Opposition Brief — Mattern v. Eastman Kodak Co.

r FILeézE

No. 97-126

Supreme Court, U

S

In The

Supreme Court of the United States

>

October Term, 1996

JEAN G. MATTERN,

Petitioner,

Vs.

EASTMAN KODAK COMPANY, et ail.,

Respondents.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

STEPHEN F. FINK

Counsel of Record

BRYAN P. NEAL

THOMPSON & KNIGHT, P.C.

Attorneys for Respondents

1700 Pacific Avenue

Suite 3300

Dallas, Texas 75201

(214) 969-1700

72041 juz

(800) 3 APPEAL « (800) 5 APPEAL « (800) BRIEF 21 ‘Appeliate

Services, inc.

- —seowe

i

QUESTION PRESENTED

Section 704(a) of Title VII of the Civil Rights Act of 1964

prohibits employers from “discriminat[ing] against” employees

who challenge perceived violations of other prohibitions in Title

VII. Does § 704(a) permit an employee to obtain relief for

alleged employer conduct that results in no objective detrimental

effect on the employment relationship?

ii

PARTIES TO THE PROCEEDING

The petitioner is Jean G. Mattern, plaintiff-appellee below.

The named respondents, defendants-appellants below, are

“Eastman Kodak Company and Eastman Chemical Company

doing business as Texas Eastman Company.” As stipulated below,

the correct defendant was Eastman Chemical Company, of which

Texas Eastman Company is a division. VII R. 7-8. Eastman

Kodak Company has no interest in this case.

Eastman Chemical Company has no parent company. The

following are nonwholly owned subsidiaries of Eastman

Chemical Company: Genencor International Inc.; HDK

Industries; Kingsport Hotel Limited Liability Corporation;

Primester; Southern BioSystems, Inc.; Enterprise Genetics, Inc.;

and Bellpack.

il

TABLE OF CONTENTS

Page

rE SiG Sis doh cevebavbdcee severe i

DY ONIN 6 occ ccc ese eevesccncseepne il

sha a wee Mane Ole & iii

a i ehae ck kaw ee ewes iV

Loken es dwees deve ees ]

Reasons For Denying The Writ ................... 3

I. The Circumstances Of This Case Make Review

Vbgwdev det ebeidsswiscascees 3

II. There Is No Real And Substantial Conflict In The

Circuits That Warrants This Court’s Review. .. 8

A. The Views of the Other Circuit Courts. ... 12

B. The Fifth Circuit’s View ............... 20

C. Policy Concerns Support the Fifth Circuit's

Tk we We ee el 23

III. The Fifth Circuit’s Decision Does Not Conflict

With Any Decision Of This Court............ 24

a al 1 Sa A lv 28

iv

Contents

TABLE OF CITATIONS

Cases Cited:

Adams v. Bethlehem Steel Corp., 736 F.2d 992 (4th Cir.

WUD. Soin a ia ae eal a re ta ren ee

Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520 (2d

Cir.), cert. denied, 506 U.S. 965, 113 S. Ct. 440

(ESE 5 cad badness oie ba ee ee

Aman v. Cort Furniture Rental Corp., 85 F.3d 1074 (3d

| Peer er Terr ee peer rt eee

Bailey v. USX Corp., 850 F.2d 1506 (11th Cir. 1988) ..

Berger v. Iron Workers Reinforced Rodmen Local 201, 843

F.2d 1395 (D.C. Cir. 1988), cert. denied, 490 U.S. 1105,

IGP B, CR. PUSS CHS 5 6a 5c 5k Va eas s

Berry v. Stevinson Chevrolet, 74 F.3d 980 (10th Cir.

| PEPE T ee er ee ere eee

Boyle v. United Tech. Corp., 487 U.S. 498, 108 S. Ct. 2510

80 PP ee er ere error ret pero ter

Bradford v. Norfolk S. Corp., 54 F.3d 1412 (8th Cir. 1995)

Burns v. AAF-McQuay, Inc., 96 F.3d 728 (4th Cir. 1996),

cert. denied, 117 S. Ct. 1247 (1997) .............

Page

1]

15, 23

22

18, 25

20

18

14

, oe Se Ss eee ee ee a

Pe ae ees Se ee oS a

Contents

Page

Cesaro v. Lakeville Community Sch. Dist., 953 F.2d 252

(6th Cir.), cert. denied, 506 U.S. 867, 113 S. Ct. 195

CREE 5 is s6 b xaine bens duaundsancees ee teeeness 13

Chertkova v. Connecticut Gen. Life Ins. Co., 92 F.3d 81

Chie ie. TOO sai iis i vin Sinidds 68 ARS es 00g once e 22

Cole v. Ruidoso Mun. Schs., 43 F.3d 1373

to ie S| errrererr er rr recy rrr rte 18

Collins v. State of Illinois, 830 F.2d 692 (7th Cir.

BOTS 4 Shs0-404 pian aka one Ri ews Oe eee eos 15

Commissioner v. Schleier, 515 U.S. 323, 115 S. Ct. 2159

‘¢) ets Serr eee: riers Teer ee Tee te 11

Crady v. Liberty Nat’l Bank & Trust Co. of Ind., 993 F.2d

932. CP ie BOE ihe oko nae mA RRA bo 9 0e'su0a« 14

Davis v. City of Sioux City, 115 F.3d 1365

(20 20) ) ee ere: eee. ae 28

Deavenport v. MCI Tel. Corp., 1997 WL 467160, *8 (D.

Col. Aug. 13, 1997) .......cceccccecccccccecces 22, 23

DeNovellis v. Shalala, __ F.3d __, 1997 WL 527912

(1st Cir. Sept. 2, 1997) .... cece eescccccvceces 4

Dollis v. Rubin, 77 F.3d 777 (Sth Cir. 1995) ......... 12, 22

Easley v. West, 66 Fair Empl. Prac. Cas. (BNA) 1634 (E.D.

i TN 6ST bi on cd eck cea th ckeeneseeiekeness 6

vi

Contents

Page

EEOC v. Cosmair, Inc., 821 F.2d 1085 (Sth Cir.

IOSTE icsvcceehecctccdsve sean de vere caieees - 25

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

FOE) ob ccandcstasevscevectteere raed 14, 28

Gartman v. Gencorp Inc., 120 F.3d 127 (8th Cii.

ROG) cncccenessctadserccancileeweereteneren 22

Gary v. Long, 59 F.3d 1391 (D.C. Cir.), cert. denied, 116

SB. CR. SOP CISSGD Ve ceccenvectdoncduureveeeesees 20

Geisler v. Folsom, 735 F.2d 991 (6th Cir. 1984) ...... 13

Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727

eee per ee re re ee 21

Harlston v. McDonnell Douglas Corp., 37 F.3d 379 (8th

GO, PO cds cusblnn é denen etereess eee 14

Harris v. Forklift Sys., Inc., 510 U.S. 17, 114 S. Ct. 367

CIR scéncbnyeeheen weasel eereeeee 4, 5, 6, 9, 22, 24

Hashimoto v. Dalton, 118 F.3d 671 (9th Cir. 1997) ... 19, 25

Henry v. Guest Servs., Inc., 902 F. Supp. 245 (D.D.C.

1995) aff’d, 98 F.3d 646, 1996 WL 560362 (D.C. Cir.

IDOE) sécasivenacssiuadesnne cecal eee 6, 20

Hopkins v. Baltimore Gas and Elec. Co., 77 F.3d 745 (4th

Cir.), cert. denied, 117 S. Ct. 70 (1996) .......... 12

Son

vil

Contents

| Page

Hystro Prods., Inc. v. MNP Corp., 18 F.3d 1384 (7th Cir.

IGDE) co ccccccccccccccscvcvecssecewerecseees 7

International Union, United Aerospace and Agricultural

Implement Workers of Am. v. Johnson Controls, Inc.,

499 U.S. 187, 111 S. Ct. 1196 (1991) .......---- 22

Jones v. Reagan, 696 F.2d 551 (7th Cir. nee 11

Jordan v. Wilson, 851 F.2d 1290 (11th Cir. 1988) ..... 18

Kilgore v. Thompson & Brock Mgmt., Inc., 93 F.3d 752

(Lith Cir, 1996) 2... . ccc cece cece cece eee eeeeees 22

Lawrence v. National Westminster Bank N.J., 98 F.3d 61

(3d Cir. 1996) 2... . cece cece cece cece eeeeeeees 1]

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

Ng Ch cwk dale ha Ger ccc nvuecatebecscecnrnes 23

Ledergerber v. Stangler, _ F.3d ___, 1997 WL 545970 (8th

Cir. Sept. 8, 1997) ......20seeeeeeees beeen eens 14

Martin v. Frank, 788 F. Supp. 821 (D. Del. 1992) .... 23

McCabe v. Atchison, T. & S.F. Ry., 235 U.S. 157, 35 S.

Ct. 69. (1914) .. cc ccccccccvevccccccccccccceees 11

McDonnell v. Cisneros, 84 F.3d 256 (7th Cir. 1996) ... 14

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.

CE BEEF CASTS) vince ccecccccsvcsssescceccesess 26

vill

Contents

Page

Meredith v. Beech Aircraft Corp., 18 F.3d 890 (10th Cir.

FEE. ees usa wee ncanas ada beiemeunicac eee 18

Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 106 S. Ct.

FPR CADRE Vs hha ees te Ck oven eae 4, 6, 9, 24, 25

Montandon v. Farmland Indus., Inc., 116 F.3d 355 (8th

2 5 Pe ee er ey re ee ee eee ee re as 13, 28

Moore v. Murphy, 47 F.3d 8 (1st Cir. 1995) .......... 7

Mosley v. Pena, 100 F.3d 1515 (10th Cir. 1996) ...... 18

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

SFO sh cbveswuadsd le oe aA as 16, 17

Nidds v. Schindler Elevator Corp., 113 F.3d 912 (9th Cir.

1997), petition for cert. filed, No. 97-364 (July 29,

SOT ec avcacecaid tab osaewentanseruesses 19

Niehus v. Liberio, 973 F.2d 526 (7th Cir. 1992) ...... 11

Page v. Bolger, 645 F.2d 227 (4th Cir.), cert. denied, 454

U8. GOS, BGR BCA: See) hice cicvcssdeeers 12

Passer v. American Chem. Soc’y, 935 F.2d 322 (D.C. Cir.

PRUE? 0 bs dncneee se dexnosaek neh eee keesee es 20

ix

Contents

Page

Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct.

Pere Ce hha vielen des tbclesddencbvetegeneeass 10

Professional Real Estate Investors, Inc. v. Columbia

Pictures Indus., Inc., 508 U.S. 49, 113 S. Ct. 1920

CE bak notin ae eheh oad Oda 6 ead vedo ese 21

Rabinovitz v. Pena, 89 F.3d 482 (7th Cir. 1996) ...... 22

Reeder-Baker v. Lincoln National Corp., 834 F.2d 1373

EEE 6 aid hin ss 2 Geese Cava eaokie-nenes 15

Reynolds v. CSX Transp., Inc., 115 F.3d 860 (11th Cir.

OR rr er er ere pee 18

Robinson v. City of Pittsburgh, __ F.3d _., 1997 WL

ee EON Ga SY OR, TFPI) ocd s cee ccdnsncess 16, 17

Robinson v. Shell Oil Co., 117 S. Ct. 843 (1997) ..... 24, 25

Ruedlinger v. Jarrett, 106 F.3d 212 (7th Cir. 1997) ... 25

Rutan v. Republican Party of Illinois, 497 U.S. 62, 110 S.

ee EE bh kok ehdwcas AWGN shee ces 25, 27, 28

Schnidrig v. Columbia Mach., Inc., 80 F.3d 1406 (9th

Cir.), cert. denied, 117 S. Ct. 295 (1996) ......... 22

Serrano-Cruz v. DFI Puerto Rico, Inc., 109 F.3d 23 (ist

re he er tre pn ee ne ee 22

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Page

Simpson v. Federal Mine Safety and Health Review

Comm’n, 842 F.2d 453 (D.C. Cir. 1988) .......... 22

Sims v. Mulcahy, 902 F.2d 524 (7th Cir.), cert. denied,

498 U.S. 897, 111 S. Ct. 249 (1990) ............. 7

Smart v. Ball State Univ., 89 F.3d 437 (7th Cir. 1996) . 13, 14

Smith v. Maryland, 442 U.S. 735, 99 S. Ct. 2577

to See eee re eee ree ee eee 21

Smith v. St. Louis Univ., 109 F.3d 1261 (8th Cir.

SED -0sbk eas utes debaeeeentrk eid 4k 25

Steiner v. Showboat Operating Co., 25 F.3d 1459 (9th Cir.),

cert. denied, 513 U.S. 1081, 115 S. Ct. 733

SRP 3b 60605 Jenwn cane a bee bee 40h ese eae cas 19

St. Louis v. Praprotnik, 485 U.S. 112, 108 S. Ct. 915

So k:n6 du dads sR DRRSESKER OA SEDER RATES 7

St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 113 S. Ct.

SPORE. CSc ou abba seddsk cuneate versiones 10

Steiner v. Showboat Operating Co., 25 F.3d 1459 (9th Cir.),

cert. denied, 513 U.S. 1081, 115 S. Ct. 733

CSR hc ccacecambedustebudsces biases cake 19

Strother v. Southern California Permanente Medical

Group, 79 F.3d 859 (9th Cir. 1996) .............. 19

Contents

Swick v. City of Chicago, 11 F.3d 85 (7th Cir. 1993) ..

Talanda v. KFC Natl. Mgmt. Co., 6 A.D. Cas. (BNA) 1321,

1997 WL 160695 (N.D. Ill. April 2, 1997) ........

Thomas v. Denny’s, Inc., 111 F.3d 1506 (10th Cir.

4 ) EAPETPPPTY CRE TY POUT TPE EEL LELES EEE

Torres v. Pisano, 116 F.3d 625 (2d Cir. 1997) ........

Tschappat v. Reich, 957 F. Supp. 297 (D.D.C. 1997) ..

Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708 (2d

Ce, SED sure hccdhaladcsabedssaeeuesbesne des

Vance v. Southern Bell Tel. and Tel. Co., 863 F.2d 1503

et Lee | rrrrererrrrrer er ery Trice

Wanamaker v. Columbian Rope Co., 108 F.3d 462 (2d Cir.

EE bans an aie caer eree cere saeeus tienes des

Ward v. Bechtel Corp., 102 F.3d 199 (Sth Cir. 1997) ..

Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 109 S.

Pe BURP EEET cc canieduscasesteesanecceeeues

Welsh v. Derwinski, 14 F.3d 85 (1st Cir. 1994) .......

Williams v. Bristol-Myers Squibb Co., 85 F.3d 270 (7th

Ee ES SOS UUs ee iw led ee cede HII

Page

xii

Contents

Page

Williams v. J.B. Parks Wholesale Florist, Inc., 1997 WL

160194 (N.D. Tex. March 31, 1997) ............. 6

Wisconsin Dep't of Revenue v. William Wrigley, Jr., Co.,

505 U.S. 214, 112 S. Ct. 2447 (1992) ........... 11,12

Wu v. Thomas, 996 F.2d 271 (11th Cir. 1993), cert. denied,

511 U.S. 1033, 114 S. Ct. 1543 (1994) ........... 17, 18

Yates v. Avco Corp., 819 F.2d 630 (6th Cir. 1987) ..... 13, 22

Statutes Cited:

ae OBA. SG 0 0 0006000000000000s0eeeeee 17

43 UEA., Be 0600s xt id dees ceeseelieees i, 10, 25, 26

43 USA. | FCG obovesceiatddcddeteenaen 24

42 UBL... SAS wvcccisvesicsadeneneen 6, 10, 17

423 USA... § Se GD o6s onc Sanne bade 11

Rule Cited:

PU Te. GTS cic cecnwvcnwseussbeweaneseseeeee 7

Other Authorities Cited:

Administrative Office of U.S. Courts, Federal Courts

Caseload Continues Upward Spiral (Press Release

POG C2, FPN) o000cescessadancneneeeeneel 23

xili

Contents

Page

Biack’s Law Dictionary 61 (6th ed. 1990) .......... 10

Bryan A. Garner, A Dictionary OF Mopern LEGAL UsaGE

282 (2d. ed. 1995) ....... a 10

1 Am. Jur. 2D Actions § 56 (1994) ................. 11

toes ese scces 11

WessTer’s NinTH New Co.teGiaTe Dictionary 362 (9th

TT A eee ce ecccccccses 10

Ws ee De de dk

l

STATEMENT OF THE CASE’

Mattern sued Eastman, her former employer, alleging that the

company violated Title VII of the Civil Rights Act of 1964 (“Title

VII”) by sexually harassing her, retaliating against her for

complaining about the harassment, and constructively discharging

her. She also alleged that Eastman’s conduct constituted intentional

infliction of severe emotional distress under Texas law. A jury in

Marshall, Texas found that Mattern had been sexually harassed by

coworkers but that Eastman had taken prompt remedial action. The

jury also found that Eastman had neither constructively discharged

Mattern nor intentionally inflicted emotional distress. On her

retaliation claim, the jury found “that Eastman intentionally or

willfully retaliated against Jean Mattern for filing a charge of

discrimination and/or for filing this lawsuit” but went on to find

that Eastman had acted without malice, willfulness, or reckless

indifference to Mattern’s rights. The jury awarded Mattern

$50,000 in actual damages on the retaliation claim. The

magistrate judge later awarded Mattern attorneys’ fees, interest,

and costs. ,

On appeal, the United States Court of Appeals for the Fifth

Circuit, with Judge Dennis dissenting, held that Mattern had failed

to adduce legally sufficient evidence of an “adverse employment

action,” an essential element of her retaliation claim. The court

also held that several of the alleged actions Mattern complained of

failed to support the verdict on other grounds. The Fifth Circuit

reversed the trial court’s judgment and rendered judgment in

Eastman’s favor. On Mattern’s petition for rehearing and suggestion

for rehearing en banc, no active judge of the Fifth Circuit requested

a poll of the full court. Accordingly, her suggestion was denied, as

was her petition for rehearing.

* The petitioner will be referred to as Mattern. The respondent will be

referred to as Eastman.

2

Mattern’s statement of the case seriously misrepresents the

facts. The first paragraph is devoted to describing her sexual

harassment complaint. The details of the sexual harassment

allegations, however, have nothing to do with the retaliation issue

before the Court. Mattern also describes her accusations as

established fact. She says she was “repeatedly assaulted by two

senior company mechanics” and was “regularly” “spanked” by one,

all in plain view of her supervisor. But the jury obviously did not

accept Mattern’s version of events. It found only that at least one

of Mattern’s coworkers sexually harassed her. That finding does

not entitle Mattern’s counsel to describe as “facts” what are, for

the most part, hotly disputed allegations. The jury’s verdict actually

demonstrates that it discredited much of Mattern’s evidence. For

example, Mattern accused at least two coworkers, John Godwin

and George Roberts, of sexual harassment. But as she points out,

Eastman took disciplinary action only against Godwin. Yet the jury

found that the company had promptly remedied the sexual

harassment. The jurors thus could not have believed Mattern’s

accusations against Roberts.

Mattern likewise describes inaccurately the events leading to

Godwin’s separation from employment. She says that “high ranking

company officials asked Godwin to take early retirement.” Petition

at 2. That is incorrect. The disciplinary committee that convened

to decide the appropriate discipline for Godwin recommended

discharge. IX. R. 235-39, 246-47 & Dx. 18. At his request, however,

Eastman permitted Godwin to retire instead. Jd. at 239.

Mattern’s discussion of her retaliation claim is equally

misleading. She describes every alleged instance of retaliation as

though she had proven each occurred. But, again, the jury did not

decide whether each incident happened as Mattern asserted or

whether any of the incidents it did believe happened were motivated

by retaliation. Rather, the jury simply found that Mattern had been

retaliated against. Given its adverse findings on Mattern’s

constructive-discharge and intentional-infliction-of-emotional

3

distress claims as well as its decision that the retaliation it found

was not willful, malicious, or recklessly indifferent, it seems

unlikely that the jury believed all of Mattern’s retaliation allegations.

Mattern also says she repeatedly complained about the alleged

retaliation but that company officials responded there was nothing

they could or would do about it. Petition at 4. She leaves out that

those same officials testified that Mattern would not provide them

the details they needed to take appropriate action to remedy any

inappropriate conduct toward her. VIIR. 288-89; IX R. 63-64, 246.

She likewise does not mention the company’s transferring her to

another work group and threatening to fire any of her coworkers

who retaliated against her. VII R. 174; IX R. 59-62, 138. Mattern

finally says that the alleged retaliation “soon drove [her] from the

plant.” Petition at 3. But the jury found that she was not

constructively discharged.

It is one thing to describe a party’s version of the facts —

either by specifically identifying the description as such or by

explaining what some of the evidence was — and then to assume

that version true for purposes of a legal argument. But it goes beyond

proper advocacy to relate bare accusations as fact.

REASONS FOR DENYING THE WRIT

I.

THE CIRCUMSTANCES OF THIS CASE MAKE

REVIEW INAPPROPRIATE.

The circumstances that led to the reversal of the jury’s verdict

make this case an inappropriate vehicle for review of the issue stated

in the petition. Those circumstances include the jury’s unchallenged

findings against Mattern, the instructions given to the jury without

objection, and the legal theory Mattern elected to pursue.

4

The jury found “that Eastman intentionally or willfully

retaliated against Jean Mattern for filing a charge of discrimination

and/or for filing this lawsuit.” But the jury also decided that Eastman

had not “violated [Mattern’s] rights under Title VII with malice or

willfulness or reckless indifference to those rights” despite the

finding of intentional or willful retaliation. The jury went on to

find that Eastman had not constructively discharged Mattern,

meaning, under the instructions given to the jury without objection,

that Eastman had not “made her working conditions so intolerable

that a reasonable employee would feel compelled to resign.”

Because of that finding, Mattern’s retaliation claim necessarily was

limited to alleged conduct other than an actual or constructive

discharge.

Her claim was further constrained by the legal theory she chose

to pursue. ‘fo prove sexual harassment, she alleged a “hostile work

environment”: she attempted to show that a number of events,

considered together, created a discriminatorily abusive working

environment. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 114

S. Ct. 367 (1993); Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57,

106 S. Ct. 2399 (1986). “ ‘A hostile work environment claim is a

single cause of action rather than a sum total of a number of mutually

distinct causes of action to be judged each on its own merits.’ ”

DeNovellis v. Shalala, __ F.3d __, 1997 WL 527912, at * 10 (ist

Cir. Sept. 2, 1997) (quoting Vance v. Southern Bell Tel. and Tel.

Co., 863 F.2d 1503, 1511 (11th Cir. 1989)). The jury was instructed

on and decided Mattern’s sexual harassment cause of action under

that theory. App. 8a-9a.

But Mattern did not plead or ask for submission of a hostile-

work-environment theory on her retaliation claim. She alleged

instead a number of distinct events each of which she hoped to

prove constituted retaliatory action attributable to Eastman. The

instructions the magistrate judge gave to the jury illustrate the

difference in theories. The instruction on sexual harassment defined

prohibited conduct as including conduct that “has the purpose or

ee ee TS ee ee ee eee

5

effect of unreasonably interfering with the individual's work

performance or creating an intimidating, hostile or offensive

working environment” and covered the objective and subjective

tests for hostile-work-environment harassment established by this

Court in Harris. App. 8a-9a. The instruction on retaliation, in

contrast, does not even hint at a hostile-work-environment theory:

it told the jury that Mattern had to prove, among other things, an

“adverse employment action” and did not define that term using

any of the standards from hostile-work-environment cases. App.

9a-10a. Mattern did not object to the instructions, so she cannot

now characterize her retaliation claim as one based on hostile-work-

environment harassment.

Having chosen not to assert a hostile-work-environment claim,

Mattern could defend the retaliation verdict only by treating

separately each alleged retaliatory action. That is, the lower courts

were obliged to assess each alleged incident of retaliation as though

it were the only one on which the verdict was based, just as in the

case of an employee who asserts claims for failure to promote and

discharge. Moreover, because the jury failed to find a constructive

discharge, Mattern could not justify the verdict as compensation

for the loss of her job. The courts below were therefore confined to

deciding whether an employee who had voluntarily left

employment could obtain Title VII relief against a former employer

for any one of the retaliatory actions asserted by Mattern considered

in isolation from the others.

That Mattern did not plead or try to have submitted a hostile-

work-environment retaliation claim is lost in the rhetoric of her

petition, as it was in Judge Dennis’s dissent below. Mattern groups

the alleged retaliatory actions, often uses the term “harassment,”

and relies on cases concerning harassment to attack the Fifth

Circuit’s opinion and argue that the circuit courts are in conflict.

She also relies on the Equal Employment Opportunity

Commission’s position that retaliatory harassment is actionable.

6

She quotes from and refers to Judge Dennis's dissent, which argued

at great length that Mattern could prevail on a claim for hostile-

work-environment retaliation without once acknowledging that she

had not asserted such a claim. And she repeatedly contends that

the Fifth Circuit “permits” retaliation, has “approved” and declared

“lawful” a variety of retaliatory conduct, and has “declared an open

season on employees who .. . oppose discrimination.” The Fifth

Circuit majority in fact said nothing about whether Mattern would

have been able to recover under Title VII had she pursued a claim

of hostile-work-environment retaliation and proved it under the

analysis established in Meritor Savings Bank and Harris.'

Moreover, review by this Court could not change the outcome

for Mattern. She waived any complaint about being required to

prove an “adverse employment action” or about the definition of

that term. The jury instructions required Mattern to prove an adverse

employment action and defined such an action in the very way she

objects to now:

[A]dverse employment action could be

defined as a discharge, a demotion, refusal

to hire, refusal to promote, reprimand, [or]

acts of sabotage ... by employees against

other employees, either condoned or directed

by an employer for the purpose of

establishing cause for discharge. Mere dirty

looks or reluctance of co-workers to speak

1. Cf Williams v. J.B. Parks Wholesale Florist, Inc., 1997 WL 160194, * 6

(N.D. Tex. March 31, 1997) (distinguishing Fifth Circuit’s opinion and holding

that hostile-work-environment retaliation is actionable); Easley v. West, 66 Fair

Empl. Prac. Cas. (BNA) 1634, 1643 (E.D. Pa. 1994) (applying-hostile-work

environment standards to retaliation claims under Title VII and Rehabilitation

Act of 1973); Henry v. Guest Servs., Inc., 902 F. Supp. 245, 251-52 (D.D.C.

1995) (applying hostile-work-environment standards to retaliation claim under

Americans with Disabilities Act of 1990), aff'd, 98 F.3d 646 (table), 1996 WL

560362 (D.C. Cir. 1996).

7

to an employee are not the types of adverse

employment action prohibited by Title VII.

Merely placing a memorandum regarding an

employee’s performance in his or her

personnel file does not in itself constitute an

adverse employment action.

App. 9a-10a. As the Fifth Circuit observed, Mattern did not

object to that instruction before the magistrate judge, nor did

she challenge it on appeal. App. 10a.

The failure to object to a jury instruction waives any error

concerning the instruction. Fed. R. Civ. P. 51. Unobjected-to

instructions, right or wrong, become the law insofar as the particular

case is concerned, unless the party has preserved error by a motion

for directed verdict or for judgment as a matter of law. Moore v.

Murphy, 47 F.3d 8, 11 (ist Cir. 1995); Sims v. Mulcahy, 902 F.2d

524, 536 (7th Cir.), cert. denied, 498 U.S. 897, 111 S.Ct. 249 (1990);

cf. Boyle v. United Tech. Corp., 487 U.S. 498, 513-14, 108 S. Ct.

2510, 2519 (1988) (failure to object is not fatal when party who

failed to object raises issue by motion for judgment or directed

verdict); St. Louis v. Praprotnik, 485 U.S. 112, 118-20, 108 S. Ct.

915, 921-22 (1988) (same); Hystro Prods., Inc. v. MNP Corp., 18

F.3d 1384, 1392 n.6 (7th Cir. 1994) (“party need not object to jury

instructions to urge a j.n.o.v. based on different standards”). So

Mattern’s challenge to the Fifth Circuit’s discussion of adverse

employment action could not help her. Even if this Court decided

that the Fifth Circuit’s definition was incorrect in the abstract,

Mattern still would be bound by the very similar definition given

to the jury, and her claim still would fail under that definition, as

the Fifth Circuit correctly held.

In addition, several of Mattern’s claims cannot succeed because

of alternative holdings by the Fifth Circuit that she does not

challenge. Her claims of retaliation based on alleged hostility from

OO ————CiC

8

fellow employees or having tools stolen fail because the Fifth Circuit

held the evidence legally insufficient to permit a jury to find that

those events were attributable to Eastman under respondeat superior

principles. App. 11a. Her retaliation claim based on a missed pay

increase, which the Fifth Circuit thought might be an adverse

employment action in some situations but was not under the

circumstances, App. 14a-15a, also fails independently of the

adverse-employment-action holding. The Fifth Circuit held that

the evidence was legally insufficient to show that the missed pay

increase resulted from a retaliatory motive. App. 15a-16a.

In light of the case-specific circumstances that constrained the

Fifth Circuit’s review of Mattern’s claim, the Court should deny

the writ.

THERE IS NO REAL AND SUBSTANTIAL

CONFLICT IN THE CIRCUITS THAT

WARRANTS THIS COURT’S REVIEW.

Upon separate consideration of the alleged actions on which

Mattern based her retaliation claim, the Fifth Circuit found none

of them independently actionable. The court applied a basic

principle: some things that happen to an employee in the workplace

simply cannot be sued on under Title VII .

The principle is hardly revolutionary. This Court has applied

it twice in hostile-work-environment cases:

[NJot all workplace conduct that may be

described as “harassment” affects a “term,

condition, or privilege”at of employment

within the meaning of Title VII. See Rogers

v. EEOC, (454 F.2d 234, 238 (Sth Cir. 1971),

cert. denied, 406 U.S. 957, 92 S. Ct. 2058

9

(1972)] (“mere utterance of an ethnic or

racial epithet which engenders offensive

feelings in an employee” would not affect the

conditions of employment to sufficiently

significant degree to violate Title VII);

Henson [v. Dundee, 682 F.2d 897, 904 (11th

Cir. 1982)] (quoting same). For sexual

harassment to be actionable, it must be

sufficiently severe or pervasive “to alter the

conditions of [the victim’s] employment and

create an abusive working environment.”

Meritor Sav. Bank, 477 U.S. at 67, 106 S. Ct. at 2405.

This standard ... takes a middle path

between making actionable any conduct that

is merely offensive and requiring the conduct

to cause a tangible psychclogical injury. As

we pointed out in Meritor, “mere utterance

of an... epithet which engenders offensive

feelings in a employee,” ... does not

sufficiently affect the conditions of

employment to implicate Title VII. Conduct

that is not severe or pervasive enough to

create an objectively hostile or abusive work

environment — an environment that a

reasonable person would find hostile or

abusive — is beyond Title VII's purview.

Harris, 510 U.S. at 21, 114 S. Ct. at 370. In non-harassment

cases like this one, the limiting principle is most often expressed

by the requirement that a plaintiff must prove that a defendant

took an “adverse employment action” because of a prohibited

characteristic. Although this Court has never directly addressed

whether such a requirement exists under Title VII, or defined

10

its scope outside the context of sexual harassment, it has used

the phrase “adverse employment action” with no apparent

reservations in other Title VII cases. See St. Mary’s Honor Ctr.

v. Hicks, 509 U.S. 502, 113 S. Ct. 2742 (1993); Wards Cove

Packing Co. v. Atonio, 490 U.S. 642, 109 S. Ct. 2115 (1989);

Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct. 1775

(1989).

The principle derives, moreover, from unambiguous statutory

language. Section 704(a) of Title VII provides that:

It shall be an unlawful employment practice

for an employer to discriminate against any

of his employees . . . because he has opposed

any practice made an unlawful employment

practice by this subchapter, or because he has

made a charge, testified, assisted, or

participated in any manner in an

investigation, proceeding, or hearing under

this subchapter.

42 U.S.C. § 2000e-3(a) (emphasis added). To “discriminate” is,

of course, to treat differently. See WeBsTER’s NINTH NEw

COLLEGIATE Dictionary 362 (9th ed. 1986) (“to make a difference

in treatment or favor on a basis other than individual merit’);

see also Bryan A. Garner, A Dicrionary OF MoperRN LEGAL USAGE

282 (2d ed. 1995). The word “against” means adverse or

negative. BLack’s Law Dictionary 61 (6th ed. 1990) (‘adverse

to”); WEBSTER’S NINTH NEw COLLEGIATE DICTIONARY 362 (9th ed.

1986) (“unfavorable to”). Thus, by proscribing “discrimination

against” employees, the statute prohibits employers from treating

employees differently in an “adverse” or “unfavorable” way.

The notion that not every workplace occurrence that an

employee dislikes can give rise to a Title VII claim also is related

11

to well-settled legal principles presumably incorporated into Title

VII. First, Title VII authorizes, and Mattern sought, relief through

a “civil action.” 42 U.S.C. § 2000e-5(f)(1). To maintain a civil

action, the law requires a legally cognizable injury as distinguished

from and in addition to damages: “even where a wrongful act has

caused pecuniary loss, a plaintiff will be without a remedy where

he has suffered no legally cognizable harm.” 1 Am. Jur. 2p Actions

§ 56 (1994); accord 1A C.J.S. Actions § 32a (1985). “It is the fact,

clearly established, of injury to the complainant — not to others —

which justifies judicial intervention.” McCabe v. Atchison, T., &

S.F Ry., 235 U.S. 157, 162, 35 S. Ct. 69, 71 (1914). The requirement

at issue is often expressed in tort cases. E.g., Niehus v. Liberio, 973

F.2d 526, 531-32 (7th Cir. 1992) (“There is no tort without an

injury.”); Jones v. Reagan, 696 F.2d 551, 554 (7th Cir. 1983).

Employment discrimination laws, at least those that permit recovery

of compensatory and punitive damages, are generally treated as

providing a tort-like cause of action. See Commissioner v. Schleier,

515 U.S. 323, 334-36, 115 S. Ct. 2159, 2163-67 (1995).

Accordingly, the law requires a plaintiff in an employment

discrimination case to show some actual injury to prevail on a claim.

E.g., Lawrence v. National Westminster Bank N.J., 98 F.3d 61 , 72

(3rd Cir. 1996) (employee suffered no cognizable injury under Older

Workers Benefit Protection Act where his employer asked him to

sign an invalid waiver but he did not); Adams v. Bethlehem Steel

Corp., 736 F.2d 992, 994 (4th Cir. 1984) (allegations concerning

mere existence of discriminatory policy without claims of

application of policy to plaintiffs did not allege a cognizabie injury

under Title VII).

Second, limitation of Title VII's reach to legally cognizable

injuries is consistent with the maxim de minimis non curat lex —

“the law cares not for trifles.” That “venerable maxim . . . is part of

the established background of legal principles against which all

enactments are adopted, and which all enactments (absent contrary

indication) are deemed to accept.” Wisconsin Dep't of Revenue v.

William Wrigley, Jr., Co., 505 U.S. 214, 231, 112 S. Ct. 2447, 2457-

12

58 (1992). As the Seventh Circuit has aptly put it, even in civil

rights cases the law places “outside the scope of legal relief the

sorts of intangible injuries normally small and invariably difficult

to measure that must be accepted as the price of living in society

rather than made a federal case out of.” Swick v. City of Chicago,

11 F.3d 85, 87 (7th Cir. 1993). Mattern’s contention that any

discrimination is actionable, no matter how slight or intangible its

effects, cannot be squared with this Court’s earlier rulings, the plain

language of the statute, the traditional elements of an “action,” or

the de minimis doctrine.

Whether Title VII incorporates an adverse-employment-action

requirement is not open to reasonable debate: it does. On the other

hand, reasonable judges can differ and have differed about where

to draw the line between actionable conduct and conduct that simply

does not constitute “discrimination against” an employee. But that

is not the kind of “conflict” this Court traditionally has exercised

its discretionary jurisdiction to resolve. In fact, premature

involvement by this Court, as the lower courts gradually work

toward a standard through the normal process of case-by-case

adjudication, could well be counterproductive.

A. The Views of the Other Circuits Courts

As Mattern points out, the Fourth Circuit applies essentially

the same test for adverse employment actions as the Fifth Circuit.

Petition at 12-13. The similarity is not surprising given that the

Fifth Circuit’s test was adopted from the Fourth Circuit’s seminal

opinion in Page v. Bolger, 645 F.2d 227, 233 (4th Cir.) (en banc)

(Title VII prohibits only “ultimate employment decisions” and not

“interlocutory or mediate decisions having no immediate effect

upon employment conditions”), cert. denied, 454 U.S. 892, 102

S. Ct. 388 (1981). See App. 10a-11a; Dollis v. Rubin, 77 F.3d 777,

781-82 (Sth Cir. 1995); see also Hopkins v. Baltimore Gas and

Elec. Co., 77 F.3d 745, 755 (4th Cir.), cert. denied, 117 S. Ct. 70

(1996).

13

The Sixth Circuit also applies a test that, like the Fifth Circuit’s,

looks for “ultimate employment decisions” before asking whether

a particular event was discriminatorily motivated. Cesaro vy.

Lakeville Community Sch. Dist., 953 F.2d 252, 254 (6th Cir.), cert.

denied, 506 U.S. 867, 113 S. Ct. 195 (1992); see also Yates v. Avco

Corp., 819 F.2d 630, 638 (6th Cir. 1987); accord Geisler v. Folsom,

735 F.2d 991, 994-95 (6th Cir. 1984) (affirming district court’s

finding that the “predictable tension” that arose after others became

aware of plaintiff’s filing of EEOC charge was not adverse

employment action prohibited by Title VII).

The Eighth Circuit recently cited the Fifth Circuit's decision

below with approval in holding that a particular transfer and a poor

employment evaluation were not adverse employment actions:

Although “actions short of termination may

constitute adverse actions within the meaning

of the statute,” Smith [v. St. Louis Univ., 109

F.3d 1261, 1266 (8th Cir. 1997) (relied

on by Mattern)], “not everything that makes

an employee unhappy is an actionable

adverse employment action.” Smart v. Ball

State Univ., 89 F.3d 437, 441 (7th Cir. 1996);

see Mattern v. Eastman Kodak Co., 104 F.3d

702, 707-08 (Sth Cir. 1997). Rather, the

action must have had some adverse impact

on [the plaintiff] to constitute an adverse

employment action. See Mattern, 104 F.3d

at 708; Williams v. Bristol-Myers Squibb Co.,

85 F.3d 270, 274 (7th Cir. 1996).

Montandon v. Farmland Indus., Inc., 116 F.3d 355, 359 (8th

Cir. 1997). Even more recently, the Eight Circuit applied the

Fifth Circuit's test without citing Mattern: “While the action

complained of may have had a tangential effect on her

employment, it did not rise to the level of an ultimate

employment decision intended to be actionable under Title VII.”

14

Ledergerber v. Stangler, __ F.3d __, 1997 WL 545970, at *2-3

(8th Cir. Sept. 8, 1997); see also Harlston v. McDonnell Douglas

Corp., 37 F.3d 379, 382 (8th Cir. 1994) (“Changes in duties or

working conditions that cause no materially significant

disadvantage . . . are insufficient to establish the adverse conduct

required to make a prima facie case.”); Bradford v. Norfolk S.

Corp., 54 F.3d 1412, 1420 (8th Cir. 1995) (ADEA case).

Although the Seventh Circuit has not always been consistent

in applying its adverse action standard, see McDonnell v. Cisneros,

84 F.3d 256, 258 (7th Cir. 1996) (noting “tension” in the cases), it

plainly has one. Most often, the standard is described as requiring

“a materially adverse change in the terms and conditions of

employment.” Crady v. Liberty Nat’l Bank & Trust Co. of Ind., 993

F.2d 132, 136 (7th Cir. 1993); accord Williams v. Bristol-Myers

Squibb Co., 85 F.3d 270, 274 (7th Cir. 1996); Flaherty v. Gas

Research Inst., 31 F.3d 451, 456-57 (7th Cir. 1994); see also Smart,

89 F.3d at 441 (negative performance evaluations alone do not

constitute “adverse employment actions” under Title VII; “not

everything that makes an employee unhappy is an actionable

adverse action”). In Williams, the court noted the necessity of some

rule of limitation:

Otherwise, every trivial personnel action that

an irritable, chip-on-the-shoulder employee

did not like would form the basis of a

discrimination suit. The Equal Employment

Opportunity Commission, already staggering

under an avalanche of filings too heavy for

it to cope with, would be crushed, and serious

complaints would be lost among the trivial.

85 F.3d at 274. The Seventh Circuit’s test is therefore generally

consistent with the Fifth Circuit’s, despite a few decisions in

which application of the test has resulted in outcomes different

than in this case.

15

Mattern’s contention that the Fifth Circuit’s position conflicts

with the Seventh Circuit’s is thus incorrect. Collins vy. State of

Illinois, 830 F.2d 692, 703 (7th Cir. 1987), for example, simply

recognized that “Title VII does not limit adverse job action to strictly

monetary considerations”; the Fifth Circuit’s standard does not

Suggest otherwise. Reeder-Baker v. Lincoln National Corp., 834

F.2d 1373, 1375 (7th Cir. 1987), is likewise inapposite: whether

the acts complained of there were sufficient to support a claim was

not even raised. Finally, the cases cited in footnote five of Mattern’s

petition all involve claims of First Amendment violations and some

involve specific allegations of “harassment.” Mattern makes no

attempt to explain why the test should be the same under the First

Amendment and Title VII, and, as explained above, she has not

presented a cognizable claim for “harassment.”

The Second Circuit, contrary to Mattern’s contention, has not

“recognized a retaliation claim where an employer, allegedly for

retaliatory reasons, had failed to ask a complainant if she wanted

to work on a particular overtime assignment.” Petition at 12 (citing

Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520, 529 (2nd Cir.),

cert. denied, 506 U.S. 965, 113 S. Ct. 440 (1992)). The Second

Circuit affirmed summary judgment on the merits for the employer

in that case; the issue of adverse employment action was either not

raised or not ruled on. /d. In fact, the Second Circuit applies a test

akin to the Seventh Circuit’s test, but with more consistency. In the

Second Circuit, to prove an adverse employment action, a plaintiff

must show “‘a materially adverse change in the terms and conditions

of employment.” Torres v. Pisano, 116 F.3d 625, 639-40 (2d Cir.

1997) (employer's request that the plaintiff drop her EEOC charge,

which “frightened” and “intimidated” her, was not an adverse

employment action).?

2. Accord Wanamaker v. Columbian Rope Co., 108 F.3d 462, 465-67 (2d

Cir. 1997) (ADEA protects employees from actions “injurious” to current

employment or the ability to secure future employment; barring a discharged

employee from using an office and phone to conduct a job hunt was only a “minor,

(Cont'd)

16

The Third Circuit, whose position on the issue Mattern does

not address, recently adopted a standard for defining adverse

employment action:

Retaliatory conduct other than discharge or

refusal to rehire is thus proscribed by Title

VII only if it alters the employee’s

“compensation, terms, conditions, or

privileges of employment,” deprives him or

her of “employment opportunities,” or

“adversely affect[s] his [or her] status as an

employee.” It follows that “not everything

that makes an employee unhappy” qualifies

as retaliation, for “[o]therwise, minor and

even trivial employment actions that an

‘irritable, chip-on-the shoulder employee did

not like would form the basis of a

discrimination suit.” ” [Quoting Smart, 89

F.3d at 441, and Williams, 85 F.3d at 274].

Courts have operationalized the principle that

retaliatory conduct must be serious and tangible

enough to alter an employee’s terms,

conditions, or privileges of employment into

the doctrinal requirement that the alleged

retaliation constitute “adverse employment

action.”

Robinson v. City of Pittsburgh, __ F.3d ___, 1997 WL 386102, at

*11 (3d Cir. July 14, 1997); see also Nelson v. Upsala College,

(Cont'd)

ministerial stumbling block” and thus was not an adverse employment action

under the ADEA); Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 713 n.3

(2d Cir. 1996) (supervisor's “occasional nastiness, which other employees also

were subject to,” was not an adverse employment action sufficient to support a

Title VII retaliation claim).

17

51 F.3d 383, 389 (3rd Cir. 1995). The court applied its standard

to hold that “unsubstantiated oral reprimands” and “unnecessary

derogatory comments” were not adverse employment actions

under Title VII. Robinson, 1997 WL 386102, at *3.

The First Circuit addressed the adverse-employment-action

issue in. Welsh v, Derwinski, 14 F.3d 85 (1st Cir. 1994), a case

relied on by Mattern. The court considered whether reducing

the plaintiff’s duties, which the plaintiff alleged eliminated the

potential for him to obtain a status upgrade, was sufficiently

adverse. In doing so it disagreed with the defendant's argument

that “only discharge, demotion, or failure to promote can

constitute an adverse employment action” under the Age

Discrimination in Employment Act (“ADEA”). Id. at 86.3 But

the court also conceded that “not every unpleasant matter short

of those [actions] creates a cause of action.” Jd. And the court

went on to hold that the district court's “finding that plaintiff

failed to make a prima facie showing of adverse employment

action must stand” because reducing the plaintiff’s duties did

not prevent him from obtaining a status upgrade. /d. at 87. That

approach is consistent with the Fifth Circuit's. See App. lla

(rejecting certain events as adverse employment actions

“because of their lack of consequence”).

The Eleventh Circuit, as Mattern correctly noted, has not

defined “adverse employment action.” Wa v. Thomas, 996 F.2d 271,

273-74 (11th Cir. 1993), cert. denied, 511 U.S. 1033, 114 S. Ct.

1543 (1994). But Wu did hold that it was not “clearly established”

for qualified immunity purposes that retaliatory harassment, as

opposed to sexual or racial harassment, was actionable under Title

3. Given the similarity between the anti-retaliation provisions in Title VII,

42 U.S.C. § 2000e-3(a), and the ADEA, 29 U.S.C. § 623(d), Eastman agrees

with the argument implicit in Mattern’s petition that the two probably should be

interpreted similarly and thus that cases under one statute may be relevant in

interpreting the other.

18

VII. Id. at 274-75. That holding is not relevant here because Mattern

did not assert a retaliatory harassment claim. And the Eleventh

Circuit’s decisions before Wu show that it does place limits on

actions for alleged retaliation. In Bailey v. USX Corp., 850 F.2d

1506, 1508-09 (11th Cir. 1988), for example, the court affirmed

the district court’s judgment against a plaintiff who claimed that a

negative employment reference was retaliatory. The court

emphasized that because the plaintiff would not have been hired

for the position for which the reference was provided anyway, he

suffered no injury; and his removal from a civil service list of

qualified candidates was temporary, so any harm was minimal. Jd.;

cf. Jordan v. Wilso,. 351 F.2d 1290, 1292-93 (11th Cir. 1988); see

also Reynolds v. CSX Transp., Inc., 115 F.3d 860, 868 (11th Cir.

1997) (temporary replacement of the plaintiff that led to her being

out of work for almost a week and being unpaid for the absence

until almost six months later, was an adverse employment action

sufficient to support Title VII retaliation claim).

The Tenth Circuit apparently has not adopted a verbal formula

defining “adverse employment action.” But it has held that various

actions were not sufficiently adverse to support a claim and, in the

process, suggested that a plaintiff must show some harm to

employment status or opportunities. Berry v. Stevinson Chevrolet,

74 F.3d 980, 986 (10th Cir. 1996) (retaliatory prosecution can have

an adverse impact on future employment opportunities and therefore

can be an adverse employment action under Title VII); Cole v.

Ruidoso Mun. Schs., 43 F.3d 1373, 1381-82 (10th Cir. 1994)

(employer’s change in its explanation of the basis for the plaintiff's

removal after she filed an EEOC charge did not cause the harm the

plaintiff complained of and thus was not an adverse employment

action); Meredith v. Beech Aircraft Corp., 18 F.3d 890, 896 (10th

Cir. 1994) (performance evaluation that was lower than previous

rating was not an adverse employment action where there was no

indication of injury or detriment because of the evaluation); see

also Mosley v. Pena, 100 F.3d 1515, 1519 (10th Cir. 1996)

19

(employer’s failure to settle the plaintiff’s EEOC complaint was

not an adverse employment action).

The Ninth Circuit’s view is best described as inconsistent. In

Strother v. Southern California Permanente Medical Group, 79 F.3d

859, 869 (9th Cir. 1996), the court held that “[nJot every

employment decision amounts to an adverse employment action”

and noted that “mere ostracism in the workplace is not enough to

show an adverse employment action.” While the case was brought

under California’s fair employment practices statute, that statute is

interpreted consistently with federal anti-discrimination legislation,

and the Ninth Circuit cited Title VII cases to Support its holding.

Id. at 866, 869 n.12; see also Nidds v. Schindler Elevator Corp.,

113 F.3d 912, 919 (9th Cir. 1997) (transfer of employee with no

effect on compensation was not an adverse employment action

despite employee’s characterization of transfer as demotion),

petition for cert. filed, No. 97-364 (July 29, 1997); Steiner vy,

Showboat Operating Co., 25 F.3d 1459, 1465 n.6 (9th Cir.)

(questioning whether transfer from swing shift to day shift was

adverse employment action where employee “was not demoted, or

put in a worse job, or given any additional responsibilities”), cert.

denied, 513 U.S. 1081, 115 S. Ct. 733 (1994),

But in Hashimoto v. Dalton, 118 F.3d 671, 675-76 (9th Cir.

1997), the court seemed to hold that completely inconsequential

retaliation is actionable under Title VII: it allowed a negative

employment reference to be sued on even though the plaintiff would

not have gotten the desired job for other reasons. The court expressly

rejected what it called the employer’s “no harm, no foul” approach,

concluding that the adverse job reference violated Title VII simply

because it was a “personnel action” motivated by retaliatory animus.

Id. at 674-76. Hashimoto's recognition of a unique Title VII civil

action that does not require a legally cognizable injury is wrong,

but more importantly it is inconsistent even with other decisions

from the same court. Until the court speaks en banc to reconcile its

conflict, the Ninth Circuit must be considered as undecided on

20

whether a Title VII action requires proof of some actual negative

effect on an employment relationship.

The District of Columbia Circuit sets one of the lowest

thresholds for actionable conduct under Title VII and related

discrimination statutes, using the formulation that an employer must

engage in conduct “having an adverse impact on the plaintiff.”

Passer v. American Chem. Soc’y, 935 F.2d 322, 331 (D.C. Cir. 1991).

In Passer, the employer’s cancellation of a program to honor the

plaintiff was held sufficiently adverse under the ADEA on the notion

that the public humiliation involved “made it more difficult for

him to procure future employment.” Jd. at 331. Yet in Berger v.

Iron Workers Reinforced Rodmen Local 201, 843 F.2d 1395, 1423-

24 (D.C. Cir. 1988), cert. denied, 490 U.S. 1105, 109 S. Ct. 3155

(1989), the same court held that veiled threats by a union official

that he would “make it hard on those who filed this suit” and would

withhold the plaintiff’s application for a training program until he

agreed to drop his charge of discrimination were not adverse actions

under Title VII because the threats were not carried out and thus

“had no effect.” Jd. at 1424; see also Gary v. Long, 59 F.3d 1391,

1396 (D.C. Cir.) (threats of adverse consequences that were never

carried out constituted mere “saber rattling” insufficient to

demonstrate quid pro quo harassment), cert. denied, 116 S. Ct.

569 (1995); Henry v. Guest Servs., Inc., 902 F. Supp. 245, 251-52

(D.D.C. 1995) (plaintiff’s receipt of a cartoon making light of his

disability was not an adverse employment action because it was

not severe and pervasive enough to alter the terms of his

employment), aff'd, 98 F.3d 646 (table), 1996 WL 560362 (D.C.

Cir. 1996).

B. The Fifth Circuit’s View

The Fifth Circuit’s approach to the adverse-employment-action

issue is sound. Lost in Mattern’s hyperbolic criticism of the court’s

use of the term “ultimate employment action” is any real sense of

what the phrase actually means. It first requires some conduct by

21

the employer that has an actual negative impact on the plaintiff as

an employee. Thus, if an employee who receives three warnings of

deficient performance is discharged or denied a pay increase, the

discharge or missed pay increase, either of which of course has an

actual negative effect on the employment relationship, is actionable.

The performance warnings themselves, however, caused no harm,

although they might be evidence for one side or the other in an

action based on the discharge or denied pay increase. But if an

employee receives two performance warnings, improves, is not

discharged, and receives the raises, there has been no actual negative

impact on the employment relationship — no “discrimination

against” the employee. The Fifth Circuit’s focus on the “ultimate”

employment decision simply looks for an actual impact on the

plaintiff’s employment, excluding those actions that could in the

future but do not currently or inevitably impact it.

What Mattern seems to take the most issue with is the Fifth

Circuit’s implicit requirement that whether an action is adverse

must be judged objectively as well as subjectively. Employment

discrimination plaintiffs obviously prefer a standard under which

the “adverse-ness” or “against-ness” of an employer's actions is

decided conclusively by the employee’s own view of it: “I do not

like it; therefore it is adverse.” But did Congress suggest or even

permit such a standard?

The law generally disfavors basing legal rights on purely

subjective standards, as illustrated by many of this Court’s decisions.

E.g. Professional Real Estate Investors, Inc. v. Columbia Pictures

Indus., Inc., 508 U.S. 49, 60, 113 S. Ct. 1920, 1928 (1993) (rejecting

Subjective standard for defining “sham” exception to Noerr antitrust

immunity); Harlow y. Fitzgerald, 457 U.S. 800, 815-19, 102 S. Ct.

2727, 2736-39 (1982) (rejecting subjective aspect of qualified

immunity defense and opting for purely objective test); Smith v.

Maryland, 442 U.S. 735, 740, 99 S. Ct. 2577, 2580 (1979) (objective

and subjective expectation of privacy is required to complain of

privacy deprivation under Fourth Amendment).

22

Courts, including this one, insist on objective showings under

Title VII and other discrimination statutes as well. In a hostile-

work-environment claim, for example, the Court requires plaintiffs

to demonstrate “‘an objectively hostile or abusive work environment

— an environment that a reasonable person would find hostile or

abusive.” Harris, 510 U.S. at 21, 114S. Ct. at 370. The Court also

compels employers to meet objectively verifiable standards before

asserting Title VII’s bona-fide-occupational-qualification defense.

International Union, United Aerospace and Agricultural Implement

Workers of Am. v. Johnson Controls, Inc., 499 U.S. 187, 201, 111

S. Ct. 1196, 1204 (1991). And all of the circuit courts require

plaintiffs to meet an objective standard for proving a constructive

discharge.‘

A purely subjective test for adverse action under the

employment discrimination statutes would have the same defects

as similar standards in other settings. What constitutes differential

negative treatment — “discrimination against” — for one person

may be favorable treatment to another. Cases already on the books

illustrate the point. Compare Dollis, 77 F.3d at 782 (plaintiff alleged

that denying her a desk audit was an adverse employment action)

with Harris, __ F.3d __, 1997 WL 384618, *2, *5 (8th Cir. July 14,

1997) (to be reported at 119 F.3d 1313) (plaintiff alleged that receiving

a desk audit was an adverse employment action) and Deavenport

v. MCI Tel. Corp., 1997 WL 467160, *8 (D. Col. Aug. 13, 1997)

4. E.g., Gartman v. Gencorp Inc., 120 F.3d 127, 130 (8th Cir. 1997);

Thomas v. Denny's, Inc., 111 F.3d 1506, 1514 (10th Cir. 1997); Serrano-Cruz v.

DFI Puerto Rico, Inc., 109 F.3d 23, 26 (1st Cir. 1997); Ward v. Bechtel Corp.,

102 F.3d 199, 202 (Sth Cir. 1997); Burns v. AAF-McQuay, Inc., 96 F.3d 728, 733

(4th Cir. 1996), cert. denied, 117 S. Ct. 1247 (1997); Kilgore v. Thompson &

Brock Mgmt., Inc., 93 F.3d 752, 754 (11th Cir. 1996); Chertkova v. Connecticut

Gen. Life Ins. Co., 92 F.3d 81, 89 (11th Cir. 1996); Rabinovitz v. Pena, 89 F.3d

482, 489 (7th Cir. 1996); Aman v. Cort Furniture Rental Corp., 85 F.3d 1074,

1084 (3rd Cir. 1996); Schnidrig v. Columbia Mach., Inc., 80 F.3d 1406, 1411

(9th Cir.), cert. denied, 117 S. Ct. 295 (1996); Simpson v. Federal Mine Safety

and Health Review Comm'n, 842 F.2d 453, 462-62 & n.8 (D.C. Cir. 1988); Yates

v. Avco Corp., 819 F.2d 630, 636-37 (6th Cir. 1987).

23

(plaintiff complained of being “forced” to travel extensively) with

Lawson v. McPherson, 679 F. Supp. 28, 32 (D.D.C. 1986) (plaintiff

complained of being denied travel Opportunities) and Martin v.

Frank, 788 F. Supp. 821, 824 (D. Del. 1992) (plaintiff alleged

discrimination in being forced to work two hours of overtime) with

Patel v. Allstate Ins. Co., 105 F.3d 365, 373 (7th Cir. 1997) (plaintiff

complained of being denied permission to work overtime) and

Aldrich, 963 F.2d at 528 (same). Mattern complained that a “final

warning” was an adverse action. Other employees could complain,

and no doubt have, that their employer discriminated by failing to

warn them of deficient performance. Ease of assertion, difficulty

of disproof, failure to give notice of liability-creating conduct —

the law’s traditional reasons for rejecting subjective standards of

liability — apply fully to civil actions authorized by Congress in

the employment discrimination statutes. Mattern offers no reasons

why courts should hold otherwise.

Properly understood, the Fifth Circuit’s test for adverse

, employment action requires only a current (or inevitable)

objectively negative impact on the employment relationship. Most

other circuits agree, even if they phrase the test differently, because

they have found not actionable conduct that does not fit within it.

Only one panel in the Ninth Circuit has arguably staked out a

different position, but given the evident inconsistency with other

Ninth Circuit opinions, that decision hardly gives rise to a clear

conflict that warrants this Court’s intervention.

C. Policy Concerns Support the Fifth Circuit’s View

Practical policy concerns, of which Congress should not be

assumed ignorant, also support the Fifth Circuit’s Standard. The

Administrative Office of U.S. Courts reported a 25 percent increase

in filings of civil rights employment cases in district courts and a

17 percent increase in appeals of such cases for fiscal year 1996.

Administrative Office of U.S. Courts, Federal Courts Caseload

Continues Upward Spiral (Press_Release March 12, 1997)

(available at http://www.uscourts.gov/Press Releases/index.htm).

Some judges have even called for the creation of special

——_— eee

a4

employment courts because “the federal courts are flooded with

employment cases.” Tschappat v. Reich, 957 F. Supp. 297, 299

(D.D.C. 1997) (Sporkin, J.).

The effect of the Civil Rights Act of 1991 cannot be overlooked.

It allows plaintiffs to recover up to $300,000 in compensatory and

punitive damages, depending on the size of the employer, for

violations of Title VII and the Americans with Disabilities Act of

1990. Even more important, money recoveries are no longer limited

to the equitable restoration of lost wages and benefits but may

include damages for less tangible harms such as “emotional pain,

- suffering, inconvenience, mental anguish ... [and] loss of

enjoyment of life.” 42 U.S.C. § 1981a(b)(3). The former self-

limiting feature of Title VII — availability of monetary relief only

for defined, tangible losses — is gone, an absence that almost

certainly accounts for the recent surge of cases discussing the

adverse-employment-action requirement. There is now a hugely

increased incentive for employees to sue when anything, no matter

how minor or inconsequential, occurs in the workplace that might

be attributed to discrimination. Congress of course could have

chosen to allow actions under Title VII “involving trivial slights,

real and imagined,”* but nothing in the language of the statute or

its remedial scheme suggests that Congress did so.

Il.

THE FIFTH CIRCUIT’S DECISION DOES NOT

CONFLICT WITH ANY DECISION OF THIS COURT.

Mattern argues that the Fifth Circuit’s decision conflicts with

three of this Court’s decisions, Robinson v. Shell Oil Co., 117

S. Ct. 843 (1997); Harris v. Forklift Systems, Inc., 510 U.S. 17, 114

S. Ct. 367 (1993); and Meritor Savings Bank v. Vinson, 477 U.S.

Se i

5. Talanda v. KFC Natl. Mgmt. Co., 6 A.D. Cas. (BNA) 1321, 1997 WL

160695 (N.D. Ill. April 2, 1997).

25

57, 106 S. Ct. 2399 (1986), and that its reasoning is inconsistent

with the Court’s decision in Rutan v. Republican Party of Illinois,

497 U.S. 62, 110 S. Ct. 2729 (1990).

In Robinson, the Cour held only that “former employees are

included within § 704(a)’s coverage.” 117 S. Ct. at 849. It did not,

as Mattern puts it, “uph[o]ld a cause of action under section 704(a)

based on a retaliatory job reference.” The validity of that cause of

action, beyond the question of whether it may be asserted by a

former employee, was not before the Court. Moreover, there was

no reason for it to be. As Mattern’s counsel well knows, having

appeared on the brief in Robinson, the negative reference there did

cause an adverse employment action: the prospective employer to

whom the reference was given did not hire the plaintiff. Brief for

Petitioner, Robinson v. Shell Oil Co., 1996 WL 341308, * 3 (U.S.

1996) (No. 95-1376). Because the Court expressed no opinion as

to the validity of the cause of action at all, it certainly did not hold

that the plaintiff would have stated a Title VII claim even if the

prospective employer had hired him.®

The Fifth Circuit’s decision is likewise not inconsistent with

this Court’s holding that former employees are covered by section

704(a). Indeed, the Fifth Circuit has held that the analogous

retaliation provision in the ADEA applies to former employees.

EEOC v. Cosmair, Inc., 821 F.2d 1085, 1088 (Sth Cir. 1987). The

fact that the hiring decision in Robinson was made by a different

6. Compare Smith v. St. Louis Univ., 109 F.3d 1261, 1266 (8th Cir. 1997)

(negative references causing potential employers to decline to hire plaintiff

constituted actionable retaliation) and Ruedlinger v. Jarrett, 106 F.3d 212, 214

(7th Cir. 1997) (providing information to subsequent employer that caused it to

fire plaintiff was adverse employment action) with Bailey v. USX Corp., 850 F.2d

1506, 1508-09 (11th Cir. 1988) (because the plaintiff would not have been hired

for the position he sought, he was not-injured-by his employer's provision of a

negative reference) and Hashimoto v. Dalton, 118 F.3d 671, 675-76 (9th Cir.

1997) (a negative employment reference was actionable retaliation even though

the plaintiff would not have gotten the job in any event).

26

employer than the one the plaintiff sued does not vitiate the adverse-

employment-action requirement. Instead, it only reflects that in

cases involving former employees, the terminology used in

describing the limits of § 704(a) may have to be adjusted to account

for the different circumstances involved in such cases. Cf.

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct.

1817, 1824 n.13 (1973) (noting that the standards for establishing

a prima facie case of discrimination will vary in different factual

situations). In sum, Robinson did not address the relevant issue

and the Fifth Circuit’s decision does not conflict with it.

Mattern’s argument that the Fifth Circuit’s decision contradicts

Harris and Meritor Savings Bank is nonsense. As explained above,

both opinions establish that certain conduct, even if motivated by

discriminatory animus, is not actionable; they are fully consistent

with the underlying principle applied by the Fifth Circuit. Moreover,

as also explained above, Mattern made no hostile-work-

environment claim based on retaliation. Not being free to ignore

the case actually before it, the Fifth Circuit properly did not consider

the alleged events Mattern complained of in their totality under the

standards established in Harris and Meritor Savings Bank.

Likewise, the Fifth Circuit did not purport to define “discrimination”

so as to exclude “[s]ystematic harassment,” as Mattern contends.

Mattern’s focus on harassment means that she either is ignoring

that she brought no such claim or that she would have the Fifth

Circuit permit her to assert such a claim but avoid meeting the

standards for it established by this Court. If she intends the latter, it

is her position, not the Fifth Circuit’s, that conflicts with Harris

and Meritor Savings Bank.

Mattern’s argument that the Fifth Circuit’s decision contravenes

Rutan highlights her mistaken view that there should be no limits

whatsoever to retaliation liability despite authority from this Court

and traditional legal doctrines to the contrary. In Rutan the Court

held that employment decisions concerning “promotions, transfers,

27

and recalls after layoffs based on political affiliation or support are

an impermissible infringement on the First Amendment rights of

public employees.” 497 U.S. at 75, 110 S. Ct. at 2737. At the outset,

Rutan sheds no light on the issue here because it was decided under

the First Amendment not Title VII, and Mattern has not attempied

to show that the same standards do or should apply under both.

Although there are some inherent similarities between patronage

discrimination and protected-activity discrimination, there are also

different considerations involved in each, most prominently that

one involves constitutional concerns and the limits of governmental

power.

In any event, the Fifth Circuit’s decision does not conflict with

Rutan even if the same standards apply. The Court did not hold, as

Mattern contends, that the First Amendment prohibits “any

retaliation” without limitation. The Court did reject the Seventh

Circuit’s standard under the First Amendment (which is different

than that circuit’s standard under Title VII) holding actionable “only

those employment decisions that are the ‘substantial equivalent of

a dismissal.’ ” Jd. But it did not imply that there were no limits. In

fact, it expressly found that employees subjected to certain actions

short of discharge still may be “adversely affected” and explained

some of the harms those employees could experience. 497 U.S. at

73, 110 S. Ct. at 2736.

The Fifth Circuit’s test, as articulated in Mattern, does not

require, as the Seventh Circuit had in Rutan, the “substantial

equivalent of a dismissal” before a violation occurs. The court

expressly recognized various kinds of decisions as actionable,

including ones related to leaves of absence, promotions, and

compensation, all of which are short of discharge. More specifically,

and contrary to Mattern’s apparent reading of the opinion below,

the Fifth Circuit did not hold that promotions, transfers, and recalls

after layoffs are not actionable under Title VII. The first and last of

those actions plainly fall within the Fifth Circuit’s non-exclusive

28

definition of “adverse employment action.” And the court said

nothing about transfers. But transfers are akin to hiring and

promoting, or even demoting (which the Fifth Circuit also did not

mention), all of which fit within the court’s definition of adverse

employment action: they all are the kind of “ultimate employment

decisions,” as compared to “interlocutory or mediate” decisions,

that do or can have an objectively negative impact on the

employment relationship.’ In short, Rutan is inapplicable here, and

the Fifth Circuit’s decision does not in any case contradict it.

CONCLUSION

The petition for writ of certiorari should be denied.

Respectfully submitted,

STEPHEN F. FINK

Counsel of Record

BRYAN P. NEAL

THOMPSON & KNIGHT, P.C.

Attorneys for Respondents

1700 Pacific Avenue

Suite 3300

Dallas, Texas 75201

(214) 969-1700

7. As other circuits have recognized, a particular transfer may or may not

be an adverse employment action depending on the circumstances and the real,

objectively measurable impact on the employee. E.g., Montandon v. Farmland

Indus., Inc., 116 F.3d 355, 359 (8th Cir. 1997); Davis v. City of Sioux City, 115

F.3d 1365, 1369 (8th Cir. 1997); Williams v. Bristol-Myers Squibb Co., 85 F.3d

270, 274 (7th Cir. 1996); Flaherty v. Gas Research Inst., 31 F.3d 451, 456-57

(7th Cir. 1994).