INTRODUCTION

On April 8, 2016, a unanimous panel of this Court reversed the district court’s grant of summary judgment in favor of Rite Way Service, Inc. The panel held that a reasonable jury could conclude that Rite Way employee Mekeva Tennort engaged in protected opposition when, in response to her employer’s inquiries, she reported sexual misconduct by her supervisor towards her co-worker. On May 23, 2016, Rite Way filed a Petition for Rehearing En Banc asserting that: 1) the panel decision conflicts with Supreme Court and this Court’s precedent with respect to application of the “reasonable belief” test; and 2) the panel erred in considering the surrounding circumstances of Tennort’s report of her supervisor’s sexual misconduct. By order dated June 6, 2016, this Court directed the Commission to file a response to Rite Way’s petition. This response is filed pursuant to this Court’s order.

STATEMENT OF THE CASE

The Commission alleges that Rite Way violated Title VII’s antiretaliation provision when it fired Mekeva Tennort, a janitorial worker, for reporting sexual misconduct by her supervisor towards her female co-worker. The district court held that Tennort’s report was not protected opposition and disposed of the Commission’s claim on that basis. On appeal, the Commission argued that Tennort’s report was protected opposition, and a unanimous panel of this Court agreed. In its analysis, the panel examined the totality of circumstances surrounding Tennort’s report. The panel emphasized the supervisory status of the harasser, his repeated sexual misconduct, the fact that his unwelcome sexual behavior had a specific target (his female subordinate), and that her report was made in the context of Rite Way’s own investigation into his alleged sexual harassment, as supporting the conclusion that a reasonable jury could find Tennort reasonably believed her supervisor’s conduct was unlawful. Slip. op. at 10-13.

ARGUMENT

The panel decision comports fully with Supreme Court and Fifth Circuit precedent. Rite Way’s petition for rehearing en banc simply registers disagreement with the panel’s well-reasoned application of precedent to the record evidence in this case. As such, the petition fails to meet this Court’s rigorous test for en banc review. See Fifth Circuit Local Rule 35.1 (emphasizing the “extraordinary nature of petitions for en banc consideration”); Fifth Circuit I.O.P. on Petition for Rehearing En Banc (“A petition for rehearing en banc is an extraordinary procedure that is intended to bring to the attention of the entire court an error of exceptional public importance or an opinion that directly conflicts with prior Supreme Court, Fifth Circuit or state law precedent.”). Rite Way demonstrates no error by the panel, much less any error of exceptional importance warranting en banc review. Hence, this Court should reject Rite Way’s petition.

At the outset, the panel correctly observed that controlling precedent requires only that the Commission show Tennort was objectively reasonable in believing her supervisor’s sexual misconduct was unlawful. Slip op. at 1, 9. Indeed, it is long and well-settled precedent—in this Court and every other Circuit—that a plaintiff alleging retaliation by her employer need not show that the conduct she reported was an actual Title VII violation, but rather that she was objectively reasonable in believing the conduct was unlawful under Title VII. Payne v. McLemore’s Wholesale & Retail Stores, 654 F.2d 1130, 1137-39 (5th Cir. 1981) (considering and rejecting the proposition that a plaintiff must prove that the conduct he opposed was an actual violation; instead holding that a plaintiff can establish a prima facie case of retaliation if “he shows that he had a reasonable belief that the employer was engaged in unlawful employment practices”).[1]

Where the challenged conduct concerns suspected sexual harassment, the reasonable belief inquiry focuses on whether that conduct was sexual in nature, and could be reasonably viewed as unlawful. See Royal v. CCC & R Tres Arboles, L.L.C., 736 F.3d 396, 401-02 (5th Cir. 2013) (analyzing plaintiff’s report of her co-workers’ behavior towards her and concluding that a reasonable jury could find that the challenged conduct—the repeated “sniffing and hovering over a woman, by two men, in a small confined space”—was sexual in nature); Montell v. Diversified Clinical Servs., Inc., 757 F.3d 497, 504-05 (6th Cir. 2014) (holding that evidence created triable issue on plaintiff’s reasonable belief that she was reporting unlawful sexual harassment; her supervisor’s comment about “being turned on by a woman in a red dress and heels, while [plaintiff] was wearing a red dress and heels” was sexual in nature, and directed to an employee reporting to him). Moreover, objective reasonableness, for the purpose of a Title VII retaliation claim, does not require that the sexual conduct be severe or pervasive. Magyar v. St. Joseph Reg’l Med. Ctr., 544 F.3d 766, 771 (7th Cir. 2008) (“The objective reasonableness of the belief is not assessed by examining whether the conduct was persistent or severe enough to be unlawful, but merely whether it falls into the category of conduct prohibited by the statute”; explaining that “sexual harassment is a recognized species” of discrimination based on sex).

Rite Way asserts in its petition that the panel “acknowledged in its decision” that it “created a new ‘gray area’ with respect to the law on Title VII retaliation claims,” and accordingly this Court’s en banc review is necessary. Pet. Br. p. ii. This is a plain distortion of the panel’s opinion. When the panel noted a “gray area,” it was discussing the difference that the reasonable belief standard has long recognized between opposition to an actual unlawful employment practice—which is not the requisite showing under the test—and objective reasonableness in believing that unlawful conduct was occurring. Slip. op. at 9-10 (stating “the reasonable belief standard recognizes that there is some zone of conduct that falls short of an actual violation but could be reasonably perceived to violate Title VII”). “The existence of this gray area between actual violation and perceived violation,” the panel explained, “is best illustrated in cases where we have affirmed summary judgment on an employee’s discrimination claim while simultaneously reversing summary judgment on his or her opposition claim.” Id. The panel in no manner purported to create a new legal standard. Rather, as discussed in further detail below, its analysis is entirely consistent with this Court’s precedent.

In this case, the evidence reflects that Tennort saw her supervisor Willie Harris pretend to slap his female subordinate’s behind as she walked by him, and say “ooh wee.” ROA.1363; Pet. Br. p. 3 (citing same record evidence). Within two weeks of this first incident, Tennort then witnessed a second exchange between Harris and the same female subordinate, Linda Quarles. ROA.1362-63; 1434. On that occasion, August 11, 2011, in the presence of Quarles and Tennort, Harris remarked on the tightness of Quarles’ pants (“They tight, her pants are tight.”), and said, “I’m a man. I’m going to look.” ROA.1363. Quarles became visibly upset and told Harris her pants were not tight and not to look at her. Specifically, Tennort saw Quarles “pull[] her slack in her pants and hit[] the leg of her pants and sa[y], ‘If anyone else is asking about how tight my jeans are, there is going to be some trouble.’” Id. Quarles was “real upset. She started shaking her head.” Id. As Tennort saw Quarles walk off, Quarles told her “she was going to do something about it,” and later that day, Tennort learned that Quarles made a report about Harris’s conduct. ROA.1364.

On August 18, during the course of Rite Way’s internal investigation into Quarles’s allegations about Harris, Rite Way approached Tennort and questioned her about the incident. ROA 1358-59. In response, Tennort gave verbal answers and submitted a written statement recounting what she observed. Id; ROA.1434.

In analyzing Tennort’s verbal and written statements, the panel considered both the August 11 incident, and the slapping-behind incident that occurred just a week or two before, in assessing Tennort’s objective reasonableness in reporting about Harris. Evidence of the earlier incident, the panel explained, was “relevant to how [Tennort] assessed the seriousness of Harris’s later comment that he was ‘gonna look’ at Quarles’s rear end because he was a man.” Slip. op. at 12. The panel’s consideration of circumstances leading up to Tennort’s report is in full accord with this Court’s precedent.

Indeed, to determine whether an employee was objectively reasonable in believing the challenged conduct was unlawful, this Court—as a matter of course and common sense—examines the context in which the report arose. In Byers v. Dallas Morning News, Inc., 209 F.3d 419 (5th Cir. 2000), for example, the plaintiff, a white manager, complained that his black supervisor gave him discriminatorily “mediocre” performance ratings based on his race. Id. at 428. In analyzing that asserted opposition, this Court reviewed the factual basis for, and the surrounding context of, the complaint. Id. As the evidence showed that another white employee who reported to the same supervisor received good reviews, and that no black managers actually reported to the plaintiff’s supervisor, this Court held that the plaintiff was not objectively reasonable in believing his ratings resulted from race discrimination. Id. See also, e.g., Payne, 654 F.2d at 1136-37 (where plaintiff’s opposition was in the form of boycotting and picketing, examining evidence of employer’s practices preceding and surrounding the boycott to determine whether the plaintiff had an objectively reasonable basis for believing his employer was acting unlawfully).

Rite Way relies on this Court’s decision in Ackel v. National Communications, Inc., 339 F.3d 376 (5th Cir. 2003), and an Eleventh Circuit decision, Clover v. Total System Services, Inc., 176 F.3d 1346 (11th Cir. 1999) (en banc), to argue that the panel erred in considering Tennort’s early August observation of Harris’s sexual behavior. Neither Ackel nor Clover, however, supports Rite Way’s contention.

In Ackel, this Court held that the plaintiff did not engage in protected opposition because she made no report at all. 339 F. 3d at 385. This Court also held it could not, by proxy, treat her co-worker’s statements concerning the harassment experienced by the plaintiff as the plaintiff’s own protected opposition, because the co-worker was “acting on her own initiative rather than at [plaintiff]’s direction.” Id. There is nothing in this Court’s opposition clause analysis in Ackel that suggests a reasonable belief analysis cannot consider the totality of circumstances surrounding a reporting employee’s opposition activity.

Meanwhile, Clover actually supports the panel decision. Rite Way misleadingly quotes Clover as stating, “For opposition clause purposes, the relevant conduct does not include conduct that actually occurred . . . what counts is only the conduct that person opposed.” Pet. Br. p. 13 (citing and quoting Clover, 176 F. 3d at 1352). The conveniently excised portion of the quotation, however, makes plain the Eleventh Circuit’s actual holding—that in assessing objective reasonableness, the court may only consider harassment known to the reporting employee, and not harassment that occurred but was otherwise unknown to the employee. 176 F.3d at 1352. That distinction was relevant in Clover because that case concerned a victim who filed an EEOC charge alleging sexual harassment, and also the victim’s co-worker, who reported harassment towards the victim. Id. at 1349. In analyzing the co-worker’s opposition, the court explained it would only consider harassing conduct that the co-worker was aware of, not “conduct that actually occurred—or that was averred in an EEOC complaint by the alleged victim—but was unknown” to the co-worker. Id. at 1352. In that context, the court explained, “what counts is only the conduct that person opposed, which cannot be more than what she was aware of.” Id. Clover offers no support for Rite Way’s assertion that this Court can only consider what Tennort saw on August 11th, but not her observation of Harris’s sexual behavior just one or two weeks earlier. Rather, Clover supports the opposite principle—that an analysis of objective reasonableness considers all the facts known to the reporting employee concerning the practice he or she is opposing.

As for Rite Way’s discussion of retaliation cases concerning protected activity that was unknown to the employer, those analyses are immaterial to this case. See Pet. Br. p. 13. This Court’s decisions in Manning v. Chevron Chemical Co., 332 F.3d 874 (5th Cir. 2003), and Chaney v. New Orleans Public Facility Management, Inc., 179 F.3d 164 (5th Cir. 1999), stand for the proposition that an employer must be aware of the protected activity in order to have retaliated against an employee for that activity. Manning, 332 F.3d at 884; Chaney, 179 F.3d at 168-69. In neither decision did this Court engage in a reasonable belief analysis. Id. Accordingly, these cases do not support Rite Way’s contention that the panel erred with respect to analyzing Tennort’s protected opposition, particularly as it is undisputed that Rite Way was fully aware of her opposition before it fired her. [2]

Finally, Rite Way argues that the panel decision requires en banc review because the decision purportedly “breaks with well-established precedent that reports of isolated, non-extreme incidents are not protected opposition as a matter of law.” Pet. Br. pp. 7- 9 (arguing that the panel’s analysis conflicts with Clark County School District v. Breeden, 532 U.S. 268 (2001), Turner v. Baylor Richardson Medical Center, 476 F.3d 337 (5th Cir. 2007), and Satterwhite v. City of Houston, No. 14-20240, 2015 WL 877655 (5th Cir. Mar. 3, 2015)).

As already discussed, however, the record in this case does not concern an isolated incident—Tennort observed her new supervisor, within two weeks of his start date, direct sexual comments and behavior to his female subordinate on two separate occasions. See supra p. 6; slip op. at 12 (noting that “Harris had been Tennort’s and Quarles’s supervisor for less than a week” when he began to act sexually towards Quarles). In any event, Rite Way is simply incorrect to assert that opposition based on a one-time incident or comment can never—as a matter of law—create a triable issue as to the plaintiff’s objective reasonableness in reporting the conduct. See Pet. Br. pp. 6-10 (citing cases). Rather, critical to the analysis, as the name of the reasonable belief test reflects, is evidence of reasonableness. The decisions cited by Rite Way, like Breeden, simply hold—on factual records readily distinguishable from this case—that the plaintiffs could not have reasonably believed that the conduct at issue was unlawful.

In Breeden, for example, the Supreme Court analyzed a plaintiff’s complaint of a male supervisor’s comment made during a workplace meeting. 532 U.S. at 269-71. The comment itself did not originate from the plaintiff’s male supervisor or co-worker, nor was it directed at the plaintiff or any other female employee, but instead was found in a report being reviewed at a meeting. Id. at 269. During that meeting, the plaintiff’s supervisor read the comment out-loud from the report because he did not know what it meant. Id. In response, a male co-worker said he would explain the meaning of the comment later, and both men chuckled. Id.

Importantly, the Supreme Court in Breeden did not categorically hold that a reasonable belief could never be premised on a one-time interaction or incident. See id. at 269-71. The Court instead held that the evidence of the event at issue in that case could not reasonably be believed to violate Title VII. Id. at 270-71. Certainly, the facts in Breeden are distinguishable from the conduct at issue here—Harris made repeated, unwelcome, sexual overtures, targeted at a female subordinate under his direct supervision, during which he not only pretended to slap her behind but also asserted he was entitled to look at her derriere because he was a man.

Furthermore, the other “reasonable belief” cases cited by Rite Way were decided based on the overall absence of evidence showing a reasonable belief on the part of the plaintiff, not on the number of incidents per se. See, e.g., Turner, 476 F.3d at 342, 348 (holding that plaintiff’s request that her supervisor refrain from using the phrase “ghetto children” was not protected opposition, where evidence showed that supervisor used that phrase to discuss her own volunteer work with inner-city children); Satterwhite, 2015 WL 877655, at *1, 3 (holding that plaintiff lacked sufficient basis to believe that one-time comment at work meeting referring to Hitler was unlawful; evidence showed that the comment was made by a co-worker, was not directed at any specific individual, and soon after the meeting, but before the plaintiff’s complaint, the co-worker apologized).

Similarly, the out-of-circuit decisions cited by Rite Way simply hold that the plaintiff lacked an objectively reasonable belief based on the specific (and distinguishable) facts at issue, or otherwise provide no support for its position. See O’Leary v. Accretive Health, Inc., 657 F.3d 625, 628, 631-32 (7th Cir. 2011) (plaintiff was not objectively reasonable in believing a female supervisor’s comment about her sexual prowess was unlawful, where plaintiff was not present to hear this comment, only learned of it second-hand, and was expressly told that the male employee to whom the comment had been directed did not feel harassed); Collazo v. Bristol-Myers Squibb Mfg., Inc., 617 F.3d 39, 48 (1st Cir. 2010) (holding that co-worker’s report of sexual harassment concerning his colleague-victim was protected opposition; expressly contrasting the evidence with the facts at issue in Breeden); Brannum v. Mo. Dep’t of Corr., 518 F.3d 542, 545, 549 (8th Cir. 2008) (no protected opposition where the challenged conduct concerned a supervisor’s comment to two employees (a male and female) that the female employee did not require training because women do a better job than men and are more nurturing); Little v. United Techs., 103 F.3d 956, 958, 960 (11th Cir. 1997) (holding plaintiff’s statement was not protected opposition, where challenged conduct was one racially discriminatory comment by a co-worker, and plaintiff’s opposition took the form of informing defendant of the comment eight months later in a general team meeting with other staff present); Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1179-80 (2d Cir. 1996) (stating that co-worker’s statement was not an isolated event and holding that sufficient evidence supported jury verdict that plaintiff acted reasonably in believing she was the victim of a hostile work environment based on sex); Silver v. KCA, Inc., 586 F.2d 138, 140, 142 (9th Cir. 1978) (no protected opposition where plaintiff’s co-worker made a one-time reference to her black trainee as jungle bunny, which she later confronted that co-worker about, who apologized); Theriault v. Dollar Gen., 336 F. App’x 172, at *2 (3d Cir. 2009) (in an unpublished decision, with no factual context concerning the conduct that plaintiff allegedly opposed, holding that plaintiff did not engage in protected opposition).

Rite Way is partially correct in stating that the Fourth Circuit held in Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264 (4th Cir. 2015) (en banc), that an objectively reasonable belief could be established on the basis of an “isolated incident if that harassment is physically threatening or humiliating,” but Boyer-Liberto does not support Rite Way. Id. at 284. The court expressly noted that since the facts of the case involved precisely such an isolated but serious incident, it need not consider developing a standard for isolated comments of a less serious or offensive nature. Id. at 284 n.6. The Fourth Circuit did state, however, that where a complaint concerned an isolated but less offensive incident, Breeden does not preclude a standard that would assess objective reasonableness by asking whether such conduct, if repeated, could create a hostile work environment. Id.

CONCLUSION

As the panel’s analysis is consistent with controlling precedent from the Supreme Court and this Court, this Court should reject Rite Way’s petition for rehearing en banc.

Respectfully submitted,

P. DAVID LOPEZ

General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

LORRAINE C. DAVIS

Assistant General Counsel

S/Christine J. Back___________________

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[1] Every Circuit has adopted a reasonable belief test formulation. See Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 282 (4th Cir. 2015) (en banc); Yazdian v. ConMed Endoscopic Techs., Inc., 793 F.3d 634, 645 (6th Cir. 2015); Grosdidier v. Broad. Bd. of Govs., Chairman, 709 F.3d 19, 24 (D.C. Cir. 2013); Collazo v. Bristol-Myers Squibb Mfg., Inc., 617 F.3d 39, 48 (1st Cir. 2010); Brannum v. Missouri Dep’t of Corr., 518 F.3d 542, 547 (8th Cir. 2008); Magyar v. St. Joseph Reg’l Med. Ctr., 544 F.3d 766, 771 (7th Cir. 2008); Moore v. City of Phila., 461 F.3d 331, 341 (3d. Cir. 2006); Hertz v. Luzenac Am., Inc., 370 F.3d 1014, 1015-16 (10th Cir. 2004); Lipphardt v. Durango Steakhouse of Brandon, Inc., 267 F.3d 1183, 1187-88 (11th Cir. 2001); Reed v. A.W. Lawrence & Co., Inc., 95 F.3d 1170, 1178-79 (2d. Cir. 1996); Trent v. Valley Elec. Ass’n Inc., 41 F.3d 524, 526 (9th Cir. 1994).

[2] It is undisputed in this case that Rite Way knew of Tennort’s protected opposition before it fired her. Rite Way concedes in its own fact recitation that Rite Way manager Alexander McCullom sought out Tennort to interview her and obtain statements about Harris’s sexual behavior on August 18, 2011. See Pet. Br. p. 4. Rite Way then fired Tennort approximately five weeks after her report, on September 26, 2011. ROA.831, ¶ 12. The Commission’s retaliation claim alleges that Rite Way fired Tennort because of that August 18th report.

TABLE OF CONTENTS

TABLE OF AUTHORITIES

INTRODUCTION

STATEMENT OF THE CASE

ARGUMENT

CONCLUSION

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE