09-0197-cv(L) _________________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT _________________________________________________________ MARTHA DIANE TOWNSEND, Plaintiff-Cross-Appellee, KARLEAN VICTORIA GREY-ALLEN, Plaintiff-Appellant, v. BENJAMIN ENTERPRISES, INC., Defendant-Appellee-Cross-Appellant. _________________________________________________________ On Appeal from the U.S. District Court for the Southern District of New York Hon. George A. Yanthis, Magistrate Judge _________________________________________________________ BRIEF OF THE U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF APPELLANT GREY-ALLEN AND IN FAVOR OF REVERSAL _________________________________________________________ P. DAVID LOPEZ GAIL S. COLEMAN General Counsel Attorney U.S. EQUAL EMPLOYMENT LORRAINE C. DAVIS OPPORTUNITY COMMISSION Acting Associate General Counsel Office of General Counsel 131 M Street, NE, Room 5SW24L CAROLYN L. WHEELER Washington, DC 20507 Assistant General Counsel (202) 663-4055 gail.coleman@eeoc.gov TABLE OF CONTENTS Table of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii Statement of Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Statement of the Issue. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 A. Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 B. District Court Decision. . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Summary of Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 The Participation Clause of Title VII's Anti-Retaliation Provision Precludes Retaliation Against a Director of Human Resources for Conducting an Internal Investigation into an Allegation of Sexual Harassment. . . . . . . . . . . . . . . . . . . . . . . . 11 A. Internal Investigations Are Part of Title VII's Remedial Scheme. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12 B. A Reasonable Jury Could Conclude That Benjamin Enterprises Retaliated Against Grey-Allen For Her Investigation Into Allegations of Sexual Harassment. . . . . . . . . . . . . . . 19 Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23 Certificate of Compliance Anti-Virus Certification Form Certificate of Service TABLE OF AUTHORITIES Cases Alaska Dep't of Envtl. Conservation v. EPA, 540 U.S. 461 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975). . . . . . . . . . . . . . . 16 Ardestani v. INS, 502 U.S. 129 (1991). . . . . . . . . . . . . . . . . . . . 13, 14 Beard v. Flying J, Inc., 266 F.3d 792 (8th Cir. 2001). . . . . . . . . . . . 17 Bragdon v. Abbott, 524 U.S. 624 (1998). . . . . . . . . . . . . . . . . . . . . 19 Burlington N. & Santa Fe Ry. & Co. v. White, 548 U.S. 53 (2006). . . . . . 11, 13 Collazo v. Bristol-Myers Squibb Mfg., Inc., 617 F.3d 39 (1st Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Correa v. Mana Prods., Inc., No. CV-04-2344, 2008 WL 728903 (E.D.N.Y. Mar. 17, 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . 9-10 Crawford v. Metro. Gov't of Nashville & Davidson County, Tenn., 129 S. Ct. 846 (2009). . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 18 Ellerth v. Burlington Indus., Inc., 524 U.S. 742 (1998). . . . . . . . . 14, 15, 16 Faragher v. City of Boca Raton, 524 U.S. 775 (1998). . . . . . . . . . . 14, 15, 16 Federal Express Corp. v. Holowecki, 128 S. Ct. 1147 (2008). . . . . . . . . . . .19 Frederick v. Sprint/United Mgmt. Co., 246 F.3d 1305 (11th Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17 Hatmaker v. Mem'l Med. Ctr., 619 F.3d 741 (7th Cir. 2010). . . . . . . . . . . . 14 In re Hechinger Inv. Co. of Del., 335 F.3d 243 (3d Cir. 2003). . . . . . . . . 13 Johnson v. Univ. of Cincinnati, 215 F.3d 561 (6th Cir. 2000). . . . . . . . . 22 Kolstad v. Am. Dental Ass'n, 527 U.S. 526 (1999). . . . . . . . . . . . 14, 15, 16 McKennon v. Nashville Banner Publ'g Co., 513 U.S. 352 (1995). . . . . . . . . 16 Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986). . . . . . . . . . . . . . .19 Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002). . . . . . . . . . . . 19 Ogden v. Wax Works, Inc., 214 F.3d 999 (8th Cir. 2000). . . . . . . . . . . . 17 Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000). . . . . . . . . 20 Russello v. United States, 464 U.S. 16 (1983). . . . . . . . . . . . . . . . . . 13 Skidmore v. Swift & Co., 323 U.S. 134 (1944). . . . . . . . . . . . . . . . . . 19 Smith v. Sec'y of Navy, 659 F.2d 1113 (D.C. Cir. 1981). . . . . . . . . . . . 22 Whatley v. MARTA, 632 F.2d 1325 (5th Cir. 1980). . . . . . . . . . . . . . . . . 21 Statutes and Rules Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 § 2000e-3(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 12, 13 § 2000e-5(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 § 2000e-8(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 § 2000e-9. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Fed. R. App. P. 29(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Miscellaneous Amicus Chamber of Commerce Br., Penn. State Police v. Suders, 542 U.S. 129 (2004) (No. 03-95). . . . . . . . . . . . . . . . . . . 15 Brief of the EEOC as Appellant, EEOC v. Total Sys. Servs., Inc., 221 F.3d 1171 (11th Cir. 2000) (No. 99-13196). . . . . . . . . . . . . . . . . . 19 Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, 1999 WL 33305874 (EEOC Guidance). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Facts About Retaliation, EEOC Website, http://www.eeoc.gov/laws/types/facts-retal.cfm. . . . . . . . . . . . . . . . . .19 Jathan v. Janove, The Faragher/Ellerth Decision Tree, 48 HR Mag. (Sept. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 The New Shorter Oxford English Dictionary (1993). . . . . . . . . . . . . . . 13 Webster's Third New International Dictionary (1986). . . . . . . . . . . . . . . 13 STATEMENT OF INTEREST The Equal Employment Opportunity Commission ("EEOC") is charged by Congress with interpreting, administering, and enforcing Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. This case asks whether the participation clause of Title VII's anti-retaliation provision applies to participation in internal employer investigations of sexual harassment prior to the filing of an EEOC charge. Given the importance of this issue to effective enforcement of Title VII, the EEOC offers its views to the Court. The EEOC files this brief pursuant to Rule 29(a) of the Federal Rules of Appellate Procedure. STATEMENT OF THE ISSUE Does the participation clause of Title VII's anti-retaliation provision preclude retaliation against a director of human resources for conducting an internal investigation into allegations of sexual harassment before the filing of an EEOC charge? STATEMENT OF THE CASE A. Statement of Facts<1> Defendant Benjamin Enterprises, Inc. is a family-owned business that provides job and life skills training to people seeking entry-level jobs and then places, supervises, and mentors them in jobs with other employers. (R.24, Ex. 1, M. Benjamin Dep. at 5.) The company was founded by Michelle Benjamin, who serves as president and is the majority shareholder. (Id. at 5, 7, 8.) Her husband, Hugh Benjamin, is also a shareholder and serves as the company's sole vice president. (Id. at 7.) Benjamin Enterprises employs approximately 150 people. (Id. at 6.) Martha Diane Townsend began working as a receptionist for Benjamin Enterprises in 2002. (Id. at 23.) On March 9, 2005, she told Michelle that Hugh had been sexually harassing her both verbally and physically for the past 21 months. (R.24, Ex. 8, Townsend Statement at 1; R.24, Ex. 1, M. Benjamin Dep. at 26, 29, 44.) Townsend testified that upon learning of the allegations, Michelle said that she would handle the situation herself and instructed her not to mention the alleged harassment to anyone else. (R.24, Ex. 3, Townsend Dep. at 110, 288.) Ignoring this directive, on March 17th, Townsend filed a written complaint with Karlean Victoria Grey-Allen, the director of human resources. Grey-Allen initiated an investigation. (Id. at 125-26; R.24, Ex. 11, M. Benjamin Memo.) Prior to working at Benjamin Enterprises, Grey-Allen had no experience in the corporate sector or as a human resources officer. (R.24, Ex. 1, M. Benjamin Dep. at 12.) Michelle hired her despite this lack of experience because Grey-Allen had worked extensively in training the population that Benjamin Enterprises sought to serve: entry-level individuals who had difficulty maintaining employment and had a high need for life skills training. (Id. at 12-13.) When Michelle concluded in late 2004 that Grey-Allen was having difficulty understanding the corporate culture and hierarchy, she instructed Grey-Allen to use Dennis Barnett, an outside consultant, as a mentor. (Id. at 16-17.) Barnett had visited Benjamin Enterprises on a monthly basis since 2002 to go over strategic goals with the executive team. (Id. at 16.) When he took on the role of mentor to Grey-Allen, he began to meet with her individually for an hour either before or after the executive team meetings. (Id.) At the outset of their work together, Barnett assured Grey-Allen that anything she said to him would remain confidential. (R.24, Ex. 5, Grey- Allen Dep. at 175.) Michelle also told her that these conversations would be confidential. (Id. at 97, 240.) Grey-Allen and Barnett met approximately three times for the purpose of discussing how Grey-Allen should do her job. (Id.) When Grey-Allen first received Townsend's complaint, both Michelle and Hugh were out of town. (R.24, Ex. 3, Townsend Dep. at 125.) In their absence, Grey-Allen called a government anti-discrimination agency for advice on how to proceed.<2> (R.24, Ex. 4, Grey-Allen Dep. at 119-20.) Based on the agency's recommendation that she conduct a formal interview with Townsend, Grey-Allen did so and tape recorded the conversation. (Id.; R.24, Ex. 3, Townsend Dep. at 111.) Grey-Allen also turned to her mentor, Barnett, for advice. She told him that Townsend had lodged a sexual harassment complaint against Hugh and asked him what she should do. (R.24, Ex. 4, Grey-Allen Dep. at 171, 173-74.) Barnett told her that he did not want to hear any details about the complaint and that she should follow the company's already-established procedures for investigating sexual harassment. (R.24, Ex. 5, Barnett Dep. at 25.) He advised her on how to be sure that any investigation was conducted properly. (Id.; R.24, Ex. 4, Grey-Allen Dep. at 174.) Both Grey- Allen and Barnett viewed this conversation as confidential. (R.24, Ex. 5, Barnett Dep. at 28-29; R.24, Ex. 4, Grey-Allen Dep. at 172, 175.) When Michelle and Hugh returned to the office, Grey-Allen met with Michelle alone and then also with Hugh about Townsend's allegations. (R.24, Ex. 4, Grey-Allen Dep. at 130; R.24, Ex. 1, M. Benjamin Dep. at 50.) Hugh denied everything. (R.24, Ex. 2, H. Benjamin Dep. at 26.) In her capacity as the director of human resources, Grey-Allen instructed Hugh to leave the premises until the investigation was over. (R.24, Ex. 4, Grey-Allen Dep. at 163-64.) She issued this directive because Benjamin Enterprises had a small office and the government agency had told her that the accused and the accuser should remain separated throughout the investigation. (Id. at 164.) Both Hugh and Michelle left for the day. (R.24, Ex. 1, M. Benjamin Dep. at 51.) On Monday, March 21st, Grey-Allen expressed an opinion that the company should settle with Townsend right away. Michelle replied that she did not want to settle and that she wanted a full investigation, including lie detector tests. (Id. at 56.) Michelle then called a supervisor at the government agency which Grey-Allen had previously contacted and learned that Hugh did not need to be barred from the premises. With this information, Michelle overruled Grey-Allen's directive that Hugh stay away from the office. She explained that keeping Hugh at home wrongly made him look guilty. (Id. at 58-59; R.24, Ex. 4, Grey-Allen Dep. at 192-93.) Michelle instructed Grey-Allen to let Townsend know that Hugh would be returning to work. (R.24, Ex. 1, M. Benjamin Dep. at 68.) Michelle then called Barnett to tell him that he no longer needed to mentor Grey-Allen. Stating that Grey-Allen had breached confidentiality by discussing the sexual harassment investigation with him, Michelle told him that Grey-Allen was fired. (R.24, Ex. 5, Barnett Dep. at 29-31.) That evening, Michelle personally took over the investigation into Hugh's conduct. (R.24, Ex. 1, M. Benjamin Dep. at 87.) She contacted H.R. Delivery, an outside consultant, and told the firm that Grey-Allen had breached confidentiality. (Id. at 96.) Michelle claims, and H.R. Delivery denies, that H.R. Delivery then advised her to fire Grey-Allen. (Id. at 91; R.24, Ex. 6, Walker Dep. at 37-38.) The next morning, Michelle terminated Grey-Allen by phone. (R.24, Ex. 1, M. Benjamin Dep. at 96.) She testified that she was angry and embarrassed that Grey-Allen had told Barnett about Townsend's "lurid" accusations against her husband. (R.22, M Benjamin Aff. ¶5.) Michelle told Townsend that she, and not Grey-Allen, was now in charge of the investigation. (R.24, Ex.3, Townsend Dep. at 142.) Although the alleged harasser was her own husband, Michelle told Townsend that this was her company, she could do what she wanted, and she would be able to separate her roles as wife and as president of Benjamin Enterprises. (Id. at 146.) During this same conversation, Michelle told Townsend that, in her opinion, Townsend had started the alleged harassment by allowing Hugh to speak to her in a sexual manner. (Id.) She instructed Townsend to come to work, to conduct herself professionally, and to move forward. (Id. at 147.) Townsend returned to work as instructed but found that it was impossible to function as if nothing had happened. She advised Michelle that she was unable to work at such close quarters with Hugh. (R.24, Ex. 3, Townsend Dep. at 218-23.) Because Michelle was firm in her decision not to bar Hugh from the office, Townsend went home and never came back. (Id. at 223.) She did not view herself as having quit but as having been driven out. (Id. at 222-25.) Under Michelle's direction, H.R. Delivery began to investigate the allegation of sexual harassment. (R.24, Ex. 8, M. Benjamin Memo.) Because Michelle instructed H.R. Delivery to resolve the investigation as quickly as possible, H.R. Delivery interviewed many employees over the phone rather than in person. (R.24, Ex. 6, Walker Dep. at 21-22.) One investigator phoned Townsend at home in an attempt to interview her, but Townsend felt that she had already repeated her story enough times and declined to answer more questions. (R.24, Ex. 3, Townsend Dep. at 128; R.24, Ex. 7, Cordwell Dep. at 28.) Even though Michelle had a tape recording that Grey-Allen had made of an interview with Townsend, Michelle did not give this recording to H.R. Delivery. Nor did she give H.R. Delivery any of the notes that Grey-Allen had taken before her dismissal. (R.24, Ex. 7, Cordwell Dep. at 27-28; R.24, Ex. 6, Walker Dep. at 25-26, 30.) H.R. Delivery was therefore forced to investigate Townsend's allegation without full information. Ultimately, H.R. Delivery could not determine whether Hugh had sexually harassed Townsend. (R.24, Ex. 6, Walker Dep. at 31.) Because his guilt remained an open question, H.R. Delivery did not recommend that Hugh be disciplined. Instead, it recommended only general changes, including that Benjamin Enterprises provide sexual harassment training twice a year and that it not permit employees to be alone in the office. (Id. at 33.) Grey-Allen sued Benjamin Enterprises for retaliation and Townsend sued for sexual harassment and constructive discharge. (R.1, Complaint.) Grey-Allen lost at summary judgment and Townsend won after trial. (R.30, Slip Op. on S.J.; R.25, Slip Op. on Reh'g; R.47, Judgment.) Grey-Allen and Benjamin Enterprises both appealed. (R.56, Grey-Allen Notice of Appeal; R.72, Benjamin Enters. Notice of Appeal.) Grey-Allen has filed her brief as Plaintiff-Appellant challenging the award of summary judgment. Townsend will not file her brief defending the trial verdict until after Benjamin Enterprises files its brief as Defendant-Appellee-Cross-Appellant. Accordingly, the instant brief addresses the merits only of Grey-Allen's claim.<3> B. District Court Decision Title VII prohibits an employer from retaliating against an employee for opposing unlawful conduct or for participating "in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a). Grey-Allen did not pursue a claim under the opposition clause because she lacked a good faith belief that Townsend had been sexually harassed. (R.33, Memo Oppposing Reconsid. at 2-4.) Instead, she alleged that Benjamin Enterprises terminated her in retaliation for her participation in the investigation of Townsend's sexual harassment allegations. (R.1, Complaint ¶ 33.) Benjamin Enterprises moved for summary judgment on the ground that Grey-Allen did not engage in protected activity. (R.21, Brief at 20.) The district court agreed with Benjamin Enterprises and granted summary judgment against Grey-Allen. It stated in full: "'[I]n order to gain protection under the participation clause, the participation must be in an investigation or proceeding covered by Title VII, and thus not in an internal employer investigation.' Correa v. Mana Prods., Inc., No. CV-04-2344, 2008 WL 728903, at *8 (E.D.N.Y. Mar. 17, 2008). Here, it is undisputed that Grey-Allen's investigation was conducted pursuant to her employer's internal procedures; more to the point, Grey-Allen's actions were not associated with any Title VII proceeding. Therefore, Grey-Allen fails to establish her prima facie case because she proffers no evidence that she engaged in protected activity." (R.35, Slip Op. on Reconsid. at 4-5.) SUMMARY OF ARGUMENT The district court interpreted the participation clause of Title VII's anti-retaliation provision too narrowly in concluding that it does not bar retaliation against a director of human resources for conducting an internal investigation into an allegation of sexual harassment. Internal investigations are a crucial part of Title VII's enforcement mechanism; indeed, a plaintiff who cannot show that she used an employer's reasonable complaint procedure prior to filing a charge with the EEOC may be unable to establish employer liability. By conducting a full and impartial investigation into allegations of sexual misconduct, a director of human resources gives life to an employer's complaint mechanism and thereby carries out Title VII's primary goal of preventing and deterring harm. Whether or not the investigator's conduct would also be protected by Title VII's opposition clause, the key role that internal investigations play in implementing the statutory scheme demands that the individual carrying out the investigation be protected by the participation clause. ARGUMENT The Participation Clause of Title VII's Anti-Retaliation Provision Precludes Retaliation Against a Director of Human Resources for Conducting an Internal Investigation into an Allegation of Sexual Harassment The district court erred in holding that the participation clause of Title VII's anti-retaliation provision does not bar retaliation against an employee for conducting an internal investigation into an allegation of sexual harassment. Internal investigations are covered because Title VII's anti- retaliation provision is intended "to prevent employer interference with 'unfettered access' to Title VII's remedial mechanisms . . . by prohibiting employer actions that are likely 'to deter victims of discrimination from complaining to the EEOC,' the courts, and their employers." Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (citations omitted; emphasis added). If an employee knows that she will be fired for conducting an investigation into sexual harassment allegations, she most likely will not investigate. If a victim knows that complaining to her employer would be useless because the individual charged with conducting investigations is unwilling to act, she most likely will not complain. This chilling effect would thwart a victim's "'unfettered access' to Title VII's remedial mechanisms." Id. Title VII does not permit this result. A.Internal Investigations are Part of Title VII's Remedial Scheme The anti-retaliation provision of Title VII states: "It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment ... because he has opposed any practice made an unlawful employment practice by this subchapter [the "opposition clause"], or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter [the "participation clause"]." 42 U.S.C. § 2000e-3(a). This case involves only the participation clause. At issue is whether an internal investigation conducted before the filing of an EEOC charge qualifies as "an investigation . . . under [Title VII]." The district court erred in holding that the participation clause does not cover employer-initiated investigations. There is no basis for limiting the phrase "investigation . . . under this subchapter" to investigations conducted by the EEOC. Indeed, no court of appeals has limited the statute in that fashion. Congress elsewhere in Title VII used language making clear its intent to address only investigations conducted by the EEOC. See 42 U.S.C. § 2000e-5(b) ("the Commission . . . shall make an investigation" of a charge); § 2000e-8(a) (the Commission shall have access to evidence relating to unlawful employment practices "[i]n connection with any investigation of a charge"); § 2000e-9 (referring to "hearings and investigations conducted by the Commission or its duly authorized agents or agencies"). The fact that Congress did not use such Commission-specific language in section 2000e-3(a) suggests that employer-initiated investigations into conduct proscribed by Title VII are covered. See Burlington N., 548 U.S. at 62-63 ("We normally presume that, where words differ as they differ here, 'Congress acts intentionally and purposely in the disparate inclusion or exclusion.'") (quoting Russello v. United States, 464 U.S. 16, 23 (1983)). The ordinary meaning of the word "under" in the context of a statute is "subject to" or "governed by" the statute in question. Ardestani v. INS, 502 U.S. 129, 135 (1991); see The New Shorter Oxford English Dictionary 3469 (1993) ("Subject to the authority, control, direction, or guidance of."); Webster's Third New International Dictionary 2487 (1986) ("required by: in accordance with: bound by"); In re Hechinger Inv. Co. of Del., 335 F.3d 243, 252 (3d Cir. 2003) (Alito, J.) ("When an action is said to be taken 'under' a provision of law . . ., what is generally meant is that the action is 'authorized' by the provision of law."). The Supreme Court's precedents interpreting Title VII leave no doubt that an employer's internal investigations occur "under" Title VII because such investigations are subject to or governed by Title VII. See Ardestani, 502 U.S. at 135. But see Hatmaker v. Mem'l Med. Ctr., 619 F.3d 741, 746-47 (7th Cir. 2010) (participation clause does not cover internal investigations before the filing of a charge with the EEOC; not addressing Supreme Court precedents). In a series of cases, the Supreme Court has held that Title VII imposes an affirmative duty on employers to investigate allegations of sexual harassment to avoid liability under the statute. For example, the Court in Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Ellerth v. Burlington Industries, Inc., 524 U.S. 742 (1998), held that an employer can assert an affirmative defense to avoid vicarious liability for a supervisor's unlawful employment actions that do not result in a tangible employment action if (1) "the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior," and (2) "the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer." Faragher, 524 U.S. at 807; Ellerth, 524 U.S. at 765. Likewise, in Kolstad v. American Dental Association, 527 U.S. 526, 545-46 (1999), the Supreme Court held that an employer could avoid punitive damages under Title VII by showing that the supervisor was acting contrary to the employer's good faith efforts to comply with Title VII. The decisions in Faragher, Ellerth, and Kolstad thus create strong incentives for employers to implement policies and procedures that would identify and correct instances of unlawful discrimination as a means to avoid liability or limit damages under Title VII. See Crawford v. Metro. Gov't of Nashville & Davidson County, Tenn., 129 S. Ct. 846, 852 (2009) (recognizing that Faragher and Ellerth decisions give employers strong "incentive to enquire"). Not surprisingly, employers have responded to the decisions by implementing or expanding their policies and internal complaint procedures. See Amicus Chamber of Commerce Br. at 2, Penn. State Police v. Suders, 542 U.S. 129 (2004) (No. 03-95), 2004 WL 110584, at *2 ("Following this Court's decisions in Faragher and Ellerth . . ., employers have made great strides in . . . implementing zero-tolerance policies, establishing user-friendly, effective internal complaint procedures, and vigorously investigating complaints of sexual and other harassment in the workplace."); Jathan W. Janove, The Faragher/Ellerth Decision Tree, 48 HR Mag. (Sept. 2003) ("There is no question that [Faragher and Ellerth] have increased employer understanding of the importance of preventive measures. They have contributed to the development of sound anti- harassment policies [and] procedures."). When an employer conducts an internal investigation into whether a Title VII violation has occurred, the employer not only makes itself eligible for the affirmative defense recognized by the Supreme Court's Title VII cases, but also acts in conformity with Title VII's central objective to prevent and deter harm.<4> See Faragher, 524 U.S. at 806 (Title VII's "'primary objective,' like that of any statute meant to influence primary conduct, is not to provide redress but to avoid harm.") (quoting Albemarle Paper Co. v. Moody, 422 U.S. 405, 417 (1975)); Ellerth, 524 U.S. at 764 ("Title VII is designed to encourage the [employer's] creation of antiharassment policies and effective grievance mechanisms."); Kolstad, 527 U.S. at 546 (recognizing "Title VII's objective of motivat[ing] employers to detect and deter Title VII violations"); accord McKennon v. Nashville Banner Publ'g Co., 513 U.S. 352, 358 (1995). Those principles also make clear that an employer's investigation into allegations of illegal conduct take place under Title VII's framework. Such an investigation is a fundamental and indispensable component of an employer's good faith efforts to comply with Title VII through the development and implementation of anti-harassment policies and complaint procedures. See Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, 1999 WL 33305874, at *9 (EEOC Guidance) ("An anti-harassment policy and complaint procedure should contain, at a minimum . . . [a] complaint process that provides a prompt, thorough, and impartial investigation."). Accordingly, such investigations are subject to review in Title VII actions to ensure compliance with the employer's obligations as envisioned by the Supreme Court's decisions. See, e.g., Beard v. Flying J, Inc., 266 F.3d 792, 799 (8th Cir. 2001) (no affirmative defense where employer interviewed only alleged harasser and victim, and not other employees who could have told of harassment, and where investigation ended only with warning to harasser); Frederick v. Sprint/United Mgmt. Co., 246 F.3d 1305, 1314-15 (11th Cir. 2001) (employer must act in reasonably prompt manner to respond to complaint); Ogden v. Wax Works, Inc., 214 F.3d 999, 1007 (8th Cir. 2000) (no affirmative defense where employer performed cursory investigation that culminated with forcing plaintiff to resign, rather than imposing discipline on harasser). Vigorous internal investigations will hardly be likely if an employer is free to retaliate against the investigator. And, indeed, employers interested in rooting out discrimination in the workplace will suffer themselves if their human resource department is reluctant to follow up on allegations of sexual harassment out of fear of retaliation. For this reason, an investigator's contacting of a federal or state anti-discrimination agency about reported discrimination is, itself, a form of protected participation. Although today Grey-Allen would probably be protected from retaliation under the opposition clause, the two clauses of the anti- retaliation provision do not operate in isolation. An employee who testifies in support of a charging party in an EEOC investigation, for example, would be opposing conduct proscribed by Title VII and also participating in an investigation "under this subchapter." The two subsections of section 704(a) are best read not as mutually exclusive sub-species of retaliation, but as complementary provisions designed to prohibit all retaliation that could reasonably deter the exercise of rights protected under Title VII. For more than ten years, the EEOC has interpreted the participation clause to cover internal investigations. Brief of the EEOC as Appellant, EEOC v. Total Sys. Servs., Inc., 221 F.3d 1171 (11th Cir. 2000) (No. 99- 13196); accord Facts About Retaliation, EEOC Website, http://www.eeoc.gov/laws/types/facts-retal.cfm ("Examples of participation include . . . cooperating with an internal investigation of alleged discriminatory practices."). Although the EEOC's interpretation is not controlling, it does reflect "a body of experience and informed judgment to which courts and litigants may properly resort for guidance" and, as such, is at least "entitled to a 'measure of respect'" by the Court. Federal Express Corp. v. Holowecki, 128 S. Ct. 1147, 1156 (2008) (quoting Bragdon v. Abbott, 524 U.S. 624, 642 (1998), and Alaska Dep't of Envtl. Conservation v. EPA, 540 U.S. 461, 488 (2004)); Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110 n.6 (2002); Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986); Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). B. A Reasonable Jury Could Conclude That Benjamin Enterprises Retaliated Against Grey-Allen For Her Investigation Into Allegations of Sexual Harassment A reasonable jury could conclude that Michelle Benjamin fired Grey- Allen because Grey-Allen was investigating whether Michelle's husband, Hugh, had sexually harassed Townsend. A jury could find that Michelle's explanation for the termination - that she was embarrassed by Grey-Allen's breach of confidentiality to Barnett - was so unreasonable as to be not credible. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000) ("Proof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive."). Weighing against Michelle's explanation is the fact that Michelle had instructed Grey-Allen to rely on Barnett for guidance in performing her job. (R.24, Ex. 1, M. Benjamin Dep. at 16-17.) Both Michelle and Barnett had guaranteed Grey-Allen that her conversations with Barnett would be confidential. (R.24, Ex. 5, Grey-Allen Dep. at 97, 175, 240.) Michelle knew that Grey-Allen had no prior experience as a human resources officer and that she had never before investigated an allegation of sexual harassment. (R.24, Ex. 1, M. Benjamin Dep. at 12.) It was not only foreseeable but highly probable that, faced with an allegation that the company's vice president (and owner's husband) had sexually harassed an employee, Grey-Allen would feel the need to seek guidance on how best to proceed. A reasonable jury could conclude that Michelle fired Grey-Allen because she could not control the outcome of Grey-Allen's investigation. Early on, Michelle objected that Grey-Allen's directive for Hugh to stay out of the office made Hugh look guilty. (Id. at 58-59; R.24, Ex. 4, Grey-Allen Dep. at 192-93.) After she fired Grey-Allen but before H.R. Delivery began to investigate, Michelle told Townsend that she held Townsend, not Hugh, responsible for allowing Hugh to speak to her in a sexual manner. (R.24, Ex. 3, Townsend Dep. at 146.) Even when she authorized H.R. Delivery to investigate, Michelle withheld a tape recording of Townsend's allegations and all of Grey-Allen's notes. (R.24, Ex. 7, Cordwell Dep. at 27-28; R.24, Ex. 6, Walker Dep. at 25-26, 30.) A jury could find that these were not the actions of an individual who wanted a truly impartial investigation. Benjamin Enterprises argued to the district court that the participation clause does not preclude an employer from telling its director of human resources how to do her job. (R.21, Brief at 18 (citing Whatley v. MARTA, 632 F.2d 1325 (5th Cir. 1980)). While this premise may be true, it is insufficient to support summary judgment. See Whatley, 632 F.2d at 1329 (assuming that employee was protected from retaliation for performing his job of handling discrimination complaints, but upholding dismissal where evidence showed that dismissal was for his "manner of handling his job, his lack of cooperation within his office, his mismanagement of staff, his refusal to comply with the terms of his job description, and his refusal to follow instructions from his supervisor"). An employer may not fire an employee who participates in a sexual harassment investigation simply because it dislikes seeing that employee carry out his or her job. See Collazo v. Bristol-Myers Squibb Mfg., Inc., 617 F.3d 39, 49 (1st Cir. 2010) (Title VII protects supervisor who helped employee pursue sexual harassment complaint; "an employer cannot be permitted to avoid liability for retaliation under Title VII simply by crafting equal employment policies that require its employees to report unlawful employment practices"); Johnson v. Univ. of Cincinnati, 215 F.3d 561, 580 (6th Cir. 2000) ("the individual who has contracted to advocate on behalf of women and minorities has not thereby contracted to be retaliated against for his advocacy"); Smith v. Sec'y of Navy, 659 F.2d 1113, 1121 (D.C. Cir. 1981) (work of EEO officer "plainly falls within the protective ambit of the statutory language"). Whatever else the participation clause may allow, it does not allow an employer to predetermine the outcome of a sexual harassment investigation. Employers are not free to fire a director of human resources because that individual seeks to act impartially. As discussed above, a jury could reasonably find that Michelle fired Grey-Allen in order to influence the investigation into Hugh's conduct. Such a finding would mandate judgment for Grey-Allen on the retaliation claim. CONCLUSION The district court erred in holding that the participation clause does not apply to internal investigations prior to the filing of an EEOC charge. Because internal investigations are an integral part of Title VII's remedial scheme, participation in such an investigation is a protected activity. For the foregoing reasons, the EEOC respectfully requests that this Court reverse the award of summary judgment and remand for further proceedings. Respectfully submitted, P. DAVID LOPEZ General Counsel LORRAINE C. DAVIS Acting Associate General Counsel s/ Gail S. Coleman CAROLYN L. WHEELER ______________________________ Assistant General Counsel GAIL S. COLEMAN Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, NE, Room 5SW24L Washington, DC 20507 202-663-4055 CERTIFICATE OF COMPLIANCE Pursuant to Rule 32(a)(7)(C) of the Federal Rules of Appellate Procedure, and Rule 32(a) of the Second Circuit Rules, I certify that this brief was prepared with Microsoft Office Word 2003 and that it uses Times New Roman type, size 14 point. I further certify that this brief contains 4659 words, from the Statement of Interest through the Conclusion and signature block, as determined by the Microsoft Office Word 2003 word- count function. s/ Gail S. Coleman ____________________________ GAIL S. COLEMAN Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, NE, Room 5SW24L Washington, DC 20507 (202) 663-4055 gail.coleman@eeoc.gov ANTI-VIRUS CERTIFICATION FORM (Second Circuit Local Rule 32(a)(1)(E)) CASE NAME: Townsend v. Benjamin Enterprises DOCKET NUMBER: 09-0197-cv (L) I, Gail S. Coleman, certify that I have scanned for viruses the PDF version of the Amicus Brief that was submitted in this case as an email attachment to briefs@ca2.uscourts.gov and that no viruses were detected. NAME AND VERSION OF ANTI-VIRUS DETECTOR USED: Trend Micro OfficeScan Client for Windows, Version 10.0. s/ Gail S. Coleman _____________________________ GAIL S. COLEMAN Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, NE, Room 5SW24L Washington, DC 20507 (202) 663-4055 gail.coleman@eeoc.gov CERTIFICATE OF SERVICE I, Gail S. Coleman, hereby certify that I filed one original and nine copies of the foregoing amicus brief with the Court by first-class mail, postage pre-paid, on this 23rd day of December, 2010. I also certify that I submitted the amicus brief in PDF format as an e-mail attachment to civilcases@ca2.uscourts.gov, and that I e-mailed a copy of the PDF version to all parties. I further certify that I served two paper copies of the foregoing amicus brief this 23rd day of December, 2010, by first-class mail, postage pre-paid, to the following counsel of record: Stephen Bergstein Richard Gregg Kass Bergstein & Ulrich, LLP Bond, Schoeneck & King PLLC 15 Railroad Ave. 330 Madison Ave. Chester, NY 10918 New York, NY 10017 s/ Gail S. Coleman _________________________ GAIL S. COLEMAN Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, NE, Room 5SW24L Washington, DC 20507 ********************************************************************************** <> <1> These facts are taken from the record before the district court when it granted summary judgment against Grey-Allen. <2> Grey-Allen could not recall whether she had called the EEOC or a state agency. (R.24, Ex. 4, Grey-Allen Dep. at 119.) <3> The EEOC intends to file a separate amicus curiae brief in support of Townsend after Townsend files her opening brief. <4> In a case where the alleged harasser is a proxy for the employer, as here, the Faragher/Ellerth defense would not be available. There is no basis in Title VII, however, for conditioning the protections of the participation clause on the identity of the alleged harasser. <5> Perhaps because this case arose before the Supreme Court adopted an expansive reading of Title VII's opposition clause in Crawford v. Metropolitan Government of Nashville and Davison County, Tennessee, 129 S. Ct. 846 (2009), Grey-Allen did not argue that the opposition clause protected her. (R. 33, Memo Oppposing Reconsid. at 2-4.) Post-Crawford, it is doubtful whether she would have made the same concession.