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National Employment Lawyers’
Association
Fall 2008 Seminar
Chicago, Illinois
October 17-18, 2008
Representing Workers in Harassment & Retaliation Claims: U.S. Supreme
Court Takes on Retaliation Actions
By Richard T. Seymour*
*Law Office of Richard T. Seymour, P.L.L.C., 1150 Connecticut
Avenue N.W., Suite 900, Washington, D.C. 20036-4129. Telephone: 202-862-4320.
Cell: 202-549-1454. Facsimile: 800-805-1065. e-mail: rick@rickseymourlaw.net. Some
of the information in this paper is used with permission from an upcoming
edition of Richard T. Seymour and John F. Aslin, Equal Employment Law
Update (Bureau of National Affairs, Washington, D.C., 2006), copyright
© American Bar Association, 2006. For copies, contact BNA at 1-800-960-1220;
members of the Labor and Employment Law Section are entitled to a 25%
discount as a benefit of Section membership. Mention priority code EQL
in order to receive the discount.
This paper can be downloaded from www.rickseymourlaw.com.
Many of my other CLE papers are also downloadable from this site.
Table of Contents
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A. The
Background: Recent Retaliation Decisions of the Supreme Court |
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1. Clark
County School District and Protected Activity |
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Clark County School District v.
Breeden, __ U.S. __, 121 S. Ct. 1508,
85 |
FEP Cases 730 (2001) (per curiam), rejected the plaintiff’s
claim of retaliation for having complained about a single remark made by
a co-worker with respect to a sexually-related statement made by an applicant
she and the other team members were reviewing, and her supervisor’s
chuckle over the remark. The Court held that, even assuming arguendo
the correctness of the Ninth Circuit’s holding that a plaintiff is
protected by Title VII’s retaliation clause if she reasonably believes
the conduct she complained about was a violation of Title VII, no one could
reasonably believe that the conduct here was in violation of Title VII:
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No reasonable person could have believed
that the single incident recounted above violated Title VII’s
standard. The ordinary terms and conditions of respondent’s
job required her to review the sexually explicit statement in the
course of screening job applicants. Her co-workers who participated
in the hiring process were subject to the same requirement, and
indeed, in the District Court respondent “conceded that it
did not bother or upset her” to read the statement in the
file. . . . Her supervisor’s comment, made at a
meeting to review the application, that he did not know what the
statement meant; her co-worker’s responding comment; and the
chuckling of both are at worst an “isolated inciden[t]”
that cannot remotely be considered “extremely serious,”
as our cases require |
The Court also held that there was no evidence of a causal link between
the defendant’s learning of the plaintiff’s EEOC charge and
her transfer four months later. “Employers need not suspend
previously planned transfers upon discovering that a Title VII suit has
been filed, and their proceeding along lines previously contemplated, though
not yet definitively determined, is no evidence whatever of causality.”
The Court also stated:
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The cases that accept mere
temporal proximity between an employer’s knowledge of protected
activity and an adverse employment action as sufficient evidence
of causality to establish a prima facie case uniformly hold that
the temporal proximity must be “very close,” O’Neal
v. Ferguson Constr. Co., 237 F.3d 1248, 1253 (C.A.10 2001). See
e.g., Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (C.A.10 1997) (3-month
period insufficient); Hughes v. Derwinski, 967 F.2d 1168, 1174-1175
(C.A.7 1992) (4-month period insufficient). Action taken (as here)
20 months later suggests, by itself, no causality at all. |
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2. Burlington
Northern and Actionable Conduct |
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Burlington Northern and Santa Fe
Ry. Co. v. White, __ U.S. __, 126 S. Ct. 2405,
165 L. Ed. 2d 345, |
98 FEP Cases 385 (2006), affirmed the judgment on a jury verdict for the
Title VII retaliation plaintiff. The Court held that the language
and purpose of § 704(a) of the Act required that it reach employer
conduct not reached by § 703(a). It stated that “purpose
reinforces what language already indicates, namely, that the anti-retaliation
provision, unlike the substantive provision, is not limited to discriminatory
actions that affect the terms and conditions of employment.”
Id. at 2412–13. The Court summarized its holding:
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We conclude that the anti-retaliation
provision does not confine the actions and harms it forbids to those
that are related to employment or occur at the workplace. We also
conclude that the provision covers those (and only those) employer
actions that would have been materially adverse to a reasonable
employee or job applicant. In the present context that means that
the employer’s actions must be harmful to the point that they could
well dissuade a reasonable worker from making or supporting a charge
of discrimination. |
Id. at 2409. The Court rejected the “ultimate
employment decision” line of cases, stating:
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In any event, as we have
explained, differences in the purpose of the two provisions remove
any perceived “anomaly,” for they justify this difference
of interpretation. . . . Title VII depends for its enforcement upon
the cooperation of employees who are willing to file complaints
and act as witnesses. “Plainly, effective enforcement
could thus only be expected if employees felt free to approach officials
with their grievances.” . . . Interpreting the anti-retaliation
provision to provide broad protection from retaliation helps assure
the cooperation upon which accomplishment of the Act’s primary
objective depends. |
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For these reasons, we conclude
that Title VII’s substantive provision and its anti-retaliation
provision are not coterminous. The scope of the anti-retaliation
provision extends beyond workplace-related or employment-related
retaliatory acts and harm. We therefore reject the standards
applied in the Courts of Appeals that have treated the anti-retaliation
provision as forbidding the same conduct prohibited by the anti-discrimination
provision and that have limited actionable retaliation to so-called
“ultimate employment decisions.” |
Id. at 2414. The Court’s holding is:
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The anti-retaliation provision
protects an individual not from all retaliation, but from retaliation
that produces an injury or harm. As we have explained,
the Courts of Appeals have used differing language to describe the
level of seriousness to which this harm must rise before it becomes
actionable retaliation. We agree with the formulation
set forth by the Seventh and the District of Columbia Circuits.
In our view, a plaintiff must show that a reasonable employee would
have found the challenged action materially adverse, “which
in this context means it well might have ‘dissuaded a reasonable
worker from making or supporting a charge of discrimination.’” |
Id. at 2414–15. The Court made clear that materiality
was an important criterion:
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We speak of material
adversity because we believe it is important to separate significant
from trivial harms. Title VII, we have said, does not set
forth “a general civility code for the American workplace.”
. . . An employee’s decision to report discriminatory behavior
cannot immunize that employee from those petty slights or minor
annoyances that often take place at work and that all employees
experience. See 1 B. Lindemann & P. Grossman, Employment
Discrimination Law 669 (3d ed.1996) (noting that “courts have
held that personality conflicts at work that generate antipathy”
and “‘snubbing’ by supervisors and co-workers”
are not actionable under § 704(a)). The anti-retaliation
provision seeks to prevent employer interference with “unfettered
access” to Title VII’s remedial mechanisms. . . . It
does so by prohibiting employer actions that are likely “to
deter victims of discrimination from complaining to the EEOC,”
the courts, and their employers. . . . And normally petty slights,
minor annoyances, and simple lack of good manners will not create
such deterrence. See 2 EEOC 1998 Manual § 8, p.
8–13. |
Id. at 2415 (emphasis in original; citations omitted).
The Court expanded on the application of this standard to particular cases,
making clear that there are few, if any, bright-line tests:
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We phrase the standard in
general terms because the significance of any given act of retaliation
will often depend upon the particular circumstances. Context
matters. “The real social impact of workplace behavior
often depends on a constellation of surrounding circumstances, expectations,
and relationships which are not fully captured by a simple recitation
of the words used or the physical acts performed.” . . . A
schedule change in an employee’s work schedule may make little
difference to many workers, but may matter enormously to a young
mother with school age children. . . . A supervisor’s refusal
to invite an employee to lunch is normally trivial, a nonactionable
petty slight. But to retaliate by excluding an employee
from a weekly training lunch that contributes significantly to the
employee’s professional advancement might well deter a reasonable
employee from complaining about discrimination. See
2 EEOC 1998 Manual § 8, p. 8-14. Hence, a
legal standard that speaks in general terms rather than specific
prohibited acts is preferable, for an “act that would be immaterial
in some situations is material in others.” . . . |
Id. at 1215–16 (citations omitted). Here, plaintiff
was assigned to a more arduous position, and was suspended without pay for
37 days, although she ultimately received back pay for this period.
The Court held that each was actionable:
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First, Burlington argues
that a reassignment of duties cannot constitute retaliatory discrimination
where, as here, both the former and present duties fall within the
same job description. . . . We do not see why that is so.
Almost every job category involves some responsibilities and duties
that are less desirable than others. Common sense suggests
that one good way to discourage an employee such as White from bringing
discrimination charges would be to insist that she spend more time
performing the more arduous duties and less time performing those
that are easier or more agreeable. That is presumably why
the EEOC has consistently found “[r]etaliatory work assignments”
to be a classic and “widely recognized” example of “forbidden
retaliation.” 2 EEOC 1991 Manual § 614.7,
pp. 614-31 to 614-32; see also 1972 Reference Manual §
495.2 (noting Commission decision involving an employer’s
ordering an employee “to do an unpleasant work assignment
in retaliation” for filing racial discrimination complaint);
EEOC Dec. No. 74-77, 1974 WL 3847, *4 (Jan. 18, 1974) (“Employers
have been enjoined” under Title VII “from imposing unpleasant
work assignments upon an employee for filing charges”). |
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To be sure, reassignment
of job duties is not automatically actionable. Whether
a particular reassignment is materially adverse depends upon the
circumstances of the particular case, and “should be judged
from the perspective of a reasonable person in the plaintiff’s
position, considering ‘all the circumstances.’”
. . . But here, the jury had before it considerable evidence that
the track labor duties were “by all accounts more arduous
and dirtier”; that the “forklift operator position
required more qualifications, which is an indication of prestige”;
and that “the forklift operator position was objectively considered
a better job and the male employees resented White for occupying
it.” . . . Based on this record, a jury could reasonably conclude
that the reassignment of responsibilities would have been materially
adverse to a reasonable employee. |
Id. at 2416–17 (citation omitted). Turning to
the suspension, the Court stated:
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Second, Burlington argues
that the 37-day suspension without pay lacked statutory significance
because Burlington ultimately reinstated White with backpay.
Burlington says that “it defies reason to believe that Congress
would have considered a rescinded investigatory suspension with
full back pay” to be unlawful, particularly because Title
VII, throughout much of its history, provided no relief in an equitable
action for victims in White’s position. . . . |
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We do not find Burlington’s
last mentioned reference to the nature of Title VII’s remedies
convincing. After all, throughout its history, Title VII has
provided for injunctions to “bar like discrimination in the
future” . . . an important form of relief. . .
. And we have no reason to believe that a court could not have issued
an injunction where an employer suspended an employee for retaliatory
purposes, even if that employer later provided backpay. In
any event, Congress amended Title VII in 1991 to permit victims
of intentional discrimination to recover compensatory (as White
received here) and punitive damages, concluding that the additional
remedies were necessary to “‘help make victims whole.’”
. . . We would undermine the significance of that congressional
judgment were we to conclude that employers could avoid liability
in these circumstances. |
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Neither do we find convincing
any claim of insufficient evidence. White did receive
backpay. But White and her family had to live for 37 days
without income. They did not know during that time whether
or when White could return to work. Many reasonable employees
would find a month without a paycheck to be a serious hardship.
And White described to the jury the physical and emotional hardship
that 37 days of having “no income, no money” in fact
caused. 1 Tr. 154 (“That was the worst Christmas I had
out of my life. No income, no money, and that made all of
us feel bad. . . . I got very depressed”). Indeed, she
obtained medical treatment for her emotional distress. A reasonable
employee facing the choice between retaining her job (and paycheck)
and filing a discrimination complaint might well choose the former.
That is to say, an indefinite suspension without pay could well
act as a deterrent, even if the suspended employee eventually received
backpay. . . . Thus, the jury’s conclusion that the 37-day
suspension without pay was materially adverse was a reasonable one. |
Id. at 2417–18 (citations omitted). The Court
held that the eventual recovery of back pay for a 37-day unpaid suspension
did not mean it was not a material injury to plaintiff. In the course
of its discussion, the Court stated in dictum: “And we have
no reason to believe that a court could not have issued an injunction where
an employer suspended an employee for retaliatory purposes, even if that
employer later provided backpay.”
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Second, Burlington argues
that the 37-day suspension without pay lacked statutory significance
because Burlington ultimately reinstated White with backpay.
Burlington says that “it defies reason to believe that Congress
would have considered a rescinded investigatory suspension with
full back pay” to be unlawful, particularly because Title
VII, throughout much of its history, provided no relief in an equitable
action for victims in White’s position. . . . |
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We do not find Burlington’s
last mentioned reference to the nature of Title VII’s remedies
convincing. After all, throughout its history, Title VII has
provided for injunctions to “bar like discrimination in the
future” . . . an important form of relief. . .
. And we have no reason to believe that a court could not have issued
an injunction where an employer suspended an employee for retaliatory
purposes, even if that employer later provided backpay. In
any event, Congress amended Title VII in 1991 to permit victims
of intentional discrimination to recover compensatory (as White
received here) and punitive damages, concluding that the additional
remedies were necessary to “‘help make victims whole.’”
. . . We would undermine the significance of that congressional
judgment were we to conclude that employers could avoid liability
in these circumstances. |
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Plaintiffs will use this statement in
seeking preliminary injunctions in some EEO and retaliation cases,
to rebut the common perception among lower-court judges that the
availability of back pay years later makes such relief unnecessary.
|
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Justice Alito concurred in the judgment.
Id. at 2418–22. |
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CBOCS West, Inc. v. Humphries,
__ U.S. __, 128 S. Ct. 1951, 170 L. Ed. 2d 864,
103 |
FEP Cases 481 (2008), held that § 1981 applies to retaliation claims
in employment discrimination cases. The court expressly rejected defendant’s
argument based on the Civil Rights Act of 1991:
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Second, CBOCS argues that Congress,
in 1991 when it reenacted § 1981 with amendments, intended
the reenacted statute not to cover retaliation. CBOCS rests this
conclusion primarily upon the fact that Congress did not include
an explicit antiretaliation provision or the word “retaliation”
in the new statutory language-although Congress has included explicit
antiretaliation language in other civil rights statutes. See, e.g.,
National Labor Relations Act, 29 U.S.C. § 158(a)(4); Fair Labor
Standards Act of 1938, 29 U.S.C. § 215(a)(3); Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a); Age Discrimination
in Employment Act of 1967, 29 U.S.C. § 623(d); Americans with
Disabilities Act of 1990, 42 U.S.C. §§ 12203(a)-(b);
Family and Medical Leave Act of 1993, 29 U.S.C. § 2615. |
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We believe, however, that the circumstances
to which CBOCS points find a far more plausible explanation in the
fact that, given Sullivan and the new statutory language
nullifying Patterson, there was no need for Congress to
include explicit language about retaliation. After all, the 1991
amendments themselves make clear that Congress intended to supersede
the result in Patterson and embrace pre- Patterson
law. And pre- Patterson law included Sullivan.
See Part II, supra. Nothing in the statute's text or in
the surrounding circumstances suggests any congressional effort
to supersede Sullivan or the interpretation that courts
have subsequently given that case. To the contrary, the amendments'
history indicates that Congress intended to restore that interpretation.
See, e.g., H.R.Rep. No. 102-40, at 92 (noting that §
1981(b) in the “context of employment discrimination . . .
would include . . . claims of . . . retaliation”). |
Id. at 1959-60. The Court also rejected defendant’s
argument as to the scope of the right to be free from retaliation:
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We agree with CBOCS that
the statute's language does not expressly refer to the claim of
an individual (black or white) who suffers retaliation because he
has tried to help a different individual, suffering direct racial
discrimination, secure his § 1981 rights. But that fact alone
is not sufficient to carry the day. After all, this Court has long
held that the statutory text of § 1981’s sister statute,
§ 1982, provides protection from retaliation for reasons related
to the enforcement of the express statutory right. |
Id. at 1958 (emphasis in original). Justice Thomas,
joined by Justice Scalia, dissented. Id. at 1961-70.
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4. Gomez-Perez
and the Federal-Sector ADEA |
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Gomez-Perez v. Potter, __ U.S.
__, 128 S. Ct. 1931, 170 L. Ed. 2d 887, 103 |
FEP Cases 494 (2008) (Alito, J.), stated its holding succinctly: “The
question before us is whether a federal employee who is a victim of retaliation
due to the filing of a complaint of age discrimination may assert a claim
under the federal-sector provision of the Age Discrimination in Employment
Act of 1967 (ADEA), as added, 88 Stat. 74, and amended, 29 U.S.C. §
633a(a) (2000 ed., Supp. V). We hold that such a claim is authorized.”
The Chief Justice dissented, and as joined by Justices Scalia and Thomas
except as to Part I of the dissent. Id. at 1943-1951.
Justice Thomas, joined by Justice Scalia, dissented. Id.
at 1951.
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5. Engquist
and the “Class of One” |
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Engquist v. Oregon Dept. of Agriculture,
__ U.S. __, 128 S. Ct. 2146, 2148-49, 170 L. Ed.
2d 975 (2008) |
FEP Cases 481 (2008), held that § 1981 applies to retaliation claims
in employment discrimination cases. The court expressly rejected defendant’s
argument based on the Civil Rights Act of 1991:
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(Roberts, J.), stated the holding of
the Court succinctly: The question in this case is whether a public
employee can state a claim under the Equal Protection Clause by
alleging that she was arbitrarily treated differently from other
similarly situated employees, with no assertion that the different
treatment was based on the employee's membership in any particular
class. We hold that such a “class-of-one” theory
of equal protection
has no place in the public employment context.” The
Court distinguished public actions affecting the general public,
in which everyone is expected to be treated the same, from actions
affecting single employees, in which there is an expectation of
individual treatment. Id. at 2151-54. It explained
at 2155: “State employers cannot, of course, take personnel
actions that would independently violate the Constitution. . . .
But recognition of a class-of-one theory of equal protection in
the public employment context—that is, a claim that the State
treated an employee differently from others for a bad reason, or
for no reason at all—is simply contrary to the concept of
at-will employment. The Constitution does not require repudiating
that familiar doctrine.” (Citation omitted.) The
Court continued: |
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In concluding that the class-of-one
theory of equal protection has no application in the public employment
context—and that is all we decide—we are guided, as
in the past, by the “common-sense realization that government
offices could not function if every employment decision became a
constitutional matter.” . . . If, as Engquist suggests, plaintiffs
need not claim discrimination on the basis of membership in some
class or group, but rather may argue only that they were treated
by their employers worse than other employees similarly situated,
any personnel action in which a wronged employee can conjure up
a claim of differential treatment will suddenly become the basis
for a federal constitutional claim. Indeed, an allegation of arbitrary
differential treatment could be made in nearly every instance of
an assertedly wrongful employment action-not only hiring and firing
decisions, but any personnel action, such as promotion, salary,
or work assignments—on the theory that other employees were
not treated wrongfully. . . . On Engquist’s view, every one
of these employment decisions by a government employer would become
the basis for an equal protection complaint. |
Id. at 2156 (citations omitted). The Court recognized
that it would be difficult for employees to prevail, but emphasized the
practical difficulties of requiring public employers to justify each of
their decisions, and held that acceptance of the class-of-one theory in
an employment context would constitutionalize employee grievances over every
aspect of the employment relationship. Id. at 2157.
Justice Stevens dissented, joined by Justices Ginsburg and Souter.
Id. at 2157-61.
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B.
The Foreground: Upcoming Retaliation Decision |
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Crawford v. Metropolitan Government
of Nashville and Davidson County, No. (06-1595). |
Plaintiff and two other women were fired after they had responded to an
internal investigation by stating that they had been harassed. No
action was taken against the asserted harasser, who had been the target
of the investigation. No EEOC charge had previously been filed by
anyone, and plaintiff had not previously decided to file one. The
lower court held that plaintiff’s conduct was not protected because
she had not participated in a charge-related investigation or engaged in
active and consistent opposition to unlawful conduct. The Sixth Circuit
affirmed in an unreported decision. The question presented is:
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Whether, or to what extent, Title VII’s
anti-retaliation provision, Section 704(a) of the 1964 Civil Rights
Act, 42 U.S.C. § 2000e-3(a), protects an employee from being
dismissed because she cooperated with her employer’s internal
investigation of sexual harassment. |
Oral argument is set for October 8, 2008.
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Predicted decision: Since
the Faragher and Ellerth decisions insist, as
a practical matter, that employers have adequate systems in place
to remedy internal complaints of harassment, and that they have
adequate systems for preventing harassment from occurring, participants
in internal investigations are critical to the process and are protected
by both the participation and opposition clauses. |
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Probability of predicted decision occurring:
70% chance of success on either prong, considered separately; 50%
chance of success on both prongs, 100% chance of winning on at least
one prong; chance of losing on both prongs too low to quantify. |
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C.
Other Recent Cases Affecting Retaliation Cases |
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1. Sprint
v. Mendelsohn and Other Instances of Unlawful Conduct |
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Sprint/United Management Co. v.
Mendelsohn, __ U.S. __, 128 S. Ct. 1140, 102
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FEP Cases 1057 (2008), reversed and remanded the decision of the Tenth Circuit,
and held that the lower court erred in concluding that a two-line minute
entry of the district court meant that the lower court had adopted a per
se rule barring testimony of other instances of discrimination, and
in conducting its own balancing test as to such testimony instead of remanding
the case to the district court. The unanimous Court stated its views
on the evidentiary issue succinctly:
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The question whether evidence of discrimination
by other supervisors is relevant in an individual ADEA case is fact
based and depends on many factors, including how closely related
the evidence is to the plaintiff's circumstances and theory of the
case. Applying Rule 403 to determine if evidence is prejudicial
also requires a fact-intensive, context-specific inquiry. Because
Rules 401 and 403 do not make such evidence per se admissible or
per se inadmissible, and because the inquiry required by those Rules
is within the province of the District Court in the first instance,
we vacate the judgment of the Court of Appeals and remand the case
with instructions to have the District Court clarify the basis for
its evidentiary ruling under the applicable Rules. |
Id. at 1147.
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2. Ash
v. Tyson Foods and Barring Knee-Jerk Rules |
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Ash v. Tyson Foods, Inc., __
U.S. __, 126 S. Ct. 1195, 1197–98, 97 |
FEP Cases 641 (2006) (per curiam), summarily vacated and remanded
the Eleventh Circuit’s affirmance of the grant of summary judgment
to the Title VII and § 1981 racial discrimination defendant.
The Court rejected the lower court’s holding that evidence of superior
qualifications, by itself, was not probative of discrimination unless the
superiority was so evident that it jumps off the page and slaps one in the
face. The Court explained:
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Under this Court's decisions, qualifications
evidence may suffice, at least in some circumstances, to show pretext.
See Patterson v. McLean Credit Union, 491 U.S.
164, 187–188, 109 S. Ct. 2363, 105 L. Ed. 2d 132 (1989) (indicating
a plaintiff “might seek to demonstrate that respondent's claim
to have promoted a better qualified applicant was pretextual by
showing that she was in fact better qualified than the person chosen
for the position”), superseded on other grounds by 42 U.S.C.
§ 1981(b); Texas Dept. of Community Affairs v. Burdine,
450 U.S. 248, 259, 101 S. Ct. 1089, 67 L. Ed. 2d
207 (1981) (“The fact that a court may think that the employer
misjudged the qualifications of the applicants does not in itself
expose him to Title VII liability, although this may be probative
of whether the employer's reasons are pretexts for discrimination”);
cf. Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133, 148, 120 S. Ct. 2097, 147 L. Ed.
2d 105 (2000) (“[A] plaintiff's prima facie case, combined
with sufficient evidence to find that the employer's asserted justification
is false, may permit the trier of fact to conclude that the employer
unlawfully discriminated”). |
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The visual image of words jumping off
the page to slap you (presumably a court) in the face is unhelpful
and imprecise as an elaboration of the standard for inferring pretext
from superior qualifications. Federal courts, including the Court
of Appeals for the Eleventh Circuit in a decision it cited here,
have articulated various other standards, see, e.g.,
Cooper, supra, at 732 (noting that “disparities
in qualifications must be of such weight and significance that no
reasonable person, in the exercise of impartial judgment, could
have chosen the candidate selected over the plaintiff for the job
in question” (internal quotation marks omitted)); Raad
v. Fairbanks North Star Borough School Dist., 323 F.3d 1185,
1194 (C.A.9 2003) (holding that qualifications
evidence standing alone may establish pretext where the plaintiff's
qualifications are “ ‘clearly superior’ ”
to those of the selected job applicant); Aka v. Washington Hospital
Center, 156 F.3d 1284, 1294 (C.A. D.C. 1998)
(en banc) (concluding the factfinder may infer pretext
if “a reasonable employer would have found the plaintiff to
be significantly better qualified for the job”), and in this
case the Court of Appeals qualified its statement by suggesting
that superior qualifications may be probative of pretext when combined
with other evidence, see 129 Fed.Appx., at 533. This is not the
occasion to define more precisely what standard should govern pretext
claims based on superior qualifications. Today's decision, furthermore,
should not be read to hold that petitioners' evidence necessarily
showed pretext. The District Court concluded otherwise. It suffices
to say here that some formulation other than the test the Court
of Appeals articulated in this case would better ensure that trial
courts reach consistent results. |
Plaintiffs were African-American. The Court also rejected the lower
court’s holding that the decisionmaker’s references to each
plaintiff as “boy” were not probative of racial discrimination
unless the term was modified by another term, such as a racial reference:
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Although it is true the disputed word
will not always be evidence of racial animus, it does not follow
that the term, standing alone, is always benign. The speaker's
meaning may depend on various factors including context, inflection,
tone of voice, local custom, and historical usage. Insofar as the
Court of Appeals held that modifiers or qualifications are necessary
in all instances to render the disputed term probative of bias,
the court's decision is erroneous. |
Id.at 1147.
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Comment: This continues
what has become clear as the Court’s multi-year, multi-decision
campaign to root out all the artificial legal presumptions adopted
by the courts to make the great summary judgment engine whittle
down their civil rights dockets. The more multifaceted evidentiary
showings that are possible, the greater is the likelihood that plaintiffs
will get their days in court before a jury. |
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3. U.S.
v. Arvizu and the Holistic Approach |
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United States v. Arvizu, __
U.S. __, 122 S. Ct. 744 (2002), a Fourth Amendment
case, follows Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133, 82 |
FEP Cases 1748, 78 E.P.D. ¶ 40,045 (2000). In both cases, the
Court rejected the approach of some lower courts in segmenting evidence
when a determination is supposed to be made in light of all the evidence.
In Arvizu, the Ninth Circuit considered in isolation each circumstance
that led to the stop, and rejected it if the court could conceive of a possible
innocent explanation. The same often occurs in appellate review of
employment discrimination summary judgments. In Arvizu,
the Court stated:
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We think that the approach taken by
the Court of Appeals here departs sharply from the teachings of
these cases. The court’s evaluation and rejection of
seven of the listed factors in isolation from each other does not
take into account the “totality of the circumstances,”
as our cases have understood that phrase. The court appeared
to believe that each observation by Stoddard that was by itself
readily susceptible to an innocent explanation was entitled to “no
weight.” . . . Terry, however, precludes this sort
of divide-and-conquer analysis. The officer in Terry
observed the petitioner and his companions repeatedly walk back
and forth, look into a store window, and confer with one another.
Although each of the series of acts was “perhaps innocent
in itself,” we held that, taken together, they “warranted
further investigation.” |
Id. at 751 (citations omitted.) The Court recognized
that the Ninth Circuit was attempting to provide more uniform guidance,
but held that it went too far:
| |
But the Court of Appeals’ approach
would go considerably beyond the reasoning of Ornelas
and seriously undercut the “totality of the circumstances”
principle which governs the existence vel non of “reasonable
suspicion.” Take, for example, the court’s positions
that respondent’s deceleration could not be considered because
“slowing down after spotting a law enforcement vehicle is
an entirely normal response that is in no way indicative of criminal
activity” and that his failure to acknowledge Stoddard’s
presence provided no support because there were “no ‘special
circumstances’ rendering ‘innocent avoidance . . . improbable.’
“ . . . We think it quite reasonable that a driver’s
slowing down, stiffening of posture, and failure to acknowledge
a sighted law enforcement officer might well be unremarkable in
one instance (such as a busy San Francisco highway) while quite
unusual in another (such as a remote portion of rural southeastern
Arizona). Stoddard was entitled to make an assessment of the
situation in light of his specialized training and familiarity with
the customs of the area’s inhabitants. . . . To the
extent that a totality of the circumstances approach may render
appellate review less circumscribed by precedent than otherwise,
it is the nature of the totality rule. |
Id. at 752 (emphasis supplied). Bright-line tests of
isolated factors, such as the “same actor” inference in some
Circuits, the ten-year minimum age rule in the Seventh Circuit, the universal-and-exclusive
approach to retaliation cases in the Seventh Circuit, and the like, have
no place under Arvizu.
| |
4. Miller-El
and Barring Mere Excuses |
| |
Miller-El v. Dretke, __ U.S.
__, 125 S. Ct. 2317 (2005), |
Reversed the denial of habeas corpus and held that petitioner had
shown racial discrimination in the prosecutor’s peremptory challenges
by clear and convincing evidence. The court stated: “The rub
has been the practical difficulty of ferreting out discrimination in selections
discretionary by nature, and choices subject to myriad legitimate influences,
whatever the race of the individuals on the panel from which jurors are
selected.” Id. at 2324. The Court cited Reeves
v. Sanderson Plumbing Products, id. at 2325, underscoring
the relevance of this decision to employment law.
| |
As for law, the rule in Batson
provides an opportunity to the prosecutor to give the reason for
striking the juror, and it requires the judge to assess the plausibility
of that reason in light of all evidence with a bearing on it. .
. . It is true that peremptories are often the subjects of instinct
. . . and it can sometimes be hard to say what the reason is.
But when illegitimate grounds like race are in issue, a prosecutor
simply has got to state his reasons as best he can and stand or
fall on the plausibility of the reasons he gives. A Batson
challenge does not call for a mere exercise in thinking up any rational
basis. If the stated reason does not hold up, its pretextual significance
does not fade because a trial judge, or an appeals court, can imagine
a reason that might not have been shown up as false. The Court
of Appeals’s and the dissent’s substitution of a reason
for eliminating Warren does nothing to satisfy the prosecutors’
burden of stating a racially neutral explanation for their own actions. |
Id. at 2331–32 (citations omitted). The Court
also held that evidence of the prosecution’s manipulation of procedures,
through jury shuffles that re-order the venire, supported the inference
of discrimination. Id. at 2332–33. The Court
rejected the defendant’s speculation that there mighthave been innocent
reasons for its jury shuffles, and rejected the Fifth Circuit’s “see
no evil” approach:
| |
The State notes in its brief that there
might be racially neutral reasons for shuffling the jury, Brief
for Respondent 36-37, and we suppose there might be. But no racially
neutral reason has ever been offered in this case, and nothing stops
the suspicion of discriminatory intent from rising to an inference.14 |
| |
14 The Court of Appeals declined
to give much weight to the evidence of racially motivated jury shuffles
because “Miller-El shuffled the jury five times and the prosecutors
shuffled the jury only twice.” 361 F.3d, at 855.
But Miller-El’s shuffles are flatly irrelevant to the question
whether prosecutors’ shuffles revealed a desire to exclude
blacks. . . . |
Id. at 2333. The Court emphasized a common-sense “best
fit” approach to the determination of motivation:
| |
The State’s attempt at a race-neutral
rationalization thus simply fails to explain what the prosecutors
did. But if we posit instead that the prosecutors’ first
object was to use the graphic script to make a case for excluding
black panel members opposed to or ambivalent about the death penalty,
there is a much tighter fit of fact and explanation.29 Of
the 10 nonblacks whose questionnaires expressed ambivalence or opposition,
only 30% received the graphic treatment. But of the seven
blacks who expressed ambivalence or opposition, 86% heard the graphic
script. As between the State’s ambivalence explanation
and Miller-El’s racial one, race is much the better, and the
reasonable inference is that race was the major consideration when
the prosecution chose to follow the graphic script. |
| |
The same is true for another kind of
disparate questioning, which might fairly be called trickery.
The prosecutors asked members of the panel how low a sentence they
would consider imposing for murder. Most potential jurors
were first told that Texas law provided for a minimum term of five
years, but some members of the panel were not, and if a panel member
then insisted on a minimum above five years, the prosecutor would
suppress his normal preference for tough jurors and claim cause
to strike. Two Terms ago, we described how this disparate
questioning was correlated with race . . . . |
| |
The State concedes that the manipulative
minimum punishment questioning was used to create cause to strike
. . . but now it offers the extenuation that prosecutors omitted
the 5-year information not on the basis of race, but on stated opposition
to the death penalty, or ambivalence about it, on the questionnaires
and in the voir dire testimony. Id.,
at 34–35. On the State’s identification of black
panel members opposed or ambivalent, all were asked the trick question.
But the State’s rationale flatly fails to explain why most
white panel members who expressed similar opposition or ambivalence
were not subjected to it. It is entirely true, as the State
argues, id., at 35, that prosecutors struck a number of
nonblack members of the panel (as well as black members) for cause
or by agreement before they reached the point in the standard voir
dire sequence to question about minimum punishment. But
this is no answer; 8 of the 11 nonblack individuals who voiced opposition
or ambivalence were asked about the acceptable minimum only after
being told what state law required. Hence,
only 27% of nonblacks questioned on the subject who expressed these
views were subjected to the trick question, as against 100% of black
members. Once again, the implication of race in the prosecutors’
choice of questioning cannot
be explained away. |
| |
29 The dissent posits that
prosecutors did not use the graphic script
with panel members opposed to the death penalty because it would
only have antagonized them. See post, at 2359.
No answer is offered to the question why a prosecutor would take
care with the feelings of a panel member he would excuse for cause
or strike yet would antagonize an ambivalent member whose feelings
he wanted to smoke out, but who might turn out to be an acceptable
juror.s |
Id. at 2336–38 (footnotes omitted). There was
a great deal of evidence of discrimination. See the discussion of
this case below. The Court sharply criticized the Fifth Circuit’s
unwillingness to see the discrimination so plainly laid before it:
| |
The Court of Appeals concluded that
Miller-El failed to show by clear and convincing evidence that the
state court’s finding of no discrimination was wrong, whether
his evidence was viewed collectively or separately. . . . We find
this conclusion as unsupportable as the “dismissive and strained
interpretation” of his evidence that we disapproved when we
decided Miller-El was entitled to a certificate of appealability.
. . . It is true, of course, that at some points
the significance of Miller-El’s evidence is open to judgment
calls, but when this evidence on the issues raised is viewed cumulatively
its direction is too powerful to conclude anything but discrimination. |
| |
In the course of drawing a jury to try
a black defendant, 10 of the 11 qualified black venire panel members
were peremptorily struck. At least two of them, Fields and
Warren, were ostensibly acceptable to prosecutors seeking a death
verdict, and Fields was ideal. The prosecutors’ chosen
race-neutral reasons for the strikes do not hold up and are so far
at odds with the evidence that pretext is the fair conclusion, indicating
the very discrimination the explanations were meant to deny. |
| |
The strikes that drew these incredible
explanations occurred in a selection process replete with evidence
that the prosecutors were selecting and rejecting potential jurors
because of race. At least two of the jury shuffles conducted
by the State make no sense except as efforts to delay consideration
of black jury panelists to the end of the week, when they might
not even be reached. The State has in fact never offered any other
explanation. Nor has the State denied that disparate lines
of questioning were pursued: 53% of black panelists but only 3%
of nonblacks were questioned with a graphic script meant to induce
qualms about applying the death penalty (and thus explain a strike),
and 100% of blacks but only 27% of nonblacks were subjected to a
trick question about the minimum acceptable penalty for murder,
meant to induce a disqualifying
answer. The State’s attempts to explain the prosecutors’
questioning of particular witnesses on nonracial grounds fit the
evidence less well than the racially discriminatory hypothesis. |
| |
TIf anything more is needed for an undeniable
explanation of what was going on, history supplies it. The
prosecutors took their cues from a 20-year old manual of tips on
jury selection, as shown by their notes of the race of each potential
juror. By the time a jury was chosen, the State had peremptorily
challenged 12% of qualified nonblack panel members, but eliminated
91% of the black ones. |
| |
It blinks reality to deny that the State
struck Fields and Warren, included in that 91%, because they were
black. The strikes correlate with no fact as well as they
correlate with race, and they occurred during a selection infected
by shuffling and disparate questioning that race explains better
than any race-neutral reason advanced by the State. The State’s
pretextual positions confirm Miller-El’s claim, and the prosecutors’
own notes proclaim that the Sparling Manual’s emphasis on
race was on their minds when they considered every potential juror. |
| |
The state court’s conclusion that
the prosecutors’ strikes of Fields and Warren were not racially
determined is shown up as wrong to a clear and convincing degree;
the state court’s conclusion was unreasonable as well as erroneous. |
Id. at 2339–40. The Court also drew the inference
of racial discrimination from prosecutor James Nelson’s offering of
a pretextual reason:
| |
The unlikelihood that his position on
rehabilitation had anything to do with the peremptory strike of
Fields is underscored by the prosecution’s response after
Miller-El’s lawyer pointed out that the prosecutor had misrepresented
Fields’s responses on the subject. A moment earlier
the prosecutor had finished his misdescription of Fields’s
views on potential rehabilitation with the words, “Those are
our reasons for exercising our ... strike at this time.”
Id., at 197. When defense counsel called
him on his misstatement, he
neither defended what he said nor withdrew the strike. Id.,
at 198. Instead, he suddenly came up with Fields’s brother’s
prior conviction as another reason for the strike. Id.,
at 199. |
| |
It would be difficult to credit the
State’s new explanation, which reeks of afterthought.
While the Court of Appeals tried to bolster it with the observation
that no seated juror was in Fields’s position with respect
to his brother . . . the court’s readiness to accept the State’s
substitute reason ignores not only its pretextual timing but the
other reasons rendering it implausible. Fields’s testimony
indicated he was not close to his brother, App. 190 (“I don’t
really know too much about it”), and the prosecution asked
nothing further about the influence his brother’s history
might have had on Fields, as it probably would have done if the
family history had actually mattered. . . . There is no good reason
to doubt that the State’s afterthought about Fields’s
brother was anything but makeweight. |
Id. at 2328. The Court criticized the Fifth Circuit
for its failure to appreciate the importance of the prosecutor’s effort
to advance an untruthful explanation:
| |
The Court of Appeals’s judgment
on the Fields strike is unsupportable for the same reason the State’s
first explanation is itself unsupportable. The Appeals Court’s
description of Fields’s voir dire testimony mentioned
only his statements that everyone
could be rehabilitated, failing to note that Fields affirmed that
he could give the death penalty if the law and evidence called for
it, regardless of the possibility of divine grace. The Court
of Appeals made no mention of the fact that the prosecution mischaracterized
Fields as saying he could not give death if rehabilitation were
possible. |
Id. at 2329. The Court also held that evidence of the
manipulation of procedures supported the inference of discrimination:
| |
The first clue to the prosecutors’
intentions, distinct from the peremptory challenges themselves,
is their resort during voir dire to a procedure known in
Texas as the jury shuffle. In the State’s criminal practice,
either side may literally reshuffle the cards bearing panel members’
names, thus rearranging the order in which members of a venire panel
are seated and reached for
questioning. Once the order
is established, the panel members seated at the back are likely
to escape voir dire altogether, for those not questioned
by the end of the week are dismissed. As we previously explained,
“the prosecution’s decision to seek a jury shuffle when
a predominant number of African-Americans were seated in the front
of the panel, along with its decision to delay a formal objection
to the defense’s shuffle until after the new racial composition
was revealed, raise a suspicion that the State sought to exclude
African-Americans from the jury. Our concerns are amplified
by the fact that the state court also had before it, and apparently
ignored, testimony demonstrating that the Dallas County District
Attorney’s Office had, by its own admission, used this process
to manipulate the racial composition of the jury in the past.” |
Id. at 2332–33. The Court rejected the
defendant’s speculation that there mighthave been innocent reasons
for its jury shuffles, and rejected the Fifth Circuit’s “see
no evil” approach:
| |
The State notes in its brief that there
might be racially neutral reasons for shuffling the jury, Brief
for Respondent 36-37, and we suppose there might be. But no racially
neutral reason has ever been offered in this case, and nothing stops
the suspicion of discriminatory intent from rising to an inference.14 |
| |
14The Court of Appeals declined
to give much weight to the evidence of racially motivated jury shuffles
because “Miller-El shuffled the jury five times and the prosecutors
shuffled the jury only twice.” 361
F.3d, at 855. But Miller-El’s shuffles are flatly
irrelevant to the question whether prosecutors’ shuffles revealed
a desire to exclude blacks. (The Appeals Court’s statement
was also inaccurate: the prosecution shuffled the jury three times.) |
Id. at 2333. The Court also held that the State manipulated
the process by the type of questions it asked different venire members about
their feelings on the death penalty. 94% of white venire members were
given an abstract description of the death penalty and were then asked about
their feelings on it. A “graphic script” describing the
death penalty—intended to motivate venire members into expressing
misgivings about the death penalty and providing an occasion to strike them
for cause—was given to 6% of white venire members and 53% of black
venire members before they were asked about their feelings on the death
penalty. Id. at 2333–34. The court discussed
each of the State’s professed reasons for disparate use of the graphic
script, and found that the facts did not support the reasons. It continued:
| |
The State’s attempt at a race-neutral
rationalization thus simply fails to explain what the prosecutors
did. But if we posit instead that the prosecutors’ first
object was to use the graphic script to make a case for excluding
black panel members opposed to or ambivalent about the death penalty,
there is a much tighter fit of fact and explanation.
Of the 10 nonblacks whose questionnaires expressed ambivalence or
opposition, only 30% received
the graphic treatment.
But of the seven blacks who expressed ambivalence or opposition,
86% heard the graphic script.
As between the State’s ambivalence explanation and Miller-El’s
racial one, race is much the better, and the reasonable inference
is that race was the major consideration when the prosecution chose
to follow the graphic script. |
Id. at 2336–37 (footnotes omitted). The Court
next turned to a form of manipulation it termed “trickery.”
| |
The same is true for another kind of
disparate questioning, which might fairly be called trickery.
The prosecutors asked members of the panel how low a sentence they
would consider imposing for murder. Most potential jurors
were first told that Texas law provided for a minimum term of five
years, but some members of the panel were not, and if a panel member
then insisted on a minimum above five years, the prosecutor would
suppress his normal preference for tough jurors and claim cause
to strike. |
Id. at 2337. The State informed 94% of white venire
members, and only 12.5^ of blacks, about the minimum sentence for murder,
allowing them to engage in the trickery questions with 87.5% of blacks,
and only 6% of whites. Id. The Justice Breyer concurred.
Id. at 2340–44. Justice Thomas, joined by Chief Justice
Rehnquist and Justice Scalia, dissented. Id. at 2344–63.
| |
Miller-El v. Cockrell, __ U.S.
__, 123 S. Ct. 1029, 154 L.Ed.2d 931 (2003) |
Reversed the Fifth Circuit’s denial of a certificate of appealability
(“COA”) from the denial of habeas corpus that had been sought
on a Batson challenge to the prosecutor’s striking of 10
of 11 African-American potential jurors. The standard was whether
petitioner demonstrated “‘that reasonable jurists would find
the district court’s assessment of the constitutional claims debatable
or wrong.’” The Court cited Reeves. It
relied in part on comparative evidence, buttressed by other evidence:
| |
A comparative analysis of the venire
members demonstrates that African-Americans were excluded from petitioner’s
jury in a ratio significantly higher than Caucasians were. Of the
108 possible jurors reviewed by the prosecution and defense, 20
were African-American. Nine of them were excused for cause or by
agreement of the parties. Of the 11 African-American jurors remaining,
however, all but 1 were excluded by peremptory strikes exercised
by the prosecutors. On this basis 91% of the eligible black jurors
were removed by peremptory strikes. In contrast the prosecutors
used their peremptory strikes against just 13% (4 out of 31) of
the eligible nonblack prospective jurors qualified to serve on petitioner’s
jury. |
| |
These numbers, while relevant, are not
petitioner’s whole case. During voir dire, the prosecution
questioned venire members as to their views concerning the death
penalty and their willingness to serve on a capital case. Responses
that disclosed reluctance or hesitation to impose capital punishment
were cited as a justification for striking a potential juror for
cause or by peremptory challenge. . . . The evidence suggests,
however, that the manner in which members of the venire were questioned
varied by race. To the extent a divergence in responses can be attributed
to the racially disparate mode of examination, it is relevant to
our inquiry. |
| |
Most African-Americans (53%, or 8 out
of 15) were first given a detailed description of the mechanics
of an execution in Texas: |
| |
“[I]f those three [sentencing]
questions are answered yes, at some point[,] Thomas Joe Miller-El
will be taken to Huntsville, Texas. He will be placed on death row
and at some time will be taken to the death house where he will
be strapped on a gurney, an IV put into his arm and he will be injected
with a substance that will cause his death … as the result
of the verdict in this case if those three questions are answered
yes.” App. 215. |
| |
Only then were these African-American
venire members asked whether they could render a decision leading
to a sentence of death. Very few prospective white jurors (6%, or
3 out of 49) were given this preface prior to being asked for their
views on capital punishment. Rather, all but three were questioned
in vague terms: “Would you share with us … your personal
feelings, if you could, in your own words how you do feel about
the death penalty and capital punishment and secondly, do you feel
you could serve on this type of a jury and actually render a decision
that would result in the death of the Defendant in this case based
on the evidence? ” Id., at 506. |
The Court cited Reeves. It relied in part on simple statistics,
buttressed by other evidence:
| |
A comparative analysis of the venire
members demonstrates that African-Americans were excluded from petitioner’s
jury in a ratio significantly higher than Caucasians were. Of the
108 possible jurors reviewed by the prosecution and defense, 20
were African-American. Nine of them were excused for cause or by
agreement of the parties. Of the 11 African-American jurors remaining,
however, all but 1 were excluded by peremptory strikes exercised
by the prosecutors. On this basis 91% of the eligible black jurors
were removed by peremptory strikes. In contrast the prosecutors
used their peremptory strikes against just 13% (4 out of 31) of
the eligible nonblack prospective jurors qualified to serve on petitioner’s
jury. |
The court again relied on simple statistics later in its decision:
| |
There was an even more pronounced difference,
on the apparent basis of race, in the manner the prosecutors questioned
members of the venire about their willingness to impose the minimum
sentence for murder. Under Texas law at the time of petitioner’s
trial, an unwillingness to do so warranted removal for cause. .
. . This strategy normally is used by the defense to weed out pro-state
members of the venire, but, ironically, the prosecution employed
it here. The prosecutors first identified the statutory minimum
sentence of five years’ imprisonment to 34 out of 36 (94%)
white venire members, and only then asked: “If you hear a
case, to your way of thinking [that] calls for and warrants and
justifies five years, you’ll give it?” App. 509.
In contrast, only 1 out of 8 (12.5%) African-American prospective
jurors were informed of the statutory minimum before being asked
what minimum sentence they would impose. |
The Court cited Reeves. It held that a 1968 racially biased
statement contained in an official manual was probative of racial bias in
the 1986 peremptory challenges:
| |
Of more importance, the defense presented
evidence that the District Attorney’s Office had adopted a
formal policy to exclude minorities from jury service. A 1963 circular
by the District Attorney’s Office instructed its prosecutors
to exercise peremptory strikes against minorities: “‘Do
not take Jews, Negroes, Dagos, Mexicans or a member of any minority
race on a jury, no matter how rich or how well educated.’”
App. 710. A manual entitled “Jury Selection in a Criminal
Case” was distributed to prosecutors. It contained an article
authored by a former prosecutor (and later a judge) under the direction
of his superiors in the District Attorney’s Office, outlining
the reasoning for excluding minorities from jury service. Although
the manual was written in 1968, it remained in circulation until
1976, if not later, and was available at least to one of the prosecutors
in Miller-El’s trial. Id., at 749, 774,
783. |
The court also relied on other old evidence of biased statements:
| |
A Dallas County district judge testified
that, when he had served in the District Attorney’s Office
from the late-1950’s to early-1960’s, his superior warned
him that he would be fired if he permitted any African-Americans
to serve on a jury. Similarly, another Dallas County district
judge and former assistant district attorney from 1976 to 1978 testified
that he believed the office had a systematic policy of excluding
African-Americans from juries. |
| |
D.
Framing Future Cases for Success, in Light of the Past |
It seems to me that the Court is sending a fairly clear message to practitioners:
| |
Frame theories in ways that appear self-limiting,
i.e., that do not open the floodgates.
|
| |
Weave the protected activity into the
purposes of the statute and mechanisms that are essential for the
meaning to be fulfilled.
|
| |
Weave the adverse action into the things
that are important to ordinary workers. Judges with lifetime
tenure are not impressed by 37 days’ loss of pay, but look
at how the attorney for White pictured what it is like at the sharp
edge of the employer’s spear. |
| |
Resist, to the last ounce of our strength,
employer efforts to unravel each thread from the tapestry to examine
it in isolation; we are presenting a story and showing a tapestry,
and are entitled to do it as a whole. |
Important Information From The Association of
Trial Lawyers of America
 
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