Coooper v. Southern California Edison Co., (9th Cir.) Apr. 13, 2006 Brief as amicus IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT _________________________________________ No. 03-57059 _________________________________________ JERRY COOPER, Plaintiff-Appellant, and MERRI COLE, Plaintiff, v. SOUTHERN CALIFORNIA EDISON COMPANY, et al., Defendants-Appellees. ______________________________________________ On Appeal from the United States District Court for the Southern District of California ______________________________________________ Brief of the Equal Employment Opportunity Commission as Amicus Curiae In Support of Plaintiff/Appellant's Petition for Rehearing and Suggestion for Rehearing En Banc ______________________________________________ JAMES L. LEE Deputy General Counsel JENNIFER S. GOLDSTEIN Attorney VINCENT J. BLACKWOOD Associate General Counsel EQUAL EMPLOYMENT OPPORTUNITY COMMISSION CAROLYN L. WHEELER Office of General Counsel Assistant General Counsel 1801 L Street, N.W. Washington, DC 20507 (202) 663-4733 TABLE OF CONTENTS TABLE OF AUTHORITIES ................................................................ ii REQUIRED STATEMENT ................................................................. iii STATEMENT OF INTEREST ................................................................ 1 BACKGROUND ........................................................................... 2 ARGUMENT 1. Panel rehearing or rehearing en banc on the allegedly retaliatory lateral transfers is necessary because the panel overlooked controlling Ninth Circuit precedent and instead apparently relied on the withdrawn portion of a Ninth Circuit decision ................................. 7 2. Panel rehearing or rehearing en banc is necessary because the panel's holding – that repaying wages withheld during a retaliatory suspension negates the adverse nature of the suspension – conflicts with a prior holding of this Court and with the holdings of other courts of appeals ......... 10 CONCLUSION .......................................................................... 12 ADDENDUM CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Andersen v. Pac. Bell, 204 Cal. App.3d 277 (1988) ................................ 6, 10 Brooks v. City of San Mateo, 229 F.3d 917 (9th Cir. 2000) ............................ 6 Burlington N. & Santa Fe Ry. v. White, No. 05-259 (S.Ct.) ........................... 12 Dimitrov v. Seattle Times Co., 230 F.3d 1366, 2000 WL 1228995 (9th Cir. 2000) (unpublished) ................................ 10, 11 Hashimoto v. Dalton, 118 F.3d 671 (9th Cir. 1997) .................................... 8 Jin v. Metro. Life Ins. Co., 310 F.3d 84 (2d Cir. 2002) ............................. 11 Moore v. California Inst. of Tech. Jet Propulsion Lab., 275 F.3d 838 (9th Cir. 2002) ................................................................... 9 Ray v. Henderson, 217 F.3d 1234 (9th Cir. 2000) ......................... 1, 7, 8, 9, 11 Roberts v. Roadway Express, Inc., 149 F.3d 1098 (10th Cir. 1998) .................... 11 Vasquez v. County of Los Angeles, 307 F.3d 884 (9th Cir. 2002) (withdrawn and superseded by 349 F.3d 634 (9th Cir. 2003)) ............ 5, 6, 7, 8, 9 Vasquez v. County of Los Angeles, 349 F.3d 634 (9th Cir. 2003) ................ 6, 8, 9 White v. Burlington Northern & Santa Fe Railway, 364 F.3d 789 (6th Cir. 2004) (en banc), cert. granted, 126 S. Ct. 797 (2005) .................. 11 Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208 (2d Cir. 2001) ........................ 11 STATUTES, RULES, and AGENCY GUIDANCE Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ................. 1 42 U.S.C. § 2000e-3(a) .......................................................... 1 9th Cir. R. 36-3(b)(iii) ............................................................ 11 EEOC Compliance Manual § 8, "Retaliation" (May 1998), available at http://www.eeoc.gov/policy/docs/retal.pdf .........................................1, 7 REQUIRED STATEMENT 1. The panel majority's holding that two retaliatory transfers were not subject to challenge under Title VII because they did not reduce plaintiff's salary or job title is inconsistent with the following Ninth Circuit decisions: Ray v. Henderson, 217 F.3d 1234 (9th Cir. 2000) Vasquez v. County of Los Angeles, 349 F.3d 634 (9th Cir. 2003) 2. The panel majority's holding that a retaliatory, six-day suspension without pay cannot be challenged under Title VII because it was "rescinded" several months later is inconsistent with the following Ninth Circuit decision: Dimitrov v. Seattle Times Co., 2000 WL 1228995 (9th Cir. 2000) (unpublished) The panel majority's holding on the rescinded suspension also presents a question of exceptional importance because: (1) it conflicts with the authoritative decisions of the Second, Sixth, and Tenth Circuits, and (2) the question is currently before the U.S. Supreme Court in Burlington Northern & Santa Fe Railway v. White, No. 05-259 (S.Ct.) (to be argued April 17, 2006). STATEMENT OF INTEREST The Equal Employment Opportunity Commission ("EEOC") is the agency charged by Congress with the interpretation and enforcement of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The EEOC has adopted Guidance stating that Title VII's anti-retaliation clause, 42 U.S.C. § 2000e-3(a), prohibits "any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity." EEOC Compl. Man. § 8, "Retaliation," 8-13 to 8-14 (May 1998), available at http://www.eeoc.gov/policy/docs/retal.pdf. Based on the statutory language and policy of ensuring that individuals who oppose unlawful employment discrimination are protected against retaliation, the Guidance rejects the contention that the anti- retaliation provision only extends to retaliatory acts with material effects, such as a pay decrease. Id. at 8-13. This Court, in Ray v. Henderson, 217 F.3d 1234, 1242-43 (9th Cir. 2000), explicitly adopted the EEOC's standard. The panel decision in this case makes no mention of the "reasonably likely to deter" standard. Instead the panel relies on a state court decision and, apparently, on a withdrawn Ninth Circuit decision to hold that a rescinded suspension and lateral transfer are excluded from the coverage of Title VII's anti-retaliation provision. Because the panel's decision is at odds not only with the language and purpose of the provision, but also with this Court's own standard, we offer our views to the Court. BACKGROUND Jerry Cooper worked as a Senior Radiation Material Handler at the San Onofre Nuclear Generating Station ("SONGS"). R.72 at 2.<1> SONGS generates nuclear power from two generating stations, known as Units 2&3. Id. SONGS is in the process of decommissioning another generating station, known as Unit 1. Id. Cooper worked in Units 2&3, as did Merri Cole, Cooper's girlfriend. R.72 at 2-3. In late 1999, and again in early 2000, Cooper inquired about a possible promotion to a supervisor slot in Unit 1. R.86, Ex. 75. In a January 2000 e-mail to James Moore, a supervisor, Cooper stated that he knew supervisors were being hired for Unit 1, and that they needed people with decommission experience, which Cooper had. Id. Cooper stated that he "would be very grateful to be considered for any advancement opportunities." Id. Moore responded that he would consider Cooper "when the time comes." Id. Word apparently circulated that Cooper would receive a supervisory slot – two co-workers congratulated Cooper and a third sent Cooper an e-mail telling Cooper that he had heard Cooper was coming over to Unit 1 in a supervisory role. R.72 at 4; R.86, Ex. 200. Around this same time, Cooper's girlfriend Cole began experiencing sexual harassment from Dawan Ginn, an employee who worked in Unit 1. R.72 at 3-4. Cole did not initially complain because she feared she would lose her job. R.72 at 3. Subsequently, Cooper and Cole heard that Ginn was being transferred to Units 2&3, where Cole worked, and Cole became extremely upset. R.72 at 4. Cooper then reported Ginn's actions to a supervisor. Id. Ginn was given a warning, but was not otherwise disciplined for his harassment, and Ginn was in fact transferred to Units 2&3. Once Ginn began working in Units 2&3, his interactions with Cooper became increasingly hostile, including a threat that he would physically confront Cooper outside the workplace. R.72 at 4-6. After Cooper experienced further hostility from Ginn on April 5, 2000, Cooper reported Ginn's actions to a supervisor, Randy Heredia. R.72 at 5-6. Later that same day, Heredia approached Cooper and told him that he was being transferred to Unit 1, effective the next morning. R.72 at 6. The reason for Cooper's transfer, Heredia explained to Cooper, was that Ginn had told Heredia that working with Cooper was giving Ginn such problems that he might have to take time off work and see a psychiatrist. R.51, Ex. C at 31. Cooper was upset about the transfer, and complained that he had done nothing wrong. R.51, Ex. C at 32. Cooper then went to talk to Marty Crumes, another supervisor at SONGS, to express his dismay at the transfer. When Cooper told Crumes that he was "very upset," Crumes commented that Cooper had wanted to go over to Unit 1 anyway. R.51, Ex. C at 33-34. Cooper responded that there was "no way" he could compare going over to Unit 1 as a result of a promotion with going over "under these circumstances." R.51, Ex. C at 34; R.72 at 6. Cooper did not receive the promotion. R.72 at 6-7. Cooper continued to complain to various supervisory personnel at SONGS about his transfer to Unit 1 "in retaliation for reporting the sexual harassment," and about the fact that Cole continued to have to work in a sexually hostile work environment, in which Ginn was "still approaching Cole." R.72 at 7-8. In particular, he had several meetings with Jim Moore, a supervisor at Unit 1, in which Cooper complained he "was being punished" for reporting Ginn's behavior. R.72 at 7. Moore told Cooper that "[Cole's] case was closed." Id. At a subsequent meeting, Moore told Cooper that Cooper had been in his office "a lot lately," and that "he wanted [Cooper] to get back to work." R.72 at 9. On May 5th, Moore suspended Cooper without pay for an alleged safety rules violation and for alleged insubordination. R.72 at 19. The suspension lasted six days. R.72 at 19-21. When Cooper returned from his suspension, he was transferred to the turbine deck at Unit 1, a place where, Cooper was told, "they put people who raise complaints." R.72 at 23. Cooper was given little or no work, which led to ridicule from his co-workers. Id. In late June 2000, some two-and-a-half months after his suspension, officials rescinded the suspensions, reimbursed Cooper for lost wages, and told him that there was an "appearance" that the official who had suspended Cooper had "retaliated" against him. R.72 at 25-26. Cooper continued to be assigned to the turbine deck, however, until September 2000, when he went out on disability leave after being diagnosed with ulcerative colitis. He has not returned to work. R.72 at 26. Cooper and Cole together brought suit against a number of defendants, in particular the operators of SONGS. R.1. Cooper alleged retaliation in violation of Title VII, as well as state tort law claims for radiation exposure he received. Cole eventually settled her harassment claims after the district court refused defendants' request to dismiss her action. R.107; R.120. The district court granted summary judgment to defendants on Cooper's claims, holding, inter alia, that Cooper had failed to show the existence of an adverse employment action. R.107. As to the retaliatory transfers, the district court stated that "where an employee is transferred laterally with no change in pay, hours, work location, authority, or responsibility, the fact that the employee subjectively views the transfer negatively does not make the transfer an adverse employment action." R.107 at 18 (citing Vasquez v. County of Los Angeles, 307 F.3d 884, 891 (9th Cir. 2002)).<2> The court stated that the transfer to Unit 1 did not "lower[] his actual position or rank, or lessen[] his chances for promotion." R.107 at 19. "Under Ninth Circuit case law," the court stated, "the fact that Cooper saw his transfer to Unit 1 or the timing of the transfer as undesirable does not make the action adverse for purposes of Title VII." R.107 at 19 (citing Vasquez, 307 F.3d at 891). As to the transfer to the turbine deck, the district court found the evidence insufficient that Cooper's workload and promotion opportunities decreased, and stated that ridicule by fellow employees is not an adverse employment action "as a matter of law." R.107 at 20. The court also stated that legitimate, non-retaliatory reasons existed for defendants' actions. R.107 at 20. Finally, the district court held the suspension was not an adverse action because it was "revoked and hence not finalized," and Cooper was reimbursed for the withheld pay. R.107 at 21-22 (citing Andersen v. Pac. Bell, 204 Cal. App.3d 277 (1988), and Brooks v. City of San Mateo, 229 F.3d 917, 929-30 (9th Cir. 2000)). Cooper appealed. A panel of this Court affirmed in a per curiam, unpublished decision, holding that Cooper "fail[ed] to establish an adverse employment action." Op. at 4 (attached as addendum). The panel noted the allegedly retaliatory transfers, but held that "since neither reduced his salary or job title, they were not adverse employment actions." Op. at 4 (citing Vasquez v. County of Los Angeles, 349 F.3d 634 (9th Cir. 2003)). The panel further held that "Cooper's rescinded suspension is not an adverse employment action." Op. at 4 (citing Andersen v. Pac. Bell, 204 Cal. App. 3d 277 (1988)). Finally, the panel held that the ridicule and ostracism Cooper experienced did not constitute an adverse employment action. Op. at 4 (citation omitted). ARGUMENT 1. Panel rehearing or rehearing en banc on the allegedly retaliatory lateral transfers is necessary because the panel overlooked controlling Ninth Circuit precedent and instead apparently relied on the withdrawn portion of a Ninth Circuit decision. Title VII makes it unlawful for an employer "to discriminate" against an employee for opposing unlawful employment practices. 42 U.S.C. § 2000e-3(a). This Court has interpreted the words "to discriminate" to mean "‘any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity.'" Ray v. Henderson, 217 F.3d 1234, 1242-43 (9th Cir. 2000) (quoting EEOC Compl. Man. § 8, "Retaliation," 8-13 (May 1998)).<3> The panel in this case did not cite to Ray or otherwise apply the standard governing retaliation claims in this Circuit when it addressed the allegedly retaliatory lateral transfers. Instead the panel apparently relied on the withdrawn portion of this Court's decision in Vasquez v. County of Los Angeles, 307 F.3d 884 (9th Cir. 2002), withdrawn and superseded by 349 F.3d 634 (9th Cir. 2003). This error should be corrected by the panel or, in the alternative, by the en banc Court. In Ray, where this Court stated it was "adopt[ing]" the EEOC's deterrence standard, the Court emphasized the standard "covers lateral transfers . . . [because they are] reasonably likely to deter employees from engaging in protected activity." Ray, 217 F.3d at 1243. Moreover, the Ray Court stressed, "the severity of an action's ultimate impact (such as loss of pay or status) ‘goes to the issue of damages, not liability.'" Id. (quoting Hashimoto v. Dalton, 118 F.3d 671, 676 (9th Cir. 1997)). As noted above, the panel in this case did not mention the "reasonably likely to deter" standard of Ray and its Ninth Circuit progeny, but instead cited to Vasquez, 349 F.3d 634, and stated summarily that the transfers cannot be adverse because they did not affect Cooper's salary or job title. Op. at 4. The panel's reliance on Vasquez was erroneous because it is only the withdrawn portion of Vasquez that even arguably supports the panel's decision. In the original Vasquez decision – upon which the district court here relied <4> – the Court stated that an allegedly discriminatory transfer was not actionable because "subjective" detriment is insufficient to establish an "adverse employment action" where there is no change in pay, hours, location, authority, or responsibility. Vasquez, 307 F.3d at 890-91. Subsequently, the Vasquez Court withdrew that portion of the opinion in its entirety, and resolved the case on different grounds. Vasquez, 349 F.3d 634. The panel here nonetheless cited to Vasquez for the same point as the district court had, and simply updated the citation to the new opinion. However, the new Vasquez opinion contains nothing that would support the panel's erroneous statement of the law. In fact, the new Vasquez opinion cites both to Ray and to the EEOC's Guidance in explaining the proper standard for evaluating retaliation claims. 349 F.3d at 646. Even if the original Vasquez opinion had not been withdrawn, that opinion would not support the panel's statement that an actionable transfer requires a change in salary or job title. The portion of the original Vasquez opinion relied upon addressed the plaintiff's discrimination claim; the Vasquez Court acknowledged that a different standard applies for retaliation claims – one that takes into account, "at least in part," the individual's subjective preferences.<5> 307 F.3d at 896. In light of this different standard, the Court assumed that "the transfer met the Ray standard." Id. Thus, even under the withdrawn Vasquez decision, the panel's assessment of Cooper's transfer claim was erroneous. 2. Panel rehearing or rehearing en banc is necessary because the panel's holding – that repaying wages withheld during a retaliatory suspension negates the adverse nature of the suspension – conflicts with a prior holding of this Court and with the holdings of other courts of appeals. As with the transfer claims, the panel did not apply Ray to evaluate the deterrent effect of a six-day suspension without pay. Instead the panel relied upon a California state law decision evaluating the state tort claim of "constructive wrongful termination in violation of public policy" to hold that a retaliatory suspension is not actionable retaliation under Title VII because it ultimately was rescinded two-and-a-half months later. See op. at 4 (citing Andersen v. Pac. Bell, 204 Cal. App.3d 277); see also Andersen, 204 Cal. App.3d at 284-85 (explaining that individual may recover for mental injuries through tort other than intentional infliction of emotional distress only where individual can show she had "substantial damages apart from emotional distress"). In applying start tort law principles to Cooper's Title VII claim, the panel placed itself squarely at odds with contrary decisions by this Court and the other courts of appeals, all of which involved Title VII retaliation claims. In Dimitrov v. Seattle Times Co., 230 F.3d 1366, 2000 WL 1228995 (9th Cir. 2000) (unpublished) (attached as addendum), this Court considered whether an allegedly discriminatory missed pay increase was actionable under Title VII where the employer subsequently repaid the plaintiff in full. Invoking the statement in Ray that the severity of the injury "‘goes to the issue of damages, not liability,'" the Court held that the missed pay increase was an adverse action cognizable under Title VII. Dimitrov, 2000 WL 1228995, at *3 n.2 (quoting Ray, 217 F.3d at 1243). The panel's decision in this case thus is directly contrary to the decision in Dimitrov, making en banc review appropriate. See 9th Cir. R. 36-3(b)(iii) (unpublished decision is relevant to a petition for rehearing or rehearing en banc to demonstrate the existence of a conflict among opinions within the Circuit). The Sixth Circuit, sitting en banc, along with the Second and Tenth Circuits, likewise have reached the opposite conclusion from that of the panel in this case. In White v. Burlington Northern & Santa Fe Railway, 364 F.3d 789, 800-03 (6th Cir. 2004) (en banc), cert. granted, 126 S. Ct. 797 (2005), for example, the full court held unanimously that a suspension without pay, followed by reinstatement with full back pay, was actionable retaliation under Title VII. The Sixth Circuit relied, in part, upon a Second Circuit decision holding that a one-week suspension was an adverse action even though the employee was later reimbursed. Id. at 802 (citing Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 223-24 (2d Cir. 2001)); see also Jin v. Metro. Life Ins. Co., 310 F.3d 84, 99-101 (2d Cir. 2002) (withholding paychecks adverse action under Title VII because "the lost use of wages for a period of time is, by itself, an economic injury...") (emphasis in original); Roberts v. Roadway Express, Inc., 149 F.3d 1098, 1104 (10th Cir. 1998) ("Actions such as suspensions or terminations are by their nature adverse, even if subsequently withdrawn."). Finally, whether a subsequently-reversed suspension is actionable retaliation under Title VII is a question currently before the Supreme Court in the White case, with arguments scheduled for April 17, 2006. See Burlington N. & Santa Fe Ry. v. White, No. 05-259 (S.Ct.). That the Supreme Court granted certiorari indicates that question is one of exceptional importance. It also suggests that, in the interest of judicial economy, this Court should consider withdrawing the decision in this case and holding it in abeyance until the Supreme Court issues a decision in White. CONCLUSION For the foregoing reasons, the Commission submits that panel rehearing or en banc review is warranted. Respectfully submitted, JAMES L. LEE __________________________ Deputy General Counsel JENNIFER S. GOLDSTEIN Attorney VINCENT J. BLACKWOOD Associate General Counsel EQUAL EMPLOYMENT OPPORTUNITY COMMISSION CAROLYN L. WHEELER Office of General Counsel Assistant General Counsel 1801 L Street, N.W. Washington, DC 20507 (202) 663-4733 CERTIFICATE OF SERVICE I hereby certify that two copies of this brief were mailed, first class, postage prepaid, on this 13th day of April, 2006, to the following: Jerry Cooper 213 South Freeman Street #2 Oceanside, CA 92054 John D. Buchanan Southern California Edison Co., Legal Division 2244 Walnut Grove Ave., Suite 338 Rosemead, CA 91770 Reed E. Schaper Curiale Dellaverson Hirschfeld & Kraemer, LLP 2425 Olympic Blvd., Suite 550 East Tower Santa Monica, CA 90404 Shelia Bryant-Tucker 1012 South Coast Hwy., Suite M Oceanside, CA 92054 Robert W. Jackson Law Offices of Robert W. Jackson 205 West Alvarado Street Fallbrook, CA 92028 ____________________________ JENNIFER S. GOLDSTEIN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, DC 20507 (202) 663-4733 April 13, 2006 ******************************************************************************* <> <1> “R.*” refers to the record entry number in the district court docket sheet. The Commission is aware that this Court generally requires record cites to be to the excerpt of record (9th Cir. Rule 28-2.8), but because the plaintiff-appellant is pro se on appeal, the Commission does not have access to the excerpt of record. <2> As is discussed below, this Court subsequently withdrew its opinion in Vasquez and issued a new opinion. <3> The Guidance is available at http://www.eeoc.gov/policy/docs/retal.pdf. <4> The original Vasquez opinion had not yet been withdrawn at the time of the district court’s decision. <5> Both Vasquez opinions refer to the applicable test as subjective in part, see, e.g. 349 F.3d at 646, while Ray emphasizes the objective nature of the standard. See Ray, 217 F.3d at 1243 (retaliatory action cognizable “if it is reasonably likely to deter employees from engaging in protected activity”). These two opinions can be harmonized without engaging in a lengthy quibbling over objective/subjective terminology. In Moore v. California Institute of Technology Jet Propulsion Laboratory, 275 F.3d 838, 847 (9th Cir. 2002), this Court characterized the Ray standard as one that “evaluates reasonableness from the point of view of the employee.” Moore’s articulation of the standard – focusing on the employee without requiring the logically inconsistent showing that retaliation actually deterred the employee who opposed discrimination from opposing discrimination – is consistent with the EEOC’s test.