Congress tasked the Equal Employment Opportunity Commission (EEOC) with administering and enforcing Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. This appeal involves the issue of the proper standard for determining whether an employer’s allegedly retaliatory action is materially adverse (and thus potentially actionable) under Title VII’s antiretaliation provision, 42 U.S.C. § 2000e-3(a). In granting summary judgment for the employer on plaintiff’s retaliation claim here, the district court invoked and then applied the adversity standard this Court uses for discrimination claims under a different provision, 42 U.S.C. § 2000e-2(a)(1). But the Supreme Court clarified in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006), that the adversity standard for retaliation is not the same as the adversity standard for discrimination. The standards differ “in important ways,” and the “broader” retaliation standard encompasses any action that might well dissuade a reasonable worker from making or supporting a charge of discrimination. Id. at 61, 66-68. Because of the EEOC’s strong interest in ensuring that courts apply the correct legal standard, the EEOC offers its views to this Court. See Fed. R. App. P. 29(a)(2).

1. Whether the district court should have applied the Burlington Northern standard for determining whether an employer’s challenged action is materially adverse (and thus potentially actionable) under Title VII’s antiretaliation provision.

2. Whether a jury could conclude that a reasonable employee might well be dissuaded from complaining of discrimination if she knew it would cause her employer—which had been allowing her to continue working while looking for a new job—to impose an ultimatum that she quit or be fired within two weeks.

STATEMENT OF THE CASE

Statement of the Facts

Plaintiff-Appellant Tracie Frank began working for Defendant-Appellee Heartland Rehabilitation Hospital, LLC (Heartland) in June 2018 as an assistant to Chief Nursing Officer Alicia Sorensen. App. Vol. I at 202-03, 256.[2] Around April 2019, Quality Director Adriel Robinson, who occupied the office next to Frank’s, began making crude comments to Frank and paying her unwanted sexual attention. App. Vol. I at 207-10, 217, 235. As Frank testified, Robinson would “undress[] [her] with his eyes,” give her “day-to-day stares,” and “[f]requently” remark on her appearance, sometimes with “a sexual tone in his voice” or with explicit reference to her sexual anatomy. App. Vol. I at 208-09, 217.

Meanwhile, Frank was struggling under Sorensen’s leadership style, which Frank found “harsh” and “unprofessional.” App. Vol. I at 206. According to Frank, Sorensen “expected things out of [her] without really talking things through” or providing adequate coaching. App. Vol. I at 206. As a result, while Frank “felt like [she] did a decent job,” she realized she “was spread pretty thin” and “wasn’t giving [Sorensen] 100 percent.” App. Vol. I at 213. And Sorensen apparently agreed. In April 2019, she presented Frank with a Last Chance Agreement detailing performance improvements she wished to see. App. Vol. I at 211, 251. While Frank found Sorensen’s concerns “exaggerated,” she ultimately sensed Sorensen “felt [she] wasn’t measuring up,” and Frank decided she “needed to find a position” that presented a better fit. App. Vol. I at 212-13. In any event, Frank testified, she also “want[ed] to get another position” so she could “get away from th[e] environment” Robinson’s harassment created at work: she simply “didn’t want to be a part of that anymore.” App. Vol. I at 218.

By July 2019, Frank told Sorensen she intended to look for other work. App. Vol. I at 212-13. According to Sorensen, once she learned Frank planned to find a new job, she “indicated that [she] was going to support [Frank] in that process” and “focused on [Frank] being able to just complete the day-to-day tasks of her job.” App. Vol. II at 51. Frank thus continued to serve as Sorensen’s assistant while job hunting and interviewing for positions outside Heartland. App. Vol. II at 54.

During this period, a coworker who had seen some of Robinson’s harassing behavior toward Frank encouraged Frank to report Robinson to human resources. App. Vol. I at 216. On August 16, 2019, after telling Sorensen of her intent to do so, Frank filed an internal harassment complaint against Robinson. App. Vol. I at 216-18. Three days later, Robinson resigned rather than submit to a human resources investigation. App. Vol. I at 123, 249.

On August 30, shortly after Frank complained, Sorensen told her Heartland could no longer keep her in her job while she looked for other work. App. Vol. I at 232; App. Vol. II at 54. Sorensen gave Frank fourteen days to find a new job and resign, or else be fired. App. Vol. I at 214; App. Vol. II at 54. Right around that time, Frank received a job offer at another hospital. App. Vol. I at 229. Although Frank had hoped for a “higher level job,” she “took the job that was offered to [her] right away” because she “was on a timeline and had to hurry and find something.” App. Vol. I at 230. She then immediately submitted a letter to Sorensen that same day, August 30, explaining that she had taken another position and giving two weeks’ notice of her resignation. App. Vol. I at 219, 229, 232.

Frank’s last day at Heartland was Friday, September 13, two weeks after she submitted her letter. App. Vol. I at 219. Because Frank’s new job required her to start on a payroll Monday, this timing left Frank unemployed for one week between jobs. App. Vol. I at 229. According to Sorensen, Frank would have been free to leave Heartland prior to September 13 because she did not need to give a full two weeks’ notice. App. Vol. II at 64. But Heartland’s Director of Human Resources testified that “if someone does not give a two-week notice, they’re not eligible for rehire.” App. Vol. I at 249.

After filing an EEOC charge against Heartland and receiving a right-to-sue letter, Frank brought this lawsuit. App. Vol. I at 20-21. As relevant, Frank claims Heartland violated Title VII by “forc[ing] [her] out of her job prematurely” in retaliation for complaining about Robinson. App. Vol. I at 16. Following discovery, Heartland moved for summary judgment. App. Vol. I at 45.

District Court’s Decision

The district court granted Heartland’s summary judgment motion. Add.1. The court noted that the parties agreed Frank’s harassment complaint was protected activity under Title VII, but it held that Frank could not make out a prima facie retaliation case because no jury could reasonably find that Heartland’s allegedly retaliatory response to that activity was sufficiently adverse to be actionable.[3] Add.13-15.

Invoking this Court’s standard for discrimination claims, rather than retaliation claims, the court required Frank to show a “significant change in employment status, … or a decision causing a significant change in benefits.” Add.14 (alteration in original) (quoting Daniels v. United Parcel Serv., Inc., 701 F.3d 620, 635 (10th Cir. 2012)). It then held that Heartland’s act of “chang[ing] [Frank’s] indefinite departure date to a date certain” did not meet this standard. Add.15. The court emphasized that Frank did “not argue that she was terminated due to her protected activity,” but only that her already-anticipated departure “was ‘hurried.’” Add.14. Noting that Frank found a new position within Heartland’s two-week timeline, the court dismissed as “speculation” the possibility that she might have found a better position had she been able to keep looking. Add.15. And although the court recognized that Frank went without pay for one week between jobs, it emphasized that Frank could have given Heartland less than two weeks’ notice and started her new job on an earlier payroll Monday that would have left her without a gap. Add.15.

ARGUMENT

A reasonable jury could find Heartland’s quit-or-be-fired ultimatum capable of deterring a reasonable employee in Frank’s position from engaging in protected activity.

To establish a prima facie retaliation claim under Title VII, a plaintiff must establish three distinct elements: “(1) she engaged in protected opposition to discrimination; (2) a reasonable employee would have found the challenged action materially adverse; and (3) a causal connection exists between the protected activity and the materially adverse action.” McGowan v. City of Eufala, 472 F.3d 736, 741 (10th Cir. 2006). If a plaintiff establishes a prima facie case, “the burden shifts to the employer to articulate a legitimate nondiscriminatory reason for the adverse action.” Id. If the employer does so, the burden then shifts back to the plaintiff to establish that the reason is pretextual. Id. Here, the district court ruled that Frank failed to establish a prima facie case because she did not satisfy the material adversity requirement and, in the alternative, that she failed to adduce sufficient evidence of pretext to prevail at the final stage of the burden-shifting analysis. This brief addresses only the first of those rulings.

A. The district court should have applied the Burlington Northern standard.

The Supreme Court set out the standard governing the material adversity requirement applicable to retaliation claims in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006). There, the Court held that an employer’s retaliation against an employee for her protected activity violates Title VII if it is “harmful to the point that [it] could well dissuade a reasonable worker from making or supporting a charge of discrimination.” Id. at 57. Unlike Title VII’s substantive antidiscrimination provision, the Court made clear, “the antiretaliation provision[] … is not limited to discriminatory actions that affect the terms and conditions of employment.” Id. at 64. After all, while the substantive provision prohibits discrimination “with respect to … compensation, terms, conditions, or privileges of employment,” 42 U.S.C. § 2000e-2(a)(1), the antiretaliation provision imposes no such qualification when making it “an unlawful employment practice for an employer to discriminate against any of [its] employees” in retaliation for engaging in protected activity, id. § 2000e-3(a).

The Burlington Northern Court found “strong reason to believe” that Congress intentionally drew this “important” textual distinction to further Title VII’s aims. Burlington N., 548 U.S. at 61, 63. As the Court reasoned, because “Title VII depends for its enforcement upon the cooperation of employees who are willing to file complaints and act as witnesses, … [i]nterpreting the antiretaliation provision to provide broad protection from retaliation helps ensure the cooperation upon which accomplishment of [Title VII’s] primary objective depends.” Id. at 67; see id. at 66 (rejecting the view that “it is ‘anomalous’ to read [Title VII] to provide broader protection for victims of retaliation than for … [discrimination] victims”). Accordingly, as this Court has observed, “[t]o warrant trial” on the issue of material adversity, “a plaintiff need only show that a jury could conclude that a reasonable employee in [the plaintiff’s] shoes would have found the defendant’s conduct sufficiently adverse that he or she well might have been dissuaded by such conduct from making or supporting a charge of discrimination.” Williams v. W.D. Sports, N.M., Inc., 497 F.3d 1079, 1090 (10th Cir. 2007) (Gorsuch, J.).

The district court here did not apply this standard. Instead, it stated that retaliation is actionable only if it effects a “significant change in employment status” or benefits. Add.14 (quoting Daniels, 701 F.3d at 635). The court drew that language, however, from a portion of this Court’s Daniels opinion that discussed the sort of adverse action this Court requires as an element of a discrimination claim. And, as noted, the Supreme Court has cautioned that “Title VII’s substantive [antidiscrimination] provision and its antiretaliation provision are not coterminous.” Burlington N., 548 U.S. at 67. Rather than asking whether Heartland’s allegedly retaliatory actions effected a significant change—or any change—in Frank’s employment status or benefits, the district court should have asked only whether they could have deterred a reasonable employee in Frank’s position from making a harassment claim. See id. (“The scope of [Title VII’s] antiretaliation provision extends beyond workplace-related or employment-related retaliatory acts and harm.”); Somoza v. Univ. of Denver, 513 F.3d 1206, 1213 (10th Cir. 2008) (recognizing that Burlington Northern rejected any requirement that a retaliation plaintiff show an “adverse employment action”).

B. A reasonable jury could conclude that Heartland took a materially adverse action against Frank.

An employer’s abrupt demand that an employee quit within fourteen days or else be terminated could well dissuade a reasonable worker from complaining of sexual harassment. See Barone v. United Airlines, Inc., 355 F. App’x 169, 181, 183-84 (10th Cir. 2009) (holding a jury could find an employer’s actions sufficiently adverse where the employer “compelled [plaintiff] to choose between two undesirable options”: resigning or accepting a less desirable position). The quit-or-be-fired ultimatum Heartland imposed here is thus of an entirely different character from the “petty slights or minor annoyances” that cannot support a viable retaliation claim. Burlington N., 548 U.S. at 68; see, e.g., Johnson v. Weld Cnty., 594 F.3d 1202, 1216 (10th Cir. 2010) (receiving “cold shoulder” at work not actionable); Daniels, 701 F.3d at 639-40 (decreased communication from manager not actionable where plaintiff admitted it “did not affect her ability to do her job”); Somoza, 513 F.3d at 1214-15 (individual instances of incivility not actionable). Nor is it analogous to being placed on a performance improvement plan “aimed at improving [one’s] work habits” by requiring day-to-day work adjustments that are neither “difficult [n]or especially time-consuming.” Payan v. United Parcel Serv., 905 F.3d 1162, 1173 (10th Cir. 2018).

This analysis holds even though Frank’s expressed intention to leave her job meant that she may not have reasonably expected to continue at Heartland indefinitely. At the time Frank made her harassment claim, Heartland had not imposed any particular timeline for her to leave her current role, and indeed Sorensen was actively supporting her at work. A jury, then, could reasonably find that Frank’s departure from Heartland was not so clearly imminent that the threat of a sudden, premature end to the relatively accommodating status quo could not have deterred a reasonable employee in her shoes from complaining. Cf. Porter v. Houma Terrebonne Hous. Auth. Bd. of Comm’rs, 810 F.3d 940, 948 (5th Cir. 2015) (holding that jury could find employer’s refusal to let plaintiff rescind her resignation could have deterred a reasonable employee from protected activity if the employee had reason to believe employer would have otherwise allowed rescission).

Nor does the fortuity that Frank happened to receive an alternative employment offer before the end of Heartland’s two-week timeline lessen the deterrent impact Heartland’s quit-or-be-fired ultimatum would have on a reasonable employee. A reasonable jury could find that Heartland did not know about Frank’s job offer—and even that she had not yet received one—at the time it issued its ultimatum. App. Vol. I at 229 (Frank testifying that she resigned right after receiving the offer). If Heartland made this ultimatum in retaliation for Frank’s protected activity, a jury could find Heartland’s “effort to impose” imminent unemployment on Frank sufficiently adverse, even if the effort proved unsuccessful.[4] Williams, 497 F.3d at 1090; see id. at 1087-88, 1090-91 (holding that employer’s retaliatory threats and opposition to employee’s application for unemployment benefits could be actionable even though there was no evidence her benefits were ever actually interrupted); cf. Faragalla v. Douglas Cnty. Sch. Dist. RE 1, 411 F. App’x 140, 149-50 (10th Cir. 2011) (holding that employer’s mere threat to deny plaintiff a desired transfer and “drum up performance deficits” against her “if she continued to press her discrimination claims” could be actionable retaliation).

The district court’s contrary reasoning should not persuade this Court otherwise. The court emphasized that Frank had not shown she would have found more lucrative substitute employment had Heartland given her more than two weeks to keep looking. Add.15. And it dismissed the significance of Frank’s one-week period of unemployment because, in its view, she could have avoided that gap by leaving Heartland earlier, without giving two weeks’ notice, and starting her new job on an earlier payroll Monday. Add.15. But the district court appeared to overlook evidence that Frank would have become ineligible for rehire at Heartland had she quit without giving two weeks’ notice. See App. Vol. I at 249. And, more critically, the district court’s focus on the supposedly minimal financial impact of Heartland’s action instead of on the signal it would send to an employee weighing whether to complain of harassment was a function of the district court’s erroneous view that Frank needed to show that Heartland’s alleged retaliation had a “significant” impact on her employment. Add.14.

As this Court has held, a retaliation plaintiff need not prove “some tangible, subjective psychological or monetary injury.” Williams, 497 F.3d at 1090. Such a requirement, this Court has explained, would not “fully honor Title VII’s purpose of prohibiting employer actions that not only impose tangible harms but also those that ‘are likely to deter victims of discrimination from complaining to the EEOC, the courts, and their employers.’” Id. (quoting Burlington N., 548 U.S. at 68). Rather than asking how badly Heartland ended up harming Frank, then, the district court ought to have asked whether “a jury could conclude that a reasonable employee in [Frank’s] shoes would have found [Heartland’s] conduct sufficiently adverse that he or she well might have been dissuaded by such conduct from making or supporting a charge of discrimination.” Id. As explained above, a jury could very reasonably reach that conclusion.

CONCLUSION

For the foregoing reasons, this Court should hold that the district court erred in concluding as a matter of law that Frank did not suffer a materially adverse action for purposes of her retaliation claim.

Respectfully submitted,

CHRISTOPHER LAGE

Deputy General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

ANNE NOEL OCCHIALINO

Acting Assistant General Counsel

/s/ Nicolas Sansone

NICOLAS SANSONE

Attorney

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

131 M St., NE, 5th Floor

Washington, DC 20507

(202) 921-3134

Nicolas.Sansone@eeoc.gov

CERTIFICATE OF COMPLIANCE

I certify that the foregoing brief complies with the type-volume requirements of Federal Rules of Appellate Procedure 29(a)(5) and 32(a)(7)(B) because it contains 3,081 words, excluding the parts of the brief exempted by Federal Rule of Appellate Procedure 32(f).

This brief also complies with the typeface and type style requirements of Federal Rules of Appellate Procedure 32(a)(5) and 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word with 14-point Century Schoolbook.

/s/ Nicolas Sansone

NICOLAS SANSONE

Attorney

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

131 M St., NE, 5th Floor

Washington, DC 20507

(202) 921-3134

Nicolas.Sansone@eeoc.gov

Dated: May 4, 2022

CERTIFICATE OF SERVICE

I certify that I electronically filed the foregoing amicus curiae brief with the Court via the appellate CM/ECF system on May 4, 2022, which will send notification of such filing to all counsel of record. I also certify that I will file seven paper copies of the foregoing brief with the Court as required by Tenth Circuit Rule 31.5.

/s/ Nicolas Sansone

NICOLAS SANSONE

Attorney

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

131 M St., NE, 5th Floor

Washington, DC 20507

(202) 921-3134

Nicolas.Sansone@eeoc.gov

[1] The EEOC takes no position on any other issue in this appeal, including whether plaintiff established any element of her prima facie retaliation case other than a materially adverse action, or whether plaintiff has produced sufficient evidence that her employer’s proffered nonretaliatory reasons for taking this action were pretextual.

[2] Citations with the form “App. Vol. X at XX” are to Appellant’s Separate Appendices. Citations with the form “Add.XX” are to the Addendum attached to Appellant’s Main Brief.

[3] In the alternative, the district court held that even if Frank had made out a prima facie case, no reasonable jury could find that Heartland’s proffered nonretaliatory reason for giving Frank two weeks to resign or get fired was pretextual. Add.15-17. The EEOC takes no position on that alternate holding.

[4] To be sure, the extent of Frank’s injury could bear on the separate question of damages were she to prevail on her retaliation claim.