Jean G. Mattern v. Eastmern Kodak Company 95-40836 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _____________________ No. 95-40836 _____________________ JEAN G. MATTERN, Plaintiff-Appellee, v. EASTMAN KODAK COMPANY, et al., Defendants-Appellants. _____________________________________________________ On Appeal from the United States District Court for the Eastern District of Texas _____________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PETITIONS FOR REHEARING AND SUGGESTION OF REHEARING EN BANC _____________________________________________________ C. GREGORY STEWART General Counsel J. RAY TERRY, JR. Deputy General Counsel GWENDOLYN YOUNG REAMS Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel BARBARA L. SLOAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4736 STATEMENT OF COUNSEL 1. I express a belief, based on a reasoned and studied professional judgment, that the panel decision is contrary to the following decision of the United States Court of Appeals for the Fifth Circuit, and that consideration by the full Court is necessary to secure and maintain uniformity of decisions in this Court: Capaci v. Katz & Besthoff, Inc., 711 F.2d 647 (5th Cir. 1983). 2. I express a belief, based on a reasoned and studied professional judgment, that this appeal involves the following question of exceptional importance: Whether an employer violates § 704 of Title VII when it retaliates against an employee because she complained of sexual harassment, even if the retaliation does not take the form of an "ultimate employment decision," such as a discharge, demotion or reduction in pay. _____________________________ Barbara L. Sloan Attorney Equal Employment Opportunity CommissionTABLE OF CONTENTS Page STATEMENT OF COUNSEL ....................................... i TABLE OF CONTENTS .......................................... ii TABLE OF AUTHORITIES ....................................... iii STATEMENT OF INTEREST ...................................... 1 STATEMENT OF THE ISSUE ..................................... 2 STATEMENT OF THE CASE ...................................... 2 SUMMARY OF ARGUMENT ........................................ 4 ARGUMENT THE PANEL'S HOLDING THAT TITLE VII PERMITS EMPLOYER RETALIATION UNLESS IT TAKES THE FORM FORM OF AN "ULTIMATE EMPLOYMENT DECISION" HAS NO BASIS IN THE LANGUAGE OF § 704, UNDERMINES ENFORCEMENT OF TITLE VII AND CONFLICTS WITH CASE LAW IN THIS AND OTHER CIRCUITS ................... 5 CONCLUSION ................................................. 15 CERTIFICATE OF SERVICETABLE OF AUTHORITIES Page(s) CASES Atkinson v. Oliver T. Carr Co., 40 FEP Cases 1041 (D.D.C. 1986) ....................... 9 Beckham v. Grand Affair of N.C., Inc., 671 F. Supp. 415 (W.D.N.C. 1987) ...................... 9 Berry v. Stevinson Chevrolet, 74 F.3d 980 (10th Cir. 1996) ......................... 9 Buzogany v. Roller Bearing Co., 47 FEP Cases 1485 (D.N.J. 1986) ...................... 9 Capaci v. Katz & Besthoff, Inc., 711 F.2d 647 (5th Cir. 1983), cert. denied, 466 U.S. 927 (1984) ................... 13-14 Dollis v. Rubin, 77 F.3d 777 (5th Cir. 1995)........................ 3, 12-14 Dominic v. Consolidated Edison Co., 822 F.2d 1249 (2d Cir. 1987) .......................... 8 EEOC v. Cosmair, Inc., 821 F.2d 1985 (5th Cir. 1987) ......................... 10 EEOC v. Levi Strauss & Co., 515 F. Supp. 640 (N.D. Ill. 1981) ...................... 9 Evans v. Sheraton Park Hotel, 5 FEP Cases 393 (D.D.C. 1972) ......................... 9 Grant v. Bethlehem Steel Corp., 622 F.2d 43 (2d Cir. 1980) ............................ 8 Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) .................................... 12 Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827 (1990) ................................... 6 Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986) .................................... 12 Mitchell v. Robert Demario Jewelry, Inc., 361 U.S. 288 (1960) ................................... 10 Nash v. Electrospace Systems, Inc., 9 F.3d 401 (5th Cir. 1993) ............................ 11 Page v. Bolger, 645 F.2d 227 (4th Cir.), cert. denied, 454 U.S. 892 (1981) ..................... 13 Parker v. Baltimore & Ohio Railroad Co., 652 F.2d 1012 (D.C. Cir. 1981) ........................ 10 Passer v. American Chemical Society, 935 F.2d 322 (D.C. Cir. 1991) ......................... 6 Paxton v. Union National Bank, 688 F.2d 552 (8th Cir. 1982) .......................... 9 Pennsylvania v. Local Union No. 542, 347 F. Supp. 268 (E.D. Pa. 1972) ...................... 9 Perez v. FBI, 49 FEP Cases 1342 (W.D. Tex. 1989), aff'd, 956 F.2d 265 (5th Cir. 1992) ................... 9 Pettway v. American Cast Iron Pipe Co., 411 F.2d 998 (5th Cir. 1969) .......................... 10 Russello v. United States, 464 U.S. 16, 23 (1983) ................................ 7 Shirley v. Chrysler First, Inc., 970 F.2d 39 (5th Cir. 1992) ........................... 8 Smith v. Secretary of Navy, 659 F.2d 1113 (D.C. Cir. 1981) ...................... 6, 12 Toscano v. Nimmo, 570 F. Supp. 1197 (D. Del. 1983) ...................... 8 Yartzoff v. Thomas, 809 F.2d 1371 (9th Cir. 1987) ......................... 8 STATUTES The Age Discrimination in Employment Act of 1967 29 U.S.C. §§ 621 et seq. ......................... 1 29 U.S.C. § 623(d) .............................. 6 Title VII of the Civil Rights Act of 1964 42 U.S.C. §§ 2000e et seq. ..................... passim 42 U.S.C. § 703 ........................ 3, 4, 6, 7, 12 42 U.S.C. § 704 ................................ passim 42 U.S.C. § 717 ................................ 12, 13 The Americans With Disabilities Act of 1990 42 U.S.C. §§ 12111 et seq......................... 1 42 U.S.C. § 12203(a) ............................. 6 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _____________________ No. 95-40836 _____________________ JEAN G. MATTERN, Plaintiff-Appellee, v. EASTMAN KODAK COMPANY, et al., Defendants-Appellants. _____________________________________________________ On Appeal from the United States District Court for the Eastern District of Texas _____________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PETITIONS FOR REHEARING AND SUGGESTION OF REHEARING EN BANC _____________________________________________________ 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., and other federal laws prohibiting employment discrimination, including the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. §§ 621 et seq., and Title I of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12111 et seq. Because the enforcement schemes in these statutes depend on charges of discrimination filed with the EEOC by persons aggrieved by discrimination, Congress prohibited employers from retaliating against persons who file charges or otherwise complain of discrimination. A divided panel of this Court held in this case, however, that Title VII prohibits retaliation only if it takes the form of an "ultimate employment decision," such as discharge or demotion, but it does not prohibit other forms of retaliation such as harassment or unfair evaluations. Because this decision, if allowed to stand, will inevitably deter some employees from complaining about discrimination and, thereby, undermine the EEOC's ability to enforce Title VII and the other statutes with similar enforcement schemes, we offer our views to the Court. STATEMENT OF THE ISSUE Whether an employer violates § 704 of Title VII when it retaliates against an employee because she complained of sexual harassment, even if the retaliation does not take the form of an "ultimate employment decision," such as a discharge, demotion or reduction in pay. STATEMENT OF THE CASE Jean Mattern alleges that she was sexually harassed while she was employed in a mechanic's apprenticeship program at Eastman Kodak Co. ("Kodak"). She also alleges that, after she filed a charge with the EEOC complaining of the harassment, she was the target of a campaign of retaliation by both coworkers and supervisors because of her complaints. The retaliatory actions included harassment, reprimands, and poor evaluations of her work (which had been praised before her harassment complaints). Mattern became ill during this time, and her doctor believed that her illness was caused by the harassment she was subjected to at work. After being threatened with removal from the program based on her poor evaluations, Mattern resigned and brought this action, alleging sexual harassment, retaliation and constructive discharge. A jury found that Mattern was not constructively discharged and that Kodak was not liable for the sexual harassment because it took prompt remedial action. The jury also found, however, that Mattern was the victim of retaliation and awarded $50,000 in compensatory damages. A divided panel of this Court reversed the judgment entered on that verdict. The majority held that, even if all of the actions Mattern complained of were taken in retaliation for her complaints of sexual harassment, Kodak did not violate Title VII because § 704 prohibits retaliation only when it takes the form of an "ultimate employment decision," which the majority defined as "'hiring, granting leave, discharging, promoting, and compensating'." 1997 WL 14761 ("Op.") at *6 (quoting Dollis v. Rubin, 77 F.3d 777, 782 (5th Cir. 1995)). Applying that standard, the majority concluded that none of the conduct Mattern complained of, including the harassment and the negative evaluations of her work, rose to the level of actionable retaliation. According to the majority, even the negative evaluations had no more than "mere tangential effect on a possible future ultimate employment decision." Id. at *7. Judge Dennis dissented. He noted that, under the majority's construction of § 704, harassment which would clearly be unlawful under § 703, if motivated by sex or race, is not unlawful under § 704, if motivated by retaliatory animus. Op. at *21. He also reviewed the cases the majority relied on and determined that they do not compel the result the majority reached. Id. at *19-*20. SUMMARY OF ARGUMENT The panel majority erred in holding that employers are free to retaliate against employees for participating in Title VII proceedings if the retaliation cannot be considered an "ultimate employment decision." Section 704(a) of Title VII broadly prohibits employers from "discriminating" against an employee for engaging in protected activity. The provision is not limited to discrimination which takes the form of an employment action, let alone an "ultimate employment decision." Rather, the plain terms of the provision prohibit employers from taking any kind of adverse action against an employee who participates in proceedings under Title VII. Broad protection against retaliation is essential to the enforcement scheme of Title VII. Unless employees are assured that they will not be subject to any form of backlash from their employers for coming forward with complaints about discrimination, their willingness and ability to seek redress for injuries resulting from discrimination will be chilled. Furthermore, since the Commission relies on complaints from individual employees to uncover and remedy discrimination, its enforcement efforts will be severely hampered by any judge-made limitations on the plain language and coverage of § 704. Although the panel majority purported to tie its interpretation of § 704 to the prohibitory language of § 703, its restrictive interpretation of § 704 excludes conduct, such as the harassment alleged in this case, which would be actionable under § 703 if it were based on race or sex. Moreover, courts, including this one, have repeatedly held that conduct which would not meet the panel's definition of an "ultimate employment decision" is nevertheless prohibited under § 704(a). To the extent that recent Fifth Circuit case law can be read as limiting § 704's protection to "ultimate employment decisions," it is inconsistent with prior precedent, as well as case law in other circuits, and, accordingly, cannot control. ARGUMENT THE PANEL'S HOLDING THAT TITLE VII PERMITS EMPLOYER RETALIATION UNLESS IT TAKES THE FORM OF AN "ULTIMATE EMPLOYMENT DECISION" HAS NO BASIS IN THE LANGUAGE OF § 704, UNDERMINES ENFORCEMENT OF TITLE VII AND CONFLICTS WITH CASE LAW IN THIS AND OTHER CIRCUITS. The panel majority held that Kodak did not violate § 704 of Title VII when it retaliated against Mattern for filing a charge with the EEOC because its retaliatory acts did not take the form of an "ultimate employment decision." According to the majority, § 704 does not prohibit an employer from subjecting an employee to a campaign of harassment and intimidation because she filed a charge, even where, as here, the harassment causes the employee physical harm. The majority's holding that § 704 permits some forms of retaliation cannot be reconciled with the language of the provision which prohibits all retaliation without exceptions. It is antithetical to the purpose of the anti-retaliation provision, and inconsistent with decisions by this Court and other courts of appeals. This Court should grant rehearing to reaffirm the principle that employees engaging in protected conduct are protected from all forms of retaliatory conduct. The starting point for interpreting a statute is the language of the statute itself. Kaiser Alum. & Chem. Corp. v. Bonjorno, 494 U.S. 827, 835 (1990). Section 704(a) makes it unlawful for "an employer to discriminate against any of his employees or applicants for employment . . . because he has made a charge" under Title VII. 42 U.S.C. § 2000e-3(a).<1> This language broadly prohibits any discrimination against an employee for filing a charge. It "speaks unconditionally, without limitation to acts causing particular harms such as the loss of a particular job or promotion." Smith v. Secretary of Navy, 659 F.2d 1113, 1119 n.56 (D.C. Cir. 1981). Cf. Passer v. American Chem. Soc'y, 935 F.2d 322, 331 (D.C. Cir. 1991) (holding that the same language in § 4(d) of the ADEA "does not limit its reach only to acts of retaliation that take the form of cognizable employment actions, such as discharge, transfer, or demotion"). Despite the broad language of § 704, the panel majority held that the provision prohibits only particular forms of discriminatory treatment -- what it calls "ultimate employment decisions." In justifying this limitation, the majority ignores the language of § 704, and instead analyzes the strikingly different terms of § 703(a), which prohibit only specific discriminatory employment practices.<2> While its reasoning is unclear, the majority seems to suggest that, because Congress limited the prohibition on discrimination in § 703(a) to specific employment practices, it must have intended to limit § 704 in the same way. In fact, the opposite inference is compelled. By writing § 703(a) as it did, Congress demonstrated that it knew how to draft a prohibition on discrimination that is limited to specific employment practices. If it had wanted the prohibition on discrimination for filing a charge in § 704(a) to be similarly limited, it would have been a simple matter for Congress to use the same language it had used in § 703(a) to accomplish that end. Instead, Congress chose to use broader language. The courts should give effect to this Congressional decision. See Russello v. United States, 464 U.S. 16, 23 (1983) (court should "refrain from concluding that different language in [two statutory] subsections has the same meaning in each"). The difference in the breadth of §§ 703 and 704 makes eminent sense. Title VII is a statute addressing employment discrimination. Therefore, the substantive provisions of the statute speak only in terms of discrimination in employment practices. The prohibition on retaliation, however, is ancillary to these substantive prohibitions. It was intended to ensure the effectiveness of the prohibitions on employment discrimination by preventing employers from intimidating employees who complain about discrimination. The harm caused by retaliatory acts does not depend on the particular method of retaliation chosen by the employer. An employer can intimidate employees by conduct that does not constitute an employment action as well as by retaliatory employment decisions. Accordingly, it is not surprising that, to safeguard enforcement of Title VII, Congress drafted § 704 to prohibit all forms of retaliatory conduct. The great majority of retaliation cases under both Title VII and the ADEA involve adverse employment decisions, undoubtedly because that is usually the easiest way for employers to get back at persons who file charges against them.<3> However, courts have not hesitated to find violations of Title VII and the ADEA where employers engaged in retaliation which did not take the form of an employment action. Thus, for example, the D.C. Circuit held that the plaintiff stated a claim for illegal retaliation where his employer allegedly cancelled a testimonial dinner in his honor because he filed a charge protesting his discharge. See Passer, 935 F.2d at 331 (ADEA case). Courts have also held that the protection against retaliation extends to situations where the employer instituted judicial proceedings against the employee<4> or used threats or physical violence against a charging party.<5> The panel majority's unjustified restriction on the scope of the prohibition on retaliation provided by Congress threatens the effectiveness of § 704, as well as the statute as a whole. Section 704 is designed "to protect the employee who utilizes the tools provided by Congress to protect his rights" and to ensure that the Commission has access to information about discrimination in the workplace. See Pettway v. American Case Iron Pipe Co., 411 F.2d 998, 1004-05 (5th Cir. 1969); see also EEOC v. Cosmair, Inc., 821 F.2d 1085, 1088 (5th Cir. 1987) (purpose of § 4(d) of the ADEA is "to protect persons who resort to the legal procedures that Congress established in order to right congressionally recognized wrongs"). The enforcement scheme that Congress established for Title VII "relies heavily on the initiative of aggrieved employees." Parker v. Baltimore & Ohio Ry. Co., 652 F.2d 1012, 1019 (D.C. Cir. 1981). The "filing of charges and the giving of information by employees [are] essential to the Commission's administration of Title VII" and "the carrying out of the congressional policy embodied in the Act." Pettway, 411 F.2d at 1005; see also Cosmair, 821 F.2d at 1090 (Commission "depends on the filing of charges to notify it of possible discrimination"). Effective enforcement of the statute can only be expected "if employees [feel] free to approach officials with their grievances." Mitchell v. Robert Demario Jewelry, Inc., 361 U.S. 288, 292 (1960) (discussing similar provision in Fair Labor Standards Act). Fear of reprisal will deter employees from filing charges and, so, limit the Commission's ability to remedy Title VII violations. The majority held in this case, however, that Title VII permits an employer to harass and reprimand an employee for filing a Title VII charge, to unfairly evaluate her work and threaten to discharge her, as long as the employer stops short of firing or demoting the employee. If this decision is allowed to stand, employees within the jurisdiction of this Court will lose an important part of their protection against retaliation. As a consequence, the Commission's ability to enforce Title VII will be compromised since some employees who would otherwise file charges of discrimination will doubtless keep silent once they become aware that they have no statutory protection against the sort of harassment alleged by the plaintiff in this case. The consequences of the decision will be particularly harsh for women like Mattern who are victims of sexual harassment by coworkers. Under the panel decision, a woman who is being harassed faces a dilemma. If she complains about the harassment, she must accept the fact that she will have no protection against resulting harassment, reprimands, unfair evaluations of her work, and any other retaliation short of an "ultimate employment decision." On the other hand, if she does not complain, she will have no redress for the sexual harassment unless the conduct becomes so pervasive that her employer is charged with constructive notice. See Nash v. Electrospace Systems, Inc., 9 F.3d 401, 403-04 (5th Cir. 1993) (actual or constructive notice necessary for employer liability for coworker harassment). Moreover, because many women faced with this dilemma will defer complaining to management or the EEOC, employers and the Commission will be deprived of the opportunity that early notice of harassment provides to prevent more serious harm. Furthermore, as the dissent points out, the majority's decision makes no sense even if one accepts the premise that the prohibition on retaliation in § 704 should be construed as coextensive with the prohibition on disparate treatment in § 703(a) because courts have never interpreted § 703(a) to apply only to the "ultimate employment decisions" described by the panel. On the contrary, in addition to discharges and demotions, § 703 also bars discrimination in the "terms, conditions, or privileges of employment." The Supreme Court has twice held that this language prohibits harassment based on race, sex or other protected status. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986). Accordingly, even under the majority's approach, § 704(a) prohibits the sort of retaliatory harassment the panel described in this case. The majority stated that it was bound by earlier Fifth Circuit case law holding that Title VII's anti-retaliation provision protects only "ultimate employment decisions." See Op. at *6 (citing Dollis v. Rubin, 77 F.3d 777 (5th Cir. 1995)). In Dollis, a panel of this Court concluded that § 717 of Title VII, 42 U.S.C. § 2000e-16, the provision applicable to federal sector employees, prohibits discrimination only in "ultimate employment decisions." Dollis, 77 F.3d at 781-82. Other courts have reached a contrary conclusion in federal sector cases, see, e.g., Smith, 659 F.2d at 1114, and we believe Dollis was wrongly decided. However, regardless of the correctness of Dollis in cases arising under § 717, it does not decide the question under § 704 because of the significant difference in the statutory language. Section 717 provides: "All personnel actions affecting employees shall be made free from any discrimination based on race . . . ." 42 U.S.C. § 2000e-16 (emphasis added). Thus, there is an argument that § 717 applies only to employment actions -- albeit not only to "ultimate employment decisions." In contrast, § 704 does not mention "personnel actions" but rather flatly prohibits "discrimination" of any kind. Thus, Dollis in no way compels the result the majority reached in this case under § 704.<6> Moreover, long before Dollis, this Court had already determined that § 704 applies to conduct that cannot be considered an "ultimate employment decision." See Capaci v. Katz & Besthoff, Inc., 711 F.2d 647 (5th Cir. 1983), cert. denied, 466 U.S. 927 (1984). In Capaci, the Court held that an employer violated § 704(a) where, because the plaintiff filed a charge, it issued "instructions that unusual occurrences involving [plaintiff] should be documented in her personnel file" solely as a means of harassment. See id. at 665. Quoting the district court, the Court stated that "'the[ reports of trivial events in plaintiff's file] could serve no purpose other than to impart to [her] a sense of harassment.'" Id. Significantly, there was no actionable "ultimate employment decision" in Capaci: the Court affirmed the rejection of the plaintiff's retaliatory discharge claim. Id. Capaci has not been overruled, and, as the dissent explains in detail, Op. at *19-*20, none of the other Fifth Circuit cases the majority cited can be read as requiring a different result. Thus, Capaci, rather than Dollis, should constitute binding precedent in this case. As Judge Dennis noted in his dissent, this Court has long recognized that "to effectuate the purposes of Congress, § 704(a) [must be read to afford] broad protection against retaliation for those who participate in the process of vindicating civil rights through Title VII." Op. at *20 (Dennis, J., dissenting). Had Congress shared the panel majority's view that retaliatory harassment like that alleged in this case is unimportant, it could have limited the protections of the provision to "ultimate employment decisions," or, at a minimum, to specific types of employment-related practices, as it did in § 703(a). Instead, however, Congress plainly stated that employers could not treat employees differently in any significant manner, because of their participation in Title VII proceedings. The effect of the majority's decision is to rewrite the statute in a way that drastically weakens the protection Congress provided. We therefore urge the Court to vacate the panel decision and hold that § 704 prohibits any kind of retaliatory conduct that would deter a reasonable person from enforcing their rights under Title VII. CONCLUSION For the foregoing reasons, the petition for rehearing should be granted. Respectfully submitted, C. GREGORY STEWART General Counsel J. RAY TERRY, JR. Deputy General Counsel GWENDOLYN YOUNG REAMS Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel _______________________________ BARBARA L. SLOAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4736 CERTIFICATE OF SERVICE I, Barbara L. Sloan, hereby certify that two copies of the Commission's Brief as Amicus Curiae were sent this 5th day of February, 1997, by express mail, postage prepaid, to: Stephen F. Fink Bryan P. Neal THOMPSON & KNIGHT, P.C. 1700 Pacific Avenue, Suite 3300 Dallas, TX 75201 Russell C. Brown WELLBORN, HOUSTON, ADKINSON, MANN, SADLER, & HILL, L.L.P. 300 W. Main Street Henderson, TX 75652 Margaret A. Harris BUTLER & HARRIS 3223 Smith, Suite 308 Houston, TX 77006 _______________________________ 1 The prohibitions against retaliation in the ADEA and the ADA are identical to § 704(a) in all relevant respects. See 29 U.S.C. § 623(d); 42 U.S.C. § 12203(a). 2 Section 703(a) makes it unlawful for an employer "to fail or refuse to hire or to discharge . . . or otherwise discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment . . . ." 42 U.S.C. § 2000e-2(a). 3 Perhaps for this reason, this Court and others have stated that a plaintiff must show an "adverse employment action" to establish a claim of retaliation under Title VII. See, e.g., Shirley v. Chrysler First, Inc., 970 F.2d 39, 42 (5th Cir. 1992) (discharge); Grant v. Bethlehem Steel Corp., 622 F.2d 43, 46 (2d Cir. 1980) (discriminatory job referrals). However, in these cases it was undisputed that the challenged actions were employment decisions. Accordingly, the courts' choice of words is dicta which had no bearing on the outcome of the cases under consideration. Moreover, many "adverse employment actions" found to violate § 704 would not satisfy the majority's test requiring an "ultimate employment decision." See, e.g., Dominic v. Consolidated Edison Co., 822 F.2d 1249, 1254 (2d Cir. 1987) (employer gave plaintiff poor performance ratings, moved his office to building under construction, and deluged him with work); Yartzoff v. Thomas, 809 F.2d 1321, 1377 (9th Cir. 1987) (poor appraisals, transfer of job duties, harassment, surveillance); Toscano v. Nimmo, 570 F. Supp. 1197, 1205-06 (D. Del. 1983) (harassment). 4 See Berry v. Stevinson Chevrolet, 74 F.3d 980, 986-87 (10th Cir. 1996) (Title VII) (employer caused sales manager to bring criminal complaint against plaintiff in retaliation for filing EEOC charge); Beckham v. Grand Affair of N.C., Inc., 671 F. Supp. 415, 419 (W.D.N.C. 1987) (Title VII) (employer had charging party arrested and prosecuted for trespass in retaliation for filing charge); Atkinson v. Oliver T. Carr Co., 40 FEP Cases 1041, 1043-44 (D.D.C. 1986) (Title VII) (employer threatened to press criminal charges unless plaintiff dropped EEOC charges); cf. Perez v. FBI, 49 FEP Cases 1342, 1346-47 (W.D. Tex. 1989) (employer allegedly used influence with U. S. Attorney to subpoena employee's phone records in retaliation for bringing Title VII claim), aff'd, 956 F.2d 265 (5th Cir. 1992). See also EEOC v. Levi Strauss & Co., 515 F. Supp. 640, 643 (N.D. Ill. 1981) (filing retaliatory defamation action against charging party would violate § 704(a)); Buzogany v. Roller Bearing Co., 47 FEP Cases 1485, 1486 (D.N.J. 1988) (retaliatory defamation action would violate § 4(d) of ADEA). 5 See, e.g., Pennsylvania v. Local Union No. 542, 347 F. Supp. 268, 287 (E.D. Pa. 1972) (retaliating against plaintiffs for bringing Title VII action by beating them; the court noted that Title VII's protection against retaliation "will truly have little relevancy . . . if [the statute] is interpreted to give a court power to reinstate an employee who is fired [for protected activity] but [not to restrain] overt acts of violence against Title VII plaintiffs"); Evans v. Sheraton Park Hotel, 5 FEP Cases 393, 396 (D.D.C. 1972) (threatening to beat employee because she filed charge). See also Paxton v. Union National Bank, 688 F.2d 552, 572 (8th Cir. 1982) (employer subjected employee to intensive interrogation after he filed a charge). 6 While the majority described its "ultimate employment decision" standard as a "long-held rule," Op. at *7, our research has uncovered only one published appellate decision, other than Dollis and this one, where such a standard has been adopted in a Title VII or ADEA retaliation context. See Page v. Bolger, 645 F.2d 227, 233 (4th Cir.), cert. denied, 454 U.S. 892 (1981). Page, like Dollis which relies on it, is a federal sector case based on § 717.