Page

PERTINENT STATUTORY AND REGULATORY PROVISIONS. 2

I. A discriminatory notice of future termination — even one leaving open the possibility of continued employment in another position — is actionable under the ADA and the ADEA. 7

II. A discriminatory lateral transfer is actionable disparate treatment under the ADA and the ADEA. 16

CONCLUSION.. 25

CERTIFICATE OF COMPLIANCE.. 26

CERTIFICATE OF SERVICE.. 28

ADDENDUM

TABLE OF AUTHORITIES

Page(s)

Cases

Almond v. Unified Sch. Dist. No. 501,
665 F.3d 1174 (10th Cir. 2011)................................................... 14

Bailey v. United Airlines,
279 F.3d 194 (3d Cir. 2002)........................................................ 12

Barber v. CSX Distrib. Servs.,
68 F.3d 694 (3d Cir. 1995)............................................................. 8

Bostock v. Clayton Cnty.,
140 S. Ct. 1731 (2020).................................................................. 21

Burlington Indus., Inc. v. Ellerth,
524 U.S. 742 (1998)................................................................ 22, 23

Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53 (2006)......................................................................... 23

Cardenas v. Massey,
269 F.3d 251 (3d Cir. 2001)........................................................ 21

Chardon v. Fernandez,
454 U.S. 6 (1981) (per curiam)...................................... 10, 13, 15

Chen v. Ashcroft,
381 F.3d 221 (3d Cir. 2004)........................................................ 19

Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,
467 U.S. 837 (1984)...................................................................... 19

Chi. Tchrs. Union, Local 1 v. Bd. of Educ. of Chi.,
419 F. Supp. 3d 1038 (N.D. Ill. 2020), appeal on other grounds docketed, No. 20-1167 (7th Cir. Jan. 31, 2020).......................... 15

Colgan v. Fisher Sci. Co.,
935 F.2d 1407 (3d Cir. 1991) (en banc).................................... 12

Deane v. Pocono Med. Ctr.,
142 F.3d 138 (3d Cir. 1998) (en banc)...................................... 19

Delaware State Coll. v. Ricks,
449 U.S. 250 (1980)................................................................. passim

EEOC v. Metal Serv. Co.,
892 F.2d 341 (3d Cir. 1990)........................................................... 8

Flowers v. S. Reg’l Physician Servs. Inc.,
247 F.3d 229 (5th Cir. 2001)....................................................... 17

Fowle v. C & C Cola,
868 F.2d 59 (3d Cir. 1989)............................................................. 8

Green v. Brennan,
136 S. Ct. 1769 (2016).................................................................. 10

Heffernan v. City of Paterson,
136 S. Ct. 1412 (2016).................................................................. 12

Int’l Brotherhood of Teamsters v. United States,
431 U.S. 324 (1977)...................................................................... 21

Jones v. Sch. Dist. of Phila.,
198 F.3d 403 (3d Cir. 1999)........................................................... 8

Langley v. Merck & Co.,
186 F. App’x 258 (3d Cir. 2006).......................................... 20, 21

Lanman v. Johnson Cnty.,
393 F.3d 1151 (10th Cir. 2004)................................................... 17

Levine v. Fairleigh Dickinson Univ.,
646 F.2d 825 (3d Cir. 1981)........................................................ 20

McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973).................................................................... 7, 8

Meritor Sav. Bank v. Vinson,
477 U.S. 57 (1986).................................................................. 17, 24

Mikula v. Allegheny Cnty.,
583 F.3d 181 (3d Cir. 2009)........................................................... 2

Oncale v. Sundowner Offshore Servs., Inc.,
523 U.S. 75 (1998)......................................................................... 17

Ortiz-Diaz v. U.S. Dep’t of Hous. & Urb. Dev.,
867 F.3d 70 (D.C. Cir. 2017)...................................................... 18

Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133 (2000)......................................................................... 8

Shultz v. Congregation Shearith Israel of City of New York,
867 F.3d 298 (2d Cir. 2017).................................................. 13, 15

Singletary v. Howard Univ.,
939 F.3d 287 (D.C. Cir. 2019).................................................... 14

Stewart v. Union Cnty. Bd. of Educ.,
655 F. App’x 151 (3d Cir. 2016)................................................. 22

Storey v. Burns Int’l Sec. Servs.,
390 F.3d 760 (3d Cir. 2004)...................................................... 8, 9

Sutton v. United Air Lines, Inc.,
527 U.S. 471 (1999)...................................................................... 19

Swain v. City of Vineland,
457 F. App’x 107 (3d Cir. 2012)................................................. 22

Taniguchi v. Kan Pac. Saipan, Ltd.,
566 U.S. 560 (2012)...................................................................... 17

Tice v. Centre Area Transp. Auth.,
247 F.3d 506 (3d Cir. 2001)........................................................ 19

Torre v. Casio, Inc.,
42 F.3d 825 (3d Cir. 1994).......................................................... 24

Walton v. Mental Health Ass’n of Se. Pa.,
168 F.3d 661 (3d Cir. 1999)........................................................... 7

Watson v. Eastman Kodak Co.,
235 F.3d 851 (3d Cir. 2000)....................................... 1, 11, 12, 15

Statutes

Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. §§ 621 et seq.................................................................. passim

29 U.S.C. § 621(b)......................................................................... 16

29 U.S.C. § 623(a)(1)..................................................... 7, 9, 17, 22

29 U.S.C. § 628.............................................................................. 20

29 U.S.C. § 631(a)............................................................................ 7

Americans with Disabilities Act of 1990, as amended (ADA), 42 U.S.C. §§ 12101 et seq.............................................................. passim

42 U.S.C. § 12101.......................................................................... 19

42 U.S.C. § 12102.......................................................................... 19

42 U.S.C. §§ 12111-12117........................................................... 19

42 U.S.C. § 12112(a)............................................................... passim

42 U.S.C. § 12116.......................................................................... 18

ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553................................................................................................. 19

§ 6(a)(2) (codified at 42 U.S.C. § 12205a)................................. 19

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

42 U.S.C. § 2000e-2(a)(1).................................................. 9, 17, 18

42 U.S.C. § 2000e-5(e)(1)............................................................. 10

31 U.S.C. § 3730(h)(1)........................................................................ 14

Regulations

29 C.F.R. § 1625.2............................................................................... 20

29 C.F.R. § 1630.4(a)(1)..................................................................... 18

Administrative Materials

72 Fed. Reg. 36873 (July 6, 2007).................................................... 20

76 Fed. Reg. 16978 (Mar. 25, 2011)................................................. 19

Rules

Fed. R. App. P. 29(a)(2)....................................................................... 1

Other Materials

Br. for the Resp’t in Opp’n, Forgus v. Esper,
— S. Ct. —, 2020 WL 5882216 (Oct. 5, 2020), 2019 WL 2006239........................................................................................... 18

Br. for the United States as Amicus Curiae, Peterson v. Linear Controls, Inc., 140 S. Ct. 2841 (2020), 2020 WL 1433451....... 18

STATEMENT OF INTEREST

The Equal Employment Opportunity Commission (“EEOC” or “Commission”) is the primary agency charged by Congress with administering and enforcing federal laws prohibiting workplace discrimination, including the employment provisions of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12101 et seq., as amended; and the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. §§ 621 et seq. This appeal potentially raises two important questions: (1) whether a discriminatory notice to an employee indicating that she will be terminated in 60 days if she cannot find another position within the company is actionable under the ADA and ADEA; and (2) whether a discriminatory lateral transfer is actionable under the ADA and ADEA. Because the EEOC has a strong interest in eradicating all forms of unlawful workplace discrimination, it offers its views to the Court. See Fed. R. App. P. 29(a)(2).

STATEMENT OF THE ISSUES[1]

1. In Watson v. Eastman Kodak Co., 235 F.3d 851 (3d Cir. 2000), this Court held that a notice of future termination constitutes an “adverse employment action” triggering the statute of limitations for filing an EEOC charge under the ADEA, even if the notice holds open the possibility of continued employment in a different position. Does such a notice also constitute an “adverse employment action” for the purpose of establishing that element of a prima facie case of employment discrimination under the ADA and ADEA?

2. Does a discriminatory lateral transfer constitute actionable disparate treatment under the ADA and ADEA?

PERTINENT STATUTORY AND REGULATORY PROVISIONS

Pertinent statutory and regulatory provisions are reproduced in the addendum to this brief.

STATEMENT OF THE CASE

A. Factual Background [2]

Plaintiff-Appellant Kathleen Fowler started working for Defendant-Appellee AT&T Services, Inc. (“AT&T”), in 1986. By 2012, she had become a Senior Market Research & Analysis Manager within the company’s Technology Planning and Engineering business unit. I.App.6.[3]

Fowler was diagnosed with epilepsy in 2006 and with breast cancer in January 2015. III.App.1356-57, 1845-46. She began a year-long course of chemotherapy treatments in May 2015. III.App.1848. AT&T was aware of Fowler’s cancer diagnosis, her chemotherapy, and the side effects she was experiencing from the chemotherapy. III.App.1380-82, 1386, 1845-46; IV.App.1949, 2075. Notwithstanding the inherent difficulties of working while undergoing cancer treatment, Fowler’s supervisor — Glenna Eastwood — concluded in her 2015 performance review that Fowler was a “key contributor” to her team and that her “overall performance solidly meets expectations.” III.App.1833.

In December 2015, AT&T decided to reduce the number of positions within Fowler’s unit by consolidating jobs, eliminating duplicative work, and reducing work deemed nonessential. I.App.6. This process ultimately resulted in the reduction of 267 positions within the unit. Id. In Fowler’s group of 55 employees, AT&T eliminated 17 positions. III.App.1859.

According to AT&T, to determine which employees to remove as part of the downsizing, the company assessed each individual’s performance, leadership, skills, and experience. III.App.1861. AT&T placed the lowest-scoring employees on “surplus status,” meaning they were given the choice of (1) ending their employment and immediately receiving severance benefits or (2) remaining on the payroll for 60 days while they applied for another position within AT&T. III.App.1676-79; IV.App.2102. AT&T’s notice to employees placed on surplus status told them that it would give them “priority consideration among equally qualified candidates” if they sought other positions within the company. III.App.1677. The notice also explained that if any such employee was unable to secure a new position by the end of the 60-day grace period, her employment would end at that time. Id.

According to testimony by Fowler’s supervisor, at the time that AT&T was making these surplus decisions, Fowler was a key contributor to the team, a good employee, a hard worker, diligent, and detail-oriented. III.App.1377, 1379; cf. III.App.1832-33 (performance review noting these characteristics). Based on Eastwood’s subjective rankings, however, Fowler received the sixth-lowest score in her group of 55 employees and was among the 17 employees placed on surplus status in January 2016. III.App.1859. She was 59 years old at the time. I.App.6. Eastwood claimed that neither Fowler’s cancer diagnosis nor her treatment was taken into account in making the surplus decision. II.App.477, 479. At her deposition, however, Eastwood struggled to explain why she gave Fowler particular rankings in various categories, repeatedly stating that she could not provide a reason for the rankings or remember anything about the rating. III.App.1394-96.

Eastwood also could not explain why she gave higher ratings to other employees who were significantly younger and did not have disabilities. For example, when asked numerous questions about her rating of Josh Howard, who was age 42 and not disabled, Eastwood repeatedly responded that she could recall nothing about why she rated him more highly. III.App.1398-99. As to Benny Wesberry, who was age 40 and not disabled, Eastwood was asked whether she considered him a more valuable member of the team than Fowler. Eastwood responded “no.” When then asked why she rated him more highly, Eastwood could only respond, “I don’t know.” III.App.1403-04. Fowler identified other employees, younger and not disabled, who received similar ratings on their 2015 annual performance reviews as Fowler and yet were not placed on surplus. III.App.1147-48.

Fowler also produced an expert report identifying flaws in AT&T’s surplus guidelines. IV.App.2143-73. And she presented evidence that AT&T did not train the individuals responsible for making surplus decisions on how to avoid discriminatory bias. III.App.1393, 1509-11, 1520, 1540, 1618-19.

After submitting 94 applications for alternative positions within AT&T, Fowler received two job offers: a Senior System Engineer position in New Jersey and a Lead Financial Analyst position in Texas. III.App.1868; I.App.7. She opted for the New Jersey position because of her New Jersey-based cancer treatments. I.App.7. Fowler began the new position on March 1, 2016. Id.

Soon after starting the job, she indicated to her supervisors that it did not match her skills. I.App.8. Her former job involved analytic marketing research for marketing and business planning, while the new one, in a different business unit, primarily involved software development. II.App.202. On October 28, 2016, AT&T again placed a number of employees on surplus status, including Fowler. III.App.1860-61; I.App.9. She applied for 102 positions with AT&T during the 60-day grace period, but she received no offers. III.App.1806. Fowler’s last day of employment with AT&T was December 27, 2016. III.App.1858.

B. Procedural Background

Fowler filed suit against AT&T. Among other things, Fowler alleged that AT&T selected her for the January 2016 surplus because of her disabilities and age, in violation of the A DA and the ADEA, respectively. See I.App.5 & n.1.

The district court granted AT&T’s motion for summary judgment. As relevant here, the court concluded that the initial surplus was not actionable under the ADA and the ADEA because Fowler ultimately obtained another job at the company, and she did not show that her new position involved significantly different job duties or a decrease in pay, benefits, or career advancement prospects. I.App.13-15. Because the court determined that there was no genuine dispute of material fact as to whether the January 2016 surplus and subsequent job change affected Fowler’s “compensation, terms, conditions, or privileges of employment,” it held that she could not establish the “adverse employment action” prong necessary for a prima facie case of disparate treatment under both the ADA and the ADEA. Id. (quoting Cardenas v. Massey, 269 F.3d 251, 263 (3d Cir. 2001)).

ARGUMENT

AT&T’s placement of Fowler on surplus status in January 2016 — which meant that AT&T would terminate her if she was unable to find another position within 60 days — was actionable under the A DA and ADEA, assuming that Fowler could establish that the reasons behind the placement were discriminatory. This is true for at least two reasons. First, precedent from the Supreme Court and this Court are clear that similar notices of future termination constitute an adverse employment action, triggering the statute of limitations for filing an administrative charge with the EEOC. As several other courts of appeals have held, it follows that such notices of future termination also satisfy the “adverse employment action” element of a prima facie case of discrimination. Second, even if this Court were to treat AT&T’s actions relating to the January 2016 surplus as a lateral transfer, rather than a termination, discriminatory lateral transfers are actionable under the clear terms of the disparate treatment provisions of the ADA and the ADEA.

I. A discriminatory notice of future termination — even one leaving open the possibility of continued employment in another position — is actionable under the ADA and the ADEA.

The ADA prohibits certain workplace “discriminat[ion] against a qualified individual on the basis of disability.” 42 U.S.C. § 12112(a). The ADEA, similarly, outlaws specified age-based employment “discriminat[ion]” against individuals who are at least 40 years old. 29 U.S.C. §§ 623(a)(1), 631(a).

In McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the Supreme Court established a burden-shifting evidentiary framework that applies to certain discrimination claims under the ADA and the ADEA, as well as Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. See McDonnell Douglas, 411 U.S. at 802-05 (applying framework to a claim of discrimination under Title VII); Walton v. Mental Health Ass’n of Se. Pa., 168 F.3d 661, 667-68 (3d Cir. 1999) (applying framework to ADA claims); Fowle v. C & C Cola, 868 F.2d 59, 61 (3d Cir. 1989) (applying framework to ADEA claims).[4] Under that framework, a plaintiff seeking to rely on circumstantial evidence to prove disparate treatment on the basis of a protected characteristic (such as disability or age) must first establish a prima facie case by a preponderance of the evidence. McDonnell Douglas, 411 U.S. at 802-05; EEOC v. Metal Serv. Co., 892 F.2d 341, 347 (3d Cir. 1990).[5]

As part of this prima facie case, the plaintiff must show that she was subjected to what courts have termed an “adverse employment action.” E.g., Jones v. Sch. Dist. of Phila., 198 F.3d 403, 411 (3d Cir. 1999) (noting that an “adverse employment action” is part of a prima facie case under Title VII, ADA, and ADEA). This Court defines an adverse employment action as one that is “serious and tangible enough to alter an employee’s compensation, terms, conditions, or privileges of employment.” Storey v. Burns Int’l Sec. Servs., 390 F.3d 760, 764 (3d Cir. 2004) (citation omitted). That requirement arises directly from the text of each statute: (1) the ADA covers discrimination against a qualified individual on the basis of disability “in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment,” 42 U.S.C. § 12112(a); and (2) the ADEA covers the “fail[ure] or refus[al] to hire or [the] discharge [of] any individual” or any other “discriminat[ion] against any individual with respect to his compensation, terms, conditions, or privileges of employment,” because of such individual’s age, 29 U.S.C. § 623(a)(1). Cf. Storey, 390 F.3d at 764 (describing the connection between the adverse-action requirement and the pertinent statutory text in the Title VII context, 42 U.S.C. § 2000e-2(a)(1), which is materially identical to the ADEA text just quoted, except that it applies to discrimination based on race, sex, and other specified characteristics).

The district court held that the January 2016 surplus, when AT&T first informed Fowler that she would be terminated in 60 days if she could not find another position within the company, III.App.1677, was not an adverse employment action. I.App.13-15. But both the Supreme Court and this Court have held that a notice of future termination — even one accompanied by the possibility of continued employment in a different position — constitutes an adverse employment action triggering the statute of limitations for filing an EEOC charge. Several other courts of appeals, in turn, have applied this principle to conclude that a plaintiff in receipt of such a future termination notice has established the “adverse action” element of a prima facie case of employment discrimination.

In Delaware State College v. Ricks, 449 U.S. 250 (1980), the plaintiff was a college professor whose employer denied him tenure and, around the same time, offered him a “terminal” contract to teach one additional year. Id. at 252-53. The parties disputed whether the plaintiff’s EEOC charge alleging discrimination in the denial of his tenure was timely under Title VII, which requires that a charge be filed within a specified period “after the alleged unlawful employment practice occurred.” 42 U.S.C. § 2000e-5(e)(1). The Supreme Court held that “the only alleged discrimination occurred — and the . . . limitations periods [for filing a charge] therefore commenced — at the time the tenure decision was made and communicated to [the plaintiff].” 449 U.S. at 258. This was true, the Court concluded, “even though one of the effects of the denial of tenure — the eventual loss of a teaching position — did not occur until later.” Id. Thus, although the plaintiff had filed an EEOC charge before his employment at the college ended, id. at 254, the Court held that the plaintiff’s charge was untimely because he did not file it within the prescribed period after “the [c]ollege had established its official position [on the denial of tenure] — and made that position apparent to [the plaintiff].” Id. at 262.

The Supreme Court subsequently reaffirmed this holding several times in non-tenure contexts. See Chardon v. Fernandez, 454 U.S. 6, 8 (1981) (per curiam) (“[T]he proper focus is on the time of the discriminatory act, not the point at which the consequences of the act become painful. The fact of termination is not itself an illegal act.”); Green v. Brennan, 136 S. Ct. 1769, 1782 (2016) (“[A]n ordinary wrongful-discharge claim accrues — and the limitations period begins to run — when the employer notifies the employee he is fired, not on the last day of his employment.”).

This Court addressed a similar issue in W atson v. Eastman Kodak Co., 235 F.3d 851 (3d Cir. 2000). In that case, an account executive received notice from his employer that it was removing him from his job and that he would be terminated if he did not find another position within the organization in the next month. When he failed to do so, the company terminated him. Id. at 853. Under Title VII and the ADEA, he was required to file any charge within 300 days after “the alleged unlawful employment practice occurred.” Id. at 855 (citations omitted). He filed his charge more than 300 days after receiving notice of the impending termination but fewer than 300 days after the date of termination. Id. at 852-54. Following Ricks, this Court held that his charge challenging his removal from the account executive position was untimely. Id. at 856-57. In reaching this conclusion, this Court explained that it was irrelevant that the letter informing the plaintiff of his job removal “left open the possibility of continued employment in another position with Kodak.” Id. at 855-56. The Court analogized the case to Ricks, where the plaintiff had begun an internal grievance process that might have resulted in tenure, but the Supreme Court nonetheless concluded that that possibility did not render the notice in any way ambiguous or equivocal. Id. at 856 (citing Ricks, 449 U.S. at 260-61).

Under Ricks and Watson, the January 2016 surplus constituted an adverse employment action, even though AT&T left open the possibility that Fowler could secure alternative continued employment.[6] See Ricks, 449 U.S. at 258 (holding that the alleged discrimination occurred at the time the decision was made and communicated to the plaintiff, even though the loss of position did not occur until later); Watson, 235 F.3d at 855-56 (rejecting the argument that Ricks did not apply because the termination letter left open the possibility of continued employment). Although this Court has not yet applied Ricks beyond the timeliness context to cases concerning the adverse employment action element of a prima facie case of discrimination, several other courts of appeals have relied on Ricks to conclude that a notice of an impending termination satisfies that element. Cf. Heffernan v. City of Paterson, 136 S. Ct. 1412, 1418 (2016) (“[I]n the law, what is sauce for the goose is normally sauce for the gander.”).

Shultz v. Congregation Shearith Israel of City of New York, 867 F.3d 298 (2d Cir. 2017), for example, involved an employee who informed her employer that she was pregnant. Id. at 302. The employer responded by eliminating her position, telling her that her employment would end in three weeks, and offering her a severance agreement in exchange for a promise not to sue. Id. The employee refused to sign the agreement and instead retained a lawyer. Two weeks later, the employer rescinded the termination. Id. at 302-03. The employee nevertheless sued under Title VII, claiming the notice of termination was based on sex and was actionable despite the subsequent revocation, and seeking relief for the costs associated with the employer’s actions. Id. at 303-04. The Second Circuit held that “notification of termination qualifies as an adverse employment action” for Title VII purposes. Id. at 305. As the court explained, this conclusion “follows ineluctably” from Ricks and Chardon, “because a limitations period ordinarily commences when the plaintiff has a complete and present cause of action.” Id. (citation omitted).

The Second Circuit held that the employer’s subsequent rescission of the termination “cannot eliminate the adverse employment action that has already occurred, and negate an accrued claim for relief,” though it may limit damages. Id. at 305-06. Under the facts of the case, the court explained, the two-week period before the rescission meant that the plaintiff “had ample time to experience the dislocation of losing her employment at a particularly vulnerable time [and] undertake the effort of retaining counsel.” Id. at 307; see also id. (distinguishing between a rescinded counseling letter and a rescinded termination notice: “A notice of termination is unlike other types of actions that an employer may take towards an employee in that it announces the complete termination of the employment relationship. To put it mildly, ‘[e]ven under the most optimal circumstances . . . termination of an employee is likely to give rise to bad feelings and anxiety.’” (citation omitted)).

The D.C. Circuit came to a similar conclusion in Singletary v. Howard University, 939 F.3d 287 (D.C. Cir. 2019). In that case, the employer notified an employee in June 2014 that she would be terminated effective December 2014. Id. at 294. The employee left her position in August 2014 and subsequently sued, alleging the termination violated her rights under the False Claims Act’s whistleblower protections. The D.C. Circuit first noted that the False Claims Act (like the ADA and ADEA) makes a “discharge” actionable. Id. at 299 (citing 31 U.S.C. § 3730(h)(1)). It then rejected the employer’s argument that the plaintiff was not terminated because she left before the termination was to have taken effect. Id. at 299-300. Instead, the court explained, “the mere notice of termination is a cognizable adverse employment action regardless of whether the employer follows through.” Id. at 300; see also, e.g., Almond v. Unified Sch. Dist. No. 501, 665 F.3d 1174, 1177 (10th Cir. 2011) (Gorsuch, J.) (“[A]dverse employment actions can involve entirely deferred consequences — such as a . . . notice of termination with a grace period before actual firing occurs.”).

Based on these decisions, the January 2016 surplus was an adverse employment action for purposes of establishing a prima facie case under the ADA and the ADEA, even though the termination was not immediate, and even though Fowler was ultimately able to find an alternative position within AT&T during the 60-day grace period (after submitting 94 applications for other positions, see III.App.1868). Pursuant to Ricks, Chardon, Watson, and their progeny, the existence of a grace period does not render advance notice of the surplus any less of an adverse employment action. The fact that Fowler was able to secure another position may limit the damages stemming from that adverse action, see Shultz, 867 F.3d at 305-06, but it does not mean that she is wholly precluded from bringing a claim based on the notice of impending termination. Cf. Chi. Tchrs. Union, Local 1 v. Bd. of Educ. of Chi., 419 F. Supp. 3d 1038, 1045-48 (N.D. Ill. 2020) (explaining that the court was inclined to conclude that a notice of impending layoff could be challenged as part of the plaintiffs’ Title VII disparate impact claim, even if many class members found alternative employment at the same rate of pay before the layoff went into effect: “Regardless of the fact that many class members found other positions during a short grace period, the fact remains that their positions were closed and the onus was on them to secure new ones. Thus, they fully experienced the dislocation of losing employment and necessity of taking action to recoup the loss that the plaintiff in Shultz experienced . . . .” (citation and alteration omitted)), appeal on other grounds docketed, No. 20-1167 (7th Cir. Jan. 31, 2020); id. at 1048 (noting that finding a new position might mitigate damages, but it did not nullify the adverse action).

II. A discriminatory lateral transfer is actionable disparate treatment under the ADA and the ADEA.

The district court analyzed Fowler’s change in job status following the January 2016 surplus as a mere lateral transfer to a position of equal desirability, pay, and benefits, as well as comparable duties, responsibilities, and advancement prospects. I.App.14-15. For the reasons identified above, the court erred in doing so because the surplus notice — a notice of termination from Fowler’s original position — was an adverse employment action regardless of whether Fowler ultimately obtained another job. However, even if this Court were likewise to view that surplus as a decision to transfer Fowler laterally from her position of Senior Market Research & Analysis Manager to the position of Senior System Engineer in a separate business unit, it would still satisfy the adverse employment action component of the prima facie case of disparate treatment discrimination.[7]

As noted above, under the ADA, an employer may not “discriminate against a qualified individual on the basis of disability in regard to . . . discharge of employees . . . and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). Similarly, in keeping with the ADEA’s purpose of “prohibit[ing] arbitrary age discrimination in employment,” 29 U.S.C. § 621(b), an employer may not “discharge any individual or otherwise discriminate against any individual with respect to his . . . terms, conditions, or privileges of employment, because of such individual’s age,” 29 U.S.C. § 623(a)(1). The Supreme Court has explained that when Congress used the similar phrase “terms, conditions, or privileges of employment” in Title VII, 42 U.S.C. § 2000e-2(a)(1), it intended this wording “to strike at the entire spectrum of disparate treatment,” not merely “economic or tangible discrimination.” M eritor Sav. Bank v. Vinson, 477 U.S. 57, 64 (1986) (citation omitted); see also Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998) (noting that Title VII’s prohibition on discrimination extends beyond “‘terms’ and ‘conditions’ in the narrow contractual sense” (quoting 42 U.S.C. § 2000e-2(a)(1))); Flowers v. S. Reg’l Physician Servs. Inc., 247 F.3d 229, 233 (5th Cir. 2001) (applying Meritor’s interpretation of “terms, conditions, and privileges of employment” in the ADA context); Lanman v. Johnson Cnty., 393 F.3d 1151, 1156 (10th Cir. 2004) (same).

The discrimination statutes do not specially define the phrase “terms, conditions, [and/or] privileges of employment.” As the Supreme Court has explained, “When a term goes undefined in a statute,” the court must “give the term its ordinary meaning.” Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560, 566 (2012). Under the ordinary meaning of these statutory terms, a formal transfer from one job to another plainly implicates the “terms” or “conditions” of employment. 42 U.S.C. § 12112(a); 29 U.S.C. § 623(a)(1). Indeed, the position itself is the quintessential “term[]” or “condition[]” of employment. Id. Thus, any discriminatory transfer an employer bases on an employee’s disability or age clearly amounts to actionable discrimination under the disparate treatment provisions of the ADA or ADEA. Cf. Ortiz-Diaz v. U.S. Dep’t of Hous. & Urb. Dev., 867 F.3d 70, 81 (D.C. Cir. 2017) (Kavanaugh, J., concurring) (stating, in the Title VII context, that a discriminatory transfer or denial of transfer “plainly constitutes discrimination with respect to compensation, terms, conditions, or privileges of employment” (citation omitted)); id. at 80-81 (Rogers, J., concurring) (similar). In two recent briefs filed in the Supreme Court, the United States addressed the scope of the phrase “terms, conditions, or privileges of employment” in Title VII, 42 U.S.C. § 2000e-2(a)(1), and it similarly argued that all discriminatory lateral transfers are actionable under that provision. See Br. for the Resp’t in Opp’n at 11-16, Forgus v. Esper, — S. Ct. —, 2020 WL 5882216 (Oct. 5, 2020) (denying certiorari petition) (No. 18-942), 2019 WL 2006239, at *11-16; Br. for the United States as Amicus Curiae at 15-17, Peterson v. Linear Controls, Inc., 140 S. Ct. 2841 (2020) (dismissing certiorari petition) (No. 18-1401), 2020 WL 1433451, at *15-17.

The EEOC’s regulations implementing the ADA support this interpretation of the statutory text. Those regulations make clear that the ADA covers “discriminat[ion] on the basis of disability against a qualified individual in regard to” a wide range of actions, including “transfer, layoff, [and] termination,” as well as “[j]ob assignments” and “[a]ny other term, condition, or privilege of employment.” 29 C.F.R. § 1630.4(a)(1)(ii), (iv), (ix) (emphasis added). This Court has given the EEOC’s ADA regulations — which Congress directed the agency to issue, 42 U.S.C. § 12116, and which were promulgated after notice-and-comment rulemaking, see 76 Fed. Reg. 16978, 17002 (Mar. 25, 2011) — “substantial deference” under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844 (1984). Deane v. Pocono Med. Ctr., 142 F.3d 138, 143 n.4 (3d Cir. 1998) (en banc).^{^[8]} Under Chevron, when an agency is charged with implementing a statute, its interpretation of that statute is entitled to deference so long as it represents a reasonable construction of ambiguous statutory text. See, e.g., Chen v. Ashcroft, 381 F.3d 221, 224 (3d Cir. 2004). The EEOC’s construction here — that a discriminatory lateral transfer from one position to another implicates an employee’s “terms” or “conditions” of employment — is, at a minimum, reasonable.

This interpretation of the statutory phrase “terms, conditions, [and/or] privileges of employment” is also consistent with the EEOC’s regulations implementing the ADEA, which explain that the statute bars “discriminat[ion] against an individual in any aspect of employment because that individual is 40 years old or older,” unless a statutory exception applies. 29 C.F.R. § 1625.2 (emphasis added). Congress granted the EEOC the authority to issue those regulations, see 29 U.S.C. § 628, and the agency promulgated them following a notice-and-comment process, see 72 Fed. Reg. 36873, 36875 (July 6, 2007). Here again, the EEOC’s regulations are entitled to substantial deference. See Levine v. Fairleigh Dickinson Univ., 646 F.2d 825, 831 (3d Cir. 1981) (noting that deference is appropriate to the EEOC’s regulations implementing the ADEA “unless the interpretive regulation can be said not to be a reasoned and supportable interpretation of the statute”).

In concluding that Fowler’s transfer did not constitute an adverse employment action, the district court relied on this Court’s unpublished decision in Langley v. Merck & Co., 186 F. App’x 258 (3d Cir. 2006), which stated that “lateral transfers . . . are generally insufficient” to satisfy the “adverse employment action” element of a prima facie case of discrimination. I.App.13 (quoting Langley, 186 F. App’x at 260). But this Court should not follow Langley, for several reasons.

First, Langley is an unpublished decision and therefore does not constitute binding precedent. See 3d Cir. Internal Operating Proc. 5.7. Second, the decision finds no support in the text of the statutes themselves. Langley purports to add a requirement that a new position be objectively “inferior,” as determined by a court, in order for a discriminatory transfer to that position to be actionable, 186 F. App’x at 261, but this heightened requirement appears nowhere in the language of the ADA or the ADEA and is absent from the EEOC’s implementing regulations. Courts are not free to read language into statutes that does not appear in the text. See, e.g., Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1738 (2020) (emphasizing that “only the words on the page constitute the law adopted by Congress and approved by the President” and that judges should not “add to, remodel, update, or detract from” statutory terms).

Third, Langley’s reasoning is flawed. Langley cited this Court’s decision in Cardenas for the proposition that an “adverse employment action” must be “serious and tangible enough to alter an employee’s compensation, terms, conditions, or privileges of employment.” Langley, 186 F. App’x at 260 (quoting Cardenas, 269 F.3d at 263). But under that standard, the touchstone is whether an employment action “alter[ed],” inter alia, an employee’s “terms” or “conditions” of employment. As noted above, a lateral job transfer — here from the position of Senior Market Research & Analysis Manager to the position of Senior System Engineer in a different unit, see supra p. 5 — necessarily involves an alteration of the fundamental terms and conditions of employment. Even if a court were to deem a particular job transfer to impose no adverse consequences on an employee with regard to, inter alia, her pay, benefits, and employment opportunities, it does not follow that the transfer had no impact on the employee’s “terms” or “conditions” of employment within the meaning of the statutes. Cf. Int’l Brotherhood of Teamsters v. United States, 431 U.S. 324, 338 n.18 (1977) (“Of course, Title VII provides for equal opportunity to compete for any job, whether it is thought better or worse than another.”).

A number of other unpublished decisions of this Court have concluded that a discriminatory lateral transfer is not an actionable adverse employment action if it does not “materially change the terms and conditions of [the plaintiff’s] employment,” Stewart v. Union Cnty. Bd. of Educ., 655 F. App’x 151, 157 (3d Cir. 2016), or involve a “significant” change in “employment status” or benefits, Swain v. City of Vineland, 457 F. App’x 107, 110 (3d Cir. 2012). For the reasons noted above, however, those decisions ignored the text of the ADA and ADEA, which covers any discrimination “in regard to” or “with respect to” an employee’s “terms” or “conditions” of employment, 42 U.S.C. § 12112(a); 29 U.S.C. § 623(a)(1) — including when an employer discriminatorily transfers an employee to another position on the basis of disability or age.

A subset of those decisions also erroneously relied on a misreading of the Supreme Court’s decision in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). See, e.g., Swain, 457 F. App’x at 110. Ellerth involved a Title VII claim that a supervisor had created a discriminatory hostile work environment — and thereby altered “the terms or conditions of employment” — through “severe or pervasive” sexual harassment of an employee. 524 U.S. at 752. The question in Ellerth was not the substantive standard for such a claim; instead, the Supreme Court addressed the circumstances under which “an employer has vicarious liability” for a hostile work environment created by a supervisor. Id. at 754. Ellerth held that an employer is automatically vicariously liable under agency-law principles for a hostile work environment created by a supervisor when the supervisor’s actions culminate in a “tangible employment action,” meaning “a significant change in employment status.” Id. at 761, 765 (explaining that “tangible employment actions” include “hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits”). The Court reasoned that such a “tangible employment action” by a supervisor necessarily “requires an official act of the enterprise,” and therefore supports imposing vicarious liability on the employer under agency-law principles. Id. at 761-62. In the absence of such an employment action, Ellerth held, an employer may still be held liable, but it may avoid vicarious liability for a supervisor’s unlawful harassment if it can establish an affirmative defense, as outlined in the decision. Id. at 765.

Ellerth thus addressed an entirely separate issue. As the Supreme Court explained in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006), “Ellerth did not discuss the scope of the general [Title VII] antidiscrimination provision,” but rather invoked the concept of a “tangible employment action” “only to ‘identify a class of [hostile work environment] cases’ in which an employer should be held vicariously liable (without an affirmative defense) for the acts of supervisors.” Id. at 64-65 (second alteration in original) (emphasis added) (quoting Ellerth, 524 U.S. at 760-61). Indeed, because Ellerth held that liability may be imputed to employers for hostile work environments created by supervisors even in the absence of a tangible employment action, Ellerth, 524 U.S. at 766, it made clear that a tangible employment action is not a necessary ingredient of a discrimination claim. Cf. Meritor, 477 U.S. at 64 (explaining that, through its use of the phrase “terms, conditions, or privileges of employment” in Title VII, Congress intended “to strike at the entire spectrum of disparate treatment,” not merely “economic or tangible discrimination” (citations omitted)).

To be sure, this Court has issued published decisions suggesting in dictum that discriminatory transfers are not actionable under the statutory provisions discussed above in the absence of a showing that the transfer was objectively harmful in some way. See, e.g., Torre v. Casio, Inc., 42 F.3d 825, 831 n.7 (3d Cir. 1994) (stating that “[i]t is clear . . . that a transfer, even without loss of pay or benefits, may, in some circumstances, constitute an adverse job action,” and concluding that the plaintiff there had created a material fact as to whether his transfer was “to a dead-end job that had effectively been eliminated before he was transferred to it” (emphasis added)). But no published decision of this Court squarely holds that a discriminatory transfer is not actionable under a discrimination statute based on the critical “terms, conditions, [and/or] privileges” phrase. To the extent this Court nevertheless concludes it is constrained by its prior precedent to hold that discriminatory lateral transfers are actionable only when they are objectively detrimental to an employee under the statutory provisions discussed above, the Commission urges this Court to reconsider that precedent at an appropriate juncture.

CONCLUSION

For the foregoing reasons, the judgment of the district court should be reversed.

Respectfully submitted,

sharon fast gustafson

General Counsel

JENNIfer s. goldstein

Associate General Counsel

SYDNEY A.R. FOSTER

Assistant General Counsel

/s/ Jeremy D. Horowitz

JEREMY D. HOROWITZ

CA Bar No. 212242

Attorney, Appellate Litigation Services

Office of General Counsel

Equal Employment Opportunity Commission

131 M St. NE, Fifth Floor

Washington, DC 20507

(202) 663-4716

jeremy.horowitz@eeoc.gov

October 14, 2020

[1] The EEOC takes no position on any other issue in this case.

[2] Because this is an appeal from a grant of summary judgment in favor of defendants, this brief is based on a reading of the record that “resolve[s] all factual doubts and draw[s] all reasonable inferences in favor of [plaintiff].” Mikula v. Allegheny Cnty., 583 F.3d 181, 185 (3d Cir. 2009).

[3] All references to the Appendix are in the form “[Volume number].App.[page number].”

[4] More generally, courts routinely rely on law developed in the Title VII context to inform their analysis of analogous issues in ADA and ADEA cases governed by materially identical statutory text. See, e.g., Barber v. CSX Distrib. Servs., 68 F.3d 694, 698 (3d Cir. 1995).

[5] If the plaintiff establishes a prima facie case of discrimination, the burden then moves to the defendant to produce evidence of a legitimate, non-discriminatory explanation for its actions. If the defendant does so, the burden shifts back to the plaintiff to show the proffered explanation was a pretext for discrimination. McDonnell Douglas, 411 U.S. at 802-05; see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142-43 (2000).

[6] The Supreme Court and this Court have indicated that a notice of future termination must be “explicit” and reflect the employer’s “official position” to trigger the limitations period for filing an EEOC charge. Ricks, 449 U.S. at 258; Colgan v. Fisher Sci. Co., 935 F.2d 1407, 1419 (3d Cir. 1991) (en banc). This Court has further emphasized that the termination decision must be “unconditional” and explained that “[t]he charge-filing period begins to run only when the employee receives unequivocal notice of the adverse employment decision.” Bailey v. United Airlines, 279 F.3d 194, 199 (3d Cir. 2002) (citation omitted). The January 2016 surplus notice here gave Fowler two options: resign and receive severance benefits on or before February 11, 2016; or remain employed for 60 days while applying for other jobs within the company. III.App.1676-79. This Court need not decide whether the notice of future termination here was unequivocal — and thus the statute of limitations began to run — as of the date it was issued, or instead as of the date it became clear that Fowler was not opting to resign (on or before February 11, 2016). See Bailey, 279 F.3d at 202 (not deciding that issue). Because AT&T ultimately communicated an unequivocal notice of future termination, it follows that Fowler could pursue an ADA and ADEA claim challenging that notice as discriminatory.

[7] The EEOC takes no position on whether there was a dispute of material fact as to whether the transfer here was lateral in all relevant respects.

[8] After the Supreme Court held in Sutton v. United Air Lines, Inc., 527 U.S. 471, 478-79 (1999), that the EEOC regulations implementing 42 U.S.C. §§ 12101 and 12102 (which are not at issue here) exceeded the Commission’s statutory authority, this Court reaffirmed that the regulations implementing 42 U.S.C. §§ 12111-12117 — including those at issue here — were nevertheless still entitled to “substantial deference” under Chevron. Tice v. Centre Area Transp. Auth., 247 F.3d 506, 515 n.8 (3d Cir. 2001). Congress abrogated Sutton when it passed the ADA Amendments Act of 2008. See Pub. L. No. 110-325, § 6(a)(2), 122 Stat. 3553, 3558 (codified at 42 U.S.C. § 12205a) (expressly giving the EEOC authority to issue regulations implementing the definition of “disability” in 42 U.S.C. § 12102).