Date: 06-06-2009

Case Style: Eric L. Thompson v. North American Stainless, LP

Case Number: 07-5040

Judge: Griffin

Court: United States Court of Appeals for the Sixth Circuit on appeal from the Eastern District of Kentucky, Franklin County

Plaintiff's Attorney: David O’Brien Suetholz and Joseph Delano Wibbels, Jr.,, SEGAL, LINDSAY & JANES, Louisville, Kentucky, for Appellant.

Defendant's Attorney: Leigh Gross Latherow, VanANTWERP, MONGE, JONES, EDWARDS & McCANN, LLP, Ashland, Kentucky, for Appellee.

Gail S. Coleman, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Washington, D.C., for Amici Curiae.

Description: The sole issue raised in this rehearing en banc is whether § 704(a) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a), creates a cause of action for third-party retaliation for persons who have not personally engaged in protected activity. After applying the plain and unambiguous statutory text, we join the Third, Fifth, and Eighth Circuit Courts of Appeal in holding that the authorized class of claimants is limited to persons who have personally engaged in protected activity by opposing a practice, making a charge, or assisting or participating in an investigation. Because plaintiff Eric L. Thompson does not claim that he personally engaged in any protected activity, we affirm the judgment of the district court granting summary judgment in favor of defendant North American Stainless, LP.

I.

The relevant facts are recited in our vacated panel opinion, Thompson v. North American Stainless, LP, 520 F.3d 644, 645-46 (6th Cir. 2008), reh. en banc granted, opinion vacated (July 28, 2008):

From February 1997 through March 2003, the plaintiff, Eric L. Thompson, worked as a metallurgical engineer for defendant North American Stainless, LP, the owner and operator of a stainless steel manufacturing facility in Carroll County, Kentucky. Thompson met Miriam Regalado, currently his wife, when she was hired by the defendant in 2000, and the couple began dating shortly thereafter. At the time of Thompson’s termination, he and Regalado were engaged to be married, and their relationship was common knowledge at North American Stainless.

According to the complaint, Regalado filed a charge with the Equal Employment Opportunity Commission (EEOC) in September 2002, alleging that her supervisors discriminated against her based on her gender. On February 13, 2003, the EEOC notified North American Stainless of Regalado’s charge. Slightly more than three weeks later, on March 7, 2003, the defendant terminated Thompson’s employment. Thompson alleges that he was terminated in retaliation for his then-fiancée’s EEOC charge, while North American Stainless contends that performance-based reasons supported the plaintiff’s termination.

Thompson filed a charge with the EEOC, which conducted an investigation and found “reasonable cause to believe that [the Defendant] violated Title VII.” After conciliation efforts were unsuccessful, the EEOC issued a rightto- sue letter and Thompson filed a cause of action against North American Stainless in the Eastern District of Kentucky.

North American Stainless moved for summary judgment, contending that the plaintiff’s claim, that his “relationship to Miriam Thompson [née Regalado] was the sole motivating factor in his termination,” was insufficient as a matter of law to support a cause of action under Title VII. The district court granted the defendant’s motion, holding that Thompson failed to state a claim under either the anti-discrimination provision contained in 42 U.S.C. § 2000e-2(a) or the anti-retaliation provision set forth in 42 U.S.C. § 2000e- 3(a).

The plaintiff appeals from this judgment, contending that the anti-retaliation provision of Title VII prohibits an employer from terminating an employee based on the protected activity of his fiancée who works for the same employer. The EEOC has filed an amicus curiae brief in support of plaintiff’s position.

II.

We review de novo the district court’s order granting summary judgment. Kleiber v. Honda of Am. Mfg., Inc., 485 F.3d 862, 868 (6th Cir. 2007). Summary judgment is warranted “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c).

III.

When Congress enacted the Civil Rights Act of 1964, it created a new and limited cause of action for retaliation in the employment setting. The relevant language of the statute provides:

It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

Title VII of the Civil Rights Act of 1964, § 704(a), 42 U.S.C. § 2000e-3(a) (emphasis added).

Certainly it was Congress’s prerogative to create – or refrain from creating – a federal cause of action for civil rights retaliation and to mold the scope of such legislation, making the boundaries of coverage either expansive or limited in nature: “Statutory rights and obligations are established by Congress, and it is entirely appropriate for Congress, in creating these rights and obligations, to determine in addition, who may enforce them and in what manner.” Davis v. Passman, 442 U.S. 228, 240 (1979).

When we, in turn, are called upon to review and interpret Congress’s legislation, “[i]t is elementary that the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain, and if the law is within the constitutional authority of the lawmaking body which passed it, the sole function of the courts is to enforce it according to its terms.” Caminetti v. United States, 242 U.S. 470, 485 (1917). “If the words are plain, they give meaning to the act, and it is neither the duty nor the privilege of the courts to enter speculative fields in search of a different meaning.” Id. at 490. Recognizing the consequences of unbridled judicial forays into the legislative sphere, the Supreme Court has admonished “‘time and again that a legislature says in a statute what it means and means in a statute what it says there.’” Arlington Cent. Sch. Dist. Bd. of Ed. v. Murphy, 548 U.S. 291 (2006) (quoting Connecticut Nat. Bank v. Germain, 503 U.S. 249 (1992)). Accordingly, “[w]hen the statutory language is plain, the sole function of the courts – at least where the disposition required by the text is not absurd – is to enforce it according to its terms.” Id. (internal citations and quotation marks omitted). See also Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997) (“[The courts’] inquiry must cease if the statutory language is unambiguous and the statutory scheme is coherent and consistent.”) (internal citation and quotation marks omitted); Rubin v. United States, 449 U.S. 424, 430 (1981) (“When we find the terms of a statute unambiguous, judicial inquiry is complete, except in rare and exceptional circumstances.”).

In our view, the text of § 704(a) is plain in its protection of a limited class of persons who are afforded the right to sue for retaliation. To be included in this class, plaintiff must show that his employer discriminated against him “because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a) (emphasis added).

Significantly, Thompson does not claim that he engaged in any statutorily protected activity, either on his own behalf or on behalf of Miriam Regalado. In Paragraph 13 of his complaint, Thompson alleges that “[d]efendant has intentionally retaliated against Plaintiff because his wife, Miriam Thompson, filed a charge with the [EEOC] based on gender discrimination prohibited by 42 U.S.C. § 2000e-2(a). Plaintiff’s relationship to Miriam Thompson was the sole motivating factor in his termination.” (Emphasis added.) In his appellate brief to our three-judge panel, Thompson framed his “Statement of the Issue” on appeal as follows: “Whether § 704(a) of Title VII, 42 U.S.C. § 2000e-3(a), prohibits an employer from terminating an individual in retaliation for the protected activity of his fiancée who also works for the employer.” Further, he alleged in his “Statement of Facts” that “Thompson was terminated in retaliation for his fiancée’s protected activity.”

By application of the plain language of the statute, Thompson is not included in the class of persons for whom Congress created a retaliation cause of action because he personally did not oppose an unlawful employment practice, make a charge, testify, assist, or participate in an investigation. Nonetheless, with the support of the EEOC, he argues that the statute should be construed to include claimants who are “closely related [to] or associated [with]” a person who has engaged in protected activity. Thompson and the EEOC offer various reasons why we should disregard the text of the statute in favor of their public policy preferences. The primary contention is that a “narrow” interpretation of § 704(a) would create an “absurd” result. Further, they argue that we should defer to the EEOC’s interpretation of the statute. These assertions are dependent upon the premise that the statutory language is ambiguous. It is not.

In essence, plaintiff and the EEOC request that we become the first circuit court to hold that Title VII creates a cause of action for third-party retaliation on behalf of friends and family members who have not engaged in protected activity. However, we decline the invitation to rewrite the law.

IV.

The central issue before this court is whether Thompson has asserted a proper cause of action under § 704(a) of Title VII – that is, whether he “is a member of the class of litigants that may, as a matter of law, appropriately invoke the power of the court” to enforce legislatively created rights or obligations. Davis, 442 U.S. at 239 n.18.1 It is well established that to prevail upon a Title VII retaliation claim, “a plaintiff must establish that: (1) [he] engaged in activity protected by Title VII; (2) this exercise of protected rights was known to the defendant; (3) the defendant thereafter took an adverse employment action against the plaintiff; and (4) there was a causal connection between the protected activity and the adverse employment action.” Martin v. Toledo Cardiology Consultants, Inc., 548 F.3d 405, 412 (6th Cir. 2008).

The district court ruled correctly that Thompson failed to establish the first element because his complaint did not allege that he personally engaged in any sort of protected activity. Instead, Thompson’s retaliation claim is that he was punished for a discrimination complaint brought by his then-fiancée. The district court reviewed the statutory text and held that, “under its plain language, the statute does not authorize a retaliation claim by a plaintiff who did not himself engage in protected activity.” We agree.

Previously, our only discussion of a similar issue had been limited to the dicta in EEOC v. Ohio Edison Co., 7 F.3d 541 (6th Cir. 1993), and Bell v. Safety Grooving & Grinding, L.P., 107 F. App’x 607 (6th Cir. 2004) (unpublished).2 However, neither of these cases resolved the present question. In Ohio Edison, we held that an employee may engage vicariously in protected activity by and through the actions of his agent, and, in Bell, we held that the plaintiff’s non-specific complaints to management were insufficient to trigger protection for him in connection with his girlfriend’s EEOC discrimination charge.

Although we have not addressed directly the precise issue at hand, the Third, Fifth, and Eighth Circuit Courts of Appeal have unanimously rejected such third-party retaliation claims.

In Holt v. JTM Industries, 89 F.3d 1224 (5th Cir. 1996), a former employee claimed that he was fired because his wife, who worked for the same company, filed a complaint under the Age Discrimination in Employment Act (“ADEA”).3 The plaintiff in Holt relied upon De Medina v. Reinhardt, 444 F. Supp. 573 (D.D.C. 1978), in support of his position that protecting one spouse from retaliation for the other spouse’s protected complaint was necessary to preserve the intent of Congress. Holt, 89 F.3d at 1226. The Court of Appeals for the Fifth Circuit rejected this argument, reasoning that while such a holding “might eliminate the risk that an employer will retaliate against an employee for their spouse’s protected activities,” it would “contradict the plain language of the statute and will rarely be necessary to protect employee spouses from retaliation.” Id. at 1226.

The Holt court “recognize[d] that there is a possible risk that an employer will discriminate against a complaining employee’s relative or friend in retaliation for the complaining employee’s actions,” but concluded that “the language that Congress has employed in [the ADEA] will better protect employees against retaliation than we could by trying to define the types of relationships that should render automatic standing under [the ADEA].” Id. at 1227. The court noted that the plain language of the statute will protect most close relationships because

[i]n most cases, the relatives and friends who are at risk for retaliation will have participated in some manner in a co-worker’s charge of discrimination. The plain language of [the ADEA] will protect these employees from retaliation for their protected activities. However, when an individual, spouse or otherwise, has not participated “in any manner” in conduct that is protected by the ADEA, we hold that he does not have automatic standing to sue for retaliation under [the ADEA] simply because his spouse has engaged in protected activity. Id. (footnote omitted).4

In Holt’s case, the evidence did not establish that he participated in his wife’s protected activities or that he opposed his employer’s alleged discriminatory practice. Holt, 89 F.3d at 1227. “At best, [Holt] was a passive observer of [his wife’s] protected activities.” Id. The Fifth Circuit therefore concluded that he was not entitled to sue for retaliation under the ADEA. Id.

The Eighth Circuit employed a similar rationale in Smith v. Riceland Foods, Inc., 151 F.3d 813 (8th Cir. 1998). The plaintiff in Smith alleged that he was discharged in retaliation for the filing of a discrimination charge by a female employee who lived with him. He argued in pertinent part that he was not required to show that he personally engaged in protected activity in order to establish a prima facie case of retaliation under Title VII and urged the court to expand the protection of the statute “to prohibit employers from taking adverse action against employees whose spouses or significant others have engaged in statutorily protected activity against the employer.” Id. at 819. The court rejected such a construction, concluding that it “is neither supported by the plain language of Title VII nor necessary to protect third parties, such as spouses or significant others, from retaliation.” Id. (citing Holt, 89 F.3d at 1226-27). “Title VII already offers broad protection to such individuals by prohibiting employers from retaliating against employees for ‘assist[ing] or participat[ing] in any manner’ in a proceeding under Title VII. Accordingly, we hold that a plaintiff bringing a retaliation claim under Title VII must establish that []he personally engaged in the protected conduct.” Id. (emphasis added).

In Fogleman v. Mercy Hosp., Inc., 283 F.3d 561 (3d Cir. 2002), the Court of Appeals for the Third Circuit addressed the issue of third-party retaliation in comparable circumstances. The plaintiff sued under the Americans with Disabilities Act (“ADA”), the ADEA, and a Pennsylvania statute, alleging that he was fired in retaliation for his father’s discrimination complaint filed against their joint employer. As a preliminary matter, the Fogleman court noted that the anti-retaliation provisions of the ADA and the ADEA are nearly identical to each other and to the anti-retaliation provision of Title VII. Id. at 567 (citing Krouse v. Am. Sterilizer Co., 126 F.3d 494, 500 (3d Cir. 1997)). Thus, the “precedent interpreting any one of these statutes is equally relevant to interpretation of the others.” Id. The Fogleman court emphatically rejected the notion of ambiguity:

The plain text of the anti-retaliation provisions requires that the person retaliated against also be the person who engaged in the protected activity: Each statute forbids discrimination against an individual because “such individual” has engaged in protected conduct. By their own terms, then, the statutes do not make actionable discrimination against an employee who has not engaged in protected activity. Read literally, the statutes are unambiguous – indeed, it is hard to imagine a clearer way of specifying that the individual who was discriminated against must also be the individual who engaged in protected activity. Id. at 568.5

The Third Circuit conceded that the case “presents a conflict between a statute’s plain meaning and its general policy objectives,” but held that when presented with such a conflict, respect for the constitutional separation of powers required it to implement the statutory text. Id. at 569. The court also rejected the notion that enforcement of the plain meaning of the statute would lead to dire results and, in fact, stated that there “are at least plausible policy reasons why Congress might have intended to exclude thirdparty retaliation claims.” Id. For instance, Congress may have thought that friends or relatives who would be at risk of retaliation typically would have participated in some manner in the protected discrimination charge. Id. “If this is true, then the occurrence of pure third-party retaliation will be rare, so that not allowing claims to proceed in these few instances would not necessarily ‘defeat the plain purpose’ of the anti-discrimination laws.” Id. (quoting Bob Jones Univ. v. United States, 461 U.S. 574, 586 (1983)). Congress also may have feared that allowing third-party retaliation claims would “open the door to frivolous lawsuits and interfere with an employer’s prerogative to fire at-will employees.” Id. at 570.

In sum, no circuit court of appeals has held that Title VII creates a claim for third-party retaliation in circumstances where the plaintiff has not engaged personally in any protected activity. Although plaintiff and the EEOC argue that the language of § 704(a) is ambiguous and that enforcement of the statutory text will lead to absurd results, we disagree, as do the Third, Fifth, and Eighth Circuits, which have soundly rejected such a cause of action.6

V.

A.

The Supreme Court’s recent decisions addressing retaliation claims do not require that we alter our analysis or change our conclusion. In Crawford v. Metro. Gov’t of Nashville and Davidson County, Tenn., — U.S. — , 129 S. Ct. 846 (2009), the Court held that the protection of the opposition clause of § 704(a) extends to an employee who was terminated after she testified involuntarily in an internal investigation of alleged sexual harassment. The plaintiff “did ‘not claim to have instigated or initiated any complaint prior to her participation in the investigation, nor did she take any further action following the investigation and prior to her firing.’” 129 S. Ct. at 850 (quoting Crawford v. Metro. Gov’t of Nashville and Davidson County, Tenn., 211 F. App’x 373, 376 (6th Cir. 2006)). Rather, she simply cooperated in the investigation, responded to questions posed by her employer and, in doing so, testified unfavorably against a supervisor who was the subject of the investigation triggered by another coworker’s complaints.

The Court abrogated this Circuit’s view that the opposition clause “‘demands active, consistent “opposing” activities to warrant . . . protection against retaliation’” and that an employee must “instigat[e] or initiat[e]” a complaint to be protected under § 704(a). Id. at 851 (quoting Crawford, 211 F. App’x at 376 (citation and internal quotation marks omitted)). Instead, the Court held that in this context, the “ordinary meaning” of the undefined statutory term “oppose” should be utilized, which includes the definitions “confront[ing],” “resist[ing],” and “withstand[ing]” discriminatory conduct; or, “to be hostile or adverse to, as in opinion.” Id. (quoting Webster’s New International Dictionary 1710 (2d ed. 1958) and Random House Dictionary of the English Language 1359 (2d ed. 1987)). The Court explained:

“Oppose” goes beyond “active, consistent” behavior in ordinary discourse, where we would naturally use the word to speak of someone who has taken no action at all to advance a position beyond disclosing it. . . . There is . . . no reason to doubt that a person can “oppose” by responding to someone else’s questions just as surely as by provoking the discussion, and nothing in the statute requires a freakish rule protecting an employee who reports discrimination on her own initiative but not one who reports the same discrimination in the same words when her boss asks a question.

Id. at 851. The Court concluded that:

[t]he statement Crawford says she gave to [her employer] is thus covered by the opposition clause, as an ostensibly disapproving account of sexually obnoxious behavior toward her by a fellow employee, an answer she says antagonized her employer to the point of sacking her on a false pretense. Crawford’s description of the louche goings-on would certainly qualify in the minds of reasonable jurors as “resist[ant]” or “antagoni[stic]” to [the supervisor’s] treatment, if for no other reason than the point argued by the Government and explained by an EEOC guideline: “When an employee communicates to her employer a belief that the employer has engaged in . . . a form of employment discrimination, that communication” virtually always “constitutes the employee’s opposition to the activity.” Brief for United States as Amicus Curiae 9 (citing 2 EEOC Compliance Manual §§ 8-II-B(1), (2), p. 614:0003 (Mar. 2003)); see also Fed. Express Corp. v. Holowecki, 128 S. Ct. 1147 (2008) (explaining that EEOC compliance manuals “reflect ‘a body of experience and informed judgment to which courts and litigants may properly resort for guidance’” (quoting Bragdon v. Abbott, 524 U.S. 624 (1998)).

Id. at 850-51.

The Court reasoned that to limit the protection of § 704(a) to “active, consistent” behavior would undermine the primary objective of the statute of avoiding harm to employees, because “[i]f it were clear law that an employee who reported discrimination in answering an employer’s questions could be penalized with no remedy, prudent employees would have a good reason to keep quiet about Title VII offenses against themselves or against others.” Id. at 852.

However, Crawford’s reach does not extend to the present circumstances. As Justice Alito accurately noted in his concurring opinion in Crawford, “[t]he question whether the opposition clause shields employees who do not communicate their views to their employers through purposive conduct is not before us in this case.” Crawford, 129 S. Ct. at 855 (Alito, J., concurring). As he further opined, to extend the Court’s holding beyond employees who testify in internal investigations or engage in analogous purposive conduct “would have important practical implications” and “would open the door to retaliation claims by employees who never expressed a word of opposition to their employers” – exactly the conundrum presented in the instant case. Id. at 854. Indeed, the present factual circumstances are even further removed from Crawford. As we have emphasized, Thompson does not allege in his complaint that he personally engaged in any statutorily protected activity or “opposition” to discrimination.7 Moreover, as Judge Moore concedes in her dissent, “[i]t does not appear that Thompson himself informed any of his supervisors that he aided Regalado with filing her complaint.” (Moore, J., dissenting, p. 7 n.7).8 Thus, even in the wake of Crawford, Thompson has failed to raise a genuine issue of material fact that he engaged in protected activity by personally “opposing” a discriminatory practice under Title VII’s anti-retaliation provision.

B.

In Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006), the Court settled a circuit court split regarding the scope of Title VII’s anti-retaliation provision, specifically, the reach of its phrase “discriminate against”: “Does that provision confine actionable retaliation to activity that affects the terms and conditions of employment? And how harmful must the adverse actions be to fall within its scope?” Burlington Northern, 548 U.S. at 57. The Court answered these questions as follows: 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.

In Burlington Northern, the petitioner-employer suspended an employee without pay for insubordination, but later rescinded the suspension and awarded her back pay. The employee alleged that the employer’s actions were in retaliation for her complaints about gender discrimination in the workplace. Noting that Title VII’s substantive provision, § 703(a), protects an individual only from employment-related discrimination, the employer argued that § 704(a) should be read in para materia with § 703(a) to similarly require a link between the challenged retaliatory action and the terms, conditions, or status of employment. Id. at 61.

In rejecting the employer’s contention, the Court scrutinized carefully the statutory language of the two provisions and found that they differed in significant respects. Id. Unlike § 703(a), the anti-retaliation provision does not contain words limiting its scope to actions that affect employment or alter the conditions of the workplace. Id. at 62. Applying statutory construction principles, the Court presumed that “where words differ as they differ here, ‘Congress acts intentionally and purposely in the disparate inclusion or exclusion,’” id. at 63 (quoting Russello v. United States, 464 U.S. 16, 23 (1983)), and therefore concluded that the substantive and anti-retaliation provisions are not coterminous:

[T]he two provisions differ not only in language but in purpose as well. The anti-discrimination provision seeks a workplace where individuals are not discriminated against because of their racial, ethnic, religious, or gender-based status. The anti-retaliation provision seeks to secure that primary objective by preventing an employer from interfering (through retaliation) with an employee’s efforts to secure or advance enforcement of the Act’s basic guarantees. The substantive provision seeks to prevent injury to individuals based on who they are, i.e., their status. The antiretaliation provision seeks to prevent harm to individuals based on what they do, i.e., their conduct.

* * *

[O]ne cannot secure the second objective by focusing only upon employer actions and harm that concern employment and the workplace. Were all such actions and harms eliminated, the anti-retaliation provision’s objective would not be achieved. An employer can effectively retaliate against an employee by taking actions not directly related to his employment or by causing him harm outside the workplace. A provision limited to employment-related actions would not deter the many forms that effective retaliation can take. Hence, such a limited construction would fail to fully achieve the anti-retaliation provision’s “primary purpose,” namely, “[m]aintaining unfettered access to statutory remedial mechanisms.” Robinson, 519 U.S. at 346. Id. at 63-64 (internal citations omitted).

The Court concluded 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 64. Thompson argues that, in light of the Court’s determination in Burlington Northern that the phrase “discriminated against” should be generously interpreted to preserve “unfettered access to [Title VII’s] statutory remedial mechanisms,” id. at 64, the statutory language at issue in the present case also should be construed broadly, for the same reason. Thompson asserts that if we engage in a restrictive literal reading of § 704(a) and require that the person filing the retaliation claim be the same person who either engaged in or assisted in the protected activity, this narrow construction will defy the statute’s purpose and deter individuals from exercising their protected rights. We disagree.

First, we state the obvious – the Court in Burlington Northern addressed the scope of actionable retaliation committed by the employer under § 704(a), an issue that is separate and distinct from whether § 704(a) permits an employee who did not himself engage in protected activity to bring a retaliation claim and that requires interpretation of entirely different language.9 Moreover, in concluding that § 704(a) does not confine retaliatory acts to those related to employment or the workplace, the Court noted that “no such limiting words” appear in the statute and thus declined to incorporate restrictions not expressly set forth in the plain language of the text.

The statutory language of § 704(a) pertinent to the present case is not silent regarding who falls under the umbrella of its protection. It explicitly identifies those individuals who are protected – employees who “opposed any practice made an unlawful employment practice” or who “made a charge, testified, assisted or participated in any manner in an investigation, proceeding, or hearing” under Title VII. Section 704(a) thus clearly limits the class of claimants to those who actually engaged in the protected activity.

As the Court concluded in Burlington Northern, unlike Title VII’s substantive provision that bars employment based on an individual’s status as a member of a protected class, “the anti-retaliation provision seeks to prevent harm to individuals based on what they do, i.e., their conduct.” Burlington Northern, 548 U.S. at 63 (emphasis added). In other words, Congress carefully chose qualifying words of action (“opposed,” “testified,” “made a charge,” “participated,” “assisted”), not words of association. Even under the most generous definition of “oppose” recognized by the Court in Crawford – “to be hostile or adverse to, as in opinion” – a plaintiff must engage in a discrete, identifiable, and purposive act of opposition to discrimination. Crawford, 129 S. Ct. at 850. Thus, such action is a critical component of a prima facie case of retaliation under Title VII. The plain text simply cannot be read to encompass “piggyback” protection of employees like Thompson who, by his own admission, did not engage in protected activity, but who is merely associated with another employee who did oppose an alleged unlawful employment practice.

C.

We must look to what Congress actually enacted, not what we believe Congress might have passed were it confronted with the facts at bar. For the reasons we have laid out, it was not “absurd” for Congress to limit the class of persons who are entitled to sue to employees who personally opposed a practice, made a charge, assisted, or participated in an investigation. Our interpretation does not undermine the anti-retaliation provision’s purpose because retaliation is still actionable, but only in a suit by a primary actor who engaged in protected activity and not by a passive bystander.10

* * *

See: http://www.ca6.uscourts.gov/opinions.pdf/09a0202p-06.pdf

Outcome: For these reasons, we affirm the judgment of the district court and hold that § 704(a) of Title VII does not create a cause of action for third-party retaliation for persons who have not personally engaged in protected activity.

Plaintiff's Experts:

Defendant's Experts:

Comments: