Yuri D. Veprinsky v. Fluor Daniel, Inc.

*896 MANION, Circuit Judge,

concurring in part and dissenting in part.

Title VII 1 defines “employee” as “an individual employed by an employer.” The counterpart to this obvious definition presumably would be that a “former employee” means an individual formerly employed or no longer employed by an employer. This court correctly notes that “because neither section 704(a) nor the definition of ‘employee’ expressly includes former employees, a literal reading of the statute would exclude them from coverage for acts of retaliation.” Ante at 884. A number of courts have apparently treated this “gap” as an oversight by Congress rather than an intentional omission. Thus those courts, and now this court, have decided to fill in the statutory language Congress supposedly left out. This court now supplements the statute by holding that “post-termination acts of retaliation that have a nexus to employment are actionable under Title VII.” Because they are not actionable under Title VII as Congress drafted it, I must respectfully dissent.

I.

Fluor Daniel claims it terminated Yuri Veprinsky because it lacked the work necessary to keep him employed. Veprinsky found work with Sargent & Lundy. Sargent & Lundy contacted Fluor Daniel to verify Veprinsky’s pay and start dates. Using information contained on Fluor Daniel’s computer system, a Fluor Daniel’s employee informed Sargent & Lundy that Veprinsky’s base salary was $4,635 per month (and not the $4,800 per month Veprinsky had listed on his application) and that his start date was February 1990 (the date when Veprinsky became a full-time employee- — not 1986 when Veprinsky was first listed on Fluor Daniel’s payroll as an unpaid employee.) Veprinsky claims that Fluor Daniel provided Sargent & Lundy with false information in retaliation for a Title VII claim Veprinsky had filed against Fluor Daniel. 2 Veprinsky sued Fluor Daniel for, among other things, this alleged retaliation under section 704(a) of Title VII, which provides:

It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment ... because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

42 U.S.C. § 2000e-3(a).

A number of courts have held that “employee” for purposes of section 704(a) also means “former employees” (at least where the alleged retaliation is job related). However, the Fourth Circuit in its en banc decision in Robinson v. Shell Oil Co., 70 F.3d 325 (4th Cir.1995), cert. granted — U.S. -, 116 S.Ct. 1541 , 134 L.Ed.2d 645 (1996), held that the plain language of section 704(a) does not extend its protection to former employees. The Supreme Court has granted certiorari to Robinson to resolve the split in the circuits. Until the Supreme Court instructs otherwise, I prefer to follow the Fourth Circuit’s reasoning in Robinson .

Two divergent views of the judiciary’s role cause this circuit split. Many courts (and now this court) which have held that “employee” also means “former employee” reach this holding “ ‘to further the goals and purposes of eliminating discrimination in employment.’” Ante at 889 (quoting Unger, 657 F.2d at 915 n. 8). These are certainly lofty goals, but the question remains whether it is the job of Congress or the courts to establish the written legal standards necessary to achieve these goals. The courts also rely on the remedial nature of Title VII to liberally construe the word “employee” to also mean “former employee.” Ante at 889. But where a word must be modified to allow for a certain interpretation, that word is no longer being construed; it is being changed. The use of the modifier “former” is telling; it is necessary to add the word “former” to the statute because the plain meaning of the word “employee,” no matter how liberally construed, cannot encompass “former em *897 ployees.” It is one thing to interpret statutory language “narrowly” or “broadly.” It is quite another thing to rewrite a statute to include language Congress chose to exclude.

“Employee” is defined by statute as “an individual employed by an employer.” 42 U.S.C. § 2000e(f). Neither the word “employee,” nor its definition is ambiguous.

The rales of statutory construction require us to give the words Congress used to define ‘employee’ their common usage. The term ‘employed’ as used in subsection 2000e(f) is commonly used to mean ‘performing work under an employer-employee relationship.’ Certainly, the term ‘employed’ is not commonly used to mean ‘no longer performing work under an employer-employee relationship.’ Furthermore, ‘employer’ as used in subsection 2000e(f) is commonly used to mean ‘one who employs the services of others.’ Again, no meaningful argument can be made that the term ‘employer’ is commonly used to mean ‘one who no longer employers the services of others.’

Robinson, 70 F.3d at 330 (citations omitted).

“Because Title VII does not define ‘employee’ as an individual no longer employed by an employer, that meaning is excluded as a meaning from the term ‘employee’.” Id. “Additionally, Congress’ inclusion of ‘applicants for employment’ as persons distinct from ‘employees,’ coupled with its failure to likewise include ‘former employees,’ is strong evidence of Congressional intent that the term ‘employees’ in Title VII’s anti-retaliation provision does not include former employees.” Id.

Other courts and now this court reason that a literal reading of Title VII “would leave a significant gap in the statutory protection ... [and] allow an employer to discriminate against and ‘black list’ a former employee as long as the employer can successfully keep the former employee from getting a job and thereby becoming technically ‘employed by an employer.’ ” Ante at 885. Gap there may be, but that does not allow us to rewrite the statute to fill this or any other gap we discover. We cannot rewrite a statute merely because we find it deficient in accomplishing what we perceive as a legisla-

tive agenda, no matter how clear or important that agenda may be. From the sidelines courts can observe and comment upon the legislative process. And when we are given “pause” when that process excludes “former employees” from a statute, we nevertheless cannot insert such language in a statute as if we had a vote in Congress. We only interpret the law. In interpreting it we must “apply the law that Congress enacted,” not the one we think it should have enacted. Robi nson, 70 F.3d at 328 . And that law simply does not protect “former employees” against retaliatory discrimination.

Moreover, contrary to statements by this and other courts that Congress just could not have intended to leave former employees unprotected, ante at 891-92, there are good reasons for their exclusion. Had Congress defined “employee” to include both those “employed” as well as those “formerly employed,” it would have created a cause of action unlimited in time. A cause of action for retaliation could be brought one, five, or even twenty years after the job ended (since the cause of action would not accrue until the alleged retaliation occurred). Congress had to draw a line. It did so at the most logical point — the end of the employment relationship. In effect, section 704 works as a statute of repose. Just like a statute of repose, one day an individual has a claim and the next he does not. No more than a statute of repose, this is not “grossly absurd or a plainly unintended result.” See Robinson, 70 F.3d at 332-33 (J. Hall, dissenting) (submitting that section 704(a) is grossly absurd because one day’s difference will excuse an employer for equally culpable behavior).

It is also important to recognize in this so-called “retaliation” context that the litigant has already filed some sort of claim against the employer for an allegedly discriminatory act during employment. If that act was a violation by the employer, the “retaliation” provision protects the employee who was awarded reinstatement, a promotion, or some other remedy that includes a continuing employer-employee relationship. In that circumstance the employee could be vulnerable to subtle and not-so-subtle retribution from the employer he sued. The statute carefully *898 protects such a potentially vulnerable employee.

Here Veprinsky went to trial alleging national origin discrimination and lost. Now he alleges retaliation by his former employer for, among other things, 3 a clerk erroneously listing his pay at $4,635 per month instead of $4,800 as Veprinsky claims, and for listing his starting date as February 1990 (when he came on full time) instead of 1986 when he was part-time or unpaid. Not only are these incidents relatively minor, but they are just the type of claims Congress would very understandably want to avoid. Veprinsky could file the same claim five or twenty years later if a clerk, in response to a routine request from a new or prospective employer, sent the same presumably inaccurate information. Drawing the line at post-employment is not grossly absurd; rather it is a sensible balance of the interests of the employer and the employee.

Going another step, the language under 704(a) protects not only an employee who has filed a charge, it also applies to employees who “testified, assisted, or participated in any manner in an investigation, proceeding, or hearing.” Imagine if this protection extends to former employees. Someone who years earlier voluntarily left Company A for another job at Company B could be called upon to participate in an investigation of a claim by a former coworker still employed at Company A. That “participant” has no complaint against Company A about his own previous employment. Yet if that participant’s present or prospective employer requests information from Company A that turns out to be inaccurate (as Veprinsky’s apparently was), no matter how much time has passed since that participant’s employment at Company A, as a former employee he has a cause of action under 704(a) as this court has rewritten it. Congress surely could have anticipated this magnified exposure when it limited protection to employees and applicants.

Additionally, Title VII was sweeping legislation which faced opposition in Congress. Its passage was not assured. Support is often swayed by the precise wording of a statute, which in the case of section 704(a) included only two classes of protected individuals — “employees and applicants for employment.” Bargains struck by congressional sponsors may have excluded “former employees” from section 704(a) to gain congressional support. Because we cannot know the behind-the-scene bargains struck to ensure passage, we should apply the plain meaning of a statute. We certainly should not put ourselves behind the scenes to negotiate the law as we might prefer it.

Further, when it passed section 704(a) Congress could have believed it untenable to include “former employees” within its protection because the only relief available for retaliatory discrimination at that time was equitable, which would be difficult to provide “former employees.” Congress amended Title VII in 1991 to allow for compensatory and punitive damages, so this is no longer a concern. But when Congress wrote the word “employee” and defined that term in a way that did not include “former employees,” it had a legitimate reason for limiting protection to “employees and applicants for employment.” Or Congress could have believed it more efficient to hold a prospective employer liable for retaliating against an “applicant for employment,” than to hold a former employer liable for blacklisting his former employee.

The point is we don’t know exactly why Congress chose to limit the protection in section 704(a) to “employees and applicants for employment.” Possibly it was an oversight, as the majority implies. More likely it was a result intentionally worked out in the legislative process. Whatever the reason, applying the plain meaning of “employee” will not produce a grossly absurd result. Until Congress rewrites section 704(a) or redefines “employee,” we must apply the statute as written.

II.

The court also holds that Veprinsky’s claim that Fluor Daniel retaliated against him *899 when it refused to rehire him presents a question of fact which cannot be decided on summary judgment. Significantly, as an applicant Veprinsky is clearly covered by the statute. Refusal to rehire and accusations that Fluor Daniel would not rehire because he had previously engaged the company in a Title VII lawsuit could be valid claims under 704(a) by Veprinsky as an applicant for employment. While the company’s reasons for refusing to hire may not in any way be retaliatory and may well be based on legitimate, non-discriminatory reasons, the important point is that an applicant (as opposed to a former employee) has a statutory right to his day in court if his claims survive summary judgment. Thus I concur with the court’s conclusion that Veprinsky’s claim is still viable. However, with regard to the allegations pertaining to Pollack and Stan and Fluor Daniel’s disclosure of the EEOC claim, only as the claim connects to Veprinsky’s status as an applicant would I send this back to the district court for further review. Any reversal by this court should be confined to those issues directed at Veprinsky’s status as an applicant, and not those related to his status as a former employee.

III.

Finally, I do not concur with the court’s long discussion distinguishing Koelsch v. Beltane Elec. Corp., 46 F.3d 705, 709 (7th Cir.1995), and Reed v. Shepard, 939 F.2d 484 (7th Cir.1991). The retaliation issue in Reed was a secondary issue, because the claims were unrelated to employment. The central question in that case was whether a person who substantially created a hostile sexual environment could blame that environment as the cause for her discharge. However, the statement in Koelsch , that “[t]he law in this circuit is quite clear, however, that post-termination events are not actionable under § 2000e-3(a)” is more than mere dicta. The court reasons that such a holding was unnecessary because Koelsch’s claim was doomed by the fact that the alleged retaliation had no impact on Koelsch’s job search. This was merely an added reason for affirming the dismissal of Koelseh’s claim. But consider the actual language of Koelsch: “Even if Title VII offered possible relief, Koelsch’s efforts to seek employment were not remotely impacted by Posen’s alleged comment; she had already received several offers of employment, including one from RTC, and had accepted one by that time.” Id. In fact, under Koelsch’s alternative reasoning, Veprinsky’s claim that Fluor Daniel retaliated against him by providing false information to Sargent & Lundy fails because Veprinsky already had the job and he failed to offer any evidence that the alleged false information had any adverse effect on his employment. Id. See also, Nelson v. Upsala College, 51 F.3d 383, 389 (3d Cir.1995) (rejecting post-termination retaliation claim because the plaintiff “failed to offer any evidence that these remarks had any adverse effect on her future employment.”).

IV.

As a former employee, Veprinsky has no cause of action under Title VII (42 U.S.C. § 2000e-3(a)) (704(a)) because protection against retaliation is limited to employees or applicants of the employer who allegedly committed the violation. Therefore I respectfully dissent from the court’s conclusion that Veprinsky, as a former employee, has a valid claim against Fluor Daniel for retaliation. I do concur with the court that as an applicant Veprinsky has a statutory right under 704(a) and that it was probably premature to grant summary judgment if there was direct evidence that the EEOC claim could have been a motivating factor in rejecting his application for rehire. And if the disclosure of the EEOC charge to the placement firm Pollack & Skan impacted Veprinsky in his status as an applicant, I concur that further review is in order. But I do not join in the expanded discussion regarding the Seventh Circuit’s opinions in Reed and Koelsch .

For these and the foregoing reasons, I concur in part and dissent in part.

. 42 U.S.C. § 2000e et seq.

. Veprinsky had his day in court under his original Title VII charge. After he voluntarily dropped his religious discrimination claim, he had a full trial on his national origin claim — and he lost.

. The other allegations relate to his status as an applicant which is specifically protected under the Act.