Mattson, Thomas v. Caterpillar Inc

In the

United States Court of Appeals

For the Seventh Circuit

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No. 03-2495

THOMAS MATTSON,

Plaintiff-Appellant,

v.

CATERPILLAR, INC.,

Defendant-Appellee.

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Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 01 C 7414—Michael T. Mason, Magistrate Judge.

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ARGUED JANUARY 14, 2004—DECIDED MARCH 4, 2004

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Before FLAUM, Chief Judge, and POSNER and DIANE P.

WOOD, Circuit Judges.

FLAUM, Chief Judge. In 2001, Thomas Mattson filed suit

under Title VII of the Civil Rights Act of 1964, alleging that

his employer, Caterpillar, Inc., retaliated against him in

response to a charge of sexual harassment that he had filed

with the Illinois Department of Human Rights (“IDHR”)

and the Equal Employment Opportunity Commission

(“EEOC”). The district court granted Caterpillar summary

judgment, and Mattson now appeals. For the reasons stated

herein, we affirm.

2 No. 03-2495

I. BACKGROUND

In 1999, Thomas Mattson worked as an electrician in the

engine test cell area of Caterpillar’s manufacturing facility

in Mossville, Illinois. The test cell area is quite noisy, and

as a result employees are required to wear earplugs and

must stand in close proximity to one another to converse.

One of Mattson’s supervisors in the test cell area was pro-

duction supervisor Beth Cone. Cone was responsible for

contacting electricians like Mattson whenever there were

maintenance problems. Mattson and senior electrician Paul

Hart were generally uncooperative when contacted by Cone,

and they resisted taking orders from her.

During this time period, Cone and Mattson had several

encounters. On one occasion, Cone observed Mattson sleep-

ing at work, and reported this to Mattson’s direct supervi-

sor. In April 1999, Mattson and Hart left a test cell unat-

tended when they were in the process of repairing it. When

Cone challenged this disregard of proper safety procedures,

Hart became angry and stepped toward Cone, which

prompted Mattson to restrain him. Hart was subsequently

transferred, leaving Mattson as the electrician dealing most

directly with Cone.

Approximately five days later, Mattson and two co-

workers told a maintenance manager that they were con-

cerned about physical contact with Cone. The entirety of

Mattson’s complaint consisted of one instance where one of

Cone’s breasts had touched his arm during a conversation

in the test cell area, and one instance where Cone had

reached around him to get a clipboard but had not touched

him. When Caterpillar’s EEO Coordinator Lynda White

later interviewed Mattson about the incident where Cone’s

breast allegedly touched Mattson’s arm, Mattson stated

that he did not know whether Cone had touched him in

a suggestive way and that he did not believe that she was

attracted to him. Mattson further stated that the contact

No. 03-2495 3

may have been inadvertent. Based upon this, White con-

cluded that Mattson’s complaint was without merit. Cater-

pillar then issued Mattson a warning letter which stated

that making false accusations of sexual harassment could

lead to disciplinary action and discharge. However, Cater-

pillar also counseled Cone to be careful of how closely she

stood to people.

Three months later, Mattson filed a charge of sexual

harassment with the Illinois Department of Human Rights

and the Equal Employment Opportunity Commission based

upon the aforementioned incidents with Cone. Caterpillar’s

new EEO Coordinator Christine Troglio then began another

internal investigation into the charges. At this point,

Mattson’s co-worker, Chuck Hollis, came forward with new

information. Hollis submitted a signed affidavit in which he

stated that Cone’s breast did not touch Mattson. Hollis

further stated that Mattson had told him that Mattson’s

goal was to get Cone “out of here any way possible.” After

receiving this information, Caterpillar concluded that

Mattson’s charges against Cone were made in bad faith in

an attempt to retaliate against her. Caterpillar thereafter

decided to discharge Mattson, and contends that the

discharge was due to Mattson’s dishonesty and retaliatory

conduct.

Mattson filed suit against Caterpillar in 2001, alleging

that his discharge violated Title VII of the Civil Rights

Act of 1964. The parties filed cross motions for summary

judgment, and the district court found that Mattson had

failed to offer direct evidence of discrimination and could

not prove discrimination through indirect evidence because

Caterpillar had articulated a legitimate, non-discriminatory

reason for Mattson’s discharge. The district court therefore

granted summary judgment in favor of Caterpillar, and

Mattson now appeals.

4 No. 03-2495

II. DISCUSSION

We review a district court’s grant of summary judgment

de novo, viewing the facts and drawing all reasonable in-

ferences in the light most favorable to the nonmoving party.

See Stockett v. Muncie Indiana Transit Sys., 221 F.3d 997,

1000 (7th Cir. 2000). Summary judgment is appropriate

only where “there is no genuine issue as to any material

fact and . . . the moving party is entitled to a judgment as

a matter of law.” See Fed. R. Civ. P. 56(c).

In this case, the district court found that Mattson was

unable to prove retaliatory discharge through either the di-

rect or indirect methods of proof. Under the direct method,

the plaintiff must provide either direct evidence or circum-

stantial evidence that shows that the employer acted based

on prohibited animus. See Venturelli v. ARC Comty. Servs.,

Inc., 350 F.3d 592, 599 (7th Cir. 2003). Under the indirect

method, the plaintiff must provide evidence that “after

filing the charge only he, and not any similarly situated

employee who did not file a charge, was subjected to an

adverse employment action even though he was performing

his job in a satisfactory manner.” See Stone v. City of

Indianapolis Pub. Utils. Div., 281 F.3d 640, 644 (7th Cir.

2002). If the plaintiff provides this evidence, the defendant

must then present evidence of a non-invidious reason for

the adverse action. Once the defendant presents a legiti-

mate, non-invidious reason for the adverse action, the

burden shifts back to the plaintiff to prove that the defen-

dant’s reason is pretextual. See Sitar v. Indiana Dept. of

Transp., 344 F.3d 720, 728 (7th Cir. 2003). Both methods of

proof require that the plaintiff show that he or she was

retaliated against after engaging in activity protected under

Title VII. See Hilt-Dyson v. City of Chicago, 282 F.3d 456,

465 (7th Cir. 2002).

We therefore begin by analyzing whether Mattson’s

activity was protected under Title VII. It is clear that

No. 03-2495 5

Mattson was not sexually harassed when Cone’s breast al-

legedly brushed against his arm on a single occasion or

when Cone reached around Mattson without touching him.

See, e.g., Clark County Sch. Dist. v. Breeden, 532 U.S. 268,

270 (2001) (stating that “sexual harassment is actionable

under Title VII only if it is ‘so “severe or pervasive” as to

“alter the conditions of [the victim’s] employment and create

an abusive working environment’’ ’ ”); Faragher v. City of

Boca Raton, 524 U.S. 775, 788 (1998) (stating that simple

teasing, “offhand comments, and isolated incidents (unless

extremely serious) will not amount to discriminatory

changes in the ‘terms and conditions of employment’ ”). It is

also clear that no reasonable person could believe this

constituted sexual harassment. See Adusumilli v. City of

Chicago, 164 F.3d 353, 362 (7th Cir. 1998) (holding that no

reasonable person could believe that a poke to the buttocks

constitutes sexual harassment because such conduct is too

“tepid or intermittent or equivocal”). Finally, even Mattson

himself did not believe that he had been sexually harassed,

as is evidenced by his admissions that he did not believe

Cone was attracted to him and that the touch could have

been inadvertent, as well as his statements to co-worker

Chuck Hollis that he wanted to get Cone “out of here any

way possible.” Thus, the sexual harassment charge Mattson

filed with the IDHR and EEOC was both objectively and

subjectively unreasonable, as well as made with the bad

faith purpose of retaliating against his female supervisor.

Still, Mattson insists that Title VII protects those who file

charges that are unreasonable, false, and even malicious

and defamatory. Mattson structures his argument by

drawing a distinction between the “opposition clause” and

“participation clause” of Title VII. Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e-3(a) provides that

It shall be an unlawful employment practice for an em-

ployer to discriminate against [an employee] . . . be-

cause [the employee] has opposed any practice made an

6 No. 03-2495

unlawful employment practice by this subchapter, or

because [the employee] has made a charge, testified,

assisted, or participated in any manner in an investiga-

tion, proceeding, or hearing under this subchapter.

Mattson asserts that the opposition clause, which protects

an employee who opposes “any practice made an unlawful

employment practice by this subchapter,” may include a

good faith or reasonableness requirement, but that the

participation clause, which protects an employee who

“participated in any manner in an investigation” does not

require either good faith or reasonableness for the employee

to receive Title VII protection.

Mattson finds support for this interpretation of Title VII

in dicta from several cases. See, e.g., Johnson v. University

of Cincinnati, 215 F.3d 561, 582 (6th Cir. 2000); Womack v.

Munson, 619 F.2d 1292, 1298 (8th Cir. 1980); Booker v.

Brown & Williamson Tobacco Co., 879 F.2d 1304, 1312 (6th

Cir. 1989) (stating that under the participation clause,

protection “is not lost if the employee is wrong on the merits

of the charge, nor is protection lost if the contents of the

charge are malicious and defamatory as well as wrong”

(internal citations omitted)); Pettway v. American Cast Iron

Pipe Co., 411 F.2d 998, 1007 (5th Cir. 1969). It is important

to note, however, that none of these cases actually involved

a plaintiff who filed unreasonable charges, let alone charges

that were both unreasonable and made in bad faith.

The case that most supports Mattson’s argument is

Pettway, 411 F.2d at 1003. In Pettway, an employer fired an

employee for filing a letter with the EEOC which the

employer claimed contained false and malicious accusa-

tions. The employee’s claim in Pettway, however, is distin-

guishable from Mattson’s claim. See id. The Fifth Circuit

agreed that the Pettway letter was false, but concluded that

there was no evidence that it had been motivated by malice.

Id. at 1004. In fact, the EEOC determined that the charge

No. 03-2495 7

was not made maliciously, but rather was made so that the

plaintiff could receive a hearing on his discrimination

charges. Id. The Pettway charge also did not involve a claim

that was baseless on its face. If true, the charges against

the employer would certainly have stated a claim of dis-

crimination. See id. at 1002 n.5 (The letter stated that the

employer had threatened to fire 75% of the African-Ameri-

can employees). This stands in stark contrast to Mattson’s

charges, which as already discussed did not objectively state

a claim of sexual harassment. Furthermore, there is

evidence that Mattson’s claim was filed maliciously. Thus,

Pettway does not persuade this Court that employees should

receive Title VII protection for filing unreasonable charges

in bad faith.

Rather, this Court has consistently stated that utterly

baseless claims do not receive protection under Title VII.

See, e.g., Fine v. Ryan Int’l Airlines, 305 F.3d 746, 752 (7th

Cir. 2002) (holding that to win a retaliation claim, it is

required that the employee “reasonably believed in good

faith that the practice she opposed violated Title VII” and

that it “is improper to retaliate against anyone for claiming

a violation of Title VII unless that claim is ‘completely

groundless’ ”); McDonnell v. Cisneros, 84 F.3d 256, 259 (7th

Cir. 1996) (stating that it “is improper to retaliate for the

filing of a claim of violation of Title VII even if the claim

does not have merit—provided it is not completely ground-

less. There is nothing wrong with disciplining an employee

for filing frivolous complaints” (internal citations omitted));

Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446, 1458 (7th Cir.

1994) (stating that plaintiffs need not succeed on retaliatory

discharge claims, but that they must have “a reasonable

belief” that they are challenging conduct that violates Title

VII and that they therefore cannot assert claims that are

“utterly baseless”). The purpose of requiring that plaintiffs

reasonably believe in good faith that they have suffered

discrimination is clear. Title VII was designed to protect the

8 No. 03-2495

rights of employees who in good faith protest the discrimi-

nation they believe they have suffered and to ensure that

such employees remain free from reprisals or retaliatory

conduct. Title VII was not designed to “arm employees with

a tactical coercive weapon” under which employees can

make baseless claims simply to “advance their own retalia-

tory motives and strategies.” See Spadola v. New York City

Transit Auth., 242 F. Supp. 2d 284, 292 (S.D.N.Y. 2003).

Although our Court has not explicitly held that the “not

utterly baseless” standard applies to both opposition clause

and participation clause cases, it also has not stated that

the standard is limited to opposition clause cases.

We believe that the same threshold standard should

apply to both opposition and participation clause cases.

That is, the claims must not be utterly baseless. Were we to

adopt a different standard, an employee could immunize his

unreasonable and malicious internal complaints simply by

filing a discrimination complaint with a government agency.

Similarly, an employee could assure himself unlimited

tenure by filing continuous complaints with the government

agency if he fears that his employer will discover his

duplicitous behavior at the workplace. This is not an

unrealistic parade of horribles—it is, after all, what may

have occurred in this case. Mattson filed an internal

complaint that was baseless. Had Caterpillar immediately

discovered the evidence that proved Mattson acted mali-

ciously, both parties agree that Mattson could have been

discharged at that time. However, Mattson then filed the

charge with the IDHR and EEOC and now argues that he

cannot be terminated even though Caterpillar discovered

that both charges were filed maliciously. If we were to adopt

Mattson’s arguments, it would encourage the abuse of Title

VII and the proceedings that it establishes.

Our holding is in accord with Johnson v. University of

Cincinnati, 215 F.3d 561, 582 (6th Cir. 2000), and Wideman

v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1455 (11th Cir.

No. 03-2495 9

1998), both of which left open the possibility that the

participation clause may include a good faith and reason-

ableness requirement. While Johnson stated in dicta that

an employee may file a charge that is malicious and still

receive participation clause protection, the court still

inquired into the good faith basis for the plaintiff’s com-

plaint before determining whether the plaintiff was pro-

tected under Title VII. See 215 F.3d at 582 (stating that the

plaintiff “could have reasonably believed that he had a

viable discrimination claim”). Wideman specifically dis-

cussed the possibility that retaliation claims brought under

the participation clause should not be distinguished from

those brought under the opposition clause and that both

may include a good faith, reasonableness requirement. See

141 F.3d at 1454. However, because Wideman did have a

good faith, reasonable basis for filing her charge, the court

did not have to decide whether protection from retaliation

under the participation clause is conditioned by a good

faith, reasonableness requirement. Id. at 1455.

Our holding is also consistent with the Supreme Court’s

most recent decision on this issue. See Clark County Sch.

Dist. v. Breeden, 532 U.S. 268 (2001). In Breeden, the

plaintiff’s supervisor read aloud from a personnel file that

one employee had once commented to a co-worker, “I hear

making love to you is like making love to the Grand Can-

yon.” Id. at 269. After the plaintiff complained about the

reading of this statement, she was punished for her com-

plaints. The Ninth Circuit applied its reasonableness test

and concluded that the plaintiff’s complaints were protected

activity under Title VII because they were made with a

reasonable, good faith belief that the incident constituted

unlawful sexual harassment. However, the Supreme Court

reversed, holding that “no one could reasonably believe that

the incident recounted above violated Title VII.” Id. at 270.

The Supreme Court based its decision on the fact that

“offhand comments, and isolated incidents (unless ex-

10 No. 03-2495

tremely serious) will not amount” to sexual harassment, as

well as the fact that the plaintiff had conceded that it did

not bother or upset her to read the statement in the file

herself. Id. at 271. The Supreme Court therefore concluded

that the plaintiff’s complaint did not qualify as protected

activity under Title VII.

Mattson argues that Breeden cannot be read to support a

good faith, reasonableness requirement under the parti-

cipation clause, because the Supreme Court applied this

standard only to the opposition clause conduct in that case.

While we acknowledge that the Supreme Court did not

apply the reasonableness requirement in a participation

clause context, the Supreme Court also did not hold that

the reasonableness requirement only applies to the opposi-

tion clause. Because the Supreme Court did not distinguish

between opposition and participation claims, we also decline

to do so and hold that the good faith, reasonableness

requirement applies to all Title VII claims.

We emphasize that this decision sets a low bar for re-

ceiving Title VII protection. Protection is not lost simply

because an employee is mistaken on the merits of his or her

charge. Protection also is not lost if an employee drafts a

complaint as best he or she can but does not state an

effective legal claim. Cf. Sias v. City Demonstration Agency,

588 F.2d 692, 695 (9th Cir. 1978) (expressing concern that

if protection turns on the merits of an employee’s claim,

participation under Title VII “would be severely chilled”);

Pettway v. American Cast Iron Pipe Co., 411 F.2d 998, 1005

(5th Cir. 1969) (explaining that the participation clause

must offer broad protection because individuals draft

charges as best they can “without expert legal advice” in

challenging “huge industrial employer[s] in this modern day

David and Goliath confrontation”). However, the unique

circumstances of this case present us with a complaint that

is not only unreasonable and meritless, but also motivated

by bad faith. Against this factual backdrop, we find that

No. 03-2495 11

Mattson’s claim is not deserving of protection under the

participation clause of Title VII. The paucity of case law on

point illustrates the rarity of such claims as well as the

limited nature of our holding.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s

grant of summary judgment in favor of Caterpillar.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—3-4-04