Amicus Curiae Brief — BURLINGTON N. & SFR CO. v. White

ay

Supreme Court, U.S —

FILED

JAN 2 § 2006

No. 05-259 OFFICE OF THE CLIK

In the

Supreme Court of the United States

----—

BURLINGTON NORTHERN AND SANTA FE

RAILWAY COMPANY,

Petitioner,

Vv.

SHEILA WHITE,

Respondent.

+

On Writ of Certiorari to the United States Court of

Appeals for the Sixth Circuit

—+

MOHOAN+FOR-bEAYE 40-4

BREEP-ASHEES-CURIAE-AND BRIEF

AMICUS CURIAE OF PACIFIC LEGAL

FOUNDATION IN SUPPORT OF PETITIONER

-—

DEBORAH J. LA FETRA

Counsel of Record

Pacific Legal Foundation

3900 Lennane Drive, Suite 200

Sacramento, California 95834

Telephone: (916) 419-7111

Facsimile: (916) 419-7747

Counsel for Amicus Curiae

Pacific Legal Foundation

ES TR

MOTION FOR LEAVE TO FILE BRIEF

AMICUS CURIAE

Pursuant to this Court’s Rule 37.3(b), Pacific Legal

Foundation respectfully requests leave of the Court to file this

brief amicus curiae in support of Petitioner. Petitioner has filed

a general consent to the filing of amicus briefs in this case.

Respondent has not responded to Pacific Legal Foundation’s

request for consent.’

INTEREST OF AMICUS CURIAE

Pacific Legal Foundation was founded over 30 years ago

and is widely recognized as the largest and most experienced

nonprofit legal foundation of its kind. PLF litigates matters

affecting the public interest at all levels of state and federal

courts and represents the views of thousands of supporters

nationwide who believe in limited government and economic

freedom. PLF actively engages in research and litigation

nationwide over a broad spectrum of public interest issues. In

furtherance of PLF’s continuing mission to defend individual

and economic liberties, the Foundation has created its Free

Enterprise Project. The Project seeks to protect the free

enterprise system from abusive regulation, a civil justice system

that grants excessive liability awards, and barriers to the

freedom of contract. Because of its history and expertise with

regard to civil rights litigation and economic freedom, PLF

believes its perspective will aid this Court in considering this

case.

' Pursuant to Rule 37.6, Amicus Curiae affirms that no counsel for

any party authored this brief in whole or in part and that no person

or entity made a monetary contribution specifically for the prepara-

uon or submission of this brief.

For all the foregoing reasons, the motion of Pacific Legal

Foundation to file a brief amicus curiae should be granted.

DATED: January, 2006.

Respectfully submitted,

DEBORAH J. LA FETRA

Counsel of Record

Pacific Legal Foundation

3900 Lennane Drive, Suite 200

Sacramento, California 95834

Telephone: (916) 419-7111

Facsimile: (916) 419-7747

Counsel for Amicus Curiae

Pacific Legal Foundation

ill

QUESTION PRESENTED

Whether an employer may be held liable for retaliatory

discrimination under Title VII for any “materially adverse

change in the terms of employment” (including a temporary

suspension rescinded by the employer with full back pay or an

inconvenient reassignment, as the court below held); for any

adverse treatment that was “reasonably likely to deter” the

plaintiff from engaging in protected activity (as the Ninth

Circuit holds); or only for an “ultimate employment decision”

(as two other courts of appeals hold).

iV

TABLE OF CONTENTS

MOTION FOR LEAVE TO

FILE BRIEF AMICUS CURIAE

INTEREST OF AMICUS CURIAE

QUESTION PRESENTED

INTRODUCTION AND SUMMARY OF

ARGUMENT

ARGUMENT

I. A TEMPORARY SUSPENSION, FOLLOWED

BY REINSTATEMENT AND BACKPAY, IS

il.

CONCLUSION

NOT AN ADVERSE EMPLOYMENT ACTION ...

A.

C.

Suspension Is an Employer's Appropriate

Response to an Employee's Perceived

ES Re aS aN FTES A mee

An Internal Grievance Procedure Is the Best

Mechanism for an Employee to Challenge a

| ETRE POP. ye ree

Reinstatement with Backpay Is the Standard

Remedy for an Unwarranted Suspension .. .

PUBLIC POLICY FAVORS A NARROWER

DEFINITION OF “ADVERSE EMPLOYMENT

ACTION” FOR RETALIATION CLAIMS ........ 6

eepese@€ 6.0 ae.6.82 2 6

aee8@e08 0p 88 ©. 0 6 6. OV es. Oe ee ee 6 eS Cee

Vv

TABLE OF AUTHORITIES

Page

Cases

Abermarle Paper Co. v. Moody,

eek. Ca Week cudseeekease¥es 5

Amro v. Boeing Co.,

ee re CDs os ces ce cantsdecesees 12

Aneco Inc. v. NLRB,

CE, AEDs ss Seas dccccsesestter: 5

Bean v. Wisconsin Bell, Inc.,

ss eco ce kk eee eaebaces 2

Bienkowski v. Am. Airlines Inc.,

ree 8-9

Blackie v. Maine,

EE ED wv wdiae Pavan eecdvsseseun 13

Bourque v. Powell Electrical Manufacturing Co.,

ee ED os nab bbc vccenesacese es 11

Brennan v. Department of Health and Human

Services, 787 F.2d 1559 (Fed. Cir. 1986) .......... 2-3

Brooks v. City of San Mateo,

re fe i le ee 11,13

Burlington Indus., Inc. v. Ellerth,

es ee ie en Se a eee 3

Clark v. Marsh,

G65 F238 VIGR GAC. Cie. 1981)... 2. wees. 10-11

Connick v. Myers, 461 U.S. 138 (1983) 2... ee 3

Cont 7 Ins. Co., 289 N.L.R.B. 579 (1988) 2... eee 5

vi

TABLE OF AUTHORITIES—Continued

Page

Coronet Foods, Inc. v. NLRB,

er ue PE, CE 6 6 'o's ccehvcadnnaessared 5

Dale v. Chic. Tribune Co.,

Fe Eee CUE rive cccdepesbsnecebins 9

Derr v. Gulf Oil Corp.,

FR ee eT as SOEs Kb obras Se Wecediisess 10

Dobbs-Weinstein v. Vanderbilt University,

4A i. 4 8 ER A ee re 12

Dunning v. Simmons Airlines, Inc.,

Pe SPN a 6 ct euabe oeheedensees 5

E.E.O.C. v. L.B. Foster Co.,

ee PS SUED sdvcvbetdcndescecdss 10

Edwards v. Occidental Chemical Corp.,

892 F.2d 1442 (9th Cir. 1990). ................0.6. 10

Faragher v. City of Boca Raton,

SED av cdindins cbdce she pheweceudnkes 3

Furnco Constr. Corp. v. Waters,

SEED whatadnetesddavendusassasaes 8

General Teamsters Local No. 162 v. NLRB,

poe cS Pr ere e ere ee 5

Gupta v. Fla. Bd. of Regents,

Bee OEE COE SEED: ce wn cvisweksresuess 13

Kelliher v. Veneman,

eee CGE SE oc oc dccceunck i kee es 3

Martini v. Federal National Mortgage Association,

pak gt 7 a eee ry ee 3

McCarthy v. Madigan, 503 U.S. 140 (1992) 2... ........ 4

Vil

TABLE OF AUTHORITIES—Continued

Monteiro v. Poole Silver Co.,

if db Ot oe S|) eee ere

Nathanson v. NLRB, 344 U.S. 25 (1952) ...........

NRLB v. Local Union No. 1229, Intern.

Broth. of Elec. Workers, 346 U.S. 464 (1953) ....

Parcinski v. Outlet Co..,

Se ORES CUED Ods che ccctvccausivs

Phelps Dodge Corp. v. NLRB,

es OOF CHORD avua ee éews na ssesdbua cede

Procida v. Grinker, 154 A.D.2d 290,

546 N.Y.S.2d 367 (N.Y.A.D. 1 Dept. 1989)... ...

Schwartz v. Gregori, 45 F.3d 1017 (6th Cir. 1995) ...

Shohadaee v. Metropolitan Government of

Nashville and Davidson County,

150 Fed. Appx. 402 (6th Cir. 2005) ............

Stewart v. Evans, 275 F.3d 1126 (D.C. Cir. 2002) ...

Tavior v. Small, 350 F.3d 1286 (D.C. Cir. 2003) ....

Town of Dedham vy. Civil Service Com’'n,

21 Mass. App. Ct. 904, 483 N.E.2d 836

Pe As i hiedebwaheactiseep cuctaed

Tran v. Trustees of the State Colleges in Colorado,

355 F.3d 1263 (10th Cir. 2004) ................

Statute

GEOR 6 ON iis kc cada ck

Vill

TABLE OF AUTHORITIES—Continued

Miscellaneous

Armour, Stephanie, & Hansen, Barbara, Flood of

‘Retaliation Cases Surfacing in U.S. Workplace,

Se PG WU. Wk SUE occ cacecc¥ebensvses

Black’s Law Dictionary (8th ed., 2004) ............

Conwell, Vicky Ramsey, Bosses’ Retaliation

Bringing Lawsuits, Atlanta J. & Const.,

MPS OLT ee Te ToS er eres ete

Cude, Donna Smith, & Steger, Brian M.,

Does Justice Need Glasses? Unlawful

Retaliation Under Title VII Following

Mattern: Will Courts Know It When They

See It?, 14 Lab. Law. 373 (1998) ..............

Curnie, Cathy, Note, Staying on the Straighter and

Narrower: A Criticism of the Court's Definition

of Adverse Employment Action Under the Retaliation

Provision of Title VII: Ray v. Henderson, 217 F.3d

1234 (9th Cir. 2000), 42 S. Tex. L. Rev. 1323 (2002). .

Donohue, John J., Ill, & Siegelman, Peter, The

Changing Nature of Employment Discrimination

Litigation, 43 Stan. L. Rev. 983 (1991) .........

Henry, Ann M., Comment, Employer and Emplovee

Reasonableness Regarding Retaliation Under the

Ellerth/Faragher Affirmative Defense,

1999 U. Chi. Legal F. 553 (1999) ..............

Hyland, Wendy, Equal Opportunity for Employers:

Page

10

Elevating the Adverse Employment Action Standard to

Allow Only Meritorious Retaliation Claims,

ia Es Be dic nc Ge5 ada cc oho acess

.. 6-9

iX

TABLE OF AUTHORITIES—Continued

Ray, Douglas E., Jitle V1] Retaliation Cases:

Creating a New Protected Class,

ey a, Oe, SP EROPED o-oo ed bvee dene biadecs 6

Snell, Ann Clarke, & Eskow, Lisa R., What

Motivates the Ultimate Decisionmaker? An

Analysis of Legal Standards for Proving

Causation and Malice in Employment Retaliation

Suits, 50 Baylor L. Rev. 381 (1998) ............... 13

Vincent, Shannon, Comment, Unbalanced Responses

to Employers Getting Even: The Circuit Split Over

What Constitutes a litle Vil-Prohibited Retaliatory

Adverse Employment Action,

7 U. Pa. J. Lab. & Emp. L. 991 (2005) ............. 10

INTRODUCTION AND

SUMMARY OF ARGUMENT

Claiming insubordination, Sheila White's immediate

supervisor immediately suspended her without pay. As part of

the collective bargaining agreement with the union that

represents White. she was permitted to file a gnevance alleging

that the suspension was unwarranted. White employed this

procedure and, after investigation, White's employer,

Burlington Northern and Santa Fe Railway Company,

concluded that White should not have been suspended. White

was reinstated to her job and received backpay. In White's

subsequent lawsuit brought pursuant to Title VII, she alleged

that the suspension was an “adverse employment action” in

retaliation for her earlier claim of discrimination.

Whichever language this Court adopts to define “adverse

employment action,” it should not include temporary, interim

decisions subsequently corrected by the employer when the

employee is made whole through the standard remedies of

reinstatement and backpay.’ Supervisors must have the ability

to remove an insubordinate employee from duty pending an

investigation. Where, as here, the employee had full access to

an internal grievance process and that process results in

reinstatement and backpay—corrective action by the employer

that makes the employee whole—the Court should find that the

temporary inconvenience of the waiting through the

investigative process does not rise to the level of an adverse

employment action sufficient to sustain a retaliation cause of

action.

? Amicus does not address White's claims about the changes in her

job dutics.

2

ARGUMENT

I

A TEMPORARY SUSPENSION, FOLLOWED

BY REINSTATEMENT AND BACKPAY, IS

NOT AN ADVERSE EMPLOYMENT ACTION

A. Suspension Is an Employer’s

Appropriate Response to an

Employee’s Perceived Insubordination

Insubordination is a serious offense. Black's Law

Dictionary defines it as

1. A willful disregard of an employer's instructions,

esp. behavior that gives the employer cause to

terminate a worker’s employment. 2. An act of

disobedience to proper authority; esp., a refusal to

obey an order that a superior officer is authorized to

give.

Black’s Law Dictionary (8th ed., 2004). “There is no more

elementary cause for discharge of an employee than disloyalty

to his employer.” NRLB v. Local Union No. 1229, Intern.

Broth. of Elec. Workers, 346 U.S. 464, 472 (1953). “An

employer is likely to treat insubordination more harshly than

most other forms of employee misconduct, .. . because of the

threat to workplace discipline.” Bean v. Wisconsin Bell, Inc.,

366 F.3d 451, 453 (7th Cir. 2004).

At a minimum, insubordination generally provides just

cause for immediate suspension. See, ¢.g., Town of Dedham v.

Civil Service Com'n, 21 Mass. App. Ct. 904, 907, 483 N.E.2d

836, 838 (Mass. App. 1985) (approving 18-month suspension

for insubordination); Procida v. Grinker, 154 A.D.2d 290, 291

546 N.Y.S.2d 367 (N.Y.A.D. | Dept. 1989) (affirming 80-day

suspension for insubordination); Brennan v. Department of

Health and Human Services, 787 F.2d 1559, 1563-64 (Fed. Cir.

3

1986) (60-day suspension for insubordination). Insubordination

takes on even greater significance when there are safety

concerns, as is obvious in the maintenance of a railroad track.

Cf, Kelliher v. Veneman, 313 F.3d 1270, 1277 n.9 (11th Cir.

2002) (United States Department of Agriculture food

inspector's termination for insubordination was reasonable. and

not a violation of the Whistleblower Protection Act and not

retaliation, where the employee's neglect of duty specifications

went to heart of USDA’s mission to ensure that unwholesome

food products do not enter the marketplace). A supervisor who

perceives an employee to be insubordinate must have the ability

to remove that person from duty.

If an employer perceives insubordinate behavior, the

employer need not wait to be 100% certain of the employee s

failure before taking steps to remove the danger from the

operation. See, ¢.g., Connick v. Myers, 461 U.S. 138, 151-52

(1983) (“| W]e do not see the necessity for an employer to allow

events to unfold to the extent that the disruption of the office

and the destruction of working relationships is manifest before

taking action.”). No public policy suggests that emplovee-

litigants are entitled to preferential treatment tn this regard.

B. An Internal Grievance Procedure Is

the Best Mechanism for an Employee

to Challenge a Suspension

This Court previously recognized the value of internal

grievance procedures. Under Faragher v. City of Boca Raton,

$24 U.S. 775, 763 (1998), and Burlington Indus., Inc. v. Ellerth,

524 U.S. 742, 807 (1998), an employee's claim fails if she does

not make reasonable use of the employer's grievance

procedures. Utilizing these procedures rather than proceeding

directly to court is consistent with the legislative requirement

that complainants seek permission from the EEOC to sue. See

Martini v. Federal National Mortgage Association, 178 F.3d

1336, 1338 (D.C. Cir. 1999) (remanding to district court with

4

instructions to dismiss plaintiffs suit as untimely because

“Title VII requires complainants to wait 180 days before suing

in federal court so that the commission may informally resolve

as many charges as possible.”), cited in Taylor v. Small, 350

F.3d 1286, 1294(D.C. Cir. 2003). Thus, both Congress and the

courts recognize the value of informal resolution and

contemplate delays in resolution far beyond the 37 days of

White’s interim suspension that ultimately was resolved in her

favor.

The approval shown to a company’s internal grievance

procedures is analogous in purpose to the judicial doctrine

requiring exhaustion of administrative remedies.

The exhaustion doctrine also acknowledges the

commonsense notion of dispute resolution that an

agency ought to have an opportunity to correct its

own mistakes with respect to the programs it

administers before it is haled into federal court.

McCarthy v. Madigan, 503 U.S. 140, 145 (1992). Exhaustion

serves another purpose as well: it promotes judicial efficiency.

“When an agency has the opportunity to correct its own errors,

a judicial controversy may well be mooted, or at least piecemeal

appeals may be avoided.” /d.

C. Reinstatement with Backpay

Is the Standard Remedy for an

Unwarranted Suspension

What if White had, in fact, been insubordinate?

Immediate suspension without pay is the standard employer

response and an appropriate one. If she had been insubordinate,

the internal grievance procedure would have revealed as much

and White would have been terminated, with no entitlement to

her pay during the time of her suspension. Because it would be,

as both a practical and legal matter. impossible to recover

wages paid during a suspension, statutes and courts authorize

5

backpay as the alternative to an employee continuing to receive

wages during a suspension.

“The guiding principle underlying the award of backpay

is that [employees] must be made whole for the losses that they

have suffered by reason of the employer's unfair labor

practice.” Cont’l Ins. Co., 289 N.L.R.B. 579, 583 (1988). An

award of backpay is intended to make whole the victim of

discrimination. Nathanson v. NLRB, 344 U.S. 25, 27 (1952).

A backpay order is a means to “restore the situation “as nearly

as possible, to that which would have obtained but for the

illegal discrimination.’ ” Coronet Foods, Inc. v. NLRB, 158

F.3d 782, 798 (4th Cir. 1998) (quoting Phelps Dodge Corp. v.

NLRB, 313 U.S. 177, 194 (1941)); Aneco Inc. v. NLRB, 285

F.3d 326, 329 (4th Cir. 2002) (backpay serves as a

“compensatory, make-whole remedy”). Thus, backpay is

classified as restitution, Schwartz v. Gregori, 45 F.3d 1017,

1022 (6th Cir. 1995), and there is a strong presumption in favor

of backpay awards to victims of employment discrimination.

Abermarle Paper Co. v. Moody, 422 U.S. 405, 415 (1975).

Backpay is an appropriate remedy both for a sexual harassment

discrimination claim and for a retaliation claim. Dunning v.

Simmons Airlines, Inc., 62 F.3d 863, 873-74 (7th Cir. 1995);

General Teamsters Local No. 162 v. NLRB, 782 F.2d $39, 844

(9th Cir. 1986) (reinstatement and backpay are conventional

remedies under the Act); sce also 42 U.S.C. § 2000e-5(g).

White's 37-day suspension for insubordination pending an

investigation into the matter represented an employer s internal

procedures working precisely as they were intended. White did

not suffer for having pursued the procedures — she prevailed.

Once the suspension was found to be unwarranted, White was

eligible for and did receive the standard remedies to make her

Whole. The five-week wait until the matter concluded is too

narrow a pedestal to bear the weight of a retaliation claim.

6

PUBLIC POLICY FAVORS A NARROWER

DEFINITION OF “ADVERSE EMPLOYMENT

ACTION” FOR RETALIATION CLAIMS

It is not difficult for a duplicitous employee to “set up” an

employer for a retaliation claim.’ An employee can make an

unfounded complaint that her employer discriminated against

her. Perhaps especially because the complaint was unfounded,

the employer reacts emotionally or angrily. The employee now

has a legitimate claim for retaliation because there is no

requirement that a plaintiff prevail on an _ underlying

discnmination claim to win the day on a retaliation cause of

action. Wendy Hyland, Equal Opportunity for Employers:

Elevating the Adverse Employment Action Standard to Allow

Only Meritorious Retaliation Claims, 90 Ky. L. J. 273, 276-77

(2002); Douglas E. Ray, Title V1I Retaliation Cases: Creating

a New-Protected Class, 58 U. Pitt. L. Rev. 405, 407 (1997)

(“because an employee challenging employment practices under

Title VII can be protected whether or not the opposed practices

actually violate Title VII, retaliation cases substantially expand

Title VII coverage. Moreover, coverage has been extended by

cases protecting former employees from retaliation months and

even years after separation.”).

The more broadly defined the adverse employment action

is, the easier it is for a disgruntled employee to leverage an

* Not all employers are evil; not all employees are virtuous. And

vice versa. It is an unfortunate fact that individuals who find

themselves in an adversarial stance with colleagues may make

unfounded claims. See, ¢.g.. Monteiro v. Poole Silver Co., 615 F.2d

4,8 (ist Cir. 1980) (In response to a plaintiff who “decided that the

best defense to correction from the supervisor was a strong offense.”

“Section 704(a) is similarly unavailable to protect an employee who

makes unfounded claims of discrimination in order to excuse

non-comphance with legitimate employer demands.”).

unmeritorious initial claim into a successful collateral claim.

This is particularly so where the juries tend to sympathize with

employees more than employers under most all circumstances.

While employees do need some protection from untair

treatment as a result of a bona fide objection to employer

policies, recognizing any subsequent conduct as potentially

retaliatory invades the province of the employer’employce

relationship. See Stephanie Armour & Barbara Hansen, Flood

of ‘Retaliation’ Cases Surfacing in U.S. Workplace, USA

Today, Feb. 10, 1999, at 1A. Making employers subject to a

section 704(a) suit for any action that an employee may find

unfair is an undue burden on employers by forcing them to

police their every action once an employee has opposed one of

its policies or has filed a complaint with the EEOC. Vicky

Ramsey Conwell, Bosses’ Retaliation Bringing Lawsuits,

Atlanta J. & Const., Aug. 1, 1999, at IR. Allowing employers

to develop their own policies and procedures to govern

relationships with employees following an objection to

discriminatory behavior encourages amicable relations pending

the proceeding. At the same time, the courts are available if the

employer should engage in behavior beyond the scope of its

policy. Hyland, Equal Opportunity for Employers, 90 Ky. L- J.

at 286.

The greater the gulf between a valid cause of action under

Section 703 (discrimination) and Section 704 (retaliation), the

more incentive exists to encourage unhappy employees to allege

a discrimination claim as a means of setting up a much more

broadly defined retaliation claim. There should be closer parity

between the two sections to reduce the msk of litigious

gamesmanship. Thus, this Court should reject the FEOC and

Ninth Circuit calls for an extremely broad definition of “adverse

employment action” as anything that might “deter protected

activity,” even when the employee cannot point to any tangible

economic unpact of the employer's alleged retaliation.

8

From the perspective of an employee, who already feels

vulnerable having filed a complaint, virtually any negative

feedback may be perceived as related to the protected

complaint. /d. at 290-91. For example, in 7ran v. Trustees of

the State Colleges in Colorado, 355 F.3d 1263 (10th Cir. 2004),

an employee (Ms. Tran) made a claim of sexual harassment. In

response, the employer increased the amount of supervision

over the employee. The employee complained that she was

being too closely supervised such that her working conditions

had become intolerable. But the court found that

In light of Ms. Tran’s prior complaints that other

employees were sexually harassing her or engaging

in other inappropriate behavior, as well as her prior

complaint that Ms. Hanna did not pay enough

attention to her during the period when Ms. Hanna

was her supervisor, it was reasonable to expect

closer monitoring by Ms. Doyle to ensure that

Ms. Tran received adequate supervision and was not

subjected to inappropriate behavior by other

employees.

Id. at 1271. Nonetheless, Ms. Tran did not view Ms. Doyle's

actions in this light, felt distressed by the situation, and cited the

close supervision as a reason for leaving her employment and

filing a claim of constructive discharge. /d.

The very broad standard adopted by the EEOC and Ninth

Circuit demands that, as a practical matter, courts will be

required to intrude into day-to-day management decisions in a

way that usually has been condemned by this Court and other

lower courts. See, e.g., Furnco Constr. Corp. v. Waters, 438

U.S. 567, 578 (1978), where this Court explicitly admonished

the courts against becoming personnel managers and warned of

“the dangers of embarking on a course . . . where the court

requires businesses to adopt what it perceives to be the “best” ~

employment practices.: sce also Bicnkowski v. Am. Airlines,

9

Inc., 851 F.2d 1503, 1507-08 (Sth Cir. 1988) (holding that

“femployment discrimination laws were] not intended to be a

vehicle for judicial second-guessing of employment decisions,

nor... to transform the courts into personnel managers”); Dale

v. Chic. Tribune Co., 797 F.2d 458, 464 (7th Cir. 1986) (stat-ng

that the court “does not sit as a super-personnel department that

recxamines an entity's business decisions”); Parcinski v. Ouilet

Co.. 673 F.2d 34, 37 (2d Cir. 1982) (explaining tat

employment discrimination laws do “not authorize the courts to

judge the wisdom of a corporation’s business decisions”);

Cathy Currie, Note, Staying on the Straighter and Narrower:

A Criticism of the Court’s Definition of Adverse Employment

Action Under the Retaliation Provision of Title VII: Ray v.

Henderson, 217 F.3d 1234 (9th Cir. 2000), 42 S. Tex. L. Rev.

1323, 1344 (2002).

A spectrum this broad is grossly unfair to employers

who must handle internal office politics and have a

reasonable opportunity to protect their interests from

a disgruntled employee. The consequence of such a

wide array of potential liability hinders the ability of

employers to effectively manage employees, inciting

fear of retaliation if a manager gives a poor

evaluation to an employce. In addition, employees

receive a halo of protection after they have

complained about alleged unlawful discrimination

that may be unjustified, particularly since liability for

these alleged practices has yet to be established.

Hyland, qual Opportunity for Emplovers, 90 Ky. L. J. at 291.

Moreover, as retaliation claims are brought in increasing

numbers as permitted by an expansive definition of “adverse

employment action, there is a nsk that serious claims might be

buned among the trivial. Donna Smith Cude & Brian M.

Steger, Does Justice Need Glasses? ~Unlawful Retaliation

Under Title VII Following Mattern, Will Courts Know It When

They See It?, 14 Lab. Law. 373, 410 (1998).

10

On the other hand, if the employee is not trying to set up

the employer, and is genuinely distressed by perceived

discrimination and wants to work to rectify it within the

workplace, reconciliation between employer and employee is

more likely to occur if the matter is resolved in more informal

proceedings. “Courts have emphasized that Congress intended

to encourage employers and employees to conciliate rather than

litigate their grievances involving discrimination within the

workplace.” Ann M. Henry, Comment, Emplover and

Employee Reasonableness Regarding Retaliation Under the

Ellerth/Faragher Affirmative Defense, 1999 U. Chi. Legal F.

553, 568 (199°). Once the employment relationship becomes

fodder for htigation, with dueling discovery, supervisors and

coworkers reluctantly deposed, and all the adversarial trappings

of the judicial system, both sides are likely to incur high costs

in money and acrimony. See John J. Donohue Il] & Peter

Siegelman, The Changing Nature of Employment

Discrimination Litigation, 43 Stan. L. Rev. 983, 1031-32

(1991) (“{a] souring of the employment relationship{] militates

against litigation .... In most cases, litigation is a viable

option only when the employment relationship has been broken

off”). See also Shannon Vincent, Comment, Unbalanced

Responses to Employers Getting Even: The Circuit Split Over

What Constitutes a Title Vil-Prohibited Retaliatory Adverse

Employment Action, 7 U. Pa. J. Lab. & Emp. L. 991, 996 (2005)

(noting the price paid in high litigation costs and overbroad

employer liability). How much more efficient and productive

if the dispute is promptly resolved, the employee made whole

through the standard, appropriate remedies, and the

employment relationship resumed. “The purposes of Title VII

are best served when parties, where possible, attack

discnmination within the context of their existing employment

relationships.” Adwards v. Occidental Chemical Corp., 892

F.2d 1442, 1449 (9th Cir. 1990): F.F.O.C. v. LB. Foster Co..

)23 F.3d 746, 755 (3rd Cir. 1997); Derr v. Gulf Oil Corp., 796

F.2d 340, 342-43 (10th Cir. 1986); Clark v. Marsh. 665 F.2d

1168, 1173 (D.C. Cir. 1981); Bourque v. Powell Electrical

Manufacturing Co., 617 F.2d 61, 65-66 (Sth Cir. 1980).

These policy considerations motivated the courts in

several cases in which temporary setbacks, subsequently

corrected, do not rise to the level of an adverse employment

action. These include:

Shohadaee vy. Metropolitan Government of Nashville and

Davidson County, 150 Fed. Appx. 402, 405 (6th Cir.

2005) (* [a]lthough Plaintiff was initially denied tenure,

she was given another opportunity to prove herself.

During that year, she did not lose any income or benefits.

She does not contend that the terms and conditions of her

employment materially changed. Plaintiffis no worse off

with respect to seniority, income, or benefits having been

granted tenure after her fourth-year rather than after her

third year.”’).

Taylor v. Small, 350 ¥.3d 1286, 1293-94 (D.C. Cir. 2003)

(holding that an employer can cure an otherwise adverse

employment action before the action becomes a subject of

litigation and adopting the district court’s reasoning:

“Permitting employers the opportunity to correct

workplace wrongs prior to litigation is the objective of the

EEO process. If a plaintiff were permitted a right to sue

even if his or her employer had corrected the grievance,

there would be absolutely no incentive for employers to

make adjustments for past conduct dunng the FEO

process.”).

Brooks v. City of San Mateo, 229 F.3d 917, 929-30 (9th

Cir. 2000) (with regard to a withdrawn negative

performance evaluation, the court held: “Nevertheless,.

the evaluation here was not an adverse employment action

because it was subject to modification by the city. Brooks

refused to accept the review and appealed, but she

abandoned her job while the appeal was pending. Because

12

the evaluation could well have been changed on appeal, it

was not sufficiently final to constitute an adverse

employment action.” Moreover, when Brooks complained

about her assigned shift and that her vacation preferences

had been denied, the employer reversed course, changed

her shift, and granted the requested vacation time. Thus,

the delay in obtaining the favored shift and vacation time

were not adverse cmployment actions.).

Dobbs-Weinstein v. Vanderbilt University, 185 F.3d 542,

546 (6th Cir. 1999) (with regard to a tenure decision

delayed for a year, the court held: “Dobbs-Weinstcin

succeeded in the grievance process, and Vanderbilt's final

decision was to grant her tenure. She has not here

suffered a final or lasting adverse employment action

sufficient to create a prima facie case of employment

discrimination under Title VII. To rule otherwise would

be to encourage litigation before the employer has an

opportunity to correct through internal grievance

procedures any wrong it may have committed.”).

Stewart v. Evans, 275 F.3d 1126, 1135-36 (D.C. Cir.

2002) (attempt to obstruct federal employee's award

nomination was not an adverse employment action

because the employee eventually received the award;

further, delay in plaintiff's secking appointment was not

actionable retaliation. In rejecting the employee's claim

because she ultimately obtained every workplace

advantage that she wanted, the court noted: “Title VII

does not provide relief for victims of attempted

retaliation. ”).

Amro v. Boeing Co., 232 F.3d 790, 797-98 (10th Cir.

2000) (finding that mere delay in granting the plaintiff's

desired transfer did not constitute an adverse employment

action even though it meant plaintiff had to continue

working under supervisor who allegedly harassed him

13

because plaintiff failed to show any other negative or

unfavorable effect of that delay).

* Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 587-89 (1 Ith

Cir. 2000) (finding that the assignment of professor to

teach more credit hours than other professors and to teach

classes On three different campuses during one session

was not adverse cmployment action because the

assignment was a mistake and it was promptly corrected

so that emplovee never suffered any actual consequences;

further, threatened letters that were never actually written

did not meet threshold level of substantiality necv.sary to

be cognizable under the antiretaliation clause. ‘The court

held: “A proposed action that is corrected as soon as the

proper official is made aware of it and before it goes into

effect, so that the employee does not actually suffer any

consequence, is not ‘adverse.’ ~).

The common thread in these cases is that workplaces “are

rarely idyllic retreats.” Blackie v. Maine, 75 F.3d 716, 725 (ist

Cir. 1996). Instead, they are “complex environments in which

decisions are made by a variety of people for a variety of

reasons.” Ann Clarke Snell & Lisa R. Eskow, Whar Motivates

the Ultimate Decisionmaker? An Analysis of Legal Standards

for Proving Causation and Malice in Employment Retaliation

Suits, 50 Baylor L. Rev. 381, 382 (1998). Because of the nature

of the workplace, the multi-faceted decisionmaking, and the

expressed judicial desire to let errors be corrected prior to

litigation, an employer ought to be able to use the standard

practice of suspension ‘investigation reinstatement with backpay

in response to alleged insubordination. This is so regardless of

whether the employee previously exercised a protected night.

An employer should not be “paralyzed into inaction once an

employee has lodged a complaint under 1 ithe VIL making such

a complaint tantamount to a ‘get out of jail free’ card for

employees engaged in job misconduct.” Brooks, 229 F.3d 917

at 928.

14

+

CONCLUSION.

The judgment of the Sixth Circuit Court of Appeals should

be reversed.

DATED: January, 2006.

Respectfully submitted,

DEBORAH J. LA FETRA

Counsel of Record

Pacific Legal Foundation

3900 Lennane Drive, Suite 200

Sacramento, California 95834

Telephone: (916) 419-7111

Facsimile: (916) 419-7747

Counsel for Amicus Curiae

Pacific Legal Foundation

No. 05-259 | AN S35 pon,

IN THE 0 ESO Cas

Supreme Court of the Rnited States

BURLINGTON NORTHERN SANTA FE RAILWAY CoO.,

Petitioner,

Vv.

SHEILA WHITE,

Respondent.

On Writ of Certiorari

to the United States Court of Appeals

for the Sixth Circuit

BRIEF OF PETITIONER

JAMES H. GALLEGOS CARTER G. PHILLIPS*

LAWRENCE M. STROIK STEPHEN B. KINNAIRD

DAVID M. PRYOR Eric A. SHUMSKY

BNSF RAILWAY Co. EAMON P. JOYCE

2500 Lou Menk Drive, KATRICE L. BRIDGES

AOB-3 THOMAS A. BURNS

Fort Worth, TX 76131-2828 NirRALi D. PATEL

(817) 352-2360 SIDLEY AUSTIN LLP

1501 K Street, N.W. -

BRYAN P. NEAL Washington, D.C. 20005

THOMPSON & KNIGHT LLP (202) 736-8000

1700 Pacific Avenue

Suite 3300

Dallas, TX 75201

(214) 969-1700

Counsel for Petitioner

January 26, 2006 * Counsel of Record

[Additional Counsel Listed on Inside Cover]

ed

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 -— WASHINGTON, D.C. 20001

RALPH T. GIBSON

BATEMAN GIBSON, LLC

65 Union Avenue, Ste. 1010

Memphis, TN 38103

(901) 843-2466

QUESTION PRESENTED

Whether an employer may be held liable under section 704

of the Civil Rights Act of 1964 for assigning an employee

duties within her job description, or for a temporary suspen-

sion rescinded with full back pay after the employer com-

pleted an investigation.

(1)

PARTIES TO THE PROCEEDINGS

All parties are listed in the caption.

RULE 29.6 STATEMENT

BNSF Railway Company (“BNSF”), formerly known as

Burlington Northern Santa Fe Railway Co., is a wholly

owned subsidiary of Burlington Northern Santa Fe Corpora-

tion. No publicly held company owns 10% or more of the

stock of Burlington Northern Santa Fe Corporation.

TABLE OF CONTENTS

CUES TIN PUREIst 6 USED on .cnsccvcssecncecousicensesoapesoeenetesie

PARTIES TO THE PROCEEDINGS...............ccceeeeeees

RULE ZOG STAT EIEIGG cicessessnisosesotstensscevensesesnsivnnenss

FABLE OF RAST GUIS CUI ccccciericsnisusatictcnsintnionuns

CSP TPCITED CIEEAI WY piccsscescnsnscionerseninebbienceisinietintadgliiieniainn

FOIE FUATES cnccesnescenssnnianseomiesicvnsmenieusaperesenunbaeaaelet

STATUTES OR OTHER PROVISIONS INVOLVED

STATEMENT OF FIG CARE. .ccoccsscscssesssnstesoesensennesons

SUMMARY OF ARGUMENT ....... ce ecseeesseseeseneens

PI FITOIIIITS v0siccssrsricrincsectenisaniadintieniiassvmanmasaaa

Il. EMPLOYER CONDUCT [IS ACTIONABLE

UNDER SECTION 704 ONLY IF IT

ADVERSELY AND SIGNIFICANTLY

CHANGES EMPLOYMENT STATUS ..........0....

A. The Same Standard For Discrimination

Applies Under Sections 703 And 704 Of

We FUE is cocesttsensiticsehiddidsneniidaiininieaeeene

B. This Court’s Decision In Burlington Industries

v. Ellerth Detines The Substantive Standard

COE EEO OE EAITII seccciccinsncovsiissigisaniisnimciaal

C. Assigning White Routine Duties Within Her

Job Description Of A Kind That She And

Fellow Employees Already Performed Is Not

An Adverse Employment Action ..................6..

D. White’s Temporary Removal From Service,

Which Was Rescinded With Back Pay, Is Not

PIIIIUE 00 visivnctsusitinpiissninicainbhideadamalaaieaal

(111)

1]

1]

13

33

iv

TABLE OF CONTENTS—continued

Page

ll. THE EEOC’S INTERPRETATION = OF

SECTION 704 TO SUPPORT THE SIXTH

CIRCUIT'S RULING IS NOT ENTITLED TO

FE 42

TT iicicithtselecsckibicentionstiinsheiatinenansveenssenenecesecemnes 50

Vv

TABLE OF AUTHORITIES

CASES Page

Alexander v. Gardner-Denver Co., 415 U.S. 36

UU extnsciietenthasubdiisabanalesuaticitetesasieaininibiitnamaibinies 1]

Ankenbrandt v. Richards, 504 U.S. 689 (1992)... 44

Ayon v. Sampson, 547 F.2d 446 (9th Cir. 1976)... 18

Bailey v. United States, 516 U.S. 137 (1995)........ 13

Bigge v. Albertsons, Inc., 894 F.2d 1497 (11th

Geek, (eee ncistithdnethiaaeihiceahonicinelicthdeimiehdibdehipecintGhhacsscuahaaiitie 44

Boone v. Goldin, 178 F.3d 253 (4th Cir. 1999)..... 27

Brazoria County, Tex. v. EEOC, 391 F.3d 685,

ne als See ee iicsossicaiatteintincinesisinpuiaitiniiiiaiaianln 18

Breaux v. City of Garland, 205 F.3d 150 (Sth Cir.

Soe incsencnieiiiteiapeiins Uapelaihdasiaionitiadlaieadanaiadeiiaeoanaiid 36

Brooks v. City of San Mateo, 229 F.3d 917 (9th

ERLE EARS Bie, ORs Peed wre eae 36

Brown v. Brody, 199 F.3d 446 (D.C. Cir. 1999)... 18

Burlington Indus. v. Ellerth, 524 U.S. 742

DOPE ciushtinnsieipsranihdtbnschesinshasioaiiiaibacneieddieitiiatidet stati ttieias passim

Burrus v. United Tel. Co. of Kan., Inc., 683 F.2d

ee, Wee nsctutinsiasidsieceitniatintntcanataiinsialasiasl 44

Canitia v. Yellow Freight Sys., Inc., 903 F.2d

Re IEED Were eciinscnciaiinsictntetntiviendeestiiiaiaiatiiiiies 44

City of Columbus v. Ours Garage & Wrecker

Serv., Inc., $36 U.S. 424 (2002) .......::.ceccccceeeees 46

Conley v. Village of Bedford Park, 215 F.3d 703

Eats PU cieteiceieihtintiiianaleininhiichaleiinataidiateniatitoad 29

Coszalter v. City of Salem, 320 F.3d 968 (9th Cir.

RECA Ane eH here Se RTE ML ee 47

Crady v. Liberty Nat'l Bank & Trust Co. of Ind,

ik we Pky ie, [oe A) a 26

Deavenport v. MCI Tel. Corp., 973 F. Supp. 1221

Se et es, GPT sciciitiinictctesdeticnptiitnistiuiiieiaiibeeabatieiitsianis 49

Delaware State Coll. v. Ricks, 449 U.S. 250

(GIN ENI rls NMN Fes ro TNS SR OG Bm ar eB 37, 38

vi

TABLE OF AUTHORITIES—continued

Page

Dobbs-Weinstein v. Vanderbilt Univ., 185 F.3d

a, ee ccienctcitrinniatictsinictaciiiibdiateiinnmil 35, 36

Dodge v. Giant Food, 488 F.2d 1333 (D.C. Cir.

ISI sda Scelhiaeaihadeanaiahiandibetiibiidoaciniimiabimtaeminicbsieoeds 19

Dollis v. Rubin, 77 F.3d 777 (Sth Cir. 1995)......... 48

Dothard v. Rawlinson, 433 U.S. 321 (1977)......... 18

EEOC vy. Arabian Am. Oil Co., 499 U.S. 244

IRIS shccaiccenncichbiescicneaiadiapicaielblisiaiadindneaentiiate 43.44

Engine Mfrs. Ass'n v. South Coast Air Quality

Mami. Dist., 541 U.S. 246 (2004)... eee 13

Estades-Negroni vy. Assocs. Corp. of N. Am.

Fee Fade Fe Cee Ga: Be icercentepnnicitiieanioinnnin 36

Faragher v. City of Boca Raton, 524 U.S. 775

UEP sicuchisnicnsiniaeneescliotcepciaaiiainpiiaiaiiia 21, 22, 24, 33, 50

Fairbrother v. Morrison, 412 F.3d 39 (2d Cir.

STITT ntiepieisliltergediiaseia decibel aiaectad dai iaaeaaa 17

Flaherty v. Gas Research Inst., 31 F.3d 451 (7th

Its SUITED ccinisslclieittitalidcaedghitiieailbenisaaialiiatbapalta 22, 26

Ford Motor Co. v. EEOC, 458 U.S. 219 (1982)... 32, 38

Furnco Constr. Corp. v. Waters, 438 U.S. 567

(ie iiaiesihianniidenns ciligeuiiiaibechiaihaiiebsasiuasedhadalsteiibiniile 30

Fyfe v. Curlee, 902 F.2d 401 (Sth Cir. 1990)........ 49

Galabya v. New York City Bd. of Educ., 202 F.3d

REE enone 27

General Elec. Co. v. Gilbert, 429 U.S. 125

err eillicesscenitiebediusileicttiansidiadanineameiinitionaismaniaiiediel 42. 43,45

Gonzalez v. Oregon, No. 04-623, 2006 WL 89200

Fe}: & ee 43

Gunnell v. Utah Valley State Coll..152 F.3d 1253

Cy Cee crccciaipitbabinncetiasipnuninsiniitinianieniebigts 32

Gustafson v. Alloyd Co., 513 U.S. 561 (41995)... 14

Hale v. Marsh, 808 F.2d 616 (7th Cir. 1986)........ 18

Hamann v. Gates Chevrolet, Inc., 910 F.2d 1417

TNs Se aniietcciediniieniitiiiiatiauiaiitiadibimbataietiie 44

vii

TABLE OF AUTHORITIES—continued

Page

Harlston v. McDonnell Douglas Corp., 37 F.3d

FOE GA: Ce cicacisncrnimenndinintinciannntinn 22, 26, 27

Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993)... 21

Harris v. Sec'y, U.S. Dep't of the Army, 119 F.3d

I il 49

Herman & MacLean v. Huddleston, 459 U.S. 375

SOT cicchlsuieiecincceciabithnietstitimsiniriheteatiilntiaaihaal italia 45

Hill v. Mississippi State Empl. Serv., 918 F.2d

a OIL, TTIITIII icleii ict tiddlnlinatbhahtiiiiat ie 44

Hishon v. King & Spalding, 467 U.S. 69 (1984)... 19

Holcomb v. Powell, _ F.3d __, 2006 WL 45853

a BY EER eee 17

International Union of Elec., Radio & Mach.

Workers v. Robbins & Myers, Inc., 429 U.S.

er ee icicstishiectuisbenbcitiatnitiaienseabhiapsinidiadasliiubianin 37, 38

Jordan v. Clark, 847 F.2d 1368 (9th Cir. 1988) ... 44

King v. St. Vincent's Hosp., 502 U.S. 215 (1991). 13

Knox v. Indiana, 93 F.3d 1327 (7th Cir. 1996)..... 32

Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876

aE OP chinstnitiitcieidesiesbieendntteriainsininiiickoiinienibenes 22, 26

Kolstad v. American Dental Ass'n, 527 U.S. 526

pre rea ie ssrshsasecibieciansiiaccbinclinepanentindintsentimenintiapaipliiniidiaiiis 1]

Lawson v. McPherson, 679 F. Supp. 28 (D.D.C.

Fae iisecincctlgatusiasiiiitatpaneticepeidvaiaineipiaabinleniteliiaiiels 49

Ledergerber v. Stangler, 122 F.3d 1142 (8th Cir.

Perea saiiiachdestasuilciaceeimniaiatnedidinaliibeabibiaaiblaten dante aihdttlia 29

Local Number 93, Int'l Ass'n Of Firefighters v.

Cleveland, 478 U.S. 501 (1986) ....cccccccee eens 31

Lorillard vy. Pons, 434 U.S. 575 (1978).....ccccccee. 44

Marrero v. Gova of P.R.. Inc., 304 ¥.3d 7 (Ist

Sek Me isdicetniihenteicandaddinnsitecinipceinamiatiiiasi 27, 29, 32

Martin v. Frank, 788 F. Supp. 821 (D. Del.

IUPUI: innictisicechhchtuaind iii eisai atti hace 49

Massachusetts v. Morash, 490 U.S. 107 (1989) ... 14

Vill

TABLE OF AUTHORITIES—continued

Page

Mattern v. Eastman Kodak, 104 F.3d 702 (5th Cir

PTT i cthsibeapeaitascedileniasedelieattiminjaemitntisiin i eeiadliiataliin 13

McDonnell Douglas Corp. v. Green, 411 US.

EIU saciid aia aii cit a 1]

Meritor Sav. Bank, FSB v. Vinson, 477 U.S. $7

[Ei arearei hviosesisanibusbaniaiichaasinassciaiiaunsisbiiaitncahicipeitanite 19, 21, 24, 32

Moore v. California Inst. of Tech. Jet Propulsion

Labs., 275 F.3d 838 (9th Cir. 2002).......00..000008. 47

National R.R. Passenger Corp. v. Morgan, 536

EA He Cee ictrshicinsiniibesieapbimpidinmenniieeaiotniass 37, 43

Nelson v. Upsala Coll., 51 F.3d 383 (3d Cir.

Norfolk & W. Ry. v. Ayers, 538 U.S. 135 (2003)... 42

Okruhlik y. University of Arkansas, 395 F.3d 872

Rar ean eee ee nen eae 36

Oncale v. Sundowner Offshore Services, Inc., 523

es Be ie ihltes cesta elencahciincnteneni alts mealies 21

Pardi v. Kaiser Found. Hosps., Inc., 389 F.3d 840

I A iehiieinicieeiciadicemil esceceal inleaadiaalass 46

Parrish vy. Worldwide Travel Serv., Inc., 512

a a ls SIU cedicvicnndeiininincmbdiansieinnsens 39

Patel vy. Allstate Ins. Co., \05 F.3d 365 (7th Cir.

SRE ISIE TRIO AS EIN Pa 49

Pennington v. City of Huntsville, 261 F.3d 1262

RST FR oid ae 36

Pennsylvania State Police v. Suders, 542 U.S.

ai siceldnteiitintsDveentdeninnicinmaiitetiiiaslniiaela het alasias passim

Petitti v. New England Tel. & Tel. Co., 909 F.2d

NE, We idisiaiinnsnctcishaicteetanaiibainiaiapidisdcatilbtaiets 44

Phillips v. Collings, 256 F.3d 843 (8th Cir. 2001) 21

Price Waterhouse v. Hopkins, 490 U.S. 228

Ee ctciircscesitvisiacaiincniiesnictiantadiatigidiemmnpeinsiendaliitons 31

Randlett v. Shalala, 118 F.3d 857 (Ast Cir. 1997). 18

Ray v. Henderson, 217 F.3d 1234 (9th Cir. 2000) 32, 42