IN THE UNITED STATES COURT OF APPEALS
FOR THE AMES CIRCUIT
____________________________________________
DOCKET NO. 04-689
____________________________________________
DIANA RIVERA,
PLAINTIFF-APPELLANT
v.
BERRYMAN ACADEMY,
DEFENDANT-APPELLEE
____________________________________________
REPLY BRIEF FOR THE PLAINTIFF-APPELLANT,
DIANA RIVERA
____________________________________________
Counsel of Record:
JASON VOLLBRACHT
1679 MASSACHUSETTS AVENUE
CAMBRIDGE, MA 02138
(617) 642-2350
Counsel for Plaintiff-Appellant:
BRYCE CALLAHAN
ANDREW COOPER
JORDAN HELLER
JOSHUA HURWIT
NATHAN KITCHENS
John Hart Ely Memorial Team
TABLE OF CONTENTS
TABLE OF AUTHORITIES ....................................................................................... ii
ARGUMENT ................................................................................................................1
I.
DR. RIVERA PRESENTED AN ISSUE OF MATERIAL FACT AS
TO WHETHER HER UNWANTED REASSIGNMENT WAS AN
ADVERSE EMPLOYMENT ACTION. ..........................................................1
A. Section 2000e-3(a) Supports a Definition of Adverse Employment
Action That Covers the Harm Dr. Rivera Suffered. ...................................1
1. Appellee Misinterprets the Text of Section 2000e-3(a) in an
Attempt to Restrict Its Scope. ...............................................................1
2. The Purpose of the Anti-Retaliation Provision Supports a
Flexible Approach to the Adverse Employment Action Inquiry. .........3
B. Dr. Rivera’s Unwanted Reassignment Was Adverse Because It
Caused a Setback to Her Career..................................................................5
1. Removing Dr. Rivera from Her Area of Interest Is Actionable. ...........5
2. Berryman Removed Dr. Rivera from Her Entire Area of
Expertise. ..............................................................................................6
3. The Record Provides Sufficient Evidence of Future Career
Damage to Dr. Rivera. ..........................................................................6
II.
DR. RIVERA PRESENTED AN ISSUE OF MATERIAL FACT AS
TO WHETHER SHE ENGAGED IN PROTECTED ACTIVITY...................8
A. Section 2000e-3(a) Supports Dr. Rivera’s Third-Party Retaliation
Claim. ..........................................................................................................8
B. Dr. Rivera’s Actions in Assisting Her Husband’s Charge Are
Protected Under the Participation Clause. ..................................................9
1. Dr. Rivera Assisted and Participated in Her Husband’s Formal
EEOC Proceeding. ................................................................................9
2. Dr. Rivera’s Actions Were Directly Tied to Her Husband’s
Formal Proceeding. .............................................................................10
C. Dr. Rivera’s Opposition Conduct Constitutes Protected Activity. ...........12
CONCLUSION ...........................................................................................................14
i
TABLE OF AUTHORITIES
CASES
Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304 (6th Cir. 1989)............ 9
Bryson v. Chicago State University, 96 F.3d 912 (7th Cir. 1996) ................................ 7
Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) .......................................... 1
Burns v. United States, 501 U.S. 129 (1991) ................................................................ 8
Clover v. Total Sys. Servs., Inc., 176 F.3d 1346 (11th Cir. 1999) ............................. 10
DiIenno v. Goodwill Indus. of Mid-Eastern Pa., 162 F.3d 235 (3d Cir. 1998) ........ 4, 5
Doe v. DeKalb Counry Sch. Dist., 145 F.3d 1441 (11th Cir. 1998) ............................. 6
Dollis v. Rubin, 77 F.3d 777 (5th Cir. 1995) ................................................................ 2
EEOC v. Crown Zellerbach Corp., 720 F.2d 1008 (9th Cir. 1983) ............................ 12
Faragher v. City of Boca Raton, 524 U.S. 775 (1998).................................................. 2
Felix v. Sun Microsystems, Inc., No. JMF-03-1304, 2004 WL 911303 (D. Md.
April 12, 2004) ........................................................................................................ 13
Furnco Constr. Co. v. Waters, 438 U.S. 567 (1978) ................................................. 3, 4
Galabya v. New York City Bd. of Educ., 202 F.3d 636 (2d Cir. 2000) ................... 6, 7
Hernandez v. Spacelabs Med. Inc., 343 F.3d 1107 (9th Cir. 2003) ............................ 14
Hillig v. Rumsfeld, 381 F.3d 1028 (10th Cir. 2004)..................................................... 2
Holt v. JTM Indus., Inc., 89 F.3d 1224 (5th Cir. 1996) .............................................. 10
Hudson v. Norfolk S. Ry. Co., 209 F. Supp. 2d 1301 (N.D. Ga. 2001) ..................... 10
Jones v. Sch. Dist. of Phila., 198 F.3d 403 (3d Cir. 1999) ........................................... 5
Knox v. Indiana, 93 F.3d 1327 (7th Cir. 1996)............................................................. 4
McDonnell v. Cisneros, 84 F.3d 256 (7th Cir. 1996) ............................................... 1, 8
Merritt v. Dillard Paper Co., 120 F.3d 1181 (11th Cir. 1997) ...................................... 3
Page v. Bolger, 645 F.2d 227 (4th Cir. 1981) ............................................................... 2
Payne v. McLemore’s Wholesale & Retail Stores, 654 F.2d 1130 (5th Cir.
1981) ....................................................................................................................... 13
Robinson v. Shell Oil Co., 519 U.S. 337 (1997) ............................................ 5, 8, 9, 11
Rodriguez v. Board of Education of Eastchester Union Free School District,
620 F.2d 362 (2d Cir. 1980) ..................................................................................... 6
Smith v. Columbus Metro. Hous. Auth., 443 F. Supp. 61 (S.D. Ohio 1977) ............. 10
Sumner v. U.S. Postal Serv., 899 F.2d 203 (2d Cir. 1990) ......................................... 12
United States v. Ron Pair Enters., Inc., 489 U.S. 235 (1989). ...................................... 9
ii
United Steelworkers v. Weber, 443 U.S. 193 (1979) ................................................. 13
Vasconcelos v. Meese, 907 F.2d 111 (9th Cir. 1990) ................................................. 10
Von Gunten v. Maryland, 243 F.3d 858 (4th Cir. 2001) .............................................. 2
White v. Burlington N. & Santa Fe Ry. Co., 364 F.3d 789 (6th Cir. 2004) ................. 3
STATUTES
42 U.S.C. § 2000e-2(a) (2000)...................................................................................... 1
42 U.S.C. § 2000e-3(a) (2000)............................................................................. passim
iii
ARGUMENT
I.
DR. RIVERA PRESENTED AN ISSUE OF MATERIAL FACT AS TO
WHETHER HER UNWANTED REASSIGNMENT WAS AN ADVERSE
EMPLOYMENT ACTION.
A.
Section 2000e-3(a) Supports a Definition of Adverse Employment
Action That Covers the Harm Dr. Rivera Suffered.
1.
Appellee Misinterprets the Text of Section 2000e-3(a) in an
Attempt to Restrict Its Scope.
The language of the anti-retaliation provision is broad, providing that an
employer must not “discriminate against” an employee for engaging in protected
activity. Civil Rights Act of 1964 § 704(a), 42 U.S.C. § 2000e-3(a) (2000). Appellee
improperly uses a general employment discrimination provision, Section 2000e2(a)(1), to restrict the definition of adverse employment action under the antiretaliation provision. (See Appellee’s Br. 8-9) First, the language of the two sections
differs: the anti-retaliation provision has none of the qualifiers contained in Section
2000e-2(a)(1). See §§ 2000e-2(a)(1), 2000e-3(a). Second, the anti-retaliation
provision has a different function than Section 2000e-2(a)(1) and thus “may
intentionally be broader, since it is obvious that effective retaliation … need not take
the form of a job action.” McDonnell v. Cisneros, 84 F.3d 256, 259 (7th Cir. 1996).
Appellee continues its out-of-context attack on the anti-retaliation provision by using
Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), to apply the term “tangible
employment action” to the adverse action definition. (See Appellee’s Br. 9) But
Ellerth undermines Appellee’s narrow interpretation. Ellerth specifically includes an
“undesirable reassignment” as a type of tangible employment action – precisely the
harm suffered by Dr. Rivera. Ellerth, 524 U.S. at 765. Moreover, as the Supreme
1
Court noted in Faragher v. City of Boca Raton, 524 U.S. 775 (1998), a companion
case decided on the same day as Ellerth, liability under Section 2000e-2(a)(1) “is not
limited to economic or tangible discrimination.” Id. at 786 (internal quotations
omitted). Thus, Section 2000e-2(a)(1) cannot be used to limit adverse actions to
“economic” or “tangible” harms. See, e.g., Hillig v. Rumsfeld, 381 F.3d 1028, 1031
(10th Cir. 2004) (holding Ellerth imposes no restrictions on the anti-retaliation
provision). Ultimately, Appellee cannot use Section 2000e-2(a)(1) or Ellerth to
support either standard it proposes – the ultimate employment decision standard or its
“narrow intermediate” standard. (Appellee’s Br. 8)
Appellee cannot provide statutory support for the ultimate employment
decision standard because none exists. (See Appellant’s Br. 12-14) It was only in
1995 that the Fifth Circuit first applied the ultimate employment decision standard to
a retaliation claim in Dollis v. Rubin, 77 F.3d 777 (5th Cir. 1995). Dollis supported
the ultimate employment standard by citing to only one case, Page v. Bolger, 645
F.2d 227 (4th Cir. 1981). See Dollis, 77 F.3d at 781-82. The fundamental concern of
Page – that “the pretext inquiry [under § 2000e-16] must focus on the employment
decision itself, not the racial component of a selection committee” – is not applicable
in Dr. Rivera’s case, where this Court is only focused on the employment decision
she suffered. Von Gunten v. Maryland, 243 F.3d 858, 866 n.3 (4th Cir. 2001). Even
the standard’s circuit of origin has explicitly rejected the applicability of Page to
retaliation claims. See id.
2
2.
The Purpose of the Anti-Retaliation Provision Supports a
Flexible Approach to the Adverse Employment Action Inquiry.
The purpose of Section 2000e-3(a) is obvious: to prevent employers from
retaliating against employees who engage in protected activity under Title VII.
Appellee overlooks this goal and produces a series of unsubstantiated policy
arguments to support its narrow reading. (See Appellee’s Br. 10) Appellee’s
“floodgates” metaphor is inapt. “[C]aseload considerations do not provide a valid
basis for questioning whether the statutory language at issue … accurately reflects
congressional intent.” Merritt v. Dillard Paper Co., 120 F.3d 1181, 1189 (11th Cir.
1997). Appellee minimizes the burdens that plaintiffs must overcome to reach a jury.
(See Appellant’s Br. 11-12) Moreover, Appellee presents no evidence that a broad
adverse action definition leads to unmanageable caseloads. See White v. Burlington
N. & Santa Fe Ry. Co., 364 F.3d 789, 813 (6th Cir. 2004) (Clay, J., concurring)
(“[T]here are no indications that … broad rules … have opened unmanageable
floodgates.”) Appellee’s foray into statistics is meaningless. (See Appellee’s Br. 11)
The fact that millions of employees have suffered adverse actions tells this Court
nothing about how many employees could establish protected activity and causation
and are therefore truly eligible to bring a claim under Section 2000e-3(a).
Appellee’s argument that Title VII is meant to protect managerial autonomy
misconstrues the statute. (Appellee’s Br. 12) The only managerial actions that
Section 2000e-3(a) restricts are conscious decisions by employers to retaliate illegally
against employees. Appellee selectively quotes Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978), to suggest that courts are “less competent than employers to
restructure business practices.” (Appellee’s Br. 12); Furnco, 438 U.S. at 578. But in
3
this same sentence of Furnco, the Supreme Court makes clear that courts should
change business practices “when mandated to do so by Congress.” Id.
Section 2000e-3(a) is a clear mandate. Since Title VII’s anti-discrimination
provisions depend on private enforcement, employers must be prevented from
deterring employees from exercising their rights. (Appellant’s Br. 10) Appellee
admits that its proposed standards give employers “leeway” to retaliate. (Appellee’s
Br. 13) Because the forms of retaliation “are as varied as the human imagination will
permit,” Knox v. Indiana, 93 F.3d 1327, 1334 (7th Cir. 1996), such “leeway” directly
contravenes Congress’s clear mandate. A restrictive adverse employment action
definition supports retaliation in the aggregate because employers will target
employees in different ways.
Employers often know how to punish employees in ways that cannot be
categorically prohibited. See DiIenno v. Goodwill Indus. of Mid-Eastern Pa., 162
F.3d 235, 236 (3d Cir. 1998) (finding adverse action where an employer transferred
an employee to a lateral position that the employer knew she was unable to perform).
The under-inclusive approaches advanced by Appellee and the district court will
decide cases like Dr. Rivera’s on the threshold matter of adversity and obscure the
true inquiry of Section 2000e-3(a): whether an employer acted with a retaliatory
motive. The district court’s grant of summary judgment for Berryman on the issue of
adversity denies Dr. Rivera the opportunity to prove that Berryman intentionally
retaliated against her. This Court should adopt a fact-specific standard that addresses
retaliation by giving plaintiffs like Dr. Rivera “unfettered access” to the “statutory
4
remedial mechanisms” of Title VII. (See Appellant’s Br. 14-16); Robinson v. Shell
Oil Co., 519 U.S. 337, 346 (1997).
B.
Dr. Rivera’s Unwanted Reassignment Was Adverse Because It Caused
a Setback to Her Career.
1.
Removing Dr. Rivera from Her Area of Interest Is Actionable.
Reassigning Dr. Rivera to second grade removes her from the field of
specialized cultural education she deliberately pursued. This harm is actionable. See,
e.g., Jones v. Sch. Dist. of Phila., 198 F.3d 403, 412 (3d Cir. 1999).1 Appellee
overlooks the traditional objective test used in retaliation cases, which “take[s] a
plaintiff’s job-related attributes into account.” DiIenno, 162 F.3d at 236. Appellee’s
claim that Dr. Rivera’s interest in cultural education is a subjective preference,
(Appellee’s Br. 17), disregards her chosen career path. Dr. Rivera decided to leave
her previous elementary school position to earn advanced degrees in history and
chose to work at Berryman because of the opportunity to pursue cultural education.
(R.15-16) This interest culminated in her development of the “Cultures of the
Americas” course. (R.15-16) Careers are about choice, and the reassignment
undercuts Dr. Rivera’s goals. Because “what constitutes retaliation depends on what
a person in the plaintiff's position would reasonably understand,” Dr. Rivera has
provided sufficient evidence to create an issue of material fact. DiIenno, 162 F.3d at
236 (emphasis added).
1
Appellee misconstrues the facts of Jones, suggesting that the adversity of denying
Jones a position teaching physics was rooted in the simultaneous shift to a “difficult
campus.” (See Appellee’s Br. 17) However, the court made clear that these were two
distinct adverse actions – first, he was denied teaching physics at one school, and
second, he was subsequently transferred to another campus. Jones, 198 F.3d at 412.
Therefore, Jones shows that removal from one’s area of interest is actionable as a
distinct harm.
5
2.
Berryman Removed Dr. Rivera from Her Entire Area of
Expertise.
Appellee’s contention that Dr. Rivera was shifted from one “subset” of her
expertise to another is not supported by the Record. (Appellee’s Br. 19) By focusing
myopically on grade level, Appellee dismisses the nature of Dr. Rivera’s expertise:
she has made a career as a specialist, not a generalist. She left generalist teaching to
earn advanced degrees in history and to develop specialization in cultural education.
(R.15-16) The common thread of all her activities is a deep commitment to teaching
about international cultures. Berryman has made clear that the social studies
component of the second-grade curriculum is limited to basic skills and that
introducing international cultures to second graders is not “educationally
appropriate.” (R.11) Dr. Rivera is qualified to teach second grade, but to compel her
to teach it through reassignment obviates her professional commitment of the last
fifteen years. (R.15-17) Thus, Dr. Rivera is in an equivalently adverse position as
Dr. Rodriguez in Rodriguez v. Board of Education of Eastchester Union Free School
District, 620 F.2d 362 (2d Cir. 1980), with her advanced degrees2 and years of
experience rendered “utterly useless.” Id. at 366.
3.
The Record Provides Sufficient Evidence of Future Career
Damage to Dr. Rivera.
Dr. Rivera presented ample evidence that the reassignment impedes her future
career advancement. She has built a portfolio based on cultural education: she has
2
Other courts have emphasized the importance of advanced degrees in measuring
expertise. See Galabya v. New York City Bd. of Educ., 202 F.3d 636, 641 n.3 (2d
Cir. 2000); Doe v. DeKalb County Sch. Dist., 145 F.3d 1441, 1453 (11th Cir. 1998)
(“Unlike the plaintiff in Rodriguez, Doe’s transfer does not substantially obviate a
specialized education.”).
6
published in a professional journal and has repeatedly presented to her peers. (R.1617) These opportunities are directly attributable to her experience teaching “Cultures
of the Americas.” (R.16-17) It is a reasonable inference that becoming a generalist
second-grade teacher will deny her opportunities to bolster her professional
reputation. In addition, Dr. Rivera’s previous position was as communicative as the
title withdrawn in Bryson v. Chicago State University, 96 F.3d 912 (7th Cir. 1996).
(Appellant’s Br. 25); Bryson, 96 F.3d at 916. Holding herself out as a member of the
Berryman social studies department expresses her credentials in a way that she cannot
convey as non-departmental generalist. (R.9) These claims are not speculative but
are part of a true “setback” to her career. Galabya, 202 F.3d at 641.
Ironically, it is Appellee that engages in speculation, suggesting that teaching
second grade may provide Dr. Rivera with new “material.” (Appellee’s Br. 22) The
potential for a new and distinct career specialty does not allay the harm caused by
derailing Dr. Rivera from the career path she has already developed. Instead,
Appellee’s suppositions present their own issues of material fact and demonstrate that
Dr. Rivera’s claims provide sufficient evidence to defeat summary judgment. Only
by assuming that Dr. Rivera’s claims cannot be proven and only by taking inferences
in its own favor is Appellee able to construct plausible reasons why Dr. Rivera did not
meet her burden of production. (Appellee’s Br. 17-18, 22-23) Dr. Rivera has
provided evidence that the reassignment will remove her from her area of interest and
expertise and hinder her career development. These claims raise an issue of material
fact as to whether the reassignment was adverse.
7
II.
DR. RIVERA PRESENTED AN ISSUE OF MATERIAL FACT AS TO
WHETHER SHE ENGAGED IN PROTECTED ACTIVITY.
A.
Section 2000e-3(a) Supports Dr. Rivera’s Third-Party Retaliation
Claim.
Because Section 2000e-3(a) lacks a plain and unambiguous meaning
regarding third-party coverage, this Court should look at its purpose and broader
context and determine that Dr. Rivera has a third-party retaliation claim. Appellee
wants to prevent this Court from looking to the purpose and broader context of the
anti-retaliation provision by restricting the analysis to the word “he.” (See Appellee’s
Br. 38) Appellee’s analysis rests on a restrictive reading of the methodology in
Robinson that overlooks the Supreme Court’s emphasis on the lack of language
limiting Section 2000e-3(a). See Robinson, 519 U.S. at 341-42. The statute contains
no qualifying language excluding coverage of third parties – nothing in the statute
distinguishes third-party claims from direct complaints. Furthermore, the “pertinent
legislative history” evinces no congressional intent to bar such claims. See Cisneros,
84 F.3d at 262 (holding that covering third-party retaliation under Section 2000e-3(a)
“does no great violence to the statutory language”). Appellee misconstrues
Congress’s silence as an express denial of third-party coverage. Cf. Burns v. United
States, 501 U.S. 129, 136 (1991) (“An inference drawn from congressional silence
certainly cannot be credited when it is contrary to all other textual and contextual
evidence of congressional intent.”). Interpreting the provision to exclude third-party
claims would leave a “gaping hole” in Section 2000e-3(a)’s protection. Cisneros, 84
F.3d at 262.
Appellee does not contest that the broader context of Section 2000e-3(a)
favors protection of third parties. Excluding third-party retaliation claims provides
8
perverse incentives for employers to circumvent Section 2000e-3(a)’s protection by
discriminating against the close relatives of employees who exercise their Title VII
rights. (See Appellant’s Br. 38-40) Such retaliation undermines the purpose of the
anti-retaliation provision: “[m]aintaining unfettered access to statutory remedial
mechanisms.” Robinson, 519 U.S. at 346. The ambiguous statutory language must
be interpreted to cover Dr. Rivera’s claim to ensure that “the statutory scheme is
coherent and consistent.” United States v. Ron Pair Enters., Inc., 489 U.S. 235, 240
(1989).
B.
Dr. Rivera’s Actions in Assisting Her Husband’s Charge Are Protected
Under the Participation Clause.
1.
Dr. Rivera Assisted and Participated in Her Husband’s Formal
EEOC Proceeding.
Dr. Rivera’s actions in furthering her husband’s EEOC complaint constitute
assistance and participation “in any manner” in a “proceeding” under Section 2000e3(a). § 2000e-3(a). The “proceeding” in question is her husband’s EEOC charge.
Appellee ignores the existence of this “proceeding” and instead argues that Dr. Rivera
failed to engage the machinery of Title VII because she did not conduct a statutorilydefined “investigation.” (Appellee’s Br. 27-28) Appellee’s attempts to establish
narrower standards for what constitutes an “investigation” are irrelevant and unrelated
to the question of whether Dr. Rivera assisted or participated “in any manner” in her
husband’s claim. Mr. Rivera’s filing of formal charges with the EEOC already
constituted a “proceeding” that satisfies the “investigation, proceeding, or hearing
under this subchapter” clause of Section 2000e-3(a). Booker v. Brown & Williamson
Tobacco Co., 879 F.2d 1304, 1313 (6th Cir. 1989) (filing formal EEOC charges is a
9
“proceeding” under Section 2000e-3(a)). It is well settled that an employee’s
participation or assistance in a coworker’s claim can constitute protected activity.
See Clover v. Total Sys. Servs., Inc., 176 F.3d 1346, 1353 (11th Cir. 1999)
(protecting third-party participation in the context of EEOC charges).
In dismissing Dr. Rivera’s fact-finding as “gossiping,” Appellee fails to
recognize that Dr. Rivera’s actions were in the context of a pending, formal charge.
(Appellee’s Br. 29) Appellee cites cases in which protected activity was not found
precisely because there was no EEOC claim in which anyone could have participated.
(See Appellee’s Br. 27-28); Vasconcelos v. Meese, 907 F.2d 111, 113 (9th Cir. 1990)
(finding no protection because charges were made outside of the context of the
EEOC); Hudson v. Norfolk S. Ry. Co., 209 F. Supp. 2d 1301, 1306-08 (N.D. Ga.
2001) (finding no protection for coworker conversations outside the context of EEOC
charges).
2.
Dr. Rivera’s Actions Were Directly Tied to Her Husband’s
Formal Proceeding.
The remaining question is whether Dr. Rivera had to do anything “formal[ly]”
in order to participate in her husband’s proceeding. (R.24) The district court and
Appellee cite no authority for any view that formal conduct is mandated by the
statute. The statute’s language contravenes this view (Appellant’s Br. 41), and the
relevant case law supports Dr. Rivera. See Smith v. Columbus Metro. Hous. Auth.,
443 F. Supp. 61, 64 (S.D. Ohio 1977) (protecting informal participation because any
information a third-party employee provides can be compelled or impeached in a
future proceeding); see also Holt v. JTM Indus., Inc., 89 F.3d 1224, 1227 (5th Cir.
1996) (omitting “formal” from the “in any manner” analysis while finding it likely
10
that relatives “who are at risk for retaliation will have participated in some manner in
a coworker’s charge”) (emphasis in original).
Appellee does not contest the district court’s finding that Dr. Rivera raised an
issue of fact as to whether she “might have provided some assistance.” (R.24
(emphasis added)) Dr. Rivera “thoroughly” discussed the complaint with her
husband and elicited information concerning his pending complaint from “several of
her colleagues who had better opportunities to observe [her] husband’s professional
interactions with Mr. Lowell.” (R.18) Dr. Rivera’s conduct was directly related to
uncovering information about the underlying merits of the EEOC charge and could
have identified witnesses had Mr. Rivera’s claim proceeded to trial. Her assistance
was particularly important since Mr. Rivera was not present at the school to uncover
information on his own. The nexus between Dr. Rivera’s actions and the formal
charge is tight. Dr. Rivera’s actions are clearly distinguishable from those Appellee
characterizes as “general support.” (Appellee’s Br. 30-31)
In light of Appellee’s view that Section 2000e-3(a) bars third-party retaliation
claims, Appellee’s reading of the participation clause creates incentives for employers
to fire close relatives of employees who file EEOC complaints. Employers will target
unprotected relatives before the claim gets to a point where the relatives can
“participate” or “assist” the complainant “in any manner.” See Robinson, 519 U.S. at
346 (cautioning against interpreting Title VII to “provide a perverse incentive for
employers to fire employees who might bring Title VII claims”).
11
C.
Dr. Rivera’s Opposition Conduct Constitutes Protected Activity.
Dr. Rivera’s statements to her supervisor opposing Appellee’s unlawful
discrimination constitute protected conduct under Section 2000e-3(a). Appellee relies
on EEOC v. Crown Zellerbach Corp., 720 F.2d 1008 (9th Cir. 1983), to assert that Dr.
Rivera failed to identify a specific discriminatory practice. (Appellee’s Br. 33-34);
Crown Zellerbach, 720 F.2d at 1012. However, the Crown Zellerbach court found
opposition even though the employees alleged only general “discrimination” and
“racism” and did not mention a specific practice. Id. The court held that the unlawful
employment practices at issue could be inferred from context. Id. Dr. Rivera easily
meets this standard because she commented on the disrespectful treatment of her
husband, complained about the lack of minorities at Berryman, and elicited
information from her colleagues, all in the context of her support for her husband’s
EEOC claim. (R.12, 18-19) Moreover, her comments were directed to Mr. Lowell –
her supervisor, the very person accused of discriminatory action in Mr. Rivera’s
EEOC complaint, and the person “principally responsible” for managing Berryman’s
response. (R.2, 17-18, 12) Dr. Rivera’s statements communicate her opposition to
Berryman’s discrimination more explicitly than the generic claims of
“discrimination” in Crown Zellerbach. Most importantly, by supporting the position
in her husband’s claim, she directly opposed a specific practice made illegal under
Title VII: Berryman’s alleged illegal discrimination against Mr. Rivera. See Crown
Zellerbach, 720 F.2d at 1013; Sumner v. U.S. Postal Serv., 899 F.2d 203, 209 (2d Cir.
1990) (designating “support of co-workers who have filed formal charges” as
protected opposition activity).
12
Appellee’s claim that Dr. Rivera lacked a reasonable good faith belief that
Berryman’s discriminatory practices violated Title VII also ignores her statement
supporting Mr. Rivera’s EEOC position. But by relying on Felix v. Sun
Microsystems, Inc., No. JMF-03-1304, 2004 WL 911303 (D. Md. April 12, 2004),
Appellee highlights the difference between that case’s unsuccessful plaintiff, who the
court suggested might have established opposition conduct had she mentioned her
husband’s EEOC claim, and Dr. Rivera, who did exactly that. (Appellee’s Br. 35);
Felix, 2004 WL 911303, at *19. Because Dr. Rivera opposed employment
discrimination alleged in an EEOC complaint, Appellee cannot credibly challenge her
reasonable good faith belief that the conduct she opposed was illegal under Title VII.
See Payne v. McLemore’s Wholesale & Retail Stores, 654 F.2d 1130, 1137-38 (5th
Cir. 1981) (protecting opposition based on reasonable, rather than correct, belief that
the conduct opposed was an unlawful employment practice). Dr. Rivera’s statements
characterizing Berryman as a difficult place to be a minority and noting its lack of
diversity further support her claim. (R.18-19) Appellee is incorrect that “a charge of
ethnic imbalance cannot be held to refer to an illegal employment practice.”
(Appellee’s Br. 36) Courts can consider racial imbalance as evidence of a Title VII
violation. See United Steelworkers v. Weber, 443 U.S. 193, 205 n.5 (1979).
Faced with Mr. Lowell’s concession that Dr. Rivera supported her husband’s
EEOC complaint (R.12), Appellee urges this Court to erase this fact from the Record.
(Appellee’s Br. 2) Appellee asks this Court to ignore Mr. Lowell’s own statement
that “while [Mr. Rivera’s] complaint was pending at the EEOC, [Dr. Rivera] raised
the matter with me, and in that conversation, she expressed support for her husband’s
13
position.” (R.12) Appellee’s insistence that Dr. Rivera’s statement was unrelated to
her husband’s EEOC claim strains reason. (Appellee’s Br. 36) According to basic
syntax, “the matter” Mr. Lowell referred to and that Dr. Rivera raised is Mr. Rivera’s
EEOC complaint. (R.12)
Appellee is not at liberty to misconstrue the Record simply because the
statement comes from its own witness. This Court must review the record as a whole
and draw all reasonable inferences in favor of Dr. Rivera. See Hernandez v.
Spacelabs Med. Inc., 343 F.3d 1107, 1112 (9th Cir. 2003). Appellee’s attempt to
purge any reference to the position Mr. Rivera took in his EEOC complaint from Dr.
Rivera’s “support for her husband’s position” defies logic and inverts the law. (R.12)
Appellee draws every inference in favor of Berryman instead of in favor of Dr.
Rivera. See Hernandez, 343 F.3d at 1112. Dr. Rivera has raised an issue of material
fact.
CONCLUSION
For the foregoing reasons, Dr. Rivera respectfully requests that this Court
reverse the district court’s summary judgment order.
Respectfully submitted,
___________________________
Jason Vollbracht
Counsel of Record
Counsel for Plaintiff-Appellant
Bryce Callahan
Andrew Cooper
Jordan Heller
Joshua Hurwit
Nathan Kitchens
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STATUTORY APPENDIX
42 U.S.C. § 2000e-2(a) (2000):
(a) Employer practices
It shall be an unlawful employment practice for an employer-(1) 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, because of such individual’s race, color, religion, sex, or
national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any
way which would deprive or tend to deprive any individual of employment
opportunities or otherwise adversely affect his status as an employee, because of such
individual’s race, color, religion, sex, or national origin.
42 U.S.C. § 2000e-3(a) (2000):
(a) Discrimination for making charges, testifying, assisting, or participating in
enforcement proceedings
It shall be an unlawful employment practice for an employer to discriminate against
any of his employees or applicants for employment, for an employment agency, or
joint labor-management committee controlling apprenticeship or other training or
retraining, including on-the-job training programs, to discriminate against any
individual, or for a labor organization to discriminate against any member thereof or
applicant for membership, because he has opposed any practice made an unlawful
employment practice by this subchapter, or because he has made a charge, testified,
assisted, or participated in any manner in an investigation, proceeding, or hearing
under this subchapter.
15