Appendix — Holt v. JTM Industries, Inc.

Supreme Court, U.S.

FILED 5

F

961472 MAR 1 3 1997

NO.

OFFICE OF HE OLmK

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1996

FRANK HOLT

Plaintiff-Petiti

JTM INDUSTRIES, INC.

Defendant-Respondent

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI

to the

United States Court of Appeals

For the Fifth Circuit

(CASE NO. 95-50145)

John Patrick Atkins

Counsel of Record

Philip E. McCleery

SHEEHY, LOVELACE & MAYFIELD, P.C.

510 N. Valley Mills Dr., Suite 500

Waco, Texas 76710

(817) 772-8022

FAX (817) 772-9297

Attorneys for Petitioner

Frank HOLT; Linda Holt,

Plaintiffs-Appellees,

v.

JTM INDUSTRIES, INC.,

Defendant-Appellant,

and

USPCI Inc., Defendant.

No. 95-50145.

United States Court of Appeals,

Fifth Circuit.

Aug. 7, 1996.

Appeal from the United States District Court for the

Western District of Texas.

Before GARWOOD, EMILIO M. GARZA and

DENNIS, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Defendant JTM Industries, Inc. ("JTM") appeals from

the district court’s denial of its motion for judgment as

a matter of law. We reverse and dismiss the case with

prejudice.

Plaintiffs Linda and Frank Holt were employees at JTM’s

Limestone Facility ("Facility") in Jewett, Texas. After JTM

terminated Linda, she filed a charge of age discrimination

with the Equal Employment Opportunity Commission

("EEOC") and the Texas Commission on Human Rights

("TCHR"). Approximately two weeks after JTM received

notice of Linda’s administrative complaint, Frank was placed

on paid administrative leave. Frank was subsequently

offered another job with JTM in Atlanta which he accepted,

but then voluntarily quit after several weeks.

Linda and Frank Holt filed a complaint against JTM

and its parent corporation, USPCI, alleging, inter alia,

violations of their rights under the Age Discrimination in

Employment Act of 1967 ("ADEA"). Specifically, the Holts’

alleged age discrimination, pursuant to 29 U.S.C. § 621,

and retaliation against Frank for Linda’s administrative

complaint of age discrimination, pursuant to 29 U.S.C. §

623(d). The claims that survived summary judgment were

tried before a jury. At the close of evidence, the district

court refused to submit any of the Holts’ claims against

USPCI to the jury, denied JTM’s motion for judgment as

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2M Ee An OEE ERE EE EE MO ee

a matter of law, and submitted the Holts’ claims against

JTM to the jury. The jury rejected all of the Holts’ claims

against JTM, except for Frank’s claim of retaliation. The

district court entered judgment in conformity with the jury

verdict, implicitly denying JTM’s third motion for judgment

as a matter of law. JTM filed a timely notice of appeal.

II

[1-3] JIM argues that the district court erred in denying

its motion for judgment as a matter of law. We review

a district court’s disposition of a motion for judgment as

a matter of law de novo. Wardlaw v. Inland Container Corp.,

76 F.3d 1372, 1375 (Sth Cir. 1996). We must consider all

of the evidence "in the light and with all reasonable

inferences most favorable to the party opposed to the

motion." Boeing Co. v. Shipman, 411 F.2d 365, 374 (Sth

Cir. 1969) (en banc). There must be a conflict of substantial

evidence to create a jury question. Jd. at 375.

[4,5] Section 623(d) of the ADEA protects employees

from retaliation for opposing acts of age discrimination,

or for charging, testifying, assisting, or participating in any

manner in an investigation, proceeding, or litigation under

the ADEA. 29 U.S.C. § 623(d). A plaintiff establishes

a prima facie case of retaliation under the ADEA by

showing: (1) that he engaged in activity protected by the

ADEA; (2) that there was an adverse employment action;

and (3) that there was a causal connection between the

a

participation in the protected activity and the adverse

employment decision. Shirley v. Chrysler First, Inc., 970

F.2d 39, 42 (Sth Cir. 1992).

JTM alleges that the district court erred in denying its

motion for judgment as a matter of law because Frank

did not engage in an activity that is protected by the ADEA.

Specifically, JTM argues that Frank did not oppose JTM’s

practices which Linda alleged were discriminatory, nor did

he make a charge, testify, assist or participate in any manner

in Linda’s age discrimination complaint, as required under

29 U.S.C. § 623(d). The Holts do not argue that Frank

participated in Linda’s filing a charge of age discrimination.

Instead, they argue that Linda’s charge of age

discrimination, which is protected activity under the ADEA,

should be imputed to her husband Frank.

[6,7] The plain language of § 623(d) prohibits an

employer from retaliating against an employee because

"such individual" has opposed a practice prohibited by the

ADEA or has participated “in any manner" in a proceeding

under the ADEA. This section permits third parties to

sue under § 623(d) if they have engaged in the enumerated

conduct, even if the conduct was on behalf of another

employee’s claim of discrimination. See Jones v. Flagship

Intern., 193 F.2d 714, 727 (Sth Cir. 1986) (acknowledging

that “employee opposition to discriminatory employment

practices directed against a fellow employee may constitute"

protected activity under the anti-retaliation provision of

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2 RAS RIE AR DR RRS SERIE? BO :

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Title VII), cert. denied, 479 U.S. 1065, 107 S.Ct. 952, 93

L.Ed.2d 1001 (1987); Mandia v. ARCO Chemical Co., 618

F.Supp. 1248, 1250 (W.D.Pa. 1985) (holding that husband

could sue under the anti-retaliation provision of Title VII

because he “participated, supported and aided his wife

in filing" EEOC charges of sexual harassment).' The Holts

urge an even broader interpretation of § 623(d). They

argue that an individual suing for retaliation need not

personally engage in any of the enumerated conduct in

§ 623(d). Instead, the Holts contend that once an

employee’s spouse engages in protected activity, the non-

complaining spouse automatically has standing to sue for

retaliation under § 623(d). This interpretation is necessary,

according to the Holts, to eliminate the risk that an

employer will discriminate against a complaining employee’s

spouse in retaliation for the complaining employee’s

protected activities.

The Holts cite De Medina v. Reinhardt, 444 F.Supp. 573

(D.D.C. 1978), as support for their position. The plaintiff

in De Medina sued under the anti-retaliation provision

of Title VII for retaliation against her because of her

husband’s anti-discrimination activities. De Medina, 444

F.Supp. at 574. The district court concluded that “tolerance

of third-party reprisals would, no less than tolerance of

1 The anti-retaliation provisions of the ADEA and Title

VII are similar and “cases interpreting the latter provision are frequently

relied upon in interpreting the former." Shirley, 970 F.2d at 42 n.

a.

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direct reprisals, deter persons from exercising their

protected rights under Title VII," which would be contrary

to legislative intent. Jd. at 580. Therefore, the court held

that a plaintiff could sue for retaliation for a relative’s or

friend’s protected activities. It is unclear from the district

court’s statement of facts whether the plaintiff participated

in any manner in her husband’s activities. To the extent

that this case stands for the proposition that a plaintiff

automatically has standing to sue for retaliation when a

relative or friend engages in protected activity, we disagree.

[8] Such a rule of automatic standing might eliminate

the risk that an employer will retaliate against an employee

for their spouse’s protected activities. However, we

conclude that such a rule would contradict the plain

language of the statute and will rarely be necessary to

protect employee spouses from retaliation. Section 623(d)

prohibits retaliation against an employee who has opposed

a discriminatory practice or has participated "in any manner"

in a proceeding under the ADEA. This broad language

is consistent with Congress’s remedial goals in enacting

the ADEA. Congress intended the anti-retaliation provision

of the ADEA to enable employees to engage in protected

activities without fear of economic retaliation. See E.E.O.C.

v. Ohio Edison Co., 7 F.3d 541, 544 (6th Cir. 1993) (stating

that the purpose of the ADEA "is to prevent fear of

economic retaliation from inducing employees quietly to

accept [unlawful] conditions™) (alteration in original)

(quoting Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S.

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SORERER

Me a ee ew

* ASIII Fe TD

288, 292, 80 S.Ct. 332, 335, 4 L.Ed.2d 323 (1960)). To

accomplish this goal, Congress drafted § 623(d) to give

those employees who oppose discriminatory practices or

who participate "in any manner in an investigation [or]

proceeding" under the ADEA automatic standing to sue

if their employers retaliate against them for their actions.

[9] We recognize that there is a possible risk that an

employer will discriminate against a complaining employee’s

relative or friend in retaliation for the complaining em-

ployee’s actions. However, we believe that the language

that Congress has employed in § 623(d) will better protect

employees against retaliation than we could by trying to

define the types of relationships that should render

automatic standing under § 623(d). If we hold that spouses

have automatic standing to sue their employers for retalia-

tion, the question then becomes, which other persons should

have automatic standing to guard against the risk of

retaliation? In most cases, the relatives and friends who

are at risk for retaliation will have participated in some

manner in a co-worker’s charge of discrimination. The

plain language of § 623(d) will protect these employees

from retaliation for their protected activities. However,

when an individual, spouse or otherwise, has not

participated "in any manner" in conduct that is protected

by the ADEA, we hold that he does not have automatic

standing to sue for retaliation under § 623(d) simply because

his spouse has engaged in protected activity.’

The evidence at trial revealed that Frank was not aware

of Linda’s intent to file a charge of age discrimination

against JTM until a few days before she actually made the

charge. He testified that when TCHR mailed Linda a copy

of the notice of the filing and service of her complaint,

he retrieved it from the post office and looked at it with

her. Frank’s only other involvement with Linda’s protected

activities involved carrying out his duties as an employee.

The TCHR served the notice of Linda’s complaint on JTM

to Frank’s attention as Plant Manager. Frank testified

that he never opened the notice, but he assumed that it

contained Linda’s complaint. After receiving the notice,

2 The only other circuit case that has addressed a similar

issue is not inconsistent with our interpretation of § 623(d). Inter-

preting the anti-retaliation provision of Title VII, 42 U.S.C. § 2000e-

3(a), the Sixth Circuit held that an employee is protected from

retaliation where the employee's representative opposes a discriminatory

practice. E.E.O.C. v. Ohio Edison Co., 7 F.3d 541, 545 (6th Cir.1993).

The plaintiff in Ohio Edison alleged that his employer had discriminated

against him by withdrawing an offer of reinstatement "because a co-

employee engaged in protected activity and protested [the plaintiff's]

discriminatory discharge on his behalf and threatened that a claim

would be filed for the discriminatory discharge." Jd. at 546 (emphasis

added). The fact that the employee had engaged a “representative"

to act on his behalf to protest his discharge illustrates that the employee

had opposed a discriminatory employment practice, as required under

the anti-retaliation provision of Title VIL Therefore, unlike Frank

Holt, the plaintiff in Ohio Edison fell within the plain meaning of

the statute as one who has standing to sue for retaliation.

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‘

Frank called the Manager of Human Resources for JTM,

Debbie Bankston, and told her that JTM had been served

with papers from the TCHR. Frank testified that he

followed Ms. Bankston’s orders and sent the notice via

Federal Express to JTM’s Human Resources Department.

This evidence does not establish that Frank participated

in Linda’s protected activities or that he opposed JTM’s

alleged discriminatory practice. There is no evidence that

Frank helped Linda prepare her charge or that he assisted

in any way in its filing. At best, Frank was a passive observ-

er of Linda’s protected activities. As such, he does not

have standing to sue for retaliation under § 623(d).

Ill

For the foregoing reasons, we REVERSE the judgment

of the district court and DISMISS the case with prejudice.

DENNIS, Circuit Judge, dissenting:

Frank Holt proved to the satisfaction of a jury that his

employer engaged in adverse employment actions against

him in retaliation for his wife’s filing of a claim under the

Age Discrimination in Employment Act (ADEA), 29 U.S.C.

§ 621 etseq. Nonetheless, the majority holds that Mr. Holt

lacks “standing” to sue under that Act’s anti-retaliation

provision because he did not prove that he personally

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engaged in the protected conduct giving rise to the

employer’s wrongful action. Because the majority relies

on the concept of standing as the basis of its reversal, when

at best it has presented an argument that Mr. Holt has

no cause of action under the statute; because the decision

imposes a rigid literalism in its interpretation of the anti-

retaliation provision that undermines the purpose of the

statute; and because the opinion ignores relevant case law

and agency decisions construing the similar anti-retaliation

provision of Title VII to provide a cause of action for

retaliation against an employee for the protected activity

of that employee’s family member, I dissent.

The question of standing "[i]n essence... is whether the

litigant is entitled to have the court decide the merits of

the dispute or of particular issues. This inquiry involves

both constitutional limitations on federal-court jurisdictional

and prudential limitations on its exercise." Warth v Seldin,

422 US. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343

(1975). The constitutional dimension of standing “imports

justiciability: whether the plaintiff has made out a ‘case

or controversy’ between himself and the defendant within

the meaning of Art. III." Jd@., 422 U.S. at 498, 95 S.Ct. at

2205. The Supreme Court has formulated a three-part test

to determine whether the plaintiff has standing for purposes

of Article IIL, requiring the plaintiff to allege (1) an actual

or threatened injury that is (2) traceable to the conduct

of the defendant and (3) is likely to be redressed by a

favorable judicial decision. Lujan v. Defenders of Wildlife,

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504 U.S. 555, 560-61, 112 S.Ct. 2130, 2136, 119 L.Ed.2d

351 (1992); see GA Moore’s Federal Practice § 57.11[(2.-1],

at 57-89. Because the requirement of injury is part

of the Article III constitutional test for standing, Congress

may not authorize suit in the absence of an injury. Lujan,

supra. However, as the Lujan Court noted, Congress is

empowered to create substantive rights and to authorize

suit for their enforcement and consequently may define

an injury in a way that provides the basis for standing even

in the absence of other injury to the plaintiff. See, e.g.,

Havens Realty Corp. v. Coleman, 455 U.S. 363, 373, 102

S.Ct. 1114, 1121, 71 L.Ed. 2d 214 (1982).

In addition to the minimum constitutional requirements,

the Court has recognized other limits on the class of persons

who may invoke the federal judicial power. Warth, 422

US., at 499, 95 S.Ct., at 2205. These prudential

considerations are self-imposed judicial limits on the exercise

of federal jurisdiction and include the following require-

ments: (1) that a litigant generally assert his own and not

another’s interests; (2) that the federal courts not adjudicate

mere generalized grievances that are more appropriately

addressed by the representative branches of government;

and (3) that the plaintiffs alleged injury arguably fall within

the "zone of interests’ protected by the law invoked. Allen

v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.

2d 556 (1984); Warth, 422 US. at 499-500, 95 S.Ct. at 2205.

Although Congress may not remove the Article III

requirement that the plaintiff allege a distinct and palpable

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ee ee

injury to himself, it can grant standing to persons who meet

Article III requirements even though they would otherwise

be barred by prudential standing considerations. Jd. at 501,

95 S.Ct. at 2206.

Section 7(c) of the ADEA provides that "/a]ny person

aggrieved may bring a civil action in any court of competent

jurisdiction for such legal or equitable relief as will

effectuate the purposes of this Act..." 29 U.S.C. § 626(c)(1)

(emphasis supplied). Through this language, Congress

indicated its intent to afford standing to the full limits

permitted under Article II]. In Trafficante v. Metropolitan

Life Ins. Co., 409 US. 205, 209, 93 S.Ct.364, 367, 34 L.Ed.2d

415 (1972), the Supreme Court construed the term

“aggrieved person" in § 810 of the Fair Housing Act, which

the Act defined to include “[a]ny person who claims to

have been injured by a discriminatory housing practice,"

42 U.S.C. § 3610(a), to demonstrate a congressional intent

to confer standing to the fullest extent permitted by Article

III of the United States Constitution. In reaching this

conclusion, the Court relied on the holding in Hackett v.

McGuire Bros., 445 F.2d 442 (3rd Cir. 1971), that the

language of Title VII authorizing the filing of suits "by a

person claiming to be aggrieved" shows "’a congressional

intention to define standing as broadly as is permitted by

Article III of the Constitution.” Trafficante, 409 US., at

209, 93 S.Ct. at 367 (quoting Hackett, 445 F.2d at 446).

This court, in turn, applied Trafficante to find that “the

strong similarities between the language, design, and

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i a ial hh i

purposes of Title VII and the Fair Housing Act require

that the phrase ’a person claiming to be aggrieved’ in §

706 of Title VII must be construed in the same manner

that Trafficante construed the term ’aggrieved person’ in

§ 810 of the Fair Housing Act." EEOC v. Mississippi

College, 626 F.2d 477, 482 (Sth Cir. 1980) (citing EEOC

v. Bailey Co., 563 F.2d 439, 450-54 (6th Cir. 1977), cert.

denied, 435 U.S. 915, 98S.Ct. 1468, 55 L.Ed.2d 506 (1978);

Waters v. Heublein, 547 F.2d 466, 469-70 (9th Cir. 1976),

cert. denied, 433 U.S. 915, 97 S.Ct. 2988, 53 L.Ed.2d 1100

(1977)), cert. denied, 453 U.S. 912, 101 S.Ct. 3143, 69

L.Ed.2d 994 (1981). See also Fair Employment Council v

BMC Marketing Corp., 28 F.3d 1268, 1278 (D.C.Cir. 1994)

(citing Gray v. Greyhound Lines, 545 F.2d 169, 176 (D.C.Cir.

1976)).

Following this line of reasoning, the pertinent language

of the ADEA, “[a]ny person aggrieved may bring a civil

action," 29 U.S.C. § 626(c)(1), similarly indicates that

Congress intended to provide standing under the Act to

the fullest extent available under Article III. See Horne

v. Firemen’s Retirement System of St. Louis, 69 F.3d 233,

235 (8th Cir.1995) (plaintiff satisfying Article III re-

quirements has standing under the ADEA); Barchers v.

Union Pacific Railroad Co., 765 F.Supp. 595, 596-97

(W.D.Mo. 1991) (same). Accordingly, any “person aggrieved"

is required by the ADEA to meet only the minimum

constitutional standing requirements of Article III. Mr.

Holt clearly satisfies these minimal standing requirements

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for he alleged (1) that he was injured (2) as a result of

the defendant’s conduct and (3) a favorable decision

granting him compensatory and/or injunctive relief is likely

to redress his injuries.*

3 Even if prudential standing considerations were factors,

Mr. Holt has adequately established that he could clear these hurdles

as well. He has sued to redress injuries he personally suffered as a

result of the adverse employment actions his employer engaged in

through its retaliation against him for Mrs. Holt’s protected conduct,

and thus cannot be said to be asserting the rights of others. Similarly,

he does not present a “generalized grievance," as he complains of

specific harm the employer directed at him. Although the majority

does not undertake a standing analysis, its determination that Mr.

Holt does not have standing because he did not prove involvement

in his wife’s protected activity appears best explained as a conclusion

that Mr. Holt is not within the "zone of interests" protected by the

ADEA. However, as the Supreme Court pointed out in Clarke v.

Securities Industry Ass’n., 479 U.S. 388, 400 n. 16, 107 S.Ct. 750, 757

n. 16, 93 L.Ed.2d 757 (1987), the “zone of interest" test has primarily

been applied in claims brought under the Administrative Procedure

Act and “is most usefully understood as a gloss on the meaning of

§ 702 [of that Act]... While inquiries into reviewability or prudential

Standing in other contests may bear some resemblance to a ’zone of

interest’ inquiry under the APA, it is not a test of universal application."

Nonetheless, assuming its applicability here, Mr. Holt, as an employee

within the meaning of the ADEA who has alleged injury to himself

from his employer’s retaliatory conduct in violation of the Act, clearly

satisfies any roquirement that he be arguably within the zone of interest

of the ADEA. The “zone of interest" test only “denies a right of review

if the plaintiff's interests are so marginally related to or inconsistent

with the purposes implicit in the statute that it cannot reasonably

be assumed that Congress intended to permit the suit." Jd. at 399,

107 S.Ct. at 757; see also City of Milwaukee v. Block, 823 F.2d 1158,

1165-66 (7th Cir.1987) (discussing Clarke’s clariScation of test).

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Pa aI ent ai rg sen

In finding that Mr. Holt lacks standing to sue, the

majority has confused the concepts of standing and cause

of action. As the Supreme Court explained in Davis v.

Passman, 442 U.S. 228, 239 n. 18, 99 S.Ct. 2264, 2274

n.18,60 L.Ed.2d 846 (1979):

[S]tanding is a question of whether a plaintiff is

sufficiently adversary to a defendant to create an Art.

III case or controversy, or at least to overcome

prudential limitations on federal court jurisdiction, see

Warth v. Seldin, 442 U.S. 490, 498, 95 S.Ct. 2197, 2204,

45 L.Ed.2d 343 (1975); cause of action is a question

of whether a particular plaintiff is a member of the class

of litigants that may, as a matter of law, appropriately

invoke the power of the court...

In Davis, the Court determined that the appellate court

had confused the question of whether petitioner had

standing with the question of whether she had asserted

a proper cause of action. The Court observed that while

"[t]he nature of petitioner’s injury... is relevant to the

determination of whether she has ’alleged such a personal

stake in the outcome of the controversy as to assure that

concrete adverseness which sharpens the presentation of

issues upon which the court so largely depends for

illumination of difficult constitutional questions,’... [w]hether

petitioner has asserted a cause of action... depends not

on the quality or extent of her injury, but on whether the

class of litigants of which petitioner is a member may use

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the courts to enforce the right at issue." Jd. 442 US. at

241 n. 18, 99 S.Ct. at 2274 n. 18 (quoting Baker v. Carr,

369 US. at 204, 82 S.Ct. at 703).

The majority’s conclusion that a victim of adverse

employment actions conducted in retaliation for the

protected activity of the victim’s family member lacks

standing to sue unless the victim alleges and proves actual

involvement in the protected conduct is more appropriately

viewed as a determination that a victim who suffers

retaliatory actions for no reason other than his or her

relationship to the person engaging in protected conduct

is not a member of a class the ADEA is intended to protect

and thus has no cause of action. This conclusion relics

on a rigid, literal interpretation of the ADEA’s anti-

retaliation provision that undermines the broad purposes

of the statute.

Congress enacted the ADEA in 1967 as part of an

ongoing effort to eradicate discrimination in the workplace.

McKennon v. Nashville Banner Publishing Co.,___ US.

_,__, 115 S.Ct. 879, 884, 130 L-Ed.2d 852 (1995) (citing

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e

et seq.; the Americans with Disability Act of 1990 (ADA),

42 U.S.C. § 12101 et seg., the National Labor Relations

Act, 29 U.S.C. § 158(a) and the Equal Pay Act of 1963,

29 US.C. § 206(d)); see Hodgson v. First Federal Savings

and Loan Ass’n of Broward County, FL, 455 F.2d 818, 820

(Sth Cir. 1972). The ADEA, like most of these anti-

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discrimination statutes, contemplates both agency and

private action to enforce its provisions. See 29 U.S.C. §

626; see, e.g., 42 U.S.C. § 2000e-5 (Title VII); 42 U.S.C.

§ 12117 (ADA). As a means of promoting its broad anti-

discrimination goals, the Act prohibits an employer from

engaging in adverse employment action in retaliation for

its employee’s protected conduct. See 29 U.S.C. 623(d);

See, €.g., 42 U.S.C. § 2000e-3 (Title VID; 42 U.S.C. § 12206

(ADA). Under the ADEA, federal courts have discretion

to "grant such legal or equitable relief as may be

appropriate to effectuate the purposes of [the Act]." 29

US.C. § 626(b); McKennon, __s- US. at ___, 115 S.Ct.

884.

The anti-retaliation provisions of the ADEA and similar

statutes clearly are intended to encourage the enforcement

of rights protected under the statutes. As this court has

observed in recognizing a claim for retaliation under 42

US.C. § 1981, "[w]ere we to protect retaliatory conduct,

we would in effect be discouraging the filing of meritorious

civil rights suits and sanctioning further discrimination

against those persons willing to risk their employer’s

vengeance by filing suits." Goff v. Continental Oil Co., 678

F.2d 593, 598 (Sth Cir. 1983). See also EEOC v. Cosmair,

Inc., L’Oreal Hair Care Div., 821 F.2d 1085, 1088 (Sth Cir.

1987) (purpose of anti-retaliation provision of ADEA is

"to protect persons who ’resort[] to the legal procedures

that Congress has established in order to right

congressionally recognized wrongs,’ East v. Romine, Inc.,

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———E————————

518 F.2d 332, 340 (Sth Cir. 1975)."); Malarkey v. Texaco,

Inc., 983 F.2d 1204, 1214 (2nd Cir. 1993) (“The purpose

of the ADEA’s anti-retaliation provision is to protect

persons who initiate a suit to vindicate a right that Congress

has recognized as a wrong."); cf. Mitchell v. Robert DeMario

Jewelry, Inc., 361 U.S.288, 292, 80 S.Ct.332, 335, 4 L.Ed.2d

323 (1960) (observing in relation to anti-retaliation provision

of Fair Labor Standards Act that “[b]y the proscription

of retaliatory acts set forth in § 15(a)(3), and its

enforcement in equity by the Secretary pursuant to § 17,

Congress sought to foster a climate in which compliance

with the substantive provisions of the Act would be en-

hanced."); Jones v. Flagship International, 793 F.2d 714,

725 (Sth Cir. 1986) (recognizing that the provisions of Title

VII “must be construed broadly in order to give effect to

Congress’ intent in eliminating invidious employment

practices," and that “since the enforcement of Title VII

rights necessarily depends on the ability of individuals to

present their grievances without the threat of retaliatory

conduct by their employers, rigid enforcement of [Title

VII's anti-retaliation provision] is required."), cert. denied,

479 U.S. 1065, 107 S.Ct. 952, 93 L.Ed.2d 1001 (1987).

The jury in this case determined that the employer, JTM

Industries, Inc. (JTM), had replaced Frank Holt as plant

manager in retaliation for his wife’s EEOC filing under

the ADEA. The jury thus found a causal connection

between Mrs. Holt’s EEOC filing and the employer’s

replacement of Frank Holt. The majority’s determination

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that Mr. Holt nevertheless may not pursue a claim of

retaliation because he did not demonstrate that he

personally was engaged in protected conduct relies, as the

majority admits, on a strict reading of the anti-retaliation

provision of the ADEA. That provision, in pertinent part,

provides:

It shall be unlawful for an employer to discriminate

against any of his employees or applicants for

employment... because such individual... has opposed

any practice made unlawful by this section, or because

such individual... has made a charge, testified, assisted,

or participated in any manner in an investigation,

proceeding, or litigation under this Act.

29 US.C. § 623(d).

The majority’s reading of the provision flouts the clear

purpose of the ADEA’s prohibition of retaliatory conduct

to ensure that claimants are secure to pursue their claims

of discrimination. Under the majority’s approach, in the

instances when both an ADEA complainant and his or

her relative work for the same employee, the anti-retaliation

provision would not prevent the employer from taking

adverse employment action against the family member,

even though such action would be motivated by the

relative’s obvious connection to the complainant, thereby

defeating a central purpose of the statute. The literal

meaning of the anti-retaliation provision should be not

A-19

——E—————— ae

be used to undermine the clear purpose and intent of the

ADEA. As the Supreme Court has observed:

It is a well-established canon of statutory construction

that a court should go beyond the literal language of

a statute if reliance on that language would defeat the

plain purpose of the statute:

The general words used in the clause ... taken by

themselves, and literally construed, without regard

to the object in view, would seem to sanction the

claim of the plaintiff. But this mode of expounding

a statute has never been adopted by an enlightened

tribunal because it is evident that in many cases

it would defeat the object which the Legislature

intended to accomplish. And it is well settled that,

in interpreting a statute, the court will not look

merely to a particular clause in which general words

may be used, but will take in connection with it the

whole statute ... and the objects and policy of the law.

Bob Jones University v. United States, 461 U.S. 574, 585,

103 S.Ct. 2017, 2025, 76 L.Ed.2d 157 (1983) (quoting Brown

v. Duchesne, 19 How. 183, 194, 15 L.Ed. 595 (1857))

(emphasis supplied in Bob Jones). See also Almendarez v.

Barrett-Fisher Co., 762 F.2d 1275, 1278 (Sth Cir. 1985)

(“literal statutory construction is inappropriate if it would

produce a result in conflict with the legislative purpose

A-20

OO

clearly manifested in an entire statute or statutory scheme

or with clear legislative history.").

The federal anti-discrimination laws are to be liberally

construed to effectuate their remedial purposes. See, e.g,

MacDonald v. Eastern Wyoming Mental Health Center, 941

F.2d 1115, 1118 (10th Cir. 1991) (“the ADEA is remedial

and humanitarian legislation and should be liberally

interpreted to effectuate the congressional purpose of

ending age discrimination.") (quoting Dartt v. Shell Oil

Co.,539 F.2d 1256, 1260 (10th Cir. 1976), aff'd 434 US.

99, 98 S.Ct. 600, 54 L.Ed.2d 270 (1977)); Kale v. Combined

Ins. Co., 861 F.2d 746, 751 (ist Cir. 1988) (same); Rabzak

v. County of Berks, 815 F.2d 17, 20 (3rd Cir. 1987) (same);

Hamilton v. Rodgers, 791 F.2d 439, 442 (Sth Cir.1986)

("Title VII should be accorded a liberal interpretation in

order to effectuate the purpose of Congress to eliminate

the inconvenience, unfairness, and humiliation of ethnic

discrimination.") (quoting Rogers v. EEOC, 454 F.2d 234,

238 (Sth Cir. 1971), cert. denied, 406 U.S. 957, 92 S.Ct. 2058,

32 L.Ed.2d 343 (1972)). This canon of construction holds

true in the context of interpreting anti-retaliation provisions.

As the Sixth Circuit observed in EEOC v. Ohio Edison

Co., 7 F.3d 541, 545 (6th Cir. 1993):

[Cjourts have routinely adopted interpretations of

retaliation provisions in employment statutes that might

\\ be viewed as outside the literal terms of the statute in

order to effectuate Congress’s clear purpose in

A-21

—

RE NC ne gtr eg gt Ce te ee ee

proscribing. Contrary to defendant’s assertions, courts

have frequently applied the retaliation provisions of

employment statutes to matters not expressly covered

by the literal terms of these statutes where the policy

behind the statute supports a non-exclusive reading of

the. statutory language.

See also McDonnell v. Cisneros, 84 F.3d 256, 262 (7th Cir.

1996) (eschewing a strict interpretation of Title VII’s anti-

retaliation provision to find that an employer violated that

statute by retaliating against the plaintiff-supervisor for

failing to prevent subordinates from filing complaints under

_ the statute). In McDonnell, Judge Posner, writing for the

court, acknowledged that the plaintiffs claim did not come

with the literal terms of Title VII's anti-retaliatory provision,

but explained:

The reasons for this wording... so far as we are able

to discover (there is no pertinent legislative history),

is that in the ordinary case an employer would have

no reason to retaliate against someone who did not file

a compliant, testify, etc. Generally one retaliates against

someone because of something he did rather than

because of something someone else did. Not always.

There is such a thing as collective punishment. But that

possibility is unlikely to have been in the forefront of

congressional thinking when the retaliation provision

was drafted.

A-22

Id. (emphasis original). In concluding that the plaintiff

had a valid retaliation claim, the court observed that it

does no great violence to the statutory language to correct

Congress’s oversight by construing the provision to recognize

the plaintiffs claims.‘ Jd.

The same holds true here. Situations in which spouses

or other related parties work for the same employer do

not occur with great frequency. The majority recognizes

"a possible risk that an employer will discriminate against

a complaining employee’s relative or friend in retaliation

for the complaining employee’s actions." Op. at 1227.

Nonetheless, my colleagues deem the risk trivial compared

to the potential harm of having courts “trying to define

the types of relationships that should render automatic

standing under § 623(d)." Jd. at 1227. The majority’s

concerns about involving the courts in assessing what

relationships give rise to "standing" are both overblown

and misplaced --the ultimate focus in a retaliation claim

such as this is not upon whether a particular relationship

exists between the victim of retaliation and the individual

who has engaged in protected conduct; rather, the crucial

issue is whether there is a causal connection between the

employer’s adverse employment action against the victim

* ‘The opinion additionally observed that the plaintiff's "passive

opposition" to the employer’s desire that he prevent his subordinates

from filing discrimination complaints could be construed as “opposition”

to an unlawful practice and "participation" in protected conduct plainly

covered by the provision. McDonnell, 84 F.3d at 262.

A-23

and the protected conduct engaged in by the relative or

friend. There is little reason to worry that a recognition

of claims such as Mr. Holt’s will overburden federal judges

when in reality all that would be required is a simple

modification of the prima facie case applied to establish

retaliation: Instead of requiring the plaintiff to prove "(1)

that he engaged in activity protected by the ADEA; (2)

that an adverse employment action occurred; and (3) that

a causal link between the participation in the protected

activity and the adverse employment decision exists," Ray

v. Iuka Special Mun. Separate School Dist., 51 F.3d 1246,

1249 (Sth Cir. 1995) (citing Shirley v. Chrysler First, Inc.,

970 F.2d 39, 42 (Sth Cir. 1992), the plaintiff would have

to show (1) that an employee engaged in activity protected

by the ADEA; (2) that an adverse employment action

occurred to the plaintiff; and (3) that a causal link between

the participation in the protected activity and the adverse

employment decision exists. In this case, the jury found

that JTM replaced Frank Holt because his wife had filed

an EEOC claim.* To condone such retaliation because

it fails to fall squarely within the literal terms of the anti-

> The trial court’s instructions on the retaliation claim were

as follows:

As to Frank Holt’s retaliation claim, he must prove the following

elements by a preponderance of the evidence:

1. That his wife filed a charge of discrimination against

Defendant,

2. That he was removed from the position of Manager; and

3. That there was a causal connection between his wife's filing

a charge of discrimination and his removal as Manager.

A-24

retaliation provision, despite the ADEA’s design to prohibit

retaliation in order to promote the free exercise of rights

protected under that Act, elevates form over substance

and permits employers to evade the reach of the statute

by making relatives or friends of complaining parties the

“whipping boys" for the protected conduct of others.

Finally, the majority decision flies in the face of agency

and federal court decisions that hold that the parallel anti-

retaliation provision of Title VII prohibits the type of

conduct in which JTM engaged here. Although the majority

acknowledges that “the anti-retaliation provisions of the

ADEA and Title VII are similar and ’cases interpreting

the latter provision are frequently relied upon in interpreting

the former.™ Op. at 1226, n. 1 (quoting Shirley v. Chrysler

First, Inc., 970 F.2d 39, 42 n. 5 (Sth Cir. 1992)),° it ignores

the overwhelming weight of decisions construing the anti-

retaliation provision of Title VII to provide a cause of action

where an employer retaliates against the plaintiff because

of the protected conduct of a friend or relative.

© Record, Vol. XI, at 838.

The relevant provision of Title VII provides, in pertinent part:

It shall be an unlawful employment practice for an employer to

discriminate against any of his employees or applicants for

employment . . . because he has opposed any practice made an

unlawful employment practice by this title, or because he has made

a charge, testified, assisted, or participated in any manner in an

investigation, proceeding, or hearing under this title.

42 U.S.C. § 2000e-3(a).

As early as 1975, the EEOC recognized a violation of

Title VII when an employer discharged a husband in

retaliation for his wife’s EEOC claim. EEOC Dec. No.

76-33 (Sept. 11, 1975), 1973-1983 CCH EEOC Dec. 4 6626.

In a subsequent case, the agency specifically held that it

had jurisdiction to investigate a claim that the charging

party had been discharged in retaliation for his wife’s filing

a charge of discrimination against the employer. EEOC

Dec. 77-34 (Aug. 16, 1977), 1973-1983 CCH EEOC Dec.

76581. The agency observed that while the language of

Title VII's anti-retaliation provision does not directly

determine the question of jurisdiction, "[t]he language does

manifest a congressional intent to extend coverage over

a broad base of activities," and acknowledged that “where

it can be shown that an employer discriminated against

an individual because he or she was related to a person

who filed a charge, it is clear that the employer’s intent

is to retaliate against the person who filed the charge."

Id. Consequently, the agency concluded that “discrimination

against an employee because he or she has a familial

relationship with a person who has filed a charge of

discrimination is violative of Section 704(a) of Title VII."

Id.

Additionally, the agency has formally articulated its

position on retaliation. Section 614 of its Interpretative

Manual, in pertinent part, provides:

$ 614.1 Introduction

(A) General--Section 704(a) of Title VII of the

Civil Rights Act of 1964, as amended, is intended to

provide “exceptionally broad protection" for protestors

of discriminatory employment practices. See Pettway

v. American Cast Iron Pipe Co., 411 F.2d 998, 1004-1005,

2 EPD § 10,011 (Sth Cir. 1969). Section 4(d) of the

ADEA is virtually identical to § 704{a) and provides

the same protection.... (footnote omitted).

> = &¢ & &._.f

§ 614.3 Essential Elements of a Retaliation Violation

*“* * * * *

b) Opposition or Participation

*-_ + * * * *

... [A]s to both opposition and participation, the

retaliation provisions of Title VII and the ADEA also

prohibit retaliation against someone so closely related

to the person exercising his/her statutory rights that it

would discourage or prevent the person from exercising

those rights. Clark v. RJ. Reynolds Tobacco Co., 28 EPD

§ 32,500, (E.D.La. 1982), 1982 WL 2277 (E.D.La.); see

also Commission Decision No. 76-33, CCH EEOC

Decisions (1983) § 6626.

2 EEOC Compliance Manual § 614, at 614.0001 &

614.0008-614.0009 (Apr.1988).

Further, federal courts addressing this issue have

uniformly concluded that an employer violates Title VII's

anti-retaliation provision by taking adverse employment

action against an employee because of the protected activity

of a family member or friend. In McKenzie v. Atlantic

Richfield Co., 906 F.Supp. 572, 575 (D.Colo. 1995), the

court concluded that the plaintiff-husband had a cause of

action for his employer’s adverse action against him in

retaliation for his wife’s protected activity, observing that

“[a]s other courts have held... the antireprisal provision

of Title VII precludes an employer from discriminating

against an individual because that person’s spouse has

engaged in protected activity." Jd. (citing Wu v. Thomas,

863 F.2d 1543 (11th Cir. 1989); De Medina v. Reinhardt,

444 F.Supp. 573 (D.D.C. 1978)). See also Turman v.

Robertshaw Control Co., 869 F.Supp. 934, 941 (N.D.Ga.

1994) (recognizing that "[i]n a case of an alleged retaliation

for participation in a protected activity by a close relative

who is a co-employee, the first element of the prima facie

case is modified to require the plaintiff to show that the

relative was engaged in statutorily protected expression.");

Clark v. RJ. Reynolds Tobacco Co., Civ. No. 79-7, 1982

WL 2277, at *7 (E.D.La. Feb. 2, 1982) (finding prima facie

A-28

case where plaintiff received reprimand allegedly in

retaliation for his son’s EEOC filing); De Medina v.

Reinhardt, 444 F.Supp. 573, 580 (D.D.C. 1978)

(acknowledging that Title VII does not expressly consider

the possibility of third-party reprisals, but concluding that

“[s]ince third-party reprisals would, no less than the

tolerance of direct reprisals, deter persons from exercising

their protected rights under Title VII, the Court must

conclude, as has the only other court to consider the issue,

Kornbluh v. Stearns & Foster Co., 73 F.R.D. 307, 312 (N.D.

Ohio 1976), that section 2000e-3 proscribes the alleged

retaliation of which plaintiff complains."). Cf McDonnell

v. Cisneros, 84 F.3d 255, 262 (7th Cir. 1996) (construing

Title VII to permit suit by one complaining of retaliation

either for being suspected of engaging in or for failing to

prevent another from engaging in protected conduct);

EEOC v. Ohio Edison Co., 7 F.3d 541, 545-46 (6th Cir.

1993) (broadly construing statutory language that “he has

opposed any practice" to mean the plaintiff or his agent);

Wu v. Thomas, 863 F.2d 1543, 1547 (11th Cir. 1989)

(permitting husband’s claim of retaliation against him for

wife’s EEOC filing to “piggy back" on wife’s charge of

retaliation).

The majority ignores the reality that the threat of

retaliatory action against a family member or friend is a

substantial deterrent to the free exercise of rights protected

under the ADEA. The majority opinion thus permits the

very conduct that the anti-retaliation provision is designed

A-29

to prevent. Because I do not believe that this narrow

reading of the provision is justified, I dissent.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-50145

FRANK HOLT; §

LINDA HOLT, §

Plaintiffs-Appellees §

§

V. §

§

JTM INDUSTRIES, INC., §

Defendant-Appellant $§

and §

USPCIL, INC, S

Defendants. §

Appeal from the United States District Court for the

Western District of Texas, Waco

ON PETITION FOR REHEARING AND

SUGGESTION FOR REHEARING EN BANC

(Opinion 8/7/96, 5 Cir., F.3d)

A-31

ee

. (December 13, 1996)

Before GARWOOD, EMILIO M. GARZA,

and DENNIS, Circuit Judges.

PER CURIAM:

(“ ) The Petition for Rehearing is DENIED and no

member of this panel nor judge in regular active service

on the court having requested that the court be polled on

Rehearing En Banc (FRAP and Local Rule 35) the

Suggestion for Rehearing En Banc is also DENIED.

( ) The Petition for Rehearing is DENIED and the

court having been polled at the request of one of the

members of the court and a majority of the judges who

are in regular active service not having voted in favor,

(FRAP and Local Rule 35) the Suggestion for Rehearing

En Banc is also DENIED.

( ) A member of the court in active service having

requested a poll on the reconsideration of this cause en

banc, and a majority of the judges in active service not

having voted in favor, Rehearing En Banc is DENIED.

CLERK’S NOTE:

SEE FRAP AND LOCAL RULES

41 FOR STAY OF THE MANDATE

A-32

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-50145

D. C. Docket No. W-93-CV-443

Cn 60D GOD 80RD 808 On Or tn On 8D WF

Appeal from the United States District Court for the

Western District of Texas, Waco

Before GARWOOD, EMILIO M. GARZA,

and DENNIS, Circuit Judges.

A-33

JUDGMENT

This cause came on to be heard on the record on appeal

and was argued by counsel.

ON CONSIDERATION WHEREOBF, it is now here

ordered and adjudged by this court that the judgment of

the district court in this cause is reversed and the cause

is dismissed with prejudice.

ITISFURTHER ORDERED that plaintiffs-appellees

pay to defendant-appellant the costs on appeal.

DENNIS, Circuit Judge, dissents:

ISSUED AS MANDATE: December 24, 1996.

Clerk, U.S. Court of Appeals,

Fifth Circuit

By: _/s/

Deputy

New Orleans, Louisiana

A-34

aatne

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

WACO DIVISION

FRANK HOLT and §

LINDA HOLT, $

5

V. $ CIVIL ACTION NO.

§ W-93-CA-443

§

JTM INDUSTRIES, $

INC. and $

USPCI, INC, §

Defendants. §

JUDGMENT

This case came on for trial before this Court and a jury

on November 28, 1994. All parties appeared in person,

and by counsel, and presented evidence to the Court and

the jury. Special interrogatories were submitted to the

jury, and the jury answered as follows:

SPECIAL INTERROGATORY NUMBER ONE

Do you find from a preponderance of the evidence

that age was a determining factor in any adverse

A-35

employment action taken by Defendant against Frank

Holt?

Answer "Yes" or "No."

Answer: No

C RROG O

Do you find from a preponderance of the evidence

that age was a determining factor in any adverse

employment action taken by Defendant against Linda

Holt? :

Answer "Yes" or "No."

Answer: No

SPECIAL INTERROGATORY NUMBER THREE

Do you find from a preponderance of the evidence

that Plaintiff Frank Holt was removed as manager

of the Limestone plant in retaliation for Linda Holt’s

filing an administrative complaint?

EIN dh Ss Ee tic aa, till

Z

Answer "Yes" or "No." 3

Answer: Yes

S I RROGATORY BER FOUR

What sum of money, if now paid in cash, do you find

from a preponderance of the evidence would fairly

and reasonably compensate the Plaintiff for any lost

income or other damages sustained as a result of

the Defendant’s actions?

Answer in dollars and cents, if any, as to each Plaintiff

for whom you answered "Yes" in Special

Interrogatories Number One, Two or Three:

Frank Holt: $ 100,000.00

Linda Holt: $ -0-

SPECIAL INTERROGATORY NUMBER FIVE

Do you find from a preponderance of the evidence

that the adverse employment actions taken by

Defendant against Plaintiffs were “willful" as defined

in the charge?

Answer "Yes" or "No" as to each Plaintiff for whom

you answered "Yes" Special Interrogatories Number

One, Two or Three.

Frank Holt: Yes

Linda Holt: No

A-37

The Court finds that Plaintiff Frank Holt is a prevailing

party while Defendant Linda Holt is not. The Court further

finds that the fees and expenses set forth in Plaintiff's

Motion for Award of Attorney’s Fees and Costs are

reasonable and necessary. However, all of the hours

expended and expenses incurred were not related to

representation of Frank Holt; a portion had to have been

related to representation of Linda Holt. The accounting

system employed by Plaintiffs’ attorneys does not make

it possible to distinguish the fees and expenses related only

to Frank Holt. Based on the evidence presented at trial,

the Court believes it reasonable to approximate the fees

and expenses as one-half related to Frank Holt and one-half

to Linda Holt. Accordingly, the attorney’s fees to which

Plaintiff is entitled total $31,653.75.

And now, in accordance with the special verdict of the

jury and the opinion and findings of the Court,

IT IS HEREBY ORDERED, ADJUDGED AND

DECREED that plaintiff Frank Holt have judgment against

the Defendant JTM Industries, Inc., for back pay in the

sum of $100,000.00, liquidated damages in the sum of

$100,000.00, reinstatement to his position as plant manager

of the JTM Limestone facility attorney’s fees in the sum

of $31,653.75, plus all costs of Court.

—

Pi Pa ee

Le ee ee eer ete ee ee

ee ts ak! ih 1 tl a is he ne ead page SD thal eis

eee eee ae

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that Plaintiff Linda Holt take nothing by way

of her cause of action against JTM Industries, Inc.

IT Is FURTHER ORDERED, ADJUDGED AND

DECREED that both Plaintiffs, Frank Holt and Linda

Holt, take nothing by way of their causes of action against

USPC, Inc., and, in accordance with Rule 50 of the Federal

Rules of Civil Procedure, judgment is rendered in favor

of USPCI, Inc., as a matter of law.

All relief not expressly granted herein is DENIED.

SIGNED this _1ist_ day of February, 1995.

WALTER S. SMITH, JR.

UNITED STATES DISTRICT JUDGE

A-39