Mattern v. Eastman Kodak Co

REVISED
United States Court of Appeals,
Fifth Circuit.
No. 95-40836.
Jean G. MATTERN, Plaintiff-Appellee,
v.
EASTMAN KODAK COMPANY and Eastman Chemical Company, d/b/a Texas
Eastman Company, Defendants-Appellants.
Jan. 16, 1997.
Appeal from the United States District Court for the Eastern
District of Texas.
Before GARWOOD, BARKSDALE and DENNIS, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
The linchpin for this appeal is what constitutes an "ultimate
employment decision" as required for a retaliation claim under
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a).
Eastman Kodak Company and Eastman Chemical Company (collectively
"Eastman") contest the denial of a FED.R.CIV.P. 50 motion for
judgment as a matter of law, a jury having found that Eastman had
retaliated against Jean Mattern, its employee, but also having made
two findings adverse to Mattern that limit her retaliation claim:
first, that, although Mattern had been sexually harassed by her
coworkers, Eastman did not fail to take prompt remedial action
after it knew or should have known of the harassment; and second,
that Mattern was not constructively discharged from her employment
with Eastman. Mattern does not cross-appeal these adverse
findings. We REVERSE and RENDER.
I.
Mattern, an Eastman employee from late 1989 to mid-1993, was
enrolled in Eastman's lengthy mechanic's apprenticeship program,
which has two components: on-the-job training and related
instruction (classroom). The program requires successful
completion of 14 "review cycles" which evaluate both components.
Satisfactory performance during the review cycles results in
regular pay increases. In addition, the program includes periodic
"Major Skills Tests". An apprentice who receives either three
unsatisfactory "review cycle" assessments or fails a skills test
three times is subject to removal from the program.
Mattern filed a Title VII charge with the EEOC on March 11,
1993, claiming sexual harassment by members of her on-the-job
training crew. She alleged that two senior mechanics, Godwin and
Roberts, had sexually harassed her and created a hostile work
environment. She further alleged that her supervisors knew of, and
condoned, the harassment.
Earlier that month, Eastman had learned of, and began
investigating, this charge. As a result, on March 11, it allowed
Godwin to retire early; no action was taken against Roberts.
Eastman then transferred Mattern to another crew in the department.
Because of the transfer, Mattern was working under a different
immediate supervisor, but her departmental supervisors remained the
same. Mattern encountered difficulties which she equated, among
other things, with Title VII proscribed retaliation. She resigned
that July.
That November, Mattern filed this action against Eastman,
alleging, inter alia, that it had a policy and practice of
approving and condoning a hostile work environment; had
constructively discharged her; and had retaliated, and allowed its
employees to retaliate, against her for reporting the harassment to
the EEOC and for filing this action. The parties consented to
trial before a magistrate judge.
A jury found that, although Mattern had been harassed by
coworkers, Eastman had taken prompt remedial action; therefore,
the hostile work environment sexual harassment claim failed.
Likewise, it did not find constructive discharge or intentional
infliction of emotional distress. (Mattern does not cross-appeal.)
On the other hand, it found retaliation and awarded $50,000 in
damages.
II.
Eastman raises several issues. But first, we re-examine
Mattern's jurisdictional challenge, premised on the timeliness vel
non of Eastman's notice of appeal. See, e.g., Mosley v. Cozby, 813
F.2d 659, 660 (5th Cir.1987). This challenge has already been
rejected by a motions panel.
A.
The verdict was returned on March 24, 1995. A week later, the
magistrate judge entered a "Judgment" against Eastman on the
retaliation claim, and, a week after that, April 7, Eastman moved
under Rule 50 for judgment or for new trial, contending that the
retaliation evidence was legally insufficient. Five days later,
the magistrate judge entered a second "Judgment", dismissing
Mattern's harassment and emotional distress claims; a week later,
Mattern moved for judgment or for new trial. Two weeks later, she
moved for attorney's fees as the prevailing party.
The court denied Eastman's Rule 50 motion on September 12.
Three days later, it granted attorney's fees to Mattern, but denied
her Rule 50 motion. That October 10, Eastman appealed the March 30
and April 12 "Judgments" and the September 12 and 15 orders. A
"Final Judgment" was entered on October 27; an "Amended Final
Judgment", on November 2.
Mattern's early April 1996 motion to dismiss this appeal for
lack of appellate jurisdiction, asserting that Eastman's notice was
untimely, was repeated almost verbatim in her brief filed later in
April while the motion was pending and approximately two weeks
after Eastman's response to the motion. The motion was denied in
early May, a week in advance of Eastman's reply brief, which,
understandably, did not respond again to Mattern's jurisdictional
challenge.
Of course, a panel hearing the merits of an appeal may review
a motions panel ruling, and overturn it where necessary. United
States v. Bear Marine Services, 696 F.2d 1117, 1119 (5th Cir.1983).
And, the merits panel must be especially vigilant where, as here,
the issue is one of jurisdiction. Id. at 1120; see also
Commodities Futures Trading Comm'n v. Preferred Capital Inv. Co.,
664 F.2d 1316, 1320-21 (5th Cir.1982). On a parallel track,
Mattern's motion appears to be driven, in part, by the dispute over
the timeliness of her attorney's fees motion, an aspect of which
might require deciding which of the several "Judgments" was the
"judgment" for purposes of FED.R.APP.P. 54(d)(2)(B) (unless
otherwise provided by statute, motion for award of attorney's fees
must be filed within 14 days of entry of judgment).
As noted infra, we do not reach this fees-timeliness issue.
Furthermore, we agree with the motions panel that the notice of
appeal was timely. See, e.g., FED.R.APP.P. 4(a)(2) (notice of
appeal filed after announcement of decision or order but before
entry of judgment treated as filed on date of and after entry of
judgment) and FED.R.APP.P. 4(a)(4) (timely motion under Rule 50(b),
among others, tolls time for appeal until entry of order disposing
of last such motion outstanding); FED.R.CIV.P. 50(b).
B.
At issue are the legal sufficiency of the retaliation
evidence; evidence of pre-EEOC charge conduct by Mattern ruled
inadmissible under FED.R.EVID. 412; and the attorney's fees award.
Because the retaliation evidence was insufficient, we need not
reach the other issues.
It goes without saying that the standard of review for Rule
50 motions for judgment is found in Boeing Co. v. Shipman, 411 F.2d
365 (5th Cir.1969) (en banc):
[T]he Court should consider all of the evidence—not just that
evidence which supports the non-mover's case—but in the light
and with all reasonable inferences most favorable to the party
opposed to the motion. If the facts and inferences point so
strongly in favor of one party that the Court believes that
reasonable men could not arrive at a contrary verdict,
granting [judgment as a matter of law] is proper.
Boeing, 411 F.2d at 374. To apply this standard, we look, of
course, to the prerequisites for proving retaliation.
Title VII provides in relevant part that "[i]t shall be an
unlawful employment practice for an employer to discriminate
against any of his employees ... because he has made a charge ...
under this subchapter." 42 U.S.C. § 2000e-3(a). A retaliation
claim has three elements: (1) the employee engaged in activity
protected by Title VII; (2) the employer took adverse employment
action against the employee; and (3) a causal connection exists
between that protected activity and the adverse employment action.
E.g., Shirley v. Chrysler First, Inc., 970 F.2d 39, 42 (5th
Cir.1992). Eastman disputes the last two elements. We turn first
to whether there was an "adverse employment action".
Basically, Mattern's retaliation proof is of five types. (In
addition, Mattern testified that she was required to climb
scaffolding in a fire protection suit that was too large, which she
thought was unsafe; and that a telephone message was not given to
her.) The special interrogatories did not require the jury to
identify a basis, or bases, relied on in finding retaliation.
First, on the day Eastman brought disciplinary proceedings
against Godwin, Mattern told her supervisor, Drennan, that she was
ill, and that it was work-related. Because it was work-related,
Drennan instructed her to report the illness to Eastman's medical
department. Instead, Mattern went home, opting to take a day of
vacation. Eastman then sent two of her supervisors, Drennan and
Holstead (one of the supervisors named in Mattern's EEOC charge),
to Mattern's house to instruct her to return to Eastman medical if
her illness was work-related. Sending supervisors to an employee's
home under such circumstances was highly unusual, if not
unprecedented.
Second, Mattern was reprimanded for not being at her work
station approximately three weeks later, March 29, when her
supervisors were looking for her. At the time, she was at
Eastman's Human Resources Department discussing the hostility she
was perceiving at Eastman.
Third, Mattern's co-workers became hostile to her after Godwin
departed. Mattern testified that they would not say "hello", and
would mutter "accidents happen"; that one supervisor (Holstead)
told her he would fire her; and that her locker was broken into
and some of her tools stolen. Mattern claimed that Eastman
management knew of, but did nothing about, this hostility.
Fourth, Mattern became ill as a result of her anxiety over
this situation. Her doctor felt this was attributable to the
hostility at Eastman. He telephoned Eastman to report his
concerns, but Eastman did not respond.
Fifth, Mattern's work was reviewed more negatively after her
March EEOC charge, causing her to miss a pay increase, and
therefore, in mid-May, to be on "final warning" of discharge from
the apprenticeship program (she had missed another pay increase
earlier in the apprenticeship). The poor evaluations were being
completed and approved by supervisors who had praised her work in
the past.
Many of the negative reviews, including the missed pay
increase, resulted from Mattern's apparent inability to rebuild and
realign centrifugal pumps. She also failed two Major Skills Tests,
scoring only 19% and 47%. If she were to miss another pay
increase, or fail another Major Skills Test, she would be
recommended for termination. But, Mattern resigned her
apprenticeship before her next evaluation and next test.
Before resigning, Mattern was assigned more work with pumps,
including working one-on-one with a mechanic, Humble, in order to
improve and evaluate her skills. They worked on one pump in
particular, which they both testified was rebuilt correctly.
Drennan, however, received a report from a mechanic, Roberts, whom
Mattern accuses of bias, that the pump failed because of a
reassembly defect. (As noted, Roberts was one of the co-workers
Mattern named in the March EEOC charge.) Drennan documented the
pump failure, and continued training Mattern.
Drennan instructed Mattern to attend a training session with
another mechanic, Thomas. He told Mattern to realign a pump, which
was resting on a wooden pallet, while he observed. After
approximately three hours, she could not complete the task. A pump
resting on a wooden pallet, as opposed to a more solid base, is
more difficult to realign. In Mattern's view, it is reasonable to
infer that the pump was deliberately placed on the pallet in order
to scuttle her efforts to realign it and continue to the next
segment of the apprenticeship program.
As noted, the jury found against Mattern on her sexual
harassment and constructive discharge claims. As also noted, those
adverse findings limit the bases for finding retaliation.
Accordingly, the retaliation claim must be viewed in the context of
these two jury findings adverse to Mattern. Along this line, after
the court instructed the jury on the sexual harassment and
constructive termination claims, it instructed on the retaliation
claim. Concerning sexual harassment, the court instructed:
Now in regard to Mrs. Mattern's Title VII claim of sexual
harassment, Title VII ... prohibits employers from subjecting
their employees to sexual harassment. This includes unwelcome
sexual advances, requests for sexual favors, other verbal or
physical conduct of a sexual nature where the conduct has the
purpose or effect of unreasonably interfering with the
individual's work performance or creating an intimidating,
hostile or offensive working environment.
In order for Eastman to be liable to Mrs. Mattern for the
actions of Eastman's employees, she must prove four things:
first, that she was subjected to unwelcome harassment in the
form of sexual advances, requests for sexual favors or other
verbal or physical conduct of a sexual nature; secondly, that
the harassment was based on her sex; and third, that the
harassment affected a term, condition or privilege of her
employment; and finally, Eastman either knew or should have
known that Mrs. Mattern was being sexually harassed and failed
to take prompt reasonable measures to stop the harassment.
For sexual harassment to be actionable, it must be
sufficiently severe or persuasive [sic] to alter the
conditions of her employment or create an abusive working
environment. The conduct must be objectively severe or
persuasive [sic] that such a reasonable person would find the
conduct sexually hostile or abusive. Also, the employee must
have subjectively considered the environment to be sexually
abusive.
(Emphasis added.)
For constructive termination, the jury was instructed that
Mattern "must prove that Eastman constructively discharged or
terminated her in violation of Title VII by proving that Eastman
has made her working conditions so intolerable that a reasonable
employee would feel compelled to resign". (Emphasis added.)
And, for retaliation, the jury was instructed:
In regard to her retaliation claim, Title VII ...
prohibits an employer from retaliating or discriminating
against a person because that person has engaged in protective
[sic] activity. Protective [sic] activity is an employee's
conduct in opposing a discriminatory practice, making a charge
of discrimination or testifying, assisting or participating in
any manner in an investigation proceeding.
Now, in order for Mrs. Mattern to prevail on her claim of
retaliation, she has to prove three things: first, that she
was engaged in a protective [sic] activity; second, she
suffered from an adverse employment action; and third, that
Eastman acted out of a retaliatory motive in taking adverse
employment action.
Now, adverse employment action could be defined as a
discharge, a demotion, refusal to hire, refusal to promote,
reprimand, [or] acts of sabotage ... by employees against
other employees, either condoned or directed by an employer
for the purpose of establishing cause for discharge. Mere
dirty looks or reluctance of co-workers to speak to an
employee are not the types of adverse employment action
prohibited by Title VII. Merely placing a memorandum
regarding an employee's performance in his or her personnel
file does not in itself constitute an adverse employment
action.
(Emphasis added.)
These instructions are not at issue on appeal. (The dissent
totally ignores the "purpose of establishing cause for discharge"
language in the retaliation instruction. Moreover, it grossly
misstates our application of Title VII to the record in this case.
In fact, the dissent seems to be dealing with another case
entirely.)
Consistent with the retaliation instruction, our court has
stated that "Title VII was designed to address ultimate employment
decisions, not to address every decision made by employers that
arguably might have some tangential effect upon those ultimate
decisions". Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir.1995).
"Ultimate employment decisions" include acts "such as hiring,
granting leave, discharging, promoting, and compensating". Id. at
782 (citing Page v. Bolger, 645 F.2d 227, 233 (4th Cir.), cert.
denied, 454 U.S. 892, 102 S. Ct. 388, 70 L. Ed. 2d 206 (1981)). (No
authority need be cited for the necessary and longstanding rule
that, absent a change in the law, a decision by our court is
binding on subsequent panels. There has not been such a change;
most unfortunately, the dissent is simply unwilling to adhere to
this rule. And, no matter the lengths to which it goes to
distinguish Dollis, including expending considerable effort
discussing Page, it cannot get around the binding precedent
established by Dollis.)
Right off the bat, several of the events of which Mattern
complains, although viewed in the requisite light most favorable to
her, fall well below this standard. Hostility from fellow
employees, having tools stolen, and resulting anxiety, without
more, do not constitute ultimate employment decisions, and
therefore are not the required adverse employment actions. See
Landgraf v. USI Film Prods., 968 F.2d 427, 431 (5th Cir.1992),
aff'd 511 U.S. 244, 114 S. Ct. 1483, 128 L. Ed. 2d 229 (1994).
In addition, these acts cannot be attributed to Eastman,
especially when viewed in the light of the jury's remedial action
and no constructive discharge findings. Moreover, there is no
proof that these acts were by management. In general, Eastman
cannot be held liable under Title VII absent proof that its
employees acted as its agents. See Title VII's definition of
"employer", 42 U.S.C. § 2000e(b) (act covers "employers" and their
"agents", not "employees"). In short, a reasonable juror could not
find, as required by the retaliation instruction, that these acts
were condoned or directed by Eastman for the purpose of
establishing cause for discharge—an ultimate employment decision.
Likewise, the other events, such as the visit to Mattern's
home, the verbal threat of being fired, the reprimand for not being
at her assigned station, a missed pay increase, and being placed on
"final warning", do not constitute "adverse employment actions"
because of their lack of consequence. For starters, they do not
meet the standard set out in Dollis.
There, the employee alleged that she: (1) was refused
consideration for promotion; (2) was refused attendance at a
training conference; (3) had her work criticized to a government
vendor; and (4) was given false information regarding aspects of
her employment, including access to travel funds and methods of
filing EEO complaints. Dollis, 77 F.3d at 779-80. In holding that
these acts did not constitute ultimate employment decisions, our
court held also that they were at most "tangential" to future
decisions that might be ultimate employment decisions. Id. at 782.
Mattern's problems at Eastman are similarly non-actionable.
While she may have been in jeopardy of discharge from her
apprenticeship program at some point in the future, this
possibility obviously does not equal being discharged. Failing two
Major Skills Tests, having difficulty with pumps, and having
documented reprimands in her file may have increased the chance
that she would eventually suffer an adverse employment action but,
like the actions in Dollis, neither were they ultimate employment
decisions nor did they rise above having mere tangential effect on
a possible future ultimate employment decision.
To hold otherwise would be to expand the definition of
"adverse employment action" to include events such as disciplinary
filings, supervisor's reprimands, and even poor performance by the
employee—anything which might jeopardize employment in the future.
Such expansion is unwarranted. See Whitaker v. Carney, 778 F.2d
216 (5th Cir.1985) cert. denied, 479 U.S. 813, 107 S. Ct. 64, 93
L. Ed. 2d 23 (1986) (refusing to expand coverage of Title VII's
anti-retaliation provision to include non-workplace hostility by
non-employees).
Needless to say, Dollis is consistent with Title VII and prior
case law. For example, Hill v. Miss. St. Empl. Serv., 918 F.2d
1233 (5th Cir.1990), cert. denied, 502 U.S. 864, 112 S. Ct. 188, 116
L. Ed. 2d 149 (1991), held that allegations that co-workers were
staring at the employee, following her, prolonging the time she had
to wait for disbursement checks, relegating her file to a less
desirable classification, deleting experience data from a reference
form, and criticizing her EEOC complaint did not constitute
retaliation. Hill, 918 F.2d at 1241. Doubtless, some of these
actions may have had a tangential effect on conditions of
employment; but, as in Mattern's case, an ultimate employment
decision had not occurred. The employee could only prove examples
of the "many interlocutory or mediate decisions having no immediate
effect upon employment conditions" which therefore were "not
intended to fall within the direct proscriptions of ... Title VII".
Page, 645 F.2d at 233. As another example, see DeAngelis v. El
Paso Mun. Police Officers' Ass'n, 51 F.3d 591 (5th Cir.) (no
adverse employment action when office newsletter ran articles
routinely ridiculing the plaintiff based on her gender, and her
having filed an EEOC complaint), cert. denied, --- U.S. ----, 116
S. Ct. 473, 133 L. Ed. 2d 403 (1995).
The import of these cases, culminating in Dollis, is the
long-held rule that Title VII's anti-retaliation provision refers
to ultimate employment decisions, and not to an "interlocutory or
mediate" decision which can lead to an ultimate decision.
Obviously, this reading is grounded in the language of Title VII.
As quoted earlier, the anti-retaliation provision states that
employers shall not "discriminate" against employees for taking
action protected by Title VII. 42 U.S.C. § 2000e-3. In defining
this term, we look, of course, to other Title VII sections for
guidance; in this case, the preceding section is helpful.
That section states, in part, that it is unlawful to "fail or
refuse to hire or to discharge any individual, or otherwise to
discriminate against any individual with respect to his
compensation, terms, conditions or privileges of employment". 42
U.S.C. § 2000e-2(a)(1). This type of employer action contrasts
sharply with the more vague proscription, found in the next
subpart, of "limitation" of employees which deprive or "would tend
to deprive" the employee of "opportunities" or "adversely affect
his status". 42 U.S.C. § 2000e-2(a)(1), (2). It goes without
saying that this second subpart reaches much farther than the
first. It reaches acts which merely "would tend" to affect the
employee; obviously, the way in which the employee may be affected
in this subpart is much broader. Id.
The anti-retaliation provision speaks only of
"discrimination"; there is no mention of the vague harms
contemplated in § 2000e-2(a)(2). Therefore, this provision can
only be read to exclude such vague harms, and to include only
ultimate employment decisions.
As discussed, another factor mandating the failure of
Mattern's retaliation claim is that the jury found (1) she was not
constructively discharged and (2) Eastman did not fail to take
remedial action. (She does not cross-appeal.) She preempted a
possible ultimate employment decision—she resigned. See Landgraf,
968 F.2d at 431 (equating jury finding of no constructive discharge
with no adverse employment action resulting in loss of position).
Therefore, absent an ultimate employment decision prior to her
resignation, there can be no adverse employment action.
The only event Mattern could possibly point to might be a
missed pay increase. (Although there is evidence that Mattern
missed two increases, one took place in November 1991, long before
her March 1993 EEOC charge.) In any event, she did not prove that
the increase would have taken effect by the time she resigned. In
fact, she did not even assert in her brief in opposition to the
Rule 50 motion, or in her brief here, that the missed pay increase
was the ultimate employment decision. Instead, she contends that
her problems at Eastman, including receiving poor evaluations and
a missed increase, were "quickly leading to the ultimate adverse
employment action". (Emphasis added.)
Moreover, at the time Mattern was receiving poor evaluations
with respect to her work with pumps, she was also failing Major
Skills Tests with respect to them. She does not maintain (nor did
she prove) that the tests were "rigged"; accordingly, we must
assume they were a correct assessment of her ability with the
pumps. Obviously, an employee may not complain that not obtaining
a position was retaliation if she was not qualified for that
position in the first place. Gonzalez v. Carlin, 907 F.2d 573 (5th
Cir.1990). Therefore, the evidence that Mattern was having trouble
in her Major Skills Tests precludes her contention that, but for
the "sabotage", her progress through the pump section of the
apprenticeship program would have been rapid. Mattern's missed pay
increase evidence is not a basis for recovery on her retaliation
claim.
In closing, we note that Mattern relies on Armstrong v. City
of Dallas, 829 F. Supp. 875 (N.D.Tex.1992), for the proposition that
reprimands constitute ultimate employment decisions. The employer
was granted summary judgment in Armstrong on the basis that the
causation element for a retaliation claim was lacking. The
district court stated in dicta, however, that an adverse employment
action could rest on proof that the employee: (1) received a
letter of reprimand; (2) had efficiency ratings cut; (3) was
reported to the Civil Service Department for unsatisfactory
performance; (4) was informed he could be terminated for failure
to lose weight; (5) received a letter of reprimand for losing his
firefighter's coat; and (6) was transferred to a non-firefighting
job. Id. at 880.
Because of the lack of causation, our court affirmed the
summary judgment. Armstrong v. City of Dallas, 997 F.2d 62 (5th
Cir.1993). Therefore, this court never reached whether the
above-listed incidents constituted adverse employment actions. In
short, Mattern relies erroneously on dicta by the Armstrong
district court.
Even if the missed pay increase were an adverse employment
action, Mattern's evidence is insufficient to show that it resulted
from retaliation. Otherwise, there was no adverse employment
action. Because there was none, we need not reach whether Mattern
proved the causation element. Likewise, she is not a "prevailing
party" under Title VII, and is, therefore, not entitled to
attorney's fees. 42 U.S.C. § 2000e-5(k).
III.
For the foregoing reasons, the denial of the motion for
judgment is REVERSED, and judgment is RENDERED for Eastman.
REVERSED and RENDERED.
DENNIS, Circuit Judge, dissenting.
I respectfully dissent from the majority's reversal of the
district court's judgment upholding the jury verdict awarding the
plaintiff damages on her Title VII, § 704 retaliation claim and
from the majority's appellate level entry of judgment as a matter
of law against the plaintiff. The majority seriously misreads
Title VII and judicial precedents in its double-edged holding that
(1) when the jury rejects an employee-plaintiff's § 703 claims of
sex discrimination and constructive discharge, it is legally barred
from looking at all of the relevant circumstances and awarding her
§ 704(a) retaliation damages based on retributive hostile
environment discrimination; and, (2) in such a case, in order to
successfully prosecute a § 704(a) retaliation claim, an employee
must prove that the employer discriminated against her in an
"ultimate employment decision" such as "hiring, granting leave,
discharging, promoting, and compensating."
Correctly interpreted, § 704(a) affords an employee an
independent hostile work environment retaliatory discrimination
cause of action upon which she may recover in a proper case
regardless of the outcome of her § 703 sex discrimination and
constructive discharge claims. In the present case the jury's
retaliation award was not clearly erroneous and should have been
affirmed. The evidence provided a sufficient basis for a
reasonable juror to find that, after the plaintiff engaged in
protected activity by filing a Title VII sexual harassment claim,
adverse employment action against her occurred in the form of
retaliatory discrimination (of which the employer knew or should
have known) that was not remediated and sufficiently severe or
pervasive as to alter the conditions of her employment and create
a hostile or abusive working environment, and that there was a
causal connection between her participation in the protected
activity and the adverse employment action.
1. Plaintiff's Hostile Environment Retaliation Claim is
Independently Actionable
Retributive harassment of an employee who has filed a § 703
sex discrimination and abuse claim constitutes retaliatory
discrimination in violation of § 704(a) if, as in an actionable
claim for sexual harassment under § 703, the employer knew or
should have known of the harassment, failed to take remedial steps,
and the abusive conduct was sufficiently severe so as to alter the
conditions of employment and create a hostile work environment.
The Supreme Court, in Harris v. Forklift Systems, Inc., 510 U.S.
17, 114 S. Ct. 367, 126 L. Ed. 2d 295 (1993), and Meritor Savings Bank
v. Vinson, 477 U.S. 57, 106 S. Ct. 2399, 91 L. Ed. 2d 49 (1986), made
clear that a plaintiff may establish a violation of Title VII by
proving that discrimination based on sex has created a hostile or
abusive work environment. Nothing in § 704(a) of Title VII
suggests that hostile environment discrimination against an
employee because she filed a charge alleging a sex discrimination
violation should not be prohibited as unlawful retaliatory
discrimination.
Jurists and legal scholars who have specifically addressed the
issue have reached the conclusion that retaliatory harassment of an
employee because she reported sexual harassment may constitute
retaliatory discrimination in violation of § 704(a) if the
requisite elements are proven. See, e.g., Davis v. State of Calif.
Dept. of Corrections, 1996 WL 271001 (E.D.Cal. Feb. 23, 1996);
Cobb v. Anheuser Busch, 793 F. Supp. 1457, 1491 (E.D.Mo.1990);
Toscano v. Nimmo, 570 F. Supp. 1197, 1204-06 (D.Del.1983); Tanner
v. Calif. Physicians' Serv., 27 F.E.P. 593, 1978 WL 210
(N.D.Cal.1978); EEOC v. Bank of Ariz., 12 F.E.P. 527, 1976 WL 1727
(D.Ariz.1976); Hyland v. Kenner Prod. Co., 13 F.E.P. 1309, 1976 WL
561 (S.D.Ohio 1976); LINDEMAN & KADUE, SEXUAL HARASSMENT IN EMPLOYMENT LAW
at 282 (1992); 2 LARSON, EMPLOYMENT DISCRIMINATION § 34.04 at 34-57—34-
62 (2d Ed.1994) ("Manipulation of such other employment conditions
to constitute harassment or to tolerate harassment by fellow
employees has likewise been perceived as retaliatory. Such
harassment may take the form of interrogation, reprimands,
surveillance, unwarranted or unfavorable job evaluations, or the
deprivation of some of the normal benefits or rights of the
position....") (footnotes citing cases omitted); 1 CONTE, SEXUAL
HARASSMENT IN THE WORKPLACE § 3.28 at 163-64 (1994). This court
apparently has assumed that such liability could exist in analyzing
a retaliation claim. See DeAngelis v. El Paso Municipal Police
Officers Assoc., 51 F.3d 591, 597 (5th Cir.1995); Hamilton v.
General Motors Corp., 606 F.2d 576, 581 (5th Cir.1979); see also,
Wilson v. Southern Nat. Bank of North Carolina, 900 F. Supp. 803
(W.D.N.C.1995) (same as to prompt remedial action).
The EEOC's administrative interpretations indicate that the
employer can be held responsible under § 704(a) for failing to
remedy or prevent co-worker or customer retaliation against a § 703
claimant if the retaliation subjectively and objectively creates
severe or pervasive hostility in the claimant-employee's working
environment. EEOC COMPLIANCE MANUAL § 614.7, in pertinent parts,
provides:
614.7 Examples of Forbidden Retaliation
(a) Introduction—Retaliation against people who protest
unlawful employment discrimination can take many forms.
Discussed in this subsection are some of the more widely
recognized types of forbidden retaliation. This list is not
intended to be exclusive.
* * * * * *
(c) Harassment and Intimidation—Harassing or intimidating
an individual because that individual has opposed employment
discrimination is a violation of § 704(a) and § 4(d).
Harassment or intimidation can take many forms; some of the
more common forms are set out below. (Also see § 615,
Harassment; see also § 614.8(d) below):
* * * * * *
(4) Retaliatory reprimands. Unpublished Commission
Decision No. 71-445 (1971).
(5) Coercive questioning. Commission Decisions No. 71-
1151, CCH EEOC Decisions (1973) ¶ 6208. (See also EEOC
v. Plumbing and Pipefiters [sic] Industries, Local 189,
Title VII case.)
(6) Retaliatory surveillance. Commission Decision No.
70-683, CCH EEOC Decisions (1973) ¶ 6145.
* * * * * *
(g) Other Examples of Retaliation—The following types of
retaliation represent violations of § 704(a) and § 4(d) but do
not come under any particular heading.
* * * * * *
(2) Permitting others to retaliate against charging party
or complainant—If others, such as coworkers or respondent's
customers, retaliate against charging party or complainant for
having opposed employment discrimination, the respondent will,
under certain circumstances, have a duty to take steps
reasonably calculated to end the retaliation. For example, if
a respondent knows or has reason to know of acts taken against
a charging party by others because of his/her opposition to
perceived discrimination, such respondent has an obligation to
seek an end to the retaliation.
Id. (footnote omitted).
The EEOC has reached a similar position in administrative
adjudications. See EEOC Decision No. 79-59; 1979 WL 6935 (EEOC
1979); Commission Decision No. YME9-068, CCH EEOC Decisions (1973)
¶ 6039.
According to the Supreme Court, the Fifth Circuit's Rogers v.
EEOC, 454 F.2d 234 (5th Cir.1971), cert. denied, 406 U.S. 957, 92
S. Ct. 2058, 32 L. Ed. 2d 343 (1972), was apparently the first case to
recognize a cause of action based upon a discriminatory work
environment. Meritor Savings Bank v. Vinson, 477 U.S. 57, 65, 106
S. Ct. 2399, 2404-05, 91 L. Ed. 2d 49 (1986). The Supreme Court
quoted with approval from this court's explanation that an
employee's protections under Title VII, § 703, extend beyond the
economic aspects of employment:
"[T]he phrase "terms, conditions or privileges of employment'
in [Title VII] is an expansive concept which sweeps within its
protective ambit the practice of creating a working
environment heavily charged with ethnic or racial
discrimination.... One can readily envision working
environments so heavily polluted with discrimination as to
destroy completely the emotional and psychological stability
of minority group workers...." 454 F.2d, at 238.
Vinson, 477 U.S. at 66, 106 S.Ct. at 2405.
The Supreme Court in Vinson observed that courts generally
applied the principle announced by Rogers to harassment based on
race, religion and national origin, id. at 65; that in 1980 the
EEOC drew upon that substantial body of judicial decisions in
issuing Guidelines specifying that sexual harassment creating a
hostile work environment is prohibited by Title VII; and that
"[s]ince the Guidelines were issued, courts have uniformly held,
and we agree, that a plaintiff may establish a violation of Title
VII by proving that discrimination based on sex has created a
hostile or abusive work environment." Id. at 65.
Thus, when this court, in Whatley v. Metro. Atlanta Rapid
Transit Auth., 632 F.2d 1325 (5th Cir.1980), first set forth the
three-pronged test it follows in deciding Title VII, § 704(a),
retaliation claims, the discriminatory work environment cause of
action under § 703 was an established precedent of this court and
many others. In Whatley this court held that to prove a prima
facie case under section 704(a), the plaintiff must establish (1)
that there was a statutorily protected participation, (2) that an
adverse employment action occurred, and (3) that there was a causal
link between the participation and the adverse employment action.
In doing so, we observed that:
Section 704(a) of Title VII is the primary source of
protection against retaliation for those who participate in
the process of vindicating civil rights through Title VII.
Under that section broad protection is afforded to the
participant in order to effectuate the purposes of Congress.
Pettway v. Am. Cast Iron Pipe Co., 411 F.2d 998, 1006, n. 18
(5th Cir.1969) ["The protection of assistance and
participation in any manner would be illusory if employer
could retaliate against employee for having assisted or
participated in a Commission proceeding."]
Whatley, 632 F.2d at 1328 (footnote omitted). Consequently, it is
inconceivable that this court, by its use of the shorthand
judge-made term "adverse employment action," intended to exclude or
legally could have excluded a cause of action based upon a
discriminatory work environment from § 704(a)'s arsenal of
protections for employee-complainants against all forms of
retaliatory discrimination and adverse employment practices. In
other words, co-worker harassment attributable to the employer that
creates a hostile or abusive work environment for an employee
because she opposed or complained of discrimination based on sex,
race, color, national origin or religion, is a form of
discrimination or adverse employment action prohibited by § 704(a).
Accordingly, an employee has an actionable retaliation claim
under § 704(a) when (1) the employee participated in statutorily
protected activity; (2) the employee suffered harassment by
co-workers (i) that was sufficiently severe or pervasive as to
alter the conditions of the victim's employment and create a
hostile or abusive work environment, and (ii) the employer knew or
should have known of the harassment and failed to take reasonably
calculated steps to end the abuse; and (3) there was a causal link
between the participation in the protected activity and the
harassment creating the discriminatory work environment.
In assessing an employee's retaliation claim based on
harassment creating a discriminatory work environment the teachings
of Vinson and Harris should be kept in mind. The discrimination
prohibited by Title VII is not limited to economic or tangible
discrimination. Vinson, 477 U.S. at 64, 106 S.Ct. at 2404. The
discrimination must create an objectively and subjectively hostile
or abusive work environment. Harris, 510 U.S. at 17, 114 S.Ct. at
368. But Title VII comes into play before the harassing conduct
leads to a nervous breakdown. Certainly Title VII bars conduct
that would seriously affect a reasonable person's psychological
well-being, but the statute is not limited to such conduct. So
long as the environment would reasonably be perceived, and is
perceived, as hostile or abusive, there is no need for it also to
be psychologically injurious. Vinson, 477 U.S. at 67, 106 S.Ct. at
2405-06. Whether an environment is "hostile" or "abusive" can be
determined only by looking at all the circumstances. These may
include the frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably interferes with
an employee's work performance. Id.
2. Application of Discriminatory Work Environment Principles
Requires That The Jury's Retaliation Award Be Affirmed
We review jury verdicts for sufficiency of evidence pursuant
to the standard articulated in Boeing v. Shipman, 411 F.2d 365,
374-75 (5th Cir.1969) (en banc). Woodhouse v. Magnolia Hosp., 92
F.3d 248 (5th Cir.1996) (citing Rhodes v. Guiberson Oil Tools, 75
F.3d 989, 993 (5th Cir.1996) (en banc)).
The plaintiff presented evidence that her employer was
implicated in co-worker harassment of her because she had made
prior complaints about sexual harassment by co-employees. The
district court instructed the jury on the pertinent elements of
Title VII and the nature of retaliatory discrimination under the
statute. The jury specifically found in its verdict in response to
the court's interrogatories that the plaintiff was sexually
harassed by her co-workers, that Eastman intentionally or wilfully
retaliated against the plaintiff for filing a charge of
discrimination and/or for filing this lawsuit, and that $50,000
would fairly and reasonably compensate the plaintiff for the
damages proximately caused by Eastman's retaliatory actions. The
evidence amply supports the jury's determinations and satisfies the
three elements of a claim based on retaliatory discrimination under
§ 704(a).
First, it is undisputed that the plaintiff complained to the
defendant's personnel department of coworker sexual harassment on
or about March 3, 1993, and filed her initial Title VII charge on
March 11, 1993.
Second, plaintiff presented sufficient evidence from which a
reasonable trier of fact could find that after she complained of
sex discrimination she was subjected to retaliatory harassment by
co-workers that created a hostile or abusive work environment,
about which the employer knew or should have known, and that the
employer failed to take any steps reasonably calculated to end the
retaliatory abuse. The majority accurately describes some of the
principal parts of this evidence in its opinion. Mattern testified
that she was required to wear a fire protection suit while climbing
scaffolding that was unsafe because it was too large. Eastman sent
two supervisors, one of whom was an alleged harasser, to her home,
on a day she had taken vacation leave after complaining of an
employment-related illness, to tell or require her to return to
Eastman Medical if her illness was job-related. Sending
supervisors to an employee's home under such circumstances was
highly unusual, if not unprecedented. Mattern was reprimanded for
not being at her work station when she went to Eastman's Human
Resources Department to complain that she was being harassed on the
job. Mattern became ill over the perceived harassment; her doctor
reported to Eastman that he was concerned and that her illness was
related to the hostility. Mattern's work was reviewed negatively
by supervisors after her first EEOC charge, causing her to miss a
pay increase and to be given a final warning of potential discharge
from the apprenticeship program. The supervisors who began to give
her poor marks had praised her work before her EEOC complaint. The
plaintiff presented testimony by herself and Eastman's own
personnel that tended to show that a pump she had rebuilt had been
sabotaged by co-workers, causing her to receive a negative
evaluation and have her job placed in jeopardy. The district court
emphasized this incident in its reasons for denying the defendants'
motion for a judgment as a matter of law and, alternatively, for a
new trial:
[T]ampering with another employee's work by another employee
could reasonably be construed as sabotage condoned or directed
by an employer for the purpose of establishing cause for
discharge, demotion, reprimand or refusal to promote. This
sabotage could have reasonably taken place in response to Ms.
Mattern's actions regarding her complaints of sexual
harassment. Furthermore, at trial, Ms. Mattern produced
evidence that the defendants acted out of a retaliatory motive
condoning the actions taken by other employees against Ms.
Mattern. Therefore, the Court finds that there is a legally
sufficient evidentiary basis for a reasonable jury to find for
Ms. Mattern on her Title VII retaliation claim.
District Court's September 12, 1995, Order at 2-3.
Mattern points to additional evidence in the record that
supports the jury verdict because it tends to prove co-worker
harassment with the knowledge of the employer or direct harassment
by the employer and a resulting hostile work environment: after
her initial Title VII complaint, she was assigned to a different
crew but returned to the same work areas where her harassers were
employed; she had a good work record and there was no complaint
about her work before the Title VII charge; on March 30, 1993, her
attorney sent a telefax to Eastman's counsel demanding that the
retaliatory conduct cease; during March 1993 her doctor recorded
that she suffered from depression and panic attacks; she testified
that her work environment got worse after her complaint; that the
other workers shunned her, gave her the silent treatment or
muttered things like "accidents happen;" that one supervisor told
her he would fire her; the doctor prescribed Zoloft and Prozac for
her condition; the jury, in its last note sent during
deliberation, asked: "May we award damages in answering Question
# 8 [pertaining to damages for retaliatory actions] because we
think Eastman's credibility and witnesses lied?"
Third, the plaintiff's testimony and other corroborating
factors provided a sufficient basis for the jury reasonably to find
a causal link between her initial sexual harassment complaints and
the subsequent harassment creating a discriminatory work
environment. Among the corroborating factors were the evidence of
sabotage of Mattern's work product by co-workers that the trial
court emphasized in its reasons for judgment; the episode in which
she was required to assemble a pump on the unsteady surface of a
wooden pallet which caused her poor performance; the abrupt
descent of the supervisors' evaluations of her work after the
complaint was filed; her good work record up until that time;
evidence that another apprentice had been allowed to fail tests and
take more than the maximum allowable time to complete the program
with no reprimand by management; the lack of any effective action
by Eastman to stop the harassment of plaintiff despite several
notifications to management level employees of the retaliatory acts
by the plaintiff, her counsel, and her doctor.
Considering all of the circumstances, there was sufficient
evidence for a reasonable trier of fact to find that the plaintiff
was harassed by the employer directly through its supervisors, and
indirectly by knowingly permitting co-worker harassment, because
she had previously made informal and formal complaints of sexual
harassment; that the retaliatory harassment occurred in the forms
of retaliatory reprimands, retaliatory surveillance or
confrontation and questioning at her home, and other acts of
retaliation about which the employer knew or should have known but
failed to take effective steps to remedy; that the harassment was
sufficiently severe and pervasive to create a hostile or abusive
work environment objectively and subjectively; and that there was
a causal connection between her sexual discrimination complaints
and the retaliatory harassment.
3. The Majority Erroneously Conflates The Employee's § 703 Causes
of Action Based on Sex Discrimination and Constructive
Discharge With Her § 704(a) Retaliation Claim
The majority errs seriously in holding that the jury's
findings against an employee on her sexual harassment and
constructive discharge claims "limits the bases for finding
retaliation," by narrowing the ambit of the employee's § 704(a)
retaliation cause of action to one based on damage caused by the
employer's "ultimate employment decisions" such as "hiring,
granting leave, discharging, promoting, and compensating." It is
perfectly plain that §§ 703 and 704(a) are separate and distinct
provisions creating several independent causes of actions that
serve different integral functions furthering the main purpose of
Title VII. Section 703(a)(1) prohibits discrimination against any
individual with respect to his compensation, terms, conditions, or
privileges of employment because of race, color, religion, sex, or
national origin. Section 704(a) prohibits discrimination against
any employee because he opposed any practice made an unlawful
employment practice by Title VII or because he made a charge,
testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under Title VII. The primary
purposes of Title VII are to prevent discrimination, achieve equal
employment opportunity in the future, and to make victims of
discrimination whole. A claim of "hostile environment" sexual
harassment is a form of sex discrimination that is actionable under
Title VII, § 703(a)(1). Meritor Savings Bank v. Vinson, 477 U.S.
57, 106 S. Ct. 2399, 91 L. Ed. 2d 49 (1986) Section 704(a) of Title
VII is intended to provide exceptionally broad protection for
protestors of discriminatory employment practices. Pettway v. Am.
Cast Iron Pipe Co., 411 F.2d 998 (5th Cir.1969). The Supreme Court
has held that Title VII provides, in actions under "section 703,
704 or 717," that "the complaining party may recover compensatory
and punitive damages ..." Langraf v. USI Film Products, 511 U.S.
244, ----, 114 S. Ct. 1483, 1490, 128 L. Ed. 2d 229 (1994) (emphasis
added), 42 U.S.C. § 1981a(a) (West Supp.1996).
The Fifth Circuit and other courts have recognized that the
causes of actions afforded by §§ 703 and 704 are independent of
each other, call for different elements of proof, and that the
plaintiff's case under one cause of action does not depend upon her
success under another. For example, it is not fatal to a
plaintiff's § 704(a) case that she failed to prove an unlawful
employment practice under § 703(a)(1); it is sufficient to
establish a prima facie case of retaliation if she had a reasonable
belief that defendant had engaged in the unlawful practice. Payne
v. McLemore's Wholesale & Retail Stores, 654 F.2d 1130 (5th
Cir.1981); See EEOC Compliance Manual, Section 614. Moreover,
this court has recognized that there are significant differences
between the employee's causes of actions for constructive discharge
and for hostile work environment discrimination. To prove
constructive discharge, the plaintiff must demonstrate a greater
severity or pervasiveness of harassment than the minimum required
to prove a hostile working environment. Landgraf v. USI Film
Products, 968 F.2d 427 (5th Cir.1992), citing Pittman v.
Hattiesburg Mun. Separate Sch. Dist., 644 F.2d 1071, 1077 (5th
Cir.1981) (constructive discharge requires "aggravating factors").
Furthermore, the Fifth Circuit has held that a constructive
discharge requires an actual intent to get rid of the employee: it
occurs only "when the employer deliberately makes an employee's
working conditions so intolerable that the employee is forced into
an involuntary resignation." Dornhecker v. Malibu Grand Prix
Corp., 828 F.2d 307, 310 (5th Cir.1987).
The majority's holding that an employee's failure to convince
a trier of fact that she is entitled to relief under § 703 because
of sex discrimination and constructive discharge limits the scope
of her cause of action based on retaliation under § 704(a) is
contrary to Congressional intent and departs from the settled
precedents of this court. Moreover, it strikes a grievous blow to
the entire enforcement mechanism of Title VII. As this court
stated in Pettway v. Am. Cast Iron Pipe Company, 411 F.2d 998, 1005
(5th Cir.1969):
There can be no doubt about the purpose of § 704(a). In
unmistakable language it is to protect the employee who
utilizes the tools provided by Congress to protect his rights.
The Act will be frustrated if the employer may unilaterally
determine the truth or falsity of charges and take independent
action.
4. The Majority Misunderstands The Prior Cases Applying §§ 704(a)
& 717 And Erroneously Limits Employees to Retaliation Claims
Based on "Ultimate Employment Decisions"
The majority erroneously fails to consider whether the
evidence as a whole was sufficient to justify a reasonable trier of
fact in finding that the plaintiff suffered retaliatory
discrimination prohibited by § 704(a) that created a hostile or
abusive work environment. My colleagues were deflected from this
course by their mistaken interpretation and application of dicta in
cases decided under § 717: Page v. Bolger, 645 F.2d 227 (4th
Cir.1981), and Dollis v. Rubin, 77 F.3d 777 (5th Cir.1995).
Title VII, § 717(a), in pertinent part, provides:
(a) Discrimination prohibited. All personnel actions
affecting employees or applicants for employment [in defined
categories of Federal Government employment] shall be made
free from any discrimination based on race, color, religion,
sex, or national origin.
Congress added § 717 to Title VII in 1972 to extend the
protection of Title VII to employees of the Federal Government. In
Chandler v. Roudebush, 425 U.S. 840, 841, 96 S. Ct. 1949, 1950, 48
L. Ed. 2d 416 (1976), the Supreme Court, in holding that § 717
affords federal employees the same right to a trial de novo as is
enjoyed by private sector or state government employees under Title
VII, stated:
In 1972 Congress extended the protection of Title VII ...
to employees of the Federal Government. A principal goal of
the amending legislation [adding § 717 to Title VII] was to
eradicate " "entrenched discrimination in the Federal
service,' " ... by strengthening internal safeguards and by
according "[a]ggrieved (federal) employees or applicants ...
the full rights available in the courts as are granted to
individuals in the private sector under title VII."
Id. (citations and footnote omitted).
The majority mistakenly reads Page v. Bolger as holding that
Congress, by adding § 717 to extend the protection of Title VII to
employees of the Federal Government, somehow restricted the
protection of employees in the private sector by Title VII, § 703.
According to the majority, Page reads a drastic limitation into §
703(a)'s broad prohibition against discrimination with respect to
conditions of employment because of race, color, religion, sex, or
national origin; viz., to recover under § 704(a) the employee must
prove that he was discriminated against by the employer in an
"ultimate employment decision" such as "hiring, granting leave,
discharging, promoting, and compensating." Nothing in the statute
or in Page justifies such an interpretation.
In Page v. Bolger, a postal employee, who was twice denied
promotions, brought suit against the Postmaster General claiming
racial discrimination in violation of Title VII. The district
court found that Page had failed to establish his claim of
discrimination. The Fourth Circuit affirmed, concluding that the
inference of discriminatory intent raised by plaintiff's prima
facie case was effectively dispelled by articulation of a
legitimate nondiscriminatory reason; viz., the better
qualifications of the employees promoted, and that reason was not
shown to be mere pretextual cover for a discriminatory motive.
In dictum, the Page court commented on a contention by the
plaintiff that in effect introduced on appeal a new and dispositive
theory neither advanced nor considered in the district court. The
Postal Service's Personnel Handbook provides that a review
committee shall be designated to screen the applicants and to
recommend the most outstanding to the appointing officer. The
official who designates a review committee is required to make
every effort to select at least one woman and/or one minority group
member. The plaintiff argued for a modification of the McDonnell
Douglas formula under which a claimant could establish a prima
facie case by showing that he belonged to a minority; he qualified
for the position; and he was denied promotion because of an
evaluation by a review committee consisting only of white males.
At this point under the modification the employer would be required
to articulate some nondiscriminatory reason for the absence of a
minority member on the review committee, and, if this were done,
the pretext inquiry would focus on this reason, rather than the
articulated reason for denying the promotion.
The majority of the Fourth Circuit, en banc, rejected
plaintiff's proposed modification in dictum stating:
The proper object of inquiry in a claim of disparate
treatment under § 717 is whether there has been
"discrimination" in respect of "personnel actions affecting
(covered) employees or applicants for employment...." 42
U.S.C. § 2000e-16(a) (emphasis added). Disparate treatment
theory as it has emerged in application of this and comparable
provisions of Title VII, most notably § 703(a)(1), 42 U.S.C.
§ 2000e-2(a)(1), has consistently focused on the question
whether there has been discrimination in what could be
characterized as ultimate employment decisions such as hiring,
granting leave, discharging, promoting, and compensating.
This is the general level of decision we think contemplated by
the term "personnel actions" in § 717.
* * * * * *
By this we suggest no general test for defining those
"ultimate employment decisions" which alone should be held
directly covered by § 717 and comparable antidiscrimination
provisions of Title VII. Among the myriad of decisions
constantly being taken at all levels and with all degrees of
significance in the general employment contexts covered by
Title VII there are certainly others than those we have so far
specifically identified that may be so considered for example,
entry into training programs. By the same token, ... there
are many interlocutory or mediate decisions having no
immediate effect upon employment conditions which were not
intended to fall within the direct proscriptions of § 717 and
comparable provisions of Title VII. We hold here merely that
among the latter are mediate decisions such as those
concerning composition of the review committees in the instant
case that are simply steps in a process for making such
obvious end-decisions as those to hire, to promote, etc.
Id., 645 F.2d at 233 (emphasis added) (citation omitted).
A careful reading of the Fourth Circuit's opinion indicates
clearly that the court did not interpret § 717 to rule out a cause
of action by an employee who had been subjected to discriminatory
harassment based on race, sex, religion, color or national origin
that created a hostile or abusive work environment. Instead, the
Fourth Circuit's dictum states that § 717 does not prohibit
discrimination in "interlocutory or mediate decisions having no
immediate effect upon employment conditions" such as the
composition of a review committee. Clearly, by implication, the
court viewed § 717 as proscribing discrimination in "end-decisions"
that have "immediate effect upon employment conditions," such as an
employer's creation of a hostile environment discrimination based
on sex, race, religion or national origin. The court also
expressly stated that the examples of unlawful employment actions
immediately affecting employment conditions referred to, viz.,
discrimination in hiring, granting leave, discharging, promoting,
and compensating, did not constitute an exclusive list. The court
set forth these examples only to identify "the general level" of
discriminatory unlawful employment practices forbidden by § 717,
not to suggest a "general test" for defining the types of
discrimination barred by §§ 703, 704 and 717. At the time of the
Page court's decision the cause of action based on a discriminatory
work environment was well established under § 703 at the same
"general level" identified in the court's opinion. See Vinson, 477
U.S. at 65-66, 106 S.Ct. at 2404-05. That the Page court drew no
distinction between § 717 and § 703 but treated them as equivalents
further indicates the court did not interpret § 717 as excluding
such a claim.1
1
In subsequent cases courts have disagreed with Page's
restriction of "adverse employment action" to mediate decisions
and have limited its holding to Federal Government employment
cases.
In Hayes v. Shalala, 902 F. Supp. 259, 266
(D.D.C.Cir.1995), the court noted that while its circuit had
not directly addressed the holding in Page, "[w]here it has
spoken, it has adopted a broader interpretation of
actionable "personnel actions' than that of the Fourth
Circuit." (Citing Palmer v. Shultz, 815 F.2d 84
(D.C.Cir.1987)). The court concluded that the
plaintiff-employee "must be permitted to argue that the
totality of actions taken by his employer collectively
created a harassing and retaliatory environments, even if
individual actions may not have left a permanent paper trail
or may even have been "mediate' employment decisions as
In Dollis v. Rubin, 77 F.3d 777 (5th Cir.1995), the plaintiff,
an EEOC specialist in the U.S. Customs Service, brought suit
against the Secretary of the Department of the Treasury, claiming
race, sex, and retaliation discrimination in violation of Title
VII, § 717. The magistrate granted summary judgment to the
Secretary, rejecting Dollis' primary claim that she had been
discriminatorily denied a desk audit and her retaliation
discrimination claims based on her employer's alleged acts or
omissions in giving her false information about the return of a
self-nomination for an award for the Federal Women's Program,
informing her of the requirement that the EEO Manager approve each
handwritten document prepared by her, and informing a vendor of an
incorrect procurement procedure taken by her. This court affirmed
on the ground that neither the denial of the desk audit nor the
alleged retaliations arose to the level of an adverse personnel
action or an ultimate employment decision, citing Page v. Bolger.
Id. at 781.
Dollis is clearly distinguishable from the present case
because Dollis did not claim that she had been subjected to
retaliatory harassment that was sufficiently severe or pervasive to
identified by the Fourth Circuit in Page.
The court in Howze v. Vir. Polytechnic, 901 F. Supp.
1091, 1097 (W.D.Va.1995), noted that Page "was not a
retaliation case, but rather addressed an attempt to rewrite
the prima facie case requirements in a failure to promote
case. Second, the court was defining the term "personnel
actions' in 42 U.S.C.A. § 2000e-16(a), dealing with
discrimination in federal employment.... There is no
indication that the Fourth Circuit intended this definition
to apply to the retaliation provision in section 2000e-
3(a)."
create a discriminatory hostile or abusive work environment.
Moreover, under the facts alleged and shown by Dollis, it is clear
that no reasonable trier of fact could have found both objective
and subjective perceptions that the environment was abusive.
Conduct that is not severe or pervasive enough to create an
objectively hostile or abusive work environment—an environment that
a reasonable person would find hostile or abusive—is beyond Title
VII's purview. Likewise, if the victim does not subjectively
perceive the environment to be abusive, the conduct has not
actually altered the conditions of the victim's employment, and
there is no Title VII violation. Harris, 510 U.S. at 21-22, 114
S.Ct. at 370-71.
Nor do any of the other cases relied upon by the majority
opinion hold or support the majority's implicit holding that acts
of harassment and discrimination by co-workers attributable to the
employer creating a hostile environment cannot collectively rise to
a level of severity or pervasiveness to constitute discrimination
prohibited by Title VII, § 704(a):
(1) In Landgraf v. USI Film Prods., 968 F.2d 427, 431 (5th
Cir.1992), aff'd, 511 U.S. 244, 114 S. Ct. 1483, 128 L. Ed. 2d 229
(1994), this court affirmed the district court's findings that the
plaintiff suffered severe enough sexual harassment from one male
co-worker, a machinist, to create a hostile work environment, but
that the conflicts and unpleasant relationships plaintiff had with
other co-workers were not related to the charge she filed
complaining of the machinist's sexual harassment; therefore, this
court concluded, the plaintiff's conflicts with the other
co-workers could not constitute an underlying basis for her
retaliation claim.
(2) Whitaker v. Carney, 778 F.2d 216 (5th Cir.1985), held that
Title VII does not prevent an employer from disclosing to the
complained-of individual sexual harassment in employment complaints
made to the employer by its employees, and that, consequently,
Title VII provides no basis for appellants' attempted removal to
federal court under the federal civil rights removal statute on the
asserted ground that to comply with appellee's state Open Records
Act request would be an act inconsistent with a law providing for
equal rights. Therefore, Whitaker is irrelevant here and did not
refuse to expand coverage of Title VII's anti-retaliation provision
as the majority opinion indicates.
(3) Hill v. Miss. St. Empl. Serv., 918 F.2d 1233 (5th
Cir.1990) did not hold, as the majority claims, that plaintiff's
allegations that co-workers stared at her, followed her, delayed
her disbursement checks, relegated the classification of her file,
deleted experience data from her employment referral form, and
criticized her EEOC complaint failed to constitute retaliation.
Instead, this court held that the trial magistrate's finding that
the plaintiff failed to prove these alleged facts was not clearly
erroneous. Id., 918 F.2d at 1241. Furthermore, this court's
discussion of the retaliation claim in Hill does not mention or
allude to ultimate, interlocutory or mediate employment decisions
as the majority suggests. Id., 918 F.2d at 1240-41;
(4) In DeAngelis v. El Paso Municipal Police Officers Assn.,
51 F.3d 591 (5th Cir.1995), this court set forth the criteria for
a Title VII hostile environment sex discrimination claim as: (a)
Sexually discriminatory intimidation, ridicule and insults, which
are (b) sufficiently severe or pervasive that they (c) alter the
conditions of employment and (d) create an abusive working
environment, citing Harris and Vinson, id., 51 F.3d at 593, and
held that the anonymous comments in ten columns of a police officer
association's newsletter directed toward plaintiff and female
officers in general were not so frequent, pervasive, or pointedly
insulting as to create a hostile working environment; and that a
reference in one of the columns to plaintiff's "E-I-E-I-O" [EEOC]
complaint and an article reporting the association's intention to
sue her for damages if her lawsuit proved groundless did not amount
to an adverse employment action under any reasonable meaning of
that term. Id., 51 F.3d at 597.
(5) In Gonzalez v. Carlin, 907 F.2d 573 (5th Cir.1990), the
plaintiff claimed that the Postal Service had discriminatorily
failed to promote him because of his national origin, but he failed
to present a prima facie case because the evidence showed that he
had not yet acquired the two-year mechanical, electrical and
electronic experience necessary to qualify for the Level 6 MPE
maintenance mechanic position. For the same reason, his claim that
his failure to receive the desired promotion was based on
retaliatory motives was also rejected. The case has little, if
any, relevance to an employee's claim that, as in the present case,
is based on the employer's retaliatory conduct, directly and
through employees for whom he is accountable, that is sufficiently
severe or pervasive to create a discriminatorily hostile or abusive
working environment.
CONCLUSION
The majority opinion is in conflict with the aim of Congress
in enacting Title VII. Section 703 of Title VII makes it unlawful
for an employer to "discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of
employment, because of such individual's race, color, religion,
sex, or national origin." Section 704 of Title VII makes it
unlawful for "an employer to discriminate against any of his
employees ... because he has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or
hearing under this title." The Supreme Court has emphatically held
that Title VII, § 703, is violated when the employer discriminates
on the basis of sex by creating a hostile or abusive work
environment, which "can be determined only by looking at all the
circumstances." Harris, 510 U.S. at 23, 114 S.Ct. at 371.
Consequently, it necessarily follows that Title VII, § 704, is
violated when all the circumstances show that the employer has
discriminated against an employee for participating in the
enforcement of Title VII by creating a hostile or abusive work
environment. There is no justification for recognizing hostile
environment discrimination based on all circumstances under one
section and not the other. Nor is there any justification for
interpreting Title VII to afford less protection against
retaliatory discrimination than against sexual, racial or other
types of forbidden discrimination. This court has constantly
recognized that, to effectuate the purposes of Congress, § 704(a)
affords broad protection against retaliation for those who
participate in the process of vindicating civil rights through
Title VII. See, e.g. Whatley v. Metro. Atlanta Rapid Transit
Auth., 632 F.2d 1325 (5th Cir.1980); Pettway v. Am. Cast Iron Pipe
Co., 411 F.2d 998 (5th Cir.1969).
Nevertheless, the majority has produced a holding that
prevents a judge or jury from considering all the circumstances in
retaliation cases and thereby severely impairs the cause of action
based upon a discriminatory work environment under Title VII, §
704(a). The holding is based on the majority's mistaken
interpretation of two judge-made terms that were never intended for
the use my colleagues make of them. There is nothing to indicate
that this court intended to narrow the scope of protection against
retaliatory discrimination afforded by § 704(a) when it adopted the
shorthand term, "adverse employment action," to assist its analysis
of retaliation claims. Nor is it correct to conclude, as the
majority must have, that the Page court had the authority and the
intention, by its judge-minted term, "ultimate employment
decision," to drastically narrow the meaning of discrimination
under §§ 703 and 717, effectively abolishing altogether the cause
of action based on a discriminatory work environment.
Unfortunately, the majority has allowed its mistaken interpretation
of the judge-made rules to lead it to an incorrect conclusion as to
the meaning of Title VII.
Because I believe that the majority's decision is contrary to
the clear statutory language, the Supreme Court decisions, and all
prior jurisprudence, and that it will drastically weaken § 704(a)'s
protection against retaliation for those who participate in the
enforcement of Title VII by immunizing employers who use hostile
environment discrimination vengefully against them, I must
respectfully dissent.