Thompson v. North American Stainless, LP

BOYCE F. MARTIN, JR.,

Circuit Judge, dissenting.

I join Judge Moore’s dissent in full but write separately to emphasize how misplaced the majority’s relentless reliance on “plain meaning” is: its analysis flows entirely from a flawed and unexamined ipse dixit

In an approach that can hardly be described as exegetical, the majority declares that the meaning of “oppose” — an undefined term in section 704(a), see 42 U.S.C. 2000e-3(a) — is “plain and unambiguous,” Maj. Op. at 805. Sometimes, of course, the meaning of a statutory term is plain. In those cases, a detailed discussion of the text and underlying Congressional purpose would only cloud the statute’s clear dictates. But that is not so here, and the majority fails to recognize that the meaning of “oppose” in section 704(a) is broader than it thinks and, at minimum, ambiguous.

But don’t take my word for it. The Supreme Court recently told us so in Crawford v. Metropolitan Government of Nashville, — U.S. —, 129 S.Ct. 846 , 172 L.Ed.2d 650 (2009). There, the Court reversed one of our prior decisions which had held — under the same uncritical “plain meaning” approach used by today’s majority — that “oppose” encompasses only the performance of certain activities. In correcting this Court’s misguided interpretation, Crawford reinforced a broad reading of “oppose” in several key respects. First, it rejected a definition of “oppose” that included only “active, consistent ‘opposing’ activities” — the Court referred to such a rule as “freakish.” Id. at 851 . Second, in listing dictionary definitions, the Court included one that defined “oppose” as “to be hostile or adverse to, as in opinion.” Id. at 850 (quoting Random House Dictionary of the English Language 1359 (2d ed.1987)) (emphasis added). Third, and most importantly, the Court stated:

“Oppose” goes beyond “active, consistent” behavior in ordinary discourse, where we would naturally use the word to speak of someone who has taken no action at all to advance a position beyond disclosing it. Countless people were known to “oppose” slavery before Emancipation, or are said to “oppose” capital punishment today, without writing public letters, taking to the streets, or resisting the government.

Crawford, 129 S.Ct. at 851 (emphasis added). In other words, “oppose,” in common everyday usage (“plain meaning”?), includes the silent opposition of everything from gay marriage to the death penalty, without requiring anyone to shout it from the rooftops. Crawford thus drastically undercut the majority’s tunnel vision view that this case concerns only a straightforward debate about whether clear statutory text controls over some unexpressed Congressional purpose. See Maj. Op. at 811. Were it so simple.

Aside from ruling that Thompson is not personally covered by the statute (more on that later), the majority claims that Thompson “forfeited” the issue. Maj. Op. at 813 n. 7. Yet it misunderstands forfei *819 ture’s significance. A plaintiff cannot forfeit a statute’s inherent ambiguity; the meaning of “oppose” is not “plain” and Thompson cannot make it so via forfeiture. And make no mistake, the majority does not say that Thompson has forfeited his right to make this argument and therefore the issue remains open to be decided in some future case (as would be proper). Instead it invokes forfeiture but nevertheless decides the question. See Maj. Op. at 814 (“[E]ven in the wake of Crawford , Thompson has failed to raise a genuine issue of material fact that he engaged in protected activity[.]”). If the majority wants to decide this question (it clearly does), it may not hide behind a purported forfeiture to deflect contrary arguments while doing so. The majority accuses the dissents of “advocating] an issue that has not been plead, argued, or presented.” Maj. Op. at 813 n. 7. Maybe so, but that’s only because the majority decides one. 1

Furthermore, in concluding that “oppose” does not encompass Thompson’s conduct, the majority purports to agree with Justice Alito’s concurring opinion in Crawford . Maj. Op. at 813. Yet the majority’s reasoning, already at odds with the Crawford majority’s reasoning, is also inconsistent with Justice Alito’s. Specifically, Justice Alito, joined by Justice Thomas, expressed doubt about whether “oppose” should be interpreted to cover what he called “silent opposition.” Crawford, 129 S.Ct. at 854 (Alito, J., concurring). But he did so not because he thought “oppose” explicitly barred that result — as the majority asserts today — but instead because of that interpretation’s potentially “important practical implications.” Id. at 854 (Alito, J., concurring) (emphasis added) (citing the possibility of litigation “by employees who never expressed a word of opposition to their employers,” though- observing that “in many cases, such employees would not be able to show that management was aware of their opposition and thus would not be able to show that their opposition caused the adverse actions at issue”).

Indeed, at no point in Justice Alito’s concurrence did he invoke that interpretive bogeyman, “plain meaning”; in fact he conceded that the meaning of “oppose” is not plain: “The question whether the opposition clause shields employees who do not communicate their views to their employers through purposive conduct is not before us in. this case; the answer to that question is far from clear; and I do not understand the Court’s holding to reach that issue here.” Id. at 854-55 (Alito, J., concurring) (emphasis added). The majority pretends that this statement somehow supports its view that the statute is “plain and unambiguous.” Maj. Op. at 813-14. In any event, regardless of how it has been presented so far, our Court cannot decide this question by invoking “plain meaning” unless “oppose” actually is “plain.”

So, because the meaning of “oppose” is ambiguous, determining whether plaintiffs like Thompson should be allowed to sue ought to depend on how much weight Congress tyould have given the “important practical implications” Justice Alito and Judge Moore identify, which the majority ignores. Based on the text, structure, history, and Congressional purpose, I would hold these claims cognizable: I cannot conceive that Congress wanted to categorically bar them through the ambiguous, undefined term “oppose.” This is not a case about abstract third-party claims; it is about an employee who was fired because, he says, the company retaliated against *820 him for his opposition to an unlawful employment practice.

That said, this does not mean Thompson automatically wins. We do not know whether he could meet his evidentiary burden, though I am certain he should be given the opportunity to try to prove that his employer knew of his unexpressed opposition and fired him for that reason. Today, however, the majority sidesteps the traditional framework-which includes causation and discriminatory intent requirements — for deciding discrimination claims, see McDonnell Douglas Corp. v. Green, 411 U.S. 792 , 93 S.Ct. 1817 , 36 L.Ed.2d 668 (1973); Crawford v. TRW Auto. U.S., 560 F.3d 607, 612 (6th Cir.2009), and replaces it with a complete, indiscriminate bar on valid and invalid claims alike on the basis of textual analysis that fails to analyze the text.

I respectfully dissent.

. On the other hand, if the majority’s forfeiture point is to be believed, then future courts and litigants should treat the majority’s discussion of the scope of "oppose” and the impact of Crawford as mere dicta and the issue open going forward.