Mattern v. Eastman Kodak Co

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 2, 1997
• Docket: 95-40836
• Status: Published

Opinion

REVISED United States Court of Appeals,

Fifth Circuit.

No. 95-40836.

Jean G. MATTERN, Plaintiff-Appellee,

v.

EASTMAN KODAK COMPANY and Eastman Chemical Company, d/b/a Texas Eastman Company, Defendants-Appellants.

Jan. 16, 1997.

Appeal from the United States District Court for the Eastern District of Texas.

Before GARWOOD, BARKSDALE and DENNIS, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

The linchpin for this appeal is what constitutes an "ultimate

employment decision" as required for a retaliation claim under

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a).

Eastman Kodak Company and Eastman Chemical Company (collectively

"Eastman") contest the denial of a FED.R.CIV.P. 50 motion for

judgment as a matter of law, a jury having found that Eastman had retaliated against Jean Mattern, its employee, but also having made

two findings adverse to Mattern that limit her retaliation claim:

first, that, although Mattern had been sexually harassed by her

coworkers, Eastman did not fail to take prompt remedial action

after it knew or should have known of the harassment; and second,

that Mattern was not constructively discharged from her employment

with Eastman. Mattern does not cross-appeal these adverse

findings. We REVERSE and RENDER.

I. Mattern, an Eastman employee from late 1989 to mid-1993, was

enrolled in Eastman's lengthy mechanic's apprenticeship program,

which has two components: on-the-job training and related

instruction (classroom). The program requires successful

completion of 14 "review cycles" which evaluate both components.

Satisfactory performance during the review cycles results in

regular pay increases. In addition, the program includes periodic

"Major Skills Tests". An apprentice who receives either three

unsatisfactory "review cycle" assessments or fails a skills test

three times is subject to removal from the program.

Mattern filed a Title VII charge with the EEOC on March 11,

1993, claiming sexual harassment by members of her on-the-job

training crew. She alleged that two senior mechanics, Godwin and

Roberts, had sexually harassed her and created a hostile work

environment. She further alleged that her supervisors knew of, and

condoned, the harassment.

Earlier that month, Eastman had learned of, and began

investigating, this charge. As a result, on March 11, it allowed

Godwin to retire early; no action was taken against Roberts.

Eastman then transferred Mattern to another crew in the department.

Because of the transfer, Mattern was working under a different

immediate supervisor, but her departmental supervisors remained the

same. Mattern encountered difficulties which she equated, among

other things, with Title VII proscribed retaliation. She resigned

that July.

That November, Mattern filed this action against Eastman,

alleging, inter alia, that it had a policy and practice of approving and condoning a hostile work environment; had

constructively discharged her; and had retaliated, and allowed its

employees to retaliate, against her for reporting the harassment to

the EEOC and for filing this action. The parties consented to

trial before a magistrate judge.

A jury found that, although Mattern had been harassed by

coworkers, Eastman had taken prompt remedial action; therefore,

the hostile work environment sexual harassment claim failed.

Likewise, it did not find constructive discharge or intentional

infliction of emotional distress. (Mattern does not cross-appeal.)

On the other hand, it found retaliation and awarded $50,000 in

damages.

II.

Eastman raises several issues. But first, we re-examine

Mattern's jurisdictional challenge, premised on the timeliness vel

non of Eastman's notice of appeal. See, e.g., Mosley v. Cozby, 813

F.2d 659, 660 (5th Cir.1987). This challenge has already been

rejected by a motions panel.

A.

The verdict was returned on March 24, 1995. A week later, the

magistrate judge entered a "Judgment" against Eastman on the

retaliation claim, and, a week after that, April 7, Eastman moved

under Rule 50 for judgment or for new trial, contending that the

retaliation evidence was legally insufficient. Five days later,

the magistrate judge entered a second "Judgment", dismissing

Mattern's harassment and emotional distress claims; a week later,

Mattern moved for judgment or for new trial. Two weeks later, she moved for attorney's fees as the prevailing party.

The court denied Eastman's Rule 50 motion on September 12.

Three days later, it granted attorney's fees to Mattern, but denied

her Rule 50 motion. That October 10, Eastman appealed the March 30

and April 12 "Judgments" and the September 12 and 15 orders. A

"Final Judgment" was entered on October 27; an "Amended Final

Judgment", on November 2.

Mattern's early April 1996 motion to dismiss this appeal for

lack of appellate jurisdiction, asserting that Eastman's notice was

untimely, was repeated almost verbatim in her brief filed later in

April while the motion was pending and approximately two weeks

after Eastman's response to the motion. The motion was denied in

early May, a week in advance of Eastman's reply brief, which,

understandably, did not respond again to Mattern's jurisdictional

challenge.

Of course, a panel hearing the merits of an appeal may review

a motions panel ruling, and overturn it where necessary. United

States v. Bear Marine Services, 696 F.2d 1117, 1119 (5th Cir.1983).

And, the merits panel must be especially vigilant where, as here,

the issue is one of jurisdiction. Id. at 1120; see also

Commodities Futures Trading Comm'n v. Preferred Capital Inv. Co.,

664 F.2d 1316, 1320-21 (5th Cir.1982). On a parallel track,

Mattern's motion appears to be driven, in part, by the dispute over

the timeliness of her attorney's fees motion, an aspect of which

might require deciding which of the several "Judgments" was the

"judgment" for purposes of FED.R.APP.P. 54(d)(2)(B) (unless

otherwise provided by statute, motion for award of attorney's fees must be filed within 14 days of entry of judgment).

As noted infra, we do not reach this fees-timeliness issue.

Furthermore, we agree with the motions panel that the notice of

appeal was timely. See, e.g., FED.R.APP.P. 4(a)(2) (notice of

appeal filed after announcement of decision or order but before

entry of judgment treated as filed on date of and after entry of

judgment) and FED.R.APP.P. 4(a)(4) (timely motion under Rule 50(b),

among others, tolls time for appeal until entry of order disposing

of last such motion outstanding); FED.R.CIV.P. 50(b).

B.

At issue are the legal sufficiency of the retaliation

evidence; evidence of pre-EEOC charge conduct by Mattern ruled

inadmissible under FED.R.EVID. 412; and the attorney's fees award.

Because the retaliation evidence was insufficient, we need not

reach the other issues.

It goes without saying that the standard of review for Rule

50 motions for judgment is found in Boeing Co. v. Shipman, 411 F.2d

365 (5th Cir.1969) (en banc):

[T]he Court should consider all of the evidence—not just that evidence which supports the non-mover's case—but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting [judgment as a matter of law] is proper.

Boeing, 411 F.2d at 374. To apply this standard, we look, of

course, to the prerequisites for proving retaliation.

Title VII provides in relevant part that "[i]t shall be an

unlawful employment practice for an employer to discriminate

against any of his employees ... because he has made a charge ... under this subchapter." 42 U.S.C. § 2000e-3(a). A retaliation

claim has three elements: (1) the employee engaged in activity

protected by Title VII; (2) the employer took adverse employment

action against the employee; and (3) a causal connection exists

between that protected activity and the adverse employment action.

E.g., Shirley v. Chrysler First, Inc., 970 F.2d 39, 42 (5th

Cir.1992). Eastman disputes the last two elements. We turn first

to whether there was an "adverse employment action".

Basically, Mattern's retaliation proof is of five types. (In

addition, Mattern testified that she was required to climb

scaffolding in a fire protection suit that was too large, which she

thought was unsafe; and that a telephone message was not given to

her.) The special interrogatories did not require the jury to

identify a basis, or bases, relied on in finding retaliation.

First, on the day Eastman brought disciplinary proceedings

against Godwin, Mattern told her supervisor, Drennan, that she was

ill, and that it was work-related. Because it was work-related,

Drennan instructed her to report the illness to Eastman's medical

department. Instead, Mattern went home, opting to take a day of

vacation. Eastman then sent two of her supervisors, Drennan and

Holstead (one of the supervisors named in Mattern's EEOC charge),

to Mattern's house to instruct her to return to Eastman medical if

her illness was work-related. Sending supervisors to an employee's

home under such circumstances was highly unusual, if not

unprecedented.

Second, Mattern was reprimanded for not being at her work

station approximately three weeks later, March 29, when her supervisors were looking for her. At the time, she was at

Eastman's Human Resources Department discussing the hostility she

was perceiving at Eastman.

Third, Mattern's co-workers became hostile to her after Godwin

departed. Mattern testified that they would not say "hello", and

would mutter "accidents happen"; that one supervisor (Holstead)

told her he would fire her; and that her locker was broken into

and some of her tools stolen. Mattern claimed that Eastman

management knew of, but did nothing about, this hostility.

Fourth, Mattern became ill as a result of her anxiety over

this situation. Her doctor felt this was attributable to the

hostility at Eastman. He telephoned Eastman to report his

concerns, but Eastman did not respond.

Fifth, Mattern's work was reviewed more negatively after her

March EEOC charge, causing her to miss a pay increase, and

therefore, in mid-May, to be on "final warning" of discharge from

the apprenticeship program (she had missed another pay increase

earlier in the apprenticeship). The poor evaluations were being

completed and approved by supervisors who had praised her work in

the past.

Many of the negative reviews, including the missed pay

increase, resulted from Mattern's apparent inability to rebuild and

realign centrifugal pumps. She also failed two Major Skills Tests,

scoring only 19% and 47%. If she were to miss another pay

increase, or fail another Major Skills Test, she would be

recommended for termination. But, Mattern resigned her

apprenticeship before her next evaluation and next test. Before resigning, Mattern was assigned more work with pumps,

including working one-on-one with a mechanic, Humble, in order to

improve and evaluate her skills. They worked on one pump in

particular, which they both testified was rebuilt correctly.

Drennan, however, received a report from a mechanic, Roberts, whom

Mattern accuses of bias, that the pump failed because of a

reassembly defect. (As noted, Roberts was one of the co-workers

Mattern named in the March EEOC charge.) Drennan documented the

pump failure, and continued training Mattern.

Drennan instructed Mattern to attend a training session with

another mechanic, Thomas. He told Mattern to realign a pump, which

was resting on a wooden pallet, while he observed. After

approximately three hours, she could not complete the task. A pump

resting on a wooden pallet, as opposed to a more solid base, is

more difficult to realign. In Mattern's view, it is reasonable to

infer that the pump was deliberately placed on the pallet in order

to scuttle her efforts to realign it and continue to the next

segment of the apprenticeship program.

As noted, the jury found against Mattern on her sexual

harassment and constructive discharge claims. As also noted, those

adverse findings limit the bases for finding retaliation.

Accordingly, the retaliation claim must be viewed in the context of

these two jury findings adverse to Mattern. Along this line, after

the court instructed the jury on the sexual harassment and

constructive termination claims, it instructed on the retaliation

claim. Concerning sexual harassment, the court instructed:

Now in regard to Mrs. Mattern's Title VII claim of sexual harassment, Title VII ... prohibits employers from subjecting their employees to sexual harassment. This includes unwelcome sexual advances, requests for sexual favors, other verbal or physical conduct of a sexual nature where the conduct has the purpose or effect of unreasonably interfering with the individual's work performance or creating an intimidating, hostile or offensive working environment.

In order for Eastman to be liable to Mrs. Mattern for the actions of Eastman's employees, she must prove four things: first, that she was subjected to unwelcome harassment in the form of sexual advances, requests for sexual favors or other verbal or physical conduct of a sexual nature; secondly, that the harassment was based on her sex; and third, that the harassment affected a term, condition or privilege of her employment; and finally, Eastman either knew or should have known that Mrs. Mattern was being sexually harassed and failed to take prompt reasonable measures to stop the harassment.

For sexual harassment to be actionable, it must be sufficiently severe or persuasive [sic] to alter the conditions of her employment or create an abusive working environment. The conduct must be objectively severe or persuasive [sic] that such a reasonable person would find the conduct sexually hostile or abusive. Also, the employee must have subjectively considered the environment to be sexually abusive.

(Emphasis added.)

For constructive termination, the jury was instructed that

Mattern "must prove that Eastman constructively discharged or

terminated her in violation of Title VII by proving that Eastman

has made her working conditions so intolerable that a reasonable

employee would feel compelled to resign". (Emphasis added.)

And, for retaliation, the jury was instructed:

In regard to her retaliation claim, Title VII ... prohibits an employer from retaliating or discriminating against a person because that person has engaged in protective [sic] activity. Protective [sic] activity is an employee's conduct in opposing a discriminatory practice, making a charge of discrimination or testifying, assisting or participating in any manner in an investigation proceeding.

Now, in order for Mrs. Mattern to prevail on her claim of retaliation, she has to prove three things: first, that she was engaged in a protective [sic] activity; second, she suffered from an adverse employment action; and third, that Eastman acted out of a retaliatory motive in taking adverse employment action.

Now, adverse employment action could be defined as a discharge, a demotion, refusal to hire, refusal to promote, reprimand, [or] acts of sabotage ... by employees against other employees, either condoned or directed by an employer for the purpose of establishing cause for discharge. Mere dirty looks or reluctance of co-workers to speak to an employee are not the types of adverse employment action prohibited by Title VII. Merely placing a memorandum regarding an employee's performance in his or her personnel file does not in itself constitute an adverse employment action.

These instructions are not at issue on appeal. (The dissent

totally ignores the "purpose of establishing cause for discharge"

language in the retaliation instruction. Moreover, it grossly

misstates our application of Title VII to the record in this case.

In fact, the dissent seems to be dealing with another case

entirely.)

Consistent with the retaliation instruction, our court has

stated that "Title VII was designed to address ultimate employment

decisions, not to address every decision made by employers that

arguably might have some tangential effect upon those ultimate

decisions". Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir.1995).

"Ultimate employment decisions" include acts "such as hiring,

granting leave, discharging, promoting, and compensating". Id. at

782 (citing Page v. Bolger, 645 F.2d 227, 233 (4th Cir.), cert.

denied, 454 U.S. 892, 102 S.Ct. 388, 70 L.Ed.2d 206 (1981)). (No

authority need be cited for the necessary and longstanding rule

that, absent a change in the law, a decision by our court is

binding on subsequent panels. There has not been such a change;

most unfortunately, the dissent is simply unwilling to adhere to this rule. And, no matter the lengths to which it goes to

distinguish Dollis, including expending considerable effort

discussing Page, it cannot get around the binding precedent

established by Dollis.)

Right off the bat, several of the events of which Mattern

complains, although viewed in the requisite light most favorable to

her, fall well below this standard. Hostility from fellow

employees, having tools stolen, and resulting anxiety, without

more, do not constitute ultimate employment decisions, and

therefore are not the required adverse employment actions. See

Landgraf v. USI Film Prods., 968 F.2d 427, 431 (5th Cir.1992),

aff'd 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994).

In addition, these acts cannot be attributed to Eastman,

especially when viewed in the light of the jury's remedial action

and no constructive discharge findings. Moreover, there is no

proof that these acts were by management. In general, Eastman

cannot be held liable under Title VII absent proof that its

employees acted as its agents. See Title VII's definition of

"employer", 42 U.S.C. § 2000e(b) (act covers "employers" and their

"agents", not "employees"). In short, a reasonable juror could not

find, as required by the retaliation instruction, that these acts

were condoned or directed by Eastman for the purpose of

establishing cause for discharge—an ultimate employment decision.

Likewise, the other events, such as the visit to Mattern's

home, the verbal threat of being fired, the reprimand for not being

at her assigned station, a missed pay increase, and being placed on

"final warning", do not constitute "adverse employment actions" because of their lack of consequence. For starters, they do not

meet the standard set out in Dollis.

There, the employee alleged that she: (1) was refused

consideration for promotion; (2) was refused attendance at a

training conference; (3) had her work criticized to a government

vendor; and (4) was given false information regarding aspects of

her employment, including access to travel funds and methods of

filing EEO complaints. Dollis, 77 F.3d at 779-80. In holding that

these acts did not constitute ultimate employment decisions, our

court held also that they were at most "tangential" to future

decisions that might be ultimate employment decisions. Id. at 782.

Mattern's problems at Eastman are similarly non-actionable.

While she may have been in jeopardy of discharge from her

apprenticeship program at some point in the future, this

possibility obviously does not equal being discharged. Failing two

Major Skills Tests, having difficulty with pumps, and having

documented reprimands in her file may have increased the chance

that she would eventually suffer an adverse employment action but,

like the actions in Dollis, neither were they ultimate employment

decisions nor did they rise above having mere tangential effect on

a possible future ultimate employment decision.

To hold otherwise would be to expand the definition of

"adverse employment action" to include events such as disciplinary

filings, supervisor's reprimands, and even poor performance by the

employee—anything which might jeopardize employment in the future.

Such expansion is unwarranted. See Whitaker v. Carney, 778 F.2d

216 (5th Cir.1985) cert. denied, 479 U.S. 813, 107 S.Ct. 64, 93 L.Ed.2d 23 (1986) (refusing to expand coverage of Title VII's

anti-retaliation provision to include non-workplace hostility by

non-employees).

Needless to say, Dollis is consistent with Title VII and prior

case law. For example, Hill v. Miss. St. Empl. Serv., 918 F.2d

1233 (5th Cir.1990), cert. denied, 502 U.S. 864, 112 S.Ct. 188, 116

L.Ed.2d 149 (1991), held that allegations that co-workers were

staring at the employee, following her, prolonging the time she had

to wait for disbursement checks, relegating her file to a less

desirable classification, deleting experience data from a reference

form, and criticizing her EEOC complaint did not constitute

retaliation. Hill, 918 F.2d at 1241. Doubtless, some of these

actions may have had a tangential effect on conditions of

employment; but, as in Mattern's case, an ultimate employment

decision had not occurred. The employee could only prove examples

of the "many interlocutory or mediate decisions having no immediate

effect upon employment conditions" which therefore were "not

intended to fall within the direct proscriptions of ... Title VII".

Page, 645 F.2d at 233. As another example, see DeAngelis v. El

Paso Mun. Police Officers' Ass'n, 51 F.3d 591 (5th Cir.) (no

adverse employment action when office newsletter ran articles

routinely ridiculing the plaintiff based on her gender, and her

having filed an EEOC complaint), cert. denied, --- U.S. ----, 116

S.Ct. 473, 133 L.Ed.2d 403 (1995).

The import of these cases, culminating in Dollis, is the

long-held rule that Title VII's anti-retaliation provision refers

to ultimate employment decisions, and not to an "interlocutory or mediate" decision which can lead to an ultimate decision.

Obviously, this reading is grounded in the language of Title VII.

As quoted earlier, the anti-retaliation provision states that

employers shall not "discriminate" against employees for taking

action protected by Title VII. 42 U.S.C. § 2000e-3. In defining

this term, we look, of course, to other Title VII sections for

guidance; in this case, the preceding section is helpful.

That section states, in part, that it is unlawful to "fail or

refuse to hire or to discharge any individual, or otherwise to

discriminate against any individual with respect to his

compensation, terms, conditions or privileges of employment". 42

U.S.C. § 2000e-2(a)(1). This type of employer action contrasts

sharply with the more vague proscription, found in the next

subpart, of "limitation" of employees which deprive or "would tend

to deprive" the employee of "opportunities" or "adversely affect

his status". 42 U.S.C. § 2000e-2(a)(1), (2). It goes without

saying that this second subpart reaches much farther than the

first. It reaches acts which merely "would tend" to affect the

employee; obviously, the way in which the employee may be affected

in this subpart is much broader. Id.

The anti-retaliation provision speaks only of

"discrimination"; there is no mention of the vague harms

contemplated in § 2000e-2(a)(2). Therefore, this provision can

only be read to exclude such vague harms, and to include only

ultimate employment decisions.

As discussed, another factor mandating the failure of

Mattern's retaliation claim is that the jury found (1) she was not constructively discharged and (2) Eastman did not fail to take

remedial action. (She does not cross-appeal.) She preempted a

possible ultimate employment decision—she resigned. See Landgraf,

968 F.2d at 431 (equating jury finding of no constructive discharge

with no adverse employment action resulting in loss of position).

Therefore, absent an ultimate employment decision prior to her

resignation, there can be no adverse employment action.

The only event Mattern could possibly point to might be a

missed pay increase. (Although there is evidence that Mattern

missed two increases, one took place in November 1991, long before

her March 1993 EEOC charge.) In any event, she did not prove that

the increase would have taken effect by the time she resigned. In

fact, she did not even assert in her brief in opposition to the

Rule 50 motion, or in her brief here, that the missed pay increase

was the ultimate employment decision. Instead, she contends that

her problems at Eastman, including receiving poor evaluations and

a missed increase, were "quickly leading to the ultimate adverse

employment action". (Emphasis added.)

Moreover, at the time Mattern was receiving poor evaluations

with respect to her work with pumps, she was also failing Major

Skills Tests with respect to them. She does not maintain (nor did

she prove) that the tests were "rigged"; accordingly, we must

assume they were a correct assessment of her ability with the

pumps. Obviously, an employee may not complain that not obtaining

a position was retaliation if she was not qualified for that

position in the first place. Gonzalez v. Carlin, 907 F.2d 573 (5th

Cir.1990). Therefore, the evidence that Mattern was having trouble in her Major Skills Tests precludes her contention that, but for

the "sabotage", her progress through the pump section of the

apprenticeship program would have been rapid. Mattern's missed pay

increase evidence is not a basis for recovery on her retaliation

claim.

In closing, we note that Mattern relies on Armstrong v. City

of Dallas, 829 F.Supp. 875 (N.D.Tex.1992), for the proposition that

reprimands constitute ultimate employment decisions. The employer

was granted summary judgment in Armstrong on the basis that the

causation element for a retaliation claim was lacking. The

district court stated in dicta, however, that an adverse employment

action could rest on proof that the employee: (1) received a

letter of reprimand; (2) had efficiency ratings cut; (3) was

reported to the Civil Service Department for unsatisfactory

performance; (4) was informed he could be terminated for failure

to lose weight; (5) received a letter of reprimand for losing his

firefighter's coat; and (6) was transferred to a non-firefighting

job. Id. at 880.

Because of the lack of causation, our court affirmed the

summary judgment. Armstrong v. City of Dallas, 997 F.2d 62 (5th

Cir.1993). Therefore, this court never reached whether the

above-listed incidents constituted adverse employment actions. In

short, Mattern relies erroneously on dicta by the Armstrong

district court.

Even if the missed pay increase were an adverse employment

action, Mattern's evidence is insufficient to show that it resulted

from retaliation. Otherwise, there was no adverse employment action. Because there was none, we need not reach whether Mattern

proved the causation element. Likewise, she is not a "prevailing

party" under Title VII, and is, therefore, not entitled to

attorney's fees. 42 U.S.C. § 2000e-5(k).

III.

For the foregoing reasons, the denial of the motion for

judgment is REVERSED, and judgment is RENDERED for Eastman.

REVERSED and RENDERED.

DENNIS, Circuit Judge, dissenting.

I respectfully dissent from the majority's reversal of the

district court's judgment upholding the jury verdict awarding the

plaintiff damages on her Title VII, § 704 retaliation claim and

from the majority's appellate level entry of judgment as a matter

of law against the plaintiff. The majority seriously misreads

Title VII and judicial precedents in its double-edged holding that

(1) when the jury rejects an employee-plaintiff's § 703 claims of

sex discrimination and constructive discharge, it is legally barred

from looking at all of the relevant circumstances and awarding her

§ 704(a) retaliation damages based on retributive hostile

environment discrimination; and, (2) in such a case, in order to

successfully prosecute a § 704(a) retaliation claim, an employee

must prove that the employer discriminated against her in an

"ultimate employment decision" such as "hiring, granting leave,

discharging, promoting, and compensating."

Correctly interpreted, § 704(a) affords an employee an

independent hostile work environment retaliatory discrimination

cause of action upon which she may recover in a proper case regardless of the outcome of her § 703 sex discrimination and

constructive discharge claims. In the present case the jury's

retaliation award was not clearly erroneous and should have been

affirmed. The evidence provided a sufficient basis for a

reasonable juror to find that, after the plaintiff engaged in

protected activity by filing a Title VII sexual harassment claim,

adverse employment action against her occurred in the form of

retaliatory discrimination (of which the employer knew or should

have known) that was not remediated and sufficiently severe or

pervasive as to alter the conditions of her employment and create

a hostile or abusive working environment, and that there was a

causal connection between her participation in the protected

activity and the adverse employment action.

1. Plaintiff's Hostile Environment Retaliation Claim is Independently Actionable

Retributive harassment of an employee who has filed a § 703

sex discrimination and abuse claim constitutes retaliatory

discrimination in violation of § 704(a) if, as in an actionable

claim for sexual harassment under § 703, the employer knew or

should have known of the harassment, failed to take remedial steps,

and the abusive conduct was sufficiently severe so as to alter the

conditions of employment and create a hostile work environment.

The Supreme Court, in Harris v. Forklift Systems, Inc., 510 U.S.

17, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993), and Meritor Savings Bank

v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986), made

clear that a plaintiff may establish a violation of Title VII by

proving that discrimination based on sex has created a hostile or

abusive work environment. Nothing in § 704(a) of Title VII suggests that hostile environment discrimination against an

employee because she filed a charge alleging a sex discrimination

violation should not be prohibited as unlawful retaliatory

discrimination.

Jurists and legal scholars who have specifically addressed the

issue have reached the conclusion that retaliatory harassment of an

employee because she reported sexual harassment may constitute

retaliatory discrimination in violation of § 704(a) if the

requisite elements are proven. See, e.g., Davis v. State of Calif.

Dept. of Corrections, 1996 WL 271001 (E.D.Cal. Feb. 23, 1996);

Cobb v. Anheuser Busch, 793 F.Supp. 1457, 1491 (E.D.Mo.1990);

Toscano v. Nimmo, 570 F.Supp. 1197, 1204-06 (D.Del.1983); Tanner

v. Calif. Physicians' Serv., 27 F.E.P. 593, 1978 WL 210

(N.D.Cal.1978); EEOC v. Bank of Ariz., 12 F.E.P. 527, 1976 WL 1727

(D.Ariz.1976); Hyland v. Kenner Prod. Co., 13 F.E.P. 1309, 1976 WL

561 (S.D.Ohio 1976); LINDEMAN & KADUE, SEXUAL HARASSMENT IN EMPLOYMENT LAW

at 282 (1992); 2 LARSON, EMPLOYMENT DISCRIMINATION § 34.04 at 34-57—34-

62 (2d Ed.1994) ("Manipulation of such other employment conditions

to constitute harassment or to tolerate harassment by fellow

employees has likewise been perceived as retaliatory. Such

harassment may take the form of interrogation, reprimands,

surveillance, unwarranted or unfavorable job evaluations, or the

deprivation of some of the normal benefits or rights of the

position....") (footnotes citing cases omitted); 1 CONTE, SEXUAL

HARASSMENT IN THE WORKPLACE § 3.28 at 163-64 (1994). This court

apparently has assumed that such liability could exist in analyzing

a retaliation claim. See DeAngelis v. El Paso Municipal Police Officers Assoc., 51 F.3d 591, 597 (5th Cir.1995); Hamilton v.

General Motors Corp., 606 F.2d 576, 581 (5th Cir.1979); see also,

Wilson v. Southern Nat. Bank of North Carolina, 900 F.Supp. 803

(W.D.N.C.1995) (same as to prompt remedial action).

The EEOC's administrative interpretations indicate that the

employer can be held responsible under § 704(a) for failing to

remedy or prevent co-worker or customer retaliation against a § 703

claimant if the retaliation subjectively and objectively creates

severe or pervasive hostility in the claimant-employee's working

environment. EEOC COMPLIANCE MANUAL § 614.7, in pertinent parts,

provides:

614.7 Examples of Forbidden Retaliation

(a) Introduction—Retaliation against people who protest unlawful employment discrimination can take many forms. Discussed in this subsection are some of the more widely recognized types of forbidden retaliation. This list is not intended to be exclusive.

* * * * * *

(c) Harassment and Intimidation—Harassing or intimidating an individual because that individual has opposed employment discrimination is a violation of § 704(a) and § 4(d). Harassment or intimidation can take many forms; some of the more common forms are set out below. (Also see § 615, Harassment; see also § 614.8(d) below):

(4) Retaliatory reprimands. Unpublished Commission Decision No. 71-445 (1971).

(5) Coercive questioning. Commission Decisions No. 71- 1151, CCH EEOC Decisions (1973) ¶ 6208. (See also EEOC v. Plumbing and Pipefiters [sic] Industries, Local 189, Title VII case.)

(6) Retaliatory surveillance. Commission Decision No. 70-683, CCH EEOC Decisions (1973) ¶ 6145.

* * * * * * (g) Other Examples of Retaliation—The following types of retaliation represent violations of § 704(a) and § 4(d) but do not come under any particular heading.

(2) Permitting others to retaliate against charging party or complainant—If others, such as coworkers or respondent's customers, retaliate against charging party or complainant for having opposed employment discrimination, the respondent will, under certain circumstances, have a duty to take steps reasonably calculated to end the retaliation. For example, if a respondent knows or has reason to know of acts taken against a charging party by others because of his/her opposition to perceived discrimination, such respondent has an obligation to seek an end to the retaliation.

Id. (footnote omitted).

The EEOC has reached a similar position in administrative

adjudications. See EEOC Decision No. 79-59; 1979 WL 6935 (EEOC

1979); Commission Decision No. YME9-068, CCH EEOC Decisions (1973)

¶ 6039.

According to the Supreme Court, the Fifth Circuit's Rogers v.

EEOC, 454 F.2d 234 (5th Cir.1971), cert. denied, 406 U.S. 957, 92

S.Ct. 2058, 32 L.Ed.2d 343 (1972), was apparently the first case to

recognize a cause of action based upon a discriminatory work

environment. Meritor Savings Bank v. Vinson, 477 U.S. 57, 65, 106

S.Ct. 2399, 2404-05, 91 L.Ed.2d 49 (1986). The Supreme Court

quoted with approval from this court's explanation that an

employee's protections under Title VII, § 703, extend beyond the

economic aspects of employment:

"[T]he phrase "terms, conditions or privileges of employment' in [Title VII] is an expansive concept which sweeps within its protective ambit the practice of creating a working environment heavily charged with ethnic or racial discrimination.... One can readily envision working environments so heavily polluted with discrimination as to destroy completely the emotional and psychological stability of minority group workers...." 454 F.2d, at 238. Vinson, 477 U.S. at 66, 106 S.Ct. at 2405.

The Supreme Court in Vinson observed that courts generally

applied the principle announced by Rogers to harassment based on

race, religion and national origin, id. at 65; that in 1980 the

EEOC drew upon that substantial body of judicial decisions in

issuing Guidelines specifying that sexual harassment creating a

hostile work environment is prohibited by Title VII; and that

"[s]ince the Guidelines were issued, courts have uniformly held,

and we agree, that a plaintiff may establish a violation of Title

VII by proving that discrimination based on sex has created a

hostile or abusive work environment." Id. at 65.

Thus, when this court, in Whatley v. Metro. Atlanta Rapid

Transit Auth., 632 F.2d 1325 (5th Cir.1980), first set forth the

three-pronged test it follows in deciding Title VII, § 704(a),

retaliation claims, the discriminatory work environment cause of

action under § 703 was an established precedent of this court and

many others. In Whatley this court held that to prove a prima

facie case under section 704(a), the plaintiff must establish (1)

that there was a statutorily protected participation, (2) that an

adverse employment action occurred, and (3) that there was a causal

link between the participation and the adverse employment action.

In doing so, we observed that:

Section 704(a) of Title VII is the primary source of protection against retaliation for those who participate in the process of vindicating civil rights through Title VII. Under that section broad protection is afforded to the participant in order to effectuate the purposes of Congress. Pettway v. Am. Cast Iron Pipe Co., 411 F.2d 998, 1006, n. 18 (5th Cir.1969) ["The protection of assistance and participation in any manner would be illusory if employer could retaliate against employee for having assisted or participated in a Commission proceeding."] Whatley, 632 F.2d at 1328 (footnote omitted). Consequently, it is

inconceivable that this court, by its use of the shorthand

judge-made term "adverse employment action," intended to exclude or

legally could have excluded a cause of action based upon a

discriminatory work environment from § 704(a)'s arsenal of

protections for employee-complainants against all forms of

retaliatory discrimination and adverse employment practices. In

other words, co-worker harassment attributable to the employer that

creates a hostile or abusive work environment for an employee

because she opposed or complained of discrimination based on sex,

race, color, national origin or religion, is a form of

discrimination or adverse employment action prohibited by § 704(a).

Accordingly, an employee has an actionable retaliation claim

under § 704(a) when (1) the employee participated in statutorily

protected activity; (2) the employee suffered harassment by

co-workers (i) that was sufficiently severe or pervasive as to

alter the conditions of the victim's employment and create a

hostile or abusive work environment, and (ii) the employer knew or

should have known of the harassment and failed to take reasonably

calculated steps to end the abuse; and (3) there was a causal link

between the participation in the protected activity and the

harassment creating the discriminatory work environment.

In assessing an employee's retaliation claim based on

harassment creating a discriminatory work environment the teachings

of Vinson and Harris should be kept in mind. The discrimination

prohibited by Title VII is not limited to economic or tangible

discrimination. Vinson, 477 U.S. at 64, 106 S.Ct. at 2404. The discrimination must create an objectively and subjectively hostile

or abusive work environment. Harris, 510 U.S. at 17, 114 S.Ct. at

368. But Title VII comes into play before the harassing conduct

leads to a nervous breakdown. Certainly Title VII bars conduct

that would seriously affect a reasonable person's psychological

well-being, but the statute is not limited to such conduct. So

long as the environment would reasonably be perceived, and is

perceived, as hostile or abusive, there is no need for it also to

be psychologically injurious. Vinson, 477 U.S. at 67, 106 S.Ct. at

2405-06. Whether an environment is "hostile" or "abusive" can be

determined only by looking at all the circumstances. These may

include the frequency of the discriminatory conduct; its severity;

whether it is physically threatening or humiliating, or a mere

offensive utterance; and whether it unreasonably interferes with

an employee's work performance. Id.

2. Application of Discriminatory Work Environment Principles Requires That The Jury's Retaliation Award Be Affirmed

We review jury verdicts for sufficiency of evidence pursuant

to the standard articulated in Boeing v. Shipman, 411 F.2d 365,

374-75 (5th Cir.1969) (en banc). Woodhouse v. Magnolia Hosp., 92

F.3d 248 (5th Cir.1996) (citing Rhodes v. Guiberson Oil Tools, 75

F.3d 989, 993 (5th Cir.1996) (en banc)).

The plaintiff presented evidence that her employer was

implicated in co-worker harassment of her because she had made

prior complaints about sexual harassment by co-employees. The

district court instructed the jury on the pertinent elements of

Title VII and the nature of retaliatory discrimination under the

statute. The jury specifically found in its verdict in response to the court's interrogatories that the plaintiff was sexually

harassed by her co-workers, that Eastman intentionally or wilfully

retaliated against the plaintiff for filing a charge of

discrimination and/or for filing this lawsuit, and that $50,000

would fairly and reasonably compensate the plaintiff for the

damages proximately caused by Eastman's retaliatory actions. The

evidence amply supports the jury's determinations and satisfies the

three elements of a claim based on retaliatory discrimination under

§ 704(a).

First, it is undisputed that the plaintiff complained to the

defendant's personnel department of coworker sexual harassment on

or about March 3, 1993, and filed her initial Title VII charge on

March 11, 1993.

Second, plaintiff presented sufficient evidence from which a

reasonable trier of fact could find that after she complained of

sex discrimination she was subjected to retaliatory harassment by

co-workers that created a hostile or abusive work environment,

about which the employer knew or should have known, and that the

employer failed to take any steps reasonably calculated to end the

retaliatory abuse. The majority accurately describes some of the

principal parts of this evidence in its opinion. Mattern testified

that she was required to wear a fire protection suit while climbing

scaffolding that was unsafe because it was too large. Eastman sent

two supervisors, one of whom was an alleged harasser, to her home,

on a day she had taken vacation leave after complaining of an

employment-related illness, to tell or require her to return to

Eastman Medical if her illness was job-related. Sending supervisors to an employee's home under such circumstances was

highly unusual, if not unprecedented. Mattern was reprimanded for

not being at her work station when she went to Eastman's Human

Resources Department to complain that she was being harassed on the

job. Mattern became ill over the perceived harassment; her doctor

reported to Eastman that he was concerned and that her illness was

related to the hostility. Mattern's work was reviewed negatively

by supervisors after her first EEOC charge, causing her to miss a

pay increase and to be given a final warning of potential discharge

from the apprenticeship program. The supervisors who began to give

her poor marks had praised her work before her EEOC complaint. The

plaintiff presented testimony by herself and Eastman's own

personnel that tended to show that a pump she had rebuilt had been

sabotaged by co-workers, causing her to receive a negative

evaluation and have her job placed in jeopardy. The district court

emphasized this incident in its reasons for denying the defendants'

motion for a judgment as a matter of law and, alternatively, for a

new trial:

[T]ampering with another employee's work by another employee could reasonably be construed as sabotage condoned or directed by an employer for the purpose of establishing cause for discharge, demotion, reprimand or refusal to promote. This sabotage could have reasonably taken place in response to Ms. Mattern's actions regarding her complaints of sexual harassment. Furthermore, at trial, Ms. Mattern produced evidence that the defendants acted out of a retaliatory motive condoning the actions taken by other employees against Ms. Mattern. Therefore, the Court finds that there is a legally sufficient evidentiary basis for a reasonable jury to find for Ms. Mattern on her Title VII retaliation claim.

District Court's September 12, 1995, Order at 2-3.

Mattern points to additional evidence in the record that

supports the jury verdict because it tends to prove co-worker harassment with the knowledge of the employer or direct harassment

by the employer and a resulting hostile work environment: after

her initial Title VII complaint, she was assigned to a different

crew but returned to the same work areas where her harassers were

employed; she had a good work record and there was no complaint

about her work before the Title VII charge; on March 30, 1993, her

attorney sent a telefax to Eastman's counsel demanding that the

retaliatory conduct cease; during March 1993 her doctor recorded

that she suffered from depression and panic attacks; she testified

that her work environment got worse after her complaint; that the

other workers shunned her, gave her the silent treatment or

muttered things like "accidents happen;" that one supervisor told

her he would fire her; the doctor prescribed Zoloft and Prozac for

her condition; the jury, in its last note sent during

deliberation, asked: "May we award damages in answering Question

# 8 [pertaining to damages for retaliatory actions] because we

think Eastman's credibility and witnesses lied?"

Third, the plaintiff's testimony and other corroborating

factors provided a sufficient basis for the jury reasonably to find

a causal link between her initial sexual harassment complaints and

the subsequent harassment creating a discriminatory work

environment. Among the corroborating factors were the evidence of

sabotage of Mattern's work product by co-workers that the trial

court emphasized in its reasons for judgment; the episode in which

she was required to assemble a pump on the unsteady surface of a

wooden pallet which caused her poor performance; the abrupt

descent of the supervisors' evaluations of her work after the complaint was filed; her good work record up until that time;

evidence that another apprentice had been allowed to fail tests and

take more than the maximum allowable time to complete the program

with no reprimand by management; the lack of any effective action

by Eastman to stop the harassment of plaintiff despite several

notifications to management level employees of the retaliatory acts

by the plaintiff, her counsel, and her doctor.

Considering all of the circumstances, there was sufficient

evidence for a reasonable trier of fact to find that the plaintiff

was harassed by the employer directly through its supervisors, and

indirectly by knowingly permitting co-worker harassment, because

she had previously made informal and formal complaints of sexual

harassment; that the retaliatory harassment occurred in the forms

of retaliatory reprimands, retaliatory surveillance or

confrontation and questioning at her home, and other acts of

retaliation about which the employer knew or should have known but

failed to take effective steps to remedy; that the harassment was

sufficiently severe and pervasive to create a hostile or abusive

work environment objectively and subjectively; and that there was

a causal connection between her sexual discrimination complaints

and the retaliatory harassment.

3. The Majority Erroneously Conflates The Employee's § 703 Causes of Action Based on Sex Discrimination and Constructive Discharge With Her § 704(a) Retaliation Claim

The majority errs seriously in holding that the jury's

findings against an employee on her sexual harassment and

constructive discharge claims "limits the bases for finding

retaliation," by narrowing the ambit of the employee's § 704(a) retaliation cause of action to one based on damage caused by the

employer's "ultimate employment decisions" such as "hiring,

granting leave, discharging, promoting, and compensating." It is

perfectly plain that §§ 703 and 704(a) are separate and distinct

provisions creating several independent causes of actions that

serve different integral functions furthering the main purpose of

Title VII. Section 703(a)(1) prohibits discrimination against any

individual with respect to his compensation, terms, conditions, or

privileges of employment because of race, color, religion, sex, or

national origin. Section 704(a) prohibits discrimination against

any employee because he opposed any practice made an unlawful

employment practice by Title VII or because he made a charge,

testified, assisted, or participated in any manner in an

investigation, proceeding, or hearing under Title VII. The primary

purposes of Title VII are to prevent discrimination, achieve equal

employment opportunity in the future, and to make victims of

discrimination whole. A claim of "hostile environment" sexual

harassment is a form of sex discrimination that is actionable under

Title VII, § 703(a)(1). Meritor Savings Bank v. Vinson, 477 U.S.

57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986) Section 704(a) of Title

VII is intended to provide exceptionally broad protection for

protestors of discriminatory employment practices. Pettway v. Am.

Cast Iron Pipe Co., 411 F.2d 998 (5th Cir.1969). The Supreme Court

has held that Title VII provides, in actions under "section 703,

704 or 717," that "the complaining party may recover compensatory

and punitive damages ..." Langraf v. USI Film Products, 511 U.S.

244, ----, 114 S.Ct. 1483, 1490, 128 L.Ed.2d 229 (1994) (emphasis added), 42 U.S.C. § 1981a(a) (West Supp.1996).

The Fifth Circuit and other courts have recognized that the

causes of actions afforded by §§ 703 and 704 are independent of

each other, call for different elements of proof, and that the

plaintiff's case under one cause of action does not depend upon her

success under another. For example, it is not fatal to a

plaintiff's § 704(a) case that she failed to prove an unlawful

employment practice under § 703(a)(1); it is sufficient to

establish a prima facie case of retaliation if she had a reasonable

belief that defendant had engaged in the unlawful practice. Payne

v. McLemore's Wholesale & Retail Stores, 654 F.2d 1130 (5th

Cir.1981); See EEOC Compliance Manual, Section 614. Moreover,

this court has recognized that there are significant differences

between the employee's causes of actions for constructive discharge

and for hostile work environment discrimination. To prove

constructive discharge, the plaintiff must demonstrate a greater

severity or pervasiveness of harassment than the minimum required

to prove a hostile working environment. Landgraf v. USI Film

Products, 968 F.2d 427 (5th Cir.1992), citing Pittman v.

Hattiesburg Mun. Separate Sch. Dist., 644 F.2d 1071, 1077 (5th

Cir.1981) (constructive discharge requires "aggravating factors").

Furthermore, the Fifth Circuit has held that a constructive

discharge requires an actual intent to get rid of the employee: it

occurs only "when the employer deliberately makes an employee's

working conditions so intolerable that the employee is forced into

an involuntary resignation." Dornhecker v. Malibu Grand Prix

Corp., 828 F.2d 307, 310 (5th Cir.1987). The majority's holding that an employee's failure to convince

a trier of fact that she is entitled to relief under § 703 because

of sex discrimination and constructive discharge limits the scope

of her cause of action based on retaliation under § 704(a) is

contrary to Congressional intent and departs from the settled

precedents of this court. Moreover, it strikes a grievous blow to

the entire enforcement mechanism of Title VII. As this court

stated in Pettway v. Am. Cast Iron Pipe Company, 411 F.2d 998, 1005

(5th Cir.1969):

There can be no doubt about the purpose of § 704(a). In unmistakable language it is to protect the employee who utilizes the tools provided by Congress to protect his rights. The Act will be frustrated if the employer may unilaterally determine the truth or falsity of charges and take independent action.

4. The Majority Misunderstands The Prior Cases Applying §§ 704(a) & 717 And Erroneously Limits Employees to Retaliation Claims Based on "Ultimate Employment Decisions"

The majority erroneously fails to consider whether the

evidence as a whole was sufficient to justify a reasonable trier of

fact in finding that the plaintiff suffered retaliatory

discrimination prohibited by § 704(a) that created a hostile or

abusive work environment. My colleagues were deflected from this

course by their mistaken interpretation and application of dicta in

cases decided under § 717: Page v. Bolger, 645 F.2d 227 (4th

Cir.1981), and Dollis v. Rubin, 77 F.3d 777 (5th Cir.1995).

Title VII, § 717(a), in pertinent part, provides:

(a) Discrimination prohibited. All personnel actions affecting employees or applicants for employment [in defined categories of Federal Government employment] shall be made free from any discrimination based on race, color, religion, sex, or national origin.

Congress added § 717 to Title VII in 1972 to extend the protection of Title VII to employees of the Federal Government. In

Chandler v. Roudebush, 425 U.S. 840, 841, 96 S.Ct. 1949, 1950, 48

L.Ed.2d 416 (1976), the Supreme Court, in holding that § 717

affords federal employees the same right to a trial de novo as is

enjoyed by private sector or state government employees under Title

VII, stated:

In 1972 Congress extended the protection of Title VII ... to employees of the Federal Government. A principal goal of the amending legislation [adding § 717 to Title VII] was to eradicate " "entrenched discrimination in the Federal service,' " ... by strengthening internal safeguards and by according "[a]ggrieved (federal) employees or applicants ... the full rights available in the courts as are granted to individuals in the private sector under title VII."

Id. (citations and footnote omitted).

The majority mistakenly reads Page v. Bolger as holding that

Congress, by adding § 717 to extend the protection of Title VII to

employees of the Federal Government, somehow restricted the

protection of employees in the private sector by Title VII, § 703.

According to the majority, Page reads a drastic limitation into §

703(a)'s broad prohibition against discrimination with respect to

conditions of employment because of race, color, religion, sex, or

national origin; viz., to recover under § 704(a) the employee must

prove that he was discriminated against by the employer in an

"ultimate employment decision" such as "hiring, granting leave,

discharging, promoting, and compensating." Nothing in the statute

or in Page justifies such an interpretation.

In Page v. Bolger, a postal employee, who was twice denied

promotions, brought suit against the Postmaster General claiming

racial discrimination in violation of Title VII. The district

court found that Page had failed to establish his claim of discrimination. The Fourth Circuit affirmed, concluding that the

inference of discriminatory intent raised by plaintiff's prima

facie case was effectively dispelled by articulation of a

legitimate nondiscriminatory reason; viz., the better

qualifications of the employees promoted, and that reason was not

shown to be mere pretextual cover for a discriminatory motive.

In dictum, the Page court commented on a contention by the

plaintiff that in effect introduced on appeal a new and dispositive

theory neither advanced nor considered in the district court. The

Postal Service's Personnel Handbook provides that a review

committee shall be designated to screen the applicants and to

recommend the most outstanding to the appointing officer. The

official who designates a review committee is required to make

every effort to select at least one woman and/or one minority group

member. The plaintiff argued for a modification of the McDonnell

Douglas formula under which a claimant could establish a prima

facie case by showing that he belonged to a minority; he qualified

for the position; and he was denied promotion because of an

evaluation by a review committee consisting only of white males.

At this point under the modification the employer would be required

to articulate some nondiscriminatory reason for the absence of a

minority member on the review committee, and, if this were done,

the pretext inquiry would focus on this reason, rather than the

articulated reason for denying the promotion.

The majority of the Fourth Circuit, en banc, rejected

plaintiff's proposed modification in dictum stating:

The proper object of inquiry in a claim of disparate treatment under § 717 is whether there has been "discrimination" in respect of "personnel actions affecting (covered) employees or applicants for employment...." 42 U.S.C. § 2000e-16(a) (emphasis added). Disparate treatment theory as it has emerged in application of this and comparable provisions of Title VII, most notably § 703(a)(1), 42 U.S.C. § 2000e-2(a)(1), has consistently focused on the question whether there has been discrimination in what could be characterized as ultimate employment decisions such as hiring, granting leave, discharging, promoting, and compensating. This is the general level of decision we think contemplated by the term "personnel actions" in § 717.

By this we suggest no general test for defining those "ultimate employment decisions" which alone should be held directly covered by § 717 and comparable antidiscrimination provisions of Title VII. Among the myriad of decisions constantly being taken at all levels and with all degrees of significance in the general employment contexts covered by Title VII there are certainly others than those we have so far specifically identified that may be so considered for example, entry into training programs. By the same token, ... there are many interlocutory or mediate decisions having no immediate effect upon employment conditions which were not intended to fall within the direct proscriptions of § 717 and comparable provisions of Title VII. We hold here merely that among the latter are mediate decisions such as those concerning composition of the review committees in the instant case that are simply steps in a process for making such obvious end-decisions as those to hire, to promote, etc.

Id., 645 F.2d at 233 (emphasis added) (citation omitted).

A careful reading of the Fourth Circuit's opinion indicates

clearly that the court did not interpret § 717 to rule out a cause

of action by an employee who had been subjected to discriminatory

harassment based on race, sex, religion, color or national origin

that created a hostile or abusive work environment. Instead, the

Fourth Circuit's dictum states that § 717 does not prohibit

discrimination in "interlocutory or mediate decisions having no

immediate effect upon employment conditions" such as the

composition of a review committee. Clearly, by implication, the

court viewed § 717 as proscribing discrimination in "end-decisions" that have "immediate effect upon employment conditions," such as an

employer's creation of a hostile environment discrimination based

on sex, race, religion or national origin. The court also

expressly stated that the examples of unlawful employment actions

immediately affecting employment conditions referred to, viz.,

discrimination in hiring, granting leave, discharging, promoting,

and compensating, did not constitute an exclusive list. The court

set forth these examples only to identify "the general level" of

discriminatory unlawful employment practices forbidden by § 717,

not to suggest a "general test" for defining the types of

discrimination barred by §§ 703, 704 and 717. At the time of the

Page court's decision the cause of action based on a discriminatory

work environment was well established under § 703 at the same

"general level" identified in the court's opinion. See Vinson, 477

U.S. at 65-66, 106 S.Ct. at 2404-05. That the Page court drew no

distinction between § 717 and § 703 but treated them as equivalents

further indicates the court did not interpret § 717 as excluding

such a claim.1

1 In subsequent cases courts have disagreed with Page's restriction of "adverse employment action" to mediate decisions and have limited its holding to Federal Government employment cases.

In Hayes v. Shalala, 902 F.Supp. 259, 266 (D.D.C.Cir.1995), the court noted that while its circuit had not directly addressed the holding in Page, "[w]here it has spoken, it has adopted a broader interpretation of actionable "personnel actions' than that of the Fourth Circuit." (Citing Palmer v. Shultz, 815 F.2d 84 (D.C.Cir.1987)). The court concluded that the plaintiff-employee "must be permitted to argue that the totality of actions taken by his employer collectively created a harassing and retaliatory environments, even if individual actions may not have left a permanent paper trail or may even have been "mediate' employment decisions as In Dollis v. Rubin, 77 F.3d 777 (5th Cir.1995), the plaintiff,

an EEOC specialist in the U.S. Customs Service, brought suit

against the Secretary of the Department of the Treasury, claiming

race, sex, and retaliation discrimination in violation of Title

VII, § 717. The magistrate granted summary judgment to the

Secretary, rejecting Dollis' primary claim that she had been

discriminatorily denied a desk audit and her retaliation

discrimination claims based on her employer's alleged acts or

omissions in giving her false information about the return of a

self-nomination for an award for the Federal Women's Program,

informing her of the requirement that the EEO Manager approve each

handwritten document prepared by her, and informing a vendor of an

incorrect procurement procedure taken by her. This court affirmed

on the ground that neither the denial of the desk audit nor the

alleged retaliations arose to the level of an adverse personnel

action or an ultimate employment decision, citing Page v. Bolger.

Id. at 781.

Dollis is clearly distinguishable from the present case

because Dollis did not claim that she had been subjected to

retaliatory harassment that was sufficiently severe or pervasive to

identified by the Fourth Circuit in Page.

The court in Howze v. Vir. Polytechnic, 901 F.Supp. 1091, 1097 (W.D.Va.1995), noted that Page "was not a retaliation case, but rather addressed an attempt to rewrite the prima facie case requirements in a failure to promote case. Second, the court was defining the term "personnel actions' in 42 U.S.C.A. § 2000e-16(a), dealing with discrimination in federal employment.... There is no indication that the Fourth Circuit intended this definition to apply to the retaliation provision in section 2000e- 3(a)." create a discriminatory hostile or abusive work environment.

Moreover, under the facts alleged and shown by Dollis, it is clear

that no reasonable trier of fact could have found both objective

and subjective perceptions that the environment was abusive.

Conduct that is not severe or pervasive enough to create an

objectively hostile or abusive work environment—an environment that

a reasonable person would find hostile or abusive—is beyond Title

VII's purview. Likewise, if the victim does not subjectively

perceive the environment to be abusive, the conduct has not

actually altered the conditions of the victim's employment, and

there is no Title VII violation. Harris, 510 U.S. at 21-22, 114

S.Ct. at 370-71.

Nor do any of the other cases relied upon by the majority

opinion hold or support the majority's implicit holding that acts

of harassment and discrimination by co-workers attributable to the

employer creating a hostile environment cannot collectively rise to

a level of severity or pervasiveness to constitute discrimination

prohibited by Title VII, § 704(a):

(1) In Landgraf v. USI Film Prods., 968 F.2d 427, 431 (5th

Cir.1992), aff'd, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229

(1994), this court affirmed the district court's findings that the

plaintiff suffered severe enough sexual harassment from one male

co-worker, a machinist, to create a hostile work environment, but

that the conflicts and unpleasant relationships plaintiff had with

other co-workers were not related to the charge she filed

complaining of the machinist's sexual harassment; therefore, this

court concluded, the plaintiff's conflicts with the other co-workers could not constitute an underlying basis for her

retaliation claim.

(2) Whitaker v. Carney, 778 F.2d 216 (5th Cir.1985), held that

Title VII does not prevent an employer from disclosing to the

complained-of individual sexual harassment in employment complaints

made to the employer by its employees, and that, consequently,

Title VII provides no basis for appellants' attempted removal to

federal court under the federal civil rights removal statute on the

asserted ground that to comply with appellee's state Open Records

Act request would be an act inconsistent with a law providing for

equal rights. Therefore, Whitaker is irrelevant here and did not

refuse to expand coverage of Title VII's anti-retaliation provision

as the majority opinion indicates.

(3) Hill v. Miss. St. Empl. Serv., 918 F.2d 1233 (5th

Cir.1990) did not hold, as the majority claims, that plaintiff's

allegations that co-workers stared at her, followed her, delayed

her disbursement checks, relegated the classification of her file,

deleted experience data from her employment referral form, and

criticized her EEOC complaint failed to constitute retaliation.

Instead, this court held that the trial magistrate's finding that

the plaintiff failed to prove these alleged facts was not clearly

erroneous. Id., 918 F.2d at 1241. Furthermore, this court's

discussion of the retaliation claim in Hill does not mention or

allude to ultimate, interlocutory or mediate employment decisions

as the majority suggests. Id., 918 F.2d at 1240-41;

(4) In DeAngelis v. El Paso Municipal Police Officers Assn.,

51 F.3d 591 (5th Cir.1995), this court set forth the criteria for a Title VII hostile environment sex discrimination claim as: (a)

Sexually discriminatory intimidation, ridicule and insults, which

are (b) sufficiently severe or pervasive that they (c) alter the

conditions of employment and (d) create an abusive working

environment, citing Harris and Vinson, id., 51 F.3d at 593, and

held that the anonymous comments in ten columns of a police officer

association's newsletter directed toward plaintiff and female

officers in general were not so frequent, pervasive, or pointedly

insulting as to create a hostile working environment; and that a

reference in one of the columns to plaintiff's "E-I-E-I-O" [EEOC]

complaint and an article reporting the association's intention to

sue her for damages if her lawsuit proved groundless did not amount

to an adverse employment action under any reasonable meaning of

that term. Id., 51 F.3d at 597.

(5) In Gonzalez v. Carlin, 907 F.2d 573 (5th Cir.1990), the

plaintiff claimed that the Postal Service had discriminatorily

failed to promote him because of his national origin, but he failed

to present a prima facie case because the evidence showed that he

had not yet acquired the two-year mechanical, electrical and

electronic experience necessary to qualify for the Level 6 MPE

maintenance mechanic position. For the same reason, his claim that

his failure to receive the desired promotion was based on

retaliatory motives was also rejected. The case has little, if

any, relevance to an employee's claim that, as in the present case,

is based on the employer's retaliatory conduct, directly and

through employees for whom he is accountable, that is sufficiently

severe or pervasive to create a discriminatorily hostile or abusive working environment.

CONCLUSION

The majority opinion is in conflict with the aim of Congress

in enacting Title VII. Section 703 of Title VII makes it unlawful

for an employer to "discriminate against any individual with

respect to his compensation, terms, conditions, or privileges of

employment, because of such individual's race, color, religion,

sex, or national origin." Section 704 of Title VII makes it

unlawful for "an employer to discriminate against any of his

employees ... because he has made a charge, testified, assisted, or

participated in any manner in an investigation, proceeding, or

hearing under this title." The Supreme Court has emphatically held

that Title VII, § 703, is violated when the employer discriminates

on the basis of sex by creating a hostile or abusive work

environment, which "can be determined only by looking at all the

circumstances." Harris, 510 U.S. at 23, 114 S.Ct. at 371.

Consequently, it necessarily follows that Title VII, § 704, is

violated when all the circumstances show that the employer has

discriminated against an employee for participating in the

enforcement of Title VII by creating a hostile or abusive work

environment. There is no justification for recognizing hostile

environment discrimination based on all circumstances under one

section and not the other. Nor is there any justification for

interpreting Title VII to afford less protection against

retaliatory discrimination than against sexual, racial or other

types of forbidden discrimination. This court has constantly

recognized that, to effectuate the purposes of Congress, § 704(a) affords broad protection against retaliation for those who

participate in the process of vindicating civil rights through

Title VII. See, e.g. Whatley v. Metro. Atlanta Rapid Transit

Auth., 632 F.2d 1325 (5th Cir.1980); Pettway v. Am. Cast Iron Pipe

Co., 411 F.2d 998 (5th Cir.1969).

Nevertheless, the majority has produced a holding that

prevents a judge or jury from considering all the circumstances in

retaliation cases and thereby severely impairs the cause of action

based upon a discriminatory work environment under Title VII, §

704(a). The holding is based on the majority's mistaken

interpretation of two judge-made terms that were never intended for

the use my colleagues make of them. There is nothing to indicate

that this court intended to narrow the scope of protection against

retaliatory discrimination afforded by § 704(a) when it adopted the

shorthand term, "adverse employment action," to assist its analysis

of retaliation claims. Nor is it correct to conclude, as the

majority must have, that the Page court had the authority and the

intention, by its judge-minted term, "ultimate employment

decision," to drastically narrow the meaning of discrimination

under §§ 703 and 717, effectively abolishing altogether the cause

of action based on a discriminatory work environment.

Unfortunately, the majority has allowed its mistaken interpretation

of the judge-made rules to lead it to an incorrect conclusion as to

the meaning of Title VII.

Because I believe that the majority's decision is contrary to

the clear statutory language, the Supreme Court decisions, and all

prior jurisprudence, and that it will drastically weaken § 704(a)'s protection against retaliation for those who participate in the

enforcement of Title VII by immunizing employers who use hostile

environment discrimination vengefully against them, I must

respectfully dissent.