01-7306 ____________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ____________________________________________ MICHAEL S. RISLEY, Plaintiff-Appellant, v. FORDHAM UNIVERSITY, Defendant-Appellee. _________________________________________________________ On Appeal from the United States District Court for the Southern District of New York _________________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE SUPPORTING THE APPELLANT _________________________________________________________ NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP SKLOVER Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel PAUL D. RAMSHAW JOHN F. SUHRE Attorneys EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W., Rm. 7816 Washington, D.C. 20507 (202) 663-4736 TABLE OF CONTENTS Page TABLE OF AUTHORITIES ........................................ ii STATEMENT OF INTEREST.......................................... 1 STATEMENT OF THE ISSUE......................................... 2 STATEMENT OF THE CASE.......................................... 2 Nature of the Case........................................ 2 Statement of the Facts.................................... 3 Decision Below............................................ 6 SUMMARY OF ARGUMENT............................................ 7 ARGUMENT....................................................... 8 TITLE VII PROHIBITS RETALIATION AGAINST AN EMPLOYEE FOR FILING A CHARGE WITH THE EEOC WHETHER OR NOT THE CHARGE IS MERITORIOUS OR THE CHARGING PARTY REASONABLY BELIEVED THAT IT WAS........................... 8 CONCLUSION................................................... 16 CERTIFICATE OF COMPLIANCE..................................... 17 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES Cases Page(s) Abramson v. University of Hawaii, 594 F.2d 202 (9th Cir. 1979).............................. 8 Balazs v. Liebenthal, 32 F.3d 151 (4th Cir. 1994).............................. 13 Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304 (6th Cir. 1989)..................... 9, 10, 13 Cosgrove v. Sears, Roebuck & Co., 9 F.3d 1033 (2d Cir. 1993)............................... 14 DeCintio v. Westchester County Medical Ctr., 807 F.2d 304 (2d Cir. 1986)............................... 7 EEOC v. Board of Governors, 957 F.2d 424 (7th Cir. 1992) ............................ 15 EEOC v. Kallir, Philips, Ross, Inc., 401 F. Supp. 66 (S.D.N.Y. 1975).......................... 12 EEOC v. Pacific Press Pub. Ass'n, 676 F.2d 1272 (9th Cir. 1982)............................ 15 Glover v. South Carolina Law Enforcement Div., 170 F.3d 411 (4th Cir. 1999)............................. 12 Grant v. Hazlett Strip-Casting Corp., 880 F.2d 1564 (2d Cir. 1989)............................. 13 Gregory v. Daly, 243 F.3d 687 (2d Cir. 2001).............................. 14 Holt v. Continental Group, Inc., 708 F.2d 87 (2d Cir. 1983)............................... 15 Manoharan v. Columbia Univ. College of Physicians & Surgeons, 842 F.2d 590 (2d Cir. 1988)........................... 9, 14 Merritt v. Dillard Paper Co., 120 F.3d 1181 (11th Cir. 1997)........................... 11 Pettway v. American Cast Iron Pipe Co., 411 F.2d 998 (5th Cir. 1969)............................. 10 Quinn v. Green Tree Credit Corporation, 159 F.3d 759 (2d Cir. 1998).............................. 14 Robinson v. Shell Oil Co., 519 U.S. 337 (1997)...................................... 14 Sias v. City Demonstration Agency, 588 F.2d 692 (9th Cir. 1978)............................. 13 Sumner v. U.S. Postal Service, 899 F.2d 203 (2d Cir. 1990).............................. 14 Veprinsky v. Fluor Daniel, Inc., 87 F.3d 881 (7th Cir. 1996).............................. 15 Wimmer v. Suffolk County Police Dep't, 176 F.3d 125 (2d Cir. 1999)........................... 7, 10 Womack v. Munson, 619 F.2d 1292 (8th Cir. 1980)............................ 13 Wyatt v. City of Boston, 35 F.3d 13 (1st Cir. 1994)............................... 9 STATUTES Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq................................ 1 42 U.S.C. § 2000e-3, § 704(a)....................... passim ____________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ____________________________________________ No. 01-7306 ____________________________________________ MICHAEL S. RISLEY, Plaintiff-Appellant, v. FORDHAM UNIVERSITY, Defendant-Appellee. _________________________________________________________ On Appeal from the United States District Court for the Southern District of New York _________________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE SUPPORTING THE APPELLANT _________________________________________________________ STATEMENT OF INTEREST The Equal Employment Opportunity Commission is the agency charged by Congress with the interpretation, administration and enforcement of the federal laws prohibiting employment discrimination, including Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Under Title VII, the Commission may investigate only matters related to charges of discrimination filed with the agency. Because retaliation against persons who file charges can frustrate the statute's enforcement scheme, Congress included in Title VII a broad provision prohibiting discrimination against a person who has filed a charge with the Commission. 42 U.S.C. § 2000e-3. The district court, in dismissing this action, imposed a significant limitation on the statutory prohibition against retaliation by holding that a charging party is not protected from retaliation unless he can show that he reasonably believed that Title VII had been violated. Because this limitation finds no basis in the statutory language and would dilute the vital protection against retaliation afforded charging parties by Title VII, the Commission offers the Court its views. STATEMENT OF THE ISSUE Whether Title VII prohibits an employer from retaliating against an employee for filing a charge with the EEOC without regard to whether the employee reasonably believed that the actions challenged in the charge violated Title VII. STATEMENT OF THE CASE Nature of the Case This is an appeal from a final judgment of the District Court for the Southern District of New York (Cote, J.) granting summary judgment to the defendant. J.A. at 736. Professor Michael Risley sued Fordham University in 1999, alleging sex discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964. J.A. at 5-19. The district court granted summary judgment dismissing all of plaintiff's claims on February 14, 2001, holding, among other things, that an employee who has filed a charge is protected against retaliation only if he reasonably believed that Title VII had been violated. J.A. at 717-34. This appeal followed. J.A. at 738. Statement of the Facts Michael Risley was hired by Fordham University as an associate professor of biology in 1987. J.A. at 718. Fordham hired Berish Rubin in 1989, and he has been the chair of the Department of Biological Sciences since then. J.A. at 8, 718. When Rubin came to Fordham, he brought with him Sylvia Anderson, who had worked for him at his previous place of employment. J.A. at 8, 718. Anderson became a graduate student at Fordham and continued to work for Rubin. Id. She received her Ph.D. in the spring of 1994 and became Rubin's laboratory assistant. J.A. at 8, 718. In the fall of 1994, Rubin needed to find someone to teach a course in molecular biology. J.A. at 718. Risley claims he applied to teach the course, but Rubin gave the position to Anderson, even though she was not a member of the faculty. J.A. at 8. Risley opposed this decision because he believed that several faculty members, including himself, were more qualified to teach the course. J.A. at 9. There were other disputes between the two men in 1994 and early 1995: Risley accused Rubin of having manipulated the transmission of student evaluations relevant to a tenure-review process (J.A. at 112 ¶ 20), and Rubin accused Risley of having instigated departmental speculation that Rubin might appoint Anderson to a vacant tenure-track position. J.A. at 112 ¶ 19. Risley alleges that Rubin, wishing to get back at Risley for his opposition to Rubin's choosing Anderson to teach the fall 1994 class, began a campaign of harassment and retaliation against Risley. J.A. at 9. Risley claims that Rubin discriminated against him in various ways, including in grant funding, laboratory equipment, faculty committee assignments and graduate student admissions, and harassed his students. Id. In April 1995, Risley filed a grievance with the Faculty Senate Hearing Committee ("FSHC") accusing Rubin of intimidating and harassing him and injuring his career. J.A. at 718. The committee denied the grievance. Id. In February 1996, Risley submitted an amended petition seeking a formal hearing before the FSHC, and that was also denied. Id. In neither filing did Risley accuse Rubin of discriminating against him on the basis of his sex. J.A. at 246-48, 256- 68. In the fall of 1996, Risley came to believe that Rubin and Anderson were having an affair, and that this intimate relationship motivated Rubin's favoritism toward Anderson. J.A. at 718-19, 304. In February 1998, Risley's lawyer sent a letter to the president of Fordham alleging that Rubin and Anderson were engaged in an intimate relationship and that Rubin had been discriminating against Risley on the basis of his sex and in retaliation for Risley's opposition to Rubin's favoritism toward Anderson. J.A. at 303-04. In May 1998, Risley sued Rubin and Fordham in state court, alleging tortious acts by Rubin and breaches of contract by Fordham. J.A. at 51-62. Defendants moved for summary judgment in that action in November 1998. J.A. at 79. Also in November 1998 Risley filed a charge with the EEOC alleging sex discrimination and retaliation. J.A. at 228. The retaliation claim in the charge was based on actions allegedly taken by Fordham against Risley because of his lawyer's February 1998 letter to the university's president complaining of sex discrimination. J.A. at 229-31. The Commission issued a right-to-sue letter in July 1999 (J.A. at 233), and Risley filed this lawsuit in federal court in August 1999. Id. at 234-45. His complaint alleges sex discrimination and retaliation in violation of federal, state and local law. Id. Shortly after Risley filed this action, the state court granted Rubin and Fordham summary judgment in the earlier action. J.A. at 123-36. Fordham moved for summary judgment in this action in November 2000, and the district court granted that motion in February 2001. J.A. at 736. Decision Below The district court held that most of Risley's claims are barred by res judicata and related doctrines, because of the summary-judgment order in the state-court action. J.A. at 723-28. The district court ruled that even though Risley did not raise sex discrimination and retaliation claims in his state-court action, his state- court claims were based on the "same nucleus of operative facts," and he could have brought his sex discrimination and retaliation claims in his state-court action. J.A. at 725. The only portions of Risley's federal claims that were not barred, the district court held, were the allegations of adverse actions taken by Fordham after Risley filed his state-court case. J.A. at 728. Although Risley could have amended his state-court complaint to include those matters, he was free to wait and challenge those actions in a second lawsuit, as he did. Id. The court then granted summary judgment with respect to Risley's remaining claims. Without distinguishing between the alleged retaliation based on his lawyer's letter to the president of the university and that based on the charge he filed with the EEOC, the district court stated that Risley was required to show "that he had a ‘good faith reasonable belief that the underlying challenged actions of the employer violated the law.'" J.A. at 730 (quoting Wimmer v. Suffolk County Police Dep't,176 F.3d 125, 134 (2d Cir. 1999)). The court stated that both the letter and the charge challenged Rubin's favoritism toward Anderson based on their intimate relationship. J.A. at 732-34. The court noted that the Second Circuit held in 1986 that preferential treatment of an employee on the basis of an intimate relationship with a supervisor does not constitute sex discrimination against those who are treated more poorly. J.A. at 732 (citing DeCintio v. Westchester County Medical Ctr., 807 F.2d 304, 308 (2d Cir. 1986)). Accordingly, the district court concluded, Risley could not have reasonably believed that Rubin's actions violated Title VII. J.A. at 732-34. SUMMARY OF ARGUMENT The district court erred in holding that Risley was not protected by § 704(a) because he did not reasonably believe that Title VII had been violated. Section 704(a) prohibits employers from retaliating against any employee who has filed a charge. It does not qualify that protection by protecting a charging party only when the charge was meritorious or when the charging party reasonably believed it was. This Court should hold that an employer is forbidden from retaliating against a charging party regardless of whether the employee reasonably believed that a violation occurred. ARGUMENT TITLE VII PROHIBITS RETALIATION AGAINST AN EMPLOYEE FOR FILING A CHARGE WITH THE EEOC WHETHER OR NOT THE CHARGE IS MERITORIOUS OR THE CHARGING PARTY REASONABLY BELIEVED THAT IT WAS. The district court dismissed Risley's claim that Fordham violated 42 U.S.C. § 2000e-3, § 704(a) of Title VII by, inter alia, retaliating against him for filing a charge with the EEOC, on the ground that Risley could not have reasonably believed that the actions he complained of in his charge violated Title VII. This was error. Section 704(a) prohibits employer retaliation against an employee or applicant because that person "has made a charge." The statute does not qualify that protection by saying that the charge must have been meritorious, or that the charging party must have reasonably believed that a Title VII violation occurred. If an employee files a charge with the Commission, Title VII prohibits the employer from retaliating against him for having filed that charge – even if he did not reasonably believe that a violation occurred. See, e.g., Wyatt v. City of Boston, 35 F.3d 13, 15 (1st Cir. 1994) ("‘[T]here is nothing in [the] wording [of the participation clause] requiring that the charges be valid, nor even an implied requirement that they be reasonable.'") (citation omitted); Abramson v. University of Hawaii, 594 F.2d 202, 211 (9th Cir. 1979) (charging party was protected by § 704(a) even though the allegations in her charge clearly did not constitute a Title VII violation). The absolute nature of the protection Congress afforded employees who file a charge or otherwise participate in EEOC proceedings can be seen more clearly when it is contrasted with the qualified or limited protection Congress afforded employees who "oppose" discrimination in the workplace in some other way: e.g., by complaining internally. See, e.g., Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304, 1312 (6th Cir. 1989) (recognizing difference between participation and opposition clauses). Section 704(a) prohibits employer retaliation against any employee or applicant who "has opposed any practice made an unlawful employment practice by this subchapter." Because Title VII's purposes are served when employees oppose discriminatory practices, and because courts generally do not want to countenance retaliation against employees who opposed practices they reasonably considered discriminatory, courts have consistently held that an employee engaging in opposition activity is protected from retaliation as long as she reasonably believed that the practice she opposed violated Title VII. See, e.g., Wimmer, 176 F.3d at 134 (stating rule); Manoharan v. Columbia Univ. College of Physicians & Surgeons, 842 F.2d 590, 593 (2d Cir. 1988) (stating rule and citing cases); Booker, 879 F.2d at 1312-13 (same). In contrast, as noted above, when Congress prohibited retaliation against an employee who has filed a charge or otherwise participated in Title VII proceedings, it did not condition that protection in any way. Courts recognizing the difference between the opposition and participation clauses have consistently held that an employee who filed a charge or otherwise participated in Title VII proceedings is protected from retaliation even if the charge was not meritorious or reasonable. The seminal decision recognizing the breadth of the protection provided by the participation clause is Pettway v. American Cast Iron Pipe Co., 411 F.2d 998 (5th Cir. 1969). In Pettway the Fifth Circuit addressed whether an employer could lawfully discipline an employee because he filed a charge with the Commission that contained false and malicious allegations. The court recognized initially the central role charges filed with the EEOC play in the enforcement of Title VII and the chilling effect employer retaliation would have on the willingness of employees to file charges. Id. at 1005 ("[T]he filing of charges is essential to the Commission's administration of Title VII [and therefore] must be protected."). The court then held that § 704(a) forbids retaliation against an employee because he has filed a charge even if the charge contains allegations that are false and malicious. Id. at 1007. In Merritt v. Dillard Paper Co., 120 F.3d 1181 (11th Cir. 1997), the Eleventh Circuit recently reaffirmed the breadth of the protection afforded by § 704(a) for persons who participate in proceedings under Title VII. Harry Merritt was one of several male sales representatives in defendant's Birmingham office who were accused by Janet Moore, the receptionist there, of sexual harassment constituting a hostile environment. Moore sued the employer and took depositions of Merritt and the other alleged harassers. In his deposition, Merritt denied some of Moore's allegations, but admitted others. He described Moore as a willing participant and criticized her lawsuit as unfounded. After settling with Moore, the employer fired Merritt because his deposition was "the most damning" one given by the alleged harassers. Id. at 1183. Merritt sued, claiming retaliatory discharge. The district court granted summary judgment, holding that the testimony Merritt gave was not protected because it was given involuntarily and without any desire to assist the co-worker who was alleging harassment. The Eleventh Circuit reversed, holding that the district court erred in imposing conditions on the type of testimony or participation that merits protection against retaliation. Id. at 1185-89; see especially id. at 1186 (stressing that "[t]he word ‘testified' [in § 704(a)] is not preceded or followed by any restrictive language that limits its reach"). Courts enforcing the participation clause have agreed that an employee who has filed a charge is protected from retaliation regardless of the merits of the charge and is not required to show that he reasonably believed that a violation occurred. See, e.g., EEOC v. Kallir, Philips, Ross, Inc., 401 F. Supp. 66, 70 n.6 (S.D.N.Y. 1975) ("An employee need not establish the validity of his original claim to establish a charge of employer retaliation for having made the original charge or otherwise engaging in conduct protected by § 704(a)."), aff'd mem., 559 F.2d 1203 (2d Cir. 1977); Glover v. South Carolina Law Enforcement Div., 170 F.3d 411, 414 (4th Cir. 1999) ("Reading a reasonableness test into section 704(a)'s participation clause would do violence to the text of that provision and would undermine the objectives of Title VII."); Booker, 879 F.2d at 1312 ("The ‘exceptionally broad protection' of the participation clause extends to persons who have "participated in any manner" in Title VII proceedings."); Womack v. Munson, 619 F.2d 1292, 1298 (8th Cir. 1980) (charging party was protected against retaliation even if the allegations in his charge were untruthful); Sias v. City Demonstration Agency, 588 F.2d 692, 695 (9th Cir. 1978) ("It is well settled that the participation clause shields an employee from retaliation regardless of the merit of his EEOC charge.").<1> As far as our research reveals, this Court has never decided a participation- clause case that turned on whether the plaintiff reasonably believed that a violation had occurred. Beginning with Grant v. Hazlett Strip-Casting Corp., 880 F.2d 1564, 1569 (2d Cir. 1989), however, this Court has stated in a number of cases that § 704(a) prohibits employer retaliation for having filed a charge only if the charging party reasonably believed that a violation had occurred.<2> See Gregory v. Daly, 243 F.3d 687, 700-01 (2d Cir. 2001); Quinn v. Green Tree Credit Corporation, 159 F.3d 759, 769 (2d Cir. 1998); Cosgrove v. Sears, Roebuck & Co., 9 F.3d 1033, 1039 (2d Cir. 1993); Sumner v. U.S. Postal Service, 899 F.2d 203, 209 (2d Cir. 1990). None of these decisions contains any analysis of the question, and in none of them did the court's use of the opposition-clause standard make a difference. In each of them the court found plaintiff's participation activity protected using the "good faith, reasonable belief" test, and so certainly would have found it protected even if that requirement had not been imposed. Title VII's enforcement scheme depends crucially on the filing of charges by employees who suspect discrimination or retaliation. As the Supreme Court has held, protecting employees from retaliation for filing charges serves the important purpose of "[m]aintaining unfettered access to statutory remedial mechanisms." Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997). See also Veprinsky v. Fluor Daniel, Inc., 87 F.3d 881, 889 (7th Cir. 1996) ("Given the instrumental role individual employees play in the statutory scheme, the protection of those individuals from retaliatory acts by the employer ‘is essential to accomplish the purpose of Title VII.'"); EEOC v. Board of Governors, 957 F.2d 424, 431 (7th Cir. 1992) ("Statutory provisions against retaliation . . . protect employees' right to participate in protected activity and aid the work of the EEOC which depends upon employee cooperation."); EEOC v. Pacific Press Pub. Ass'n, 676 F.2d 1272, 1280 (9th Cir. 1982) (neither the EEOC nor private parties can bring Title VII enforcement actions without a charge first having been filed). If employers were able to avoid liability for retaliating against employees who file Title VII charges by questioning the bona fides of the charge, and if employees filing charges bore the double risk of suffering lawful retaliation and of losing retaliation lawsuits, employees would be significantly deterred from filing charges with the Commission. See, e.g., Holt v. Continental Group, Inc., 708 F.2d 87, 91 (2d Cir. 1983) (retaliatory action by employer "carries with it the distinct risk that other employees may be deterred from protecting their rights" under Title VII). This would hamper the enforcement of Title VII and injure the public interest. Accordingly, we urge this Court to hold that § 704(a) prohibits retaliation for filing a charge regardless of whether the charging party reasonably believed that a violation occurred. CONCLUSION For the reasons stated above, the Commission respectfully urges this Court to reject the district court's rationale for dismissing Risley's retaliation claim. Respectfully submitted, NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP SKLOVER Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel PAUL D. RAMSHAW JOHN F. SUHRE Attorneys EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W., Rm. 7816 Washington, D.C. 20507 (202) 663-4736 (Ramshaw) (202) 663-4716 (Suhre) CERTIFICATE OF COMPLIANCE I hereby certify that, according to my word processor, the relevant portions of this brief contain 3,213 words. Paul D. Ramshaw John F. Suhre CERTIFICATE OF SERVICE I hereby certify that two copies of the foregoing brief were served by mailing them on this the 21st day of August, 2001, postage prepaid, to the following counsel of record: Linda Gail Bartlett, Esq. Bartlett & Bartlett LLP 110 East 42nd Street, Suite 1502 New York, NY 10017 Attorney for Plaintiff-Appellant James E. McGrath, III, Esq. Putney, Twombly, Hall & Hirson LLP 521 Fifth Avenue New York, NY 10175 Attorney for Defendant-Appellee Paul D. Ramshaw John F. Suhre Equal Employment Opportunity Commission 1801 L Street, N.W., Room 7816 Washington, DC 20507 (202) 663-4737 (Ramshaw) (202)663-4716 (Suhre) ********************************************************************************** <> <1> In Balazs v. Liebenthal, 32 F.3d 151, 158-59 (4th Cir. 1994) the court held that plaintiff was not protected because the charge he filed with the EEOC alleged only that he had been wrongly accused of sexual harassment and did not allege that he had been wrongly accused for discriminatory or retaliatory reasons. We disagree with the holding in Balazs. Because the plaintiff filed a charge with the EEOC, he participated in proceedings under one of the statutes the EEOC enforces. Although his charge did not explicitly state the basis for his claim, it can reasonably be inferred that he was complaining of sex discrimination, however inartfully. In any event, Balazs has no bearing on the outcome of this case because Risley’s charge expressly alleged sex discrimination and retaliation, which are clearly allegations covered by Title VII. <2> Grant appears to be the first case in which this Court made this statement. Grant, a participation-clause case, relied solely on Manoharan, which was an opposition-clause case, and which relied in turn on decisions from other circuits, all of which were opposition-clause cases. Grant, 880 F.2d at 1569; Manoharan, 842 F.2d at 593 n.1. Grant did not discuss the distinction between the two clauses.