IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________________________________

Nos. 00-6780 & 01-5024
_________________________________________

SHEILA WHITE,

 Plaintiff-Appellee/Cross-Appellant,
      
v.

BURLINGTON NORTHERN & SANTA FE RAILWAY CO.,
 Defendant-Appellant/Cross-Appellee.

______________________________________________

On Appeal from the United States District Court
for the Western District of Tennessee
______________________________________________

Brief of the Equal Employment Opportunity Commission
as Amicus Curiae In Support of Plaintiff/Appellee's
Suggestion for Rehearing En Banc
______________________________________________

NICHOLAS M. INZEO
Acting Deputy General Counsel

PHILIP B. SKLOVER
Associate General Counsel
       EQUAL EMPLOYMENT 
CAROLYN L. WHEELER     OPPORTUNITY COMMISSION
Assistant General Counsel   Office of General Counsel
       1801 L Street, N.W.
JENNIFER S. GOLDSTEIN   Washington, DC  20507
Attorney      (202) 663-4733

TABLE OF CONTENTS
TABLE OF AUTHORITIES
.....................................................................................
ii
REQUIRED STATEMENT
.......................................................................................
iv
STATEMENT OF INTEREST
..................................................................................
1
ARGUMENT
I.  Rehearing En Banc Is Necessary to Resolve the Tension Between the
Panel Decision, Which Narrows the Category of Retaliatory Acts Prohibited
under Title VII, and Decisions Holding That the Plain Language of Title
VII's Anti-retaliation Provision Prohibits an Employer from Taking
Any Kind of Adverse Action Against an Individual Because of His or Her
Protected Activity ........................... 2

II.  Rehearing En Banc Is Necessary Because the
Panel's Holding That a Reinstatement Negates the Adverse
Nature of a Suspension Conflicts with Supreme Court Precedent
......................................................................................
12

CONCLUSION
..........................................................................................................
15

CERTIFICATE OF SERVICETABLE OF AUTHORITIES

CASES
Burlington Indus. v. Ellerth, 524 U.S. 742 (1998)
.............................................. 10, 11
Delaware State Coll. v. Ricks, 449 U.S. 250 (1980)
............................................13, 14
Dobbs-Weinstein v. Vanderbilt Univ., 185 F.3d 542 (6th Cir. 1999)
.................. 12, 14
EEOC v. L.B. Foster Co., 123 F.3d 746 (3d Cir. 1997)
.......................................... 10
EEOC v. Ohio Edison Co., 7 F.3d 541 (6th Cir. 1993)
...................................... 1, 7, 8
Faragher v. City of Boca Raton, 524 U.S. 775 (1998)
.............................................. 11
Fierros v. Texas Dep't of Health, 274 F.3d 187 (5th Cir. 2001)
.............................. 12
Ford v. General Motors Corp., 305 F.3d 545 (6th Cir. 2002)
.................................... 5
Hashimoto v. Dalton, 118 F.3d 671 (9th Cir. 1997)
................................................ 10
Hollins v. Atlantic Co., 188 F.3d 652 (6th Cir. 1999)
................................................ 5
Int'l Union of Elec. Workers v. Robbins & Myers, Inc., 429 U.S. 229
(1976) ........ 13
Jacklyn v. Schering Plough Healthcare Prods. Sales Corp., 
   176 F.3d 921 (6th Cir. 1999)
   ...................................................................................
   5
Kessler v. Bd. of Regents, 738 F.3d 751 (6th Cir. 1984)
........................................... 14
Knox v. State of Indiana, 93 F.3d 1327 (7th Cir. 1996)
............................................ 4
Mattei v. Mattei, 126 F.3d 794 (6th Cir. 1997)
.................................................. 5, 6, 8
Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288 (1960)
.............................. 7
National Passenger R.R. Corp. v. Morgan, 122 S.Ct. 2061 (2002)
.................... 13, 14
Passer v. Am. Chem. Soc'y, 935 F.2d 322 (D.C. Cir. 1991)
.................................... 6
Policastro v. Northwest Airlines, Inc., 297 F.3d 535 (6th Cir. 2002)
....................... 11
Primes v. Reno,  190 F.3d 765 (6th Cir. 1999)
......................................................... 9
Ray v. Henderson, 217 F.3d 1234 (9th Cir. 2000)
............................................. 4, 9, 10
Robinson v. Shell Oil Co., 519 U.S. 337 (1997)
............................................... 3, 7, 8
Smith v. Sec'y of Navy, 659 F.2d 1113 (D.C. Cir. 1981)
................................... 4, 10
United Steelworkers of Am. v. Weber, 443 U.S. 193 (1979)
................................... 5
Von Gunten v. Maryland, 243 F.3d 858 (4th Cir. 2001)
......................................... 12
Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453 (11th Cir. 1998)
....................... 4


STATUTES and LEGISLATIVE HISTORY
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et
seq. ....................... 1
 42 U.S.C. § 2000e-2(a)(1)
 ..............................................................................
 10
 42 U.S.C. § 2000e-3(a)
 ............................................................................
 4, 9, 10

110 Cong. Rec. 7213 (1964)
......................................................................................
5


EEOC GUIDANCE
EEOC Compliance Manual § 8, “Retaliation,” 8-14
............................................... 9
REQUIRED STATEMENT
1.  The panel majority's interpretation of Title VII as precluding a
statutory challenge to an employer's decision to retaliate against an
individual first by transferring her to a physically arduous, less
desirable job and then by suspending her is inconsistent with the
following Supreme Court and Sixth Circuit decisions:   
 Robinson v. Shell Oil Co., 519 U.S. 337 (1997)
Burlington Indus. v. Ellerth, 524 U.S. 742 (1998)
 Mattei v. Mattei, 126 F.3d 794 (6th Cir. 1997)
EEOC v. Ohio Edison Co., 7 F.3d 541 (6th Cir. 1993)
The panel majority's holding also presents a question of exceptional
importance:   Whether Title VII's protection from retaliation is limited
only to “ultimate employment actions.”
2.  The panel majority's holding that Title VII's anti-retaliation
provision did not permit the plaintiff to challenge a 37-day suspension
without pay or benefits on the ground that her reinstatement, following
a grievance process, “negat[es]” or “vitiates” the adverse nature of the
suspension is inconsistent with the following Supreme Court decisions: 
National Passenger R.R. Corp. v. Morgan, 122 S.Ct. 2061 (2002)
 Delaware State Coll. v. Ricks, 449 U.S. 250 (1980)
Int'l Union of Elec. Workers v. Robbins & Myers, Inc., 429 U.S. 229
(1976)

STATEMENT OF INTEREST
 The Equal Employment Opportunity Commission is the agency charged by
 Congress with the interpretation, administration, and enforcement of
 Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
 Title VII contains an anti-retaliation provision, which Congress enacted
 “to ensure that no person would be deterred from exercising his rights
 under Title VII by the threat of discriminatory retaliation.”  EEOC
 v. Ohio Edison Co., 7 F.3d 541, 543 (6th Cir. 1993).
 The panel decision in this case interprets Title VII as excluding
 a class of retaliatory acts from coverage of the anti-retaliation
 provision – namely, acts that fall short of “ultimate” or “materially
 adverse” employment decisions.  Thus the panel held that a transfer
 to a more physically demanding job and a subsequent suspension – both
 found to be motivated by the employer's desire to retaliate against
 the plaintiff – could not be challenged under the anti-retaliation
 provision. In the Commission's view, so limiting the breadth of the
 provision is inconsistent with the language of that provision, with
 controlling case law, and with the overriding purpose of the provision's
 prohibition on retaliation.  We therefore offer our views to the Court.
ARGUMENT

I.  REHEARING EN BANC IS NECESSARY TO RESOLVE THE TENSION BETWEEN THE
PANEL DECISION, WHICH NARROWS THE CATEGORY OF RETALIATORY ACTS PROHIBITED
UNDER TITLE VII, AND DECISIONS HOLDING THAT THE PLAIN LANGUAGE OF TITLE
VII'S ANTI-RETALIATION PROVISION PROHIBITS AN EMPLOYER FROM TAKING
ANY KIND OF ADVERSE ACTION AGAINST AN INDIVIDUAL BECAUSE OF HIS OR HER
PROTECTED ACTIVITY.
 The panel majority held that the retaliatory actions Burlington Northern
 took against Sheila White after she complained of sexual harassment were
 insufficient to constitute a violation of Title VII.  In particular,
 the panel majority held that White had not shown she was subjected to
 what it stated was the requisite “materially adverse” employment action.
 Op. at 11-14 (attached as Exhibit 1 to plaintiff's petition).  The panel
 majority acknowledged that Burlington Northern transferred White to a
 job that involves “heavy lifting and more physically demanding tasks.”
 Op. at 14.  It also acknowledged that White's prior job – the forklift
 operator position – was generally considered a much more desirable
 job than the track laborer position to which she was transferred.
 See op. at 6 (noting Burlington Northern's argument that assigning
 White the forklift position amounted to “preferential treatment” in
 the eyes of male employees); see also op. at 24 (track labor position
 required more physical exertion, was much dirtier than the forklift job,
 and often demanded prolonged sun exposure) (Clay, J., dissenting).
 Nonetheless, the adverse aspects of the new position did not make
 the transfer “a demotion,” the majority stated, and so was not a
 “cognizable adverse employment action.”  Op. at 14.  The subsequent
 37-day suspension of White likewise could not be challenged under Title
 VII's anti-retaliation provision because, according to the majority,
 that provision only protects individuals from retaliation in an “ultimate
 employment decision.”  Op. at 15-20.
 The majority's holding that Title VII does not prohibit employers from
 retaliating against individuals as long as the form of retaliation
 falls short of “materially adverse” or “ultimate” employment actions
 conflicts with both the Supreme Court's and this Court's interpretation
 of the anti-retaliation provision.  The Supreme Court, confronted
 with the question of whether former employees were protected from
 retaliation under Title VII,  reaffirmed that courts cannot decide
 the breadth of protection without first looking to the language of
 the statute.  See Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997)
 (“Our first step in interpreting a statute is to determine whether the
 language at issue has a plain and unambiguous meaning.”).  The majority
 opinion in this case does not examine the statutory language, nor does
 it otherwise explain how to reconcile its holding with that language,
 for nothing in the plain language of Title VII  limits the protection
 from retaliation to a narrow category of employer acts.  
 There is no language in the anti-retaliation provision of Title VII
 limiting its protection only to retaliation in the form of an “ultimate”
 or “materially adverse” employment action.  Instead, the statute states
 simply that it is unlawful “for an employer to discriminate against
 any of his employees or applicants for employment . . . because he
 has opposed . . . an unlawful employment practice . . . or because
 he has made a charge . . .” under Title VII.  42 U.S.C. § 2000e-3(a).
 The most natural reading of this language is that it prohibits any form
 of discrimination against an individual for opposing discrimination
 or filing a charge, whether that discrimination takes the form of,
 for example, termination, suspension, lateral transfer, harassment,
 or discipline.  As the District of Columbia Circuit has observed,
 the language of 42 U.S.C. § 2000e-3(a) “speaks unconditionally” and is
 not “limit[ed] to acts causing particular harms such as the loss of a
 particular job or promotion.”  Smith v. Sec'y of Navy, 659 F.2d 1113,
 1119 n.56 (D.C. Cir. 1981); see also Ray v. Henderson, 217 F.3d 1234,1243
 (9th Cir. 2000) (language of Title VII's anti-retaliation provision
 “does not limit what type of discrimination is covered, nor does it
 prescribe a minimum level of severity for actionable discrimination”);
 Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1456 (11th Cir. 1998)
 (“Read in the light of ordinary understanding, the term ‘discriminate'
 [in Title VII's anti-retaliation provision] is not limited to “ultimate
 employment decisions.”); Knox v. State of Indiana, 93 F.3d 1327, 1334
 (7th Cir. 1996) (“[t]here is nothing in the law of retaliation that
 restricts the type of retaliatory act that might be visited upon an
 employee . . .”).<1>
 The panel majority in this case discusses factual aspects of the transfer
 and suspension decisions, but it ignores the Robinson Court's directive
 to begin with the statutory language.  Indeed, the panel's analysis is
 completely divorced from any assessment of what Congress meant when
 it used the term “discriminate” in the anti-retaliation provision.
 While this Court has discussed the meaning of the term “discriminate”
 in the context of an anti-retaliation provision – in Mattei v. Mattei,
 126 F.3d 794 (6th Cir. 1997) – the panel majority ignored this
 precedent as well.  Though the provision at issue in Mattei was part
 of ERISA, and not Title VII,<2> this Court noted the similarity of the
 provisions, and accordingly relied heavily on the construction of the
 term “discriminate” in the anti-retaliation provisions of Title VII
 and the Age Discrimination in Employment Act (ADEA).  See Mattei, 126
 F.3d at 805.  Indeed, this Court specifically stated its decision was
 grounded in “established interpretations of related laws,” id. at 806,
 namely the “consistent[] interpret[ations] of Title VII and the ADEA as
 “‘forbid[ding] an employer to take any kind of adverse action against an
 individual because he has engaged in protected activity.'”  Id. at 805
 (citation omitted).  Any kind of adverse action would seem to encompass
 a retaliatory lateral transfer, just as it would encompass employer
 actions that presumably would not be deemed “ultimate” or “materially
 adverse.”  See, e.g., Passer v. Am. Chem. Soc'y, 935 F.2d 322, 331-32
 (D.C. Cir. 1991) (employer's cancellation of special symposium in
 employee's honor could constitute actionable  “discrimination” under
 ADEA's anti-retaliation clause) (cited in Mattei, 126 F.3d at 805-06)
 (internal citation omitted). Under Mattei, then, a retaliatory transfer
 to a physically arduous, less desirable job should be prohibited under
 the plain language of the statute.  Under the panel majority's decision,
 it is not.  This Court should grant rehearing en banc to reconcile the
 tension between its two decisions.
 The panel majority's opinion not only omits any analysis of the relevant
 statutory language, but it also does not explain how its decision can be
 reconciled with the purpose of the anti-retaliation provision – namely,
 to “[m]aintain[] unfettered access to statutory remedial mechanisms.”
 Robinson, 519 U.S. at 346; cf. Mitchell v. Robert DeMario Jewelry,
 Inc., 361 U.S. 288, 292 (1960) (“effective enforcement” of Fair Labor
 Standards Act possible only “if employees felt free to approach officials
 with their grievances”) (cited in Robinson); EEOC v. Ohio Edison Co., 7
 F.3d 541, 543 (6th Cir. 1993) (in enacting anti-retaliation provision,
 “‘Congress unmistakably intended to ensure that no person would be
 deterred from exercising his rights under Title VII by the threat of
 discriminatory retaliation'”) (citation omitted).
 The panel does not discuss its ruling in light of the purpose of the
 anti-retaliation provision, and it is difficult to see how the panel's
 decision can be reconciled with that purpose, for its ruling permits
 an employer “to retaliate with impunity”in “an entire class of acts.”
 Robinson, 519 U.S. at 346.  Indeed, under the panel's interpretation of
 Title VII, an employer could openly use the threat of a retaliatory
 transfer or temporary suspension, for example, to discourage its
 employees from filing a charge or opposing discriminatory conduct.
 Interpreting Title VII's anti-retaliation provision so as to permit forms
 of retaliation that could effectively deter individuals from engaging
 in what should be protected activity thus places the panel's decision
 at odds with the Supreme Court's Robinson decision.  It also places the
 panel's decision at odds with this Court's decision in Ohio Edison, 7
 F.3d at 544 (courts must construe Title VII's anti-retaliation provision
 “broadly in order not to frustrate the purpose of the[] Act[]”), and with
 this Court's Mattei decision, where the Court observed that to narrow
 the scope anti-retaliation provision in a way that “‘finds no support in
 its plain language . . . would be to make its protection unavailable,
 as a practical matter, to a large number of the [individuals] it was
 designed to protect.'” Mattei, 126 F.3d at 803 (citation omitted);
 see also id. (“‘Absent more compelling evidence that Congress did
 in fact intend such an incongruous result, we decline to read into
 the statute a limitation that does not appear on its face and would
 obviously undermine its purpose.'”) (citation omitted). 
 The panel's decision –  limiting the types of actions that may be
 challenged under the anti-retaliation provision to “ultimate” and
 “materially adverse” actions –  also cannot be squared with the
 precise holding of the Robinson Court.  In Robinson, the plaintiff
 sued his former employer, alleging that it had retaliated against him
 by giving a negative employment reference to a potential employer.
 There was no allegation that the former employer itself had made an
 ultimate employment decision.  The Supreme Court nevertheless allowed
 the plaintiff's claim to proceed after holding that former employees may
 challenge retaliatory actions.  Robinson, 519 U.S. at 346.  To hold,
 as the panel majority did, that only ultimate and materially adverse
 actions can be challenged under Title VII thus is plainly incompatible
 with the holding in Robinson.
 Notwithstanding the broad language of the anti-retaliation provision,
 the Commission does not mean to suggest that every action taken by an
 employer could form the basis of a retaliation claim.  See, e.g., Primes
 v. Reno,  190 F.3d 765, 767 (6th Cir. 1999) (declining to interpret
 Title VII as encompassing minor acts by a supervisor such as “facial
 expressions indicating displeasure;”  otherwise, “[p]aranoia in the
 workplace would [form the basis of] a Title VII cause of action”);
 see also EEOC Compliance Manual Section 8, “Retaliation,” 8-14 (“petty
 slights and trivial annoyances are not actionable, as they are not
 likely to deter protected activity”).  But where an employer takes an
 action that is based on a retaliatory motive “and is reasonably likely
 to deter employees from engaging in protected activity,” the employer has
 violated the anti-retaliation provision of Title VII.  Ray v. Henderson,
 217 F.3d 1234, 1243 (9th Cir. 2000); see also id. at 1242-43 (citing
 EEOC Compliance Manual on Retaliation).  The fact that an employer's
 retaliatory action falls short of the significant harm inflicted with
 a termination, demotion, or decrease in salary, for example, does
 not take it outside the conduct prohibited by 42 U.S.C. §2000e-3(a),
 as the panel majority in this case holds.  Rather, the degree of harm
 suffered by the individual “goes to the issue of damages, not liability.”
 Hashimoto v. Dalton, 118 F.3d 671, 676 (9th Cir. 1997); see also Ray,
 217 F.3d at 1243 (same); EEOC v. L.B. Foster Co., 123 F.3d 746, 754
 n.4 (3d Cir. 1997) (plaintiff need not prove retaliatory denial of job
 reference caused prospective employer to reject her; such a showing is
 relevant only to damages, not liability); Smith v. Sec'y of Navy, 659
 F.2d 1113, 1120 (D.C. Cir. 1981) (“the questions of statutory violation
 and appropriate statutory remedy are conceptually distinct.  An illegal
 act of . . . reprisal . . . is a wrong in itself under Title VII,
 regardless of whether that wrong would warrant an award of [damages]”).
 Finally, the majority's holding that only “ultimate” and “materially
 adverse” actions are prohibited by the anti-retaliation provision
 is at odds even with the Supreme Court's reading of 42 U.S.C. §
 2000e-2(a)(1) – a provision that by its language is more limited
 than 42 U.S.C. §2000e-3(a).<3>  In Burlington Industries v. Ellerth,
 524 U.S. 742, 760-65 (1998), the Supreme Court, in devising an agency
 principle to govern employer liability for a supervisor's harassment of
 an employee, held that an employer is always liable for a discriminatory
 “tangible employment action.”  The Court distinguished tangible
 employment actions from actions not obviously attributable to the
 employer.  Tangible employment actions, the Court stated, “are the means
 by which the supervisor brings the official power of the enterprise to
 bear on subordinates.”  Id. at 762.  A tangible employment act “requires
 an official act of the enterprise, a company act.  The decision in most
 cases is documented in official company records, and may be subject to
 review by higher level supervisors.”  Id.  Thus tangible employment
 actions include such acts “as discharge, demotion, or undesirable
 reassignment.”  Id. at 765 (emphasis added);<4> see also Faragher
 v. City of Boca Raton, 524 U.S. 775, 808 (1998) (same).
 Sheila White plainly was subjected to tangible employment actions when
 she was transferred, and when she was suspended, for each of those
 actions was “an official act of the enterprise.”  Ellerth, 524 U.S. at
 762.  Once the jury in this case found that those actions were motivated
 by a desire to retaliate against White, the employer was properly held
 liable for any damages ensuing from its acts.  The panel's decision
 to the contrary, on the grounds that the actions were not “ultimate”
 and “materially adverse,” cannot be reconciled with Ellerth.<5>  The
 Commission therefore believes that en banc review of the panel decision
 is necessary.
II.  REHEARING EN BANC IS NECESSARY BECAUSE THE PANEL'S HOLDING THAT A
REINSTATEMENT NEGATES THE ADVERSE NATURE OF A SUSPENSION CONFLICTS WITH
SUPREME COURT PRECEDENT.

 Burlington Northern unequivocally suspended Sheila White without pay or
 benefits on December 11, 1997, for what a jury found were retaliatory
 reasons.  Burlington Northern reinstated White, though only after
 directed to do so by a grievance hearing officer.  The panel majority,
 relying on this Court's earlier decision in Dobbs-Weinstein v. Vanderbilt
 Univ., 185 F.3d 542 (6th Cir. 1999), held that this reinstatement
 effectively negated the adverse nature of the suspension decision.
 According to the panel, the suspension was only an interim decision that
 could not be challenged because “[t]he railroad had a grievance process
 available to challenge such decisions.”  Op. at 18.  Therefore, the
 panel held, the retaliatory suspension “was not ‘the ultimate employment
 decision.'” Id.  The panel's view that a subsequently-reversed suspension
 is an interim decision shielded from challenge under anti-discrimination
 or anti-retaliation provisions cannot be reconciled with Supreme Court
 jurisprudence identifying the date of a discriminatory act for statute
 of limitations purposes.  See Nat'l Passenger R.R. Corp. v. Morgan, 122
 S.Ct. 2061 (2002); Delaware State Coll. v. Ricks, 449 U.S. 250 (1980);
 Int'l Union of Elec. Workers v. Robbins & Myers, Inc., 429 U.S. 229
 (1976).
 In the first of the three Supreme Court decisions, Robbins & Myers, 429
 U.S. at 234, the Supreme Court rejected the notion that the existence
 of a grievance process rendered a discharge decision “tentative” and
 “non-final.”  The Court accordingly held that the limitations period
 began running on the date of the discharge, and not on the date that the
 grievance process terminated.  Id. at 234-35.   Similarly, in Ricks,  the
 Court held that the statute of limitations began running on the date the
 plaintiff, a college professor, was notified of the college's decision to
 deny him tenure.  Ricks, 449 U.S. 250.  The Court emphatically rejected
 the argument that the college's decision was only final on the date
 his internal grievance was denied.  Id. at 260-61.  Significantly,
 the Court stressed that “entertaining a grievance complaining of
 the tenure decision does not suggest that the earlier decision was
 in any respect tentative.”  Id. at 261.  As the Court put it, “[t]he
 grievance procedure, by its nature, is a remedy for a prior decision,
 not an opportunity to influence that decision before it is made.”  Id.
 Under Ricks, then, it is plain that whatever remedy a grievance process
 may provide is relevant only to the relief to which an individual may
 be entitled in a discrimination action; it does not make an initial
 decision an interim one though.<6>
  Finally, in the Supreme Court's most recent examination of this
  issue, the Court reaffirmed that a grievance process does not render
  a discriminatory act tentative or non-final.  See Nat'l Passenger
  R.R. Corp. v. Morgan, 122 S.Ct. at 2071-72.  The Morgan Court adopted
  a straightforward rule: “A discrete retaliatory or discriminatory
  act ‘occurred' on the day that it ‘happened.'” Id. at 2070.  Thus,
  under Morgan, White's retaliatory suspension occurred on December 11,
  1997, and her subsequent invocation of the grievance process did not
  render that suspension in any way non-final.  The panel decision's to
  the contrary cannot be reconciled with Morgan, Ricks, or Robbins. 
CONCLUSION
 For the foregoing reasons, the Commission submits that en banc review
 is warranted.
Respectfully submitted,
NICHOLAS M. INZEO
Acting Deputy General Counsel

PHILIP B. SKLOVER
Associate General Counsel

CAROLYN L. WHEELER    
Assistant General Counsel   

 

___________________________      
JENNIFER S. GOLDSTEIN   
Attorney

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of General Counsel
1801 L Street, N.W.
Washington, DC  20507
(202) 663-4733

CERTIFICATE OF SERVICE
 I hereby certify that two copies of this brief were mailed, first class,
 postage prepaid, on this 4th day of December, to the following:
Donald A. Donati
William B. Ryan
Donati Law Firm, LLP
1545 Union Avenue
Memphis, TN  38104

Ralph T. Gibson
Bateman, Gibson & Childers, LLC
54 Union Avenue, Suite 1010
Memphis, TN  38103



____________________________
JENNIFER S. GOLDSTEIN
Attorney

EQUAL EMPLOYMENT
  OPPORTUNITY COMMISSION
Office of General Counsel
1801 L Street, N.W.
Washington, DC 20507      (202) 663-4733





1  Moreover, Congress itself indicated that it intended the word
“discriminate” to have its ordinary meaning.  The Interpretive Memorandum
issued by Title VII's Floor Managers states that “the concept of
discrimination . . . is clear and simple and has no hidden meanings.
To discriminate is to make a distinction, to make a difference in
treatment or favor. . . .”  110 Cong. Rec. 7213 (1964) (discussed in
United Steelworkers of Am. v. Weber, 443 U.S. 193, 236-39 & n.18 (1979)
(Rehnquist, J., dissenting)).

2  Based on the Commission's research, it appears that Mattei is the
only Sixth Circuit case to focus so thoroughly on the statutory language
in the context of a retaliation case.  By contrast, the Sixth Circuit
decisions utilizing the “materially adverse” employment decision standard
in Title VII retaliation cases invoke various other court decisions,
but do not scrutinize the statutory language to attempt to explain
how that standard can be reconciled with the language of Title VII's
anti-retaliation provision.  See Jacklyn v. Schering Plough Healthcare
Prods. Sales Corp., 176 F.3d 921, 929 (6th Cir. 1999) (retaliation must
be “materially adverse”) (citing case involving alleged discriminatory
demotion, not retaliation);  Hollins v. Atlantic Co., 188 F.3d 652,
662 (6th Cir. 1999) (retaliation must be “materially adverse” to state
claim under Title VII) (relying on two decisions outside retaliation
context); Ford v. General Motors Corp., 305 F.3d 545, 553 (6th Cir. 2002)
(retaliation must be materially adverse) (citing Hollins).  The Commission
is unaware of any published Sixth Circuit decision requiring a showing
of an “ultimate” employment decision to establish unlawful retaliation.


3  42 U.S.C. § 2000e-2(a)(1) makes it unlawful to discriminate, in part,
in “terms, conditions, or privileges of employment.”  The language of
42 U.S.C. § 2000e-3(a), by contrast,  prohibits without any limitation
discrimination on the basis of protected activity.   As a matter of
simple logic, then, any employment action that could give rise to a
claim of actionable discrimination must necessarily be sufficient to
support a retaliation claim.

4  The panel majority in this case relied in part on Policastro
v. Northwest Airlines, Inc., 297 F.3d 535 (6th Cir. 2002).  In Policastro,
the Court held that a reassignment requiring significantly more travel
was not materially adverse, noting in particular that “[a]n employee's
subjective impressions as to the desirability of one position over
another are not relevant.”  Id. at 539.  The Policastro Court did not
cite to Ellerth's characterization of “undesirable” reassignment as an
actionable tangible employment action.  The Policastro Court therefore did
not attempt to reconcile its holding with that Supreme Court decision.

5  The panel majority mentioned two circuits that, in its view, require a
showing of an “ultimate employment decision” – the Fifth and the Fourth.
Op. at 16-17.  However, the Fifth Circuit has openly questioned whether
its “ultimate employment decision” doctrine remains viable in light of the
Supreme Court rulings in Ellerth, Robinson, and Faragher .  See Fierros
v. Texas Dep't of Health, 274 F.3d 187, 192-93 & n.2 (5th Cir. 2001).
The Fourth Circuit has gone one step further and held  that “‘ultimate
employment decision' is not the standard in this circuit.”  Von Gunten
v. Maryland, 243 F.3d 858, 865 (4th Cir. 2001); see also id. at 866
n.3 (reasoning of Page v. Bolger “simply does not apply to retaliation
actions”).

6  This Court discussed the Ricks decision at length in Kessler
v. Bd. of Regents, 738 F.3d 751 (6th Cir. 1984), in particular the
language stating that “‘entertaining a grievance complaining of the
tenure decision does not suggest that the earlier decision was in
any respect tentative.'” Id. at 754 (quoting Ricks, 449 U.S. at 261).
By contrast, in Dobbs-Weinstein, the panel majority did not discuss
Ricks when it concluded that to permit a plaintiff to challenge a
discriminatory tenure denial when there remained the possibility that
the decision would be reversed by the grievance process “would be to
encourage litigation before the employer has an opportunity to correct
through internal grievance procedures any wrong it may have committed.”
Dobbs-Weinstein, 185 F.3d at 546.  Neither Dobbs-Weinstein nor the panel
decision in this case cites to Kessler.