Thoughts

HOW RAY V. HENDERSON WAS ADOPTED INTO THE SUPREME COURT RETALIATION PRECEDENT--BURLINGTON V. WHITE (2006)

THE NEW PRECEDENT:

Justice Breyer, Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

BURLINGTON NORTHERN AND SANTA FE RAILWAY
COMPANY, PETITIONER v. SHEILA WHITE

on writ of certiorari to the United States Court of Appeals for the sixth circuit
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[June 22, 2006]
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Justice Breyer delivered the opinion of the Court.

Title VII of the Civil Rights Act of 1964 forbids employment discrimination against “any individual” based on that individual’s “race, color, religion, sex, or national origin.” Pub. L. 88–352, §704, 78 Stat. 257, as amended, 42 U. S. C. §2000e–2(a). A separate section of the Act—its anti-retaliation provision— forbids an employer from “discriminat[ing] against” an employee or job applicant because that individual “opposed any practice” made unlawful by Title VII or “made a charge, testified, assisted, or participated in” a Title VII proceeding or investigation. §2000e–3(a).

The Courts of Appeals have come to different conclusions about the scope of the Act’s anti-retaliation provision, particularly the reach of its phrase “discriminate against.” Does that provision confine actionable retaliation to activity that affects the terms and conditions of employment? And how harmful must the adverse actions be to fall within its scope?

We conclude that the anti-retaliation provision does not confine the actions and harms it forbids to those that are related to employment or occur at the workplace. We also conclude that the provision covers those (and only those) employer actions that would have been materially adverse to a reasonable employee or job applicant. In the present context that means that the employer’s actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.

I

A

This case arises out of actions that supervisors at petitioner Burlington Northern & Santa Fe Railway Company took against respondent Sheila White, the only woman working in the Maintenance of Way department at Burlington’s Tennessee Yard. In June 1997, Burlington’s roadmaster, Marvin Brown, interviewed White and expressed interest in her previous experience operating forklifts. Burlington hired White as a “track laborer,” a job that involves removing and replacing track components, transporting track material, cutting brush, and clearing litter and cargo spillage from the right-of-way. Soon after White arrived on the job, a co-worker who had previously operated the forklift chose to assume other responsibilities. Brown immediately assigned White to operate the forklift. While she also performed some of the other track laborer tasks, operating the forklift was White’s primary responsibility.

In September 1997, White complained to Burlington officials that her immediate supervisor, Bill Joiner, had repeatedly told her that women should not be working in the Maintenance of Way department. Joiner, White said, had also made insulting and inappropriate remarks to her in front of her male colleagues. After an internal investigation, Burlington suspended Joiner for 10 days and ordered him to attend a sexual-harassment training session.

On September 26, Brown told White about Joiner’s discipline. At the same time, he told White that he was removing her from forklift duty and assigning her to perform only standard track laborer tasks. Brown explained that the reassignment reflected co-worker’s complaints that, in fairness, a “ ‘more senior man’ ” should have the “less arduous and cleaner job” of forklift operator. 364 F. 3d 789, 792 (CA6 2004) (case below).

On October 10, White filed a complaint with the Equal Employment Opportunity Commission (EEOC or Commission). She claimed that the reassignment of her duties amounted to unlawful gender-based discrimination and retaliation for her having earlier complained about Joiner. In early December, White filed a second retaliation charge with the Commission, claiming that Brown had placed her under surveillance and was monitoring her daily activities. That charge was mailed to Brown on December 8.

A few days later, White and her immediate supervisor, Percy Sharkey, disagreed about which truck should transport White from one location to another. The specific facts of the disagreement are in dispute, but the upshot is that Sharkey told Brown later that afternoon that White had been insubordinate. Brown immediately suspended White without pay. White invoked internal grievance procedures. Those procedures led Burlington to conclude that White had not been insubordinate. Burlington reinstated White to her position and awarded her backpay for the 37 days she was suspended. White filed an additional retaliation charge with the EEOC based on the suspension.

B

After exhausting administrative remedies, White filed this Title VII action against Burlington in federal court. As relevant here, she claimed that Burlington’s actions—(1) changing her job responsibilities, and (2) suspending her for 37 days without pay—amounted to unlawful retaliation in violation of Title VII. §2000e–3(a). A jury found in White’s favor on both of these claims. It awarded her $43,500 in compensatory damages, including $3,250 in medical expenses. The District Court denied Burlington’s post-trial motion for judgment as a matter of law. See Fed. Rule Civ. Proc. 50(b).

Initially, a divided Sixth Circuit panel reversed the judgment and found in Burlington’s favor on the retaliation claims. 310 F. 3d 443 (2002). The full Court of Appeals vacated the panel’s decision, however, and heard the matter en banc. The court then affirmed the District Court’s judgment in White’s favor on both retaliation claims. While all members of the en banc court voted to uphold the District Court’s judgment, they differed as to the proper standard to apply. Compare 364 F. 3d, at 795–800, with id., at 809 (Clay, J., concurring).

II

Title VII’s anti-retaliation provision forbids employer actions that “discriminate against” an employee (or job applicant) because he has “opposed” a practice that Title VII forbids or has “made a charge, testified, assisted, or participated in” a Title VII “investigation, proceeding, or hearing.” §2000e–3(a). No one doubts that the term “discriminate against” refers to distinctions or differences in treatment that injure protected individuals. See Jackson v. Birmingham Bd. of Ed., 544 U. S. 167, 174 (2005) ; Price Waterhouse v. Hopkins, 490 U. S. 228, 244 (1989) (plurality opinion); see also 4 Oxford English Dictionary 758 (2d ed. 1989) (def. 3b). But different Circuits have come to different conclusions about whether the challenged action has to be employment or workplace related and about how harmful that action must be to constitute retaliation.

Some Circuits have insisted upon a close relationship between the retaliatory action and employment. The Sixth Circuit majority in this case, for example, said that a plaintiff must show an “adverse employment action,” which it defined as a “materially adverse change in the terms and conditions” of employment. 364 F. 3d, at 795 (internal quotation marks omitted). The Sixth Circuit has thus joined those Courts of Appeals that apply the same standard for retaliation that they apply to a substantive discrimination offense, holding that the challenged action must “resul[t] in an adverse effect on the ‘terms, conditions, or benefits’ of employment.” Von Gunten v. Maryland, 243 F. 3d 858, 866 (CA4 2001); see Robinson v. Pittsburgh, 120 F. 3d 1286, 1300 (CA3 1997). The Fifth and the Eighth Circuits have adopted a more restrictive approach. They employ an “ultimate employment decisio[n]” standard, which limits actionable retaliatory conduct to acts “ ‘such as hiring, granting leave, discharging, promoting, and compensating.’ ” Mattern v. Eastman Kodak Co., 104 F. 3d 702, 707 (CA5 1997); see Manning v. Metropolitan Life Ins. Co., 127 F. 3d 686, 692 (CA8 1997).

Other Circuits have not so limited the scope of the provision. The Seventh and the District of Columbia Circuits have said that the plaintiff must show that the “employer’s challenged action would have been material to a reasonable employee,” which in contexts like the present one means that it would likely have “dissuaded a reasonable worker from making or supporting a charge of discrimination.” Washington v. Illinois Dept. of Revenue, 420 F. 3d 658, 662 (CA7 2005); see Rochon v. Gonzales, 438 F. 3d 1211, 1217–1218 (CADC 2006). And the Ninth Circuit, following EEOC guidance, has said that the plaintiff must simply establish “ ‘adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity.’ ” Ray v. Henderson, 217 F. 3d 1234, 1242–1243 (CA9 2000). The concurring judges below would have applied this last mentioned standard. 364 F. 3d, at 809 (opinion of Clay, J.). [This was because Judge Clay emphasized the centrality of the EEOC standard in the original Title VII mandating legislation.]

We granted certiorari to resolve this disagreement. To do so requires us to decide whether Title VII’s anti-retaliation provision forbids only those employer actions and resulting harms that are related to employment or the workplace. And we must characterize how harmful an act of retaliatory discrimination must be in order to fall within the provision’s scope.


THE ADOPTED LANGUAGE FROM RAY v.HENDERSON:

In Burlington v. White, summary by Christian J. Brann,

The Sixth Circuit's definition of adverse employment action was narrower than some and broader than other definitions proffered by the various circuit courts. For example, the Fifth and Eighth Circuits held that only "ultimate employment decisions" — acts such as hiring, granting leave, discharging, promoting, and compensating — would be subject to review.27 On the other hand, the Ninth Circuit held that as long as the employer's action was "reasonably likely to deter" employees from engaging in activity protected by the provision, that action would be prohibited28. (Ray v. Henderson language — emphasis added.)

...Thus, when applying the standard, [of what retaliation is] an employer must simply consider whether the retaliation might well deter a reasonable employee from complaining about discrimination in general, not the specific discrimination alleged by the employee.80 (Burlington v. White language— emphasis added.)

SUMMARY FROM CORNELL SCHOOL OF LAW:
BURLINGTON NORTHERN & SANTA FE RAILWAY CO. V. WHITE
CHRISTIAN J. BRANN*

On June 22, 2006, the United States Supreme Court broadened the purview of the anti-retaliation provision of Title VII1 in all circuits but one when it held that the provision prohibits those employer actions that would be considered materially adverse by a reasonable employee, regardless of whether such actions occurred at the workplace or were related to employment.2 In so holding, the Supreme Court did three things worthy of comment. First, the Court expunged the confusion caused by disparate and incompatible treatments of the anti-retaliation provision by the circuit courts. Second, by subjecting all employer action to review, the Court reassured employees that by pursuing or assisting the pursuit of a discrimination claim an employee need not endure, without recourse, those dissuasive actions of his or her employer that are marginally work-related. Third, by instituting a coherent materially adverse standard, the Court assuaged a common fear of employers [*pg 111] that any workplace conduct chronologically proximate to a claim of discrimination is kindling for an anti-retaliation claim.

BACKGROUND

A dispute between Burlington Northern & Santa Fe Railway Company, the petitioner, and Sheila White, the respondent, afforded the Supreme Court the opportunity to articulate its most recent interpretation of Title VII. That dispute commenced in the summer of 1997 when Burlington Northern hired White as a track laborer in its Maintenance and Way department.3 As a track laborer, White's job duties included removing and replacing track components, transporting track material, cutting brush, and clearing litter and cargo spillage.4 However, soon after being hired, White was told that she would be operating a forklift instead.5

In September of 1997, White complained to Burlington Northern officials that her immediate supervisor, Bill Joiner, had not only frequently commented to her that women should not be working in the Maintenance and Way department, but that he also directed insulting and inappropriate remarks to her in front of her male co-workers.6 After an internal investigation, Joiner was suspended for ten days and ordered to attend sexual-harassment training, and White was told to discontinue her operation of the forklift and to resume the standard track laborer job duties.7 White was informed that the impetus for her reassignment was co-worker complaints that [*pg 112] a "more senior man" should have the "less arduous and cleaner job" of forklift operator.8 The change in White's job duties did not alter her pay or benefits.9

In October of 1997, White filed a retaliation charge with the Equal Employment Opportunity Commission (EEOC) claiming that her reassignment constituted an unlawful retaliation for her September complaint about Joiner.10 Despite filing the charge, White continued working for Burlington Northern until December of 1997 when, after a disagreement with her immediate supervisor, White was suspended without pay for allegedly being insubordinate.11 Subsequent internal grievance procedures concluded that White had not been insubordinate, and she was consequently reinstated and awarded backpay for the thirty-seven days she was suspended.12 White filed an additional retaliation charge for her suspension.13

After exhausting her administrative remedies under the EEOC, White filed suit against Burlington Northern in the United States District Court for the Western District of Tennessee claiming that Burlington Northern, in changing her job responsibilities and suspending her for thirty-seven days, had unlawfully retaliated against her in violation of Title VII.14 The jury returned a verdict in favor of White on her retaliation claim.15 A divided Sixth Circuit [*pg 113] panel reversed the judgment.16

SIXTH CIRCUIT INTERPRETATION OF THE ANTI-RETALIATION PROVISION

The Sixth Circuit, on rehearing en banc, agreed with the District Court that there was sufficient evidence for the jury to find that the thirty-seven-day unpaid suspension, as well as the transfer to a more arduous and dirtier job, constituted unlawful retaliation.17 However, indicative of the disagreement between the other circuit courts, the majority and minority construed the phrase "discriminate against" in Title VII's anti-retaliation provision differently.18

Title VII does not define "discriminate against,"19 thus obliging courts to breathe life into the phrase before it can be applied to the facts.20 Consequently, the various circuit courts have reached different conclusions regarding both whether an employer action challenged under the provision must be employment or workplace related, and how harmful or injurious an employer action must be to constitute retaliation.21

An eight-judge majority of the en banc Sixth Circuit held that in order to "prevent lawsuits based upon trivial workplace [*pg 114] dissatisfactions," a plaintiff must prove the existence of an adverse employment action in an anti-retaliation claim. 22 According to the majority, an adverse employment action is a "materially adverse change in the terms and conditions of [the employee's] employment."23 Contained within that definition of adverse employment action were two requisite directives for the resolution of anti-retaliation claims in the Sixth Circuit.24 First, only changes in "terms and conditions of employment" would be scrutinized by the court.25 Second, to be actionable, those changes must be "materially adverse" to the employee.26

The Sixth Circuit's definition of adverse employment action was narrower than some and broader than other definitions proffered by the various circuit courts. For example, the Fifth and Eighth Circuits held that only "ultimate employment decisions" — acts such as hiring, granting leave, discharging, promoting, and compensating -- would be subject to review.27 On the other hand, the Ninth Circuit held that as long as the employer's action was "reasonably likely to deter" employees from engaging in activity protected by the provision, that action would be prohibited.28 (Ray v. Henderson)

MY VIEW:

This concept, the EEOC "reasonably likely to deter" standard, along with the other legal prong, demonstrable material effects of retaliation, make up the new standard in the field. RAY V. HENDERSON is subsumed into that standard and is retired as the 9th Circuit precedent.

The Supreme Court granted certiorari [review of error] for Burlington v. White (2006), without detailed discussion of the EEOC principle represented in Ray. v. Henderson, though Judge Breyer referred to the majority's preference for it as contained in Judge Clay's 6th Circuit concurrence. See the last paragraph of his introduction above.

The Court essentially adopted it into the modified language of prohibiting retaliatory employer action that "might well deter a reasonable employee" instead of the 9th Circuit opinion's more precise phrase "reasonably likely to deter the charging parties or others from engaging in protected activity."

This labored variation tends to throw the emphasis to who constitutes a reasonable employee, instead of emphasizing what is violative employer action. Every employee understands what "deterring" employer action amounts to. That is the improper, vengeful, usually punitive, retaliatory use of employer power, when in work situations even to question the employer is asking for trouble. There is a term for using power intentionally and punitively in Post Office parlance: 'getting' you. Bureaucratic vengeance unlawfully harms the employee and consequently is "reasonably likely to deter" him or anyone else around that employee from taking protected administrative remedies and redress.

Regarding the patching in of the term "reasonable employee" instead of actions reasonably likely to deter, the legal standard for prohibiting retaliatory employer action should not have been skewed into a quasi-psychological examination, i.e., the awkward notion of whether the employee is a "reasonable" employee experiencing retaliation. Alito jumped right on that gaffe to disingenuously weaken the majority opinion.

His objections, in a separate but concurring opinion, were foolish, especially the objection claiming that, given a two-pronged material effect/worker-remedy-deterring standard for employer restraint, the protections against retaliation were stronger than those against the original discrimination. He rather peevishly equated the two categories of discrimination and retaliation and used an abstruse calculation that lower discrimination abuse would lead to greater and capricious retaliation claims. Conversely higher retaliation would not discourage those with significant discrimination. This was ad hoc sociology.

The distinction between the legal categories is plain. To Title VII, discrimination violates the basic rights of a minority or objecting observing employee. The related retaliation proscriptions after the violation protect means of inquiry into the discrimination. Employers over-running those means by retaliating destroy the protected processes. Unobstructed procedures to examine possible discrimination should have teeth that will warn off arbitrary employer attacks and vendettas. How else can a system of law achieve justice between unequal parties, when the stronger party can punitively foreclose the weaker's remedy? Obviously Alito has never been subject to arbitrary authority with the power and desire to ruin his life. He pre-judges unfair advantage to the employee, as if the employee got in that position willfully and shouldn't be allowed to get off easy, i.e., claim rights to equitable treatment. He must find the Magna Carta guarantees insulting instead of a barrier to unwarranted power.

It is heartening that a fork-lift driver and a rural carrier resorted to law, persevered, and eventually obtained symbolic equitable treatment even if belatedly. In such cases, moral victory usually has to do. The spirit of justice wasn't there in the first instance. Had it existed, conflict would have been unnecessary. On the ground level after all this time, at least in my case, there was only a paper change in the US Postal Service treatment. The law-breaking individuals were not publically sanctioned. They were protected and promoted. The violators suffered only in that their denied shame displayed an uneasy conscience and caused pause in the general community. The corporate institution tacitly endorsed their legally insupportable means by its amorality.

In my opinion, the language of the White precedent ended up quite convoluted due to a political motive: Justice Breyer, in making the opinion palatable to his right-wing brethren, was not going to adopt the 9th Circuit opinion entire, as did Judge Clay of the 6th Circuit, because of the 9th Circuit's generally negative reputation with the rest of the legal elite. The 9th Circuit is broadly characterized as "too liberal" and beneath the favor of Justices appointed by the likes of Ronald Reagan, George H.W. Bush, and George W. Bush, three of the most mediocre minds ever to take the oath to "preserve, protect, and defend the Constitution of the United States". As it was, eleven years after my particular case began, Justice Breyer successfuly achieved a 9-0 majority in Burlington v. White, a rare concession to the most elementary rights of American workers. I am humbly proud to have contributed to that object.

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