No. 08-15 _________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _________________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Respondent, v. STANLEY AUTOMOTIVE ENTERPRISES, INC., Defendant-Petitioner. _________________________________________________ On Petition for Permission to Appeal from the United States District Court for the Northern District of Texas Hon. Sam R. Cummings District Court No. 5-07CV0206-C _________________________________________________ Opposition of the Equal Employment Opportunity Commission to Petition for Permission to Appeal under 28 U.S.C. §1292(b) _________________________________________________ In this enforcement action, the Equal Employment Opportunity Commission ("EEOC" or "Commission") brought suit alleging that Stanley Automotive Enterprises ("Stanley Automotive") violated Title VII when it discharged Brian Smith in retaliation for engaging in activities protected under the statute. Before filing its answer to the complaint, Stanley Automotive moved to dismiss the complaint, and it now seeks immediate interlocutory review of the district court order denying the motion to dismiss. No discovery has yet taken place, and no evidence has been made part of the district court record. Stanley Automotive nonetheless asks this Court to resolve what is an inherently factual question: whether Smith's actions were sufficient to comprise "opposition" to unlawful employment practices within the meaning of Title VII. Every court to consider the question – including the district court decision invoked by Stanley Automotive – has held that encouraging co-workers to pursue discrimination claims may comprise protected opposition. The differing conclusions of the decisions Stanley Automotive cites are the result not of any split on the legal question, but rather are the result of the different evidence produced by the parties during the course of discovery. This Court therefore should reject Stanley Automotive's request to get an interlocutory ruling on a fact-intensive issue before any sort of factual record has been developed for this Court to examine. Although the district court rejected Stanley Automotive's motion to dismiss the retaliation claim, it nonetheless agreed to certify two questions to this Court in order to get this Court's guidance on "what evidence" might support a retaliation claim. The district court's uncertainty about the precise factual boundaries of protected conduct do not warrant interlocutory review of such an abstract question. As this Court has repeatedly emphasized, it will not issue advisory opinions based on a hypothetical set of facts. The parties should develop the factual record first, and any ruling by the district court or this Court should be based on that factual record. Background The Commission filed an amended complaint on January 7, 2008, alleging that Stanley Automotive fired Brian Smith because he engaged in activity protected under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a). R.10 at 1. Specifically, the complaint alleges that two female co-workers of Smith at the Brownfield Motoplex car dealership "informed him that they were being sexually harassed by General Manager Rick Kitchens, and asked Smith what they could do to get that sexual harassment to stop." R.10 at ¶ 7. Smith responded "by encouraging the co-workers to submit sexual harassment complaints pursuant to Defendant's sexual harassment policy." R.10 at ¶ 8. The complaint alleges that only a short time later, Stanley Automotive fired Smith because "he encouraged [his co-workers] to file sexual harassment complaints." R.10 at ¶ 9. No additional information about the Commission's claim is in the record, because Stanley Automotive immediately filed a motion to dismiss the complaint. R.11. Stanley Automotive contended that, based only on information set out in the complaint, Smith's actions could not possibly be protected participation or opposition under Title VII. R.11. The district court denied the motion to dismiss in an order dated April 18, 2008. R.16. The district court first reviewed relevant case law and it determined that most courts had ruled that individuals who encouraged co-workers to file discrimination complaints were protected from retaliation under Title VII's opposition clause. The district court noted one court had ruled otherwise but, the court stressed, that opinion "was decided on distinguishable facts." R.16 at 6. The court then held that permitting retaliation against individuals who help co-workers pursue discrimination grievances is contrary to the language and purpose of Title VII's opposition clause. R.16 at 7-8.<1> Stanley Automotive moved to alter or amend the district court's order. The district court denied the motion, but agreed to certify two questions for interlocutory review. R.20. Although the court's original decision had examined the factual underpinnings of the various rulings on protected activity, the court's certification order ignored those factual distinctions. The court simply cited two decisions reaching opposite results and concluded "‘there is substantial ground for difference of opinion'" on whether encouraging co-workers to file sexual harassment complaints is protected opposition activity. R.20 at 2 (quoting 28 U.S.C. § 1292(b)). The court then implicitly recognized how critical facts would be to the protected activity determination, for it certified an additional question asking this Court to explain "what evidence does or does not support a § 2000e-3(a) claim as a matter of law?" R.20 at 2. Argument Neither question certified by the district court warrants immediate interlocutory review by this Court under section 1292(b). This Court has emphasized repeatedly that because section 1292 "is intended to carve out limited exceptions to the general rule that only final judgments of federal district courts are reviewable on appeal, the statute is construed narrowly." Sierra Club v. Glickman, 67 F.3d 90, 94 (5th Cir. 1995); see also Thibodeaux v. Vamos Oil & Gas Co., 487 F.3d 288, 292 (5th Cir. 2007) ("‘Interlocutory appeals are not favored, and we strictly construe statutes permitting them.'") (citation omitted); In re Ingram Towing Co., 59 F.3d 513, 515 (5th Cir. 1995) (appellate court should approach section 1292 "‘somewhat gingerly lest a floodgate be opened that brings into the exception many pretrial orders'") (citation omitted). Permission to appeal therefore "is granted sparingly, not automatically," Alabama Labor Council v. Alabama, 453 F.2d 922, 924 (5th Cir. 1972), and the party seeking interlocutory review bears the "‘burden of persuading the court of appeals that exceptional circumstances justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment.'" Parcel Tankers, Inc. v. Formosa Plastics Corp., 764 F.2d 1153, 1155 (5th Cir. 1985) (citation omitted). Stanley Automotive has not demonstrated that the question on which it seeks immediate appellate review falls within section 1292(b)'s "narrow exception" to the "Congressional policy against piecemeal appeals." Garner v. Wolfinbarger, 433 F.2d 117, 120 (5th Cir. 1970). Whether an individual who helps and encourages co- workers to file discrimination complaints has "opposed" discrimination depends on the facts of the particular case. Seeking interlocutory review now, before the facts of this case have been developed, is asking this Court to render a decision without the record necessary for it to make such a decision, and as such is inappropriate. See Johnson v. Jones, 515 U.S. 304, 309 (an interlocutory appeal "risks additional, and unnecessary, appellate court work . . . when it presents appellate courts with less developed records"); Tello v. Dean Witter Reynolds, Inc., 410 F.3d 1275, 1294 (11th Cir. 2005) ("It would be premature and inappropriate for us to decide the legal issue presented to us on interlocutory appeal on the basis of this pre-discovery, undeveloped, motion-to-dismiss record. . . ."); Paschall v. Kansas City Star Co., 605 F.2d 403, 407 (8th Cir. 1979) (no interlocutory review because "the record must be more fully developed so that we can make a precise decision upon a precise record not an abstract answer to an abstract question"). 1. There is no substantial ground for difference of opinion on the first question because all courts agree that whether an individual has opposed unlawful activity by encouraging co-workers to pursue discrimination claims depends on the facts of each case. Title VII makes it unlawful for an employer to retaliate against an employee "because he has opposed any practice made an unlawful employment practice by this subchapter." 42 U.S.C. § 2000e-3(a). By its plain terms, the word "oppose" has a range of meanings, and can include attempting to correct discrimination against others in the workplace. See, e.g., McDonnell Douglas Corp. v. Green, 411 U.S. 792, 796 & n.4 (1973) (opposition clause forbids discrimination against employees "for attempting to protest or correct allegedly discriminatory conditions of employment"); Jones v. Flagship Int'l, 793 F.2d 714, 727 (5th Cir. 1986) ("employee opposition to discriminatory employment practices directed against a fellow employee may constitute activity protected under § 704(a) [42 U.S.C. § 2000-3(a)]"). Consistent with the plain meaning of the term "oppose," courts have held that an individual who encourages and assists a co-worker to make a discrimination complaint may properly be seen as having engaged in protected activity under Title VII. See, e.g., Johnson v. Pioneer Credit Co., No. 06-164, 2007 WL3146091, *3 (W.D. Ky. Oct. 25, 2007) ("The Court holds that when the Plaintiff encouraged [a co- worker] to file an EEO complaint, she was engaged in a protected activity because she was ‘opposing' a practice made unlawful by Title VII"); Kendall v. Cobb County, Ga., 14 F. Supp.2d 1342, 1344-46 (N.D. Ga. 1998) (encouraging co-worker to pursue sex harassment and discrimination complaint within employer's chain of command "qualifies as protected activity under § 2000e-3(a)"); Lyman v. Nabil's Inc., 903 F. Supp. 1443, 1448 (D. Kan. 1995) (complaint sufficiently alleged protected opposition where plaintiff claimed he "‘was supportive of women who came to him to complain about [the harasser's] actions'") (quoting complaint); King v. Illinois Bell Tel. Co., 476 F. Supp. 495, 502 (N.D. Ill. 1978) ("Examples of protected opposition activity include advising fellow employees of their rights under the law"); EEOC v. Kallir, Philips, Ross, Inc., 401 F. Supp. 66, 70-71 (S.D.N.Y. 1975) (title VII's anti-retaliation provision protects an employee from retaliation for "advising fellow employees of their rights under the law") ; see also Mato v. Baldauf, 267 F.3d 444, 450 (5th Cir. 2001) (stating that "the protected activity that [plaintiff] proved [was] encouraging and assisting other women to file sexual harassment complaints"). The case invoked by Stanley Automotive and the district court as reaching a contrary conclusion is, in fact, consistent with this line of cases. In Crosby v. City of Walterboro, S.C., 444 F. Supp.2d 559, 564 (D.S.C. 2006), the court recognized that "offering support to co-workers can constitute opposition activity." The court then reviewed all the evidence in the summary judgment record and concluded that this particular plaintiff had not produced enough evidence that he had engaged in protected activity. Id. at 563-64. In particular, the court emphasized that the evidence indicated that plaintiff "neither encouraged [his co-worker] to utilize formal or informal grievance procedures, nor supported her filing a complaint . . ., nor did he even express the opinion that sexual harassment took place." Id. at 564. Crosby thus turned on the inability of the particular plaintiff to produce enough evidence that he encouraged his co-worker. There was no ruling that encouragement can never comprise opposition activity under Title VII. There is, therefore, no ground for a difference of opinion on this question. Cf. 28 U.S.C. § 1292(b). It is certainly not the case – and the Commission is not arguing – that encouragement of co-workers is always protected opposition under Title VII. Evidence developed during the course of discovery or trial may indicate that the particular encouragement does not amount to protected activity. See, e.g. Jones v. Flagship Int'l, 793 F.2d 714, 727-28 (5th Cir. 1986) (while giving "‘aid and comfort, if not outright encouragement, to [co-worker] to pursue her grievances against the company'" might comprise protected opposition, evidence adduced at trial showed that the manner in which plaintiff opposed the conduct took plaintiff outside protections of Title VII) (citation omitted); Hopson v. Dollar Bank, 994 F. Supp. 332 (W.D. Pa. 1997) (summary judgment record showed plaintiff who counseled co- worker to report others' sexual activity had not engaged in protected opposition because he lacked a good faith belief that his co-worker had suffered discrimination at the time he counseled her). But whether the encouragement is or is not "opposition" under Title VII depends on the facts of each case. The Commission therefore urges this Court to deny interlocutory review of such a fact-intensive question. 2. Asking this Court to list what evidence does or does not support a retaliation claim does not present a controlling question of law on which there is substantial ground for difference of opinion. The district court's second question asks this Court to advise it, hypothetically, as to "what evidence does or does not support a § 2000e-3(a) claim as a matter of law?" R.20 at 2. Asking this Court to list appropriate evidence is not a controlling question of law on which there is substantial ground for difference of opinion, and answering immediately – before discovery – would not advance the ultimate termination of the litigation. See 28 U.S.C. § 1292(b). The second question in the petition also runs afoul of this Court's emphatic refusal to issue advisory opinions. C & H Nationwide, Inc. v. Norwest Bank Texas NA, 208 F.3d 490, 493 (5th Cir. 2000) ("Federal courts are not in the business of rendering advisory opinions."); see also Ashcroft v. Mattis, 431 U.S. 171, 172 (1977) (requiring existence of a "dispute which ‘calls, not for an advisory opinion upon a hypothetical basis, but for an adjudication upon a present right upon established facts'") (quoting Aetna Life In. Co. v. Haworth, 300 U.S. 227, 242 (1937)). Interlocutory review of the second question therefore should be denied. CONCLUSION The petition for interlocutory review should be denied. Respectfully submitted, RONALD S. COOPER ________________________ General Counsel JENNIFER S. GOLDSTEIN Attorney VINCENT J. BLACKWOOD Acting Associate General Counsel EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, DC 20507 (202) 663-4733 CERTIFICATE OF COMPLIANCE I certify that this brief complies with the type-volume limitation set forth in FRAP 5(c), FRAP 32(a)(5)(A), and 5th Cir. R. 32.1. This brief consists of eleven pages. ____________________________ JENNIFER S. GOLDSTEIN CERTIFICATE OF SERVICE I hereby certify that one copy of this answer in opposition was served by agreement by e-mail on this day to Steven L. Hughes, attorney for Stanley Automotive, at hughes@MGMSG.com. ____________________________ JENNIFER S. GOLDSTEIN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, DC 20507 (202) 663-4733 May 8, 2008 *********************************************************************** <> <1> The district court also held that assisting co-workers in an internal proceeding is not protected under Title VII’s participation clause absent the filing of an EEOC charge. R.16 at 8-10.