Flowers, Michael J. v. Columbia College ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2899
MICHAEL J. FLOWERS, JR.,
Plaintiff-Appellant,
v.
COLUMBIA COLLEGE CHICAGO,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 C 9247—Charles P. Kocoras, Chief Judge.
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ARGUED JANUARY 26, 2005—DECIDED FEBRUARY 8, 2005
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Before EASTERBROOK, RIPPLE, and EVANS, Circuit Judges.
EASTERBROOK, Circuit Judge. Columbia College Chicago
hired Michael Flowers and assigned him to serve as a
guidance counselor at a public high school in Chicago,
which had contracted with the College for services of
this kind. When the principal forbade Flowers to wear
a religious head covering, he filed a charge of discrimination
with the EEOC, naming the school system as his employer.
The school system complained to the College, which fired
Flowers—and did so for the sole reason that he had com-
plained about religious discrimination practiced by the high
school. (We take as given the allegations in his complaint,
without knowing whether they are true.) Flowers then
charged the College with retaliation, in violation of 42
2 No. 04-2899
U.S.C. §2000e-3(a) (part of Title VII of the Civil Rights Act
of 1964), and filed this suit after the EEOC was unable to
achieve conciliation. The district judge dismissed the
complaint for failure to state a claim, see Fed. R. Civ. P.
12(b)(6), ruling that Title VII allows an employer to sack a
person who complains about discrimination elsewhere. 2004
U.S. Dist. LEXIS 11583 (N.D. Ill. June 23, 2004).
Section 2000e-3(a) provides:
It shall be an unlawful employment practice for an
employer to discriminate against any of his employ-
ees . . . 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.
Flowers contends that the College fired him because “he has
made a charge . . . under this subchapter”. The district
judge read this language as if it said “has made a charge
against his employer under this subchapter”, and as the
high school was not his employer Flowers lacked a good
theory. But the phrase “against his employer” is not in
the statute.
Suppose that one of Flowers’s friends, who did work
for the Chicago public schools, charged it with discrim-
ination, that Flowers provided testimony in the investiga-
tion, and that the College fired him for assisting the EEOC.
Section 2000e-3(a) forbids such a response. See McMenemy
v. Rochester, 241 F.3d 279, 283-85 (2d Cir. 2001); see also
Hale v. Marsh, 808 F.2d 616, 619 (7th Cir. 1986) (dictum).
Or suppose that Flowers had worked at General Motors
before entering the College’s employ, and that the College
fired him on learning that he had complained about General
Motors’s failure to accommodate his desire to wear religious
garb. Again §2000e-3(a) would entitle Flowers to relief; no
No. 04-2899 3
one may follow the rule “we do not employ anyone who has
ever made a Title VII charge against a prior employer.”
There is no better reason why “against his employer” should
be interpolated into the anti-retaliation clause when the
original charge concerns a borrowing employer, such as a
firm to which a temporary service sends its staff, or (here)
the Chicago public schools.
If the College were right, then any firm could opt out
of Title VII by adopting a holding-company structure.
Suppose that Acme Industries were to create two sub-
sidiaries: Acme Personnel and Acme Operations.
Acme Personnel would hire and pay all employees; Acme
Operations would carry on the firm’s production using
employees from Acme Personnel. On the College’s legal
view, Acme Operations could engage in religious (and other)
discrimination with impunity, because it would not be the
“employer,” while Acme Personnel could fire anyone who
complained about discrimination at Acme Operations,
because the complaint would not concern Acme Personnel’s
conduct. That reductio ad absurdum can be avoided by
reading §2000e-3(a) to mean what it says. No employer may
retaliate against someone who makes or supports a charge
of discrimination against any employer.
Section 2000e-3(a) forbids retaliation even if the underly-
ing charge turns out to have been incorrect. See Mattson v.
Caterpillar, Inc., 359 F.3d 885, 892 (7th Cir. 2004); Alexan-
der v. Gerhardt Enterprises, Inc., 40 F.3d 187, 195 (7th Cir.
1994). Some decisions say that employers may react
adversely to frivolous charges of discrimination, which may
disrupt the employment relation without offering any
legitimate benefit to the employee. See, e.g., Fine v. Ryan
International Airlines, 305 F.3d 746, 752 (7th Cir. 2002)
(dictum). None of these decisions—at least none in this
circuit—actually holds that employers may take adverse
action in response to an unreasonable charge, but Flowers
does not contend that §2000e-3(a) forbids such a response.
4 No. 04-2899
Columbia College seeks shelter from this proviso by assert-
ing that Flowers’s charge against the high school was
objectively unreasonable. Yet Title VII requires accommoda-
tion of religious practices, when that can be accomplished
without undue hardship. See 42 U.S.C. §2000e(j); Ansonia
Board of Education v. Philbrook, 479 U.S. 60, 67-69 (1986);
Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84
(1977). Columbia College does not contend that allowing
Flowers to wear a kofi over his dreadlocks would have
imposed any hardship at all on itself or the high school to
which he had been detailed. Cf. United States v. James, 328
F.3d 953, 957-58 (7th Cir. 2003).
Instead the College insists that Flowers’s original charge
was baseless because made against the Chicago school
system, which did not employ him. Yet identifying the
“employer” in a borrowed-servant situation can be diffi-
cult. Flowers was in a bind: had he charged the College
with failing to accommodate his religion, the College
could have blamed the high school and insisted that it
was in no position to do anything; had Flowers filed the
charge against the school system (as he did), it could
have replied (as it did) that the College was his only
employer. Perhaps both entities usefully could be deemed
employers in such a situation, see EEOC v. Illinois, 69 F.3d
167, 169 (7th Cir. 1995); Sibley Memorial Hospital v.
Wilson, 488 F.2d 1338 (D.C. Cir. 1973), but even if the
College was the only statutory “employer” it hardly seems
a firing offense for Flowers to have thought otherwise. If a
gaffe on a technical issue allowed the employer to show the
worker the door, the anti-retaliation provision would be
diluted to the point of uselessness. Cf. Love v. Pullman Co.,
404 U.S. 522, 527 (1972) (“Such technicalities are particu-
larly inappropriate in a statutory scheme in which laymen,
unassisted by trained lawyers, initiate the process.”).
Technical mistakes in pursuing charges that may well have
a good substantive footing do not render those charges so
No. 04-2899 5
unfounded that the employer may reply with a discharge.
It is not as if Flowers had filed his initial charge against
Verizon or Boeing. The high school was, if not his “em-
ployer,” at least using his labor.
This drives the College to its last resource: it con-
tends that it has been determined authoritatively that
Flowers’s initial charge was frivolous. After the EEOC
completed its investigation, Flowers filed suit against
the Chicago school system. He acted pro se, and the
district judge dismissed the complaint under 28 U.S.C.
§1915(e)(2)(B)(i) before allowing the defendant to be
served with process. The order of dismissal stated that
the complaint was frivolous because it revealed that
the College, rather than the high school, was Flowers’s
employer. Instead of appealing, Flowers accepted the ruling
and proceeded against the College—which insists in this
second suit that the dismissal of the first establishes that
the charge against the high school was unreasonable and
thus deprives Flowers of any protection under §2000e-3(a).
Not at all. Denton v. Hernandez, 504 U.S. 25, 34 (1992),
holds that a dismissal under §1915(e)(2)(B)(i) is not preclu-
sive: a litigant may pay the filing fee and start anew
without having to overcome a defense of issue or claim
preclusion. Flowers’s first suit, though unavailing, was not
frivolous or vexatious, so he enjoys the protection of §2000e-
3(a).
REVERSED AND REMANDED
6 No. 04-2899
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-8-05