P. David Lopez

General Counsel

Carolyn L. Wheeler

Acting Associate

General Counsel

Jennifer S. Goldstein

Acting Assistant

General Counsel

Anne Noel Occhialino

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

131 M St., NE, Room 5SW20L

Washington, DC 20507

Annenoel.Occhialino@eeoc.gov

(202) 663-4724

Table of Authorities

The Equal Employment Opportunity Commission (EEOC) is the federal agency established by Congress to interpret, administer, and enforce Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and other federal anti-discrimination statutes. This appeal presents an important issue concerning the proper standard for establishing a prima facie case of retaliation under Title VII. Specifically, this appeal raises the issue of whether the district court erred in holding that only “ultimate employment decisions” are actionable under Title VII’s anti-retaliation provision, 42 U.S.C. § 2000e-3(a), given the Supreme Court’s rejection of that standard in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006). A court’s choice of the correct legal standard affects the EEOC and private individuals bringing Title VII suits. Accordingly, the EEOC offers its views to the Court pursuant to Rule 29(a) of the Federal Rules of Appellate Procedure.

The Supreme Court held in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006), that Title VII’s anti-retaliation provision, 42 U.S.C. § 2000e-3(a), covers any employer action that might dissuade a reasonable employee or applicant from complaining of discrimination. Did the district court err in holding that only “ultimate employment decisions” constitute adverse actions under the anti-retaliation provision?¹

In 2000, Plaintiff Lillie Wheat began working as a guard at the Florida Parishes Juvenile Detention Center, which is operated by Defendant Florida Parishes Juvenile Justice Commission. ROA.683. She earned favorable reviews. ROA.683. In 2009, Wheat took leave for back surgery. ROA.643. While she was out on medical leave, the defendant fired her. ROA.684. After Wheat filed a lawsuit under the Family and Medical Leave Act (FMLA), 29 U.S.C. §§ 2601, et seq., the defendant reinstated her. ROA.684. When Wheat returned to work on March 8, 2011, the defendant initially assigned her to janitorial duties. ROA.684, ROA.688. The defendant later transferred Wheat from working with male juveniles to working with female juveniles. ROA.688.

On November 14, 2011, a female juvenile bit Wheat.² ROA.684. Concerned that the juvenile might have AIDS or hepatitis, Wheat requested the juvenile’s medical records. ROA.684. The defendant refused to provide the records, citing the juvenile’s medical privacy. ROA.684, ROA.685.

On November 22, 2011, Wheat filed an “Unusual Occurrence Report” asserting that she had been harassed by a different female juvenile. ROA.684, ROA.567-569 (report). Specifically, Wheat complained that the twelve-year old juvenile invaded her personal space, stared at her, sang sexually suggestive songs, and made Wheat feel invaded and violated. ROA.684, ROA.569. Soon after filing the report, Wheat complained that the juvenile also “‘sniffed’” her, touched her, “‘flashed her,’” and “further misbehaved with the intention of causing Wheat to touch her.” ROA.684. Wheat requested a transfer so she could avoid the harassing juvenile, but the defendant refused to transfer her. ROA.688; ROA.512.

On January 3, 2012, Wheat had another altercation with a different juvenile, which led to her January 19, 2012, termination. ROA.688.

Wheat subsequently filed a Title VII suit alleging sex discrimination and retaliation for having complained of sexual harassment by an inmate. ROA.15 (Compl. ¶¶ 39-40). She also alleged that the defendant violated the FMLA, 29 U.S.C. § 2615(a)(2)-(b)(1), by discharging or discriminating against her for opposing a practice made unlawful by the statute and by “interfer[ing] with her FMLA protected right by discriminating against [her] for having opposed a practice made unlawful by the FMLA.” ROA.14 (Compl. ¶¶ 34-35). The defendant filed a motion for summary judgment as to all claims. ROA.263. Wheat filed a response asserting that she had raised a genuine issue of material fact as to her FMLA retaliation and Title VII discrimination claims. ROA.512.³ Wheat listed ten adverse actions the defendant took against her following her March 8, 2011, reinstatement: (1) being initially assigned to janitorial duties; (2) being transferred to work with females; (3) being bitten by a female juvenile; (4) being denied medical information about the juvenile who bit her; (5) being denied supervisor support in situations with difficult juveniles; (6) being sexually harassed by a female juvenile; (7) being denied a request for reassignment away from the harassing juvenile; (8) being denied support of on-the-scene staff in physical confrontations with juveniles on two occasions; (9) being denied a timely performance evaluation; and (10) being denied a 4% pay increase that her evaluation showed she was qualified for. ROA.512. Wheat did not delineate which adverse actions went to which claim (FMLA or Title VII). ROA.512.

The district court granted the defendant’s motion for summary judgment. The court analyzed the FMLA and Title VII retaliation claims together. ROA.687-ROA693. The court stated that in order to establish a prima facie case of retaliation under either statute, a plaintiff must show: (1) protected activity; (2) adverse employment action; and (3) causal connection. ROA.687. According to the district court, “the Fifth Circuit has held that only ‘ultimate employment decisions, such as hiring, granting leave, discharging, promoting, and compensating, satisfy the “adverse employment action” element of a prima facie case of retaliation.’” ROA.688 (quoting Hunt v. Rapides Healthcare Sys., LLC, 277 F.3d 757, 769 (5th Cir. 2001)). The district court added that “an employer’s action may constitute an adverse employment action if it ‘makes the job objectively worse.’” ROA.689 (quoting Hunt, 277 F.3d at 770). Emphasizing that courts use an “objective standard,” the court added that “[t]he plaintiff’s subjective preference is irrelevant.” ROA.689 (citing Cefalu v. Tangipahoa Parish Sch. Bd., No. 12-1380, 2013 WL 5329808 (E.D. La. Sept. 20, 2013)). Thus, the district court reasoned, when a plaintiff fails to produce evidence “‘of a loss in compensation, duties, or benefits, no adverse employment action exists.’” ROA.689 (quoting Mitchell v. Snow, 326 F. App’x 852, 855 (5th Cir. 2009)).

The district court understood Wheat to be asserting FMLA and Title VII retaliation claims as to her discharge and ten other adverse actions. ROA.689. Applying the “ultimate employment decision” standard, the district court held that none of the ten pre-termination actions Wheat challenged constituted “adverse employment actions.” ROA.689. Specifically, the court held that Wheat had “offered no evidence showing that working with female juveniles rather than males made the job objectively worse” or that she had been assigned to janitorial duties “for any significant length of time.” ROA.689. The court also held that Wheat had not, and could not, “show that denying medical records on the grounds of privacy altered the terms of her employment.” ROA.689. As for the lack of supervisor support, the court said, Wheat failed to make anything but “conclusory statements.” ROA.689. Finally, the court said, Wheat failed to show “that the slight delay in her performance evaluation objectively altered her employment.” ROA.690. The court did not specifically address Wheat’s claim that the denial of her raise constituted an adverse action.

The court went on to hold that Wheat had failed to show a factual question as to whether her termination was a pretext for retaliation, and the court granted summary judgment on that claim. ROA.689-ROA.693. The court also granted summary judgment on Wheat’s hostile work environment claim, holding that even if a prison could be liable for the acts of juveniles, the twelve-year old’s harassment was neither severe nor pervasive under the circumstances and that, even if it were, the defendant was not liable for it. ROA.663-ROA.696.

The district court applied an erroneous legal standard in evaluating Wheat’s retaliation claims.

The district court erred in analyzing Wheat’s retaliation claims, which she brought under Title VII and the FMLA. Title VII’s anti-retaliation 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.⁴ To establish a prima facie case of retaliation under either statute, a plaintiff must show: (1) she engaged in protected activity; (2) she experienced an adverse action; and (3) a causal link. See Stewart v. Miss. Transp. Com’n, 586 F.3d 321, 331 (5th Cir. 2009) (Title VII case); McArdle v. Dell Prods., L.P., 293 F. App’x 331, 336 (5th Cir. 2008) (FMLA case). This Court applies Title VII’s adverse action analysis to FMLA retaliation claims. McArdle, 293 F. App’x at 337.

In this case, the district court focused on the second prong of the prima facie case in evaluating Wheat’s retaliation claims, holding that only “ultimate employment decisions” satisfy the adverse action requirement. ROA.688. The court then concluded that Wheat had failed to establish a prima facie case of retaliation under either Title VII or the FMLA because the actions she challenged did not satisfy the ultimate employment decision standard. ROA.688-ROA.689. The district court erred, as the court applied a plainly incorrect legal standard.

To be sure, at one time this Court interpreted Title VII’s anti-retaliation provision as applying only to “ultimate employment decisions,” such as hiring, granting leave, discharge, promotion, and compensation. Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir. 1997). The Supreme Court, however, explicitly rejected the “ultimate employment decision” standard in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 68 (2006), as this Court has recognized.⁵

In Burlington Northern, the Supreme Court granted certiorari to resolve a circuit split over whether Title VII’s anti-retaliation provision covers only those acts affecting the terms and conditions of employment and over how harmful the adverse action must be. Id. at 57. The Court first pointed out the textual differences between the anti-discrimination provision (42 U.S.C. § 2000e-2(a)), which is limited to “[a]ctions that affect employment or alter the conditions of the workplace,” and the anti-retaliation provision (42 U.S.C. § 2000e-3(a)), which is not so limited. Burlington N., 548 U.S. at 62. After reviewing the objectives of the anti-retaliation provision, the Court concluded 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. In other words, the Court held that the “anti-retaliation provision extends beyond workplace-related or employment-related retaliatory acts and harm.” Id. at 67. The Court “therefore reject[ed] the standards applied in the Courts of Appeals that have treated the anti-retaliation provision as forbidding the same conduct prohibited by the antidiscrimination provision and that have limited actionable retaliation to so-called ‘ultimate employment decisions.’” Id. at 67.

Having determined that the anti-retaliation provision is not limited to actions affecting the terms and conditions of the workplace, the Supreme Court next turned to the question of what level of harm is required. Id. The Court held that “a plaintiff must show that a reasonable employee would have found the challenged action 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 omitted). The Court explained that the adversity must be “material” because “petty slights” and “minor annoyances” are unlikely to deter victims of discrimination from complaining. Id. The standard focuses on the “reactions of a reasonable employee,” the Court said, because “[a]n objective standard is judicially administrable.” Id. at 68. The Court was careful, however, to “phrase the standard in general terms,” stressing that “the significance of any given act of retaliation will often depend upon the particular circumstances. Context matters.” Id. at 69 (relying on Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 81-82 (1998)). Expounding on the importance of context, the Court explained that “a legal standard that speaks in general terms rather than specific prohibited acts is preferable, for an act that would be immaterial in some situations is material in others.” Burlington N., 548 U.S. at 69 (internal quotation marks omitted).

Applying its newly-articulated standard to the facts before it, the Court held that a “reassignment of job duties” could be a materially adverse action, depending upon the circumstances. Id. at 71 (internal quotation marks and citation omitted). The Court also held that evidence supported the jury’s finding that transferring the plaintiff from forklift operator to track laborer was materially adverse because the latter position was “more arduous,” “dirtier,” less prestigious, and objectively considered a worse job, even though the position had the same pay grade and job category. Id. (internal quotation marks omitted). The Court also held that suspending the plaintiff without pay for 37 days—even though the lost pay was later reimbursed—constituted a materially adverse action because it could have deterred a reasonable employee from filing a charge. Id. at 71-73.

Thus, Burlington Northern clearly abrogated this Court’s restrictive “ultimate employment action” standard for retaliation claims, as this Court has recognized. See, e.g., Aryain v. Wal-Mart Stores Texas LP, 534 F.3d 473, 484 n.9 (5th Cir. 2008) (in Title VII case, recognizing that in Burlington Northern, “the Supreme Court abrogated our earlier approach[,] which required” an ultimate employment decision); McArdle, 293 F. App’x at 337 (in FMLA case, stating that in Burlington Northern “the Court rejected the standards previously employed by several circuits, including this one” for a retaliatory adverse action).⁶

In coming to a contrary conclusion, the district court made two errors. First, the district court cited to Hunt, 277 F.3d at 769, for the proposition that only “ultimate employment decisions” satisfy the adverse action element of a prima facie case of retaliation. ROA.688. Hunt preceded Burlington Northern by five years, however, and was abrogated by the Supreme Court’s decision. The district court made a second error when it quoted Mitchell, 326 F. App’x at 855, for the proposition that a retaliatory adverse action requires an “‘objective showing of a loss in compensation, duties, or benefits.’” ROA.689. While this Court made this statement in Mitchell, it was in the context of analyzing the plaintiff’s discrimination claim. Mitchell, 326 F. App’x at 855. In fact, in Mitchell this Court explicitly recognized that the Burlington Northern standard for retaliation claims is broader than the discrimination standard, requiring only that the challenged action “might well have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Id. at 855, 856 (internal quotation marks omitted). Similarly, the district court erred in relying on Cefalu, No. 12-1380, 2013 WL 5329808, for the “ultimate employment decision standard” because Cefalu was a discrimination case, not a retaliation case.

Accordingly, the district court erred in requiring Wheat to show an “ultimate employment decision.” The district court further erred in requiring that the challenged actions “alter the terms of [Wheat’s] employment” or “alter . . . her employment.” ROA.689-ROA.690 (holding that Wheat failed to show that the denial of “medical records on the grounds of privacy altered the terms of her employment” or that “the slight delay in her performance evaluation objectively altered her employment”) (emphasis added). As discussed, Burlington Northern rejected both the “ultimate employment decision” standard and the standard limiting

the anti-retaliation provision to only actions affecting the terms and conditions of employment; rather, the Court held, any action that would dissuade a reasonable employee from complaining of discrimination is actionable.

The district court further erred in holding that only actions that make the job “objectively worse” are actionable and that a “plaintiff’s subjective preference is irrelevant.” ROA.689. To be sure, in Burlington Northern the Supreme Court held that the materially adverse action standard is “objective.” 548 U.S. at 68. But the Court also emphasized that “context matters” and that “the materiality of the challenged action” must be determined based on “the perspective of a reasonable person in the plaintiff’s position.” Id. at 69-70 (emphasis added). For instance, the Court explained, “a schedule change in an employee’s work schedule [that] may make little different to many workers[] but . . . matter[s] enormously to a young mother with school-age children” could be a materially adverse action. Id. at 69.

Given Burlington Northern’s focus on the view of a reasonable person in the plaintiff’s position, the EEOC submits that—contrary to the district court’s holding below—the materially adverse action standard does not render a plaintiff’s preferences irrelevant when assessing material adversity, so long as the employer’s action in disregard of those preferences would have a chilling effect on a reasonable person in the plaintiff’s position. This Court has recognized as much, as this Court’s application of Burlington Northern properly has focused on whether the challenged act would deter a reasonable employee in the particular plaintiff’s position from complaining of discrimination. See Aryain, 534 F.3d at 485 (holding that the plaintiff’s transfer from cashier to sales associate in the infant department would not “dissuade a reasonable employee in her circumstances from making or supporting a discrimination charge”) (emphasis added). Accordingly, although this Court held pre-Burlington Northern that transferring a single mother to a night shift position that does not allow her to care for her children is not an adverse action, Hunt, 277 F.3d at 761, 769, such a transfer could be a materially adverse action under Burlington Northern, even if the night shift was not “objectively worse” than the day shift.

Thus, in this case, there can be no doubt but that the district court applied an incorrect legal standard in evaluating Wheat’s retaliation claim.

The EEOC does not take a position here about the application of the proper legal standard to the ten pre-termination actions Wheat challenged. The EEOC notes, however, that this Court has recognized that after Burlington Northern, whether a challenged action is materially adverse may raise a jury question, unless the action is petty or trivial. See McArdle, 293 F. App’x at 337. Remand for consideration under the correct standard therefore may be appropriate.

In applying Burlington Northern, this Court has held that the denial of a pay raise typically satisfies the Burlington Northern standard, as it did under even the more stringent “ultimate employment decision” standard this Court previously used.⁷ See McArdle, 293 F. App’x at 337-38 (holding that under Burlington Northern “a jury could certainly conclude that the potential loss of $20,000 in annual compensation was materially adverse”); Fierros v. Texas Dep’t of Health, 274 F.3d 187, 194 (5th Cir. 2001) (in pre-Burlington Northern case, stating that “the denial of a pay increase can be an ‘ultimate employment decision’ actionable under Title VII’s anti-retaliation provision” and holding that denial of $57-per-month raise was more than “de minimis” where the plaintiff made less than $21,000/year), overruled on other grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003). Similarly, this Court has held that the deprivation of ten days of pay qualifies as a materially adverse action. Pryor v. Wolfe, 196 F. App’x 260, 263 (5th Cir. 2006) (per curiam) (denying motion to dismiss and stating that “deprivation of [an employee’s] earned compensation would almost certainly dissuade a reasonable worker from making or supporting a charge of discrimination”) (internal quotation marks omitted). Further, this Court has held that a jury could find a materially adverse action where a supervisor urged the plaintiff to drop his EEO complaint, said no one would testify in his favor, and threatened him if he proceeded with his complaint. Fallon v. Potter, 277 F. App’x 422, 428-29 (5th Cir. 2008).

This Court has also recognized that a lateral transfer or reassignment of job duties can be a materially adverse action, depending upon the circumstances. See Vicknair v. La. Dep’t of Public Safety & Corr., 555 F. App’x 325, 331 (5th Cir. 2014) (recognizing that a lateral reassignment can be a materially adverse action but holding it was not in this case because it was not accompanied by a loss in pay, benefits, prestige, or responsibility); Harrison v. Corrections Corp. of America, 476 F. App’x 40, 45 (5th Cir. 2012) (per curiam) (recognizing that a lateral transfer could be a materially adverse action but holding that the plaintiff’s transfer was not because it did not diminish his promotion opportunities or his pay). Being put on paid leave also could be a materially adverse action. McCoy v. City of Shreveport, 492 F.3d 551, 560-61 (5th Cir. 2007).

In contrast, this Court has held that conduct that is trivial or insignificant fails to raise a jury question as to material adversity. For instance, this Court held recently that being cursed at is not a materially adverse action. Spencer v. Schmidt Elec. Co., No. 13-20282, 2014 WL 3824339, at *5 (August 5, 2014). Nor is receiving a written warning for ridiculing a co-worker, where the plaintiff admits making the comment. Mendoza v. Helicopter, 548 F. App’x 127, 131 (5th Cir. 2013). A few days delay in processing a travel voucher also is not a materially adverse action. Hernandez v. Johnson, 514 F. App’x 492, 498 (5th Cir. 2013).

Accordingly, the district court should have analyzed Wheat’s retaliation claims under the proper standard, using this Court’s developed precedent as to “material adversity” to determine whether Wheat experienced an act that would dissuade a reasonable employee from complaining of discrimination.

For the foregoing reasons, the EEOC submits that the district court applied an erroneous legal standard in determining whether Wheat established a prima facie case of retaliation under Title VII and the FMLA.

Respectfully submitted,

P. David Lopez

General Counsel

Carolyn L. Wheeler

Acting Associate

General Counsel

Jennifer S. Goldstein

Acting Assistant

General Counsel

s/ Anne Noel Occhialino

Anne Noel Occhialino

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

131 M St., NE, Room 5SW20L

Washington, DC 20507

Annenoel.Occhialino@eeoc.gov

(202) 663-4724

September 11, 2014

Certificate of Compliance with Rule 32

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1 This Court applies the Title VII “adverse action” standard to anti-retaliation claims brought under the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2615. Here, the plaintiff brought retaliation claims under Title VII and the FMLA, meaning that the district court’s error in assessing Wheat’s Title VII claim extended to her FMLA claim. Because the EEOC is not charged with interpreting the FMLA, however, this brief focuses on Title VII.

3 Wheat’s response referred to her Title VII “race” discrimination claim, but the only Title VII violations asserted in Wheat’s complaint were for sex discrimination and retaliation. See ROA.512 (SJ response) (referring to her “FMLA retaliation” and “race discrimination” claims); ROA.15 (Compl. ¶¶ 39-40 (alleging Title VII sex discrimination and retaliation).

4 The FMLA’s anti-retaliation provision makes it unlawful for “any employer to discharge or in any other manner discriminate against any individual for opposing” an unlawful practice or for “any person to discharge or in any other manner discriminate against any individual” who “has filed any charge” or instituted any proceedings under the statute, or who has given any information or testified as to any inquiries or proceedings. 29 U.S.C. § 2615(a)(2)-(b).

6 Although this Court has continued to articulate the prima facie case as requiring an “adverse employment action,” see, e.g., Aryain, 534 F.3d at 484, this is an incorrect articulation of the standard. The Supreme Court held unequivocally in Burlington Northern that a materially adverse action does not have to concern an employment action. See Burlington N., 548 U.S. at 63 (“An employer can effectively retaliate against an employee by taking actions not directly related to his employment or by causing him harm outside the workplace.”).

7 The EEOC disagrees with this Court’s suggestion in Murray v. La. Div. of Admin. Office of Planning & Budget, 439 F. App’x 349, 351 n.2 (5th Cir. 2011), that the denial of a $1,500 bonus may not be a materially adverse action; in the EEOC’s view, the denial of a bonus of that size would almost always suffice to raise at least a jury question as to whether it would dissuade a reasonable employee from complaining of discrimination.