____________________________________________ No. 11-4128 ____________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT ____________________________________________ ELIZABETH A. BERTSCH, Plaintiff-Appellant v. OVERSTOCK.COM, Defendant-Appellee. _________________________________________________________ On Appeal from the United States District Court for the District of Utah Hon. Dale A. Kimball, District Judge _________________________________________________________ BRIEF OF THE U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF APPELLANT AND REVERSAL _________________________________________________________ P. DAVID LOPEZ U.S. EQUAL EMPLOYMENT General Counsel OPPORTUNITY COMMISSION Office of General Counsel CAROLYN L. WHEELER 131 M Street, N.E. Acting Associate General Counsel Room 5NW14G Washington, D.C. 20507 CHRISTINE J. BACK (202) 663-4734 (phone) Attorney (202) 663-7090 (fax) christine.back@eeoc.gov TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv STATEMENT OF ISSUES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 I. Statement of the Facts. . . . . . . . . . . . . . . . . . . . . . . . . . 2 II. District Court Opinion. . . . . . . . . . . . . . . . . . . . . . . . 9 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 I. The district court misapplied the Burlington Northern standard in holding that Bertsch did not make out a prima facie case of retaliation. . . . . 12 A. Bertsch established a prima facie case of retaliation as to the performance plan and the threat of reassignment. . . . . . . . . . . . . . . . . . . . . . 12 B. The district court erred in concluding as a matter of law that a performance improvement plan or written warning cannot constitute an adverse action for purposes of a retaliation claim under Title VII in mistaken reliance on this Court's decision in Haynes. . . . . . . . . . . . . . . . . . . 14 C. Placing an employee on a performance plan may be actionable conduct under Burlington Northern, this Court's retaliation analyses in the First Amendment context, and other Circuits' post-Burlington Northern Title VII retaliation holdings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 1. Issuing a performance improvement plan or written warning would dissuade a reasonable employee from raising a complaint of discrimination, satisfying the standard for material adversity under Burlington Northern. . . . 17 2. In the First Amendment retaliation context, which is analogous to the Title VII retaliation context, this Court has held that written warnings may constitute an adverse action. . . . . . . . . . . . . . . . . . . . . . . . . 19 3. Other Circuits have held that written warnings and performance improvement plans may constitute actionable retaliation under Title VII. . . 20 D. The district court erred in holding that Overstock's threat to reassign Bertsch to the warehouse facility did not constitute an adverse action by failing to analyze the threat as required by Burlington Northern, instead emphasizing the reassignment did not occur. . . . . . . . . . . . . . . . . . . . . . . . . 21 II. The district court, in contravention of this Court's precedent, applied an overly rigid causation analysis relating to the termination of Bertsch's employment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24 A. The district court's refusal to consider "pretext" evidence at the prima facie stage is inconsistent with this Court's view that such evidence may be used to establish causation. . . . . . . . . . . . . . . . . . . . . . . . . . . 24 B. The district court erred in holding that Bertsch failed to establish a causal link between her protected activity and her termination because the facts support a theory that the termination was the culmination of a pattern of retaliatory conduct that closely followed her protected activity. . . . . . . 28 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . 32 TABLE OF AUTHORITIES FEDERAL CASES Agnew v. BASF Corp., 286 F.3d 307 (6th Cir. 2002) . . . . . . . .. . . .. . . . 14 Bertsch v. Overstock.com, No. 10-37, 2011 WL 2117615 (D. Utah May 27, 2011). . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . .9, 10, 13, 21, 23 Brammer-Hoelter v. Twin Peaks Charter Academy, 492 F.3d 1192 (10th Cir. 2007). . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . . 18 Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006). . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .1, 14, 15 Chavez v. City of Albuquerque, 630 F.3d 1300 (10th Cir. 2011). . . .. . . .. . . 12 Couch v. Board of Trustees of the Memorial Hospital of Carbon Co., 587 F.3d 1223 (10th Cir. 2009). . . .. . . .. . . .. . . .. . . .. . . .. . . . 19, 20 Crawford v. Carroll, 529 F.3d 961 (11th Cir. 2008). . . .. . . .. . . .. . . .. .21 EEOC v. PVNF, L.L.C., 487 F.3d 790 (10th Cir. 2007). . . .. . . .. . . .. . .14, 16 Fye v. OK Corp. Commission, 516 F.3d 1217 (10th Cir. 2008) . . . . . . . . . 13 Givens v. Cingular Wireless, 396 F.3d 998 (8th Cir. 2005). . . . . . . . . . . . 15 Haynes v. Level 3 Communications, 456 F.3d 1215 (10th Cir. 2006). . . 1, 10, 15, 16 Hennagir v. Utah Department of Corrections, 587 F.3d 1255 (10th Cir. 2009). . . 15 Hertz v. Luzenac America, Inc., 370 F.3d 1014 (10th Cir. 2004). . . . . . . . . 13 Hinds v. Sprint/United Management Co., 523 F.3d 1187 (10th Cir. 2008). . . . . . 30 Hook v. Regents of the University of CA, No. 09-2102, 2010 WL 3529414 (10th Cir. Sept. 13, 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Marx v. Schnuck Markets, Inc., 76 F.3d 324 (10th Cir. 1996). . . . . . . . . . . 29 Mathews v. Denver Newspaper Agency, LLP, No. 09-1233, 2011 WL 1901341 (10th Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . .25 Michael v. Caterpillar Financial Services Corp., 496 F.3d 584 (6th Cir. 2007). . 21 Orr v. Albuquerque, 417 F.3d 1144 (10th Cir. 2005). . . . . . . . . . . . . . . 12 Piercy v. Maketa, 480 F.3d 1192 (10th Cir. 2007). . . . . . . . . . . . . . . 28 Plotke v. White, 405 F.3d 1092 (10th Cir. 2005). . . . . . . . . . . . . . . . . 12 Porter v. Shah, 606 F.3d 809 (D.C. Cir. 2010). . . . . . . . . . . . . . . . . . 21 Proctor v. UPS, 502 F.3d 1200 (10th Cir. 2007). . . . . . . . . . . . . . . . . .26 Schuler v. City of Boulder, 189 F.3d 1304 (10th Cir. 1999). . . . . . . . . . . .19 Semsroth v. City of Wichita, 555 F.3d 1182 (10th Cir. 2009). . . . . . . 12, 15, 22 Silverman v. Board of Education of the City of Chicago, 637 F.3d 729 (7th Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20 Somoza v. University of Denver, 513 F.3d 1206 (10th Cir. 2008). . . . . . . . . 15 Taylor v. Small, 350 F.3d 1286 (D.C. Cir. 2003). . . . . . . . . . . . . . . . . 15 Trujillo v. Pacificorp, 524 F.3d 1149 (10th Cir. 2008). . . . . . . . . . . . . .13 U.S. Postal Serv. Board of Governors v. Aikens, 460 U.S. 711 (1983). . . . . 26, 27 Vaughn v. Epworth Villa, 537 F.3d 1147 (10th Cir. 2008). . . . . . . . . . . . 18 Wells v. CO Department of Transportation, 325 F.3d 1205 (10th Cir. 2003). . . . . . . . . . . . . . . . . . . . . 25, 26, 27 Williams v. W.D. Sports, N.M., Inc., 497 F.3d 1079 (10th Cir. 2007). . . 15, 23 FEDERAL STATUTES Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 STATEMENT OF INTEREST The Equal Employment Opportunity Commission ("EEOC") is charged by Congress with interpreting, administering, and enforcing various federal laws against employment discrimination, including Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e et seq. This case raises an important issue concerning when an action is sufficiently adverse to constitute actionable retaliation under Title VII. This case also provides an occasion for this Court to revisit, in light of Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006), an aspect of its decision in Haynes v. Level 3 Communications, 456 F.3d 1215 (10th Cir. 2006), that concerns the material adversity of a performance improvement plan. The Commission files this brief pursuant to Rule 29(a) of the Federal Rules of Appellate Procedure. STATEMENT OF ISSUES <1> 1. Whether, in dismissing Bertsch's retaliation claim, the district court erred by requiring that each challenged act affect the terms of her employment to constitute actionable retaliation under Title VII, thereby contravening requisite application of the Supreme Court's Burlington Northern standard. 2. Whether, in dismissing Bertsch's retaliation claim, the district court erred by finding a lack of causation between her complaint and her termination approximately three months later, where Bertsch presented facts demonstrating a pattern of retaliatory conduct following her complaint that culminated in her termination and also presented facts indicating that Overstock's reasons for terminating her employment were pretextual. STATEMENT OF THE CASE I. Statement of the Facts Elizabeth Bertsch worked at Overstock.com ("Overstock") from 2001 until she was terminated in May 2004. AA 387, 397.<2> She held various positions at the company, including BMV or "books/music/video" coordinator in the Media group. AA 387, 389, 392, 397. Throughout her tenure in the Media group from approximately November 2002 through 2004, she worked on a team of four to six people that included male co-worker and video buyer Dustin Latimer, with whom she interacted on a daily basis until her termination in 2004. AA 398-400. At the time of her complaints and termination, Brian Popelka was Bertsch's immediate supervisor, and Stormy Simon was the Department Manager. AA 662; 773-75. Bertsch's responsibilities in the Media group included processing purchase orders, managing inventory - which involved interacting with the Accounting Department - and providing "back-end" and administrative support to the rest of the team while also working on Overstock's website. AA 657-58; 730-31; 785. Timely completion of her responsibilities required heavy computer use. AA 520 ("Q: Now, you go on to explain that you were doing the work of different positions, right? A: Yes. Q: And the only way you could keep up was to sit at your computer all day, right? A: Yes."). While she spent the majority of her time working at the corporate office, Bertsch would go to the warehouse facility once a month, for one day or up to - on occasion - several weeks for a big order, to oversee temporary workers cataloguing and scanning individual pieces of inventory. AA 439-441. Bertsch worked in an enclosed area with her team, in a closely arranged aisle of about ten cubicles. AA 398-401; 405-07. Bertsch testified that Latimer's sexually offensive conduct began shortly after they began working together in late 2002, when she observed him visiting sexually explicit websites in plain view of the rest of the team. AA 443-45. In early 2003, Latimer put up a poster in his cubicle of a topless, "scantily clad" woman "wearing a yellow hardhat and some type of tool in one of her hands" with "one arm draped across her bosom to hide her nipples." AA 416-23. She and several other female employees complained about the poster, but it was not until one of Overstock's largest vendors requested its removal after a walk-through at the company that a Human Resources employee instructed Latimer to remove it and it was taken down. AA 421-23. At that time, Latimer remarked that "[t]his would never have happened if there were not women in this department." AA 420. Bertsch also testified that Latimer made disparaging comments about women on a regular basis. When Bertsch made an error in an office document, Latimer told her that the "department would run better if it were males doing the job." AA 439. She also heard him discuss sexual encounters on several occasions. AA 426, 433-34. Bertsch testified that though she only remembered the most hurtful examples of Latimer's comments, his negative comments about women "were a constant flow. There was something new every week that we were there." AA 430, 442. Bertsch also testified that he treated female employees as "servants to do his bidding," that "he never treated women the same as he treated men," and "took a tone with me that he would have never taken with any male in our department. He was . . . a completely different person with the women than he was with the men." AA 560, 562. On February 17, 2004, Latimer initiated an email exchange between himself, a vendor, and Bertsch. Latimer copied Bertsch on his response to a vendor's email inquiry concerning the status of an order and asked Bertsch to send the "PO number" to the vendor. AA 587. Bertsch responded the same day, stating that she would email or fax the number "when [the order] has been completed." Id. Latimer responded minutes later asking if she would send the "po number, since you know the po number well in advance of the po actually being completed? That way, Eric can start getting the order prepared on his side." Id. The next day, on February 18th, Latimer emailed the vendor, this time copying managers Popelka and Simon as well as Bertsch, remarking, "Hmm. No response. I guess we will just have to wait until Beth sees fit to send it." Id. Bertsch responded the same day, removing the vendor from the addressees, but keeping the managers copied. AA 586. In her response, she asked Latimer if they can "try to be a bit more professional about telling a vendor why a PO number has not been given yet." Id. She further explained that she does not "know the PO number till I cut the PO" and that Latimer was incorrect in telling the vendor that Bertsch knows "well in advance" what the number will be. Id. On February 20, 2004, Bertsch raised concerns about Latimer to Popelka and Simon. AA 468-69. Later that same day, she met with the Director of Human Resources, Karrie Sleater, and complained of Latimer's sex-based conduct and statements. Id. For example, notes dated "Feb. 2004" reflect the following, among other, complaints that Bertsch made about Latimer: "[i]nsults her in front of others; [t]alks about women - divorced but benefits - that's the way it should be; [t]alks about women as possessions; [f]eels like a servant rather than a co-worker; [d]oesn't look at her when talking; [e]xplicit [p]icture in cubicle; [i]f we didn't have women on our team this wouldn't have happened; [w]ants to be the category mgr. for porn." AA 559-60; 591. See also AA 361. On February 25, 2004, Bertsch was called to a meeting with a Human Resources representative and a manager who told her that she was "the cause of the hostile work environment" and gave her the option of resigning or being moved to the warehouse. AA 479-80; 482; 484. The warehouse is located five miles away from the office, where inventory is loaded, unloaded, and stored. AA 712; 730-33. Popelka confirmed his discussion of Bertsch's reassignment to the warehouse. AA 709 ("[W]e talked about splitting them physically and having Beth . . . physically move to the warehouse . . . Beth and I had that discussion"). An email from Bertsch to managers Popelka and Simon, dated February 26, 2004, refers to "a decision" that Bertsch would work at the warehouse. AA 599 ("For fear of sounding arrogant, I don't believe my talents and abilities will be used effectively at the warehouse. I beg you to reconsider your decision."). Popelka testified that he knew that Bertsch would perceive the move as a "reprimand" because "[i]t's a commonsense perception that if you're the one that's moving out of the office, that somehow that's some level of punishment." AA 711-12. Thereafter, Bertsch continued to work from the corporate office, though she felt that "[t]here was always that looming threat of losing my job . . . And every day that I didn't go out to the warehouse and that it wasn't discussed left that possibility open that I would lose my job." AA 512. Because her continued employment was conditioned on reassignment to the warehouse, Bertsch assumed that she would eventually be notified of her full-time warehouse reassignment, but that notification never occurred. AA 511. On February 26, 2004, Overstock issued Bertsch a document entitled "Disciplinary Notice" reflecting that there was an investigation into complaints that Bertsch "contributes to a hostile work environment" and her "abusive behavior by way of manner and sarcasm."<3> AA 504; 585 ¶ 1. During the meeting the disciplinary notice was issued, Bertsch was told that she was the problem. AA 500. The notice, also labeled a "written warning" at the top of the document, criticized Bertsch for "a pattern of not supporting co-workers [sic] business needs" and the need "to prioritize her tasks more effectively." AA 585 ¶ 1. The document made no reference to an email incident or any failure to issue a timely purchase order. In the "corrective action" section, the document stated: "Work with manager and other employees to improve working relationships with department personnel. Beth will treat all co-workers fairly and prioritize her work based on business needs. Beth will work on being more consistent in her interactions with others." Id. at ¶ 4. Consequence for failure to "improve performance or correct behavior" is "[g]rounds for removal from team and/or termination." Id. at ¶ 5. Popelka viewed the written warning as having the following consequence: "If we don't see movement towards solving that issue, then you could be terminated." AA 714. This notice was Bertsch's only warning in her file. AA 565. Approximately one month prior to this written warning, on her annual performance evaluation dated January 19, 2004, Bertsch received an overall rating of "Exceeds Expectations." AA 582. The narrative portion of the evaluation included one comment that Bertsch "[n]eeds to work on the team dynamic," though she received a rating of "Meets Expectations" in the category of "Interpersonal Skills." Id. Latimer also received a disciplinary notice on February 24, 2004. AA 362 ¶12; 603. This notice stated that there were complaints that Latimer "contributes to a hostile work environment" and of his "abusive behavior by way of manner and sarcasm." AA 603 at ¶1. The notice stated that "Dustin has insulted a co-worker by e-mail to a vendor." Id. In the "corrective action" section, the document stated: "Work with manager and other employees to improve working relationships with department personnel. Abstain from making derogatory remarks about sex or gender." Id. at ¶4. The consequence for failure to "improve performance or correct behavior" is "[g]rounds for removal from team and/or termination." Id. at ¶5. Latimer had received a disciplinary notice less than a year prior, on May 6, 2003, for "complaints from co-workers that...he is hard to work with and verbally abuses other employees." AA 602 at ¶1. On May 17, 2004, Bertsch was fired. AA 514; 606. Bertsch recalled no discussion between herself and management regarding her performance, from the time of the disciplinary notice until her termination. AA 513-14. The termination notice referred to the February 26, 2004, notice as a prior warning "on this subject" and the company policy cited as the basis for her termination was the same policy cited in the February 26, 2004, warning. AA 606 at ¶3. The document identified "the problem" as follows: "Beth has not consistently improved her ability to work well within the team dynamic," then referred to an email - unattached to the document - that "demonstrates that this criterion is still an issue." Id. at ¶1. A second attached page listed other performance issues, none of which were raised with Bertsch prior to her termination. AA 515, 607. Latimer remained employed at the company, despite receiving multiple warnings to his file, until at least mid-2005. AA 666. When discussing the multiple warnings issued to Latimer, Simon testified "what I can say is Dustin was never written up for the same thing twice. And that is key." AA 828. II. District Court Opinion The district court ruled that the written warning - or what it termed Bertsch's "corrective action plan" - did not constitute an adverse action in light of this Court's holding in Haynes v. Level 3 Communications, 456 F.3d 1215 (10th Cir. 2006). Bertsch v. Overstock.com, No. 10-37, 2011 WL 2117615 at *7 (D. Utah May 27, 2011) (AA 145). The district court cited Haynes, 456 F.3d at 1224, as "expressly joining other circuits in holding that a PIP standing alone is not an adverse employment action" and, quoting Haynes, stated that "'[a] written warning may be an adverse employment action only if it effects a significant change in the plaintiff's employment status.'" Id. The court further reasoned that the corrective action plan was not an adverse action because "Bertsch had no change in her employment status or the terms of her employment" as a result of the plan. Id. Instead, the court concluded that Bertsch was given the plan "as a result of her role in the vendor email incident." Id. The threat of reassignment to the warehouse, the district court held, also was not actionable retaliation largely because "the reassignment never occurred." Id (AA 146). The court pointed to the non-occurrence of the reassignment several times in its analysis - (AA 146: "the reassignment never occurred," "did not materialize," "no job reassignment ever occurred") - and concluded that a threat of reassignment would not dissuade an employee from raising complaints. Id. The court reasoned that the threat did not "dissuade Bertsch from asking not to be reassigned" after the threat was made and that she "had no change to her terms of employment" in any event. Id. The court stated that even had the reassignment occurred, that change would not have constituted a materially adverse action because she would have "merely worked in [a] different location." Id. Bertsch also failed to establish a prima facie case of retaliation as to her termination, the court held, because she failed to demonstrate causation. AA 146- 47. The court relied primarily on two bases for its holding. First, the court rejected Bertsch's use of pretext evidence - here, evidence that the reasons that Overstock gave for the termination were not credible and, rather, pretextual. AA 147. The court also found that Bertsch had not established a nexus between her protected activity and the termination, rejecting the argument that a nexus existed between her complaint and the termination because the complaint resulted in the retaliatory corrective action plan, which then formed the basis for her termination. Id. Instead, the court held that Bertsch was issued the corrective action plan because she "fail[ed] to prioritize her work according to business needs." Id. Specifically, the court concluded that Bertsch was given the corrective action plan "as a result of her role in the vendor email incident" involving Latimer, further reasoning that the "email incident did not occur because of the alleged sexual harassment." AA 145, 147. ARGUMENT Applying a de novo standard of review,<4> this Court should reverse the district court's holding that Bertsch failed to establish a prima facie case of retaliation. There is no dispute that she engaged in protected activity. The performance improvement plan and threat of reassignment each constituted actionable retaliation. Finally, evidence of these intervening retaliatory acts was sufficient to establish a causal link between her protected activity and the termination of her employment. I. The district court misapplied the Burlington Northern standard in holding that Bertsch did not make out a prima facie case of retaliation. A. Bertsch established a prima facie case of retaliation as to the performance plan and the threat of reassignment. To prove that actions were retaliatory in violation of Title VII, a plaintiff makes out a prima facie case by showing that "(1) she engaged in protected opposition to discrimination; (2) a reasonable person would have found her employer's subsequent action to be materially adverse; and (3) a causal connection exist[ed] between her protected activity and the employer's action." Semsroth v. City of Wichita, 555 F.3d 1182, 1184 (10th Cir. 2009) (internal citation omitted). The standard for making out a prima facie case is not an onerous one. Plotke v. White, 405 F.3d 1092, 1099 (10th Cir. 2005) (internal citation omitted); Orr v. Albuquerque, 417 F.3d 1144, 1149 (10th Cir. 2005) (internal citations omitted). Bertsch's complaint, on February 20, 2004, to Director of Human Resources Karrie Sleater of discriminatory conduct based on sex satisfies the element of protected activity. Overstock did not challenge this prong of the prima facie test (AA 47) and this Court has held that an oral complaint of discriminatory conduct suffices as protected activity. Fye v. OK Corp. Comm'n, 516 F.3d 1217, 1228 (10th Cir. 2008) (holding that an oral complaint of sexual harassment at a meeting with a manager "unquestionably constitutes protected activity") (internal citations omitted); Hertz v. Luzenac Am., Inc., 370 F.3d 1014, 1015 (10th Cir. 2004) ("Protected opposition can range from filing formal charges to voicing informal complaints to superiors.") (internal citation omitted). Given that Bertsch contends all acts of retaliation were undertaken in response to this complaint, protected activity is satisfied as to each act. Additionally, the element of causation is satisfied for both the performance improvement plan and the threat of reassignment. Overstock threatened Bertsch with reassignment to the warehouse five days after her protected activity and issued the performance improvement plan six days after her protected activity. Fye, 516 F.3d at 1228 (holding that an adverse action occurring within two weeks of the protected activity is the kind of "close temporal proximity" that is "alone sufficient to establish a causal connection") (internal citation omitted); see also Trujillo v. Pacificorp, 524 F.3d 1149, 1157 n.5 (10th Cir. 2008) (citing Tenth Circuit precedent finding the prima facie element of causation established by varying time periods between the protected activity and the adverse action of nine weeks and less); EEOC v. PVNF, L.L.C., 487 F.3d 790, 804 (10th Cir. 2007) (concluding causation satisfied where the adverse actions occurred within a month of plaintiff's protected activity) (internal citations omitted). B. The district court erred in concluding as a matter of law that a performance improvement plan or written warning cannot constitute an adverse action for purposes of a retaliation claim under Title VII in mistaken reliance on this Court's decision in Haynes. Sidestepping the controlling test under Burlington Northern, the district court required that Bertsch's performance plan affect her employment status or the terms of her employment to constitute actionable retaliation. Bertsch, 2011 WL 21176915 at * 7 (AA 145). In Burlington Northern, however, the Supreme Court plainly rejected this view. Burlington N., 548 U.S. at 57, 64 ("Thus, purpose reinforces what language already indicates, namely, that the antiretaliation provision, unlike the substantive provision, is not limited to discriminatory actions that affect the terms and conditions of employment."). Rather, the Court enunciated a different standard under which to analyze retaliation: "a plaintiff must show that a reasonable employee would have found the challenged action materially adverse," that is, one that "might have 'dissuaded a reasonable worker from making or supporting a charge of discrimination.'" Id. at 68. Post-Burlington Northern, this Court has applied the Supreme Court's reasonable person test through a "case-specific and contextually sensitive inquiry." Semsroth, 555 F.3d at 1184-85; Somoza v. Univ. of Denver, 513 F.3d 1206, 1213 (10th Cir. 2008) (discussing the impact of Burlington Northern in altering the second prong of the prima facie case requirement); Williams v. W.D. Sports, N.M., Inc., 497 F.3d 1079, 1086-87 (10th Cir. 2007) (explaining change in retaliation standard under Burlington Northern). As set forth in Burlington Northern, this Court analyzes material adversity by asking whether the challenged action "'well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.'" Hennagir v. Utah Dept of Corr., 587 F.3d 1255, 1266 (10th Cir. 2009) (quoting Burlington Northern, 548 U.S. at 67-68). In Haynes, this Court relied on pre-Burlington Northern decisions from other Circuits to "expressly join our sister circuits in holding a PIP, standing alone, is not an adverse employment action." 456 F.3d at 1224 (citing two cases involving a performance plan, and one involving "formal criticism or poor performance evaluations": Givens v. Cingular Wireless, 396 F.3d 998, 998 (8th Cir. 2005), Agnew v. BASF Corp., 286 F.3d 307, 310 (6th Cir. 2002), and Taylor v. Small, 350 F.3d 1286, 1293 (D.C. Cir. 2003), respectively). Importantly, the Haynes Court stated this in the context of its disparate treatment analysis.<5> Id. at 1228-29. Since Haynes and Burlington Northern were decided, however, this Court has observed that it has not had "occasion to revisit" its holding in Haynes in light of Burlington Northern. PVNF, 487 F.3d at 806 n. 8 (quoting Haynes, 456 F.3d at 1224 and citing Burlington Northern, 548 U.S. at 59- 69) ("Although we recently held that '[a] written warning may be an adverse employment action only if it effects a significant change in the plaintiff's employment status,' we have not had occasion to revisit this holding in light of the Supreme Court's decision in [Burlington Northern v.] White. There, the Court clarified that the challenged action in a retaliation claim need not necessarily result in an adverse effect on the terms or conditions of employment, so long as it would dissuade a reasonable employee from engaging in protected activity").<6> At a minimum, this Court has recognized that Haynes warrants reassessment in light of Burlington Northern, and the district court's reliance on it for the "rule" that written warnings are per se not actionable retaliation was legal error. C. Placing an employee on a performance plan may constitute actionable conduct under Burlington Northern, this Court's retaliation analyses in the First Amendment context, and other Circuits' post-Burlington Northern Title VII retaliation holdings. 1. Issuing a performance improvement plan or written warning would dissuade a reasonable employee from raising a complaint of discrimination, satisfying the standard for material adversity under Burlington Northern. Applying the Burlington Northern test, the evidence demonstrates that a reasonable employee would be dissuaded from making a complaint of discrimination by the issuance of a written warning or performance improvement plan. In this case, the document negatively evaluated Bertsch's performance and made clear that one consequence that could flow from the plan was termination. Bertsch's manager testified that termination was indeed contemplated in the plan as a possible result. The knowledge of receiving a negative evaluation of performance, coupled here with the substantially increased likelihood of termination, would certainly deter a reasonable employee from stepping forward to report or support a charge of discrimination. The district court also erred in concluding that the performance improvement plan was issued "as a result of her role in the vendor email incident" rather than in retaliation for her complaint. While Latimer's performance plan specifically referred to the "email," demonstrating that at least part of the reason for his plan's issuance was his conduct related to that email, the plan issued to Bertsch did not - at any point - refer to any email. Even if Overstock issued the performance improvement plan in response to Bertsch's role in the email exchange, the content of her response implicitly reflected the same concern she subsequently raised about Latimer to Human Resources: that he treated her with hostility because she was a woman, on this occasion by undermining her in front of a client and treating her with a lack of professionalism. Viewed this way, her email is aligned with and a precursor to her protected activity. The near identical nature of the plans issued to Latimer and Bertsch demonstrates that Bertsch was penalized for less problematic conduct by the same means that Overstock used to penalize Latimer's sexual misconduct and harassment - facts and context that suggest a retaliatory motive and disparate treatment. It is reasonable to expect that an employer would more severely punish employee conduct that "likely violated both state and federal law" in comparison to employee conduct that was merely improper or could "generally be characterized as" wrong. Vaughn v. Epworth Villa, 537 F.3d 1147, 1154 (10th Cir. 2008). Here, however, what would have been the reasonable expectation did not occur: Bertsch's merely improper conduct of "not supporting co-workers [sic] business needs" was subject to the same discipline as Latimer's sexual harassment and "derogatory remarks about sex or gender" - issuance of the same plan, with termination being a possible consequence of non-compliance. 2. In the First Amendment retaliation context, which is analogous to the Title VII retaliation context, this Court has held that written warnings may constitute an adverse action. In the First Amendment retaliation context, this Court has held that a negative performance evaluation and a written warning both constitute actionable conduct. Brammer-Hoelter v. Twin Peaks Charter Acad., 492 F.3d 1192, 1208 (10th Cir. 2007) (finding that a negative performance evaluation for a non-tenured teacher could "certainly" deter a reasonable person from exercising his or her First Amendment rights); Schuler v. City of Boulder, 189 F.3d 1304, 1309-10 (10th Cir. 1999) (holding that a written reprimand given to the plaintiff after her protected activity constituted actionable retaliation). These counsel in favor of holding similarly in the Title VII retaliation context because this Court's First Amendment retaliation standard is analogous to the Burlington Northern retaliation standard for Title VII. Couch v. Bd. of Trustees of the Mem'l Hosp. of Carbon Co., 587 F.3d 1223, 1237-38 (10th Cir. 2009) (stating "[t]he test in Burlington Northern is also consonant with our First Amendment employment retaliation cases" and that the Burlington Northern standard "is analogous to our definition of an adverse action in First Amendment retaliation claims against defendants other than the plaintiff's employers") (internal citations omitted);<7> see also Hook v. Regents of the Univ. of Cal., No. 09-2102, 2010 WL 3529414 at * 11 (10th Cir. Sept. 13, 2010) (unpublished) ("In Couch, we clarified the parameters of First Amendment retaliation protection, explaining that we consider an employment action to be adverse in the First Amendment retaliation setting if it 'would deter a reasonable person from exercising his First Amendment rights.' This test is identical to the test which is applied in Title VII retaliation claims.") (emphasis added) (internal citations omitted). 3. Other Circuits have held that written warnings and performance improvement plans may constitute actionable retaliation under Title VII. A significant number of courts of appeals - including the Sixth and D.C. Circuits, two of the three Circuits cited in support of the Haynes Court decision - have held since Burlington Northern that documents which negatively reflect the plaintiff's performance - whether they be in the form of a negative performance evaluation, a written reprimand, or a performance plan - may be actionable under the Burlington Northern standard. Silverman v. Bd. of Educ. of the City of Chi., 637 F.3d 729, 741 (7th Cir. 2011) (in a Title VII retaliation case, finding that written negative evaluations which criticized plaintiff's performance could be materially adverse under Burlington Northern, but finding that the claim failed on the causation prong); Porter v. Shah, 606 F.3d 809, 818 (D.C. Cir. 2010) (citing and applying Burlington Northern to its retaliation analysis and holding that a negative evaluation and performance improvement plan, issued as a set, were materially adverse because they exposed the plaintiff to serious consequences that could affect the plaintiff's position in various ways such as removal); Crawford v. Carroll, 529 F.3d 961 (11th Cir. 2008) (stating "no doubt" that plaintiff suffered a materially adverse action in the form of an unfavorable performance review, and that "[s]uch conduct by an employer clearly might deter a reasonable employee from pursuing a pending charge of discrimination or making a new one"; also finding the district court's analysis holding otherwise "most certainly [wa]s wrong under Burlington's more liberal standard"); Michael v. Caterpillar Financial Services Corp., 496 F.3d 584, 596 (6th Cir. 2007) (observing the "relatively low bar" to demonstrate material adversity under a Burlington Northern retaliation analysis and finding that a 90-day performance plan was materially adverse). D. The district court erred in holding that Overstock's threat to reassign Bertsch to the warehouse facility did not constitute an adverse action by failing to analyze the threat as required by Burlington Northern, instead emphasizing the reassignment did not occur. Applying the Burlington Northern standard, the evidence demonstrates that a reasonable employee would be dissuaded from raising a complaint of discrimination if faced with the threat - not knowing whether it would be actualized - of being removed to a warehouse site. The record reflects that Bertsch worked among her team members in a closely assembled group at the corporate office, and a transfer to the warehouse facility - which served as the storage area for inventory - would isolate her from the rest of her team. Bertsch's manager conceded that it would be a common perception for such removal to be seen as "punishment." Bertsch also testified that she was constantly fearful she would be fired each day she worked from the corporate office, as she had been told her continued employment at the company was contingent on working from the warehouse. A reasonable employee would be dissuaded from complaining when presented with such a threat, as the "looming" shadow of the threat remained for at least some time after it was made. Rather than engage in the "contextually sensitive inquiry" that this Court applies in assessing material adversity, Semsroth, 555 F.3d at 1184-85, however, the district court emphasized that the threat did not materialize into an actual reassignment in concluding that the threat "d[id] not appear to be the kind of conduct that would dissuade an employee from raising other complaints." Bertsch, 2011 WL 21176915 at * 7. The district court's apparent reliance on the non- occurrence of the threatened action in its analysis is inconsistent with this Court's precedent holding that tangible or actual harm is not required for conduct to be actionable. Williams, 497 F.3d at 1090 ("[W]e do not read White as requiring, as defendants would have it, that Ms. Williams must prove some tangible, subjective psychological or monetary injury."). While not essential for this Court to analyze material adversity of Overstock's threat to reassign Bertsch, there is record evidence to contest the district court's finding that Bertsch "would have maintained her same position and terms of employment" had the reassignment occurred. For example, Bertsch's job responsibilities at the corporate office involved providing administrative support to her team, interactions with at least one other corporate department (Accounting), and heavy computer use, but Bertsch testified that her work at the warehouse generally involved overseeing temporary workers who manually processed inventory. Given these differences, it is possible that the nature and type of Bertsch's responsibilities would have changed upon permanent reassignment to the warehouse and the record does not conclusively establish that her working conditions and tasks would in fact be the same. See Burlington Northern, 548 U.S. at 70-71 (concluding that a jury could find reassignment of duties materially adverse). II. The district court, in contravention of this Court's precedent, applied an overly rigid causation analysis relating to the termination of Bertsch's employment. A. The district court's refusal to consider "pretext" evidence at the prima facie stage is inconsistent with this Court's view that such evidence may be used to establish causation. In opposition to defendant's motion for summary judgment, Bertsch argued that the "strongest evidence that [she] was terminated for her protected activity is that the reasons Defendant gave for her termination are simply not believeable." Pl. Opp. Brief p. 49 (AA 111). Bertsch pointed to various "moving target" inconsistencies in the rationale behind her termination, her strong performance ratings, changes in management testimony regarding the basis for her termination, disputed facts surrounding her termination, and disparate treatment in how the consequences of the corrective action plans were applied to her and Latimer. Id. at 21-23, 29, 35-39 (AA 83-85; 91; 97-101). Acknowledging that Bertsch claimed her "strongest evidence that she was terminated for her protected activity is that the reasons Overstock gave for her termination are not believable," the district court nonetheless declined to consider those facts, because Bertsch "cannot jump to the pretext discussion prior to making out a prima facie case." Bertsch, 2011 WL 2117615, at *8 (AA 146-47). Though Overstock had already presented a non- discriminatory reason for its termination of Bertsch's employment in its summary judgment reply memorandum - problematic performance (AA 131-32) - the district court emphasized that "a plaintiff must demonstrate a nexus between her complaint and her termination" before which point "Overstock is not required to articulate its reasons for her termination." AA 146-47. The district court was correct in observing that plaintiffs may present circumstantial evidence of discrimination via the McDonnell Douglas burden- shifting framework to prove a retaliation claim. Mathews v. Denver Newspaper Agency, LLP, No. 09-1233, 2011 WL 1901341 at *10 (10th Cir. 2011) (internal citation omitted). Under McDonnell Douglas, the plaintiff bears the initial burden of establishing a prima facie case. Once established, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for the adverse action. At that point, the burden shifts back to the plaintiff to "point to some admissible evidence showing that the [employer]'s proffered explanation is mere pretext." Id. at *10-11 (internal citations omitted). However, as this Court has recognized, evidence typically introduced at the pretext stage of the McDonnell Douglas burden-shifting test may also be used at the prima facie stage. Thus, the district court erred in categorizing this evidence as "pretext" evidence not permissible for consideration at the prima facie stage. In Wells v. Colorado Department of Transportation, 325 F.3d 1205, 1218 (10th Cir. 2003), this Court addressed the question of whether an employer's proffered reasons for taking an adverse action could be considered in the "causal- connection portion of the prima facie case." Id. The court held in the affirmative, stating that "evidence of pretext can be useful in multiple stages of a Title VII retaliation claim" and proceeded to consider the same evidence to hold that the plaintiff had both established the element of causation and pretext, ultimately reversing the district court's grant of summary judgment to the employer. Id. at 1218, 1220 (internal citations omitted). See also Proctor v. UPS, 502 F.3d 1200, 1209 (10th Cir. 2007) (citing Wells, 325 F.3d at 1218) (though pretext evidence "is typically considered during the third phase of the McDonnell Douglas inquiry, [the plaintiff] correctly notes that we have considered evidence of pretext in the prima facie stage of a retaliation claim."). The district court's rigid adherence to the McDonnell Douglas burden- shifting framework also exposes the consequences of such an approach: a move away from the central inquiry of whether discrimination occurred. Whether at the summary judgment stage, at trial, or on appeal, the ultimate question for the courts' review is whether or not there is sufficient evidence to show that discrimination occurred. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715 (1983) (quoting Tex. Dept of Cmty Affairs v. Burdine, 450 U.S. 248, 253 (1981) ("The 'factual inquiry' in a Title VII case is 'whether the defendant intentionally discriminated against the plaintiff.'"). The purpose of that inquiry is thwarted, however, when the court forces an artificial compartmentalization of evidence, as the district court did here. See Aikens, 460 U.S. at 715 ("The prima facie case method established in McDonnell Douglas was 'never intended to be rigid, mechanized, or ritualistic. Rather, it is merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination.'") (internal citation omitted); see also Wells, 325 F.3d at 1224 (Hartz, H., in a separate opinion) ("Rather than concentrating on what should be the focus of attention-whether the evidence supports a finding of unlawful discrimination-courts focus on the isolated components of the McDonnell Douglas framework, losing sight of the ultimate issue.") While the orderly presentation of evidence is a valuable function of the McDonnell Douglas framework, refusal to consider evidence - in service to an inflexible order of presentation - prioritizes form over substance, particularly because evidence in a discrimination case relevant to both the prima facie case and pretext will typically and necessarily be intertwined. See Wells, 325 F.3d at 1225 ("[T]he use of the McDonnell Douglas framework so readily lends itself to consideration of formalities instead of the essence of the issue at hand-the sufficiency of the evidence."). Indeed, as the Supreme Court observed in Aikens, once a defendant "has done everything that would be required of him if the plaintiff had properly made out a prima facie case, whether the plaintiff really did so is no longer relevant. The district court has before it all the evidence it needs to decide whether 'the defendant intentionally discriminated against the plaintiff.'" 460 U.S. at 715 (internal citation omitted)). Thus, where both parties have offered evidence to support their positions, as occurred here, division of plaintiff's evidence into categories of prima facie or pretext no longer serves a meaningful purpose. Moreover, adherence to rigid formalism at that stage may also introduce error and unnecessarily expend judicial resources where, as here, the district court disregarded evidence that would have been sufficient for Bertsch to survive summary judgment and proceed to trial. Wells, 325 F.3d at 1221 ("[T]he artificiality of the framework exacts a significant, unnecessary expense-in terms of both wasted judicial effort and greater opportunity for judicial error.") B. The district court erred in holding that Bertsch failed to establish a causal link between her protected activity and her termination because the facts support a theory that the termination was the culmination of a pattern of retaliatory conduct that closely followed her protected activity. Even absent what the district court categorized as "pretext" evidence, Bertsch established the element of causation because the record evidence, viewed in the light most favorable to her, demonstrated a causal chain of retaliatory acts that followed in close succession after her complaint, which consequently connect the complaint to her termination. This Court has found the element of causation satisfied where, as here, there is a pattern of conduct that connects the complaint to a retaliatory termination. In Piercy v. Maketa, 480 F.3d 1192 (10th Cir. 2007), this Court found that the district court had erred in granting summary judgment to defendant on the plaintiff's retaliatory termination claim based on the erroneous conclusion that there was no causal connection between her complaint of discrimination in the fall of 2002 and her termination in February 2003. Id. at 1198. In that case, the plaintiff had filed an informal employee grievance complaining of sex-based discrimination in September of 2002 and filed an EEOC charge in November 2002. Id. at 1198-99. In the interim between her complaints and her termination in February 2003, the defendant initiated an internal affairs investigation in late November 2002. Id. The court held that, though some of the facts were disputed by the parties, viewed in the light most favorable to the plaintiff, the investigation "link[ed] her protected conduct" with the termination "in a temporally sufficient manner" to satisfy the causation element of her prima facie case. Id. at 1199. See also Marx v. Schnuck Markets, Inc., 76 F.3d 324, 329 (10th Cir. 1996) (holding that "the pattern of actions taken by defendant" precluded summary judgment on the causation prong; recognizing that while "we have rejected attempts to unduly stretch the 'close temporal proximity' required under this standard, we also believe that the phrase 'closely followed' must not be read too restrictively where the pattern of retaliatory conduct begins soon after the filing of the FLSA complaint and only culminates later in actual discharge") (internal citations omitted). Here, Bertsch presented facts that support precisely that linkage theory - that the threat of reassignment and her corrective action plan were retaliatory acts and part of a pattern of conduct connecting her complaint to her termination three months later. Bertsch complained of discrimination on February 20, 2004. On February 25, 2004, she was notified that she would have to transfer to the warehouse facility or resign. The following day, February 26, 2004, she was issued a document labeled "written warning," also termed a corrective action plan. Without any further discussion about her performance, she was fired on May 17, 2004, premised on failure to improve according to the corrective action plan issued in February, and stating additional reasons for her termination that had never been raised before with Bertsch. Cf. Hinds v. Sprint/United Mgmt. Co., 523 F.3d 1187, 1204 (10th Cir. 2008) (finding that the plaintiff had not satisfied causation by way of pattern evidence because the first act in the alleged retaliatory pattern occurred over three months after his protected activity). Indeed, Department Manager Simon testified that the fact that an employee received two warnings on the same issue would be "key" in demonstrating the continued nature of the problem, but Bertsch never received a second warning in her file for any reason, and did not have any discussions with management concerning any of the other bases for termination, prior to her termination. CONCLUSION The factual record and this Court's precedent support reversal of the district court's erroneous holding that Bertsch failed to establish a prima facie case of retaliation. Moreover, in revisiting Haynes, this Court should join other Circuits in recognizing that a written warning or performance improvement plan is an adverse action for purposes of a retaliation claim under Title VII. Respectfully submitted, P. DAVID LOPEZ General Counsel CAROLYN L. WHEELER Acting Associate General Counsel s/ Christine J. Back ______________________________ Christine J. Back Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E. Room 5NW14P Washington, D.C. 20507 (202) 663-4734 (phone) (202) 663-7090 (fax) christine.back@eeoc.gov CERTIFICATE OF COMPLIANCE I certify that this brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 6,958 words excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 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 it has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in Times New Roman 14 point. s/ Christine J. Back ______________________________ CHRISTINE J. BACK Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E. Room 5NW14G Washington, D.C. 20507 (202) 663-4734 (phone) (202) 663-7090 (fax) christine.back@eeoc.gov ********************************************************************************** <> <1> The Commission expresses no opinion on any other issues presented in this appeal. <2> "AA" refers to the Appellant's Appendix filed with this Court. <3> Department Manager Stormy Simon referred to Overstock's documentation of employee issues as "corrective action forms." <4> Chavez v. City of Albuquerque, 630 F.3d 1300, 1306 (10th Cir. 2011). <5> While Haynes also involved a retaliation claim, it was not based on the issuance of the performance plan. 456 F.3d at 1228-29. <6> This Court in EEOC v. PVNF did not decide the issue of whether a written warning was materially adverse because, in that case, the defendant conceded that the warning was an adverse action. EEOC v. PVNF, 487 F.3d 790, 806 n. 8 (10th Cir. 2007). <7> This Court in Couch also observed that just as actionable conduct in "the Title VII-retaliation context" is broader than in the "Title VII-substantive discrimination-context," actionable conduct in the First Amendment retaliation context is broader conduct than in a Title VII discrimination claim. Couch, 587 F.3d at 1237-38. In further support of the parallel between Title VII and First Amendment retaliation analyses, the Court cited cases from four other Circuits reflecting that "the test in Burlington Northern is analogous to the standard articulated by several other circuits in the First Amendment context." Id. at 1238 (internal citations omitted).