Petition for Writ of Certiorari — Twisdale v. Snow

U.S.

y PILED

03 310 WL 3 2003

OFFICE OF THE CLERK

No. 02-1736

In The

Supreme Court of the United States

JAMES B. TWISDALE,

Petitioner

Vv.

JOHN W. SNOW, Secretary of the Treasury,

Respondent

On Writ of Certiorari to the .

Untied States Court of Appeals

For the Seventh Circuit

BRIEF FOR THE PETITIONER

JAMES B. TWISDALE

103 E. MCCLURE DR.

SCOTT DEPOT, WV 25560

304-757-4738

July 3, 2003

=

™ orn

NO ae crept me ern een

QUESTIONS PRESENTED FOR REVIEW

Introduction to Question 1

The Seventh Circuit ruled that the protection offered under

42 U.S.C. 2000e-3(a) is restricted to only employees who

have made a charge of discrimination. Stating that the issue

“is both clean and novel” and no case law or scholarly

commentary existed. Case law and scholarly commentary

does exist, all of which supports a literal and all inclusive

interpretation as intended by Congress.

1. Does the protection offered under Section 42 U.S.C.

2000e-3(a) for employees who have made a charge,

testified, assisted, or participated in any manner in an

EEOC investigation apply to all employees with no

regard to their role in the alleged acts of a Title VII

violation?

Introduction to Question 2 ,

The Seventh Circuit in its analysis of a hostile work

environment did not apply the standards established by the

Supreme Court in the cases of Harris v. Forklift Systems, Inc

and more recently Oncale v. Sundowner Offshore Services,

Inc. correctly. The court below further imposed new criteria

that subsequent job assignments and a promotion will cancel

out any previous inflicted harassment.

2. Did the Plaintiff suffer a hostile work environment

sufficient to affect his compensation, terms, conditions,

or privileges of employment, under 42 U.S.C. 2000e-

2(a)(1) and if so, would other job assignments,

performance bonuses and a promotion cancel out the

harassment?

TE TNS SP SLE PE MN RE: PPE TORE EEEN E Tee S [S Le ON EL BH oe TE Pete “e r Pte Paes + Pin mae HE vied Sad re ewe PO es

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR

REVIEW. .....cccccccccccccccccccccccsscccccccccccers i

TABLE OF CONTENTS. ........csecceececeeceee ii

TABLE OF AUTHORITIES. .......ceseeeeeeeeee iv

STATEMENT OF THE CASE..........+.++00+: 1

SUMMARY OF THE FACT. .......0.200eeeeee 1

INTRODUCTION AND SUMMARY OF

ARGUMENT 1.........ccccccccccccccccccccccccseees 6

ARGUMENT:

THE SEVENTH CIRCUIT ERRED IN

INTERPRETING AND APPLYING

42 U.S.C. 20000-3(a)......cceccccsescccceeccccceecs 7

I. LEGAL ANALYSISG..........ceeeeeeeee 7

Il. FLAWED HYPOTHETICAL........ 14

Il. PLAINTIFF STILL BECOMES

“PROTECTED” WHEN HE FILES

HIS EEO COMPLAINT..........++++: 15

IV. CONCLUSION..........cccesccceoeeeees 15

INTRODUCTION AND SUMMARY OF

ARGUMENT 2.........ccecccccccccccccccceceseecess 15

a.

TABLE OF CONTENTS -Continued

ARGUMENT

THE SEVENTH CIRCUIT ERRED IN

INTERPRETING AND APPLYING

42 U.S.C. 20000-2(a)(1)..........cccccccccccccceece

I. LEGAL GENESIS AND

STANDARD FOR HOSTILE

WORK ENVIRONMENT.............

Il. AFFIRMATION OF THE

HOSTILE WORK.

ENVIRONMENT STANDARD......

Ul. CLEAR EVIDENCE OF A

SEVERE SUBJECTIVE AND

OBJECTIVE HOSTILE WORK

ENVIRONMENT............... eovcecese

IV. REWARDS, BONUSES AND

PROMOTION..cccccccscccccscvccccssoes

Page

17

17

18

20

26

Tee aa

TABLE OF AUTHORITIES

Cases: Page

Baile; v. United States, 516 U.S. 137;

116 S. Ct. 501, 506, 133 L.Ed.

2d 472 (1995)......cceccccccccccccccccccccccccssccssccsoese 10

Booker, 879 F.2d at 1312.........sccccccesecccecceceeeceees 9

Burlington Indus. V. Ellerth,

524 U.S. 765 (1998)........ccccccceseccccecscceses 16, 19, 27

Carrero v. New York City Housing Authority,

890 F.2d 569, 577-578 (2d Cir. 1989)..........eeeeeee 19

Clover v. Total Sys. Servs., Inc., 176 F.3d 1346,

BIND 100 Ca Ric encersensecrstncsiansenscessnvenvenes .

Connecticut Nat’i Bank v. Germain,

503 U.S. 249, 253-54, 112 S. Ct. 1146, 1149,

117 L.Ed. 2d 391 (1992)..........ccccccccccccccccees 10, 11

Davis v. Monsanto Chem. Co., 858 F.2d 345,

SOD 8” Cle. WD cresiaccsccevmsesrensescnrenvenvoneen 25

Faragher v. City of Boca Raton,

524 U.S. 775 (1998).....cccccccccccccesccccccccecscecs 18, 19

Glover v. S. Carolina Law Enforcement Div.,

170 F.3d 411, 414 (a Cir. 1999) ..ccceescccccesscoces 8,9

Good Samaritan Hosp. v. Shalala, 508 U.S. 402,

409, 113 S. Ct. 2151, 2157,

124 L.Ed.2d 368 (1992).........scccccceeceseccescccoees 10

Harris v. Forklift Systems, Inc.

510 U.S. (1993)... ....cccccceeeees 16, 17, 18, 21, 24, 25

I Lindeman & Grossman, 805-807, n.290.........0++. 19

Laughlin v. Metro. Wash. Airports Auth.,

149 F.3d 253 (4'" Cir. 1998)........ssccccssseseeeeeees 8,9

Meritor v. Vinson 477 U.S. 57 (1986)......-..+0++see0 17

Meritt v. Dillard Paper Co., 120 F.3d 1181,

1106 C22 Cie. 199 Tj n00ecereereccorenseene 7, 8, 9, 10, 12

Moylan v. Maries County, 792 F.2d 746,

T4DISO B™ Cie. UBD oonovecscrerrecsoesearvocessnseess 19

Oncale v. Sundowner Offshore Services, Inc.

523 U.S. 75 (1998).....sscccccccccccccceccccsscccsscceoess 18

-iv-

TABLE OF AUTHORITIES - Continued

Page

Pettaway v. American Cast Iron Pipe Co.,

411 F.2d 998, 1006 n.18 (5" Cir. 1969)............ 8, 10

Robinson v. Shell Oil Co. 117 S. Ct. 843,

BOG (9997). ccceccccsrccccccveveccnsescvesseccscscececessessess 8

Ross v. Communications Satellite Corp.,

759 F.2d 355, 365 (4 Cir. 1985).........eseceeeees 9,14

United States v. Gonzales, 520 U.S. 1;

117 S. Ct. 1032, 1035, 137 L.Ed. 2d 132 (1997).....10

United States v. Labonte, 520 U.S. 751;

117 S. Ct. 1673, 1677, 137

ee Hl. BE BOGE CAST Tpecccccccccecccvcvccessvenesessccces 10

United States v. Ron Pair Entérprises, Inc.,

GED UB. 255, BOD CPE eo svvcccccscvecencecccssscncccssses 8

Statutes:

G2 UB. FERRO BOE ec cvescvsesscccncesscectcesscsss 16, 25

42 U.S.C. 2ZO0D|-3(a)...cccccccccccccccee 6, 7, 12, 13, 14, 15

Miscellaneous:

Internal Revenue Manual — Part X —

Inspection (10)200 SubSection (10)213

Determining Audit Coverage,

Last amended 8/20/1986..........ccccccsccseseccccceees 21

Norman J. Singer, Sutherland Statutes and

8

Statutory Construction 46.01 (5" ed. 1992)............

STATEMENT OF THE CASE

Mr. Twisdale, the Plaintiff, filed a complaint and demand

for jury trial on May 26, 2000, bringing an action as redress

for Title VII claims for discrimination, hostile work

environment and retaliation. The Appellee filed its answer

to Twisdale’s complaint on August 29, 2000. On April 9,

2001, the Defendant’s Motion for Summary Judgement and

accompanying documents were filed. Twisdale’s Response

Brief in opposition to Defendant’s Motion for Summary

Judgement and accompanying documents were filed on

October 17, 2001, and the Appellee’s Reply Brief in Support

of Defendant’s Motion for Summary Judgement and

accompanying documents were filed on December 17, 2001.

On February 27, 2002, the District court granted the

Defendant’s Motion for Summary Judgement on both of Mr.

Twisdale’s claims. On the same day the district court

entered final judgement in favor of the Appellee Paul H.

O’Neill. On March 22, 2002, Mr. Twisdale timely filed a

Notice of Appeal.

On July 11, 2002, Mr. Twisdale filed his Appeal Brief with

the Seventh Circuit. On August 12, 2002 the Defendant-

Appellee filed their Response Brief. Then on August 23,

2002 Plaintiff-Appellant filed his Reply Brief.

On April 10, 2003, the Seventh Circuit affirmed the

District Court’s judgement.

SUMMARY OF THE FACTS

Mr. Twisdale, the Plaintiff (Twisdale), a White male began

his career working for the Internal Revenue Service (IRS) in

July 1981 as a GS-7 Revenue Agent. Twisdale was

promoted three times from 1982 to 1986, resulting in a GS-

12 Revenue Agent status. Between 1987 and 2000 Twisdale

.

qo inl

served the IRS in the following progressive responsible

positions: Examination Group Manager as a GM-13, GM-14

Senior Regional Analyst, GM-14 Supervisory Regional

Team Leader, GM-14 Field Examination Branch Chief, and

GM-14 Quality Measurement Branch Chief. From 1994 to

2000 Twisdale has spent his career in the Indiana District in

Indianapolis, Indiana. In 1997 James Rogers, (Rogers)

African-American male became District Director in the

Indiana District.

In his capacity as a second level supervisor, Twisdale

signed off on Barry Madison’s (B. Madison), an African-

American female, evaluation rating her all 3’s which is fully

successful. The Evaluation was initiated by B. Madison’s

immediate supervisor, Mary Lue Graham, a White female.

B. Madison filed a charge of discrimination against her

immediate supervisor, for giving her an evaluation less than

what she expected. It was stated by Rogers that B. Madison

had implicated Twisdale as a “discriminating officiai.”

Twisdale participated as a witness in the EEO investigation

since he approved the evaluation and also participated as a

supervisor charged with resolving the complaint. Unable to

resolve the complaint, the matter was elevated to Rogers

who did resolve it by giving B. Madison her demands.

Neither Twisdale nor Graham was ever charged with

discrimination or any other offense.

During this same period Twisdale was ordered by his

immediate supervisor, Barry Whaley, White male, to

investigate B. Madison for alleged acts of misconduct. The

investigation resulted in Twisdale issuing B. Madison a letter

of counseling for lying.

Then on February 10, 1998 Rogers held an impromptu

senior staff meeting and ordered Twisdale to attend and

address why he was investigating B. Madison. Rogers who

a@

is 3 levels senior to Twisdale, insisted the investigation of B.

Madison was not necessary. Rogers learned of the

investigation directly from B. Madison earlier that day which

prompted the meeting.

The next day Twisdale was ordered to meet with Gayle

Morin (Morin) a White female and the Assistant District

Director, Rogers’s immediate subordinate and ordered

Twisdale to continue the investigation.

Then on March 11, 1998 Twisdale was notified by his

acting supervisor that Rogers had ordered him to reassign all

the employees in Twisdale’s Disclosure Office. This is the

same office that B. Madison worked in. An explanation was

not provided. Rogers admits that at the time he ordered the

reassignment of all of Twisdale’s Disclosure Office

personnel he had no problem with any of the people in that

Office. The reassignments, however, were never carried out.

Then on April 10, 1998 Twisdale was informed that

Rogers had ordered the internal audit of the Disclosure

Office citing alleged privacy act violations. The audit was a

“Single Office Audit” as defined by the IRS Internal

Revenue Manual and required Regional Commissioner

approval. There was no evidence that approval was ever

asked for or provided prior to the audit taking place.

Furthermore, the audit was executed despite a positive

routine Regional review of the same office only months

earlier. This was the first and only “Single Office Audit”

ever requested by Rogers and ever performed in the Indiana

District. Rogers acknowledged that there had been a recent

review of the Disclosure Office at the time of the Internal

Audit. He did not recall studying the prior report which was

complementarily of Twisdale. Rogers admits to not having

any conversation with Twisdale’s immediate supervisor

about any major problems in the disclosure function or his

intentions to order an Internal Audit. Rogers never made a

Rs

claim that the Disclosure Office was not operating at a high

quality manner. Rogers never discussed his request for the

Internal Audit with his supervisor. Rogers had no specific

information about the Disclosure Office that would have

prompted him to request the audit. Results of the audit were

very good and vindicated Twisdale of any Privacy Act

violations.

Twisdale, on May 11, 1998 initiated a forma! request for

EEO Counseling citing “Working Conditions.” The

Counseling went to a formal request for an investigation on

July 24, 1998 citing discrimination because of Race and

Color. The Complaint was modified on August 17, 1998 to

include “Retaliation”.

On March 10, 1998 Twisdale issued a memorandum of

counseling to B. Madison for lying. In June or July 1998

Mary Murphy, (Murphy) African-American female,

Twisdale’s new immediate supervisor had the memorandum

withdrawn at the request of B. Madison through an Agency

Grievance Process. Counseling memorandums are to remain

on file for two years. Murphy acknowledged that E.

Madison lied but still removed the memorandum.

Then on April 16, 1998 Twisdale was informed his

Problem Resolution Program in his Quality Branch was to be

reviewed. The review like the internal audit was

unprecedented in the history of the District. Three

subordinate managers were used to conduct the review.

Twisdale rebuts the review report on July 9, 1998 citing

disregarded _ directives, insubordination, —_ untruthful

statements, inaccuracies and protocol violations. Despite the

documented concerns the report was never officially

withdrawn.

On August 5, 1998 Twisdale initiated the formal request

for EEO Counseling citing “Harassment.” The Counseling

oe

went to a formal request for an investigation on October 17,

1998 citing discrimination because of “Race”, “Color” and

“Retaliation”.

During 1998, 1999 and 2000 Twisdale sought employment

with other Government agencies as well as employment in

other locations within the IRS.

On November 19, 1998 Everette Madison, (E. Madison) a

senior supervisor who is African-American and husband to

B. Madison alleged in a memorandum to Twisdale’s

supervisor, Murphy, and the IRS Inspection Service that

Twisdale took IRS records, caused a serious breach of

security, abused his managerial authority and made an

unauthorized disclosure. This resulted in a criminal

investigation and Twisdale’s subsequent clearance.

On March 18, 1999 Twisdale initiated the formal request

for EEO Counseling citing “Harassment and Working

Conditions.”

In December 1998 Murphy reassigned the Disclosure

Office away from Twisdale and reduced his management

span of control by 50%. Murphy did not provide any

compensating resources or programs.

On August 2, 1999 Twisdale submitted a memorandum

complaining about continued acts of retaliation from another

employee. This resulted in his immediate removal from his

only acting assignment.

From June 22, 1998 through March 17, 2000 Twisdale was

bypassed 156 times for acting Division Chief assignments in

favor of 10 actors that did not possess the same permanent

grade, experience and promotability as him. In fact, all 10

people were not promotable to the GS-15 level which is the

level of a Division Chief.

On September 9, 1999 Twisdale initiated the formal

request for EEO Counseling citing “Working Conditions.”

The Counseling went to a formal request for an investigation

on November 2, 1999 citing “Retaliation”.

Twisdale was treated for colitis on August 26, 1998,

November 3, 1998 and again on January 29, 1999. His

Colitis is triggered by stress that can not be resolved, stress

that appears to have no end.

From 1998 to 2000 Twisdale served on 4 committees or

taskforces. He also received an automatic bonus that when

along with his performance rating. In May 2000 Twisdale

was selected for a promotion to the GS-15 level through a

competitive process. None of the alleged discriminating

officials were involved in Twisdale’s selection.

INTRODUCTION AND SUMMARY OF ARGUMENT 1

Employees who participate in an EEOC investigation have

long enjoyed the protection against retaliation offered by 42

U.S.C. 2000e-3(a). This is because the law is very specific

and provides a shield from reprisal against any employee

who “has made a charge, testified, assisted, or participated in

any manner in an investigation, proceeding, or hearing under

this subchapter” (the “participation clause”). /d. This

protection has been unconditional and unchallenged by any

Appeslate court until now. The Court below in its decision

has rewritten the law to exclude both “assisted” and “any

manner” from the statute only to insert a restrictive

interpretation. In doing so, only employees who participate

as a witness for the employee and the employee him/herself

would receive protection. Employees, who would give

testimony, assist or participate in “any manner” other than

what the Seventh Circuit has said, would do so at their peril

with no protection. The decision may appear to be a

-6-

politically correct one, designed to champion only those who

are discriminated against but it serves only to chill or prevent

the sincere and willing participation of third party witnesses,

resolution efforts by supervisors and those falsely accused of

discrimination that could bring valued testimony to help

resolve a complaint at the early stages. The ijecision stands

alone among all the Circuits and is unsupported by case law.

It also conflicts with Congressional intent.

The Court openly admits that this issue “is both clean and

novel” It also stated “we cannot find any hints in the case

law, the legislative history, interpretations by government

agencies, or scholarly commentary of any purpose of

protecting employees whose resistance to charges of

discrimination made by their coworkers provokes the

employers ire”. It is suggested that the reason this issue is

“clean and novel” is because no one has questioned

Congress’ intent because the statuary language is clear.

However, there is considerable legal analysis on the

“participation clause”. And in fact there is a 1997 Eleventh

Circuit case exactly on point with similar facts that was

decided in favor of the employee. See Meritt v. Dillard

Paper Co., 120 F.3d 1181, 1186 (11 Cir. 1997).

ARGUMENT

THE SEVENTH CIRCUIT ERRED IN

INTERPRETING AND APPLYING 42 U.S.C. 2000e-3(a)

I. LEGAL ANALYSIS

The participation clause _ prohibits employment

discrimination against an employee for “filing a charge,

testifying, assisting, or participating in an investigation,

proceeding, or hearing under this subchapter.” 42 U.S.C.

2000e-3(a) (1994). Congress, however, did not explicitly

define the terms “participat[ion] in any manner” or

“2

“investigation ...under this subchapter.” While not defined

by Congress, the term “participat[ion] in any manner” is

clear (The first step in interpreting a statute “is to determine

whether the language at issue has a plain and unambiguous

meaning with regard to the particular dispute in the case.

[The courts’] inquiry must cease if the statute language is

unambiguous and ‘the statutory scheme is coherent and

consistent’ Robinson v. Shell Oil Co. 117 S. Ct. 843, 846

(1997) (quoting United States. Ron Pair Enterprises, Inc.,

489 U.S. 235, 240 (1989); see also Norman J. Singer,

Sutherland Statutes and Statutory Construction 46.01 5" ed.

1992) (describing plain rule))). and indicates Congress’

intent to provide employees covered by Title VII with broad

retaliation safeguards. (See Clover v. Total Sys. Servs., Inc.,

176 F.3d 1346, 1353 (11" Cir.1999) (“The words

‘participate in any manner’ express Congress’ intent to

confer ‘exceptionally broad protection’ upon employees

covered by Title VII.” (quoting Pettaway v. American Cast

Iron Pipe Co., 411 F.2d 998, 1006 n.18 (5" Cir. 1969))).

“Any,” as used in congressional statutes, is not an ambiguous

term; instead “it has an expansive meaning, that is, one or

some indiscriminately of whatever kind”.... “Any” means

all. Meritt v. Dillard Paper Co., 120 F.3d 1181, 1186 (1 r

Cir. 1997). It follows that the participation clause protects

employees participating in whatever manner in an

investigation under this subchapter.” Clover, 176 F.3d at

1353. Accordingly, the Seventh Circuit has exceeded its

authority and in fact legislated new law with this decision.

The federal judiciary has long recognized the participation

clause as “essential to the machinery set up by Title VII,

(Glover v. S. Carolina Law Enforcement Div., 170 F.3d 411,

414 (4" Cir. 1999) (citing Laughlin v. Metro. Wash. Airports

Auth., 149 F.3d 253 (4 Cir. 1998)) and, accordingly,

extended “exceptionally broad protection” to these activities

under the participation clause. (Pettway, 411 F.2d at 1005).

The courts have even held that “protection [under the

-8-

participation clause] is not lost if the employee is wrong on

the merits of the charge, nor is protection lost if the contents

of the charge are malicious and defamatory as well as

wrong.” Booker, 879 F.2d at 1312. And most important,

because it relates to the instant case, the courts have held that

the participation clause applies even where a witness (like

the Plaintiff, Twisdale) does not testify or participate for the

purpose of assisting the claimant. See Merritt, 120 F.3d at

1185-89. As explained in Glover v. South Carolina Law

Enforcement Division:

This conclusion [that “participating”

employees receive unequivocal retaliation

protection] is consistent with the purpose of

the participation _ clause: Maintaining

unfettered access to Statutory remedial

mechanisms. Section 704(a)’s protections

ensure not only that employers cannot

intimidate their employees into foregoing the

Title VII grievance process, but also that

investigators will have access to the unchilled

testimony of witnesses. “Activities under the

participation clause are essential to the

machinery set up by Title VII.” Laughlin,

149 F.3d at 259 n.4 (internal quotations

marks omitted). If a witness in a Title VII

proceeding were secure from retaliation only

when her testimony met some slippery

reasonableness standard, she would surely be

less forthcoming. It follows that the

application vel non of the participation clause

Should not turn on the substance of the

testimony. See Merritt, 120 F.3d at 1185-89

(participation clause applies even where

witness does not testify for the purpose of

assisting the Claimant); see also Ross, 759

F.2d at 357 n.1 (antiretaliation provision

is

applies even where underlying discrimination

claim was not meritorious). “A protected

activity acquires a precarious status if

innocent employees can be discharged while

engaging in it, even though the employer acts

in good faith.” (Pettway, 411 F.2d at 1005).

The most compelling legal analysis that is en point with

the instant case was written by the Eleventh Circuit in the

case of Meritt v. Dillard Paper Co., 120 F.3d (11" Cir.

1997). As in the instant case the Appellant employee

testified as to his involvement on the alleged charges against

him, the manager. -The Appellee (employer) settled with the

complainant and then took disciplinary action against those

who they believe had caused the sexual harassment. The

Appellant was fired and subsequently filed a Title VII claim

of retaliation because of his participation. The District Court

used a similar reasoning as the Seventh Circuit did on the

instant case and dismissed it. The Eleventh Circuit,

however, reversed the decision with a comprehensive

analysis. Excerpts from Judge Carnes opinion:

In construing a statute we must begin, and

often should end as well, with the language of

the statute itself. See Good Samaritan Hosp.

v. Shalala, 508 U.S. 402, 409, 113 S. Ct.

2151, 2157, 124 L.Ed.2d 368 (1992); see also

Bailey v. United States, 516 U.S. 137; 116 S.

Ct. 501, 506, 133 L.Ed. 2d 472 (1995). As

the Supreme Court has admonished, “We

have stated time and again that courts must

presume that a legislature says in a statute

what it means and means in a statute what it

says there.” Connecticut Nat’l Bank v.

Germain, 503 U.S. 249, 253-54, 112 S. Ct.

1146, 1149, 117 L.Ed. 2d 391 (1992); see

_also, e.g., United States v. Labonte, 520 U.S.

>

Sa

ee Ratt

751; 117 S. Ct. 1673, 1677, 137 L. Ed. 2d

1001 (1997) (“We do not start from the

premise that this language is imprecise.

Instead, we assume that in drafting this

legislation, Congress said what it meant.”).

“When the words of a statute are

unambiguous, then, this first canon [of

statutory construction] is also the last: judicial

inquiry is complete.” Connecticut Nat’l Bank

v. Germain, 503 U.S. at 254, 112 S. Ct. at

1149 (internal quotation marks omitted).

The anti-retaliation ~ _ provision is

straightforward and expansively written.

Congress chose the language “testified” and

“participated in any manner” to express its

intent about the activity to be protected

against retaliation. The word “testified” is not

preceded or followed by any restrictive

language that limits its reach. As to

“participated in any manner, “the adjective

“any” is not ambiguous; it has a well

established meaning. Earlier this year, the

Supreme Court explained, “Read naturally,

the word “any’ has expansive meaning, that

is, “one or some indiscriminately of whatever

kind.’ “United States v. Gonzales, 520 U.S. 1;

117 S. Ct. 1032, 1035, 137 L.Ed. 2d 132

(1997) (citation omitted). Here, as in

- Gonzales, “Congress did not add any

language limiting the breath of that word,” so

“any” means all. See id.

... The district court thought that Title VII’s

anti-retaliation provision does not cover an

involuntary witness who is opposed to the

claimant’s position, because that provision

ee

rn

was designed to protect those who “aid” and

“assist” Title VII claimants. There are two

insurmountable problems with that reasoning.

First, whatever design might be perceived

behind the provision, the actual design put

forward through the language of the provision

does not require that the testimony or other

participation aid or assist the claimant.

Instead of making assistance to the claimant a

prerequisite for protection against retaliation,

Congress chose to make assistance only one

of four alternative means of qualifying for

such protection. Congress __ prohibited

retaliation against anyone who “made a

charge, testified, assisted, or participated in

any manner.” 42 US.C. 20000e-3(a)

(emphasis added). Under the plain language

of the provision, those who testify or

otherwise participate in a Title VII proceeding

are protected from retaliation for having done

so, even if it turns out they were not of any

assistance to the Title VII claimant.

In the instant case the court below raised a concern that a

literal interpretation of the protection statute could not

promote the policy of Title VII. The district court in Meritt

v. Dillard Paper Co., also put forth two arguments, one

similar to the Seventh Circuit’s. Both were dismissed by the

Eleventh Circuit. The first argument cites the consequences

of such a broad interpretation. Arguing, same as the Seventh

Circuit, that it» »uld place employers on dangerous ground

when disciplining employees who have engaged in a Title

VII violation discovered through participation in a EEOC

investigation. The second argument is that a broad

interpretation would inundate the federal judiciary with

lawsuits. The Eleventh Circuit’s response to the first

argument:

12.

eee ey ee ee ee ee ees

“*... Such policy concerns cannot alter our

interpretation and application of clear

Statutory language. ... This is not a case

where the absurd results principle is

operative, because we cannot say that

application of the plain meaning of the anti-

retaliation provision’s language produces an

absurd result.”

Response to the second argument:

“For good or ill, Congress has decided that

individuals who have “testified, assisted, or

participated in any manner” in a Title VII

proceeding are entitled to protection from

retaliation because of that participation, and

we must make room on our dockets for any

resulting cases.”

Now, regarding the assistance Twisdale provided during

the investigation. The undisputed material facts Clearly

document Twisdale’s efforts to resolve the Complaint. And

as a supervisor it was his responsibility to do just that. This

assistance as it relates to Section 2000e-3(a) would also

protect him. The Seventh Circuit is silent in this matter

rather focusing on Twisdale’s participation in providing

testimony. Twisdale’s efforts in providing testimony and his

attempt to resolve the complaint can be labeled nothing but

assistance. Removing this protection from supervisors, EEO

officials, Labor Relation’s officials, innocent witnesses, etc.

would only create a greater number of complaints reaching

the court system because there would be fewer resolutions

during the administrative stages.

ete

Il. FLAWED HYPOTHETICAL

The court below used a hypothetical example to illustrate

its legal position. It stated, supposing Twisdale after

participating in an investigation and opposing the charge of

discrimination on another employee was fired because he

was a racist and a sexist. The court than claims Twisdale

would then be entitled to reinstatement under a literal

reading of the statute. This according to the Seventh Circuit

would be a “perverse” interpretation.

This example when further scrutinized presents several

flaws. First, this statute alone is insufficient for

reinstatement. Yes, Twisdale would have established a

prima facie case by showing he was engaged in a protected

activity, that he suffered an adverse employment action and

that the two were causally related. See Ross v.

Communications Satellite Corp., 759 F.2d 355, 365 (4" Cir.

1985). However, he would not automatically be reinstated as

claimed by the court. Twisdale would still have to show that

the adverse action taken against him was for non legitimate

business purposes. The burden of showing pretext is on the

Plaintiff. Second, it would leave vulnerable employees that

are falsely accused of discrimination and_ therefore

unprotected by the statute via their participation. For

example, an innocent employee could be drawn into a Title

VII claim through a false accusation of discrimination. The

employer could use the results of that investigation to initiate

an adverse action against the innocent employee. Title VII

law should not be a single edge sword. It must cut both

ways to ensure the protection of all. See Meritt v. Dillard

Paper Co., Third, and most important is the effect on

witness testimony. Why would any employee or supervisor

be forthcoming and cooperate not knowing if they will be

offered protection under 42 U.S.C. 2000e-3(a).

«th.

It is submitted that this hypothetical, which is the basis of

the Seventh Circuit’s decision is flawed. The outcome of

this example would not produce the desired results as

intended by Congress.

lil. PLAINTIFF STILL BECOMES “PROTECTED”

WHEN HE FILES HIS EEO COMPLAINT

In the event the Seventh Circuit’s interpretation of 42

U.S.C. 2000e-3(a) is deemed correct, the Plaintiff would

have become protected when he filed his first complaint on

May 11, 1998. Accordingly, all alleged acts of harassment

subsequent to that date would be considered as retaliation.

These acts would include removal of the counseling

memorandum, the criminal investigation, removal of the

Disclosure Office and related programs and responsibilities

denied developmental acting assignments and treatment for

the colitis condition. The Seventh Circuit never considered

the Plaintiff's EEO corzplaint filings in its decision.

IV. CONCLUSION

For the foregoing reasons, the judgement of the Seventh

| Circuit should be reversed and the case remanded for trial.

INTRODUCTION AND SUMMARY OF ARGUMENT 2

What makes this case unique is the embedded issue that

subsequent “rewards” experienced by the plaintiff after a

series of harassing actions “cancel”, according to the court

below, “in any objective assessment” and, “any

unpleasantness” suffered. So what the Seventh Circuit has

said is if a man should break another mans arm deliberately

and receives joy in watching the suffering but then pays for

the doctors’ bills, all should be forgiven and forgotten. The

-15-

_ ———e

injured man was made whole because of the paid medical

bills or any other subsequent compensating act.

This reasoning leaves no room for accountability,

discouragement of such behavior, and restitution for the

suffering. If such actions were to be allowed then employers

could engage in disparate treatment as long as the employee

could withstand the harassment long enough to enjoy an

employer offered compensation or “reward”. And who is to

say what qualifies as compensation or “rewards”. A cycle of

harassment could continue with no recourse. Endorsement

of such a policy would not serve the interest of Title VII.

What if an employee after suffering a hostile work

environment is then promoted. Does the promotion negate

the suffering? The High Court has already decided it does

not. In Burlington Industries “Ellerth refused all of Slowik’s

advances, yet suffered no tangible retaliation and was, in

fact, promoted once.” This is no different from the Plaintiff's

case.

Just as interesting, the court below has either increased the

threshold for “severe or pervasive” to an impossible level

inconsistent with Harris v. Forklift Systems, Inc. 510 U.S.

(1993) or failed to truly consider all the facts in the light

most favorable to the Plaintiff. Several of these acts of

harassment were specifically engineered to result in the

Plaintiff's incarceration or termination.

The Plaintiff endured 10 objective acts of harassment

during a 26 month period that created an unbearable work

environment that caused him to seek other employment both

outside the IRS and within the organization as a means for

escape. The Plaintiff, a 20 year veteran of the IRS with a

family to support had no other option but to endure the

harassment. All of these actions when viewed in their

totality altered the Plaintiffs “terms conditions, or privileges

of employment” (42 U.S.C. 2000e-2(a)(1).

= =

Oe

There should be no distinction between the pressures

brought to bear against the Plaintiff in this case as the same

pressures placed on an employee for sexual favors.

ARGUMENT

THE SEVENTH CIRCUIT ERRED IN

INTERPRETING AND APPLYING

42 U.S.C. 2000e-2(a)(1)

I. LEGAL GENESIS AND STANDARD F OR HOSTILE

WORK ENVIRONMENT

In Meritor v. Vinson 477 U.S. 57 (1986) the Supreme

Court held that a hostile work environment is one in which

the workplace is permeated with “discriminatory

intimidation, ridicule, and insult” so severe or pervasive

“that it alters the conditions of the victim’s employment and

creates an abusive working environment.” The Court

affirmed this standard in Harris y. Forklift Systems, Inc. 510

U.S. (1993), promulgating a two-part test to determine

whether a hostile work environment is presented under Title

VII. First the complained-of conduct must create “an

environment that a reasonable person would find hostile or

abusive.” Second, the victim must “subjectively perceive the

environment to be abusive” in order to Satisfy the

requirement that ihe conduct “actually altered the conditions

of the victim’s employment.”

In assessing whether a hostile environment exist, the facts

must be examined in their totality. The frequency and

severity of the discriminatory conduct, whether the conduct

was “physically threatening or humiliating, or a mere

offensive utterance,” and whether the conduct “unreasonabiy

interfered with an employee’s work performance” are among

the factors to be weighted. In formulating this approach, the

-17-

ee

Court’s intention was to create “a middle path between

making actionable any conduct that is merely offensive and

requiring the conduct to cause a tangible psychological

injury.” Jd. In Harris the Court observed that:

Title VII comes intc play before the

harassing conduct leads to a nervous

breakdown. A _ discriminatorily abusive

work environment, even one that does not

seriously affect employees’ psychological

well-being, can and often will detract from

employees’ job performance, discourage

employees from remaining on the job, or

keep them from advancing in their careers.

The Supreme Court further defined the contours of hostile

work environment doctrine in Oncale v. Sundowner Offshore

Services, Inc. 523 U.S. 75 (1998). It held the plaintiff could

maintain a Title VII claim based on same-sex harassment. In

doing so, the Court reiterated it’s holding in Harris that “the

objective severity of harassment should be judged from the

perspective of a reasonable person in the plaintiffs position,

considering ‘all the circumstances.””

Ii. AFFIRMATION OF THE HOSTILE WORK

ENVIRONMENT STANDARD

In two landmark decisions the Supreme Court outlined the

circumstances in which employers may be liable for sexual

harassment by superiors. Burlington Indus. V. Ellerth, 524

U.S. 765 (1998) and Faragher v. City of Boca Raton, 524

U.S. 775 (1998). It also affirmed its earlier decision in

Harris v. Forkliff Systems Inc., 510 U.S. 17 (1993), for the

standards necessary to establish a hostile work environment.

The Court ensured that the Harris standards for establishing

actionable sexual harassment are sufficiently demanding to

prevent Title VII from becoming a “general civility code.”

-18-

Regarding this concern, the Court specifically stated that

“properly applied, [lower Courts] will filter out complaints

attacking the ordinary tribulations of the work place such as

Sporadic use of language, gender related jokes and

occasional teasing.” Faragher. See also, e.g., Carrero y.

New York. City Housing Authority, 890 F.2d 569, 577-578

(2d Cir. 1989); Moylan v. Maries County, 792 F.2d 746,

749-750 (8" Cir. 1986); see also I Lindeman & Grossman,

805-807, n.290 (noting cases granting summary judgment for

employer because the alleged harassment was not

sufficiently severe or pervasive).

In Burlington the court was very clear in accepting

unfulfilled threats as a condition showing severe or pervasive

conduct sufficient to establish a hostile work environment. It

stated

For any sexual harassment preceding the

employment decision to be actionable,

however, the conduct must be severe or

pervasive. Because Ellerth’s claim involves

only unfulfilled threats, it should be

categorized as a hostile work environment

claim which requires a showing of severe or

pervasive conduct.... For purposes of this

case, we accept the District Court’s finding

that the alleged conduct was severe or

pervasive.... The case before us involves

numerous alleged threats, and we express no

opinion as to whether a single unfulfilled

threat is sufficient to constitute

discrimination in the terms or conditions of

employment.

In the instant case the Plaintiff not only was subjected to

unfulfilled threats, but several of them were actually

executed. Although the officials did not succeed in their

«

desired outcome, the execution of the threats constitutes

threats in themselves. This should be no different from

sexual harassment threats where the employee did not

succumb.

Il. CLEAR EVIDENCE OF A SEVERE SUBJECTIVE

AND OBJECTIVE HOSTILE WORK

ENVIRONMENT

It is the Plaintiff's position the acts of harassment caused

against him substantially exceed the High Court’s standard

for a hostile work environment. Sufficient evidence has

been submitted to allow a reasonable jury to conclude that

the Plaintiff was subjected to a subjective and objective

hostile work environment and that the harassment were both

sever and pervasive. The February 10, 1998 interrogation by

Rogers, an IRS executive 3 levels above Twisdale was

unprecedented. Rogers was unable to provide any similar

examples where he summoned employees three levels below

him for questioning. It can be inferred that Twisdale was

actually admonished, humiliated and intimidated by Rogers

in an attempt to stop him from investigating another A frican-

American. Interesting, the very next day Twisdale was

called into a meeting with his immediate supervisor Galye

Morin, the Assistant District Director, during which time

Morin clarified that Twisdale was to continue with the

investigation on B. Madison. A need for clarification would

not have existed without Rogers’ attempt at intimidating

Twisdale.

Then Twisdale was told all his personnel in his Disclosure

Office would be reassigned. This is the same office B.

Madison worked in. Rogers admits he had no problems with

the Disclosure Office employees. He therefore had no

business reason for such a decision. The proposed wholesale

reassignment of the entire Office supervised by Twisdale

was a threat.

90.

FO eee ee eee ee A ae pen

Mt iN a ae Sa I a a ge rc

Shortly after the threat Rogers ordered an internal audit of

the Disclosure Office claiming Privacy Act violations in

spite of the completion of a recent review which revealed no

critical issues and was complementary of Twisdale. This

was the first and only audit ever ordered by Rogers. Rogers

acknowledges the recent Regional review of the disclosure

office which resulted in no findings. Rogers admits to

having no specific information about the Office that would

have prompted him to request the audit. Rogers never

discussed his intentions to request an audit with Twisdale’s

supervisor. Rogers never studied the previous Regional

Review Report on the Office. And Rogers could not produce

any evidence of the alleged Privacy Act violation. Finally,

Rogers admits that he made an oral request directly to the

Regional Inspector for the audit which is a violation of IRS

procedures (Internal Revenue Manual — Part X — Inspection

(10)200 SubSection (10)213 Determining Audit Coverage,

Last amended 8/20/1986)) which required Regional

Commissioner approval first. Results of the audit vindicated

Twisdale of Rogers’ allegations. If Rogers had no business

purpose for the audit then it can only be labeled a “witch

hunt” or another threat. If the results were any different,

Twisdale would have surely faced an adverse action at the

design of Rogers.

These three instances happening in a very rapid sequence

and all having Rogers and B. Madison in common clearly

signaled to Twisdale that he was being targeted for

harassment because he was white. This caused him to file an

EEO complaint outlining all his fears and requesting the

harassment to stop. The filing of a complaint would surely

qualify as an event where an employee “subjectively

perceives the environment to be abusive.” See Harris v.

Forklift Systems. These same instances would also qualify

as objective evidence.

a.

As if the intimidation, threat and unauthorized audit with

no business purpose were not enough, the harassment

continued. Twisdale soon was subjected to another review.

This time they had chosen his Problem Resolution Program.

This review like the Internal Audit was not routine but rather

the exception and unprecedented. Rogers could not provide

another example of this type of review, clearly indicating

disparate treatment just like the Internal Audit. And just like

the Internal Audit this review was another “witch hunt” or

threat. Twisdale filed a rebuttal reporting disregarded

directives, insubordination, untruthful statements,

inaccuracies and protocol violations. The review and its

results caused Twisdale to file another EEO Complaint

claiming retaliation and harassment and asking for it to stop.

The review would clearly qualify as an objective act and the

subsequent filing of the second EEO complaint listing his

concerns and asking for help would qualify as subjective

perceptions.

Shortly after Murphy’s arrival she took action to grant B.

Madison’s request to have the counseling memorandum

issued by Twisdale during his investigation for lying

removed. It is IRS policy to keep such memorandums -on

file for two years. Murphy did not dispute the fact B.

Madison lied. She simply had the memorandum removed.

Such a decision with the common link of B. Madison and

Race, without a business reason to justify it can only be

viewed as a discriminatory act against Twisdale, designed to

undercut his authority and ability to function as a leader.

Then Twisdale learned of an allegation that he stole

official IRS records, caused a serious breach of security,

abused his managerial authority and made an unauthorized

disclosure. The allegation was made by B. Madison’s

husband, E. Madison. This caused the IRS Inspection

Service to conduct a criminal investigation on Twisdale.

Once again Twisdale was vindicated of any wrong doing just

6.

Se eT

like the Internal Audit and Problem Resolution Program

Review. The implications and potential outcome of a

criminal investigation is one of the most serious matters for

any employee or person to have to endure. How the Seventh

Circuit can not consider a criminal investigation as sever is

beyond the Plaintiff. The outcome of such an investigation

could have resulted in his termination or worse,

incarceration. In any event Twisdale must now live out the

balance of his career with an investigative file of his alleged

wrong doing. The court below never mentioned this act of

harassment in its decision.

At this same time Twisdale learns he is being passed over

for developmental acting assignments and that Murphy is

selecting less qualified employees and even employees

subordinate in grade over him to act in her place. In fact, it

turns out that he was passed over 156 times in favor of 10

employees that did not possess the same grade, experience

and promotability as him. Twisdale now files a third EEO

complaint again asking the organization for help to bring this

harassment to an-end. The removal of the counseling

memorandum, the criminal investigation and denied acting

assignments would clearly qualify as objective acts and the

filing of the EEO complaint a subjective act.

Then on August 2, 1999 Twisdale felt compelled to write a

memorandum to Murphy titled “Continued Acts of

Retaliation in which he alleged among other things

harassment from other employees. He specifically stated: “It

is my duty to inform you that these acts of retaliation have

had a severe impact to my job attitude, performance, health

and personal life.” Because of this memorandum Twisdale

is removed from the only acting assignment Murphy

provided him. Twisdale again files a fourth EEO Complaint

reporting the harassment and asking it to stop.

<i.

Finally, Tw.s“a:e was treated for colitis on August 26,

1998; November 3, 1998 and January 29, 1999. His colitis

was caused to flare up because of the constant hostile work

environment he had to endure. The Court below makes no

mention of this in its decision.

In Harris v. Forklift Systems the Supreme Court stated that

[w]hether an environment is “hostile” or

“abusive” can be determined only by

looking at all the circumstances. These .nay

include the frequency of the discriminatory

conduct; its severity; whether it is physically

threatening or humiliating, or a mere

offensive utterance; and whether it

unreasonably interferes with an employee’s

work performance

Clearly these acts of harassment qualify as numerous,

frequent and objective. Ten of which were documented over

a 26 month period.

The Plaintoff’s 1) filings of the four EEO complaints, 2)

feelings of fear and anxiety because of potential adverse

actions that could have resulted form either the internal

audit, review or criminal investigation, 3) fear of the

possibility of imprisonment or fines from the criminal

investigation, 4) reduced responsibilities from the reassigned

Disclosure Office, 5) humiliation in the denied acting

assignments when less qualified employees were given the

opportunity, 6) humiliation in the public internal audit and

review of his programs implying to employees that he was

incompetent and distrusted, 7) stress-related medical

problems and 8) constant interference from these audits,

reviews and investigations all of which impacted on his

ability to perform at his best. Justice Ginsburg noted in her

- 24.

concurring opinion in Harris, to show unreasonable

interference with a plaintiff's work performance,

“the plaintiff need not prove that his or

her tangible productivity has declined as a

result of the harassment.’ It suffices to

prove that a reasonable person subjected to

the discriminatory conduct would find, as

the plaintiff did, that the harassment so

altered working conditions as to ‘make it

more difficult to do the job.” 5/0 U.S. 17,

25, 114 S.Ct. 367, 126 L.Ed. 2d 295

(Ginsburg, J., concurring) (quoting Davis v.

Monsanto Chem. Co., 858 F.2d 345, 349 (6"

Cir. 1988)).

When all of the harassing events directed against the

Plaintiff are viewed in their totality, the evidence is

overwhelming and sufficient to establish severity and show a

subjective and objective hostile work environment. These

actions must fall into that “middle path” standard as defined

in Harris. All of these actions when viewed in their totality

altered the Plaintiff's “terms conditions, or privileges of

employment” (42 U.S.C. 2000e-2(a)(1).

Harassment when conducted at such a high level in an_

organization can not be compared to the more common

harassment such as name calling, unwanted sexual advances,

derogatory postings of racial insults, etc. Rather experienced

leaders who choose to engage in harassment are far more

sophisticated and less likely to use overt and simple tactics.

They will simply bring the power of the organization to bear

on the victim in a more Strategic manner. The Plaintiffs

case is a study of racial harassment conducted by an

educated and powerful employer.

~ 2

The Plaintiff does not dispute the need for audits and

reviews. He has experienced many in his career. But when

an audit, review and a criminal investigation are all initiated

by African-American supervisors against the Plaintiff and no

one else and when there is no business purpose for them, and

when they are unprecedented in nature then only one

explanation is possible. If the Plaintiff was hypersensitive

as implied by the court below he would never have

established a 20 plus career in IRS management. Rather the

Plaintiff's experience and instincts triggered an alarm that

these actions were highly suspicious. IRS employees are

trained to report ethical and conduct violations. The Plaintiff

did what he was trained and expected to do.

The question comes down to this; do these acts in there

totality represent a business environment a “reasonable

person” would want to work in? The answer must be no.

IV. BONUSES, REWARDS AND PROMOTION

The perceived “rewards” are disputed by the Plaintiff as

rewards. However, the Seventh Circuit still considered

them. The task force and committees the Plaintiff

participated on were his job responsibilities. The Plaintiff

possessed specialized skills which made him a desirable

commodity. If he had not agreed or volunteered for these

assignments it would have reflected poorly on him and

surely impacted his evaluation. Besides it is not the

Plaintiff's nature to succumb to harassment. He had to press

on and look for opportunities that could take him away from —

the hostile environment. His work ethic would not permit

self pity. He also had faith that the system to address the

alleged wrong doings would work. That is why he filed the

EEO Complaints. And the Plaintiff is a 20 year veteran who

has invested his entire career and life in the IRS. He has a

wife and 4 children that depend on him for support, health

care, education, etc. He simply had to endure the harassment

. os

as a pet dog, dependent on its owner for food, would endure

mistreatment. As for the bonuses received, these were

automatic with his annual evaluation. The Plaintiff during

his career as a second level supervisor performed at an

exceptional level. All supervisors performing at that level

received an automatic bonus. In regards to the promotion; it

was received through a competitive process that was not

controlled by the harassing officials in the Indiana District.

And as stated earlier in Burlington an employee’s promotion

did not deflect from or cancel out the harassment.

Vv. CONCLUSION

For the foregoing reasons, the judgement of the Seventh

Circuit should be reversed and the case remanded for trial.

at.

APPENDIX

Page

REPRODUCED AND REFORMATTED

SEVENTH CIRCUIT’S OPINION WITH

NAMES OF THE JUDGEG. ............cccccscccecees A-1

REPRODUCED AND REFORMATTED

ORDER/JUDGEMENT OF THE UNITED

STATES COURT OF APPEALS FOR THE

BE, Y BaEY Be CROWN E cocccevecccccconccnsescvecocceseses B-1

APPENDIX A-1 .

In The

United States Court of Appeals

For the Seventh Circuit

No. 02-1736

James B. Twisdale Plaintiff-Appellant

John W. Snow

Secretary of the Treasury, Defendant-Appellee

Appeal from the United States District Court

For the Southern District of Indiana, Indianapolis Division

No.00-C-860-Y/F-Richard L. Young, Judge.

Argued December 10, 2002 — Decided April 10, 2003

JUDGES: Before FLAUM, Chief Judge, and POSNER and

WILLIAMS, Circuit Judges.

OPINIONBY: POSNER

Opinion: POSNER, Circuit Judge. James Twisdale, an

employee of the Internal Revenue Service, brought suit

against his employer under Title VII of the Civil Rights Act

of 1964, charging that black supervisors harassed him

because he is white and retaliated against him for his

opposing a black employee. The district court granted

summary judgment for the defendant.

The pertinent facts, stripped to bedrock and viewed as

favorably to Twisdale as the record will permit (which is not

very favorab]»*, are as follows. In 1997 Twisdale was chief

of the IRS’s Quality Measurement Branch in Indianapolis;

his pay grade was GS-14. One of the employees whom he

supervised was a black woman named Barry Madison. She

~ P

Se ee a ae ee. a

APPENDIX A-1

filed a charge of employment discrimination on grounds of

race and sex with the IRS’s equal employment office. The

charge was investigated and Twisdale participated in the

investigation in various ways, for example by giving

information to the EEO investigator. [*2] Twisdale was

skeptical of Madison’s claim. Later he was instructed by his

superiors to investigate an alleged ethical violation by

Madison. He did so and determined that she had indeed

committed an ethical violation, though a minor one, and he

issued a reprimand to Madison — precipitating a charge of

discrimination by her against him. He claims that as a result

of his opposition to Madison’s claim of discrimination, as

well as his reprimanding her and being white, he was

subjected to various humiliations by his black supervisors.

The humiliations of which he complains included audits of

some of the programs that he administered, a delay in giving

him “acting supervisor” assignments, which apparently were

prized, and above all the removal from his purview of the

Disclosure Office, which had three employees and is

responsible for protecting taxpayers’ privacy, and of the

Problem Resolution Program, a program for dealing with

taxpayer complaints. Madison’s original complaint of

discrimination was eventually resolved in her favor, by there

was never a determination that Twisdale had discriminated

against her, although the IRS agreed to remove his

reprimand of her from her personnel file. [*3]

The period of harassment is alleged to have continued

through August of 1999. Yet during this period Twisdale

received generous performance-related bonuses and coveted

assignments to IRS national task forces, though he argues

that he received these assignments because the removal of

the Disclosure Office and the Problem Resolution Program

from his supervision left him with unwanted time on his

hands. The following year he was promoted to a more

responsible job at the next-higher pay level, GS-15, and

while the promotion required him to relocate to West

me

APPENDIX A-1

Virginia he had made clear in applying for the promotion

that he was willing to move and indeed he had listed 27

cities, though none in West Virginia, to which he would be

happy to transfer. He accepted the transfer to West Virginia

and remains employed by the IRS there, in a position as we

said of greater responsibility than he had in Indianapolis.

There is one legal issue that is both clean and novel, and

although the government reserved it rather than arguing it as

an alternative ground for upholding the district court’s

decision, it was thoroughly ventilated at the argument of the

appeal and being a pure issue of law we can with [*4]

propriety decide it despite its not having been briefed. See

Singleton v. Wulff, 428 U.S. 106, 121, 49 L. Ed. 2d 826, 96

S. Ct. 2868 (1976); Sestric v. Clark, 765 £.2d655, 657 (7"

Cir. 1985); Krumme v. WestPoint Stevens Inc., 238 F.3d

133, 142 (2d Cir. 2000); cf. Hill v. American General

Finance, Inc., 218 F.3d 639, 642, 645 (7" Cir. 2000).

[HN1] The provision of Title VII that concerns retaliation

forbids an employer “to discriminate against any of his

employees ... because he has made a charge, testified,

assisted, or participated in any manner in an investigation,

proceeding or hearing under “the statute, 42 U.S.C. 2000e-

3(a). (The retaliation provisions of the other principal

federal employment discrimination statutes are materially

identical. See 29 U.S.C. 623(d) (Age Discrimination in

Employment Act ); 29 U.S.C. 794(d) (Rehabilitation Act);

42 U.S.C. 12203(a) (Americans with Disabilities Act).)

Read literally, the provision protects even an employee who

like Twisdale participates in an investigation on the [*5[ side

of the employer rather than on the side of the employee who

made the charge of discrimination. Suppose hypothetically

that Twisdale had opposed Barry Madison’s charge of race

and sex discrimination because he is a racist and a sexist and

that he had been fired for having opposed her her charge. On

his view of the scope of the retaliation provision, he would

~ o

APPENDIX A-1

be entitled to reinstatement. He is claiming in effect the

absolute immunity that prosecutors and judges enjoy when

performing prosecutorial and judicial functions, respectively.

How such an interpretation could promote the policy of

Title VII is beyond us. [HN2.] The statute has the limited

purpose of preventing certain forms of discrimination. The

retaliation provision backs up this central thrust by

protecting employees who invoke the statutory machinery

for rectifying violations. We cannot find any hints in the

case law, the legislative history, interpretations by

government agencies, or scholarly commentary of any

purpose of protecting employees whose resistance to charges

of discrimination made by their coworkers provokes the

employer’s ire. Until this case, so far as we can determine,

everyone concerned in the administration of[*6.] Title VII

and cognate federal antidiscrimination statutes had assumed

that the retaliation provision was for the protection of the

discriminated against, and not their opponents. E.g.,

Robinson v. Shell Oil Co., 519 U.S. 337, 347, 136 L. Ed. 2d

808, 117 S. Ct. 843 (1997); Heuer v. Weil-McLain, 203 F.3d

1021, 1023 (7" Cir. 2000); Petersen v. Utal Dept of

Corrections, 301 F.3d 1182, 1189 (10" Cir. 2002);

Castellano v. City of New York, 142 F.3d 58, 69 (2d Cir.

1998). As in the hypothetical case we put, the employer

would be sitting on a razor’s edge if it could not discipline

employees whose opposition to discrimination charges

placed the employer in jeopardy of violating an employee’s

statutory rights.

Twisdale did participate in an investigation of a

discrimination charge, and so comes within the literal terms

of section 2000e-3(a). But awkwardly, since the first act

protected by the section is making a charge, which suggests

that the subsequent acts listed — testifying, assisting, and

participating — refer to acts in support of the charge. He

would be on solider ground if instead of “because he has

ois

a

APPENDIX A-1

~

made a charge” [*7.] the statutory words were “because he

has made our opposed a charge.” In effect he asks us to

insert the term that we have italicized. But, as we have

explained, this would merely gum up the statutory works.

[HN3} Perverse and absurd Statutory interpretations are not

to be adopted in the name of literalism; they merely show the

limitations of literalism as a mode of interpretation.

Twisdale has another string to his bow, however; for

remember that he is arguing that he was harassed on account

of his race and not just on account of his participation in the

investigation of Barry Madison’s charge of discrimination.

(His further charge that he was harassed for reprimanding

Madison seems to be a variant of his race charge. If not, it

would have no purchase in the Statute.) That claim fails too,

because the harassment of which he complains was not

severe enough to have altered the terms or conditions of his

employment. [HN4] Title VII does not create a remedy

against harassment as such; the harassment must — this

explicit in the statute — amount to discrimination “with

respect to [the employee’s] compensation, terms conditions

or privileges of employment. 42 U.S.C. 2000e-2 (a)(1)[*8].

The cases paraphrase this requirement either as a tangible

employment action, ‘that is, ‘a significant change in

employment status, such as hiring, firing, failing to promote,

reassignment with significantly different responsibilities, or a

decision causing a significant change in benefits,; or as a

‘materially adverse employment action.’’’ Hernreiter v.

Chicago Housing Authority, 315 F.3d 742. 743-44 (7" Cir.

2002) (case citations omitted); see also Clark County School

Dist v. Breeden, 532 U.S. 268, 270-71, 149 L. Ed. 2d 509,

121 S. Ct. 1508 (2001) (per curiam); Allen v. Chicago

Transit Authority, 317 F.3d 696, 701 (7" Cir. 2003); Silk v.

City of Chicago, 194 F.3d 788, 807-08 (7th Cir. 1999); Gu v.

Boston Police Dept., 312 F.3d 6, 14 (1 Cir. 2002).

APPENDIX A-1

To determine whether this requirement has been satisfied

requires consideration of the employee’s total workplace

environment; and here the performance bonuses, the task

force appointments, and the promotion to a more responsible

and better-paying job go quite far enough to cancel, in any

objective assessment, any unpleasantness that Twisdale [*9]

might have experienced because his programs were audited

and one program and three employees were removed from

his purview and he didn’t get as many acting-supervisor

assignments as he would have liked. In any event, that

unpleasantness, even if not balanced by rewards both

tangible and intangible, falls short of the level of severity

required to trigger judicial intervention under Title VII.

Twisdale emphasizes the diminution of his responsibilities;

and [HNS] it is true if paradoxical that lightening a worker’s

load can constitute actionable harassment, Dahm v. Flynn,

60 F3d 253, 256-57 (7" Cir. 1994) — but only if by depriving

him of the opportunity to maintain and improve his skills it

impedes his career see Grayson v. City of Chicago, 317 F.3d

745, 750 (7 Cir. 2003); Hernreiter V. Chicago Housing

Authority, supra, 315 F.3d at 744; Freedman v. MCI

Telecommunications Corp., 347 U.S. App. D.C. 112, 255

F.3d 840, 847-48 (D.C. Cir. 2001), which did not happen

here, as indicated by his promotion. Grayson v. City of

Chicago, supra, 317 F3d at 750. The statute does not protect

the hypersensitive[*10] employee who is not deliberately

targeted by the employer from the irritations endemic to the

employment relation. Pryor v. Seyfarth, Shaw, Fairweather

& Geraldson, 212 F.3d 976, 978 (? Cir. 2000); Andrews v.

City of Philadelphia, 895 F.2d 1469, 1483 (3d Cir. 1990).

APPENDIX B-1

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

JUDGEMENT — WITH ORAL ARGUMENT

—

Date: April 10, 2003

Before: Honorable Joel M. Flaum, Chief Judge

Honorable Richard A. Posner, Circuit Judge

Honorable AnnClaire Williams, Circuit Judge

No. 02-1736

James B. Twisdale

Plaintiff — Appellant

V.

John W. Snow, Secretary of the United

States Department of the Treasury,

Defendant — Appellee

Appeal from the United States District Court for the

Southern District of Indiana, Indanapolis Division No. 00 C

860, Richard L. Young, Judge

The Judgement of the District Court is AFFIRMED, with

costs, in accordance with the decision of this court entered

on this date.

(1061-110393)