Slagle v. Clarion

Opinions of the United

2006 Decisions States Court of Appeals

for the Third Circuit

1-12-2006

Slagle v. Clarion

Precedential or Non-Precedential: Precedential

Docket No. 04-2622

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 04-2622

TIMOTHY A. SLAGLE,

Appellant

v.

COUNTY OF CLARION;

CLARION COUNTY JAIL

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civil No. 02-cv-00960)

District Judge: Hon. Terrence F. McVerry

Argued July 14, 2005

Before: SLOVITER, McKEE and WEIS, Circuit Judges

(Filed: January 12, 2006)

Neal A. Sanders (Argued)

Law Offices of Neal Alan Sanders

1924 North Main Street Extension

Route 8 North

Butler, PA 16001

Attorney for Appellant

Louis C. Long

Marie Milie Jones (Argued)

Meyer, Darragh, Buckler, Bebenek & Eck, P.L.L.C.

U.S. Steel Tower, Suite 4850

600 Grant Street

Pittsburgh, PA 15219

Attorneys for Appellees

OPINION OF THE COURT

SLOVITER, Circuit Judge.

Timothy A. Slagle, a former correctional officer at the

Clarion County Jail in Pennsylvania, appeals from the Order of

the District Court granting summary judgment in favor of his

employer, the County of Clarion, and dismissing Slagle’s claims

of retaliatory discharge in violation of Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e-3a, and the Pennsylvania

Human Relations Act (“PHRA”).1 We review a grant of

summary judgment de novo, applying the same standard as did

the district court. Antonelli v. New Jersey, 419 F.3d 267, 272

(3d Cir. 2005).

I.

Slagle was employed as a correctional officer at the

Clarion County Jail (“Jail”) from October 1996 to February

2002. Several separate incidents are relevant to the issue before

us. In April 2001, Slagle, using testing material belonging to the

Jail, gave himself an HIV test at his home and submitted the test

to the Pennsylvania Department of Health for analysis without

1

Slagle also raises a claim of hostile work environment.

Because Slagle mentions this claim only once in his brief and only

in passing, we hold that Slagle waived the claim. See Laborer’s

Int’l Union v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir.

1994) (finding an issue waived because “passing reference to an

issue . . . will not suffice to bring that issue before this court”)

(citation omitted).

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identifying the subject of the test. The Pennsylvania Department

of Health mailed the results of the anonymous test back to the

Jail. Deputy Warden Traister, who received the results of the

test, assumed that the test had been administered to an inmate.

Because he had not authorized any HIV testing of inmates, he

began an internal investigation to determine who had conducted

the unauthorized HIV test. Slagle refused to cooperate with the

investigation but, at a hearing held subsequently, he admitted

that he was the subject of the test.

In a separate incident that occurred on May 11, 2001,

Slagle allegedly told the officer in charge who was on duty that a

state trooper had engaged in inappropriate behavior during an

inmate interview. Later that day Warden John Rowley accused

Slagle of going outside the chain of command by threatening to

report the trooper’s behavior to his supervisor. Slagle denied

making any such threat. By letter dated May 14, 2001, Slagle

received a one-day suspension for his failure to cooperate with

the deputy warden’s investigation of the HIV test and for his

May 11 “threat” to go outside the chain of command. In

addition, Slagle received a two-week suspension without pay in

July, 2001, for making inappropriate comments to a female

inmate and sexually harassing a female correctional officer.

On September 10, 2001, Slagle filed a complaint against

Clarion County with the Equal Employment Opportunity

Commission (“EEOC”) in connection with his May 2001 and

July 2001 suspensions. In the complaint, Slagle stated: “the

Respondent discriminated against me because of

whistleblowing, in violation of my Civil Rights, and invasion of

privacy.” App. at 96. By letter dated October 31, 2001, the

EEOC notified Slagle that it dismissed his charge because “the

facts [he] alleg[ed] failed to state a claim under any of the

statutes enforced by the Commission.” App. at 14.

On January 2, 2002, Slagle was advised that he was being

discharged from his position at the Jail for gross insubordination

and for allegedly lying that he had not received notice of the

denial of his request to have a vacation day on December 25,

2001, and for not working on that day pending a Loudermill

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hearing.2 Slagle filed a union grievance in January related to his

discharge, which he withdrew a week later. Slagle filed a

second charge with the EEOC on January 15, 2002, alleging that

his employment was terminated in retaliation for having filed the

September 2001 EEOC charge.

Approximately two weeks later, the Director of Finance

and Human Resources for Clarion County advised Slagle that

Clarion County had determined that he would not be terminated.

Instead, he would be suspended without pay through February 2,

2002, but would not lose seniority or other benefits during the

suspension. Nonetheless, Slagle never returned to work after

January 2, 2002.

On February 8, 2002, Slagle filed a third charge with the

EEOC in which he asserted that Clarion County discriminated

against him “because of [his] gender, male, in violation of Title

VII as to gender discrimination and the PHRA.” App. at 129.

The EEOC notified Slagle that his complaint was dismissed

because “the Commission [was] unable to conclude that the

information obtained establish[ed] violations of the statutes.”

App. at 12.

Slagle thereafter filed this lawsuit on May 29, 2002,

against Clarion County in the United States District Court for the

Western District of Pennsylvania, alleging that his termination

was a result of unlawful retaliation in violation of Title VII.3

2

In Cleveland Board of Education v. Loudermill, 470 U.S.

532 (1985), the Supreme Court held that a public employee is

entitled to a “pretermination hearing [that] need not definitively

resolve the propriety of the discharge. It should be an initial check

against mistaken decisions-- essentially, a determination of whether

there are reasonable grounds to believe that the charges against the

employee are true and support the proposed action.” Id. at 545-46.

3

The District Court dismissed Clarion County Jail as a

defendant in this case, stating “it is well established in the Third

Circuit that a prison is not a ‘person’ subject to suit under federal

civil rights laws.” Slagle v. County of Clarion and Clarion County

4

Slagle alleges that after he filed his charge with the EEOC in

September 2001, he was subject to antagonism at the workplace

in the form of unwarranted work criticism, cancellation of a

previously scheduled vacation, and unwarranted disciplinary

action. He expounds on his complaint by asserting in his brief

that he was “excluded from participating in inmate hearings

while less experienced correctional officers were selected . . .

[and he] began to be reprimanded for minor items . . . that other

correctional officers engaged in without being criticized[.]”

Appellant’s Br. at 6-7.

The District Court granted summary judgment for Clarion

County. It applied the framework established by the Supreme

Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973), and held that Slagle had failed to establish a prima facie

case. The District Court stated that Slagle “failed to establish

that he engaged in protected activity, which is an essential

element of a prima facie case of retaliation under Title VII.”

App. at 41. Slagle appeals.

II.

In reviewing the grant of summary judgment, we must

view “the underlying facts and all reasonable inferences

therefrom in the light most favorable to the party opposing the

motion.” In re Flat Glass Antitrust Litig., 385 F.3d 350, 357 (3d

Cir. 2004). Summary judgment is appropriate where there are

no genuine issues of material fact and the moving party is

entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).

To prevail on a claim of retaliatory discharge in violation

of Title VII and the analogous provision of the PHRA,4 Slagle

Jail, No. 02-0960 (W.D. Pa. filed March 6, 2003).

4

In pertinent part, the PHRA states:

It shall be an unlawful discriminatory practice . . .

[f]or any person, employer, employment agency or

labor organization to discriminate in any manner

5

must demonstrate that: 1) he engaged in conduct protected by

Title VII; 2) his employer took an adverse action against him

either after or contemporaneous with the protected activity; and

3) a causal link exists between his protected conduct and the

employer’s adverse action. Weston v. Pennsylvania, 251 F.3d

420, 430 (3d Cir. 2001).5

Slagle argues that the District Court erred in holding that

he failed to establish that he engaged in conduct protected under

Title VII. Title VII prohibits employers from discriminating on

the basis of race, color, religion, sex, or national origin. 42

U.S.C. § 2000e-2. The anti-retaliation provision of Title VII

provides, in pertinent part:

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 subchapter.

against any individual because such individual has

opposed any practice forbidden by this act, or

because such individual has made a charge, testified

or assisted, in any manner, in any investigation,

proceeding or hearing under this act.

43 Pa. Cons. Stat. § 955(d).

5

This court has stated “‘that the PHRA is to be interpreted

as identical to federal anti-discrimination laws except where there

is something specifically different in its language requiring that it

be treated differently.’” Fasold v. Justice, 409 F.3d 178, 184 n.8

(3d Cir. 2005) (quoting Fogleman v. Mercy Hosp., Inc., 283 F.3d

561, 567 (3d Cir. 2002)). The PHRA provisions here at issue

contain no such language; therefore, we will interpret the

implicated provisions of Title VII and PHRA as applying

identically in this case and as being governed by the same set of

decisional law.

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42 U.S.C. § 2000e-3(a) (emphasis added).

Slagle argues that filing a charge with the EEOC

constitutes protected activity under the participation clause,

which protects an employee who has “made a charge [or

otherwise] participated . . . in an investigation . . . under this

subchapter.” He asserts that he engaged in protected activity

when he filed a charge alleging “unspecified civil rights

violations.” Appellant’s Br. at 14.

The District Court found that Slagle had only made

general complaints of unfair treatment. Relying on this court’s

decision in Barber v. CSX Distribution Services, 68 F.3d 694,

701-02 (3d Cir. 1995), the District Court stated that “a general

complaint of unfair treatment does not translate into a charge of

illegal discrimination, and is not protected conduct under Title

VII.” Slagle v. County of Clarion, No. 02-0960, slip op. at 6

(W.D. Pa. May 13, 2004).

In Barber, the plaintiff, who was an employee of the

defendant, wrote a letter to the defendant’s Human Resources

Department complaining that an available position had been

awarded to a less-qualified person. The plaintiff’s position was

eliminated soon thereafter, and he filed a suit alleging that his

position had been eliminated to retaliate for the letter of

complaint and that this retaliation violated the Age

Discrimination in Employment Act (“ADEA”). Barber’s claim

was based on the “opposition clause” of the ADEA, section

704(a), which protects from retaliation employees who oppose

any practice made unlawful by Title VII. See 29 U.S.C. §

623(d). The District Court had entered judgment for the

employer following a jury verdict for Barber, but this court

reversed, holding that defendant’s failure to promote Barber

violated the ADEA. On the other hand, we affirmed the

dismissal of the retaliation claim because Barber’s letter to

defendants’ Human Resources Department did not specifically

complain about age discrimination and therefore did “not

constitute the requisite ‘protected conduct’ for a prima facie case

of retaliation.” 68 F.3d at 701-02. The ADEA’s provision

against retaliatory discharge is identical to that of Title VII. The

defect with Barber’s retaliation claim was that he never

7

explicitly claimed that he was discriminated against on the basis

of age.

In contrast to Barber’s claim of unlawful retaliatory

discharge which was based on the “opposition clause” of the

ADEA, Slagle’s claim arises under the “participation clause” of

Title VII. Commentators have noted that “[i]t is essential to the

analysis of § 704(a) to recognize its two different clauses. . . .

The distinction is significant because the levels of statutory

protection differ.” Barbara L. Schlei & Paul Grossman,

Employment Discrimination Law 533 (2d ed. 1983); see also

Proulx v. Citibank, 659 F. Supp. 972 (S.D.N.Y. 1987) (same);

cf. Robinson v. Southeastern Pa. Transp. Auth., 982 F.2d 892,

896 n.4 (3d Cir. 1993) (noting that courts have distinguished

between the activities protected by the two clauses of 42 U.S.C.

§ 2000e-3(a)).

Courts that have interpreted the “participation clause”

have held that it offers much broader protection to Title VII

employees than does the “opposition clause.” See, e.g., Deravin

v. Kerik, 335 F.3d 195, 203 (2d Cir. 2003) (“[C]ourts have

consistently recognized [that] the explicit language of § 704(a)’s

participation clause is expansive and seemingly contains no

limitations.”); Booker v. Brown & Williamson Tobacco Co., 879

F.2d 1304, 1312 (6th Cir. 1989) (noting that “courts have

generally granted less protection for opposition than for

participation” and that the participation clause offers

“exceptionally broad protection”); Sias v. City Demonstration

Agency, 588 F.2d 692, 695 (9th Cir. 1997) (stating that the

opposition clause serves “a more limited purpose” and is

narrower than the participation clause); Pettway v. American

Cast Iron Co., 411 F.2d 998, 1006 n.18 (5th Cir. 1969) (noting

that the participation clause provides “exceptionally broad”

protection for employees covered by Title VII).

The question before us, one of first impression, is whether

the participation clause of section 704(a) protects an employee

who files a facially invalid claim for retaliatory discharge.

It is well-settled that “[t]he first step in interpreting a

statute is to determine whether the language at issue has a plain

8

and unambiguous meaning with regard to the particular dispute

in the case.” United States v. Cooper, 396 F.3d 308, 310 (3d Cir.

2005) (internal quotation marks and citation omitted). As noted,

the statute provides: “[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). The language at issue has

a clear and unambiguous meaning. An employee filing a charge

is protected only if the charge is brought under “this

subchapter.” The phrase “this subchapter” refers specifically to

42 U.S.C. §§ 2000e through 2000e-17, the provisions that set

forth an employee’s rights when an employer has discriminated

against him or her on the basis of race, color, sex, religion, or

national origin. It follows that a charge “under this subchapter”

is a charge that alleges discrimination on the basis of those

prohibited grounds.

Slagle’s argument that an employee is protected when

s/he files any charge, regardless of its content, is to render the

phrase “under this subchapter” meaningless. Such an

interpretation is contrary to the accepted rules of statutory

interpretation. See Cooper, 396 F.3d at 312 (“It is a well known

canon of statutory construction that courts should construe

statutory language to avoid interpretations that would render any

phrase superfluous.”); see also Philip J. Pfeiffer, Employment

Discrimination Law 499 (2002) (“The retaliation provisions of

[Title VII] do not protect employees from retaliation for filing

any charge alleging any misconduct; to gain protection, the

charge – factually supported or not – must allege conduct within

the scope of the statute.”).

Of course, because Title VII is a remedial statute, it must

be interpreted liberally. See, e.g., Bowers v. NCAA, 346 F.3d

402, 431 n.24 (3d Cir. 2003) (“We recognize that

[ ]Title VII is clearly remedial civil rights legislation . . . .”);

Idahoan Fresh v. Advantage Produce, Inc., 157 F.3d 197, 204

(3d Cir. 1998) (noting that liberal construction of a statute is

appropriate where that statute is remedial). Even if a plaintiff

files a complaint with the incorrect agency, but alleges

discrimination, s/he is protected by Title VII. See Hicks v. Abt

Assoc., Inc., 572 F.3d 960, 969 (3d Cir. 1978) (“Defendant’s

9

interpretation would mean that if the employee first turned to the

wrong agency even with a meritorious claim, that employee

could be discharged before he was eventually directed to the

EEOC. Such an interpretation would undercut the purposes of

section 704.”). Therefore, we require only that the plaintiff file a

formal complaint that alleges one or more prohibited grounds in

order to be protected under Title VII. But we cannot dispense

with the requirement that the plaintiff allege prohibited grounds.

The result we reach is consistent with that reached in

cases from the Fourth and the Ninth Circuit Courts of Appeals

addressing the issue of whether § 704(a) protects an employee

who files a facially invalid claim of retaliatory discharge. In

Learned v. City of Bellevue, 860 F.2d 928, 932 (9th Cir. 1988),

the court held that “[t]he mere fact that an employee is

participating in an investigation or proceeding involving charges

of some sort of discrimination . . . does not automatically trigger

the protection afforded under section 704(a) . . . .” The Learned

court found that because the plaintiff’s complaint did not allege

discrimination prohibited by Title VII, he was not protected from

the adverse employment actions taken by his employer in

response to his complaint.6 In Balazs v. Liebenthal, 32 F.3d 151,

159-60 (4th Cir. 1994), the court relied on Learned in holding

that the plaintiff’s retaliation claim failed because, inter alia, the

“plaintiff’s previous claim[,] the filing of which was alleged to

have given rise to the retaliation claim, was not one cognizable

under Title VII of the Civil Rights Act of 1964.”

Our holding that Slagle’s filing of a facially invalid

complaint does not constitute “participation” for the purposes of

Title VII does not raise the low bar that Title VII sets for

employees seeking protection against retaliation. A plaintiff

need only allege discrimination on the basis of race, color,

religion, sex, or national origin to be protected from retaliatory

6

The plaintiff in Learned had complained to the state of

“discrimination on the basis of physical and mental limitations in

violation of state law.” Learned, 860 F.2d at 930. The Learned

court also stated that the participation clause requires that “the

underlying discrimination must be reasonably perceived as

discrimination prohibited by Title VII.” Id. at 932.

10

discharge under Title VII. Protection is not lost merely because

an employee is mistaken on the merits of his or her claim. See,

e.g., Pettway, 411 F.2d at 1005 (explaining that the participation

clause must offer broad protection because individuals draft

charges “as best they can without expert legal advice” and often

face “a huge industrial employer in this modern day David and

Goliath confrontation”). Slagle’s complaint, with its vague

allegations of “civil rights” violations, did not meet even this

low bar.

Once a plaintiff files a facially valid complaint, the

plaintiff will be entitled to the broad protections of § 704(a), as

interpreted by the EEOC and by numerous courts. Section 8-II

of the EEOC Compliance Manual states that a plaintiff is

protected under the participation clause “regardless of whether

the allegations in the original charge were valid or reasonable.”

See also Johnson v. University of Cincinnati, 215 F.3d 561, 582

(6th Cir. 2000) (“The exceptionally broad protections of the

participation clause extends to persons who have participated in

any manner in Title VII proceedings . . . . 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 or

defamatory as well as wrong.”) (internal quotation marks and

citation omitted); Wyatt v. City of Boston, 35 F.3d 13, 15 (1st

Cir. 1994) (“[T]here is nothing [in the wording of the

participation clause] requiring that the charges be valid, nor even

an implied requirement that they be reasonable.”) (citation

omitted); Proulx, 659 F. Supp. at 977 (noting that courts give

“basically absolute protection for ‘participation conduct.’”)

(citation omitted). All that is required is that plaintiff allege in

the charge that his or her employer violated Title VII by

discriminating against him or her on the basis of race, color,

religion, sex, or national origin, in any manner. Slagle did not

do so, and therefore he cannot assert a claim for retaliation for

filing that charge.

For the reasons set forth, we will affirm the judgment of

the District Court.

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