Thompson v. North American Stainless, LP

520 F.3d 644, 2008 U.S. App. LEXIS 6776, 90 Empl. Prac. Dec. (CCH) 43,139, 102 Fair Empl. Prac. Cas. (BNA) 1633, 2008 WL 834005

• Court: Court of Appeals for the Sixth Circuit
• Decided: March 31, 2008
• Docket: 07-5040
• Status: Published

Opinions

TARNOW, D.J., delivered the opinion of the court, in which MOORE, J., joined. GRIFFIN, J. (pp. 650-56), delivered a separate dissenting opinion.

OPINION

TARNOW, District Judge.

Shortly after Appellant Eric Thompson’s fiancée filed a discrimination charge with the EEOC against their common employer, the Appellee, Thompson was terminated. The parties to this appeal ask whether the anti-retaliation provisions in Title VII of the Civil Rights Act protect a related or associated third party from retaliation under such circumstances. We hold that that they do, and REVERSE the district court’s grant of summary judgment to the employer.

I.

From February 1997 through March 2003, the plaintiff, Eric L. Thompson, worked as a metallurgical engineer for defendant North American Stainless, LP, the owner and operator of a stainless steel manufacturing facility in Carroll County, Kentucky. Thompson met Miriam Regala-do, currently his wife, when she was hired by the defendant in 2000, and the couple began dating shortly thereafter. At the time of Thompson’s termination, he and Regalado were engaged to be married, and their relationship was common knowledge at North American Stainless.

According to the complaint, Regalado filed a charge with the Equal Employment Opportunity Commission (EEOC) in September 2002, alleging that her supervisors discriminated against her based on her gender. On February 13, 2003, the EEOC notified North American Stainless of Re-galado’s charge. Slightly more than three weeks later, on March 7, 2003, the defendant terminated Thompson’s employment. Thompson alleges that he was terminated in retaliation for his then-fíancée’s EEOC charge, while North American Stainless contends that performance-based reasons supported the plaintiffs termination.

Thompson filed a charge with the EEOC, which conducted an investigation and found “reasonable cause to believe that [the Defendant] violated Title VII.” After conciliation efforts were unsuccessful, the EEOC issued a right-to-sue letter and Thompson filed a cause of action against North American Stainless in the Eastern District of Kentucky.

North American Stainless moved for summary judgment, contending that the plaintiffs claim, that his “relationship to Miriam Thompson [née Regalado] was the sole motivating factor in his termination,” was insufficient as a matter of law to support a cause of action under Title VII. The district court granted the defendant’s motion, holding that Thompson failed to state a claim under either the anti-discrimination provision contained in 42 U.S.C. § 2000e-2(a) or the anti-retaliation provision set forth in 42 U.S.C. § 2000e-3(a).

The plaintiff appeals from this judgment, contending that the anti-retaliation provision of Title VII prohibits an employer from terminating an employee based on the protected activity of his fiancée who works for the same employer. The EEOC has filed an amicus curiae brief in support of plaintiffs position.

II.

A.

A district court’s grant of summary judgment is reviewed de novo. Cicero v. Borg-Warner Automotive, Inc., 280 F.3d 579, 583 (6th Cir.2002) (citing Doren v. Battle Creek Health Sys., 187 F.3d 595, 597 (6th Cir.1999)). In reviewing the decision, we apply the same legal standard as the lower court. Cline v. Catholic Diocese of Toledo, 206 F.3d 651, 657 (6th Cir.2000). Summary judgment is only appropriate when the evidence submitted shows “that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Cicero, 280 F.3d at 583 (quoting Fed.R.Civ.P. 56(c)).

B.

Section 704(a) of Title VII of the Civil Rights Act prevents retaliation by employers for two types of activity, opposition, and participation.

It shall be an unlawful employment practice for an employer to discriminate against any of his employees ... 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 sub-chapter.

42 U.S.C. § 2000e-3.

We are asked whether section 704(a)’s protections extend to persons not expressly described in the statute. Specifically, does Title VII prohibit employers from taking retaliatory action against employees not directly involved in protected activity, but who are so closely related to or associated with those who are directly involved, that it is clear that the protected activity motivated the employer’s action? As such conduct would undermine the purposes of Title VII, we hold that such retaliatory action is prohibited.

C.

Defendant argues that the statute is unambiguous. That is, the plain language of the statute indicates that the only individual protected by 704(a) is the one who conducted the protected activity.

However, “[i]t is a well-established canon of statutory construction that a court should go beyond the literal language of a statute if reliance on that language would defeat the plain purpose of the statute[.]” Bob Jones University v. United States, 461 U.S. 574, 586, 103 S.Ct. 2017, 2025, 76 L.Ed.2d 157 (1983). Further, “it is well settled that, in interpreting a statute, the court will not look merely to a particular clause in which general words may be used, but will take in connection with it the whole statute ... and the objects and policy of the law...." Id. (alterations in original) (quoting Brown v. Duchesne, 19 How. 183, 194, 15 L.Ed. 595 (1857)).

Robinson v. Shell Oil, 519 U.S. 337, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997), which also interpreted section 704(a), stated that whether a statute is plain and unambiguous can only be evaluated “with regard to the particular dispute in the case.” Id. at 340, 117 S.Ct. 843. A court must evaluate not only the contested statutory language, but also “the specific context in which that language is used, and the broader context of the statute as a whole.” Id. at 341, 117 S.Ct. at 846.

Burlington Northern and Santa Fe Railway Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006), discussed that broader context and the object of Title VII: “The anti-retaliation provision seeks to secure [a non-discriminatory workplace] by preventing an employer from interfering (through retaliation) with an employee’s efforts to secure or advance enforcement of the Act’s basic guarantees.” Id. at 2412. It characterized section 704(a)’s primary purpose as “[maintaining unfettered access to statutory remedial mechanisms.” Id. (quoting Robinson, 519 U.S. 337, 346, 117 S.Ct. 843, 136 L.Ed.2d 808). Burlington held that a plaintiff must demonstrate a “materially adverse” retaliatory action, which it defined as one that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Id. at 2415 (quotation marks and citations omitted).

Here, a literal reading of section 704(a) suggests a prohibition on employer retaliation only when it is directed to the individual who conducted the protected activity. Such a reading, however, “defeats the plain purpose” of Title VII. There is no doubt that an employer’s retaliation against a family member after an employee files an EEOC charge would, under Burlington, dissuade “reasonable workers” from such an action.

Support for our holding is found as well in the EEOC Compliance Manual. See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65, 106 S.Ct. 2399, 2404, 91 L.Ed.2d 49 (1986) (“[EEOC] Guidelines, while not controlling ... do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.”) (quotation marks and citations omitted); Griggs v. Duke Power Co., 401 U.S. 424, 433-34, 91 S.Ct. 849, 854-55, 28 L.Ed.2d 158 (1971) (“The administrative interpretation of the [Civil Rights] Act by the enforcing agency is entitled to great deference.”). The Burlington decision also found support in the Compliance Manual for its interpretation of section 704(a), see 126 S.Ct. at 2413-14, as did Robinson, see 117 S.Ct. at 848.

The Compliance Manual expressly states that a person claiming retaliation need not be the one who conducted the protected activity. “Title VII ... prohibits] retaliation against someone so closely related to or associated with the person exercising his or her statutory rights that it would discourage that person from pursuing those rights.” Johnson v. University of Cincinnati, 215 F.3d 561, 580 (6th Cir.2000) (emphasis added) (quoting EEOC Compliance Manual (CCH) ¶ 8006).

D.

Our holding today is consistent with Circuit precedent, as well as interpretive practices of both this Court and the Supreme Court. In EEOC v. Ohio Edison Co., 7 F.3d 541 (6th Cir.1993), we observed that

courts have routinely adopted interpretations of retaliation provisions in employment statutes that might be viewed as outside the literal terms of the statute in order to effectuate Congress’s clear purpose in proscribing retaliatory activity. Contrary to defendant’s assertions, courts have frequently applied the retaliation provisions of employment statutes to matters not expressly covered by the literal terms of these statutes where the policy behind the statute supports a nonexclusive reading of the statutory language.

Id. at 545. We expressly stated, albeit in dicta, that “[w]e agreed with the reasoning of the DeMedina court that a plaintiffs allegation of reprisal for a relative’s anti-discrimination activities states a claim upon which relief can be granted under Title VII.” Id. at 544 (referring to DeMedina v. Reinhardt, 444 F.Supp. 573 (D.D.C.1978), aff'd in part and remanded in part, 686 F.2d 997 (D.C.Cir.1982)).

Other cases have gone beyond literal language to support a construction that corresponded with a statute’s purpose. Robinson, supra, interpreted section 704(a)’s prohibition against an employer “discriminating] against any of his employees” to include former employees, because such an interpretation was “more consistent with the broader context of Title VII and the primary purpose of § 704(a).” 117 S.Ct. at 849.

In Tetro v. Elliott Popham Pontiac, Oldsmobile, Buick, and GMC Trucks, Inc. 173 F.3d 988 (6th Cir.1999), a white former employee sued his employer for discrimination, alleging he had been discharged because he had a biracial child. Id. at 994. After reviewing both the purpose of Title VII and EEOC interpretations, we held that Title VII’s prohibition against discrimination “because of such individual’s race,” 42 U.S.C. § 2000e-2(a), extended to indirect discrimination, despite the term’s absence from the statute. Id. at 995.

In NLRB v. Scrivener, 405 U.S. 117, 121, 92 S.Ct. 798, 801, 31 L.Ed.2d 79 (1972),¹ the Court interpreted section 8(a) of the National Labor Relations Act, which prohibited employers from “discharging] or otherwise discriminating] against an employee because he has filed charges or given testimony under this Act.” Id. at 118, 92 S.Ct. 798 (quoting 29 U.S.C. § 158). Despite the plain language, the Court reversed a court of appeals ruling that an employee enjoyed no protection from reprisals for other than formal charges or formal testimony. Id. at 121, 92 S.Ct. 798. It reasoned that the broader purpose of section 8(a) required protection for any participation in the investigative process. Id. Freedom from retaliation was necessary “to prevent the Board’s channels of information from being dried up by employer intimidation of prospective complainants and witnesses.” Id. at 122, 92 S.Ct. 798 (quoting John Hancock Mut. Life Ins. Co. v. NLRB, 191 F.2d 483, 485, 89 U.S.App.D.C. 261, 263 (1951)).

E.

The district court relied in part on our ruling in Bell v. Safety Grooving & Grinding, LP., 107 Fed.Appx. 607 (6th Cir.2004). In Bell, the Court affirmed a dismissal of a case under both 42 U.S.C. §§ 2000e-2 and 2000e-3. Contrary to the lower court’s characterization, Bell, an unpublished disposition, only considered plaintiffs association with his girlfriend as it related to the discrimination claim. Id. at 609. The basis the court considered for the retaliation claim, under § 2000e-3, was Bell’s “opposition” activities. Id. Bell did not analyze or decide whether § 2000e-3(a) reached retaliation claims brought under a third-party association theory.

However, the lower court acknowledged that its ruling would undermine the purposes of Title VIL That is, it recognized “that retaliating against a spouse or close associate of an employee will deter the employee from engaging in protected activity just as much as if the employee were himself retaliated against.” Thompson v. North American Stainless, LP, 435 F.Supp.2d 633, 639 (E.D.Ky.2006).

Other courts ruling similarly have made the same observation. See, e.g., Fogleman v. Mercy Hosp., Inc., 283 F.3d 561, 569 (3rd. Cir.2002) (“Allowing employers to retaliate via friends and family, therefore, would appear to be in significant tension with the overall purpose of the anti-retaliation provisions, which are intended to promote the reporting, investigation, and correction of discriminatory conduct in the workplace.”); Holt v. JTM Industries, Inc., 89 F.3d 1224, 1227 (5th Cir.1996) (“We recognize that there is a possible risk that an employer will discriminate against a complaining employee’s relative or friend in retaliation for the complaining employee’s actions.”). Fogleman even noted that “as the Seventh Circuit sagely observed, ‘To retaliate against a man by hurting a member of his family is an ancient method of revenge, and is not unknown in the field of labor relations.’ ” Id. (quoting NLRB v. Advertisers Mfg. Co., 823 F.2d 1086, 1088 (7th Cir.1987)).

The dissent asserts that “before today, no circuit court of appeals has held that Title VII creates a claim for third-party retaliation,” infra p. 654. In fact, the Eleventh Circuit characterized as “wrongful retaliatory conduct” an EEOC claimant’s charge that her husband was called by the university (their common employer) and told he would be happier teaching elsewhere. Wu v. Thomas, 863 F.2d 1543, 1547 (11th Cir.1989). In addition, the Seventh Circuit’s decision in McDonnell v. Cisneros, 84 F.3d 256, 262 (7th Cir.1996) supports a broader reading of section 704(a), and cites Wu with approval. Id. at 262 ("Wu v. Thomas, 863 F.2d 1543, 1547-48 (11th Cir.1989), goes even further in liberally interpreting section 2000e-3(a) to accomplish its evident purpose ... ”).

Other courts have expressed concerns as to whether this decision will result in a flood of suits from relatives and associates of those who file EEOC charges. See, e.g., Fogleman, 283 F.3d at 570 (“Congress may have feared that expanding the class of potential anti-discrimination plaintiffs beyond those who have engaged in protected activity to include anyone whose friends or relatives have engaged in protected activity would open the door to frivolous lawsuits and interfere with an employer’s prerogative to fire at-will employees.”).

However, Ohio Edison, supra, opened that door in this Circuit in 1993, and very few cases asserting a similar cause of action have been seen. Furthermore, as a decision which permitted the brother of an EEOC claimant to maintain such an action observed, “[t]hat Plaintiff can state a claim does not establish the EEOC can prove the elements of its case.” EEOC v. Nalbandian Sales, Inc., 36 F.Supp.2d 1206, 1213 (E.D.Cal.1998). As part of a prima facie retaliation case, all such claimants must demonstrate, inter alia, “that there was a causal connection between the protected activity and adverse employment action.” Balmer v. HCA, Inc., 423 F.3d 606, 614 (6th Cir.2005). The requirement of a prima facie case in general, and a causal link specifically protect employers from defending against merit-less suits.

Of greater concern to the court would be the result of a contrary ruling. That is, permitting employers to retaliate with impunity for opposition to unlawful practices, filing EEOC charges or otherwise participating in such efforts, as long as that retaliation is only directed at family members and friends, and not the individual conducting the protected activity. As DeMedina put it, “tolerance of third-party reprisals would, no less than the tolerance of direct reprisals, deter persons from exercising their protected rights under Title VII.” 444 F.Supp. at 580.

We REVERSE.

1 . The Supreme Court has relied on the National Labor Relations Act to "draw[] analogies ... in other Title VII contexts.” Burlington, 126 S.Ct. at 2414.