No. 07-2575 ______________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT ______________________________ ALSHAFI TATE, Plaintiff-Appellee, v. EXECUTIVE MANAGEMENT SERVICES, INC., Defendant-Appellant. _______________________________________________________ On Appeal from the United States District Court for the Northern District of Indiana Hon. Theresa L. Springmann, U.S.D.J., Presiding _______________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE _______________________________________________________ RONALD S. COOPER General Counsel CAROLYN L. WHEELER Acting Associate General Counsel SUSAN R. OXFORD Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4791 susan.oxford@eeoc.gov TABLE OF CONTENTS Page TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . ii STATEMENT OF AMICUS CURIAE'S INTEREST. . . . . . . . . . . . . . . . . . . . .1 STATEMENT OF THE ISSUES. . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . 2 A. Course of Proceedings. . . . . . . . . . . . . . . . . . . . . . . . 2 B. Statement of the Facts. . . . . . . . . . . . . . . . . . . . . . . . 3 C. District Court's Decision. . . . . . . . . . . . . . . . . . . . . . . . 9 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 I. TATE'S REFUSAL OF HIS SUPERVISOR'S SEXUAL DEMANDS WAS "OPPOSITION" CONDUCT.. . . . . . . . . . . . . . . . . . . . . . . . 12 II. ON THIS RECORD, THE JURY COULD PROPERLY IMPUTE BURBAN'S RETALIATORY ANIMUS TO EMS.. . . . . . . . . . . . . . . . . . . . . 18 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . 29 CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . 30 ATTACHMENT: Roberts v. Cook County, No. 01-C-9373, 2004 WL 1088230 (N.D. Ill. May 12, 2004) TABLE OF AUTHORITIES FEDERAL CASES page Black v. City & County of Honolulu, 112 F. Supp. 2d 1041 (D. Haw. 2000). . . 16 Brewer v. Bd. of Tr. of Univ. of Ill., 479 F.3d 908 (7th Cir.), cert. denied, 128 S. Ct. 357 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . passim Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998). . . . . . . . . . . 22 Burlington N. & Santa Fe Ry. Co. v. White, 126 S. Ct. 2405 (2006). . . . . . 28 Byrd v. Ill. Dep't of Pub. Health, 423 F.3d 696 (7th Cir. 2005). . . 10, 25 Culver v. Gorman & Co., 416 F.3d 540 (7th Cir. 2005). . . . . . . . 18, 23, 26 Dey v. Colt Const. & Dev. Co., 28 F.3d 1446 (7th Cir. 1994). . . . . . . . . 13 Durkin v. City of Chicago, 341 F.3d 606 (7th Cir. 2003). . . . . . . . . 20 EEOC v. BCI Coca-Cola Bottling Co., 450 F.3d 476 (10th Cir. 2006). . . 20, 23 EEOC v. Domino's Pizza, 909 F. Supp. 1529 (M.D. Fla. 1995), aff'd, 113 F.3d 1249 (11th Cir. 1997) (Table). . . . . . . . . . . . . . . . . . . . . 16 EEOC v. HBE Corp., 135 F.3d 543 (8th Cir. 1998). . . . . . . . . . . . 14 EEOC v. Shell Oil Co., 466 U.S. 54 (1984). . . . . . . . . . . . . . . . . . 27 Kolstad v. Am. Dental Ass'n, 527 U.S. 526 (1999). . . . . . . . . . . . . . 22 LeMaire v. La. Dep't of Transp. & Dev., 480 F.3d 383 (5th Cir. 2007). . . 15 Lewis v. City of Chicago, 496 F.3d 645 (7th Cir. 2007). . . . . . . . . 27 Little v. Nat'l Broad. Co., 210 F. Supp. 2d 330 (S.D.N.Y. 2002). . . . . . 16 Lopez v. Aramark Unif. & Career Apparel, Inc., 426 F. Supp. 2d 914 (N.D. Iowa 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Lust v. Sealy, Inc., 383 F.3d 580 (7th Cir. 2004). . . . . . . . . 20, 23, 24 Moyo v. Gomez, 32 F.3d 1382 (9th Cir. 1994). . . . . . . . . . . . . . . 15 Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977). . . 18 Murray v. Chicago Transit Auth., 252 F.3d 880 (7th Cir. 2001). . . . . . 15 Ogden v. Wax Works, Inc., 214 F.3d 999 (8th Cir. 2000). . . . . . . . . 14, 15 Pa. State Police v. Suders, 542 U.S. 129 (2004). . . . . . . . . . . . . . . 21 Quarles v. McDuffie County, 949 F. Supp. 846 (S.D. Ga. 1996). . . . . . . . 15 Roberts v. Cook County, No. 01-C-9373, 2004 WL 1088230 (N.D. Ill. May 12, 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Rogers v. City of Chicago, 320 F.3d 748 (7th Cir. 2003). . . . . . . . . 19 Russell v. McKinney Hosp. Venture, 235 F.3d 218 (5th Cir. 2000). . . . . . 27 Shager v. Upjohn Co., 913 F.2d 398 (7th Cir. 1990). . . . . . . . . 20, 21 Sylvester v. SOS Children's Vills. Ill., Inc., 453 F.3d 900 (7th Cir. 2006) .19 Tate v. EMS, Civ. No. 1:05-cv-47, 2007 WL 1650410 (N.D. Ind. June 4, 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim FEDERAL STATUTES Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. . . . . 1 42 U.S.C. § 2000e(b). . . . . . . . . . . . . . . . . . . . . . . . . . 12, 18 42 U.S.C. § 2000e-3(a). . . . . . . . . . . . . . . . . . . . . . . . 2, 12, 18 FEDERAL COURT RULES Fed. R. Civ. P. 50(a). . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Fed. R. Civ. P. 50(b). . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 9 Fed. R. Civ. P. 59 . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 MISCELLANEOUS Restatement (Second) of Agency § 219(1) (1958). . . . . . . . . . . . . . . 22 Restatement (Second) of Agency § 219(2)(d). . . . . . . . . . . . . . . . . 22 Restatement (Second) of Agency, § 228(1). . . . . . . . . . . . . . . . . . 22 Restatement (Third) of Agency § 2.04 (2006). . . . . . . . . . . . . . . . . 22 2 Restatement (Second) of Torts § 431(a) at 428 (1965). . . . . . . . . . . 23 STATEMENT OF AMICUS CURIAE'S INTEREST The Equal Employment Opportunity Commission (EEOC or Commission) is the agency with primary authority to enforce Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and other federal laws prohibiting workplace discrimination. Title VII requires employers, among other things, to maintain a workplace free from sexual harassment. In this vein, it is unlawful under Title VII for a supervisor to require a subordinate to engage in unwelcome sex as a condition for continued employment. Title VII also makes it unlawful for employers to retaliate against any individual because he or she opposed any employment practice made unlawful under Title VII. This case raises the important question of whether an employee asserting a retaliation claim under Title VII has "opposed" an unlawful employment practice when he says "no" to his supervisor's demand that he continue their prior sexual relationship, where the supervisor threatened that he will otherwise lose his job (and he does). This Court has not yet addressed this question, and other courts are split. This case also raises the question of whether the jury was entitled to hold the defendant liable here because, although the decisionmaker herself harbored no retaliatory animus, the decision was based almost entirely on information provided by a supervisor who acted out of a retaliatory motive. Because the proper resolution of these questions will affect the Commission's enforcement of Title VII, we offer our views to the Court. STATEMENT OF THE ISSUES 1. Whether the district court properly denied the defendant's motion for judgment as a matter of law or a new trial because, for purposes of Title VII's anti- retaliation provision, 42 U.S.C. § 2000e-3(a), an employee has "opposed" an unlawful employment practice under Title VII when he says "no" to a supervisor's demand that the employee engage in unwanted sex or lose his job. 2. Whether the district court properly denied the defendant's motion for judgment as a matter of law or a new trial on the grounds that the jury could have reasonably concluded, first, that the plaintiff's supervisor, motivated by retaliatory animus, fabricated a false report of insubordination and, second, that the supervisor's report was a substantial factor in the plaintiff's discharge. STATEMENT OF THE CASE A. Course of Proceedings Plaintiff Alshafi Tate filed this lawsuit alleging sexual harassment and retaliatory discharge in violation of Title VII. R.1 (Complaint). The case was tried before a jury and, at the close of plaintiff's evidence, EMS moved for a directed verdict under Federal Rule of Civil Procedure 50(a). R.78, 79. The district court denied EMS's motion except with respect to Tate's claim for punitive damages, which the court granted. R.93. The jury found in Tate's favor on his claim of retaliatory discharge and in EMS's favor on Tate's sex harassment claim. R.91. EMS moved for judgment as a matter of law (JMOL) or a new trial under Federal Rules of Civil Procedure 50(b) and 59. R.104, 105. The district court denied the motion, R.114, and EMS appealed. R.118. B. Statement of the Facts Defendant Executive Management Services (EMS) hired Plaintiff Alshafi Tate on August 19, 2002, to clean work areas. EMSAppx. 172. Tate was originally assigned to the City/County Building, and his field supervisor was Dawn Burban, an EMS project manager for commercial cleaning. Id. at 277-78. Burban had authority to assign tasks and, if an employee did not follow her directions, to write the employee up and to send the employee home, directing him to call the office for further action. Id. at 308-09 (Burban testimony), 439 (testimony of former EMS Human Resources (HR) Director Lorinda Lentz). Burban also had authority to recommend promotions and raises for employees she supervised. Id. at 277 (Burban testimony), 439 (Lentz testimony). Lentz could not recall even one time when a field supervisor's recommendation was not followed. Id. at 452-53. Burban picked Tate to be on her team, id. at 399 (testimony of Jammette Shaver), and within five to eight days after starting work for EMS, Tate and Burban began having consensual sex two or three times per week. Id. at 172-73, 184, 224. A week after Tate was hired, EMS promoted Tate to "supervisor" based on Burban's recommendation, and raised his pay accordingly from $7.00 per hour to $8.00 per hour. Id. at 174, 279. In March of 2003, EMS moved Tate to another building for a couple of months, id. at 419, and he and Burban ceased having sex. Id. at 186. When EMS moved Tate back in June 2003, his sexual relations with Burban resumed. Id. at 187. Tate testified that when he married his wife in August 2003, he decided to end his sexual relationship with Burban. Id. at 180, 190. When he informed Burban, however, she issued a series of ultimatums in which she told Tate that she expected him to continue their sexual relationship and, if he did not, it would cost him his job. See, e.g., id. at 190-92 (Tate testified that Burban told him he had to choose between his job and his wife and repeated the ultimatum two or three times over the next two months). Tate testified that at a holiday dinner party with other coworkers held sometime around the Thanksgiving/Christmas holidays, Burban again told him he had to continue having sex with her or he would lose his job. Id. at 192-93. About two weeks later, Burban asked Tate if he had "made a choice yet." Id. at 194. When Tate arrived for the start of his evening shift on January 13, 2004, Burban summoned him into her office. Id. at 194-95. Burban closed her office door and asked Tate if he had made his decision. Id. at 195, 272. Tate testified that when he told her "no," there was a "big scene" in which Burban raised her voice and told Tate that he did not "know who [he was] fucking with." Id. at 196. Tate further testified that he left Burban's office, but she followed him out into the break room or the hallway, "hollering and getting irate" and saying "she's going to have my job" and "going to have my ass fired." Id. at 197. Tate tried to get in touch with Darren Taylor, who was Burban's immediate supervisor and who was off-site at the time. Id. at 197-98, 286. Burban, however, called Taylor herself and did not give Tate a chance to speak to him. Id. at 286-87, 310. Taylor directed Burban to tell Tate to go home. Dan Hudson, a court security officer with the Allen County Sheriff's Department, heard the noise, entered the area and asked Burban what was going on. Id. at 422, 424-25. Hudson stayed until another security guard showed up. Burban asked the guard to escort Tate off the premises, which he did. Id. at 198-99. Tate testified that he left the premises because Burban ordered him to. Prior to his departure, Burban did not direct him to perform any work-related assignment, and Tate did not refuse to perform any work-related assignment. Id. at 230-31, 267-68. After Tate left, however, Burban telephoned Nancy Scheumann, who was the EMS General Manager for the Fort Wayne area at the time, and told her Tate had refused to do his assigned work that evening so she sent him home. Id. at 291-92, 349-51. Burban then prepared an "insubordination" incident report stating that Tate had refused her request to help clean the Merrill Lynch building. Id. at 284-85. In this report, Burban claimed that Tate said cleaning the Merrill Lynch building was "not his job;" that he only had to do certain tasks, which Burban determined would have taken only 5.5 hours to perform; and that Burban told him he was "here for 8 hrs" and needed "to do 8 hrs worth of work." JE-12 (EMSAppx. 688-89). The incident report further stated that Burban told Tate to go home after he continued to refuse the assignment, and that a security guard from the courthouse was present, heard what was going on, and watched Tate leave the building. Id. The next day, Tate telephoned Scheumann to discuss the prior evening's events. Id. at 199, 270. The receptionist who answered the phone, Brenda Smith, directed Tate to contact the company's headquarters in Indianapolis. Id. 199-200, 270 (Tate testimony), 449 (Lentz testimony). Tate did as instructed, intending to explain what had happened. He reached Lorinda Lentz, the HR official in Indianapolis, who told Tate that he was terminated for insubordination and asked him to turn in his pager and uniforms. Id. at 201, 270 (Tate testimony), 445-48 (Lentz testimony). According to Lentz, the conversation lasted less than a minute.<4> Id. at 449. Tate testified that he asked if he could explain his side, but was not given the opportunity. Id. at 200-01, 270. Although Burban signed the Termination Report and Lentz communicated the decision to Tate, id. at 293-95, 445, EMS maintains that the decision to terminate Tate's employment was made by Scheumann. Id. at 299, 453, 498. Scheumann testified that she made the decision by 8:50 a.m. the next morning, after speaking to Burban, Taylor, and Hudson. Id. at 565. Neither Taylor nor Hudson had witnessed the conversation that precipitated the incident, however. See id. at 352 (Scheumann testified that everything Taylor told her was based on what Burban had told him); id. at 426 (Hudson testified that when he arrived on the scene, the argument was already in progress). Hudson, moreover, testified that he did not speak to Scheumann until some time after Tate was discharged (about a month later, he thought). Hudson said that a woman from EMS telephoned him and said he might need to give a prepared statement at some point, but they did not discuss what he had observed. Id. at 428.<5> Significantly, Scheumann, in her testimony, never says what Hudson allegedly told her when they spoke. See, e.g., id. at 355. Scheumann testified that she also reviewed Tate's personnel file and found several earlier disciplinary reports. Id. at 499, 502, 558-63. She did not, however, speak to Tate, as she "didn't think it was necessary" to hear Tate's account of what happened. Id. at 355; see also id. at 354 ("the fact that he refused to do what he was being asked to do by his supervisor" was considered insubordination, "and it wasn't a situation where it deemed [sic] an investigation of that incident"). Typically, EMS seeks input from an employee before making a decision, EMSAppx. 495-96 (Taylor testimony), and the incident report form contains a section for employee comments. Id. at 455-56 (Lentz testimony). In Burban's report, that section of the form was left blank. See JE-12 (EMSAppx. 688). Tate's sexual harassment and retaliation claims were tried before a jury. The jury returned a verdict in Tate's favor on the retaliation claim, and found against Tate on his sexual harassment claim. R.91 (EMSAppx. 26-27). After trial, EMS renewed its motion under Federal Rule of Civil Procedure 50(b) for JMOL or new trial, asserting: (1) Tate did not engage in any protected activity when he told his supervisor he would not be coerced into continuing to have sex with her in order to keep his job, and (2) EMS had no knowledge that Tate's supervisor had a retaliatory motive for her actions, and EMS discharged Tate based on the report of a disinterested witness, a deputy with the County Sheriff's department. R.104. C. District Court's Decision The district court denied EMS's post-trial motion. See Tate v. EMS, Civ. No. 1:05-cv-47, 2007 WL 1650410 (N.D. Ind. June 4, 2007). The court concluded that Tate had engaged in statutorily protected activity, reasoning that under a straightforward reading of Title VII, "rebuffing sexual harassment can in some situations be considered opposition to an unlawful employment practice." Id. at *2 (since threatening an employee with termination if he refuses to continue a sexual relationship is unlawful, refusing to submit in the face of an express threat of termination could reasonably be understood to be opposition both to the continued sexual relationship and to any change in the terms of employment as a result of such refusal) (citation omitted). The district court rejected the notion that this holding would necessarily convert every sexual harassment claim into a claim for retaliation, stating that the two claims are "distinct, even though they may be intertwined." Id. (citation omitted). The court also rejected the idea that finding a retaliation claim on this basis "is duplicative and unnecessary, and runs the risk of confusing a jury," stating these are "not good reasons to ignore the plain text of the statute." Id. (citation omitted). The district court also concluded that the trial record would permit a reasonable jury to hold EMS liable, stating "there was sufficient evidence for the jury to find that Scheumann was Burban's rubber stamp, and that Scheumann failed to conduct any independent investigation." Id. at *4. The district court rejected EMS's argument that the company knew nothing of Burban's conduct toward Tate and, therefore, could not be liable for Burban's retaliatory motives. Id. at *3-4. The court noted that the Seventh Circuit has held that "an employer could be liable for the retaliatory motive of one who provided information that the decision maker relied on to make the adverse employment decision." Id. at *3 (citing Byrd v. Ill. Dep't of Pub. Health, 423 F.3d 696, 711-12 (7th Cir. 2005)). The district court found unpersuasive EMS's argument that in this case the decisionmaker, Scheumann, "contacted a disinterested witness who provided information corroborating the biased subordinate," finding that the trial evidence did not support EMS's claim. Id. The district court rejected EMS's reliance on Brewer v. Bd. of Trs. of Univ. of Ill., 479 F.3d 908 (7th Cir.), cert. denied, 128 S.Ct. 357 (2007), where this Court declined to impute a subordinate's alleged racial bias to the decisionmaker who discharged an African American employee for using an invalid parking tag to park in a restricted lot. This Court concluded that the biased subordinate in Brewer did not have "singular influence" over the decision because the decisionmaker had independently investigated the allegations. Id. at 917-21. The district court noted that here, unlike Brewer, the jury could have found there was no independent investigation.<6> Tate, 2007 WL 1650410, *4. Finding no evidentiary errors or erroneous rulings and no inconsistency between the jury's ruling and the weight of the trial evidence, the district court also denied EMS's motion for a new trial. Id. SUMMARY OF ARGUMENT The district court properly denied EMS's motion for JMOL. The court properly interpreted the language and intent of Title VII's retaliation clause when the court held that a reasonable jury could find Tate "opposed" an unlawful employment practice (i.e., conditioning continued employment on submission to unwanted sex) when he told his supervisor he would no longer sleep with her, especially since she had threatened him with termination unless he acquiesced. The district court also correctly held that under these circumstances, the jury could properly impute Burban's retaliatory animus to EMS. The district court correctly reasoned that it was immaterial whether Scheumann was aware, when she made her decision, of Burban's motivation for accusing Tate of insubordination. On these facts, the jury could reasonably infer: first, that Tate was not insubordinate on January 13, 2004; second, that Burban was motivated by retaliatory animus when she inaccurately portrayed Tate as insubordinate; and, third, that Burban's insubordination report was a substantial or motivating factor behind EMS's decision to discharge Tate. ARGUMENT I. TATE'S REFUSAL OF HIS SUPERVISOR'S SEXUAL DEMANDS WAS "OPPOSITION" CONDUCT. Title VII provides: "It shall be an unlawful employment practice for an employer . . . to discriminate against any individual . . . because he has opposed any practice made an unlawful employment practice by [Title VII]." 42 U.S.C. § 2000e-3(a). The term "employer" includes "any agent of" an employer. 42 U.S.C. § 2000e(b). To withstand summary judgment, a plaintiff claiming retaliation under Title VII must first show: (1) he engaged in statutorily protected activity; (2) the employer (or the employer's agent) thereafter took an adverse employment action; and (3) a causal link exists between the plaintiff's protected activity and the employer's adverse action. See Dey v. Colt Const. & Dev. Co., 28 F.3d 1446, 1457 (7th Cir. 1994). If the plaintiff establishes a prima facie case and the employer offers a legitimate basis for the action, the plaintiff must then present sufficient evidence from which a reasonable jury could find that the employer's proffered reason is a pretext for discrimination. See id. EMS argues that Tate's actions do not satisfy the first prong of a prima facie case of retaliation because when Tate told Burban "no," he was only objecting to the possibility of having sex with Burban in the future and, in any event, refusal of a supervisor's sexual demands can never amount to "opposition" for purposes of a Title VII claim of retaliation. Both contentions are incorrect. First, it is immaterial that, when Tate told Burban on January 13 that he would no longer sleep with her, Burban apparently was not demanding that Tate engage in sex with her at that moment, but was demanding that Tate agree to continue having sex with her in the future. See, e.g., EMS Brf. at 20 ("[T]he parties agree that Ms. Burban was not making a demand for sex at the time Mr. Tate terminated the relationship and that Ms. Burban made no additional demands for sex before Mr. Tate was discharged."). As the district court correctly understood, the predicate for a claim of retaliation under these circumstances did not require Burban to be asking Tate to engage in sex with her at that moment. It is sufficient that Burban, having previously told Tate he had to choose between continuing the relationship (in which case he could keep his job) or discontinuing the relationship (in which case, Burban told him, he would lose his job), was pressing Tate on January 13 for an answer to her ultimatum. After Tate indicated he would not acquiesce in Burban's demands to continue their sexual relationship in exchange for keeping his job, Burban's response to Tate-telling him to get out and that she was going to have him fired-demonstrates that the ultimatum Burban had been delivering for months was not an empty gesture. To establish a valid claim of retaliation under Title VII, there is no need for a contemporaneous request for immediate sexual favors where the dialog on the subject-and the ultimatum Burban presented-are so clear. Second, this type of factual allegation represents "opposition" within the meaning of Title VII's prohibition against retaliation. Indeed, when an employee complains directly to the supervisor who is harassing him or her, the employee is performing "the most basic form of protected activity." See Ogden v. Wax Works, Inc., 214 F.3d 999, 1007 (8th Cir. 2000).<7> As the district court reasoned, such an interpretation is consistent with the plain language of Title VII's retaliation provision, which prohibits an employer from discriminating against any individual because the individual "has opposed any practice" made unlawful by Title VII. See Tate, 2007 WL 1650410, *2. The Fifth and Eighth Circuits are the only courts of appeals that have addressed this question directly.<8> In LeMaire v. La. Dep't of Transp. & Dev., 480 F.3d 383 (5th Cir. 2007), the Fifth Circuit concluded, without any discussion, that a single, express rejection of sexual advances does not constitute "protected activity" for purposes of a retaliation claim. Id. at 389. The Eighth Circuit, in contrast, squarely held that when an employee rejects her supervisor's verbal and physical advances, she engages in statutorily protected opposition to unlawful conduct. Ogden, 214 F.3d at 1007 (quoting Quarles v. McDuffie County, 949 F. Supp. 846, 853 (S.D. Ga. 1996) (when plaintiff told harasser, who served as her supervisor, to stop harassing her, she engaged in "the most basic form of protected conduct")). Although district courts are split on the question, a large number of courts have, like the district court here, held that when an employee refuses an unlawful sexual advance by his or her supervisor, the employee satisfies the "opposition" requirement for a retaliation claim under Title VII, largely for the reasons the district court stated in this case. See, e.g., Lopez v. Aramark Unif. & Career Apparel, Inc., 426 F. Supp. 2d 914, 940 (N.D. Iowa 2006) (denying JMOL; jury could have found plaintiffs engaged in opposition conduct when they told harasser to stop); Roberts v. Cook County, No. 01-C-9373, 2004 WL 1088230, *4-5 (N.D. Ill. May 12, 2004) (same; listing cases) (unpub.) (attached); Little v. Nat'l Broad. Co., 210 F. Supp. 2d 330, 385-86 (S.D.N.Y. 2002); Black v. City & County of Honolulu, 112 F. Supp. 2d 1041, 1049-50 (D. Haw. 2000); EEOC v. Domino's Pizza, 909 F. Supp. 1529 (M.D. Fla. 1995), aff'd, 113 F.3d 1249 (11th Cir. 1997) (Table). Thus, a number of courts have recognized that when a supervisor makes good on a threat to a subordinate who refuses the supervisor's advances, the employee's testimony that he or she opposed the supervisor's sexual demands is enough to satisfy the first prong of the prima facie case for a claim of retaliation under Title VII (the "opposition" requirement), in addition to serving as an element of a claim of quid pro quo harassment. Since it is a supervisor making the sexual advances, the employee who rebuffed the advances need not have complained to any additional managers to claim retaliation if an adverse action follows. In the alternative, even if an aggrieved employee might ordinarily be required to complain to someone other than the harasser to establish that he or she "opposed" unlawful conduct, Tate's actions here more than satisfied any such additional requirement. Tate made three separate attempts to speak to someone higher up in the company about Burban's response to his refusal to continue sleeping with her. EMSAppx. 275; see discussion at 5-7, supra. While the incident was going on, he attempted to speak to Taylor, Burban's immediate supervisor, by telephone. He was prevented from doing so by Burban, who took the telephone and called Taylor herself before Tate could reach him, and then insisted Tate leave the premises. According to Hudson, it was approximately 5:00 p.m. when Burban ordered Tate to leave the premises, so it was unlikely Tate could have reached anyone in HR by the time he arrived home that evening. The next morning, Tate called the local EMS office and asked to speak to Scheumann, the director for the Fort Worth area, intending to report what had happened. The receptionist directed him to call EMS headquarters in Indianapolis instead. When he did, Lentz informed him he was terminated. EMS's own records show this conversation occurred at 10:45 a.m. the morning after the incident. Thus, Tate tried several times to alert EMS managers that Burban was threatening to have him fired after he told her "no" in response to her unlawful demand that he continue to have sex with her in order to keep his job. Before he could reach anyone who would listen, however, the decision to discharge him had already been made. None of the EMS officials involved in Tate's termination asked him what happened before telling him he was fired. Even if this Court were to conclude that employees in this type of situation must report a supervisor's harassment-based ultimatum to someone else in management, Tate's repeated efforts to do so here satisfy any such requirement. II. ON THIS RECORD, THE JURY COULD PROPERLY IMPUTE BURBAN'S RETALIATORY ANIMUS TO EMS. As noted above, Title VII makes it unlawful for an employer (or its agents) to discriminate against an employee "because [the employee] has opposed any practice" made unlawful under Title VII. 42 U.S.C. §§ 2000e-3(a), 2000e(b). To establish retaliation, therefore, an employee must demonstrate that the prohibited discrimination occurred "because" the employee engaged in protected opposition conduct. A plaintiff can establish this "causal link . . . by showing that the protected conduct was a substantial or motivating factor in the employer's decision." Culver v. Gorman & Co., 416 F.3d 540, 545 (7th Cir. 2005) (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)). Thus, a plaintiff need not demonstrate that "retaliation" was the only reason for the employer's actions. See id. at 550 (factfinder "need not find . . . that retaliation was the sole or but-for cause of the firing, only that it was a motivating factor"). A plaintiff may rely on either "direct evidence" or "a convincing mosaic of circumstantial evidence" to demonstrate this causal connection. See Sylvester v. SOS Children's Vills. Ill., Inc., 453 F.3d 900, 903 (7th Cir. 2006). If Burban herself had made the decision to discharge Tate, there could be little doubt that Tate's evidence would establish a retaliatory motive under the "direct" method of proof. Crediting Tate's testimony (as the jury apparently did and as the district court was required to do in considering EMS's motion for JMOL), Burban had been threatening Tate that if he did not continue their sexual relation, she would see that he was fired. When Burban asked Tate, at the start of his shift on the evening of January 13, if he had made up his mind, and when Burban became aware that he was not going to continue having sex with her, Burban became irate, informed Tate that she was "going to have [Tate's] job" and "have [him] fired," and directed him to leave. EMSAppx. 197. The next morning, Tate was fired for "insubordination" for allegedly refusing an assignment the evening before, an assignment that he testified Burban had never given him. If Burban had been the decisionmaker, it would be difficult to imagine a more straightforward example of "direct" evidence linking a retaliatory motive to an adverse employment action. Cf. Rogers v. City of Chicago, 320 F.3d 748, 753 (7th Cir. 2003) (direct evidence exists when decision-maker admits his or her actions were based on the prohibited animus). According to EMS, however, Scheumann made the decision to fire Tate. To show that a particular adverse action was taken "because" an employee engaged in protected activity-a necessary predicate for employer liability for retaliation under Title VII-there must be evidence that would permit a jury to infer that the resulting harm is linked to the unlawful motivation. Ordinarily, a plaintiff claiming retaliation offers evidence that the decisionmaker knew of the plaintiff's protected conduct when making the adverse decision. See Durkin v. City of Chicago, 341 F.3d 606, 614-15 & n.4 (7th Cir. 2003). Such evidence is absent here. This Court and other courts of appeals have found employers liable where, although there is no evidence the decisionmaker acted based on any unlawful motive, a biased subordinate's involvement in the decisional process brought about the adverse employment action. See, e.g., Lust v. Sealy, Inc., 383 F.3d 580, 583- 85 (7th Cir. 2004) (citing cases); Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir. 1990); see also EEOC v. BCI Coca-Cola Bottling Co., 450 F.3d 476 (10th Cir. 2006) (biased manager caused employee's termination by intentionally manipulating information provided to decisionmaker to place employee in the worst possible light). If, on the other hand, a decisionmaker acts for reasons "untainted" by a subordinate's bias, an employer will not be liable for discrimination. See Shager, 913 F.2d at 405; see also Brewer, 479 F.3d at 918 (where employer conducts independent investigation "into facts relevant to the decision," employer not liable for a biased subordinate's submission of misinformation to decisionmaker). In Brewer, this Court discussed the causation standard drawn from the agency principles that inform Title VII liability analysis. See Brewer, 479 F.3d at 918-20; see also Pa. State Police v. Suders, 542 U.S. 129, 144 (2004) (Congress's inclusion of "agents" within statutory definition of employer is "a direction to 'interpret Title VII based on agency principles.'"). This Court's discussion demonstrates that the district court in this case properly denied EMS's motion for JMOL. The Brewer Court noted that a biased subordinate's actions may be imputed to the employer where the subordinate uses her "singular influence" over the decisionmaker by, for example, supplying misinformation to the decisionmaker. Id. at 917. This Court further explained that a decisionmaker breaks the causal connection between the subordinate's bias and the resulting decision by conducting "its own investigation into the facts relevant to the decision." Id. at 918. The district court's decision here comports with the teaching of Brewer. Under the basic agency principles this Court endorsed in Brewer, employers are vicariously liable for the discriminatory acts of their agents performed within the scope of the agents' authority or employment. Restatement (Third) of Agency § 2.04 (2006); Restatement (Second) of Agency § 219(1) (1958). Even intentional torts fall within the "scope of an agent's employment" if the conduct is "'the kind [the employee] is employed to perform,' 'occurs substantially within the authorized time and space limits,' and 'is actuated, at least in part, by a purpose to serve the' employer." Kolstad v. Am. Dental Assoc., 527 U.S. 526, 543-44 (1999) (citing Restatement (Second) of Agency, § 228(1), at 504). Furthermore, employers may be vicariously liable for intentional torts that fall outside the scope of employment if the employee "was aided in accomplishing the tort by the existence of the agency relation." Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 758 (1998) (quoting Restatement (Second) of Agency, § 219(2)(d)). Burban was exercising her delegated authority as a field supervisor when she called her superiors to report that one of her workers was refusing a work assignment and then sent him home with directions to call the office in the morning. See discussion at 3, supra. An employer is liable, however, only if the agent's discriminatorily-motivated conduct actually caused the harm that is alleged. See Ellerth, 524 U.S. at 764 (employer is vicariously liable only "for harm caused by misuse of supervisory authority"). Under the common law of torts, a plaintiff can establish causation by demonstrating that the actor's conduct "is a substantial factor in bringing about the harm." 2 Restatement (Second) of Torts § 431(a) at 428 (1965). Consequently, "causation" is established in this context when a supervisor's discriminatorily-motivated use (or misuse) of delegated authority was a substantial factor in bringing about a tangible employment decision by another actor (the decisionmaker). See Culver, 416 F.3d at 545 ("causal link" in retaliation claim established by showing "protected conduct was a substantial . . . factor" in employer's decision) (emphasis added); cf. BCI, 450 F.3d at 487-88 (plaintiff must demonstrate that "biased subordinate's discriminatory reports, recommendations, or other actions caused the adverse employment action") (citing Lust, 383 F.3d at 584) (emphasis added). Applying this causation standard here, it is plain that Burban's report of insubordination was a substantial factor in bringing about Tate's discharge. Burban's written and oral reports on January 13, 2004, were the sole reason Scheumann began considering disciplinary action. Although Scheumann said that she took into account prior disciplinary write-ups found in Tate's personnel file, she testified that "insubordination on January 13" was the reason Tate was discharged. EMSAppx. 572. Despite Burban's singular influence in orchestrating Tate's discharge, EMS argues that the Brewer rule-that an independent investigation shields an employer from liability-compels reversal. EMS argues on appeal that the issue is whether Scheumann, "independent from any taint or bias from Ms. Burban, honestly believed that Mr. Tate had been insubordinate," and asserts that "there is no other conclusion a reasonable jury could reach." See EMS Brief at 30. EMS is wrong. EMS claims that Scheumann independently verified Burban's report before discharging Tate for insubordination, relying on Scheumann's testimony that before making her decision, she spoke to Hudson, who was present for part of the incident.<9> EMSApps. 565. Hudson, however, testified that he did not speak to Scheumann until weeks after the incident and, even then, did not discuss what he had observed.<10> Id. at 428. Given this contradictory evidence, the questions of whether Scheumann conducted an "independent investigation" and whether any such investigation confirmed Burban's report that Tate was insubordinate (or merely confirmed that Tate and Burban were arguing over something) are factual issues that fell within the jury's proper province. See Lust, 383 F.3d at 582-83 (jury free to disbelieve defendant's evidence). The jury's verdict demonstrates that the jury rejected EMS's contention on this point. Since the trial record contains sufficient evidence to support the jury's finding, the district court properly denied EMS's motion for JMOL or a new trial. See Byrd, 423 F.3d at 709-14. In denying EMS's motion, the district court correctly held that the jury could impute Burban's bias to EMS. Tate, 2007 WL 1650410, *3 (citing Byrd, 423 F.3d 696). The district court also properly distinguished Brewer, 479 F.3d 908. See 2007 WL 1650410, *3-4. As the district court recognized, Scheumann's efforts simply do not meet the Brewer criteria for insulating an employer from liability. The record contains no evidence that Scheumann had any source of information, other than Burban and the contradicted testimony concerning Hudson, to support Burban's report that Tate refused to clean a building that day. Scheumann said she asked Burban's supervisor, Taylor, what he knew about the incident. Taylor, however, was not present, so he could only relate what Burban told him over the telephone, information that in no way serves as an "independent" check on whether Burban lied in her incident report when she said Tate refused her order to clean another building. Scheumann also testified that she checked Tate's personnel file, which showed he had been written up for some earlier infractions. Again, however, that could not help determine what happened on January 13. Thus, neither of these sources could have shed any light on whether Burban truthfully reported that Tate had been insubordinate. Consequently, although one could argue that Scheumann did not artificially limit herself to "a single source of information," Brewer, 479 F.3d at 918, the other sources of information that she consulted did not independently verify Burban's claim that Tate refused her directive to clean the Merrill Lynch building. Critically, Scheumann failed to ask Tate for his version of events. An "investigation" that does not "independently consider[] both stories" is no investigation at all. See id. EMS's reliance on Brewer's "independent investigation" language misses the mark. The proper question is not simply whether an employer engaged in some type of formulaic response to a supervisor's report of misconduct. Where a supervisor's actions were motivated by retaliatory animus, the proper question is whether an actual investigation disrupted the causal connection between the improperly biased report of misconduct and the resulting decision such that, in the end, the supervisor's actions were not "a substantial or motivating factor in the employer's decision." See Culver, 416 F.3d at 545. In Brewer, the plaintiff alleged he was discharged because of his supervisor's racial bias, and pointed to the supervisor's failure to provide information that would have exonerated him from charges of wrongdoing in relation to his alteration of a parking tag. 479 F.3d at 909. Certainly, Brewer's allegedly biased supervisor might have been able to assist him, had she disclosed her own role in misleading Brewer into thinking he had parking authorization. But given the substantial involvement of the parking authority as well as the decisionmaker's independent verification, the supervisor's silence in Brewer did not "cause" Brewer's discharge the same way that Burban's report of insubordination prompted EMS to discharge Tate. Scheumann's minimal inquiries before she made her decision did not disrupt this causal connection. The "dominant purpose" of Title VII "is to root out discrimination in employment." EEOC v. Shell Oil Co., 466 U.S. 54, 77 (1984). This purpose will be thwarted, however, if companies can avoid liability simply by establishing layers of decisionmaking in which the final decisionmaker will inevitably remain unaware of any discriminatory motives that the supervisor who was the original source of the information may harbor. See Russell v. McKinney Hosp. Venture, 235 F.3d 218, 227 n.13 (5th Cir. 2000). This Court recently stated that even where there is a need for "a limiting principle" within Title VII, it is critical that the Court, in responding to that need, does not "inadvertently create a loophole for discriminatory actions by employers." See Lewis v. City of Chicago, 496 F.3d 645, 654 (7th Cir. 2007) ("Adverse employment actions should not be defined so narrowly as to give an employer a 'license to discriminate.'") (citation omitted). To avoid an "independent investigation" loophole in the context of imputing subordinate bias, this Court's limiting rule in Brewer must be understood to require genuine investigations before decisionmakers are deemed to be insulated from liability for the bias of subordinates. This principle is particularly important in the context of retaliation claims, since "Title VII depends for its enforcement upon the cooperation of employees who are willing to" oppose unlawful employment practices in the workplace. See Burlington N. & Santa Fe Ry. Co. v. White, 126 S.Ct. 2405, 2414 (2006). CONCLUSION For the foregoing reasons, the EEOC urges this Court to affirm the decision of the district court denying EMS's motion for JMOL or a new trial. Respectfully submitted, RONALD S. COOPER General Counsel CAROLYN L. WHEELER Acting Associate General Counsel ______________________________ SUSAN R. OXFORD Attorney, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 Tel (202) 663-4791; Fax (202) 663-7090 susan.oxford@eeoc.gov CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 6,788 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in Times New Roman 14 point. Susan R. Oxford Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4791 susan.oxford@eeoc.gov Dated: February 8, 2008 CERTIFICATE OF SERVICE I, Susan R. Oxford, hereby certify that I filed one original and fifteen copies of the foregoing Amicus Curiae Brief and one copy of the digital (pdf) version of the brief on diskette with this Court this 8th day of February, 2008, by Federal Express, next-business-day delivery, postage pre-paid. I also certify that I served two copies of the foregoing Amicus Curiae Brief and one copy of the digital (pdf) version of the brief on diskette this same day, by the same means, on the following counsel of record: Counsel for Plaintiff/Appellant: Christopher C. Myers, Esq. CHRISTOPHER C. MYERS & Assoc 809 South Calhoun Street, Ste. 400 Fort Wayne, IN 46802-2307 (260) 424-0600 Counsel for Defendant/Appellee: Andrew M. McNeil, Esq. BOSE McKINNEY & EVANS LLP 2700 First Indiana Plaza 135 North Pennsylvania Street Indianapolis, IN 46204 (317) 684-5000 Susan R. Oxford Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4791 susan.oxford@eeoc.gov A T T A C H M E N T *********************************************************************** <> <1> The Commission takes no position on any other issue in this case. <2> "R.#" refers to the district court's docket number, "EMSAppx." refers to the appendix that EMS filed in this Court, and "JE" refers to the parties' joint exhibits. <3> Hudson testified that around 4:45 p.m. on January 13, he was walking from the courthouse to the basement of the City/County Building when he came upon an argument in progress between Burban and Tate. EMSAppx. 424-25. When Hudson arrived, he heard Burban telling Tate, "If you can't do what I tell you to do, just leave." Burban then told Hudson she had asked Tate to leave and he would not go. Hudson said it was his impression Burban was telling Tate to work in a different location that day, but he admitted he was not there from the beginning and did not see what started the argument. Id. at 425-26. Hudson left when another security guard showed up. Id. at 426, 429. <4> The Termination Report dated January 14, 2004, and signed by Dawn Burban indicates "insubordination" as the reason and states: "Spoke with Mr. Tate 1-14- 04 @ 10:45 a.m. Explained termination." JE-13 (EMSAppx. 690). Lentz testified that she was the person who informed Tate he was terminated and then wrote that notation on the Termination Report. EMSAppx. 359, 445. <5> Specifically, Hudson remembered speaking with an EMS employee, a woman, "[s]ometime after the incident happened, maybe a month later or perhaps even sometime shorter than a month." Id. at 428-30 ("possible" that he could have spoken to someone from EMS the next day, but did not remember doing so). Hudson also remembered speaking to Burban about two or three weeks after the incident, when Burban called to tell him someone might contact him for a statement concerning what he saw. Id. at 427-28. Hudson said that about a month after the incident, he prepared a written, undated statement and gave it to Burban. Id. at 429-30. Sometime later, Hudson spoke to Burban again when she called to remind him that he might receive a telephone call about testifying. Id. at 428. <6> The court noted that EMS's claim that the decisionmaker independently verified Burban's report was based on Scheumann's testimony that she contacted Hudson the next day, but that testimony was contradicted by Hudson himself, and the jury was not required to believe Scheumann. Tate, 2007 WL 1650410, *4. <7> Similarly, "opposition" under Title VII's retaliation provision can include an employee's refusal to implement a discriminatory policy. See E.E.O.C. v. HBE Corp., 135 F.3d 543, 554 (8th Cir. 1998) (manager's refusal to terminate an employee based on the reasonable belief that the termination was racially motivated was protected "opposition" conduct); see also Moyo v. Gomez, 32 F.3d 1382, 1385 (9th Cir. 1994) (prison guard's refusal to enforce a policy denying showers only to black inmates was protected conduct). <8> Other circuits, including this Court, have expressly declined to reach the issue. See, e.g., Murray v. Chicago Transit Auth., 252 F.3d 880, 890 (7th Cir. 2001). <9> The timeframe in which Scheumann could have spoken to Hudson before making her decision was very short, as Scheumann testified that she made her decision by 8:50 a.m. the following morning. EMSAppx. 565. <10> Hudson testified that he spoke to Scheumann for the first time about a month after the incident. Hudson further testified that when he spoke to Scheumann, they did not discuss the substance of what he had observed. Sometime after that, he provided an undated written statement to Burban. EMSAppx. 428-30.