does not free it to do so on a discriminatory basis.
SunDance also
claims that Board of Governors was a classic "retaliation" case – not
what SunDance
calls a "pretaliation" case. This misreads Board of Governors. The
Seventh Circuit
there clearly was concerned with the very existence of a retaliatory
policy – not just
with how the policy was actually implemented in any particular case. Board of
Governors ruled that a policy that preemptively permits prospective punishment
violates, on its face, the anti-retaliation laws. The Release
contains such a policy.
SunDance is grasping at straws in arguing that the district court
erred because
the statutes make no mention of and do not define "per se" retaliation
or "facial"
violations. The plain text of the ADEA (at 29 U.S.C. § 626(f)(4)) and
the ADA (at
42 U.S.C. § 12203(b)) makes it illegal for employers to use a waiver
like the Release
to interfere with or threaten an employee's exercise or enjoyment of statutorily
protected rights, such as the right to file a charge and participate in EEOC
proceedings. SunDance ignores this statutory language. In insisting
that the statutes
must specifically provide for "per se" or "facial" retaliation,
SunDance also reads the
other anti-retaliation rules far too restrictively. Indeed, the word
"retaliation" does
not appear in the statutes, either. Moreover, the familiar concept of "facial"
discrimination is well established in fair employment jurisprudence.
See, e.g., Nev.
Dep't of Human Res. v. Hibbs, 538 U.S. 721, 732 (2003); Nguyen v. Cleveland, 229
F.3d 559, 563 (6th Cir. 2000). These terms embody a descriptive tool
helpful in the
identification of discriminatory conduct. The fact that these words
are not explicitly
referenced in statutory provisions is immaterial.
In short, given the plain language of the anti-retaliation
statutes, the legislative
purposes and public policy underlying these rules (the critical need
to ensure that
employees remain free to report unlawful employment practices to law enforcement
agencies), and the sound reasoning from Board of Governors, this Court
should find
that provisions of the Release here are illegal. It should therefore
affirm the district
court's grant of summary judgment.
This Court should also find that the district court's relief
order was not an
abuse of discretion. District courts have broad latitude to fashion appropriate
equitable relief to remedy discrimination. SunDance contends that
Salsbury waived
her right to file any lawsuit against SunDance, and that the district
court exceeded the
scope of its authority by tolling the statute of limitations for
"claims." However, the
district court never decided whether the Release constituted a valid
waiver of the right
to file all lawsuits against SunDance (only that the non-retaliatory
part of the Release
was enforceable to the extent permitted by law). That was never an
issue in this case
and can always be raised by SunDance later in a more appropriate forum – as a
defense to any signatory-initiated lawsuit. This Court should therefore decline
SunDance's invitation to reverse this part of the district court's
relief order tolling the
statute of limitations for "claims," and should instead affirm the
relief order in its
entirety.
ARGUMENT
A. Standard of Review
This Court reviews a district court's grant of a motion for
summary judgment
de novo. Clark v. United Parcel Serv., Inc., 400 F.3d 341, 347 (6th
Cir. 2005). In
conducting this review, this Court applies the same summary judgment
standard the
district court used. Minadeo v. ICI Paints, 398 F.3d 751, 756 (6th Cir. 2005).
Summary judgment is proper if the pleadings, depositions, answers to
interrogatories,
and affidavits (if any) show that there is no genuine issue as to any
material fact and
that the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(c);
see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
This Court reviews awards of injunctive relief in discrimination claims for
abuse of discretion. Barnes v. City of Cincinnati, 401 F.3d 729, 738
(6th Cir. 2005).
B. The District Court Correctly Held that SunDance Violated the
Anti-Retaliation Rules in the EPA, Title VII, the ADEA, and the ADA
The district court ruled that SunDance's Release on its face
violates the anti-
retaliation provisions of the EPA, Title VII, the ADEA, and the ADA.
In its opening
brief, SunDance argues that the EEOC is pushing a "novel theory" here – that the
EEOC is seeking "to secure the judicial creation of a new species of employment
discrimination for which there is no basis in existing federal employment
discrimination statutes." SunDance Brief at 5, 7, 10; see also Amici
Brief at 7.
Contrary to SunDance's claims, there is nothing new or novel about the
EEOC's legal
theory. More importantly, there is ample statutory and judicial
support for the district
court's ruling that portions of SunDance's Release constitute a
facially retaliatory
employment policy and are per se violations of the anti-retaliation
provisions of all
four employment discrimination statutes. Accordingly, the district
court's decision
invalidating parts of the Release should be affirmed.
The EPA, Title VII, the ADEA, and the ADA all prohibit employers from
retaliating against an employee or former employee for engaging in protected
activity. Such protected activity includes filing a charge,
testifying, assisting, or
participating in any manner in any EEOC investigation, proceeding, or
hearing under
one of the four principal employment discrimination statutes
("participation"). See
29 U.S.C. § 215(a)(3) (EPA); 42 U.S.C. § 2000e-3(a) (Title VII); 29 U.S.C.
§§ 623(d), 626(f)(4) (ADEA); 42 U.S.C. §§ 12203(a), (b) (ADA); see
also Abbott v.
Crown Motor Co., Inc., 348 F.3d 537, 542-43 (6th Cir. 2003) (analyzing the
protections for "participation"); EEOC Compl. Man., Section 8:
Retaliation at 8-1
§ 8-I(A) (1998) (available at http://www.eeoc.gov/policy/docs/retal.html) ("EEOC
Compl. Man.") (same). Protected activity also includes opposing a practice made
unlawful under these laws ("opposition"). See 29 U.S.C. § 215(a)(3) (EPA); 42
U.S.C. § 2000e-3(a) (Title VII); 29 U.S.C. §§ 623(d), 626(f)(4)
(ADEA); 42 U.S.C.
§§ 12203(a), (b); see also Johnson v. Univ. of Cincinnati, 215 F.3d
561, 579-80 (6th
Cir. 2000) (discussing the protections for "opposition") (same); EEOC
Compl. Man.
at 8-1 § 8-I(A) (same).
In Robinson v. Shell Oil Co., 519 U.S. 337 (1997), the Supreme Court
explained that a "primary purpose" for these anti-retaliation protections is
"[m]aintaining unfettered access to statutory remedial mechanisms."
Id. at 346.
Similarly, this Court, in EEOC v. Ohio Edison Co., 7 F.3d 541 (6th Cir. 1993),
recognized that in enacting these provisions, "Congress unmistakably intended to
ensure that no person would be deterred from exercising his rights under
[employment discrimination laws] by the threat of discriminatory
retaliation." Id. at
543. According to this Court, the rationale for the anti-retaliation
rules is to prevent
"fear of economic retaliation from inducing employees quietly to
accept [unlawful]
conditions" – and to ensure that "all persons with information about
unfair labor
practices [remain] completely free from coercion against reporting
them." Id. at 544,
545 (internal citations and quotations omitted). As the EEOC's
compliance manual
explains:
Voluntary compliance with and effective enforcement of the anti-
discrimination statutes depend in large part on the initiative of
individuals to oppose employment practices that they reasonably believe
to be unlawful, and to file charges of discrimination. If retaliation for
such activities were permitted to go unremedied, it would have a chilling
effect upon the willingness of individuals to speak out against
employment discrimination or to participate in the EEOC's
administrative process or other employment discrimination proceedings.
EEOC Compl. Man. at 8-1 – 8-2 § 8-I(A).
Given this reasoning, the EEOC has long taken the position that employer
policies that purport to restrict the protected activity of employees or former
employees are a per se violation of the anti-retaliation rules found
in all four principal
federal employment discrimination laws. According to the EEOC's 1997 guidance
on this issue:
Some employers attempt to limit an individual's right to file a charge or
participate in an EEOC proceeding by requiring him or her to sign an
agreement in which s/he relinquishes these statutory rights . . . .
Notwithstanding the format or context of the agreement in which such
language might appear . . . [a]greements extracting such promises from
employees . . . amount to separate and discrete violations of the anti-
retaliation provisions of the civil rights statutes . . . .
Agreements that
attempt to bar individuals from filing a charge or assisting in a
Commission investigation run afoul of the anti-retaliation provisions
because they impose a penalty upon those who are entitled to engage in
protected activity under one or more of the statutes enforced by the
Commission. By their very existence, such agreements have a chilling
effect on the willingness and ability of individuals to come forward with
information that may be of critical import to the Commission as it seeks
to advance the public interest in the elimination of unlawful
employment discrimination.
EEOC Notice 915.001: EEOC Enforcement Guidance on Non-Waivable Employee
Rights under EEOC Enforced Statutes at §§ II, III(B) (1997) (available at
http://www.eeoc.gov/policy/docs/waiver.html) ("EEOC's Enforcement Guidance")
(emphasis added).
The only Circuit court squarely to address this issue recognizes
the illegality
of such preemptive retaliation. In EEOC v. Board of Governors of
State Colleges &
Universities, 957 F.2d 424 (7th Cir. 1992), a collective bargaining
agreement denied
the right to grievance proceedings to any employee who also sought
redress for the
relevant wrong in a different forum – such as by filing an EEOC
charge. The EEOC
argued that this agreement, on its face, violated the ADEA's
anti-retaliation clause.
The Seventh Circuit agreed, reasoning that this policy allowed the
employer to take
an adverse action (terminating or withholding grievance proceedings) precisely
because an employee engaged in protected activity (filing a charge). Such an
anticipatory policy, the Seventh Circuit ruled, was facially
retaliatory and thus
violated the ADEA's anti-retaliation clause. Id. at 431; see also
EEOC v. U.S. Steel
Corp., 671 F. Supp. 351, 358-59 (W.D. Pa. 1987), rev'd on other
grounds, 921 F.2d
489 (3d. Cir. 1990) (similarly finding that a policy premising the provision of
enhanced retirement benefits on an employee's waiver of the right to
file an EEOC
charge and to participate in an EEOC proceeding is a per se violation
of the ADEA's
anti-retaliation rule; stating that "[t]he mere possibility that this
[condition] would
deter individuals from participating in any ADEA claims is sufficient
to render it
violative of [the ADEA's anti-retaliation clause] and public policy").
The district court in this case correctly found that the Seventh Circuit's
reasoning was persuasive and wholly applicable here, and that SunDance's Release
is the same sort of retaliatory employment policy invalidated by Board
of Governors.
The Release is a preemptive strike against participation in the
charge-filing process
and other law enforcement efforts designed to combat unlawful
discrimination. On
its face, it seeks to chill discharged employees from filing EEOC
charges and from
testifying, assisting, or participating in any manner in any EEOC-related
investigation, proceeding, or hearing. The Release prohibits – on
pain of suit for
return of severance, damages, attorneys' fees, and costs – (1) "mak[ing] any
statements or tak[ing] any actions that would reflect negatively upon
[SunDance]";
(2) "pursu[ing] any proceeding, action, complaint, claim, charge, or
grievance against
[SunDance] in any administrative, judicial or other forum" with
respect to "any acts
or events . . . in the course of Releasor's dealings with [SunDance]"; and (3)
disclosing "to anyone" anything about the "terms, amount, and fact" of
the Release.
SunDance thus effectively uses the fear of economic retaliation to coerce
former employees into relinquishing their statutorily-protected rights
to report and
assist in the investigation of unlawful employment practices.
SunDance refuses to
provide a substantial economic benefit (to which all discharged employees are
otherwise entitled) unless discharged employees sign away their right to file an
EEOC charge and participate in EEOC proceedings. SunDance also threatens
economic retribution against signatories who do engage in protected
opposition or
participation. For this reason, the district court correctly
concluded that the contested
portions of SunDance's Release are per se retaliatory and unenforceable. (R.43,
O&O pg.20, Apx.207 ("Board of Governors makes clear that a policy conditioning
an employment benefit on an employee's agreement not to file an EEOC charge
constitutes facial retaliation" and "this [c]ourt [therefore] holds
that the provision of
the SunDance Separation Agreement conditioning severance payments on an
employee agreeing not to file a charge with the EEOC is facially retaliatory in
violation of the ADA, ADEA, EPA, and Title VII").
SunDance asserts that the EEOC is pursuing a "new statutorily unsupportable
retaliation theory," and that there can be no such thing as per se
retaliation or a
facially retaliatory employment policy. SunDance Brief at 5, 7, 8;
see also Amici
Brief at 7, 13, 14. SunDance criticizes what it calls "pretaliation"
– "retaliation that
occurs even before the exercise of protected employee conduct." Id.;
see also Amici
Brief at 7, 14, 15. SunDance claims Board of Governors is inapposite. And
SunDance contends that "if Congress had intended to proscribe [this] form of
unlawful employment practice, it would have done so . . . ." Id. at
12. SunDance is
wrong on all counts.
Contrary to SunDance's contentions, there is nothing new or novel about the
EEOC's legal theory here. In 1992 in Board of Governors, the Seventh Circuit
explicitly adopted the EEOC's approach and ruled that an employment policy can
indeed be per se retaliatory; see also U.S. Steel Corp., 671 F. Supp. at 358-59
(holding the same as far back as 1987). Moreover, SunDance's attempt
to distinguish
Board of Governors is unconvincing.
SunDance alleges that Board of Governors is different because it "addresses
a bargained for employment benefit – the right to file a grievance
pursuant to the
employee's collective bargaining agreement." SunDance Brief at 18. Here by
contrast, SunDance claims, "[s]everance pay was not an earned, accrued
or legally-
required benefit of employment, but rather a voluntary offering that
was entirely
conditional upon her assenting to the Separation Agreement." Id.; see
also Amici
Brief at 8, 16, 18. SunDance thus seems to be saying that because
SunDance did not
have to offer Salsbury severance in the first place, it could premise
the provision of
this payment on any illegal condition it wanted to impose.
The Supreme Court has explicitly rejected this view. In Hishon v. King &
Spalding, 467 U.S. 69 (1984), the Supreme Court held that "[a] benefit
that is part
and parcel of the employment relationship may not be doled out in a
discriminatory
fashion, even if the employer would be free . . . not to provide the
benefit at all." Id.
at 75. In Board of Governors itself, the Seventh Circuit applied this
Hishon rule and
stated that even though the defendant "would be free not to provide grievance
proceedings, the [ADEA's anti-retaliation rule] prohibits the employer from
providing grievance proceedings only if an employee refrains from
participating in
activity that is protected under the ADEA." Board of Governors, 957
F.2d at 430.
Thus, it is clearly established that even though SunDance did not have to offer
severance benefits to Salsbury or anyone else, once it decided to provide these
payments to all employees terminated in the RIF (i.e., once this
benefit became "part
and parcel of the employment relationship [albeit one that was
ending]"), SunDance
was bound to distribute this benefit in a non-retaliatory manner.
SunDance's attempt
to distinguish Board of Governors on this basis is thus unpersuasive
and unavailing.
The district court here specifically and appropriately found as much.
(R.43, O&O
pg.19, Apx.206 (noting that "SunDance ignores the portion of the Board of
Governors opinion specifically recognizing that . . .the employer . .
. could not
administer the benefit in a discriminatory way" and providing that even though
"SunDance did not have to offer its terminated employees severance
packages, once
it decided to do so, it could not do so in a retaliatory manner").
The district court's
conclusion on this point should be affirmed.
SunDance also attempts to distinguish Board of Governors by noting that in
that case, "the retaliation contemplated by the statute (there the
ADEA) actually
materialized." SunDance Brief at 18. According to SunDance, Board of Governors
found that the defendant had violated the ADEA's anti-retaliation provision only
because an employee actually filed a charge and the defendant then actually
terminated grievance proceedings. Id. at 18-19. That is, SunDance
alleges, "Board
of Governors [was] a retaliation case – rather than a 'pretaliation'
case" – and it thus
"offers no support at all to the EEOC's position or the District
Court's decision"
finding facial retaliation. Id. at 19; see also Amici Brief at 7, 12,
14, 15. SunDance
mischaracterizes Board of Governors.
Even a cursory reading of Board of Governors reveals that the
Seventh Circuit
was concerned with the very existence of a retaliatory policy – not
merely with how
or whether the policy was actually implemented in any specific
instance. See Board
of Governors, 957 F.2d at 427 (emphasis added) (noting it was resolving a
"retaliatory policy case[]"); id. at 429 (emphasis added) (stating
"this case . . .
concerns a discriminatory policy"); id. at 430 (emphasis added) (reviewing "the
policy's legality"); id. (emphasis added) (analyzing whether the
relevant provision
of the "collective bargaining agreement is a retaliatory policy"). The Board of
Governors court examined whether the policy in question had a potential and
prospective chilling effect. See id. at 427 n.2 (emphasis added)
(subjecting the
questionable collective bargaining provision to "judicial scrutiny" in
part because
"the Board has not modified the policy to exclude future ADEA
claimants"); id. at
430 (emphasis added) (expressing concern because the challenged policy
"authorizes
the Board to take an adverse employment action (termination of the in-house
grievance proceeding) for the sole reason that the employee has
engaged in protected
activity (filing an ADEA claim)"); id. at 431 (emphasis added)
(scrutinizing whether
employee rights "would be . . . effectively stifled" and whether
employees "would
lose their right to grievance proceedings because they had filed ADEA
claims"). The
Seventh Circuit plainly held (and repeatedly emphasized throughout its
opinion) that
any such policy that preemptively permits prospective punishment – without more
– – violates, on its face, the anti-retaliation laws. See id. at 429
(". . . a retaliatory
policy constitutes a per se violation of [the ADEA's anti-retaliation
clause]"); id. at
430 (". . . the Board adopted a policy which impermissibly discriminates against
employees who file ADEA complaints"); id. (". . . if [the collective
bargaining clause]
authorized the Board to terminate grievance proceedings if and only if
an employee
filed an ADEA claim with the EEOC, that policy would be clearly discriminatory
under [the ADEA's anti-retaliation rule]"); see also U.S. Steel Corp.,
671 F. Supp. at
358-59 (emphasis added) (similarly invalidating an employment policy
conditioning
enhanced retirement benefits on a prospective waiver of statutory
rights because,
under this policy, an "individual might be deterred" and the policy
"has the potential
of deterring" protected opposition or participation; ruling that the
"mere possibility
that this [policy] would deter individuals from participating in any
ADEA claims"
rendered it invalid under the ADEA's anti-retaliation rule).
The district court in this case accurately interpreted and applied Board of
Governors. The district court pointed out, appropriately, that the
holding in Board
of Governors "is not based on the adverse action actually taken by the
employer."
(R.43, O&O pgs.19-20, Apx.206-07.) Rather, the district court
recognized, "the court
held the policy was, on its face, impermissibly retaliatory." (R.43, O&O pg.20,
Apx.207.) SunDance ignores this important aspect of the Board of Governors
decision and thus criticizes the district court for relying on that case.
SunDance also criticizes the district court for concluding that parts of
SunDance's Release are "facially retaliatory" even though this term is
"not defined
nor even mentioned in the applicable statutes." SunDance Brief at 13, 14-15.
SunDance suggests that the anti-retaliation clauses are devoid of any
"per se" policy
language, and that Congress would have explicitly provided for the terms "facial
retaliation" in the relevant statutory texts if it had intended to
prohibit such an
employment practice. Id. at 12. SunDance argues that the district
court's ruling is
therefore "contrary to well-settled maxims of statutory
interpretation, and should be
vacated, as it has no textual basis." Id. This is simply not true.
The text of the
relevant statutes themselves – as well as an abundance of decisional
law – compel a
different conclusion.
The ADA expressly provides that "[i]t shall be unlawful to
coerce, intimidate,
threaten, or interfere with any individual in the exercise or
enjoyment of, or on
account of his or her having exercised or enjoyed, or on account of
his or her having
aided or encouraged any other individual in the exercise or enjoyment
of, any right
granted or protected [under the ADA]." 42 U.S.C. § 12203(b) (emphasis
added); see
also 29 C.F.R. § 1630.12(b) (same). This sweeping statute, on its
face, makes it
illegal for SunDance to "coerce," "intimidate," "threaten" or
"interfere" – in the past,
currently, or prospectively – with respect to an employee's right to
oppose unlawful
practices or participate in statutory proceedings. By its plain
terms, this provision
manifests an intent to protect individuals from threatening or
coercive conduct that
might tend to interfere with the exercise of rights established under the ADA.
Notably, this ADA provision parallels the "interference"
provisions in other
federal statutes. For example, the National Labor Relations Act
("NLRA") contains
a provision making it unlawful for an employer "to interfere with,
restrain, or coerce
employees in the exercise of the rights guaranteed by [the Act]." 29 U.S.C.
§ 158(a)(1). This provision has been consistently interpreted as
applying to any
conduct that "tends to chill an employee's freedom to exercise his
[statutory] rights."
Cal. Acrylic Indus., Inc. v. NLRB, 150 F.3d 1095, 1099 (9th Cir.
1998). This Court
has held that this "interference" provision is violated if the
employer's action, when
viewed from the employee's point of view, has "a reasonable tendency
to coerce."
Dayton Newspapers, Inc. v. NLRB, 402 F.3d 651, 659 (6th Cir. 2005);
see also Tasty
Baking Co. v. NLRB, 254 F.3d 114, 124 (D.C. Cir. 2001) (employer's statement
violates the NLRA's "interference" provision if "considering the totality of the
circumstances, the statement has a reasonable tendency to coerce or
interfere with
[statutory] rights"). In particular, the provision reaches mere
threats to take adverse
actions against employees for the exercise of their statutory rights. Dayton
Newspapers, 402 F.3d at 659 ("[Threatening employees with . . . adverse
consequences . . . are well-established violations"); see also Tasty
Baking Co., 254
F.3d at 124-25 (threats to take reprisals against employees who
participated in union
activities); NLRB v. Gissel Packing Co., 395 U.S. 575, 616-20 (1969)
(threat to shut
down plant if employees form a union); NLRB v. Coca-Cola Co. Foods
Div., 670 F.2d
84, 85-86 (7th Cir. 1982) (threat to "come after" employee if he discussed his
grievance with other employees). Likewise, the Family and Medical Leave Act
("FMLA") contains a provision making it unlawful for an employer to
"interfere with,
restrain, or deny the exercise of or the attempt to exercise, any
right provided" by the
Act. 29 U.S.C. § 2615(a)(1). That provision has also been read to
apply to conduct
that "'tends to chill' an employee's willingness to exercise" statutory rights.
Bachelder v. America West Airlines, Inc., 259 F.3d 1112, 1124 (9th Cir. 2001).
Given the similarity in the language of the "interference"
provisions of these
statutes and the language of the ADA's "interference" provision, there
is every reason
to believe that Congress intended the same broad protection to apply under the
ADA's "interference" provision. See generally Northcross v. Bd. of Educ. of
Memphis City Schs., 412 U.S. 427, 428 (1973) (similarity of statutory
language is
strong indication that statutes should be interpreted in the same
manner). Indeed, the
ADA's legislative history indicates that Congress was well aware of the existing
standards under similar "interference" provisions and intended the
"interference"
provision to be applied in accordance with those standards. The issue
is explicitly
addressed in a Committee Report, which states that the "interference" provision
should be interpreted in accordance with the regulatory interpretation
"given by the
Department of Housing and Urban Development to a similar provision in the Fair
Housing Act." H.R. Rep. No. 485(II), 101st Cong., 2d Sess. 138
(1990), reprinted in
1990 U.S.C.C.A.N. 303, 421. Like the ADA, the Fair Housing Act ("FHA") makes
it unlawful "to coerce, intimidate, threaten, or interfere with any
person in the
exercise or enjoyment of, or on account of his having exercised or
enjoyed, . . . any
right granted or protected by [the Act]." 42 U.S.C. § 3617. The implementing
regulation referenced in the Committee Report defines unlawful conduct under the
FHA provision to include such things as "[t]hreatening an employee or agent with
dismissal or an adverse employment action," "[i]ntimidating or threatening any
person," and "[c]oercing a person, either orally or in writing, or by
other means." 24
C.F.R. § 100.400. This regulation, interpreting the almost identical
language of the
FHA's "interference" provision, reaches a broad range of threatening or coercive
conduct. The regulation comports with the broad interpretation that
this Court has
given to the FHA's "interference" provision. See, e.g., Mich. Prot. &
Advocacy Serv.,
Inc. v. Babin, 18 F.3d 337, 347 (6th Cir. 1994) (internal quotations
omitted) (holding
that the FHA's "interference" provision "has been broadly applied to reach all
practices which have the effect of interfering with the exercise of
rights under the
federal fair housing laws"). It is clear from the text and history of
the ADA that
Congress intended the ADA's "interference" provision to be similarly
broad in scope.
This Release obviously contravenes this ADA provision. It strong-arms
employees facing impending discharge into signing away their right to engage in
opposition and participation by offering a conditional substantial monetary
inducement at a time of certain economic hardship, and then promises
retribution if
signatories subsequently pursue protected activity. It also empowers
SunDance to
sue employees for a return of severance, damages, attorneys' fees, and
costs if a
signatory files an EEOC charge or participates in an EEOC proceeding.
By its very
terms, then – by explicit design – the Release "coerces,"
"intimidates," "threatens,"
and "interferes" with the exercise and enjoyment of employees'
protected statutory
rights. The Release is thus illegal under the plain language of the
ADA. See Brown
v. City of Tuscon, 336 F.3d 1181, 1193 (9th Cir. 2003) (providing that
42 U.S.C. §
12203(b) "clearly prohibits" an employer "from threatening an individual with
transfer, demotion, forced retirement unless the individual foregoes a
statutorily
protected [right]"); Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d
208, 222-23
(2d Cir. 2001) (recognizing a potential cause of action under this ADA
anti-retaliation
rule if an employer threatens an employee for asking for a reasonable
accommodation); cf. Mondzelewski v. Pathmark Stores, Inc., 162 F.3d 778, 788-89
(3d Cir. 1998) (noting that this particular ADA provision "arguably sweeps more
broadly" than other relevant anti-retaliation clauses).
Similarly, the ADEA specifically provides that "[n]o waiver agreement may
affect the Commission's rights and responsibilities to enforce [the
ADEA]" and "[n]o
waiver may be used to justify interfering with the protected right of
an employee to
file a charge or participate in an investigation or proceeding conducted by the
Commission." 29 U.S.C. § 626(f)(4). The Commission's ADEA regulations
implementing this provision state that "[n]o waiver agreement may include any
provision imposing any condition precedent, any penalty, or any other limitation
adversely affecting any individual's right to . . . [f]ile a charge or
complaint,
including a challenge to the validity of the waiver agreement, with
EEOC, or . . .
[p]articipate in any investigation or proceeding conducted by EEOC." 29 C.F.R.
§ 1625.22(i)(3). SunDance's Release clearly violates these rules by imposing a
condition precedent/penalty/limitation on protected rights (by
withholding severance
payment until the employee does sign, and by punishing signatories who
subsequently engage in protected activity by requiring them to return the entire
amount of the severance benefit and risk being sued for additional
damages, fees, and
costs). These rules should invalidate SunDance's retaliatory policy.
Cf. Wastak v.
Lehigh Valley Health Network, 342 F.3d 281, 290 (3d Cir. 2003)
(suggesting that this
"statutory language [i.e., 29 U.S.C. § 626(f)(4)] can be read to mean
. . . that any
attempt by an employer to enforce a contractual provision prohibiting
an employee
from filing a charge or participating in an EEOC investigation would
be ineffectual");
American Airlines, Inc. v. Cardoza-Rodriguez, 133 F.3d 111, 118 n.7
(1st Cir. 1998)
(indicating that waivers that do not comport with 29 U.S.C. § 626(f)(4) are
"deficient").
SunDance essentially ignores this ADEA and ADA statutory text.
In addition,
in insisting the relevant anti-retaliation rules must specifically
provide for "per se"
or "facial" retaliation, SunDance reads these protective provisions far too
restrictively. Courts routinely find that particular employment
policies are "facially"
discriminatory, notwithstanding that these descriptive terms do not
appear in the
relevant employment discrimination statutes. Indeed, the word
"retaliation" itself
does not appear in the EPA, Title VII, the ADEA, or the ADA. SunDance's
reasoning would create the absurd result that all four of these statutes permit
"retaliation." The case law – including Supreme Court jurisprudence –
is replete with
examples that demonstrate the fallacy of SunDance's reasoning. See,
e.g., Nev. Dep't
of Human Res. v. Hibbs, 538 U.S. 721, 732 (2003) (recognizing that "laws and
policies" can be "facially discriminatory"); Hazen Paper Co. v.
Biggins, 507 U.S.
604, 610 (1993) (explaining that employers will be liable for
discrimination if they
"relied upon a formal, facially discriminatory policy requiring
adverse treatment of
employees"); Int'l Union, UAW v. Johnson Controls, 499 U.S. 187, 198 (1991)
(holding that an employer's policy was "facially discriminatory");
Lorance v. AT&T
Techs., Inc., 490 U.S. 900, 912 (1989), superseded by statute on other
grounds (also
clearly recognizing "facially discriminatory" policies as actionable);
Conn. v. Teal,
457 U.S. 440, 455 (1982) (criticizing the application of a "facially
discriminatory"
policy); Everson v. Mich. Dep't of Corr., 391 F.3d 737, 747 (6th Cir.
2004) (noting
the defendant "concedes it has adopted a facially discriminatory
plan"); Nguyen v.
Cleveland, 229 F.3d 559, 563 (6th Cir. 2000) (explaining that "a facially
discriminatory employment policy . . . is direct evidence of
discriminatory intent");
EEOC v. Joe's Stone Crab, 220 F.3d 1263, 1282 (11th Cir. 2000) (finding hiring
practices to be "facially discriminatory"); Frank v. United Air Lines,
Inc., 216 F.3d
845, 854 (9th Cir. 2000) (concluding that an airline's weight policy
was "facially
discriminatory"); Healey v. Southwood Psychiatric Hosp., 78 F.3d 128,
131 (3d Cir.
1996) (holding that staffing practices were "facially
discriminatory"). Finding that
an employment practice is "facially discriminatory" and/or "per se
discrimination"
is clearly a routine analytical approach courts use to identify
actionable conduct.
Thus absence of the words "facially discriminatory" – or, in this case, "per se
retaliation" – in the relevant statutes is immaterial.
Given their critical role in "[m]aintaining unfettered access to statutory
remedial mechanisms," Robinson, 519 U.S. at 346, all prohibitions on illegal
retaliation must be construed to effectuate their remedial purpose.
As this Court in
Ohio Edison Co. ruled, "the antiretaliation provision of an employment
statute should
not be construed narrowly if it defeats the purpose of the statute."
Ohio Edison Co.,
7 F.3d at 545; see also id. at 544 (noting that "the majority of
courts, including the
Supreme Court, have been willing to construe Title VII and companion provisions
under the [EPA] and the [ADEA] broadly in order not to frustrate the
purpose of these
Acts"). Indeed, this Court pointed out:
Courts have routinely adopted interpretations of retaliation provisions
in employment statutes that might be viewed as outside the literal terms
of the statute in order to effectuate Congress's clear purpose in
proscribing retaliatory activity. Contrary to defendant's assertions,
courts have frequently applied the retaliation provisions of employment
statutes to matters not expressly covered by the literal terms of these
statutes where the policy behind the statute supports a non-exclusive
reading of the statutory language.
Id. at 545.
The rationale behind the anti-retaliation provisions –
safeguarding the public
interest by ensuring that individuals remain free to report suspected
discrimination
to the EEOC without fear of retribution – would certainly support
applying these anti-
retaliation rules to invalidate the offensive parts of the Release in
this case. Indeed,
given the critical public interest at stake, courts have routinely
concluded that waiver
provisions like the ones challenged here are void as against public
policy. See, e.g.,
U.S. Steel Corp., 671 F. Supp. at 358-59 (ruling that a policy
conditioning enhanced
retirement benefits on waivers of the right to file charges or
participate in EEOC
proceedings is per se retaliatory and violates public policy); accord
EEOC v. Frank's
Nursery & Crafts, Inc., 177 F.3d 448, 456 (6th Cir. 1999) ("[A]n
individual may not
contract away her right to file a charge with the EEOC, as such
contracts are void as
against public policy.").
The EEOC "is guided by the overriding public interest in equal employment
opportunity . . . asserted through direct Federal enforcement." Gen.
Tel. Co. of N.W.,
Inc. v. EEOC, 446 U.S. 318, 326 (1980). The primary way in which the EEOC
vindicates the public interest is by identifying and investigating
allegations of
discrimination, and then conciliating and litigating (if necessary) to
correct unlawful
employment practices. See Occidental Life Ins. Co. of Cal. v. EEOC,
432 U.S. 355,
368 (1977) (the EEOC "is a federal administrative agency charged with the
responsibility of investigating claims of employment discrimination and settling
disputes, if possible, in an informal, noncoercive fashion").
Charges, which notify the EEOC of potential discrimination, are
critical to the
EEOC's work. See EEOC v. Shell Oil Co., 466 U.S. 54, 68 (1984) (noting that the
very function of a charge "is to place the EEOC on notice that someone
. . . believes
that an employer has violated the [law]"). Accordingly, the EEOC's 1997
Enforcement Guidance provides that:
A strong public policy also prohibits interference with the right to file
a charge with EEOC . . . . This notice to the EEOC serves to trigger law
enforcement proceedings by the EEOC that include an investigation and,
if there is a finding of discrimination, may include conciliation and
litigation. Thus, every charge filed with the EEOC carries two potential
claims for relief: the charging party's claim for relief, and the EEOC's
claim to vindicate the public interest in preventing employment
discrimination.
EEOC's Enforcement Guidance at § III(A) (internal quotations and citations
omitted).
Similarly, EEOC investigations are central to the accomplishment of the
EEOC's mission, as well. Cf. Shell Oil Co., 466 U.S. at 69 (noting
"it is crucial that
the Commission's ability to investigate . . . discrimination not be
impaired"); EEOC
v. Waffle House, 534 U.S. 279, 296 n.11 (2002) (stating "[w]e have
generally been
reluctant to approve rules that may jeopardize the EEOC's ability to
investigate . . .
cases"). Thus, the EEOC's Enforcement Guidance also concludes that:
A strong public policy prohibits interference with governmental law
enforcement activities. Agreements that prevent employees from
cooperating with EEOC during enforcement proceedings interfere with
enforcement activities because they deprive the Commission of
important testimony and evidence needed to determine whether a
violation has occurred. Furthermore, insofar as such agreements make
it more difficult for the Commission to prosecute past violations, an
atmosphere is created that tends to foster future violations of the law
. . . .
EEOC's Enforcement Guidance at § III(A) (internal quotations and
citations omitted).
Recognizing this, numerous other courts (in addition to this
Court, in Frank's
Nursery & Crafts) have concluded that waivers of the right to file
EEOC charges or
to participate in EEOC proceedings are void as against public policy.
See, e.g.,
Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 28 (1991)
(noting that even
if an individual agreed to submit an employment discrimination claim
to arbitration,
the individual "will still be free to file a charge with the EEOC" –
acknowledging the
important public interest implicated in charge filing); EEOC v.
Johnson & Higgins,
Inc., 91 F.3d 1529, 1536 (2d Cir. 1996) (stating that the EEOC's
"authority cannot
be altered by a waiver of the rights of a private party"); U.S. Steel
Corp., 671 F. Supp.
at 358-59 (such waivers violate public policy).
Most notably, in EEOC v. Cosmair, Inc., L'Oreal Hair Care
Division, 821 F.2d
1085 (5th Cir. 1987), an employee signed a broad release in exchange
for severance
benefits. The waiver did not explicitly forbid the employee from
filing a charge with
the EEOC. Nevertheless, when the employee did file a charge, the
employer stopped
paying the severance it had agreed to pay the employee under the
waiver. The Fifth
Circuit pointed out that the purpose of a charge is to inform the EEOC
of possible
discrimination, and thus found that "[a]llowing the filing of charges
to be obstructed
by enforcing a waiver of the right to file a charge could impede EEOC
enforcement
of the civil rights laws." Id. at 1089-90. According to the Cosmair court, "an
employer and an employee cannot agree to deny to the EEOC the
information it needs
to advance [the] public interest." Id. at 1090. Therefore, the Fifth
Circuit ruled, a
"waiver of the right to file a charge is void as against public
policy." Id.; see also
Wastak, 342 F.3d at 291-92 (analyzing and adopting Cosmair's reasoning on this
public policy point); Faris v. Williams WPC-I, Inc., 332 F.3d 316, 321
(5th Cir. 2003)
(citing Cosmair and also indicating that any waiver of the right to file an EEOC
charge is void as against public policy); American Airlines, Inc., v. Cardoza-
Rodriguez, 133 F.3d 111, 118 n.7 (1st Cir. 1998) (same); McCall v.
U.S. Postal Serv.,
839 F.2d 664, 666 n.* (Fed. Cir. 1988) (same); Callicotte v. Carlucci,
698 F. Supp.
944, 946-47 (D.D.C. 1988) (same).
Similarly, in EEOC v. Astra, Inc., 94 F.3d 738 (1st Cir. 1996),
an employer
entered into settlement agreements which (among other things) barred
the employees
from filing EEOC charges, assisting others who filed charges, and discussing the
incidents giving rise to the settlement (and/or disclosing the terms
of the settlement
itself) with anyone. The EEOC attempted to investigate charges of
sexual harassment
against the company and encountered resistance and reluctance from various
employees/witnesses who had entered into these settlement agreements. On these
facts, the First Circuit concluded that "clearly, if victims of or witnesses to
[employment discrimination] are unable to approach the EEOC or even to
answer its
questions, the investigatory powers that Congress conferred would be sharply
curtailed and the efficacy of investigations would be severely
hampered." Id. at 744.
Therefore, "any agreement that materially interferes with
communication between an
employee and the Commission sows the seeds of harm to the public
interest." Id. An
"employee's right to communicate with the EEOC must be protected not
to safeguard
the settling employee's entitlement to recompense but instead to
safeguard the public
interest." Id. at n.5. This "is not a right that an employer can
purchase from an
employee, nor is it a right that an employee can sell to her
employer." Id. In short,
any "waiver of the right to assist the EEOC offends public policy under both the
ADEA and Title VII." Id.; see also id. at 745 (ruling that
"non-assistance covenants
which prohibit communication with the EEOC are void as against public policy");
American Airlines, 133 F.3d at 118 n.7 (citing Astra and indicating the same).
Here, the Release at issue unquestionably interferes with the EEOC's
enforcement efforts. It is expressly aimed at preventing signatories
from filing
charges (which the employer in Cosmair wanted to do) or sharing
information about
SunDance's employment practices with the EEOC (as the company in Astra
attempted). These Release provisions choke the free flow of information between
potential victims of (or witnesses to) discrimination and the EEOC.
These offensive
portions of the Release thus violate public policy.
Surprisingly, SunDance has essentially admitted as much. See
SunDance Brief
at 20 (acknowledging that, under the reasoning in Cosmair, any waiver
of the right
to file a charge is void as against public policy). By contrast, the
amici argue the
Release is a good thing. They praise the wisdom of charge-filing
bans, assert that
these retaliatory releases are good for business, and strongly suggest
the more rights
employees want to relinquish, the better. See Amici Brief at 3-4,
21-22 (calling for
"employer closure" and greater "comprehensiveness of releases" and
admitting that
employers specifically want to preclude employees from bringing claims in the
administrative forum). The amici indicate that the district court's
decision and the
EEOC's position here "run[] counter to a strong federal policy – the
policy favoring
voluntary resolution of employment-related disputes." Amici Brief at
9. The amici
even assert this is best for the EEOC. Id. at 10, 23 (advocating that
charge-filing bans
"afford a means of satisfactorily resolving potential disputes that
otherwise could
clog the courts and administrative agencies, including the EEOC"). And they
conclude that if this Court does not allow employers to bar protected activity,
employers will simply stop offering severance packages and settlements
altogether.
Id. at 10, 23 ("Employers are less likely to offer such agreements,
however . . . if the
agreements cannot lawfully provide closure against the possibility
that the signers
will file EEOC charges"). Indeed, the amici even assert (quite
ironically, given the
facts of this case), that the "ultimate victims" of the district
court's decision "will be
individual employees who . . . will not be offered the option to gain
substantial
financial benefits when their jobs are terminated." Id. at 23.
In sum, the amici's position amounts to this: Unless employers
are allowed to
continue violating (what several circuits, including this Court, have
said is) the law,
they will begin to treat even less favorably the very employees those laws were
designed to protect. Unless this Court renounces the EEOC's long-held view that
charge-filing bans are bad for the public interest – and unless
companies can get
"closure" through more comprehensive releases – the public interest –
and the EEOC
itself – will suffer. The EEOC fails to see how a court could or why
a court should
conclude that enforcing a policy or private agreement which deprives a law
enforcement agency of information essential to its law enforcement
mission is in the
best interests of the law enforcement agency itself. (Would a court
enforce a private
agreement under which a former employee promises his former employer – in
exchange for consideration – never to divulge to the FBI or the SEC information
about potential white collar crimes witnessed in the course of
employment? Put more
starkly, would a court enforce a similar agreement precluding an employee from
reporting a more violent workplace crime (such as an assault or even
rape) to the
local authorities?) The amici's "policy" reasons for reversing the
district court's
decision do not withstand scrutiny. See Town of Newton v. Rumery, 480 U.S. 386,
392 (1987) (footnote omitted) (explaining that "a promise is
unenforceable if the
interest in its enforcement is outweighed in the circumstances by a
public policy
harmed by enforcement of the agreement"); Cosmair, 821 F.2d at 1091 ("The public
interest in private dispute settlement" is simply "outweighed by the
public interest in
EEOC enforcement"); Astra, 94 F.3d at 744-45 ("Thus, weighing the significant
public interest in encouraging communication with the EEOC against the minimal
adverse impact that opening the channels of communication would have on
settlement, we agree wholeheartedly with the lower court that non-assistance
covenants which prohibit communication with the EEOC are void as against public
policy."); cf. Howlett v. Holiday Inns, Inc., 120 F.3d 598, 602-03
(6th Cir. 1997)
(noting that because writing releases complying with employment discrimination
laws "should not be difficult for an employer" the employer "can hardly complain
about the inequity of losing the benefit of its bargain" when it fails
to do so).
Given the compelling public policy underlying the
anti-retaliation rules, it is
irrelevant (contrary to SunDance's claims) that the anti-retaliation
rules do not
contain the words "per se retaliation" or "facially retaliatory." As
the district court
recognized, the EEOC's legal theory – and the district court's conclusion that
SunDance's Release is facially, per se retaliatory – effectuates the
legislative purpose
of the anti-retaliation rules, comports with this Court's liberal
approach to construing
these clauses, and is consistent with the only other Circuit court
case on this issue.
Accordingly, this Court should follow the Seventh Circuit's Board of
Governors lead,
reject SunDance's overly-restrictive reading of the anti-retaliation
laws, and affirm
the district court's finding that the Release is a per se violation of
the anti-retaliation
rules.
C. The District Court Appropriately Exercised Its Broad Discretion to Award
Relief Required to Eliminate the Effects of Illegal Retaliation
SunDance argues that even if portions of its Release are invalid and
unenforceable, the district court abused its discretion in its
injunctive relief.
SunDance Brief at 8, 9. SunDance asserts that because the district
court invalidated
only the parts of the Release that are retaliatory (i.e., that
preclude signatories from
filing EEOC charges or participating in EEOC proceedings), the
district court's order
tolling limitations periods for filing any claim is untenable.
SunDance Brief at 25.
According to SunDance, "[t]olling the limitations period for claims
that admittedly
have been waived is entirely illogical." Id. at 26. We disagree.
Courts have extremely broad authority to fashion appropriate
equitable relief
for violations of anti-discrimination laws. See, e.g., 29 U.S.C. §
216(b) (EPA); 42
U.S.C. § 2000e-5(g)(1) (Title VII); 29 U.S.C. § 626(b) (ADEA); 42 U.S.C.
§§ 12117(a), 12203(c) (ADA). The Supreme Court, in Albemarle Paper Co. v.
Moody, 422 U.S. 405 (1975), explained that:
It is . . . the purpose of [federal employment discrimination law] to make
persons whole for injuries suffered on account of unlawful employment
discrimination. This is shown by the very fact that Congress took care
to arm the courts with full equitable powers. . . . [In fact]
the (district)
court has not merely the power but the duty to render a decree which
will so far as possible eliminate the discriminatory effects of the past as
well as bar like discrimination in the future.
Id. at 418-20 (internal citations and quotations omitted); see also
Franks v. Bowman
Transp. Co., Inc., 424 U.S. 747, 763-64 (1976) ("To effectuate this 'make whole'
objective, Congress . . . vested broad equitable discretion in the
federal courts to
'order such affirmative action as may be appropriate, which may
include . . . any other
equitable relief as the court deems appropriate.'").
Similarly, as this Court pointed out in Frank's Nursery & Crafts:
. . . [U]pon a finding of any intentional employment discrimination, a
district court possesses broad discretion to craft an injunction that will
ensure the employer's compliance with the law . . . . Thus, the EEOC
may obtain such general injunctive relief, under the equitable discretion
of the district court, even where the EEOC only identifies one or a mere
handful of aggrieved employees . . . . Indeed, the EEOC may seek
injunctive relief to correct discrimination uncovered during its
investigation of the charge of just one individual . . . . The EEOC may
obtain a permanent injunction even where it does not allege a pattern or
policy of discrimination. . . .
177 F.3d at 467-68 (citations omitted); see also EEOC v. Wilson Metal
Casket Co.,
24 F.3d 836, 842 (6th Cir. 1994) (stating that "[t]he proper scope of
an injunction is
to enjoin conduct which has been found to have been pursued or is related to the
proven unlawful conduct"); cf. Cosmair, 821 F.2d at 1091 (rejecting an
employer's
challenge to a district court's preliminary injunction prohibiting the
employer –
company-wide – from terminating severance payments to former employees who
filed EEOC charges; concluding that the evidence in the case "revealed a company
policy of terminating payments to employees who filed charges," and that a
"company-wide injunction was [thus] not an abuse of discretion.");
Astra, 94 F.3d at
745 (finding that a district court had not "misused its discretion in
enjoining the
utilization of settlement provisions that prohibit employees from
assisting the EEOC
in investigating charges of discrimination").
Here, the EEOC asked for relief on behalf of Salsbury and
"similarly situated"
SunDance employees affected by SunDance's company-wide retaliatory policy. The
district court accepted EEOC's prayer for relief as an appropriate
remedy for the
violations at issue. In the EEOC's view, this relief order was
carefully tailored to
make Salsbury and similarly situated employees whole and to remedy SunDance's
illegal practices. On these facts, it was not an abuse of the
district court's discretion
to order the relief that it did.
This is true with respect to tolling the statute of limitations
on "claims," as
well. SunDance seems to be asking this Court to preclude signatories
from filing any
"claims" in court because it apparently believes all signatories have
waived the right
to bring such "claims" by signing the Release. Salsbury and others
may very well
have done so. However, contrary to SunDance's argument, this precise
issue (e.g.,
whether signatories did in fact knowingly and voluntarily waive their
right to file any
lawsuit against SunDance) was never raised in this case. The district
court found
merely that the offensive provisions of the Release could properly be
severed from
the rest of the Release, which would remain enforceable to the extent
permitted by
law. (R.43, O&O pg.21, Apx.208) (". . . [T]he Court must consider
whether the entire
Separation Agreement is unenforceable or merely the portion precluding employees
from filing a charge.").) The district court did not definitively
decide – because no
party has yet asked it to – whether the Release is a valid and knowing
waiver of all
claims. This is simply an open question best left answered by another
court another
day.
In any event, signatories are still free to challenge the
validity of the Release
itself. See, e.g., 29 C.F.R. § 1625.23(b) ("No ADEA waiver agreement,
covenant not
to sue, or other equivalent arrangement may impose any condition precedent, any
penalty, or any other limitation adversely affecting any individual's
right to challenge
the agreement.") Nothing in the district court's relief order
enlarges this pre-
existing right (i.e., the relief order provision to which SunDance
objects would only
enable subsequently-filed lawsuits to be treated as timely – not necessarily
meritorious). If and when a signatory does file a lawsuit, SunDance
is free to raise
its Release as an affirmative defense. In addition, the statute of
limitations on claims
related to charges now deemed timely under the district court's relief
order has not
even begun to run. The statute of limitations on claims under Title
VII, the ADEA,
and the ADA begins to run only after a "notice of right to sue" has
been issued, an
event which has not occurred with respect to any potential charge encompassed by
the district court's order. See 42 U.S.C. §§ 2000e-5(b), (f)(1)
(Title VII); 42 U.S.C.
§ 12117(a) (ADA); 29 U.S.C. §§ 626(b), (c), (d); 29 C.F.R. § 1626.15(b) (ADEA).
Accordingly, the district court's order has not expanded the statutory
protections of
charging parties beyond those they already possess by virtue of their
ability to file
charges (a part of the relief order SunDance does not challenge). Therefore,
SunDance has not been harmed by the district court's relief provision
tolling the
statute of limitations for "claims" related to such charges. This Court should
conclude that the district court acted well within its considerable
equitable discretion
in fashioning this provision, and affirm the district court's relief
order in its entirety.
CONCLUSION
For all the reasons discussed above, the EEOC respectfully
requests that this
Court affirm the district court's grant of summary judgment in favor
of the EEOC and
the district court's relief order.
Respectfully submitted,
ERIC S. DREIBAND
General Counsel
VINCENT J. BLACKWOOD
Acting Associate General Counsel
LORRAINE C. DAVIS
Assistant General Counsel
___________________________
DANIEL T. VAIL
Attorney
U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
Office of General Counsel
1801 L Street, N.W., Room 7020
Washington, D.C. 20507
(202) 663-4571
daniel.vail@eeoc.gov
CERTIFICATE OF COMPLIANCE WITH RULE 32(a)
1. I certify that this brief complies with the type-volume
limitation set forth in
Fed. R. App. P. 32(a)(7)(B) because this brief contains 12,815 words,
excluding the parts of the brief exempted by Fed. R. App. P.
32(a)(7)(B)(iii).
2. I certify that this brief complies with the typeface requirements
of Fed. R. App.
P. 32(a)(5) and the type style requirements of Fed. R. App. P.
32(a)(6) because
this brief has been prepared in a proportionally spaced typeface using
WordPerfect 9 in 14-Point Font in Times New Roman Style.
____________________________
DANIEL T. VAIL
Attorney
U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
Office of General Counsel
1801 L Street, N.W., Room 7020
Washington, D.C. 20507
(202) 663-4571
daniel.vail@eeoc.gov
June 30, 2005
ADDENDA
Appellee's Designation of Contents of Joint Appendix . . . . .A-2
Complete Text of Statutory Anti-Retaliation Rules. . . . . . .A-5
EEOC's Enforcement Guidance on Non-Waivable Employee Rights. .A-7
APPELLEE'S DESIGNATION OF CONTENTS OF JOINT APPENDIX
Appellee, pursuant to 6 Cir. R. 28(d), hereby designates the
following filings
in the district court's record as items to be included in the joint appendix:
+------------------------------------------------------------------------+
| Record Entry | Description | Date Filed |
|--------------+--------------------------------------------+------------|
| | Current District Court Docket Sheet | |
|--------------+--------------------------------------------+------------|
| R.1 | Complaint | 08/01/2001 |
|--------------+--------------------------------------------+------------|
| R.24 | SunDance's Motion for SJ, with Exhibit: | 11/22/2002 |
| | | |
| R.24 | * Exhibit A - Affidavit of Margaret | 11/22/2002 |
| | McNett pgs. 1-2; Ex.A-3 (Docs. 12-13) | |
| | | |
|--------------+--------------------------------------------+------------|
| R.25 | EEOC's Opposition to SunDance's Motion for | 12/20/2002 |
| | SJ, with Attachments: | |
| R.25 | | |
| | * Declaration of Elizabeth S. Salsbury | 12/20/2002 |
| R.25 | pgs. 1-4; Ex.A-1 (Docs. 87, 88, | |
| | 90-93); Ex.A-2 (Charge of | |
| | Discrimination; Signed Release) | |
| | | |
| | * Declaration of Susan L. Smith | 12/20/2002 |
| | pgs. 1-2; Docs. 321-323 | |
| | | |
|--------------+--------------------------------------------+------------|
| R.39 | Magistrate Judge's Report and | 07/31/2003 |
| | Recommendation | |
|--------------+--------------------------------------------+------------|
| R.41 | EEOC's Objections to Magistrate Judge's | 08/18/2003 |
| | R&R | |
|--------------+--------------------------------------------+------------|
| R.42 | SunDance's Response to EEOC's Objections | 8/28/2003 |
|--------------+--------------------------------------------+------------|
| R.43 | Memorandum of Opinion and Order Granting | 07/26/2004 |
| | EEOC's Motion for SJ and Denying | |
| | SunDance's Motion for SJ | |
|--------------+--------------------------------------------+------------|
| R.44 | Judgment Entry Order | 07/26/2004 |
|--------------+--------------------------------------------+------------|
| R.46 | Notice of Appeal | 09/23/2004 |
+------------------------------------------------------------------------+
I certify, pursuant to 6 Cir. R. 30(f), that all documents
designated above to be
included in the joint appendix were properly made a part of the record.
____________________________
DANIEL T. VAIL
Attorney
U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
Office of General Counsel
1801 L Street, N.W., Room 7020
Washington, D.C. 20507
(202) 663-4571
daniel.vail@eeoc.gov
DATED: June 30, 2005
COMPLETE TEXT OF STATUTORY ANTI-RETALIATION RULES
+------------------------------------------------------------------------+
| Statute | Language | Citation |
|-----------+---------------------------------------+--------------------|
| EPA | "It shall be unlawful for any person | 29 U.S.C. |
| | to discharge or in any other manner | § 215(a)(3) |
| | discriminate against any employee | |
| | because such employee has filed any | |
| | complaint or instituted or caused to | |
| | be instituted any proceeding under or | |
| | related to [the EPA] or is about to | |
| | testify in any proceeding . . . ." | |
|-----------+---------------------------------------+--------------------|
| Title VII | "It shall be an unlawful employment | 42 U.S.C. § |
| | practice for an employer to | 2000e-3(a) |
| | discriminate against any of his | |
| | employees or applicants for | |
| | employment . . . because he has | |
| | opposed any practice made an unlawful | |
| | employment practice by [Title VII], | |
| | or because he has made a charge, | |
| | testified, assisted, or participated | |
| | in any manner in an investigation, | |
| | proceeding, or hearing under [Title | |
| | VII]." | |
|-----------+---------------------------------------+--------------------|
| ADEA | "It shall be unlawful for an employer | 29 U.S.C. § 623(d) |
| | to discriminate against any of his | |
| | employees or applicants for | |
| | employment . . . because such | |
| | individual . . . has opposed any | |
| | practice made unlawful by [the ADEA], | |
| | or because such individual . . . has | |
| | made a charge, testified, assisted, | |
| | or participated in any manner in an | |
| | investigation, proceeding, or | |
| | litigation under [the ADEA]." | |
| | | |
| | "No waiver agreement may affect the | 29 U.S.C. |
| | Commission's rights and | § 626(f)(4) |
| | responsibilities to enforce [the | |
| | ADEA]. No waiver may be used to | |
| | justify interfering with the | |
| | protected right of an employee to | |
| | file a charge or participate in an | |
| | investigation or proceeding conducted | |
| | by the Commission." | |
|-----------+---------------------------------------+--------------------|
| ADA | "No person shall discriminate against | 42 U.S.C. § |
| | any individual because such | 12203(a) |
| | individual has opposed any act or | |
| | practice made unlawful by [the ADA] | |
| | or because such individual made a | |
| | charge, testified, assisted, or | |
| | participated in any manner in an | |
| | investigation, proceeding, or hearing | |
| | under [the ADA]." | |
| | | |
| | "It shall be unlawful to coerce, | 42 U.S.C. § |
| | intimidate, threaten, or interfere | 12203(b) |
| | with any individual in the exercise | |
| | or enjoyment of, or on account of his | |
| | or her having exercised or enjoyed, | |
| | or on account of his or her having | |
| | aided or encouraged any other | |
| | individual in the exercise or | |
| | enjoyment of, any right granted or | |
| | protected by [the ADA]." | |
+------------------------------------------------------------------------+
EEOC'S ENFORCEMENT GUIDANCE
ON NON-WAIVABLE EMPLOYEE RIGHTS
CERTIFICATE OF SERVICE
I hereby certify that on this 30th Day of June, 2005, I served
copies of this brief,
via First Class U.S. Mail, postage prepaid, to:
Leonard Green
Clerk
United States Court of Appeals for the Sixth Circuit
100 East Fifth Street
Room 532
Potter Stewart U.S. Courthouse
Cincinnati, OH 45202-3988
Dean E. Westman
Thomas Evan Green
Kastner Westman & Wilkins, LLC
3480 West Market Street, Suite 300
Akron, OH 44333
Ann Elizabeth Reesman
McGuiness Norris & Williams, LLP
Suite 1200
1015 Fifteenth Street, N.W.
Washington, D.C. 20005
Stephen A. Bokat, Robin S. Conrad, Robert J. Costagliola
National Chamber Litigation Center, Inc.
1615 H Street, N.W.
Washington, D.C. 20062
__________________________________
DANIEL T. VAIL
DATED: June 30, 2005
*********************************
<FOOTNOTES>
<1> All references to "R." are to the corresponding Docket Entry on
the district
court's docket sheet.
<2> All references to "Apx." are to the applicable page in the Joint Appendix.
<3> After the EEOC informed Salsbury the Release was illegal, Salsbury
decided to
sign to get the severance pay. (R.25, Salsbury Decl. pg.3 ¶ 9,
Apx.64.) By the
time Salsbury signed the Release on March 7, 2000, SunDance had gone
into bankruptcy
proceedings. Salsbury still has not received severance pay. (R.25,
Salsbury Decl.
pg.4 ¶ 11, Apx.65); (R.25, Salsbury Decl. pg.3 ¶ 10, Apx.63); (R.25,
Salsbury Decl.
Ex.A-2 Signed Release, Apx.75.)
<4> The District Court also concluded that the remaining portions of
the Release
were valid and enforceable (citing Wastak v. Lehigh Valley Health
Network, 342 F.3d
281 (3d Cir. 2003) and Sixth Circuit cases holding that knowing and
voluntary waivers
of the right to file a discrimination lawsuit can be upheld). (R.43,
O&O pgs.21-22,
Apx.208-209.) This aspect of the district court's opinion is not at
issue on this
appeal.
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