04-3927-cv IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT DONNA S. JUTE, Plaintiff-Appellant, v. HAMILTON SUNDSTRAND CORP., Defendant-Appellee. On Appeal from the United States District Court for the District of Connecticut BRIEF OF AMICUS CURIAE THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION IN SUPPORT OF PLAINTIFF AND IN FAVOR OF REVERSAL IN PART AND AFFIRMANCE IN PART ERIC S. DREIBAND General Counsel LORRAINE C. DAVIS Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel JASON M. MAYO Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4549 TABLE OF CONTENTS Page(s) TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . .i TABLE OF AUTHORITIES . .. . . . . . . . . . . . . . . . . . .iii STATEMENT OF INTEREST. . . . . . . . . . . . . . . . . . . . . .1 STATEMENT OF THE ISSUES . . . . . . . . . . . . . . . . . . . .2 STATEMENT OF THE CASE 1. Nature of the Case and Course of Proceedings . . . . . . .2 2. Statement of Facts . . . . . . . . . . . . . . . . . . . .3 3. District Court's Ruling . . . . . . . . . . . . . . . . . .8 STATEMENT OF STANDARD OF REVIEW . . . . . . . . . . . . . . . 12 ARGUMENT I. AN EMPLOYEE WHO IS NAMED AS A WITNESS IN A TITLE VII PROCEEDING HAS PARTICIPATED IN A PROCEEDING UNDER TITLE VII AND IS PROTECTED FROM RETALIATION. . . . . . . . . . . . . . . . . . . . . 12 II. THE DISTRICT COURT ERRED BY FAILING TO CONSIDER ALL ALLEGED ADVERSE EMPLOYMENT ACTIONS AS RELEVANT BACKGROUND EVIDENCE. . . . . . . . . . . . . . . . . . . . . . 14 III. THE DISTRICT COURT ERRED BY LIMITING JUTE'S TITLE VII LAWSUIT TO THOSE ALLEGATIONS SPECIFICALLY RAISED IN HER EEOC CHARGE. . . . . . . . . . 16 IV. AN EMPLOYER WHO GIVES A RETALIATORY NEGATIVE EMPLOYMENT REFERENCE VIOLATES TITLE VII WHETHER OR NOT THE NEGATIVE REFERENCE CAUSED OR CONTRIBUTED TO THE LOSS OF A PARTICULAR JOB. . . . . . . 19 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 26 CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . 27 CERTIFICATE OF SERVICE ADDENDUM Equal Employment Opportunity Comm'n, EEOC Compliance Manual 8-II (May 20, 1998), available at http://www.eeoc.gov/ policy/compliance.html TABLE OF AUTHORITIES CASES Page(s) Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) . . . . . . . . . . . . 3 Bailey v. USX Corp., 850 F.2d 1506 (11th Cir. 1988) . . . . .22, 23 Butts v. N.Y. Dep't of Hous. Pres. & Dev., 990 F.2d 1397 (2d Cir. 1993) . . . . 10, 17-18 Carmellino v. District 20 of N.Y. City Dep't of Educ., No. 03-Civ-5942, 2004 WL 736988 (S.D.N.Y. Apr. 6, 2004) . . . . . . . . . .18 Deravin v. Kerik, 335 F.3d 195 (2d Cir. 2003) . . . . 13-14, 17 EEOC v. L.B. Foster Co., 123 F.3d 746 (3d Cir. 1997) . . . . . .21, 23 Francis v. City of N.Y. & Human Res. Admin., 235 F.3d 763 (2d Cir. 2000) . . . . . . . .18 Hashimoto v. Dalton, 118 F.3d 671 (9th Cir. 1997) . . . . . . . .23 Hillig v. Rumsfeld, 381 F.3d 1028 (10th Cir. 2004) . . . . . . .23 Holtz v. Rockefeller & Co., 258 F.3d 62 (2d Cir. 2001) . . . . . . . . .17 Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208 (2d Cir. 2001) . . . . . .12, 20 Malarkey v. Texaco, Inc., 983 F.2d 1204 (2d Cir. 1993) . . . . . . 17-18 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) . . . . . . . . . . . .12 Miller v. Aluminum Co. of Am., 679 F. Supp. 495 (W.D. Pa. 1988) . . . . . .24 National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002) . . . . . . . . . . 14-16 Pantchenko v. C.B. Dolge Co., 581 F.2d 1052 (2d Cir. 1978) . . . . . . . .22 Patt v. Family Health Sys., Inc. 280 F.3d 749 (7th Cir. 2002) . . . . . . . .24 Reed v. Conn. Dep't of Trans., 161 F. Supp. 2d 73 (D. Conn. 2001) . . . . .10 Rose v. N.Y. City Bd. of Educ. 257 F.3d 156 (2d Cir. 2001) . . . . . . . .18 Ruedlinger v. Jarrett, 106 F.3d 212 (7th Cir. 1997) . . . . . . . .21 Sanders v. N.Y. City Human Res. Admin., 361 F.3d 749 (2d Cir. 2004) . . . . . . . .19 Sarno v. Douglas Elliman-Gibbons & Ives, Inc., 183 F.3d 155 (2d Cir. 1999) . . . . . . . . 11, 21-25 Serrano v. Schneider, Kleinick, Weitz, Damashek & Shoot, P.C., No. 02-CV-1660, 2004 WL 345520 (S.D.N.Y. Feb. 24, 2004) . . . . . . . . . . . . . . . . 21 Smith v. American Presidents Lines, Ltd., 571 F.2d 102 (2d Cir. 1978) . . . . . . . . . . . . . . . 17 Smith v. Sec'y of the Navy, 659 F.2d 1113 (D.C. Cir. 1981) . . . . . . . . . . . . . 24 Tomka v. Seiler Corp., 66 F.3d 1295 (2d Cir. 1995) . . . . . . . . . . . . . . . .9 United States v. Gonzales, 520 U.S. 1 (1997) . . . . . . . . . . . . . . . . . . . . 13 United States v. Milwaukee, 390 F. Supp. 1126 (E.D. Wis. 1975) . . . . . . . . . . . 14 Wanamaker v. Columbian Rope Co., 108 F.3d 462 (2d Cir. 1997) . . . . . . . . . . . . . . . 20 Welsh v. Derwinski, 14 F.3d 85 (1st Cir. 1994) . . . . . . . . . . . . . . . 20 Williams v. J.B. Parks Wholesale Florist, Inc., No. 3:95-CV-2599-D, 1997 WL 160194 (N.D. Tex. Mar. 31, 1997) . . . . . . . . . . . . . . . . 14 STATUTES and RULES Page(s) Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. . . . . . . . . . . . . . passim 42 U.S.C. 2000e-3(a) . . . . . . . . . . . . . . . 12, 19 42 U.S.C. 2000e-5(e)(1) . . . . . . . . . . . . . . . . 15 Fed. R. Civ. P. 56(c) . . . . . . . . . . . . . . . . . . . . 12 OTHER AUTHORITY Page(s) Equal Employment Opportunity Comm'n Compliance Manual 8-II (1998), available at http://www.eeoc.gov/policy/ compliance.html . . . . . . . . . . 13, 19, 21, 24, 25 IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT _________________________ No. 04-3927-CV _________________________ DONNA S. JUTE, Plaintiff-Appellant, v. HAMILTON SUNDSTRAND CORP., Defendant-Appellee. _______________________________________________________ On Appeal from the United States District Court for the District of Connecticut _______________________________________________________ BRIEF OF AMICUS CURIAE THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION IN SUPPORT OF PLAINTIFF AND IN FAVOR OF REVERSAL IN PART AND AFFIRMANCE IN PART _______________________________________________________ STATEMENT OF INTEREST The Equal Employment Opportunity Commission is the agency established by Congress to administer, interpret and enforce Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. ("Title VII"), and other federal employment discrimination laws. This case raises important questions concerning Title VII's charge-filing provision and the scope of the statute's protection against retaliation. Because this Court's resolution of these issues may affect the rights of many other individuals in addition to the plaintiff in this action, the Commission offers its views to the Court. STATEMENT OF THE ISSUES 1. Whether an employee has engaged in protected activity when named as a witness in a Title VII proceeding. 2. Whether Title VII's charge-filing requirement bars a court from considering for any reason alleged retaliatory acts that occurred more than 300 days prior to an employee filing an administrative charge. 3. Whether an employee alleging retaliation under Title VII must specifically plead in her administrative charge all of defendant's alleged retaliatory actions that occurred within 300 days of the employee filing her charge in order to fully preserve every retaliation claim. 4. Whether an employee who alleges a former employer retaliated against her by providing a negative reference must demonstrate that the negative reference caused or contributed to the employee's rejection by a prospective employer in order to establish a Title VII retaliation claim. STATEMENT OF THE CASE 1. Nature of the Case and Course of Proceedings This is an appeal from a final judgment dismissing the plaintiff's Title VII action against her former employer. The plaintiff filed a complaint on January 24, 2001, alleging that the defendant took various adverse actions against her because she, inter alia, filed a charge with the EEOC and was named by a co-worker as a witness in a Title VII proceeding. Joint Appendix ("A") A-2; A-16-17. On June 14, 2004, the district court granted the defendant's motion for summary judgment; final judgment was entered in the defendant's favor on the same day. A-12; A-402- 423. The plaintiff filed a timely notice of appeal on June 30, 2004. A-12; A-424. 2. Statement of Facts In 1986, Donna Jute began employment with Hamilton Standard, a division of United Technologies Corp., in East Windsor, Connecticut. A-29; A-148; A-403. Four years later, Jute filed an internal sexual harassment complaint against her supervisor. A-29. After investigating, Hamilton asked Jute's supervisor to resign and he did so. A-29. In 1994, Jute's co-worker, Maryann Brunton, filed an internal complaint alleging she was harassed during a union election campaign. A-30; A-62. During the investigation of that complaint, Jute provided two sworn statements to Hamilton supporting Brunton. A-311-316. The following year, Brunton filed a Title VII lawsuit alleging that Hamilton and the union discriminated against her on the basis of sex. A-31. By the summer of 1998, Jute was working on the first shift on Hamilton's JD Edwards software team ("JDE Team") as a Repair Technician III/Labor Grade 7 ("Grade 7") under the direction of Glenn Reinhauer, the JDE Team leader. A-32; A-74; A-183-184. On June 15, 1998, Jute's supervisor, Natonia "T.C." Crowe-Hagans, told her that she would be promoted to Repair Technician II/Labor Grade 5 ("Grade 5") in September for her work on the JDE Team. A-274. On July 9, 1998, during a deposition in her Title VII action, Brunton identified Jute as a witness who would support her claim. A-122-123. The very next day, Jute heard Crowe- Hagans "storming down the hall" to where Jute was working and ordered her off the JDE Team approximately two weeks before the team was going "live" with its product. A-226; A-278; A-320. Jute believes she was the only JDE Team member reassigned. A-274; A-278. Other JDE Team members appear to have traveled as the JDE Team over a year after the team was allegedly disbanded. A-276. A manager in the information systems technology department approached Jute shortly after she was pulled from the JDE Team and expressed interest in hiring her for his department. A-217. However, after he talked with Crowe-Hagans, he informed Jute that he could not hire her because she did not have a college degree. A-276. Not all employees in information systems had college degrees. A-370. At around this same time, Jute was informed that she was not needed to teach an aerobics class at Hamilton that was scheduled to begin in August 1998. A-277-278. Hamilton did not promote Jute to Grade 5 in September 1998 as Crowe-Hagans had promised in June. A-185. On September 11, 1998, Jute filed a union grievance complaining that Hamilton was training less senior employees over her. A-371. Independently of Jute's grievance, Hamilton and the union had reached an agreement on September 1, 1998. A-139-140. Among other things, Hamilton and the union agreed that some senior employees would be given the opportunity to train for eventual promotion to Grade 5. A-139-140. On September 23, 1998, Jute accepted Hamilton's offer for training that could ultimately have led to a promotion to Grade 5 on the less desirable second shift. A-141; A-215-217. Jute believed that her training would take place on the first shift and take a year or two to complete. A-77; A-283-284. She further believed that her transfer to the second shift would only occur after she had completed her training and received her promotion. A-77. On November 4, 1998, Brunton settled her lawsuit with Hamilton. A-31. In December 1998, Jute learned for the first time that Brunton had named Jute as a witness during her deposition. A-185-186. It was at this time that Jute first suspected that her abrupt removal from the JDE Team, the denial of an information systems position and the cancellation of her aerobics class were related to the Brunton litigation. A-221; A-231; A-283. When Jute voiced her concerns to Ingrid Delgado, a Hamilton human resources manager, Delgado told Jute to "face it, your harassment's never going to stop." A-232. Delgado advised Jute to go find another job. A-232. This same month, Jute became aware that her transfer to the second shift was to occur immediately rather than at the end of her training. A-186; A-283. Due to concerns over who would care for her young daughter during the hours of the second shift, she revoked her acceptance of the training. A-74; A-142; A-283. However, despite her revocation of the training program, Hamilton continued to train her on the first shift for potential promotion to Grade 5. A-138; A-187. In April of 1999, Brad Dahlquist, a Hamilton manager, told Jute that she would be promoted to a Grade 5 once she completed her training and received her inspector's stamp. A-283-284; A-375. Jute completed her training and received her inspector's stamp in August or September of 1999, but Hamilton did not promote her. A-138; A-284. In the summer and fall of 1999, Hamilton Standard merged with a competitor, Sundstrand Corporation, to become Hamilton Sundstrand. A-148. The new entity issued a bulletin that announced plans to "cut costs" and "eliminate redundancies" through "workforce reductions." A-148. In September 1999, Reinhauer sought approval from Crowe- Hagans to have Jute travel overseas with the JDE Team. A-296. After he met with Crowe-Hagans, he sought out Jute and asked her, "What did you do to piss T.C. [Crowe-Hagans] off[;] [w]hy does she have such a hard-on about you?" A-296. Hamilton did not allow Jute to travel overseas. A-218; A-296. In December 1999, Bryan Yost, one of Jute's supervisors, informed Jute that she would be transferred to a salaried position so that she could avoid the impending layoffs. A-218; A-267; A-287-288; A-377. Jute trained for the new position for one day in January 2000. A-287. Ultimately she did not get the job. A-287-288. When Jute asked Yost for an explanation, he said, "T.C. [Crowe-Hagans] said no." A-287-288. On January 11, 2000, Jute and many other Grade 7s were informed that they were to be laid off effective January 24, 2000. A-149. Hamilton compiled a list of eligible employees to refer for work with a related company, International Fuel Cells (IFC). A-332. In addition, Jute independently submitted an employment application with IFC in January 2000. A-377-378. However, Jute testified that Hamilton omitted her name from the IFC referral list, generally blacklisted her and actively prevented her from finding work at IFC. A-218; A-246-247; A-290- 291. While other former Hamilton employees with less experience than Jute were interviewed and hired by IFC in the winter and spring of 2000, IFC never contacted Jute. A-377-378. On May 18, 2000, Jute filed a charge of discrimination with the Connecticut Commission on Human Rights and Opportunities (CCHRO) and cross-filed with the EEOC. A-150-152. In her charge, she specifically alleges that Hamilton retaliated against her by terminating her in January 2000, denying her a salaried position in January 2000 as promised by Yost, and denying her a promotion as promised by Dahlquist in August or September of 1999 when she received her inspector's stamp. A-151. In the fall of 2000, Jute secured an interview for a position with IFC. A-244. The man who interviewed Jute, Russell Hubley, subsequently contacted a few of Jute's supervisors at Hamilton for employment references. A-156. Yost informed Hubley that he had been advised not to discuss Jute because Jute had a lawsuit pending against Hamilton. A-169-170. Jute did not get the position for which she interviewed at IFC. A-163; A-219-220. 3. District Court's Ruling The U.S. District Court of Connecticut granted Hamilton's motion for summary judgment on June 14, 2004. A-12; A-402-403. After considering the facts of the case, the district court turned to the issue of whether Jute had made out a prima facie case of retaliation. A-411. In order to meet her prima facie burden, the court required Jute to show: "(i) participation in a protected activity known to the defendant; (ii) an employment action disadvantaging the plaintiff; and (iii) a casual connection between the protected activity and the adverse employment action." A-411-412 (quoting Tomka v. Seiler Corp., 66 F.3d 1295, 1308 (2d Cir. 1995)). Hamilton did not dispute that Jute had undoubtedly engaged in protected activity when she complained internally of sexual harassment in 1990 and when she had filed her charge with the CCHRO and the EEOC on May 18, 2000. A-412. Rejecting Hamilton's argument to the contrary, the court also concluded that Jute participated in a Title VII proceeding when Brunton named Jute as a witness in Brunton's Title VII action. A-414. The court then proceeded to consider whether Jute had been subjected to any adverse employment actions. A-415. The court noted that Jute identified 11 adverse actions taken by Hamilton allegedly in retaliation for her protected activity, the earliest of which was her removal from the JDE Team in July 1998, and the latest of which was the negative reference she received in November 2000, after she filed her charge. A-415-416. The court ruled that it could not "consider" any of Jute's claims that occurred more than 300 days before she filed her charge. A-418. According to the court, "each of Jute's claims that are alleged to have occurred prior to the 300 day limitations period, that is, prior to July 23, 1999 . . . . are easily identified as discrete acts upon which Jute should have filed separate charges . . . ." A-418. The court also held that it could not consider actions occurring within the 300 day limitations period which were not specifically mentioned in Jute's charge. A-418-419. However, the court concluded that Jute's claim of post-charge retaliation was "reasonably related" to her charge of discrimination as a matter of law, and thus Jute was not required to file a separate charge with the EEOC on this claim. A-419 (citing Butts v. N.Y. Dep't of Hous. Pres. & Dev., 990 F.2d 1397, 1402 (2d Cir. 1993)). Accordingly, the court considered only Jute's allegations that she was: (1) denied a promotion in September 1999; (2) denied a salaried position in January 2000; (3) terminated in January 2000; and (4) given a negative reference in November 2000. A-419. Finally, the district court turned to the third element of the prima facie case. A-420. The district court noted that "'[a] substantial time lapse between an employee's protected activity and the adverse employment action is counter-evidence of any causal connection between the two for purposes of a retaliatory action.'" A-420 (quoting Reed v. Conn. Dep't of Trans., 161 F. Supp. 2d 73, 83 (D. Conn. 2001)). Applying this proposition, the district court ruled that Jute's 1990 sexual harassment complaint was too remote in time to raise an inference of causation. A-421. In addition, the court found that the disclosure of Jute as a witness in Brunton's Title VII lawsuit, which occurred on July 9, 1998, was also "too far removed" from the timely challenged adverse actions, all of which occurred more than a year later. A-421-422. The court held, however, that Hamilton's providing a false reference to IFC in November 2000 was close enough in time to Jute's May 2000 filing of a charge of discrimination to support an inference of causation. A-422. However, the court stated that in order "[t]o establish a prima facie case of retaliation where the purported adverse employment action is a false reference, a plaintiff must offer more." A-422. The court held that a plaintiff in this situation is required to offer evidence "'that the statements of the former employer caused or contributed to [her] rejection by the prospective employer.'" A-422 (quoting Sarno v. Douglas Elliman-Gibbons & Ives, Inc., 183 F.3d 155, 160 (2d Cir. 1999)). The court concluded that Jute had failed to offer any evidence to this effect. A-422-423. The court indicated that at least one Hamilton employee gave her a favorable reference, and that Yost's statement, despite referring to her protected activity, was at most a refusal to comment. A-423. Thus, because she had failed to establish a prima facie case of retaliation under Title VII, the district court granted Hamilton judgment as a matter of law. A-423. STATEMENT OF STANDARD OF REVIEW This Court reviews the grant of summary judgment de novo, construing the evidence in the light most favorable to the non- moving party. Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 212 (2d Cir. 2001). Summary judgment is appropriate only if "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party . . . ." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); see Fed. R. Civ. P. 56(c). ARGUMENT I. AN EMPLOYEE WHO IS NAMED AS A WITNESS IN A TITLE VII PROCEEDING HAS PARTICIPATED IN A PROCEEDING UNDER TITLE VII AND IS PROTECTED FROM RETALIATION. Section 704(a) of Title VII makes it "an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII]." 42 U.S.C. 2000e- 3(a). Hamilton argued below that retaliation against Jute because she was named as a witness in Brunton's Title VII lawsuit would not violate 704(a) because Jute did not "participate" in Brunton's suit merely because she was named as a potential witness. The district court correctly rejected this argument, holding that Jute had participated "in a proceeding under Title VII when, in 1998, Brunton identified her as a witness during a deposition in a Title VII lawsuit against Hamilton and the union." A-414. This Court should reject the argument as well, if Hamilton raises it as an alternative basis for affirming the district court's judgment. This Court recently noted that "the explicit language of 704(a)'s participation clause is expansive and seemingly contains no limitations." Deravin v. Kerik, 335 F.3d 195, 203 (2d Cir. 2003). The Court noted that "'the word 'any' has an expansive meaning, and thus, so long as 'Congress did not add any language limiting the breadth of that word,' the term 'any' must be given literal effect.'" Id. at 204 (quoting United States v. Gonzales, 520 U.S. 1, 5 (1997)). In Deravin, the Court accordingly held that the participation clause's absolute protection applies even to employees participating involuntarily in Title VII proceedings. Id. See also Section 8, Retaliation, 2 EEOC Compliance Manual, at 8-10 n. 24 (May 20, 1998) (available at http://www.eeoc.gov/policy/compliance.html) (employee is protected from retaliation because of testimony he reluctantly gave in co-employee's Title VII suit). By the same token, the participation clause contains no requirement that the participation be active rather than passive in nature. The clause does not even require that employees be aware of their involvement. Consistent with the reasoning in Deravin, those who are named as witnesses without their consent in Title VII actions are protected from retaliation regardless of whether they have had an opportunity to participate further. See Williams v. J.B. Parks Wholesale Florist, Inc., No. 3:95-CV-2599- D, 1997 WL 160194, at *4 (N.D. Tex. Mar. 31, 1997) (recognizing that to conclude otherwise would give the employer free rein to retaliate against witnesses to Title VII violations identified without their knowledge while fully protecting those who consented to be identified as witnesses); see also United States v. Milwaukee, 390 F. Supp. 1126, 1128 (E.D. Wis. 1975) (holding that Title VII's anti-retaliation clause prohibits an employer from threatening to retaliate against potential witnesses who cooperate in a Title VII investigation). Accordingly, the district court correctly determined that Jute engaged in protected activity when she was named as a witness in a Title VII proceeding in 1998. A-414. This Court should affirm this portion of the district court's ruling. II. THE DISTRICT COURT ERRED BY FAILING TO CONSIDER ALL ALLEGED ADVERSE EMPLOYMENT ACTIONS AS RELEVANT BACKGROUND EVIDENCE. Title VII requires a plaintiff to "file a charge with the [EEOC] either 180 or 300 days 'after the alleged unlawful employment practice occurred.'" National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 104-05 (2002) (quoting 42 U.S.C. 2000e- 5(e)(1) (1994 ed.)). "[D]iscrete discriminatory acts are not actionable if time barred . . . ." Id. at 113. The district court held that the alleged retaliatory acts that occurred more than 300 days before Jute filed her charge were "discrete acts upon which Jute could have filed separate charges." A-418. Accordingly, the court stated that it "may not consider" them in this lawsuit. A-418. The court then proceeded to hold that Jute could not establish a causal connection between her participation in Brunton's suit and the alleged adverse actions that were timely challenged in her charge. A-421. According to the court, too much time elapsed between the date when Brunton named her as a witness in July 1998 and the timely-challenged retaliatory acts, the earliest of which occurred in September 1999. A-421. In reaching this conclusion, the court erroneously ignored the evidence that Jute was retaliated against almost immediately after she was named as a witness and repeatedly thereafter. Even accepting the district court's conclusion that the alleged retaliatory acts that occurred more than 300 days before Jute filed her charge were discrete acts, that means only that those acts are not "actionable" under Title VII. See Morgan, 536 U.S. at 105 (holding "the statute precludes recovery for discrete acts of . . . retaliation that occur outside the statutory time period") (emphasis added). The district court was wrong in stating that it "may not consider" those acts in this lawsuit. On the contrary, in Morgan, the Supreme Court expressly held that Title VII does not "bar an employee from using [untimely discrete] acts as background evidence in support of a timely claim." 536 U.S. at 113. The background evidence of retaliatory acts that the district court ignored in this case is particularly relevant to the question of whether there was a causal link between Jute's participation in Brunton's Title VII action and the timely challenged adverse actions against Jute. Because of its erroneous ruling, the district court ignored the fact that the adverse actions against Jute began only one day after she was named as a witness in Brunton's suit and continued throughout her employment. Hamilton immediately removed Jute from the JDE team and denied her a promotion in September 1998 which was promised to her by Crowe-Hagans. Had the district court considered the chain of events as relevant background evidence, it should have determined that a jury could find a causal link between Jute's protected activity and the timely challenged adverse acts. III. THE DISTRICT COURT ERRED BY LIMITING JUTE'S TITLE VII LAWSUIT TO THOSE ALLEGATIONS SPECIFICALLY RAISED IN HER EEOC CHARGE. The district court also erred by refusing to consider adverse employment acts committed against Jute less than 300 days before she filed her charge of discrimination that were not specifically raised in the charge itself. Not only should these acts have been considered, but Jute may recover for these acts if they are found to have been retaliatory. This Court has consistently held that a Title VII action is not limited to the specific acts alleged in the plaintiff's EEOC charge. Deravin, 335 F.3d at 201 (recognizing a "loose pleading" exception to Title VII's exhaustion requirement based on the fact that EEOC charges are often filled out by employees without benefit of counsel and their primary purpose is to alert the EEOC to discrimination); Holtz v. Rockefeller & Co., 258 F.3d 62, 83 (2d Cir. 2001) (describing an exception to the administrative exhaustion requirement as an allowance of "loose pleading"); Butts v. N.Y. Dep't of Hous. Pres. & Dev., 990 F.2d 1397, 1402 (2d Cir. 1993) (recognizing that fairness to civil rights plaintiffs requires courts to permit "loose pleading" in EEOC charges). Claims not raised in an EEOC charge may be brought in a subsequent civil suit so long as "the conduct complained of would fall within the 'scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.'" Butts, 990 F.2d at 1402 (quoting Smith v. American Presidents Lines, Ltd., 571 F.2d 102, 107 n.10 (2d Cir. 1978)). An investigation following a charge of discrimination by one actor "could reasonably be expected to inquire into other instances of alleged discrimination by the same actor." Rose v. N.Y. City Bd. of Educ. 257 F.3d 156, 163 (2d Cir. 2001); see also Carmellino v. District 20 of N.Y. City Dep't of Educ., No. 03- Civ-5942, 2004 WL 736988, at *17 (S.D.N.Y. Apr. 6, 2004) (finding pre-charge termination "reasonably related" to allegations in the EEOC charge despite no "readily apparent explanation as to why notice of [the] allegedly discriminatory termination was not included in [the] EEOC charge"). Similarly, an investigation into a charge alleging several retaliatory acts could reasonably be expected to yield evidence of other acts of retaliation committed by the employer occurring around the same time both before and after the charge was filed. See Francis v. City of N.Y. & Human Res. Admin., 235 F.3d 763, 766 (2d Cir. 2000) ("[T]he benefit of the Butts 'reasonably related' test is not limited to plaintiffs alleging post-charge conduct."). Thus, Jute may recover for all acts of retaliation that occurred within the time limits established by Title VII regardless of whether such acts were specifically raised in an EEOC charge. IV. AN EMPLOYER WHO GIVES A RETALIATORY NEGATIVE EMPLOYMENT REFERENCE VIOLATES TITLE VII WHETHER OR NOT THE NEGATIVE REFERENCE CAUSED OR CONTRIBUTED TO THE LOSS OF A PARTICULAR JOB. After finding most of Jute's retaliation claims untimely, unexhausted or otherwise occurring too long after her protected activity to raise an inference of causation, the district court examined Jute's sole surviving claim, i.e., that Hamilton provided a "false" reference to IFC in retaliation for her filing an EEOC charge. A-422. It is undisputed that at least one of Jute's former supervisors declined to comment on Jute's performance, instead informing IFC that Jute had a "lawsuit" pending against Hamilton. A-36; A-170. It is the EEOC's position that Section 704(a) "prohibit[s] 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." Compliance Manual 8-II(D)(3). This Court has not adopted the EEOC's standard for actionable retaliation. See Sanders v. N.Y. City Human Res. Admin., 361 F.3d 749, 759 (2d Cir. 2004) (noting adoption of "materially adverse standard" in the Second Circuit). However, this Court has recognized that federal employment discrimination statutes do not define "adverse employment action solely in terms of job termination or reduced wages and benefits . . . ." Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir. 1997). Instead, "less flagrant reprisals by employers may indeed be adverse" and actionable, including retaliatory acts which harm an individual's ability to obtain future employment that may take many forms such as blacklisting, refusing to write a recommendation to prospective employers or sullying the plaintiff's reputation. Id.; see also Lovejoy-Wilson, 263 F.3d at 223-24 (2d Cir. 2001) (noting that this Court defines the concept of "adverse employment action" broadly to include not only "discharge, refusal to hire, refusal to promote, demotion, reduction in pay and reprimand," but also "lesser actions" such as "negative evaluation letters, express accusations of lying," reassignments and other actions not limited to "pecuniary emoluments") (internal citations omitted). This Court has determined that "there are no bright-line rules" in this area and that the "courts must pore over each case to determine whether the challenged employment action reaches the level of 'adverse.'" Wanamaker, 108 F.3d at 466 (citing Welsh v. Derwinski, 14 F.3d 85, 86 (1st Cir. 1994)). Under either the Commission's standard or this Court's standard, Hamilton violated Title VII if it gave Jute a negative reference because she filed a charge with the EEOC without regard for whether the reference actually caused her to lose an employment opportunity. An employer's practice of informing prospective employers that a former employee is involved in litigation with his former employer is likely to harm the former employee's ability to obtain future employment and, therefore, is reasonably likely to deter persons from filing charges. See Compliance Manual 8-II(D)(2) ("Examples of post-employment retaliation include actions that are designed to interfere with the individual's prospects for employment, such as giving an unjustified negative job reference, refusing to provide a job reference, and informing an individual's prospective employer about the individual's protected activity.") (citing EEOC v. L.B. Foster Co., 123 F.3d 746 (3d Cir. 1997); Ruedlinger v. Jarrett, 106 F.3d 212 (7th Cir. 1997)); see also Serrano v. Schneider, Kleinick, Weitz, Damashek & Shoot, P.C., No. 02-CV-1660, 2004 WL 345520, at *7-8 (S.D.N.Y. Feb. 24, 2004) (informing a prospective employer about an employee's lawsuit constitutes an adverse action under 704(a), stating that "surely" the plaintiff's former supervisor "knew or should have known" that, by revealing the fact that the plaintiff had sued her former employer, "he could severely hurt her chances of finding employment"). The district court, however, held that, under this Court's decision in Sarno v. Douglas Elliman-Gibbons & Ives, Inc., 183 F.3d 155 (2d Cir. 1999), Jute failed to establish a prima facie case of retaliation because there is no evidence that IFC's decision to deny Jute employment was attributable to any communication by a Hamilton employee. A-422-423. In Sarno, the defendant told the prospective employer that it was the defendant's stated policy only to confirm dates of employment, position and last salary when a reference was sought on a former employee. Sarno, 183 F.3d at 158. The plaintiff did not get the position sought with the prospective employer, and he subsequently claimed that the defendant's refusal to give him a positive reference was retaliatory. Id. This Court assumed arguendo that "a former employer's giving an entirely neutral reference to an inquiring prospective employer, leading the prospective employer to decline to hire the applicant, can constitute an adverse employment action." Id. at 160 (emphasis added) (citing Pantchenko v. C.B. Dolge Co., 581 F.2d 1052, 1054 (2d Cir. 1978) (per curiam)). Based on this assumption, the Court held that, "[w]here . . . there is no admissible evidence that the statements of the former employer caused or contributed to the rejection by the prospective employer, the plaintiff has failed to present a prima facie case." Id. at 160 (citing Bailey v. USX Corp., 850 F.2d 1506, 1508 (11th Cir. 1998)). We urge the Court to distinguish Sarno and not extend it to a case like the one at bar where the defendant disclosed the plaintiff's protected activity as the basis for its refusal to comment on her performance or otherwise gave negative information to the prospective employer that it should have known would harm the plaintiff's future employment prospects. In such cases, the defendant's liability should depend only on its motive for giving the negative reference, and the effect of the reference on the actions of the prospective employer pertains solely to the question of damages. See Hillig v. Rumsfeld, 381 F.3d 1028, 1033 (10th Cir. 2004) ("an act by an employer that does more than a de minimis harm . . . to a plaintiff's future employment prospects can, when fully considering the unique factors relevant to the situation at hand, be regarded as an adverse employment action, even where the plaintiff does not show the act precluded a particular employment prospect") (internal quotations and citations omitted)(emphasis in original); EEOC v. L.B. Foster Co., 123 F.3d 746, 754 (3d Cir. 1997) ("An employer who retaliates cannot escape liability merely because the retaliation falls short of its intended result."); Hashimoto v. Dalton, 118 F.3d 671, 675-76 (9th Cir. 1997)(rejecting the defendant's "no harm, no foul" approach for its failure to recognize the distinction between a violation of the law and the availability of remedies); Smith v. Sec'y of the Navy, 659 F.2d 1113, 1120 & n.58 (D.C. Cir. 1981)(noting that there is a "clear distinction between the question of legal wrong and appropriate legal remedy" and that "[a]n illegal act of discrimination whether based on race or some other factor such as a motive of reprisal is a wrong in itself under Title VII, regardless of whether that wrong would warrant an award of back pay . . ."). See also Compliance Manual 8-II(D)(2) ("Retaliatory acts designed to interfere with an individual's prospects for employment are unlawful regardless of whether they cause a prospective employer to refrain from hiring the individual. However, the fact that the reference did not affect the individual's job prospects may affect the relief that is due."). The district court's application of Sarno is untenable. If a plaintiff is required to show that a retaliatory reference actually interfered with her securing a particular job where the reference is facially negative or informs the prospective employer of the plaintiff's protected activity, then a plaintiff who knows that her former employer is spreading malicious information about her for retaliatory reasons would be forced to wait until she could prove that the information caused her to lose a job before she could even obtain an injunction prohibiting the retaliation. Furthermore, the district court apparently reads Sarno to require a plaintiff to "present an affidavit or other sworn testimony from any [prospective employer] official attributing its decision to [the former employer's] communication." A-422-423. It is highly unlikely that a plaintiff could secure such evidence. Prospective employers do not generally issue statements justifying their decisions not to hire particular applicants, and an employer who admitted it relied on a on retaliatory negative reference to deny employment would subject itself to possible litigation under Title VII. See Compliance Manual 8-II(C)(4) ("[A] violation would be found if a respondent refused to hire the charging party because it was aware that she filed an EEOC charge against her former employer."). Where, as here, the retaliatory reference is one that would foreseeably diminish the plaintiff's chances for obtaining future employment, the reference itself constitutes a violation of 704(a) even without a showing that it actually affected a particular employment opportunity. CONCLUSION For the foregoing reasons, the Commission respectfully asks this Court to affirm in part and reverse in part the judgment below and remand the case to the district court for further proceedings. Respectfully submitted, ERIC S. DREIBAND General Counsel LORRAINE C. DAVIS Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel __________________________________ JASON M. MAYO Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4549 direct (202) 663-7090 facsimile CERTIFICATE OF COMPLIANCE In accordance with Federal Rules of Appellate Procedure 29(d) and 32(a), I certify that this brief was prepared with Courier New (monospaced) typeface, 12 point font, 10 characters per inch, and contains 5882 words from the Statement of Interest though the Conclusion as determined by the Word Perfect 9 word counting application. ____________________________ Jason M. Mayo, Esq. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W., Rm. 7014 Washington, D.C. 20507 November 3, 2004 CERTIFICATE OF SERVICE I hereby certify that two copies of the foregoing brief have been sent via U.S. first class mail postage prepaid to the following counsel of record: COUNSEL FOR PLAINTIFF-APPELLANT DONNA S. JUTE: Barbara E. Gardner, Esq. LAW OFFICES OF BARBARA E. GARDNER 843 Main St. Manchester, CT 06040 COUNSEL FOR DEFENDANT-APPELLEE HAMILTON SUNDSTRAND, CORP.: Daniel Adam Schwartz, Esq. DAY, BERRY & HOWARD, LLP CityPlace I 185 Asylum St. Hartford, CT 06103 ____________________________ Jason M. Mayo, Esq. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W., Rm. 7014 Washington, D.C. 20507 November 3, 2004 ____________________________________________ 1. The Commission takes no position on any other questions that may be raised by this appeal. 2. Because this is an appeal of the district court’s grant of summary judgment, we relate the facts in the light most favorable to the plaintiff. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (“The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.”). 3. The district court also correctly concluded that Jute engaged in protected activity when she filed her internal sexual harassment complaint in 1990 and when she filed her charge of discrimination in 2000. A-414-415. 4. This Court has also recognized that a claim of retaliation for filing an EEOC charge is reasonably related to the underlying charge. Butts, 990 F.2d at 1402 (citing Malarkey v. Texaco, Inc., 983 F.2d 1204, 1208-09 (2d Cir. 1993)). Thus, an employee need not file a separate charge of retaliation in order to bring a lawsuit against the employer for post-charge retaliation. Id. The district court was correct when it held that Jute’s complaint that Hamilton provided a negative reference to a prospective employer was “reasonably related as a matter of law and not subject to [administrative] exhaustion.” A-419. 5. In fact, Jute had not filed a lawsuit at the time this statement was made; she had only filed a charge with the EEOC. A-2; A-150-152; A-394. 6. The Eleventh Circuit in Bailey specifically noted that the former employer, while giving a generally negative evaluation of the plaintiff’s work performance, never informed the prospective employer that the plaintiff had filed a discrimination claim against it or had otherwise engaged in protected activity. Bailey, 850 F.2d at 1508. 7. In the district court, Hamilton argued that “declining to respond to a new employer by referencing pending litigation is insufficient to establish an ‘adverse employment action’ . . . .” A-394 (citing Patt v. Family Health Systems, Inc., 280 F.3d 749, 753 (7th Cir. 2002) and Miller v. Aluminum Co. of Am., 679 F. Supp. 495, 504 (W.D. Pa. 1988). Neither Patt nor Miller stand for the proposition Hamilton asked the district court to adopt. In Patt, the negative comments at issue were not given to a prospective employer and did not refer to any of the plaintiff’s protected activity. Miller does not address employee references at all.