Petition for Writ of Certiorari — James Simmons, Petitioner v. UBS Financial Services, Incorporated

App. 1

United States Court of Appeals

for the Fifth Circuit

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No. 20-20034

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JAMES SIMMONS,

Plaintiff–Appellant,

versus

UBS FINANCIAL SERVICES, INCORPORATED,

Defendant–Appellee.

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Appeal from the United States District Court

for the Southern District of Texas,

USDC No. 4:19-CV-3301

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(Filed Aug. 24, 2020)

Before SMITH, WILLETT, and DUNCAN, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Title VII claims require an employment relationship between plaintiff and defendant. James Simmons

essentially asks this court to adopt an exception where

a nonemployee (Simmons) is the intentional target of

an employer’s retaliatory animus against one of its employees (Simmons’s daughter). That we cannot do. As a

nonemployee, Simmons asserts interests that are not

within the zone that Title VII protects. We therefore

App. 2

affirm the dismissal of the complaint for lack of statutory standing.

I.

Simmons was employed by Prelle Financial Group

as a third-party wholesaler of life-insurance products

to clients of UBS Financial Services, Incorporated

(“UBS” or “the company”).1 Simmons frequently

worked out of UBS’s offices.

Simmons’s daughter, Jo Aldridge, was a UBS employee who submitted an internal complaint of pregnancy discrimination and filed a charge with the

EEOC. Aldridge eventually resigned and settled her

claims.

In the months that followed, Simmons’s thirdparty relationship with UBS deteriorated. Allegedly in

retaliation for his daughter’s complaints, UBS revoked

Simmons’s right of access to the UBS offices and then

eventually forbade him from doing business with its

clients. That effectively ended Simmons’s employment

at Prelle Financial, and he left.

Simmons sued, among others, UBS. He theorized

that the company “retaliated against his daughter by

taking adverse actions against him.” UBS promptly

moved to dismiss, contending that because Simmons

1

Because this case was dismissed under Federal Rule of

Civil Procedure 12(b)(6), the facts are taken from the complaint.

See, e.g., Converse v. City of Kemah, 961 F.3d 771, 774 (5th Cir.

2020).

App. 3

was not a UBS employee, he could not sue under Title

VII. The district court agreed and dismissed with prejudice, holding that Simmons’s nonemployee status

forecloses his statutory standing to sue.

Simmons appeals. The only issue is whether he, a

nonemployee, can sue under Title VII as the intentional target of the retaliation against his daughter. No

federal court of appeals has addressed whether nonemployees can bring such claims.

II.

We review a Rule 12(b)(6) dismissal de novo, Big

Time Vapes, Inc. v. FDA, 963 F.3d 436, 441 (5th Cir.

2020), crediting all well-pleaded facts and construing

them in the plaintiff ’s favor, Jackson v. City of Hearne,

959 F.3d 194, 200 (5th Cir. 2020).

A.

To sue under Title VII, a purported plaintiff must

establish statutory standing. See Thompson v. N. Am.

Stainless, LP, 562 U.S. 170, 178 (2011). Unlike Article

III standing, statutory standing is not jurisdictional.2

2

See, e.g., Lexmark Int’l, Inc. v. Static Control Components,

Inc., 572 U.S. 118, 128 n.4 (2014) (“[T]he absence of a valid . . .

cause of action does not implicate subject-matter jurisdiction, i.e.,

the court’s statutory or constitutional power to adjudicate the

case.”); Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 97

(1998) (“The latter question is an issue of statutory standing. It

has nothing to do with whether there is [a] case or controversy

under Article III.”); Camsoft Data Sys., Inc. v. S. Elecs. Supply,

Inc., 756 F.3d 327, 332 (5th Cir. 2014) (noting that statutory

App. 4

Instead, it asks the “merits question” of “whether or

not a particular cause of action authorizes an injured

plaintiff to sue.” Blanchard 1986, Ltd. v. Park Plantation, LLC, 553 F.3d 405, 409 (5th Cir. 2008).

“[T]he person claiming to be aggrieved . . . by the

alleged unlawful employment practice” has Title VII

standing. 42 U.S.C. § 2000e-5(f )(1). To qualify as a “person . . . aggrieved,” the plaintiff must bring a claim that

“falls within the zone of interests sought to be protected by the statutory provision whose violation forms

the legal basis for his complaint.” Thompson, 562 U.S.

at 177 (quotation marks omitted). That familiar test

“requires [a court] to determine, using traditional tools

of statutory interpretation, whether a legislatively

conferred cause of action encompasses a particular

plaintiff ’s claim.” Lexmark, 572 U.S. at 127.

The zone-of-interests test “is not meant to be especially demanding.” Match-E-Be-Nash-She-Wish Band

of Pottawatomi Indians v. Patchak (“Match-E”), 567

U.S. 209, 225 (2012). Indeed, anyone “with an interest

arguably sought to be protected by the statute” can

head to federal court.3 Even so, a litigant is out of luck

when his “interests are so marginally related to or inconsistent with the purposes implicit in the statute

that it cannot reasonably be assumed that Congress

standing is not jurisdictional and hence should not be analyzed

under Rule 12(b)(1)).

3

Thompson, 562 U.S. at 178 (cleaned up); accord Match-E,

567 U.S. at 225 (“[W]e have always conspicuously included the

word ‘arguably’ in the test to indicate that the benefit of any doubt

goes to the plaintiff.”).

App. 5

intended to permit the suit.” Clarke v. Sec. Indus. Ass’n,

479 U.S. 388, 399 (1987).

We assume, without deciding, that Simmons’s

daughter would have a claim for retaliation based on

UBS’s termination of its business relationship with

her father in response to her protected activity.4 The

question is whether Simmons is also a proper Title VII

plaintiff, even though he did not engage in protected

activity. The case on point is Thompson, 562 U.S. at

172.

B.

In Thompson, the plaintiff (Thompson) and his fiancée were employed by the same company. The fiancée filed a sex discrimination charge with the EEOC.

Just three weeks later, the company fired Thompson,

who sued, alleging that the company had fired him to

retaliate against his fiancée for filing her charge. The

Court held that reprisals visited on third parties can

4

See Thompson, 562 U.S. at 173–75 (analyzing whether company unlawfully retaliated against the plaintiff ’s fiancée before

asking whether the plaintiff could maintain his own suit). In moving to dismiss, UBS argued in the alternative that Simmons had

failed to plead a prima facie case of retaliation. The company contended that several of the actions against Simmons were only annoyances, not actionable retaliation, and noted that Simmons’s

sales relationship with UBS ended over a year after the daughter

filed the discrimination charge. The district court did not address

those arguments, instead ruling on statutory standing alone, and

UBS does not press them as an alternative basis to affirm.

App. 6

violate Title VII, id. at 174–75,5 and it concluded that

the decision to fire Thompson was unquestionably an

unlawful act of retaliation against his fiancée, id. at

173–74. But “[t]he more difficult question”—as here—

was whether Thompson could also sue the company for

that retaliation. Id. at 175.

Because Thompson qualified as a “person . . . aggrieved,” 42 U.S.C. § 2000e-5(f )(1), the Justices held

that he could do so, see Thompson, 562 U.S. at 175–78.

Importantly, the Court rejected the categorical view

that only the employee who engages in the protected

activity (in Thompson, the fiancée) may sue. Id. at 177.

If that were right, then Congress would have said “person claiming to have been discriminated against,” not

“person claiming to be aggrieved.” Id.; see 42 U.S.C.

§ 2000e-5(f )(1).

Instead, the Court settled on a tried-and-true test

for determining who is a “person . . . aggrieved” with

standing to sue—the zone-of-interests standard highlighted above.6 Applying that standard, the Court held

5

Not just any third party will do, however. The Court “decline[d] to identify a fixed class of relationships for which thirdparty reprisals are unlawful.” Id. at 175. But it noted that “firing

a close family member will almost always meet the . . . standard,

[while] inflicting a milder reprisal on a mere acquaintance will

almost never do so.” Id. Again, we assume, without ruling, that

the “reprisal[s]” visited on Simmons counted as unlawful retaliation against his daughter.

6

Id. at 177–78. This test originates in Administrative Procedure Act caselaw. See Lexmark, 572 U.S. at 129. “[I]ts roots lie in

the common-law rule that a plaintiff may not recover under the

law of negligence for injuries caused by violation of a statute unless the statute is interpreted as designed to protect the class of

App. 7

that, for two reasons, Thompson had a cause of action.

First, like his fiancée, Thompson was an employee of

the defendant company, “and the purpose of Title VII

is to protect employees from their employers’ unlawful

actions.” Thompson, 562 U.S. at 178. Second, Thompson’s termination “was the employer’s intended means

of harming” his fiancée. Id. Thompson was not “an accidental victim of the retaliation” or “collateral damage”; instead, “[h]urting him was the unlawful act by

which the employer punished her.” Id. So, even though

Thompson had not engaged in protected activity, he fell

within Title VII’s zone of interests and so had statutory

standing. See id.

C.

Naturally, both parties try to claim Thompson’s

mantle. Simmons insists that Thompson’s facts and

holding apply without blemish, demonstrating that he

has statutory standing. He theorizes that it is consistent with Title VII’s antidiscrimination purposes to

allow an affected third party like him to sue under his

circumstances even if not employed by the defendant.

The fact that UBS “purposefully targeted him because

of his close association with an employee who has engaged in protected activity” is enough, he thinks, to

bring him within Thompson’s reach (quoting Tolar v.

persons in which the plaintiff is included, against the risk of the

type of harm which has in fact occurred as a result of its violation.” Id. at 130 n.5 (quotation marks omitted).

App. 8

Cummings, No. 2:13–cv–00132-JEO, 2014 WL 3974671,

at *12 (N.D. Ala. Aug. 11, 2014)).

In response, UBS admits that Thompson has some

things in common with this case, insofar as Simmons

too was the intentional victim of an employer’s efforts

to retaliate against one of its employees. But that’s not

nearly enough, the company urges. Like the district

court, UBS considers it dispositive that Simmons was

not an employee of UBS.7

D.

Because he was not a UBS employee, Simmons

lacks Title VII standing. As Thompson observed without controversy, “the purpose of Title VII is to protect

employees from their employers’ unlawful actions.”8

7

UBS does not challenge Simmons’s Article III standing.

That is not surprising, given that Thompson, 562 U.S. at 176,

opined that the similarly situated plaintiff ’s claim “undoubtedly”

met the Article III requirements. To be sure, this case has a

“third-party standing” flavor to it, in that Simmons contends that

he can sue to challenge the retaliation directed at his daughter.

But, in any event, five Justices recently reaffirmed that thirdparty-standing is prudential and forfeitable. See June Med. Servs.

L.L.C. v. Russo, 140 S. Ct. 2103, 2117 (2020) (four-Justice plurality); id. at 2139 n.4 (Roberts, C.J., concurring in the judgment)

(agreeing with plurality’s analysis of third-party standing); see

also Cibolo Waste, Inc. v. City of San Antonio, 718 F.3d 469, 474

& 474 n.4 (5th Cir. 2013) (stating that third-party standing is not

jurisdictional). But see Lexmark, 572 U.S. at 127 n.3 (leaving for

“another day” third-party standing’s “proper place in the standing

firmament”).

8

Thompson, 562 U.S. at 178; accord EEOC v. Shell Oil Co.,

466 U.S. 54, 77 (1984) (“The dominant purpose of [Title VII], of

course, is to root out discrimination in employment.”); see also

App. 9

And because the plaintiff was himself employed by the

defendant, the Court permitted him to sue. Thompson,

562 U.S. at 178. It would be a remarkable extension of

Thompson—and of Title VII generally—to rule that a

nonemployee has the right to sue. The zone of interests

that Title VII protects is limited to those in employment relationships with the defendant.

Thompson’s focus on Title VII’s employee-protection purpose has firm support in the statute’s substantive provisions, which set the boundaries of the “zone

of interests.”9 The retaliation ban is the one that matters here, and it forbids discrimination by an “employer” against “any of his employees or applicants for

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

And to the extent it is relevant to revealing Title VII’s

broader purposes, the discrimination provision too

speaks of the “terms, conditions, or privileges of employment.” Id. § 2000e-2(a)(1) (emphasis added).

Match-E, 567 U.S. at 226 (beginning the zone-of-interests inquiry

by looking to the statute’s purpose).

9

See, e.g., Bennett v. Spear, 520 U.S. 154, 175–76 (1997)

(“Whether a plaintiff ’s interest is arguably protected by the statute within the meaning of the zone-of-interests test is to be determined . . . by reference to . . . the specific provision which [he]

allege[s] ha[s] been violated.” (cleaned up)); Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 883 (1990) (noting that the test focuses

on “the statutory provision whose violation forms the legal basis

for [the] complaint”); see also Thompson, 562 U.S. at 173, 178 (reviewing the text of the retaliation provision and concluding that

Title VII is meant to protect employees from the actions of their

employers).

App. 10

To be sure, those provisions delineate what kind of

employer conduct is unlawful and not necessarily who

can sue for it. But that distinction is of little significance, because the zone-of-interests test looks to the

law’s substantive provisions to determine what interests (and hence which plaintiffs) are protected. See,

e.g., Bennett, 520 U.S. at 175–76. Here, those provisions

make clear what sort of interests are covered: the interests of those in employment relationships with the

defendant.10 So Simmons’s interests are, at best, only

“marginally related to” the purposes of Title VII.11

Indeed, it is no accident that Thompson’s example

of an “absurd” case for statutory standing involved a

nonemployee. Id. at 176. Imagine a shareholder who

sues a company under Title VII for firing a valuable

employee for discriminatory reasons, theorizing that

the shareholder’s stock value had plummeted as a result. Id. at 177. The Court considered it ridiculous that

the shareholder might be able to maintain such a suit,

so it rejected the theory that anyone with Article III

standing may sue for a Title VII violation. Id. To be

sure, that hypothetical situation is different from this

case in that the shareholder’s loss is only “collateral

damage” of the Title VII violation, id. at 178, but it is

revealing that the Court’s reductio ad absurdum

10

See Thompson, 562 U.S. at 178 (“[T]he purpose of Title VII

is to protect employees from their employers’ unlawful actions.”).

11

Sec. Indus. Ass’n, 479 U.S. at 399. Simmons’s principal

case—White Glove Staffing, Inc. v. Methodist Hosps. of Dall., 947

F.3d 301, 307 (5th Cir. 2020)—followed this approach, looking to

42 U.S.C. § 1981’s substantive ban on discrimination in setting

the zone of protected interests.

App. 11

example involves a nonemployee. “Shareholders are

not within Title VII’s zone of interests because ‘the purpose of Title VII is to protect employees from their employers’ unlawful actions.’"12

Simmons theorizes that his daughter’s status as

an employee is all that matters—hers “is the employment relationship that brings the case within the scope

of Title VII.”13 “[T]he purpose of . . . protect[ing] employees from their employers’ unlawful actions,” Simmons suggests, “is still served by allowing a third party

12

Collins v. Mnuchin, 938 F.3d 553, 576 (5th Cir. 2019) (en

banc) (emphasis added) (quoting Thompson, 562 U.S. at 178), cert.

granted, 2020 WL 3865248 (U.S. July 9, 2020) (No. 19-422), and

cert. granted, 2020 WL 3865249 (U.S. July 9, 2020) (No. 19-563).

13

In support, Simmons notes briefly that the EEOC’s current

guidance suggests that “[w]here there is actionable third party

retaliation, . . . the third party who is subjected to the materially

adverse action may state a claim . . . even if he has never been

employed by the defendant employer” (quoting EEOC Enforcement Guidance on Retaliation and Related Issues § II(B)(4)(b)

(2016), available at https://perma.cc/2LTJ-EHJY). That view departs from the old guidance, which held that such retaliation

could be challenged only where the plaintiff was also an employee

of the defendant. See EEOC Compliance Manual § 8-II(C)(3)

(1998) (emphasis added).

Simmons waives reliance on “Skidmore deference” to the

guidance. Even if we applied it, it would change nothing. Skidmore

deference—if indeed that is the right way to describe it—means

that the agency’s interpretation is “entitled to respect[,] . . . but

only to the extent that [it] ha[s] the power to persuade,” Christensen v. Harris Cty., 529 U.S. 576, 587 (2000) (quotation marks

omitted), which is a bit like saying a court need only respect that

which is respectable. Here, for reasons described, it is not persuasive that Title VII recognizes the interests of third-party nonemployees.

App. 12

to sue for harm it suffers as a direct result of the defendant’s retaliatory animus toward its complaining

employee, even if [the] third party was not itself also

an employee of the defendant” (quoting Tolar, 2014 WL

3974671, at *12).14

But Simmons misunderstands what the zone-ofinterests test is all about: It asks whether this plaintiff

is of the “class” that may sue for the violation.15 In

other words, “the plaintiff must establish that the injury he complains of (his aggrievement, or the adverse

effect upon him) falls within the ‘zone of interests’

sought to be protected.”16 Unsurprisingly, then, in

14

Simmons also suggests that if status as an employee were

“dispositive of standing,” then much of Thompson would have

been surplusage, because “[t]he Supreme Court would simply

have found standing because [the plaintiff there] was an employee.” But Simmons misunderstands UBS’s position, which is

that employment by the defendant is a necessary condition for

bringing suit, not that it is sufficient in every case.

15

Lexmark, 572 U.S. at 128; accord Sec. Indus. Ass’n, 479

U.S. at 397 (focusing on “the class of potential plaintiffs”).

16

Nat’l Wildlife Fed’n, 497 U.S. at 883; see also, e.g., id. at

886 (evaluating whether statute protected the plaintiff ’s recreational and aesthetic interests); Sec. Indus. Ass’n, 479 U.S. at 403

(examining whether a trade association’s competitive interests

were protected by a statute in which Congress sought to prevent

national banks from gaining monopoly control); Nat’l Credit Union Admin. v. First Nat. Bank & Tr. Co., 522 U.S. 479, 499 (1998)

(deciding whether competitors’ interest in limiting the markets

that credit unions may serve was within the zone of interests protected by a statute); Air Courier Conference of Am. v. Am. Postal

Workers Union, AFL-CIO, 498 U.S. 517, 528 (1991) (holding that

postal employees’ interests were outside the zone of a statute giving the federal government a postal monopoly, because the “monopoly . . . exists to ensure that postal services will be provided to

App. 13

evaluating whether the plaintiff could sue, Thompson

focused on the plaintiff ’s circumstances and injuries:

that he was an employee and was the intentional victim of the retaliation. It was not enough that permitting the suit would advance, generally speaking, Title

VII’s goal of eliminating retaliation. Thompson, 562

U.S. at 178.

As a result, his daughter’s status as an employee

is not enough to deposit Simmons into federal court.17

Instead, he must show that his personal interests are

arguably covered. That he has failed to do.18

the citizenry at large, and not to secure employment for postal

workers”).

17

Cf. Nat’l Wildlife Fed’n, 497 U.S. at 883 (focusing on

whether the plaintiff ’s injuries are of the sort that the statute is

designed to protect against).

18

We have so far neglected to mention that Simmons is a

former UBS employee. One might imagine an argument that his

former employment supplies him with the “employment relationship” he needs under Robinson v. Shell Oil Co., 519 U.S. 337, 346

(1997), which recognizes that former employees have Title VII

rights against retaliation by their former employers. Combine

Robinson with Thompson (the intentional victim of the retaliation

against a family-member employee may sue) and—voilà!—maybe

Simmons belongs in federal court.

Simmons not only fails to make that argument—he concedes

that he lacks a relevant employment relationship with UBS. He

classifies himself as a “non-employee” and admits that “the relevant employment relationship for purposes of Title VII is . . . not

between UBS and Mr. Simmons.” So considering a Robinsonbased theory would prejudice UBS—which has had no opportunity to address it—and would contradict basic principles of

waiver. See Smith v. Ochsner Health Sys., 956 F.3d 681, 688 n.2

(5th Cir. 2020) (“[W]aiver is the intentional relinquishment or

abandonment of a known right.”). We therefore reserve for

App. 14

What is “the injury [Simmons] complains of ”—

“his aggrievement, or the adverse effect upon him"? Id.

Unlike in Thompson, 562 U.S. at 178, it has nothing to

do with how his employer treated him. Instead, Simmons’s beef is with an independent entity’s decision to

stop doing business with him as a third-party wholesaler. That is not the stuff that Title VII was written to

address. See id. Simmons’s claims might sound in tort,

but they have no home in the Civil Rights Act of 1964.

Finally, White Glove, 947 F.3d at 307–08, does not

rescue Simmons, even if it does represent a broad application of the zone-of-interests test. That case involved a claim under § 1981—which “protects the

equal right of all persons within the jurisdiction of the

United States to make and enforce contracts without

respect to race”19—brought by a non-minority-owned

staffing company. See White Glove, 947 F.3d at 304, 306.

The staffing company claimed that one of its clients

had discriminated against one of the company’s black

cooks by refusing, on the basis of race, to accept her

services. Id. at 303—04, 307. Even though “the alleged

discrimination was against [the black cook], not [the

another day how Robinson and Thompson interact, and for purposes of this opinion, we classify Simmons just as he identifies

himself: a nonemployee, with no relevant employment relationship with the defendant. See, e.g., United States v. SinenengSmith, 140 S. Ct. 1575, 1579 (2020) (“[O]ur system is designed

around the premise that parties represented by competent counsel know what is best for them, and are responsible for advancing

the facts and argument entitling them to relief.” (cleaned up)).

19

Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470, 474 (2006)

(cleaned up).

App. 15

staffing company] itself,” id. at 307, the company’s

claim still fell within the zone of interests that section

1981 protects, id. at 307–08.

White Glove has minimal application here. It involves a different statute—section 1981—whose expansive language (“[a]ll persons”) suggests a much

broader sweep of permissible plaintiffs than does Title

VII, which is designed for a specific subclass of persons

(employees). See id. at 307; cf. Bennett, 520 U.S. at 163

(“[T]he breadth of the zone of interests varies according to the provisions of law at issueas. . . .”).

*

*

*

Title VII protects employees from the unlawful

acts of their employers. It does not—even arguably—

protect nonemployees from mistreatment by someone

else’s employer. So the judgment of dismissal is AFFIRMED.

App. 16

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

§

§

Plaintiff,

§

v.

§ CIVIL ACTION NO.

UBS FINANCIAL SERVICES § 4:19-3301

§

INC., et al.,

§

Defendants.

§

JAMES SIMMONS,

MEMORANDUM AND ORDER

(Filed Jan. 6, 2020)

This employment case is before the Court on the

Motion to Dismiss [Doc. # 10] filed by Defendant UBS

Financial Services Inc. (“UBS”), to which Plaintiff

James Simmons filed a Response [Doc. # 11], and UBS

filed a Reply [Doc. # 12]. Having reviewed the record

and the applicable legal authorities, both binding and

persuasive, the Court grants the Motion to Dismiss.

I.

BACKGROUND

Plaintiff sells life insurance. From 2011 until August 2015, Plaintiff was an employee of UBS. In August

2015, Plaintiff became an employee of Defendant

Prelle Financial Group, Inc. (“Prelle”). See Complaint,

¶ 7. As a employee of Prelle, Plaintiff worked as a

third-party wholesaler of life insurance to clients of

UBS.

App. 17

Plaintiff ’s daughter, Jo Aldridge, was an employee

of UBS. She made an internal complaint of pregnancy

discrimination and, in December 2015, filed a charge

of discrimination with the Equal Employment Opportunity Commission (“EEOC”). See id., ¶ 8. Plaintiff alleges that UBS began to “take adverse actions” against

him. See id., ¶ 9. In February 2017, Prelle told Plaintiff

that he could not work at UBS offices, but could continue to work for Prelle. See id., ¶ 16. Plaintiff “elected

not to continue working for Prelle” and, in March 2017,

filed an EEOC Charge. See id., ¶¶ 16-17.

On August 30, 2019, Plaintiff filed this lawsuit

against Prelle and UBS. Plaintiff asserts a Title VII retaliation claim against both Defendants, and a claim

against Prelle for unpaid commissions. UBS filed its

Motion to Dismiss, arguing that Plaintiff lacks standing to assert a Title VII retaliation claim against it

because he was neither an employee of UBS or an applicant for employment with the company. The Motion

to Dismiss has been fully briefed and is now ripe for

decision.

II.

TITLE VII STANDING

In addition to having Article III standing, a plaintiff must have Title VII standing to assert a Title VII

claim. See Thompson v. N. Am. Stainless, LP, 562 U.S.

170, 177-78 (2011); White Glove Staffing, Inc. v. Methodist Hosps. of Dallas, 2017 WL 3925328, *2 (N.D. Tex.

Sept. 7, 2017). A party has standing under Title VII

when the injured person “falls within the ‘zone of

App. 18

interests’ sought to be protected by the statutory provision whose violation forms the legal basis for his

complaint.” Thompson, 562 U.S. at 177. The Supreme

Court held that this standard for Title VII standing

excludes “plaintiffs who might technically be injured

in an Article III sense but whose interests are unrelated to the statutory prohibitions in Title VII.” Id. at

178. The Supreme Court noted that “the purpose of Title VII is to protect employees from their employers’ unlawful actions.” Id. (emphasis added).

In Thompson, the plaintiff was an employee of

the defendant. See Thompson, 562 U.S. at 172. His employer fired him after his fiancé, also an employee of

the defendant, filed an EEOC charge alleging sex discrimination. See id. The Supreme Court, noting that

Title VII makes it an unlawful employment practice

“for an employer” to retaliate against “any of his employees,” and noting that the plaintiff had been an employee of the defendant at the time of the alleged

retaliation, held that the plaintiff had Title VII standing to assert the retaliation claim against the defendant. See id. at 172, 178.

In a concurring opinion in Thompson, Justice

Ginsburg, joined by Justice Breyer, added “a fortifying

observation” – that the EEOC Compliance Manual prohibits retaliation “against someone so closely related to

or associated with the person” engaging in protected

activity. See id. at 179. “Such retaliation ‘can be challenged,’ the Manual affirms, ‘by both the individual

who engaged in protected activity and the relative,

App. 19

where both are employees.’ ” Id. (quoting EEOC Compliance Manual § 8-II(B)(3)(c)) (emphasis added).

In this case, however, it is undisputed that Plaintiff was not an employee of UBS at the time his daughter filed her charge of pregnancy discrimination with

the EEOC or at the time of the alleged adverse actions

against Plaintiff. The Supreme Court in Thompson did

not hold that a non-employee has standing to sue for

retaliation based on protected activity by a third-party

employee of the defendant. The law in the Fifth Circuit

remains that, absent an employment relationship between the plaintiff and the defendant, the plaintiff

lacks standing to bring a Title VII retaliation claim.1

See Thompson, 562 U.S. at 178; White Glove Staffing,

2017 WL 3925328 at *2; see also Body by Cook, Inc. v.

State Farm Mut. Auto. Ins., 869 F.3d 381, 391 (5th Cir.

2017) (“To maintain a claim under Title VII, the plaintiff must demonstrate an ‘employment relationship’

between the plaintiff and the defendant”); Baker v.

Aetna Life Ins. Co., 228 F. Supp. 3d 764, 770 (N.D. Tex.

2017) (“In the Fifth Circuit, to recover under Title VII,

a plaintiff must have an employment relationship

with the defendant”). Therefore, Plaintiff lacks Title

1

Plaintiff cites two unpublished district court cases from

Alabama and Florida, which allow a Title VII retaliation claim by

a non-employee against a relative’s employer. See Response, pp.

6, 8 (citing Tolar v. Cummings, 2014 U.S. Dist. LEXIS 111448

(N.D. Ala. 2014), and McGhee v. Healthcare Servs. Grp., 2011 U.S.

Dist. LEXIS 20897 (N.D. Fla. 2011)). These two non-binding decisions are inconsistent with the clear language in Thompson and

with binding Fifth Circuit authority cited herein. Therefore, the

Court finds them unpersuasive.

App. 20

VII standing to assert a retaliation claim against UBS

in this case. The Motion to Dismiss is granted.

III. CONCLUSION AND ORDER

Plaintiff at the time of the alleged retaliation was

neither an employee of, nor an applicant for employment with, UBS. As a result, Plaintiff lacks Title VII

standing to assert a retaliation claim against UBS, and

it is hereby

ORDERED that UBS’s Motion to Dismiss [Doc.

# 10] is GRANTED. All claims against UBS are DISMISSED WITH PREJUDICE. It is further

ORDERED that the initial conference is RESCHEDULED to 1:00 p.m. on January 23, 2020.

SIGNED at Houston, Texas, this 6th day of January, 2020.

/s/ Nancy F. Atlas

NANCY F. ATLAS

SENIOR UNITED STATES

DISTRICT JUDGE

App. 21

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

§

§

Plaintiff,

§

v.

§ CIVIL ACTION NO.

UBS FINANCIAL SERVICES § 4:19-3301

§

INC., et al.,

§

Defendants.

§

JAMES SIMMONS,

ORDER

(Filed Jan. 23, 2020)

There being no just reason for delay, it is hereby

ORDERED that Plaintiff James Simmons’s Unopposed Motion for Entry of Rule 54(b) Judgment [Doc.

# 16] is GRANTED. It is further

ORDERED that Final Judgment is hereby entered in favor of UBS Financial Services Inc. pursuant

to the Court’s Memorandum and Order [Doc. # 13] entered January 6, 2020.

SIGNED at Houston, Texas, this 23rd day of January, 2020.

/s/ Nancy F. Atlas

NANCY F. ATLAS

SENIOR UNITED STATES

DISTRICT JUDGE

App. 22

United States Court of Appeals

for the Fifth Circuit

-----------------------------------------------------------------------

No. 20-20034

-----------------------------------------------------------------------

JAMES SIMMONS,

Plaintiff–Appellant,

versus

UBS FINANCIAL SERVICES, INCORPORATED,

Defendant–Appellee.

-----------------------------------------------------------------------

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:19-CV-3301

-----------------------------------------------------------------------

ON PETITION FOR REHEARING

(Filed Sep. 9, 2020)

Before SMITH, WILLETT, and DUNCAN, Circuit Judges.

PER CURIAM:

IT IS ORDERED that the petition for rehearing is

DENIED.

App. 23

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

§

§

Plaintiff,

§

VS.

§ No. 4:19cv3301

UBS FINANCIAL SERVICES, § Jury Trial

§ Demanded

INC. and PRELLE FINAN§

CIAL GROUP, INC.,

§

Defendants.

§

JAMES SIMMONS,

COMPLAINT

(Filed Aug. 30, 2019)

Plaintiff James Simmons files this Complaint

against Defendants UBS Financial Services, Inc. and

Prelle Financial Group, Inc.

Parties

1. Plaintiff James Simmons is an individual residing in Texas.

2. Defendant UBS Financial Services, Inc. is a

Delaware corporation with its principal place of business in Weehawken, New Jersey. UBS may be served

with process through its registered agent, Corporation

Service Company dba Lawyers Incorporating Service

Company, 211 E. 7th Street, Suite 620. Austin, Texas

78701-3218.

App. 24

3. Defendant Prelle Financial Group, Inc. is a

Texas corporation with its main office in Houston,

Texas. Prelle Financial may be served with process

through its registered agent, Frederick W. Prelle, Jr.,

4848 Loop Central Drive, Suite 1005, Houston, Texas

77081.

Jurisdiction and Venue

4. This Court has federal question jurisdiction

because the case arises under Title VII of the Civil

Rights Act of 1964. The Court has supplemental jurisdiction over the state law claim.

5. Venue is proper because the events in question

occurred in this District.

Claim for Relief

6. Mr. Simmons markets life insurance products.

He had a longstanding relationship with UBS, which

is a brokerage house. Starting around 2002, he marketed and sold life insurance products to clients of

UBS as a third-party wholesaler. He regularly worked

at UBS’s offices in the Houston area.

7. At the end of 2011, Mr. Simmons became an

employee of UBS. This lasted until August 2015, when

UBS told Mr. Simmons that he could continue marketing insurance to its clients only if he went to work

for Prelle Financial Group d/b/a Capitas Financial of

Houston. Mr. Simmons agreed to do so. He thus returned to operating as a third-party wholesaler to

App. 25

UBS. None of the claims in this lawsuit arise out of

Mr. Simmons’ employment with UBS or the termination of his employment with UBS.

8. Mr. Simmons’ daughter, Jo Aldridge, was an

employee of UBS and remained an employee after

Mr. Simmons’ departure. Several months after the end

of Mr. Simmons’ employment with UBS, Ms. Aldridge

made an internal complaint of pregnancy discrimination. In December 2015, Ms. Aldridge filed a charge of

discrimination with the EEOC.

9. In April 2016, while Ms. Aldridge was on maternity leave, Mr. Simmons noticed that Ms. Aldridge’s

office had been emptied and that her nameplate had

been removed. He reported this to his daughter. At this

point, UBS began to take adverse actions against Mr.

Simmons. It started when the manager of the downtown Houston office accused him of taking pictures in

the office (apparently believing that Mr. Simmons was

gathering evidence for the EEOC proceeding). In fact,

Mr. Simmons had taken no pictures. UBS restricted

Mr. Simmons’ access at the downtown office to the

lobby conference room unless accompanied by a UBS

financial advisor. This restriction did not apply to other

third-party wholesalers and thus was based solely on

Mr. Simmons’ relationship to Ms. Aldridge.

10. Mr. Simmons discussed these developments

with Prelle Financial and expressed concern that this

was connected to his daughter’s claim against UBS.

He continued doing business at UBS as usual, aside

from the restriction at the downtown office of UBS.

App. 26

11. Around May 2016, UBS replaced the Houston

office manager. The new manager told Mr. Simmons

that, if he had been in charge, he would have done

things very differently. He then began lecturing Mr.

Simmons about “taking pictures” in the office.

12. During the summer of 2016, Ms. Aldridge resigned her position at UBS. She would eventually settle her claims against UBS.

13. Also in the summer of 2016, UBS apparently

instructed Prelle Financial that UBS did not want

Mr. Simmons to continue working in their offices in

any capacity. Mr. Simmons could finish out the life

insurance cases he was working on, but that was it. In

September 2016, Warren Prelle informed Mr. Simmons

of this development. After Mr. Simmons repeatedly

pressed for an explanation, Mr. Prelle eventually

claimed that UBS gave no reason for this instruction.

UBS’s instruction caused Mr. Simmons’s pipeline of

new business to dry up. Prelle Financial told Mr.

Simmons to keep working and to see what happened.

14. Much later, UBS claimed that its instruction

was a result of a review of existing vendors and that

it determined that Mr. Simmons was not meeting its

“performance needs.” Given that Mr. Simmons had

been working with UBS clients for many years with

considerable success, this was a transparent pretext

for retaliation and not a legitimate basis for the decision.

15. A few months later, UBS apparently claimed

that Mr. Simmons had made a “ticketing” error and

App. 27

told Prelle Financial that it would no longer allow Mr.

Simmons to do any business with its clients. This claim

was not true (Mr. Simmons did not even have access to

the ticketing system) and, in any event, would not have

been a ground for barring Mr. Simmons from working

with UBS clients. It was, once again, a transparent pretext for retaliation.

16. Prelle Financial informed Mr. Simmons of this

development in February 2017. This effectively ended

Mr. Simmons’ employment. In fact, Warren Prelle told

Mr. Simmons that Prelle Financial would need to part

ways with him. Later, Prelle Financial gave him the

option of receiving a severance payment in exchange

for a release of all claims, but Mr. Simmons refused to

release his claims. Prelle Financial told him that he

could continue to work for Prelle Financial, but not at

UBS. Fred Prelle, the owner of the company, told him

that he hoped that Mr. Simmons would not choose

that option. Fred Prelle also told Mr. Simmons that

pursuing litigation against UBS would endanger

Prelle Financial’s relationship with UBS. Mr. Simmons

eventually elected not to continue working for Prelle

Financial.

17. Mr. Simmons filed charges of discrimination

with the EEOC in March 2017. The EEOC issued right

to sue letters on June 3, 2019.

18. All conditions precedent have occurred or

been satisfied.

App. 28

Claim 1: Retaliation by UBS and Prelle Financial

19. Mr. Simmons’ daughter engaged in protected

activity by opposing pregnancy discrimination in violation of Title VII of the Civil Rights Act of 1964. She

later participated in an EEOC proceeding, and UBS

believed that Mr. Simmons was also participating in

that proceeding.

20. UBS retaliated against Mr. Simmons for his

daughter’s protected activity and for what it perceived

as his own protected activity by restricting and then

barring his continued business activities at UBS. This

type of conduct would tend to dissuade a reasonable

employee, such as Mr. Simmons’ daughter, from exercising her rights under Title VII.

21. Mr. Simmons is a “person aggrieved” within

the meaning of 42 U.S.C. § 2000e5(f ) because he was

the target of the retaliation. Although he was not an

employee of UBS at the time of the events in question,

he was within the zone of interests protected by Title

VII.

22. Prelle Financial is responsible for this retaliation because (a) it participated in the retaliation, and

(b) it knew or should have known about the client’s

discrimination and failed to undertake prompt corrective measures within its control. After Mr. Simmons

filed a charge of discrimination against UBS, contrary

to Prelle Financial’s expressed wishes, Prelle Financial

withheld earned commissions from Mr. Simmons.

App. 29

23. UBS and Prelle Financial are therefore liable

to Mr. Simmons for back pay, loss of benefits, compensatory and punitive damages, reinstatement or in the

alternative front pay, injunctive relief, attorneys’ fees,

pre- and post-judgment interest as provided by law,

and all costs of court.

Claim 2: Unpaid Commissions by Prelle Financial

24. In addition, Mr. Simmons earned approximately $60,000 in commissions at Prelle Financial

which remain due, owing, and unpaid despite timely

and repeated demands for payment.

25. Prelle Financial is therefore liable for the unpaid commissions, attorneys’ fees under Chapter 38 of

the Texas Civil Practice and Remedies Code, pre- and

post-judgment interest as provided by law, and all

costs of court.

For the foregoing reasons, UBS and Prelle Financial should be cited to appear and answer and, upon

final hearing, the Court should enter judgment in favor of Mr. Simmons and against UBS and Prelle Financial for back pay, loss of benefits, compensatory and

punitive damages, reinstatement or in the alternative

front pay, injunctive relief, attorneys’ fees, pre- and

post-judgment interest as provided by law, all costs

App. 30

of court, and any other relief to which he may be entitled.

Respectfully submitted,

/s/ David C. Holmes

David C. Holmes, Attorney in Charge

State Bar No. 09907150

Southern District No. 5494

13201 Northwest Freeway, Suite 800

Houston, Texas 77040

Telephone: 713-586-8862

Fax: 713-586-8863

ATTORNEY FOR PLAINTIFF