Gustafson, Inc. v. Roger Bunch 99-11289 No. 99-11289 _________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _________________________________________ GUSTAFSON, INC., Plaintiff-Appellee/Cross-Appellant, v. ROGER BUNCH, Defendant-Appellant/Cross-Appellee. ______________________________________________________ On Appeal from the United States District Court for the Northern District of Texas, Dallas Division ______________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF ROGER BUNCH'S PETITION FOR INITIAL HEARING EN BANC ______________________________________________________ C. GREGORY STEWART GAIL S. COLEMAN General Counsel Attorney PHILIP B. SKLOVER U.S. EQUAL EMPLOYMENT Associate General Counsel OPPORTUNITY COMMISSION Office of General Counsel CAROLYN L. WHEELER 1801 L Street, N.W., Room 7034 Assistant General Counsel Washington, D.C. 20507 (202) 663-4055 STATEMENT OF COUNSEL I believe, based on a reasoned and studied professional judgment, that this proceeding involves a question of exceptional importance: Whether the federal anti-discrimination statutes prohibit all retaliation that is reasonably likely to chill the exercise of protected rights, even if the retaliation does not consist of an adverse employment action. Fifth Circuit precedent on this issue conflicts with that of several other United States Courts of Appeals: 1. Berry v. Stevinson Chevrolet, 74 F.3d 980 (10th Cir. 1996) 2. Durham Life Ins. Co. v. Evans, 166 F.3d 139 (3d Cir. 1999) 3. Aviles v. Cornell Forge Co., 183 F.3d 598 (7th Cir. 1999) ____________________________ Gail S. Coleman, Esq.TABLE OF CONTENTS STATEMENT OF COUNSEL TABLE OF CONTENTS TABLE OF AUTHORITIES STATEMENT OF INTEREST STATEMENT OF THE ISSUE STATEMENT OF THE CASE Course of Proceedings Statement of Facts District Court's Opinion ARGUMENT THE PETITION FOR INITIAL HEARING EN BANC SHOULD BE GRANTED This Court Is Wrong In Requiring an Adverse Employment Action In Order to State a Claim of Retaliation Under the Federal Anti-Discrimination Laws This Court Is Also Wrong In Limiting Cognizable Retaliation to Actions Involving an "Ultimate Employment Decision" Even If Title VII and the ADEA Require an Adverse Employment Action, This Court Is Wrong Not to Recognize the Broader Language of the ADA's Provision Against Retaliation CONCLUSION CERTIFICATE OF SERVICE ADDENDUMTABLE OF AUTHORITIES STATEMENT OF INTEREST The Equal Employment Opportunity Commission ("EEOC") is charged by Congress with interpreting, administering, and enforcing Title I of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. At issue in this case is whether a lawsuit may constitute illegal retaliation under the ADA and ADEA for the filing of an EEOC charge. A panel of this Court has held that it cannot. See EEOC v. R.J. Gallagher Co., 181 F.3d 645, 657 (5th Cir. 1999). Because the EEOC believes that R.J. Gallagher was wrongly decided, and because comprehensive protection against retaliation is critical to effective enforcement of the federal anti-discrimination laws, the EEOC offers its views to the Court. STATEMENT OF THE ISSUE Do the federal anti-discrimination statutes prohibit all retaliation that is reasonably likely to chill the exercise of protected rights, whether or not the retaliation consists of an adverse employment action? STATEMENT OF THE CASE This is a petition for initial hearing en banc on the portion of Bunch's retaliation counterclaim challenging the validity of Gustafson's lawsuit. A. Course of Proceedings Gustafson, Inc. sued Bunch for breach of a settlement agreement on August 26, 1997. (R.1, Complaint.) On October 28, 1997, Bunch filed an answer and asserted counterclaims alleging, in part, that Gustafson's lawsuit constituted illegal retaliation under the ADA and ADEA for Bunch's having filed charges of discrimination with the EEOC. (R.8, Answer.) On May 10, 1999, the district court granted summary judgment to Gustafson on Bunch's counterclaims. (R.52, Memo Op.) It granted summary judgment to Bunch on Gustafson's claims on September 27, 1999. (R.72, Memo Op.) On October 15, 1999, the court entered final judgment. (R.74, Order; R.75, Judgment.) Both parties filed timely notices of appeal, (R.76, Bunch's Notice; R.77, Gustafson's Notice), and briefing to the panel is underway. B. Statement of Facts In December 1994, Roger Bunch signed a settlement agreement and general release in which he agreed to end his employment with Gustafson and to release Gustafson from any and all claims that he had or may have against it. (R.52, Memo Op. at 2.) In August 1996, Bunch applied for another job with Gustafson. When he was not hired, he filed a charge of age and disability discrimination with the EEOC. Id. at 2-3. Gustafson responded by suing Bunch for breach of the settlement agreement. Bunch counterclaimed, alleging causes of action for age and disability discrimination and retaliation. Id. at 3. C. District Court's Opinion The district court ruled that Gustafson's lawsuit was not cognizable retaliation under the ADA or ADEA. Id. at 15. The court reasoned that retaliation is only actionable if it is an "adverse employment action," defined within the Fifth Circuit as an "ultimate employment decision." Id. Subsequent to the district court's ruling, this Court held in an unrelated case that "the filing of a lawsuit cannot be an 'adverse employment action' such as required to trigger the ADA's protection against retaliation . . . because it is not an employment action at all." R.J. Gallagher, 181 F.3d at 657. ARGUMENT THE PETITION FOR INITIAL HEARING EN BANC SHOULD BE GRANTED. The Fifth Circuit Is Wrong In Requiring an Adverse Employment Action In Order to State a Claim of Retaliation Under the Federal Anti-Discrimination Laws. The federal anti-discrimination laws prohibit retaliation for the filing of an EEOC charge even when the retaliation does not involve any form of employment action. This Court's law to the contrary is wrong. The Court should consider this issue en banc because the EEOC's enforcement machinery cannot function properly if reduced statutory protection makes individuals afraid to file charges. The federal anti-retaliation provisions say nothing about requiring an "adverse employment action." Their language is, instead, "exceptionally broad." EEOC Guidance on Investigating, Analyzing Retaliation Claims, 8 Fair Empl. Prac. Man. (BNA) 405:7581, 405:7589 (May 20, 1998) ["EEOC Guidance"]. The provisions make it unlawful "for an employer to discriminate against any of his employees or applicants for employment . . . because such individual has opposed any practice made unlawful by this section, or because such individual . . . has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation under this subchapter." 29 U.S.C. § 623(d) (ADEA); see also 42 U.S.C. § 2000e-3(a) (Title VII) (containing virtually identical prohibition); 42 U.S.C. § 12203(a) (ADA) (containing virtually identical prohibition). Their language contrasts sharply with that of the general anti-discrimination provisions, which make it unlawful to discriminate with respect to an individual's "terms, conditions, or privileges of employment." See 29 U.S.C. § 623(a)(1) (ADEA); 42 U.S.C. § 2000e-2(a)(1) (Title VII); 42 U.S.C. § 12112(a) (ADA); see generally EEOC Guidance, 8 Fair Empl. Prac. Man. (BNA) at 405:7589-90. Unlike the general anti-discrimination provisions, the anti-retaliation provisions "set no qualifiers on the term 'to discriminate.'" EEOC Guidance, 8 Fair Empl. Prac. Man. (BNA) at 405:7589. Actionable retaliation is therefore not limited to discrimination in the "terms, conditions, or privileges of employment." The only requirement is that "any adverse treatment [be] based on a retaliatory motive and [be] reasonably likely to deter the charging party or others from engaging in protected activity." Id. This standard excludes "petty slights and trivial annoyances," as such matters are unlikely to have a chilling effect. Id. However, it covers retaliatory conduct that is not employment-related. See id. at 405:7590 (provisions bar "harassment in or out of the workplace"). This reading of the anti-retaliation provisions is the only one consistent with their fundamental purpose: to "maintain[ ] unfettered access to statutory remedial mechanisms." Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997). Such unfettered access is necessary because, without it, neither the EEOC nor private litigants can effectively enforce the anti-discrimination statutes. See, e.g., 42 U.S.C. § 2000e-5(b) (Title VII enforcement begins with the filing of a charge); EEOC v. Cosmair, Inc., L'Oreal Hair Care Div., 821 F.2d 1085, 1090 (5th Cir. 1987) ("The EEOC depends on the filing of charges to notify it of possible discrimination."). "If retaliation for [filing charges] were permitted to go unremedied, it would have a chilling effect upon the willingness of individuals to speak out against employment discrimination or to participate in the EEOC's administrative process or other employment discrimination proceedings." EEOC Guidance, 8 Fair Empl. Prac. Man. (BNA) at 405:7582. This Court did not examine the broad language of the anti-retaliation provisions and did not consider their policy of protecting EEOC access when it first articulated the "adverse employment action" requirement. Instead, citing only to an employment law treatise that did not support the proposition, the Court held, "To prove a prima facie case under [Title VII's provision against retaliation], the plaintiff must establish (1) that there was a statutorily protected participation, (2) that an adverse employment action occurred, and (3) that there was a causal link between the participation and the adverse employment action." Whatley v. Metropolitan Atlanta Rapid Transit Authority, 632 F.2d 1325, 1328 (5th Cir. Unit B 1980) (citing B. Schlei & P. Grossman, Employment Discrimination Law, Ch. 15 (1976 and Supp. 1979)). The employment law treatise upon which the Court relied did say that retaliation requires an "adverse employment action," but it included an employer's libel suit against an employee as one example of cognizable adverse treatment. See B. Schlei & P. Grossman, Employment Discrimination Law 417, 435 (1976). The treatise characterized the libel suit as "less typical employer behavior that has been held to constitute retaliatory adverse treatment." Id. at 435. In doing so, it necessarily recognized that conduct other than adverse employment actions may support a claim for retaliation. The treatise simply used the phrase "adverse employment action" as a shorthand for the most common form of employer retaliation. Read in context, its use of that phrase does not suggest that adverse action outside the employment arena could never give rise to a retaliation claim. Other courts have agreed with the EEOC that actionable retaliation need not involve employment-related conduct. In Berry v. Stevinson Chevrolet, 74 F.3d 980 (10th Cir. 1996), for instance, the Tenth Circuit found illegal retaliation under Title VII when the employer caused a coworker to file a criminal complaint against an employee who had filed a discrimination charge with the EEOC. The court observed that "'a statute which is remedial in nature should be liberally construed.'" Id. at 986 (citation omitted). Similarly, in Durham Life Insurance Co. v. Evans, 166 F.3d 139 (3d Cir. 1999), the Third Circuit concluded that an employer's lawsuit against a former employee for breach of a non-competition agreement could constitute illegal retaliation under Title VII. The court rejected the employer's First Amendment argument "in part because the prohibition on retaliation is so explicit and the public policy behind the retaliation provision so compelling." Id. at 157. The Seventh Circuit also took a broad view of the anti-retaliation provisions in Aviles v. Cornell Forge Co., 183 F.3d 598 (7th Cir. 1999). There, the Court held that the plaintiff had stated a valid claim for retaliation under Title VII when he alleged that his employer had falsely told local police that he had threatened his supervisor with a gun. See id. at 606. The Court noted that "the language of the Title VII retaliation provision is broad enough to contemplate circumstances where employers might take actions that are not ostensibly employment related against a current employee in retaliation for that employee asserting his Title VII rights." Id.; cf. Bill Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 731, 740, 749 (1983) (holding that employer's lawsuit may constitute illegal retaliation under the NLRA and observing that "[a] lawsuit no doubt may be used by an employer as a powerful instrument of coercion or retaliation"). Despite these contrary decisions, this Court persists in its erroneous belief that cognizable retaliation must involve employment activity. Panel after panel has repeated Whatley's "adverse employment action" language without ever looking for its statutory source. Only action by the full Court can correct this now deep-seated misunderstanding. This Court Is Also Wrong In Limiting Cognizable Retaliation to Actions Involving an "Ultimate Employment Decision. In reviewing the "adverse employment action" requirement, the full Court will necessarily have to consider this Court's requirement that cognizable retaliation be not merely an "employment action," but that it be an "ultimate employment decision." See Mattern v. Eastman Kodak Co., 104 F.3d 702, 707-09 (5th Cir. 1997). Like the broader "employment action" requirement, the ultimate employment decision doctrine finds no support in the statutes. The Mattern panel purported to find a statutory basis for the doctrine by linking interpretation of Title VII's anti-retaliation provision, section 704(a), to interpretation of one of the statute's general anti-discrimination provisions, section 703(a)(1). See id. at 708-09. This, however, was a mistake. As discussed above, the anti-retaliation provision and the general anti-discrimination provision do not use similar language; rather, the anti-retaliation provision broadly precludes "discriminat[ion]" against an individual because of his or her protected activity, while the anti-discrimination provision makes it unlawful only to discriminate regarding an individual's "compensation, terms, conditions or privileges of employment." Compare 42 U.S.C. § 2000e-3(a) with id. § 2000e-2(a)(1). The lack of qualifying language in the anti-retaliation provision means that this section provides broader coverage than the general anti-discrimination provision. Supreme Court cases since Mattern have suggested that even if Mattern was correct in linking interpretation of section 704(a) to interpretation of section 703(a)(1), the panel still reached the wrong result. Two recent sexual harassment cases, for instance, have clarified that the "discrimination" prohibited by section 703(a)(1) necessarily refers to more than "ultimate employment decisions." In Faragher v. City of Boca Raton, 524 U.S. 775 (1998), the Court said, "We have repeatedly made clear that although the statute mentions specific employment decisions with immediate consequences, the scope of the prohibition 'is not limited to "economic" or "tangible" discrimination,' and that it covers more than '"terms" and "conditions" in the narrow contractual sense.'" Id. at 786 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993), and Oncale v. Sundowner Offfshore Servs., Inc., 118 S. Ct. 998, 1001 (1998)). Thus, the Court explained, section 703(a)(1) prohibits hostile environment sexual harassment. Id. (citing Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986)). The Court's emphasis on the broad reach of section 703(a)(1), and its refusal to limit that section to "economic" or "tangible" discrimination, cannot be squared with Mattern's holding that the provision addresses only "ultimate employment decisions." It is difficult to imagine an action without "economic" or "tangible" consequences that this Court would view as an ultimate employment decision, yet clearly the statute covers at least some such conduct. The Court also cast doubt on Mattern in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). There, the Court said that an employer is vicariously liable for a supervisor's sexual harassment, but that the employer may raise an affirmative defense to liability if the harassment has not resulted in a "tangible employment action." Id. at 765. By recognizing that section 703(a)(1) prohibits sexual harassment even when the harassment does not result in a tangible employment action, the Court necessarily rejected Mattern's interpretation of the section as covering only "ultimate employment decisions." See generally Ernest F. Lidge III, "The Meaning of Discrimination: Why Courts Have Erred in Requiring Employment Discrimination Plaintiffs to Prove That the Employer's Action Was Materially Adverse or Ultimate," 47 U. Kan. L. Rev. 333, 382-84 (1999). Since Mattern was wrong in interpreting section 703(a)(1) to require an ultimate employment action, its derivative interpretation of section 704(a) cannot stand. Another Supreme Court case, also issued after Mattern, confirms that this Court erred in restricting Title VII's anti-retaliation provision to "ultimate employment decisions." In Robinson v. Shell Oil Co., 519 U.S. 337 (1997), the Court held that Title VII protects former employees from retaliation. See id. at 346. Because an employer no longer has an employment relationship with a former employee, it is no longer in a position to make any "ultimate employment decisions" regarding that individual. Indeed, in Robinson, the alleged retaliation consisted of a negative employment reference. See id. at 337. A negative reference, standing alone, is much like a negative performance evaluation. It is not, of itself, an ultimate employment decision. A prospective employer who reads the negative reference is free to ignore it. Under Mattern, therefore, the retaliatory issuance of a negative reference would not be cognizable. See Mattern, 104 F.3d at 708. Nevertheless, although the Supreme Court did not rule on the question, it gave no suggestion that issuing a negative employment reference was insufficient to support a retaliation claim. The logical inference from the Supreme Court's unanimous opinion is that employers may be sued for conduct that falls short of an "ultimate employment decision." Significantly, virtually every court of appeals to consider the question has rejected the Fifth Circuit's narrow reading of the anti-retaliation provisions. See Morris v. Oldham County Fiscal Court, 201 F.3d 784, 791 (6th Cir. 2000) (supervisor's retaliatory harassment may constitute illegal retaliation under Title VII); Richardson v. New York State Dep't of Correctional Serv., 180 F.3d 426, 445-46 (2d Cir. 1999) (unchecked coworker harassment may constitute illegal retaliation under Title VII); Gunnell v. Utah Valley State College, 152 F.3d 1253, 1264 (10th Cir. 1998) (coworker hostility or harassment may constitute illegal retaliation under Title VII); Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1456 (11th Cir. 1998) (expressly rejecting Fifth Circuit's interpretation of anti-retaliation provisions as "inconsistent with the plain language of [Title VII]"); Knox v. State of Indiana, 93 F.3d 1327, 1334-35 (7th Cir. 1996) (coworker harassment and vicious gossip can constitute illegal retaliation under Title VII); Welsh v. Derwinski, 14 F.3d 85, 86 (1st Cir. 1994) (although not every unpleasant matter creates a cause of action for retaliation, constant rudeness may, in a particular case, be enough); Passer v. American Chemical Soc'y, 935 F.2d 322, 331 (D.C. Cir. 1991) (cancellation of symposium in plaintiff's honor one day after plaintiff had filed discrimination charges constitutes illegal retaliation under the ADA; "the statute does not limit its reach only to acts of retaliation that take the form of cognizable employment actions such as discharge, transfer or demotion"); Yartzoff v. Thomas, 809 F.2d 1371, 1375-76 (9th Cir. 1987) (Title VII prohibits retaliatory transfers of job duties and undeserved performance ratings). But see Munday v. Waste Management of North Am., Inc., 126 F.3d 239, 243 (4th Cir. 1997) (cognizable retaliation must affect terms, conditions, or benefits of employment); Ledergerber v. Stangler, 122 F.3d 1142, 1144 (8th Cir. 1997) (adopting this Court's "ultimate employment decision" doctrine). This Court's near-isolation on its interpretation of the anti-retaliation provisions is, itself, a reason to consider the issue en banc. The Supreme Court's recent indications that this Court may be in error is another compelling justification for en banc review. Even If Title VII and the ADEA Require an Adverse Employment Action, This Court Is Wrong Not to Recognize the Broader Language of the ADA's Provision Against Retaliation. Even if this Court adheres to its view that an adverse employment action is required under the ADEA and Title VII, it should recognize that the ADA prohibits a broader range of conduct. The ADA contains a provision that is not found in the ADEA or Title VII, rendering it unlawful "to coerce, intimidate, threaten, or interfere with any individual . . . on account of his having exercised . . . any right granted or protected under this chapter." Section 503(b), 42 U.S.C. § 12203(b). This provision derives from the Fair Housing Act (FHA"), 42 U.S.C. § 3601 et seq. Congress intended that section 503(b) be interpreted consistently with regulations that had been promulgated under the FHA. See H.R. Rep. No. 101-485 (Part 2), 411 (1990). Those regulations prohibit retaliatory threats or intimidation even when such conduct is unrelated to any adverse employment action. See 24 C.F.R. § 100.400. It makes sense that Congress would not have limited the ADA's proscription against retaliatory intimidation to employment-related conduct, as the ADA's anti-retaliation provision is contained in Title V of the statute ("Miscellaneous Provisions"), and not in Title I ("Employment"). The R.J. Gallagher panel, which required an "employment action" for cognizable retaliation under the ADA, erred in not addressing section 503(b). See 181 F.3d at 657. Given the difference in language between the ADA and the other federal anti-discrimination statutes, the Court should have addressed the possibility that the ADA's protection against retaliation might be broader. See Mondzelewski v. Pathmark Stores, Inc., 162 F.3d 778, 788 (3d Cir. 1998) (section 503(b) of the ADA "arguably sweeps more broadly than [section 503(a), which parallels Title VII]"). En banc review is necessary to correct this significant error. CONCLUSION Both the language and the policy of the federal anti-discrimination laws prohibit any form of retaliation that is reasonably likely to chill the exercise of protected rights. This Court has erred in limiting cognizable retaliation to "adverse employment actions." For the reasons stated above, this Court should grant Bunch's petition for initial hearing en banc. Respectfully submitted, C. GREGORY STEWART General Counsel ________________________ GAIL S. COLEMAN, ESQ. PHILIP B. SKLOVER Equal Employment Opportunity Commission Associate General Counsel Office of General Counsel 1801 L Street, N.W., Room 7034 CAROLYN L. WHEELER Washington, D.C. 20507 Assistant General Counsel (202) 663-4055 CERTIFICATE OF SERVICE ADDENDUM