Thompson v. North Amer Stainless ( 2008 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 08a0129p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
Plaintiff-Appellant, -
ERIC L. THOMPSON,
-
-
-
No. 07-5040
v.
,
>
NORTH AMERICAN STAINLESS, LP, -
Defendant-Appellee. N
Appeal from the United States District Court
for the Eastern District of Kentucky at Frankfort.
No. 05-00002—Karen K. Caldwell, District Judge.
Argued: September 18, 2007
Decided and Filed: March 31, 2008
Before: MOORE and GRIFFIN, Circuit Judges; TARNOW, District Judge.*
_________________
COUNSEL
ARGUED: David O’Brien Suetholz, SEGAL, LINDSAY & JAMES, Louisville, Kentucky, for
Appellant. Leigh G. Latherow, VanANTWERP, MONGE, JONES, EDWARDS & McCANN, LLP,
Ashland, Kentucky, for Appellee. Gail S. Coleman, EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION, Washington, D.C., for Amicus Curiae. ON BRIEF: David O’Brien Suetholz,
Joseph Delano Wibbels, Jr., SEGAL, LINDSAY & JAMES, Louisville, Kentucky, for Appellant.
Leigh G. Latherow, Gregory L. Monge, VanANTWERP, MONGE, JONES, EDWARDS &
McCANN, LLP, Ashland, Kentucky, for Appellee. Gail S. Coleman, EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION, Washington, D.C., for Amicus Curiae.
TARNOW, D. J., delivered the opinion of the court, in which MOORE, J., joined. GRIFFIN,
J. (pp. 7-12), delivered a separate dissenting opinion.
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OPINION
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TARNOW, District Judge. Shortly after Appellant Eric Thompson’s fiancée filed a
discrimination charge with the EEOC against their common employer, the Appellee, Thompson was
terminated. The parties to this appeal ask whether the anti-retaliation provisions in Title VII of the
*
The Honorable Arthur J. Tarnow, United States District Judge for the Eastern District of Michigan, sitting by
designation.
1
No. 07-5040 Thompson v. North American Stainless Page 2
Civil Rights Act protect a related or associated third party from retaliation under such circumstances.
We hold that that they do, and REVERSE the district court’s grant of summary judgment to the
employer.
I.
From February 1997 through March 2003, the plaintiff, Eric L. Thompson, worked as a
metallurgical engineer for defendant North American Stainless, LP, the owner and operator of a
stainless steel manufacturing facility in Carroll County, Kentucky. Thompson met Miriam
Regalado, currently his wife, when she was hired by the defendant in 2000, and the couple began
dating shortly thereafter. At the time of Thompson’s termination, he and Regalado were engaged
to be married, and their relationship was common knowledge at North American Stainless.
According to the complaint, Regalado filed a charge with the Equal Employment
Opportunity Commission (EEOC) in September 2002, alleging that her supervisors discriminated
against her based on her gender. On February 13, 2003, the EEOC notified North American
Stainless of Regalado’s charge. Slightly more than three weeks later, on March 7, 2003, the
defendant terminated Thompson’s employment. Thompson alleges that he was terminated in
retaliation for his then-fiancée’s EEOC charge, while North American Stainless contends that
performance-based reasons supported the plaintiff’s termination.
Thompson filed a charge with the EEOC, which conducted an investigation and found
“reasonable cause to believe that [the Defendant] violated Title VII.” After conciliation efforts were
unsuccessful, the EEOC issued a right-to-sue letter and Thompson filed a cause of action against
North American Stainless in the Eastern District of Kentucky.
North American Stainless moved for summary judgment, contending that the plaintiff’s
claim, that his “relationship to Miriam Thompson [née Regalado] was the sole motivating factor in
his termination,” was insufficient as a matter of law to support a cause of action under Title VII.
The district court granted the defendant’s motion, holding that Thompson failed to state a claim
under either the anti-discrimination provision contained in 42 U.S.C. § 2000e-2(a) or the anti-
retaliation provision set forth in 42 U.S.C. § 2000e-3(a).
The plaintiff appeals from this judgment, contending that the anti-retaliation provision of
Title VII prohibits an employer from terminating an employee based on the protected activity of his
fiancée who works for the same employer. The EEOC has filed an amicus curiae brief in support
of plaintiff’s position.
II.
A.
A district court’s grant of summary judgment is reviewed de novo. Cicero v. Borg-Warner
Automotive, Inc., 280 F.3d 579, 583 (6th Cir. 2002) (citing Doren v. Battle Creek Health Sys., 187
F.3d 595, 597 (6th Cir.1999)). In reviewing the decision, we apply the same legal standard as the
lower court. Cline v. Catholic Diocese of Toledo, 206 F.3d 651, 657 (6th Cir. 2000). Summary
judgment is only appropriate when the evidence submitted shows “that there is no genuine issue as
to any material fact and that the moving party is entitled to judgment as a matter of law.” Cicero,
280 F.3d at 583 (quoting Fed.R.Civ.P. 56(c)).
No. 07-5040 Thompson v. North American Stainless Page 3
B.
Section 704(a) of Title VII of the Civil Rights Act prevents retaliation by employers for two
types of activity, opposition, and participation.
It shall be an unlawful employment practice for an employer to discriminate against
any of his employees . . . because he has opposed any practice made an unlawful
employment practice by this subchapter, or because he has made a charge, testified,
assisted, or participated in any manner in an investigation, proceeding, or hearing
under this subchapter.
42 U.S.C. § 2000e-3.
We are asked whether section 704(a)’s protections extend to persons not expressly described
in the statute. Specifically, does Title VII prohibit employers from taking retaliatory action against
employees not directly involved in protected activity, but who are so closely related to or associated
with those who are directly involved, that it is clear that the protected activity motivated the
employer’s action? As such conduct would undermine the purposes of Title VII, we hold that such
retaliatory action is prohibited.
C.
Defendant argues that the statute is unambiguous. That is, the plain language of the statute
indicates that the only individual protected by 704(a) is the one who conducted the protected
activity.
However, “[i]t is a well-established canon of statutory construction that a court should go
beyond the literal language of a statute if reliance on that language would defeat the plain purpose
of the statute[.]” Bob Jones University v. United States, 461 U.S. 574, 586, 103 S. Ct. 2017, 2025
(1983). Further, “it is well settled that, in interpreting a statute, the court will not look merely to a
particular clause in which general words may be used, but will take in connection with it the whole
statute . . . and the objects and policy of the law. . . .” Id. (alterations in original) (quoting Brown
v. Duchesne, 19 How. 183, 194, 15 L. Ed. 595 (1857)).
Robinson v. Shell Oil, 519 U.S. 337, 117 S. Ct. 843 (1997), which also interpreted section
704(a), stated that whether a statute is plain and unambiguous can only be evaluated “with regard
to the particular dispute in the case.” Id. at 340. A court must evaluate not only the contested
statutory language, but also “the specific context in which that language is used, and the broader
context of the statute as a whole.” Id. at 341, 117 S.Ct. at 846.
Burlington Northern and Santa Fe Railway Co. v. White, – U.S. –, 126 S. Ct. 2405 (2006),
discussed that broader context and the object of Title VII: “The anti-retaliation provision seeks to
secure [a non-discriminatory workplace] by preventing an employer from interfering (through
retaliation) with an employee's efforts to secure or advance enforcement of the Act's basic
guarantees.” Id. at 2412. It characterized section 704(a)’s primary purpose as “[m]aintaining
unfettered access to statutory remedial mechanisms.” Id. (quoting Robinson, 519 U.S. 337, 346, 117
S. Ct. 843). Burlington held that a plaintiff must demonstrate a “materially adverse” retaliatory
action, which it defined as one that “well might have dissuaded a reasonable worker from making
or supporting a charge of discrimination.” Id. at 2415 (quotation marks and citations omitted).
Here, a literal reading of section 704(a) suggests a prohibition on employer retaliation only
when it is directed to the individual who conducted the protected activity. Such a reading, however,
“defeats the plain purpose” of Title VII. There is no doubt that an employer’s retaliation against a
No. 07-5040 Thompson v. North American Stainless Page 4
family member after an employee files an EEOC charge would, under Burlington, dissuade
“reasonable workers” from such an action.
Support for our holding is found as well in the EEOC Compliance Manual. See Meritor Sav.
Bank, FSB v. Vinson, 477 U.S. 57, 65, 106 S. Ct. 2399, 2404 (1986) (“[EEOC] Guidelines, while
not controlling . . . do constitute a body of experience and informed judgment to which courts and
litigants may properly resort for guidance.”) (quotation marks and citations omitted); Griggs v. Duke
Power Co., 401 U.S. 424, 433-34, 91 S. Ct. 849, 854-55 (1971) (“The administrative interpretation
of the [Civil Rights] Act by the enforcing agency is entitled to great deference.”). The Burlington
decision also found support in the Compliance Manual for its interpretation of section 704(a), see
126 S. Ct. at 2413-14, as did Robinson, see 117 S. Ct. at 848.
The Compliance Manual expressly states that a person claiming retaliation need not be the
one who conducted the protected activity. “Title VII . . . prohibit[s] retaliation against someone so
closely related to or associated with the person exercising his or her statutory rights that it would
discourage that person from pursuing those rights.” Johnson v. University of Cincinnati, 215 F.3d
561, 580 (6th Cir. 2000) (emphasis added) (quoting EEOC Compliance Manual (CCH) ¶ 8006).
D.
Our holding today is consistent with Circuit precedent, as well as interpretive practices of
both this Court and the Supreme Court. In EEOC v. Ohio Edison Co., 7 F.3d 541 (6th Cir. 1993),
we observed that
courts have routinely adopted interpretations of retaliation provisions in employment
statutes that might be viewed as outside the literal terms of the statute in order to
effectuate Congress’s clear purpose in proscribing retaliatory activity. Contrary to
defendant's assertions, courts have frequently applied the retaliation provisions of
employment statutes to matters not expressly covered by the literal terms of these
statutes where the policy behind the statute supports a non-exclusive reading of the
statutory language.
Id. at 545. We expressly stated, albeit in dicta, that “[w]e agreed with the reasoning of the
DeMedina court that a plaintiff’s allegation of reprisal for a relative’s anti-discrimination activities
states a claim upon which relief can be granted under Title VII.” Id. at 544 (referring to DeMedina
v. Reinhardt, 444 F. Supp. 573 (D.D.C.1978), aff’d in part and remanded in part, 686 F.2d 997
(D.C.Cir.1982)).
Other cases have gone beyond literal language to support a construction that corresponded
with a statute’s purpose. Robinson, supra, interpreted section 704(a)’s prohibition against an
employer “discriminat[ing] against any of his employees” to include former employees, because
such an interpretation was “more consistent with the broader context of Title VII and the primary
purpose of § 704(a).” 117 S. Ct. at 849.
In Tetro v. Elliott Popham Pontiac, Oldsmobile, Buick, and GMC Trucks, Inc. 173 F.3d 988
(6th Cir. 1999), a white former employee sued his employer for discrimination, alleging he had been
discharged because he had a biracial child. Id. at 994. After reviewing both the purpose of Title VII
and EEOC interpretations, we held that Title VII’s prohibition against discrimination “because of
such individual’s race,” 42 U.S.C. § 2000e-2(a), extended to indirect discrimination, despite the
term’s absence from the statute. Id. at 995.
No. 07-5040 Thompson v. North American Stainless Page 5
In NLRB v. Scrivener, 405 U.S. 117, 121, 92 S. Ct. 798, 801, 31 L. Ed. 2d 79 (1972),1 the
Court interpreted section 8(a) of the National Labor Relations Act, which prohibited employers from
“discharg[ing] or otherwise discriminat[ing] against an employee because he has filed charges or
given testimony under this Act.” Id. at 118 (quoting 29 U.S.C. § 158). Despite the plain language,
the Court reversed a court of appeals ruling that an employee enjoyed no protection from reprisals
for other than formal charges or formal testimony. Id. at 121. It reasoned that the broader purpose
of section 8(a) required protection for any participation in the investigative process. Id. Freedom
from retaliation was necessary “to prevent the Board’s channels of information from being dried up
by employer intimidation of prospective complainants and witnesses.” Id. at 122 (quoting John
Hancock Mut. Life Ins. Co. v. NLRB, 191 F.2d 483, 485, 89 U.S.App.D.C. 261, 263 (1951)).
E.
The district court relied in part on our ruling in Bell v. Safety Grooving & Grinding, LP., 107
Fed. App’x 607. In Bell, the Court affirmed a dismissal of a case under both 42 U.S.C. §§ 2000e-2
and 2000e-3. Contrary to the lower court’s characterization, Bell, an unpublished disposition, only
considered plaintiff’s association with his girlfriend as it related to the discrimination claim. Id. at
609. The basis the court considered for the retaliation claim, under § 2000e-3, was Bell’s
“opposition” activities. Id. Bell did not analyze or decide whether § 2000e-3(a) reached retaliation
claims brought under a third-party association theory.
However, the lower court acknowledged that its ruling would undermine the purposes of
Title VII. That is, it recognized “that retaliating against a spouse or close associate of an employee
will deter the employee from engaging in protected activity just as much as if the employee were
himself retaliated against.” Thompson v. North American Stainless, LP, 435 F. Supp. 2d 633, 639
(E.D.Ky. 2006).
Other courts ruling similarly have made the same observation. See, e.g., Fogleman v. Mercy
Hosp., Inc., 283 F.3d 561, 569 (3rd. Cir. 2002) (“Allowing employers to retaliate via friends and
family, therefore, would appear to be in significant tension with the overall purpose of the
anti-retaliation provisions, which are intended to promote the reporting, investigation, and correction
of discriminatory conduct in the workplace.”); Holt v. JTM Industries, Inc., 89 F.3d 1224, 1227 (5th
Cir. 1996) (“We recognize that there is a possible risk that an employer will discriminate against a
complaining employee’s relative or friend in retaliation for the complaining employee's actions.”).
Fogleman even noted that “as the Seventh Circuit sagely observed, ‘To retaliate against a man by
hurting a member of his family is an ancient method of revenge, and is not unknown in the field of
labor relations.’” Id. (quoting NLRB v. Advertisers Mfg. Co., 823 F.2d 1086, 1088 (7th Cir.1987)).
The dissent asserts that “before today, no circuit court of appeals has held that Title VII
creates a claim for third-party retaliation,” infra p. 10. In fact, the Eleventh Circuit characterized
as “wrongful retaliatory conduct” an EEOC claimant’s charge that her husband was called by the
university (their common employer) and told he would be happier teaching elsewhere. Wu v.
Thomas, 863 F.2d 1543, 1547 (11th Cir. 1989). In addition, the Seventh Circuit’s decision in
McDonnell v. Cisneros, 84 F.3d 256, 262 (7th Cir. 1996) supports a broader reading of section
704(a), and cites Wu with approval. Id. at 262 (“Wu v. Thomas, 863 F.2d 1543, 1547-48 (11th
Cir.1989), goes even further in liberally interpreting section 2000e-3(a) to accomplish its evident
purpose . . .”).
Other courts have expressed concerns as to whether this decision will result in a flood of
suits from relatives and associates of those who file EEOC charges. See, e.g., Fogleman, 283 F.3d
1
The Supreme Court has relied on the National Labor Relations Act to “draw[] analogies . . . in other Title VII
contexts.” Burlington, 126 S. Ct. at 2414.
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at 570 (“Congress may have feared that expanding the class of potential anti-discrimination plaintiffs
beyond those who have engaged in protected activity to include anyone whose friends or relatives
have engaged in protected activity would open the door to frivolous lawsuits and interfere with an
employer's prerogative to fire at-will employees.”).
However, Ohio Edison, supra, opened that door in this Circuit in 1993, and very few cases
asserting a similar cause of action have been seen. Furthermore, as a decision which permitted the
brother of an EEOC claimant to maintain such an action observed, “[t]hat Plaintiff can state a claim
does not establish the EEOC can prove the elements of its case.” EEOC v. Nalbandian Sales, Inc.,
36 F. Supp. 2d 1206, 1213 (E.D.Cal. 1998). As part of a prima facie retaliation case, all such
claimants must demonstrate, inter alia, “that there was a causal connection between the protected
activity and adverse employment action.” Balmer v. HCA, Inc., 423 F.3d 606, 614 (6th Cir. 2005).
The requirement of a prima facie case in general, and a causal link specifically protect employers
from defending against meritless suits.
Of greater concern to the court would be the result of a contrary ruling. That is, permitting
employers to retaliate with impunity for opposition to unlawful practices, filing EEOC charges or
otherwise participating in such efforts, as long as that retaliation is only directed at family members
and friends, and not the individual conducting the protected activity. As DeMedina put it, “tolerance
of third-party reprisals would, no less than the tolerance of direct reprisals, deter persons from
exercising their protected rights under Title VII.” 444 F. Supp. at 580.
We REVERSE.
No. 07-5040 Thompson v. North American Stainless Page 7
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DISSENT
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GRIFFIN, Circuit Judge, dissenting. From time to time, we should remind ourselves that
we are judges, not legislators. This is such a time. Because the majority has rewritten the Civil
Rights Act of 1964 to conform it to their notion of desirable public policy, I respectfully dissent.
I.
Often, when judges stray from the text of a statute and legislate from the bench, they do so
ostensibly to implement their perceived intent of Congress. Were judges empowered to revise and
amend statutes to further what we believe to be the “purpose” of the law, there would be no limit
on judicial legislation and little need for Congress. Recognizing the consequences of such unbridled
judicial forays into the legislative sphere, the Supreme Court has admonished “‘time and again that
a legislature says in a statute what it means and means in a statute what it says there.’” Arlington
Cent. Sch. Dist. Bd. of Ed. v. Murphy, 548 U.S. 291, 126 S. Ct. 2455, 2459 (2006) (quoting
Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253-54 (1992)). Accordingly, “[w]hen the
statutory language is plain, the sole function of the courts – at least where the disposition required
by the text is not absurd – is to enforce it according to its terms.” Id. (internal citations and
quotation marks omitted). See also Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997) (“[The
courts’] inquiry must cease if the statutory language is unambiguous and the statutory scheme is
coherent and consistent.”) (internal citation and quotation marks omitted); Rubin v. United States,
449 U.S. 424, 430 (1981) (“When we find the terms of a statute unambiguous, judicial inquiry is
complete, except in rare and exceptional circumstances.”).
II.
When Congress enacted the Civil Rights Act of 1964, it created a new and limited federal
cause of action for retaliation in the employment setting. The relevant language of the statute
provides:
It shall be an unlawful employment practice for an employer to discriminate against
any of his employees or applicants for employment . . . because he has opposed any
practice made an unlawful employment practice by this subchapter, or because he
has made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this subchapter.
Title VII of the Civil Rights Act of 1964, § 704(a), 42 U.S.C. § 2000e-3(a) (emphasis added).
It was Congress’s prerogative to create – or refrain from creating – a federal cause of action
for civil rights retaliation. Congress likewise was entitled to mold the scope of such legislation,
making the boundaries of coverage either expansive or limited in nature. In enacting § 704(a),
Congress chose the latter. The text of § 704(a) is plain and unambiguous in its protection of a
limited class of persons who are afforded the right to sue for retaliation. To be included in this class,
the plaintiff must show that his employer discriminated against him “because he has opposed any
practice made an unlawful employment practice by this subchapter, or because he has made a
charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing
under this subchapter.” 42 U.S.C. § 2000e-3(a) (emphasis added).
By application of the plain language of the statute, plaintiff Eric L. Thompson is clearly not
included in the class of persons for whom Congress created a retaliation cause of action because
No. 07-5040 Thompson v. North American Stainless Page 8
Thompson, himself, did not oppose an unlawful employment practice, or make a charge, testify,
assist, or participate in an investigation.
Plaintiff and the EEOC acknowledge that the text of the statute does not create a federal
cause of action for third-party retaliation. Moreover, they concede that there is no evidence that
Congress intended to establish such a new federal cause of action. Nonetheless, they offer various
reasons why we should disregard the text of the statute in favor of their public policy preferences.
The primary contention is that a “narrow” interpretation of § 704(a), limited to the statutory text,
would create an “absurd” result. Further, we should defer to the EEOC’s interpretation of the
statute. These assertions are dependent upon the premise that the statutory language is ambiguous.
It is not.
In essence, plaintiff and the EEOC request that we become the first circuit court to hold that
Title VII creates a cause of action for third-party retaliation on behalf of friends and family members
who have not engaged in protected activity. The majority has accepted this dubious invitation. In
doing so, the majority rewrites the law. Although the majority admits begrudgingly that “a literal
reading of section 704(a) suggests a prohibition on employer retaliation only when it is directed to
the individual who conducted the protected activity,” the majority refuses to implement the
unambiguous text of the statute because, in their view, to do so would “defeat[] the plain purpose
of Title VII.” Majority slip op. at 3.
I disagree with the majority’s faulty assumption that affirmance of the district court’s order
necessarily contradicts the underlying objectives of § 704(a). More fundamentally, I respectfully
dissent because I would enforce the plain language of the law, rather than its perceived purpose.
III.
It is well established that to prevail upon a Title VII retaliation claim, a “plaintiff must show:
(1) that he engaged in activity protected by Title VII; (2) that he was the subject of adverse
employment action; and (3) that there exists a causal link between his protected activity and the
adverse action of his employer.” EEOC v. Ohio Edison Co., 7 F.3d 541, 543 (6th Cir. 1993) (citing
Jackson v. RKO Bottlers of Toledo, Inc., 743 F.2d 370, 375 (6th Cir. 1984)).
In the present case, the district court ruled correctly that Thompson failed to establish the
first element because there was no evidence that he had engaged in any sort of protected activity.
Instead, Thompson’s theory of recovery was that he was punished for a complaint brought by his
then-fiancée. The district court reviewed the statutory text and held that “under its plain language,
the statute does not authorize a retaliation claim by a plaintiff who did not himself engage in
protected activity.” I agree.
Previously, our only discussion of a similar issue had been limited to the dicta in EEOC v.
Ohio Edison Co., 7 F.3d 541 (6th Cir. 1993), and Bell v. Safety Grooving & Grinding, L.P., 107 F.
App’x 607 (6th Cir. 2004) (unpublished).1 However, neither of these cases resolved the present
question. In Ohio Edison, we held that an employee may engage vicariously in protected activity
by and through the actions of his agent, and, in Bell, we held that the plaintiff’s non-specific
complaints to management were insufficient to trigger protection for him in connection with his
girlfriend’s EEOC discrimination charge.
Although our court has not addressed directly the precise issue at hand, the Fifth, Eighth, and
Third Circuit Courts of Appeal have unanimously rejected such third-party retaliation claims.
1
Unpublished opinions of this court are not precedentially binding under the doctrine of stare decisis. United
States v. Lancaster, 501 F.3d 673, 677 (6th Cir. 2007); United States v. Sanford, 476 F.3d 391, 396 (6th Cir. 2007).
No. 07-5040 Thompson v. North American Stainless Page 9
In Holt v. JTM Industries, 89 F.3d 1224 (5th Cir. 1996), a former employee claimed that he
was fired because his wife, who worked for the same company, had filed a complaint under the Age
Discrimination in Employment Act (“ADEA”).2 The plaintiff in Holt relied upon De Medina v.
Reinhardt, 444 F. Supp. 573 (D.D.C. 1978), aff’d in part, remanded in part, 686 F.2d 997 (D.C. Cir.
1982), in support of his position that protecting one spouse from retaliation for the other spouse’s
protected complaint was necessary to preserve the intent of Congress. Holt, 89 F.3d at 1226. The
Court of Appeals for the Fifth Circuit rejected this argument, reasoning that while “[s]uch a rule of
automatic standing might eliminate the risk that an employer will retaliate against an employee for
their spouse’s protected activities,” it would “contradict the plain language of the statute and will
rarely be necessary to protect employee spouses from retaliation.” Id. at 1226.
The Holt court recognized the risk of its holding, but found that the statutory language is the
law that “define[s] the types of relationships that should render automatic standing . . . .” Id. at
1227. The court noted that the plain language of the statute will protect most close relationships,
because “[i]n most cases, the relatives and friends who are at risk for retaliation will have
participated in some manner in a co-worker’s charge of discrimination.” Id. If there is any
participation, then the relative or friend of the complaining party is protected by the plain language
of the statute. Id. Thus, the statute denies protection only to those friends or relatives of a
complaining employee who have not participated with the complaint. Id. In the instant case,
Thompson does not claim to have assisted Regalado in preparing her suit. If he had, then he would
be protected by the terms of the statute.
The Eighth Circuit employed this rationale in Smith v. Riceland Foods, Inc., 151 F.3d 813
(8th Cir. 1998). The plaintiff in Smith urged the court to expand Title VII to “prohibit employers
from taking adverse action against employees whose spouses or significant others have engaged in
statutorily protected activity.” Id. at 819. The court rejected such a construction, concluding that
it “is neither supported by the plain language of Title VII nor necessary to protect third parties, such
as spouses or significant others from retaliation.” Id. (citing Holt, 89 F.3d at 1226-27). “Title VII
already offers broad protection to such individuals by prohibiting employers from retaliating against
employees for assisting or participating in any manner in a proceeding under Title VII. Accordingly,
we hold that a plaintiff bringing a retaliation claim under Title VII must establish that she personally
engaged in the protected conduct.” Id. (internal quotations and alterations omitted).
In Fogleman v. Mercy Hospital, 283 F.3d 561 (3d Cir. 2002), the Court of Appeals for the
Third Circuit addressed the issue of third-party retaliation in a substantially similar context. The
plaintiff sued under the Americans with Disabilities Act (“ADA”), the ADEA, and a Pennsylvania
statute, alleging that he was fired in retaliation for his father’s discrimination complaint against their
joint employer. As a preliminary matter, the Fogleman court noted that the anti-retaliation
provisions of the ADA and the ADEA are nearly identical to each other and to the anti-retaliation
provision of Title VII. Id. at 567 (citing Krouse v. American Sterilizer Co., 126 F.3d 494, 500 (3d
Cir. 1997)). Thus, the “precedent interpreting any one of these statutes is equally relevant to
interpretation of the others.” Id. The Fogleman court emphatically rejected the notion of ambiguity:
“Read literally, the statutes are unambiguous – indeed, it is hard to imagine a clearer way of
specifying that the individual who was discriminated against must also be the individual who
engaged in protected activity.” Id. at 568.3 The court conceded that the case “presents a conflict
2
The test for retaliation under the ADEA is the same as the test for Title VII retaliation. Compare Shirley v.
Chrysler First, Inc., 970 F.2d 39, 42 (5th Cir. 1992) (elements of ADEA retaliation claim) with Ohio Edison, 7 F.3d at
543 (elements of Title VII retaliation claim); see also 29 U.S.C. § 623(d).
3
The EEOC filed an amicus brief in Fogleman and unsuccessfully raised the same arguments before the Third
Circuit that it makes in the present case. See brief of EEOC as Amicus Curiae in support of Appellant, Fogleman v.
Mercy Hosp., 283 F.3d 561 (3d Cir. 2002) (No. 00-2263), 2001 WL 34119171.
No. 07-5040 Thompson v. North American Stainless Page 10
between a statute’s plain meaning and its general policy objectives,” id. at 569, but held that when
presented with such a conflict, respect for the separation-of-powers required it to implement the
statutory text. Id.
The Third Circuit rejected the notion that enforcing the plain meaning of the statute would
lead to dire results. In fact, it stated that there “are at least plausible policy reasons why Congress
might have intended to exclude third-party retaliation claims.”4 Id. For instance, Congress could
have thought that friends or relatives who would be at risk of retaliation would have likely
participated in some manner in the protected discrimination charge. If so, then the class of people
that would be available for employers to retaliate against would be quite small and limited to friends
and relatives of employees that filed a protected complaint, but who were not close enough to the
protected employee to have assisted with the complaint in any manner. Id. Congress also could
have feared that allowing third-party retaliation claims would “open the door to frivolous lawsuits
and interfere with an employer’s prerogative to fire at-will employees.” Id. at 570.
In sum, before today, no circuit court of appeals has held that Title VII creates a claim for
third-party retaliation. Although plaintiff and the EEOC argue that the language of § 704(a) is
ambiguous and that enforcement of the statutory text will lead to absurd results, I disagree, as do the
Third, Fifth, and Eighth Circuits, which have soundly rejected such a cause of action. Indeed, the
only division that exists is between the circuit courts that have rejected third-party retaliation claims
and a handful of district courts that have created this new federal cause of action. The obiter dictum
seized upon by the majority from a scattering of these latter cases does not represent an established
mode of statutory construction.
In enacting Title VII, Congress addressed the issue of retaliation. The statute at issue is not
silent regarding who falls within the scope of its protection. While it does not state that third parties
are not protected, it is framed in the positive identifying those individuals who are protected, thus
limiting the class of claimants to those who actually engaged in the protected activity. The
appropriate question is not whether Congress considered the specific facts at issue in the instant
case, but whether plaintiff is included within the class of persons protected by the statute. We must
look to what Congress actually enacted, not what we believe Congress might have passed were it
confronted with the facts at bar. Congress drew the boundaries of protection from retaliation when
it enacted § 2000e-3(a). In creating a new federal cause of action for retaliation, it was not absurd
for Congress to limit the class of persons who are entitled to sue to employees who personally
opposed a practice, made a charge, assisted, or participated in an investigation.
IV.
Next, plaintiff argues that the court should defer to the EEOC’s interpretation of Title VII
in the EEOC Compliance Manual. In effect, the majority has done so by adopting the EEOC’s
undefined class of “related to or associated with” persons. All persons, no matter how loosely
related or “associated” to the person who engaged in the protected activity, may sue for retaliation
if they can show that adverse action taken against them would “discourage” the employee who
actually engaged in the protected activity from exercising his rights. This expanded class of
potential plaintiffs could lead to a proliferation of new retaliation lawsuits. Whether public policy
warrants such litigation is a decision for Congress, not the courts.
Plaintiff cites Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-45
(1984), for the proposition that “administrative interpretations of ambiguous statutes are entitled to
4
The court mentioned that it did not find these plausible policy reasons to be particularly persuasive, but was
still required to defer to Congress in the crafting of statutes. See id.
No. 07-5040 Thompson v. North American Stainless Page 11
substantial deference.” The Chevron analysis, colloquially referred to as the “Chevron two-step,”
requires the following analysis:
The Chevron two-step process requires the court to ask “whether the statute is silent
or ambiguous with respect to the specific issue before it; if so, the question for the
court [is] whether the agency’s answer is based on a permissible construction of the
statute.”
Singh v. Gonzales, 451 F.3d 400, 404 (6th Cir. 2006) (citation and quotation marks omitted)).
Because, as explained above, § 704(a) is not ambiguous, Chevron deference is not applicable.
Even assuming arguendo that the statute is ambiguous, we should not defer to the EEOC’s
Compliance Manual to interpret Title VII. Most courts have rejected the notion that the EEOC
Compliance Manual deserves deference. See, e.g., Rainer v. Refco, Inc., 464 F. Supp. 2d 742, 751
(S.D. Ohio 2006) (refusing to defer to the EEOC’s manual because “an agency’s interpretation of
a statute is not entitled to deference where it conflicts with the plain meaning of the statutory
language.”); Singh v. Green Thumb Landscaping, Inc., 390 F. Supp. 2d 1129, 1137-38 (M.D. Fla.
2005) (“This provision of the Manual is entirely lacking in the extensive analysis and thoroughness
necessary to be entitled to substantial deference by the Court. Ultimately, the responsibility is with
the Court, not with an administrative body, to interpret the provisions of Title VII in accordance with
the explicit legislative enactments set out by the Congress.”) (citation omitted).
Furthermore, the interpretation proffered by the EEOC is in its own compliance manual, not
a regulation that was promulgated after formal notice-and-comment rulemaking. The Supreme
Court has noted that such “interpretations” do not carry the force of law and are not worthy of
Chevron deference:
Interpretations such as those in opinion letters – like interpretations contained in
policy statements, agency manuals, and enforcement guidelines, all of which lack the
force of law – do not warrant Chevron-style deference. See, e.g., Reno v. Koray, 515
U.S. 50, 61 (1995) (internal agency guideline, which is not “subject to the rigors of
the Administrative Procedur[e] Act, including public notice and comment,” entitled
only to “some deference” (internal quotation marks omitted)); EEOC v. Arabian
American Oil Co., 499 U.S. 244, 256-258 (1991) (interpretative guidelines do not
receive Chevron deference); Martin v. Occupational Safety and Health Review
Comm’n, 499 U.S. 144, 157 (1991) (interpretative rules and enforcement guidelines
are “not entitled to the same deference as norms that derive from the exercise of the
Secretary's delegated lawmaking powers”). See generally 1 K. DAVIS & R. PIERCE,
ADMINISTRATIVE LAW TREATISE § 3.5 (3d ed. 1994). Instead, interpretations
contained in formats such as opinion letters are “entitled to respect” under our
decision in Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944), but only to the extent
that those interpretations have the “power to persuade.”
Christensen v. Harris County, 529 U.S. 576, 587 (2000).
The EEOC cannot expand its own authority by simply publishing a compliance manual and
expect the court to defer to its view that the statute means more than what the statutory language
supports. Moreover, at oral argument, counsel for the EEOC conceded that, in the present case, its
compliance manual is not entitled to Chevron deference.
No. 07-5040 Thompson v. North American Stainless Page 12
V.
In conclusion, the unambiguous text of the statute, not its anticipated purpose, is the law.5
By rewriting the Civil Rights Act to conform it to their preference for public policy, the majority has
assumed the role of the legislature and usurped the authority granted to Congress by the
Constitution.
For these reasons, I respectfully dissent. I would affirm the judgment of the district court.
5
Arlington Central Sch. Dist. Bd. of Ed. v. Murphy, 126 S. Ct. at 2459; Hartford Underwriters Ins. Co. v. Union
Planter Bank, N.A., 530 U.S. at 6; Connecticut Nat. Bank v. Germain, 503 U.S. at 253-54.