Table of Authorities...................................................................................................... ii

Statement of Interest.................................................................................................... 1

Statement of the Issues................................................................................................ 2

Statement of the Case.................................................................................................. 2

A. Statement of the Facts............................................................................... 2

B. District Court’s Decision and Trial Proceedings.................................. 3

C. FedEx’s Arguments on Appeal................................................................ 7

Argument........................................................................................................................ 8

FedEx misstates the applicable legal standard for establishing a materially

adverse action for a retaliation claim and for awarding punitive damages.

A. Under Burlington Northern, the standard for an adverse action is whether a reasonable worker might well have been dissuaded from complaining of discrimination.................................................................. 8

B. “Egregious” conduct is not required for an award of punitive damages....................................................................................................... 12

Conclusion................................................................................................................... 14

Certificate of Compliance....................................................................................... C-1

Certificate of Service................................................................................................ C-2

Designation of District Court Documents.......................................................... C-3

TABLE OF AUTHORITIES

Cases

Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006)... 1, 2, 4, 9, passim

Ford v. Gen. Motors Corp., 305 F.3d 545 (6th Cir. 2002).......................................... 4

Hall v. Consol. Freightways Corp. of Delaware, 337 F.3d 669 (6th Cir. 2003)......... 13

Kolstad v. Am. Dental Ass’n, 527 U.S. 526 (1999).................................... 1, 2, 12, 13

Laster v. City of Kalamazoo, 746 F.3d 714 (6th Cir. 2014)........................................ 8

Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998)................................... 10

Rogers v. Henry Ford Health System, 2018 WL 3629057 (6th Cir. July 31, 2018),

pet. for reh’g filed, No. 17-1998 (Aug. 14, 2018).................................................... 11

Weber v. Infinity Broad. Corp., 2005 WL 3726303 (E.D. Mich. Dec. 14, 2005).. 13

Statutes

42 U.S.C. § 1981a(a)(1).............................................................................................. 12

42 U.S.C. § 1981a(b)(1)..................................................................................... 1, 2, 12

42 U.S.C. § 1981a(b)(3)................................................................................................ 6

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.................... 1

42 U.S.C. § 2000e-2(a)................................................................................... 1, 2, 8

42 U.S.C. § 2000e-3(a)............................................................................... 1, 2, 8, 9

Rules

Fed. R. Civ. P. 29.......................................................................................................... 1

STATEMENT OF INTEREST

Congress established the Equal Employment Opportunity Commission (“EEOC”) to interpret, administer, and enforce Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. This appeal raises two issues of concern to the EEOC. The first issue pertains to the proper standard for establishing a retaliation claim under Title VII. In its summary judgment order below, the district court erred by applying the adverse employment action standard for a discrimination claim under 42 U.S.C. § 2000e-2(a) to the plaintiff’s retaliation claim under 42 U.S.C. § 2000e-3(a), and the defendant repeats that error on appeal. The Supreme Court clarified in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006), that the retaliation standard is less onerous and prohibits any action that might dissuade a reasonable worker from making or supporting a charge of discrimination. This appeal also raises an issue concerning the proper standard for an award of punitive damages under 42 U.S.C. § 1981a(b)(1). Contrary to the defendant’s statements in its brief on appeal, “egregious” conduct is not required to support an award. See Kolstad v. Am. Dental Ass’n, 527 U.S. 526 (1999). Because of the importance of these issues, the EEOC offers its views to the Court. Fed. R. App. P. 29(a).

STATEMENT OF THE ISSUES [1]

1. The Supreme Court held in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006), that Title VII’s antiretaliation provision, 42 U.S.C. § 2000e-3(a), broadly prohibits any action that might well dissuade a reasonable employee or applicant from complaining of discrimination. Did the district court, in its summary judgment decision, and the defendant on appeal, misstate the standard by requiring that the plaintiff show a materially adverse change in the terms and conditions of her employment, which is the more onerous standard that applies to Title VII’s antidiscrimination provision, 42 U.S.C. § 2000e-2(a)?

2. The Supreme Court held in Kolstad v. American Dental Association, 527 U.S. 526 (1999), that “egregious” conduct is not required to recover punitive damages under 42 U.S.C. § 1981a(b)(1). Did the defendant misstate the standard by representing that the jury’s verdict must be set aside because FedEx did not engage in “egregious” conduct?

STATEMENT OF THE CASE

A. Statement of the Facts

FedEx Smartpost (FedEx) hired plaintiff Sheryl Hubbell in 2006 and promoted her twice in the next four years. Order, R.32, Page ID # 772. By 2010 she was a lead parcel sorter. Id. She performed well and received positive reviews. Id. In 2011, a new manager arrived and things went downhill. Order, R.32, Page ID # 773-74. In January 2013, Hubbell complained to FedEx’s human resources department that she was being mistreated because of her sex. Order, R.32, Page ID # 779. She was later demoted and replaced by a male. Order, R.32, Page ID # 777-78. In November 2013, Hubbell filed a charge alleging sex discrimination and retaliation. Id. She later filed a second charge, also alleging retaliation. Order, R.32, Page ID # 781.

In October 2014, Hubbell filed this suit alleging sex discrimination and retaliation. Order, R.32, Page ID # 782. FedEx fired her two months later, and Hubbell filed her third EEOC charge, alleging retaliatory discharge. Order, R.32, Page ID # 783-84. She amended her complaint to add a claim of retaliatory discharge. Order, R.32, Page ID # 784.

B. District Court’s Decision and Trial Proceedings

FedEx filed a motion for summary judgment, which the district court granted in part and denied in part. Order, R.32, Page ID # 773-810. The district court addressed each count of Hubbell’s complaint, which included Count I (gender discrimination, Count II (retaliation), Count III (hostile work environment), and Count IV (retaliatory termination). Order, R.32, Page ID # 791-806; Amended Complaint, R.15, Page ID # 72-92. The court granted summary judgment as to Count III (hostile work environment), but denied summary judgment as to Hubbell’s remaining three claims: Count I (gender discrimination), Count II (retaliation), and Count IV (retaliatory termination). Order, R.32, Page ID # 791-98, # 802-806.

In explaining its denial of summary judgment as to Hubbell’s Count II claim for retaliation prior to her discharge, the court applied an outdated legal standard to exclude most of Hubbell’s alleged retaliatory conduct from the court’s analysis. Relying on precedent predating Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006), the district court stated that “[t]o satisfy ‘the third element of the prima facie case [of retaliation], the adverse employment action must be materially adverse.’” Order, R.32, Page ID # 799 (quoting Ford v. Gen. Motors Corp., 305 F.3d 545, 553 (6th Cir. 2002)). A materially adverse employment action, the court said, includes a termination, a demotion with decreased pay, a loss of benefits, “‘significantly diminished material responsibilities, or other indices that might be unique to a particular situation.’” Id. (quoting Ford, 305 F.3d at 553). Applying this erroneous standard, the district court concluded that Hubbell’s disciplinary write-ups “did not result in a material loss of benefits or salary or any other harm” and that her managers’ intense monitoring and other acts did not impose a “material harm.” Order, R.32, Page ID # 799-800. However, since FedEx’s refusal to permit Hubbell to clock in and out at the same time as her co-workers did meet the standard because it resulted in decreased pay, the court ruled that Hubbell’s “retaliation claim in Count 2 survives [FedEx’s] motion for summary judgment.” Order, R.32, Page ID # 800-02.

The case went to trial. The district court allowed the jury to hear evidence of the disciplinary write-ups, monitoring, and other harassment that the court had deemed not actionable in the summary judgment ruling, presumably because that evidence, the court had noted, might “show that FedEx management bore substantial animus towards Hubbell after she filed her EEOC charge.” Order, R.32, Page ID # 801. See, e.g., Hubbell Br. at 11 (recounting Hubbell’s testimony that after she filed her EEOC charge, she was “watched more closely by management,” her “work routine was scrutinized,” and she received “write up after write up after write up”) (quoting from Trial Transcript Vol. 1, p.97, R.80, Page ID # 2903). The jury instruction for retaliation stated that the parties agreed that Hubbell had shown that she filed a complaint, that FedEx knew of it, and that “FedEx took an employment action adverse to Plaintiff Hubbell,” without specifying the adverse action. Jury Instruction p. 22, R.71, Page ID # 2622. The jury instruction further stated that the only element for the jury to decide was “whether a causal connection existed between the protected activity and the adverse employment action.” Id.

The jury was also instructed that it could award punitive damages if it determined that Hubbell had established that FedEx “engaged in . . . [a] retaliatory practice with malice or reckless indifference to Plaintiff Hubbell’s federal protected rights.” Jury Instruction p. 27, R.71, Page ID # 2627. The jury instruction explained that “malice or reckless indifference” requires only that FedEx “had knowledge that it may be acting in violation of federal law, or that Defendant FedEx was aware of the risk that its action violated federal law.” Id. Consistent with the proposed punitive damage instruction FedEx submitted, the jury instruction stated that the jury did “not need to conclude that Defendant FedEx’s conduct was egregious or outrageous . . . retaliation.” Id.; see FedEx’s Proposed Jury Instruction p.19, R.55, PageID#1496.

The jury returned a verdict in favor of FedEx on Hubbell’s discrimination claim and for Hubbell on the retaliation claim. Jury Verdict p.2, R.73, Page ID # 2639. The verdict form did not ask the jury to specify which challenged action(s) it found to be retaliatory. Id. Rather, consistent with the court’s instruction that the parties agreed that Hubbell had complained, FedEx knew of the complaint, and FedEx had taken an “employment action adverse to Plaintiff Hubbell,” the jury was asked only whether Hubbell had shown “that Defendant FedEx took adverse employment action against” her because she complained of discrimination, filed a charge, or filed a lawsuit. Id.

The jury awarded Hubbell, inter alia, $403,950 in punitive damages. Jury Verdict p.5, R.73, Page ID # 2642. The court later reduced the award to $300,000 in accord with Title VII’s statutory limit. See 42 U.S.C. § 1981a(b)(3). The district court denied FedEx’s subsequent motion for judgment as a matter of law. Order, R.90, Page ID # 3879. The court awarded attorney’s fees to Hubbell. Order, R.92, Page ID # 3900. FedEx appealed, challenging the jury’s verdict and the award of punitive damages. Notice of Appeal, R.93, Page ID # 3902. Hubbell cross appealed, challenging the amount of attorney’s fees awarded and the denial of costs. Notice of Appeal, R.105, Page ID # 4428.

C. FedEx’s Arguments on Appeal

FedEx argues on appeal that it was entitled to judgment as a matter of law on Hubbell’s retaliation claim. FedEx argues, inter alia, that the district court’s summary judgment ruling that several actions Hubbell complained of were not materially adverse necessarily limited Hubbell’s retaliation claim at trial to the time-clock restriction and her discharge. FedEx Br. at 18. FedEx then argues that those claims fail for other reasons. FedEx Br. at 19-24. In making its argument, FedEx misstates the standard for a materially adverse action, as the district court did in its summary judgment ruling. FedEx Br. at 19 (stating that the third prong of the prima facie case requires Hubbell to show a “materially adverse change in [her] terms and conditions of employment”). Misstating the standard for awarding punitive damages, FedEx also argues that the jury’s award of punitive damages must be set aside because FedEx did not engage in “egregious” conduct. FedEx Br. at 16, 25-31 (repeatedly asserting that “egregious” conduct is required).

ARGUMENT

FedEx misstates the applicable legal standard for establishing a materially adverse action for a retaliation claim and for awarding punitive damages.

A. Under Burlington Northern, the standard for an adverse action is whether a reasonable worker might well have been dissuaded from complaining of discrimination.

Both the district court’s summary judgment order and FedEx’s brief on appeal misstate the applicable standard for establishing a retaliation claim. Title VII’s antiretaliation provision, 42 U.S.C. § 2000e-3(a), makes it unlawful “for an employer to discriminate against any of his employees or applicants” for opposing an unlawful practice or participating in an activity protected by Title VII. The plaintiff must show that she experienced an adverse action because of retaliation. See Laster v. City of Kalamazoo, 746 F.3d 714, 730 (6th Cir. 2014).

In evaluating Hubbell’s retaliation claim on summary judgment and discussing whether she had shown an adverse action, the district court erred by applying the standard for a discrimination claim rather than standard for a retaliation claim. FedEx repeats that error on appeal. See FedEx Br. at 19 (relying on outdated cases to state that Hubbell was required to show a “materially adverse change in [the] terms and conditions of employment”). The standards are different, as the Supreme Court and this Court repeatedly have made clear.

Title VII’s antidiscrimination provision, 42 U.S.C. § 2000e-2(a), forbids employers from refusing to hire, or discharging, an individual, or discriminating against any individual “with respect to his compensation, terms, conditions, or privileges of employment” based on a protected trait. In contrast, Title VII’s antiretaliation provision, 42 U.S.C. § 2000e-3(a), forbids employers from “discriminat[ing] against” an individual who opposes an unlawful practice or has filed a charge, testified, assisted, or participated in a Title VII investigation or proceeding.

Prior to the Supreme Court’s decision in Burlington Northern, this circuit and others had held that the standard for establishing an adverse action under the antidiscrimination and antiretaliation provisions was the same: a plaintiff had to show that the challenged action had an adverse effect on the terms, conditions, or benefits of employment. See Burlington N., 548 U.S. at 60. In Burlington Northern, however, the Supreme Court rejected that interpretation. Focusing on the statute’s text, the Court stated that the antidiscrimination provision is limited to “actions that affect employment or alter the conditions of the workplace. No such limiting words appear in the antiretaliation provision.” Id. at 62. After reviewing the objective of the antiretaliation provision, which is to ensure access to remedial mechanisms, the Court held that “purpose reinforces what language already indicates, namely, that the antiretaliation provision, unlike the substantive provision, is not limited to discriminatory actions that affect the terms and conditions of employment.” Id. at 64. Thus, the Court concluded, the antidiscrimination and antiretaliation provisions “are not coterminous,” as “the antiretaliation provision extends beyond workplace-related or employment-related” harms. Id. at 67 (explicitly “reject[ing]” the Sixth Circuit’s view that the two provisions forbid “the same conduct”).

Having determined that the antiretaliation provision is not limited to actions affecting the terms and conditions of the workplace, the Court next addressed how harmful a retaliatory act must be in order to be actionable. The Court concluded that the antiretaliation provision broadly protects against actions that are “materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Id. at 68 (internal quotation marks and citations omitted). This “material adversity” standard screens out trivial harms, such as “petty slights” and “minor annoyances,” which are unlikely to deter victims of discrimination from complaining, from significant harms. Id. The standard focuses on the “reactions of a reasonable employee,” the Court said, because “[a]n objective standard is judicially administrable.” Id. The Court stressed that “[c]ontext matters,” as the “significance of any given act of retaliation will often depend upon the particular circumstances.” Id. at 69 (relying on Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81-82 (1998)).

Applying its newly-articulated standard to the case before it, the Supreme Court held that the jury was entitled to find that the plaintiff’s reassignment from forklift operator to track laborer was materially adverse because the latter position was “more arduous and dirtier,” less prestigious, and objectively considered a worse job, even though the positions had the same pay grade and category. Id. at 71. Likewise, the Court held that the jury reasonably found that the plaintiff’s thirty-seven day suspension without pay constituted a materially adverse action, even though she was later reimbursed. See id. at 72-73. The Court stressed that the plaintiff, and her family, had to live for thirty-seven days without a pay check, not knowing “whether or when [plaintiff] could return to work.” Id. at 72.

This Court recently confirmed in Rogers v. Henry Ford Health System that a retaliation plaintiff need not show that she “suffered an adverse employment action constituting a significant change in employment status” because this is the standard “applied to Title VII discrimination claims, [not] Title VII retaliation claims.” --- F.3d ---, 2018 WL 3629057, at *9 (6th Cir. July 31, 2018), pet. for reh’g filed, No. 17-1998 (Aug. 14, 2018). This Court confirmed that the standard for a retaliation claim—whether the challenged action “‘well might have dissuaded a reasonable worker from making or supporting a charge of discrimination’”—is “less burdensome than what a plaintiff must demonstrate for a Title VII discrimination claim.” Id.

Here, the district court ruled on summary judgment that some of the acts Hubbell challenged—including disciplinary write-ups, intense monitoring, and other harassing acts—were not actionable because they did not result in a “material loss of benefits or salary” or any “material harm.” Order, R.32, Page ID # 799-800. The jury did, however, hear evidence about these challenged actions. The EEOC takes no position on whether these actions could, or should, provide a basis for affirming the jury’s verdict if this Court agrees with FedEx’s arguments as to the time-clock restrictions and discharge. To the extent this Court considers these actions, however, this Court should apply Burlington Northern’s standard, and not the incorrect standard FedEx recites in its brief.

B. “Egregious” conduct is not required for an award of punitive damages.

FedEx also misstates in its brief the standard for awarding punitive damages under 42 U.S.C. § 1981a(b)(1). FedEx repeatedly asserts that “egregious” conduct is required. See FedEx Br. at 14, 16, 25, 26, 29, 30, 31. It is not.

The 1991 Civil Rights Act makes punitive damages available under Title VII for intentional discrimination. 42 U.S.C. § 1981a(a)(1). A plaintiff must show “that the respondent engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual.” 42 U.S.C. § 1981a(b)(1). Nearly twenty years ago, the Supreme Court held in Kolstad v. American Dental Association that § 1981a(b)(1) “does not require a showing of egregious or outrageous discrimination independent of the employer’s state of mind.” 527 U.S. 526, 535 (1999) (emphasis added). Rather, “malice” and “reckless indifference,” the Court explained, concern “the employer’s knowledge that it may be acting in violation of federal law.” Id.

The district court properly instructed the jury here on the standard for awarding punitive damages. The court told the jury that “malice or reckless indifference” required the jury to find only that FedEx “had knowledge that it may be acting in violation of federal law, or that Defendant FedEx was aware of the risk that its actions violated federal law.” Jury Instruction p. 27, R.71, page ID # 2627. Using language taken from FedEx’s own proposed jury instruction on punitive damages, the court instructed the jury that it did “not need to conclude” that “FedEx’s conduct was egregious or outrageous” to award Hubbell punitive damages. Id. (emphasis added).

FedEx cites Kolstad in its brief, FedEx Br. at 25, but then relies on an unpublished district court opinion from 2005 (which itself relies on a pre-Kolstad decision from this Court) to assert that punitive damages are usually limited to cases of “‘egregious conduct or a showing of willfulness and malice.’” FedEx Br. at 19-20 (citing Weber v. Infinity Broad. Corp., 2005 WL 3726303, at *7 (E.D. Mich. Dec. 14, 2005)). But Kolstad makes clear that “egregious” conduct is not required, as this Court has recognized. See Hall v. Consol. Freightways Corp. of Delaware, 337 F.3d 669, 673 (6th Cir. 2003) (recognizing that Kolstad rejected the “egregious” standard). Accordingly, Hubbell is not required to show that “egregious” conduct supported the jury’s award of punitive damages; she merely must point to evidence that FedEx discriminated “in the face of a perceived risk that its actions w[ould] violate federal law.” See Kolstad, 527 U.S. at 536.

CONCLUSION

This Court should apply the correct legal standards for a Title VII retaliation claim and for an award of punitive damages.

Respectfully submitted,

JAMES L. LEE

Deputy General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

ANNE NOEL OCCHIALINO

Acting Assistant General Counsel

s/Susan R. Oxford

SUSAN R. OXFORD

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., 5th Fl.

Washington, D.C. 20507

(202) 663-4791

Susan.Oxford@eeoc.gov

[1] We take no position with respect to any other issues.