Table of
Contents
Table
of Authorities............................................................................ ii
Statement
of Interest.......................................................................... 1
Statement
of the Issues...................................................................... 3
Statement
of the Case........................................................................ 3
1. Statement of Facts.................................................................. 3
2. District Court Decision........................................................... 8
Argument............................................................................................ 12
I.
The Burlington Northern materially-adverse-action standard
applies to ADEA retaliatory harassment claims.................... 12
II. The district court failed to
follow Morgan in assessing the
timeliness of Massaro’s retaliatory harassment claim........ 25
Conclusion.......................................................................................... 29
Certificate
of Compliance
Certificate
of Service
Table of
Authorities
CasesPage(s)
Atl. Thermoplastics
Co. v. Faytex Corp.,
970 F.2d 834
(Fed. Cir. 1992)............................................... 22
Baird v. Gotbaum,
792 F.3d 166
(D.C. Cir. 2015)............................................... 17
Boss v. Castro,
816 F.3d 910
(7th Cir. 2016)................................................. 17
Burlington N. &
Santa Fe Ry. Co. v. White,
548 U.S. 53
(2006)................................................. 1, 11, 13, 14
Davis-Garett v. Urban
Outfitters, Inc.,
921 F.3d 30
(2d Cir. 2019)............................................. passim
Donaldson v. CDB Inc.,
335 F. App’x
494 (5th Cir. 2009).......................................... 16
Duplan v. City of New
York,
888 F.3d 612
(2d Cir. 2018)............................................ 19, 23
Flores v. United
States,
885 F.3d 119
(2d Cir. 2018)..................................................... 9
Frazier v. Richland
Pub. Health,
685 F. App’x
443 (6th Cir. 2017)................................... 17, 18
Gorzynski v. JetBlue
Airways Corp.,
596 F.3d 93
(2d Cir. 2010)..................................................... 23
Gross v. FBL Fin.
Servs. Inc.,
557 U.S. 167
(2009)................................................................ 11
Haughton v. Brennan,
695 F. App’x
321 (9th Cir. 2017)................................... 17, 18
Hicks v. Baines,
593 F.3d 159
(2d Cir. 2010).................................................. 14
Kasten v. Saint-Gobain
Performance Plastics Corp.,
563 U.S. 1
(2011)....................................................................... 9
Kaytor v. Elec. Boat
Corp.,
609 F.3d 537
(2d Cir. 2010)............................................ 19, 20
Kessler v. Westchester
Cnty. Dep’t of Soc. Servs.,
461 F.3d 199
(2d Cir. 2006)........................... 1, 12, 13, 14, 24
Lambert v. Genesee
Hosp.,
10 F.3d 46
(2d Cir. 1993) ........................................... 9, 10, 27
LeGrand v. Walmart
Stores East, L.P.,
779 F. App’x
779 (2d Cir. 2019)..................................... 20, 21
Lorillard v. Pons,
434 U.S. 575
(1978)................................................................ 13
Lovejoy-Wilson v. NOCO
Motor Fuel, Inc.,
263 F.3d 208
(2d Cir. 2001).................................................. 19
Maldonato-Catala v.
Mun. of Naranjito,
876 F.3d 1
(1st Cir. 2015)...................................................... 17
Massaro v. Bd. of Educ.
of the City Sch. Dist. of the City of New York,
774 F. App’x
18 (2d Cir. 2019)................................................ 6
Monaghan v. Worldpay
U.S., Inc.,
955 F.3d 855
(11th Cir. 2020)............................................... 16
Moore v. City of Phila.,
461 F.3d 331
(3d Cir. 2006).................................................. 16
Morris v. Oldham Cnty.
Fiscal Court,
201 F.3d 784
(6th Cir. 2000)................................................. 18
National R.R.
Passenger Corp. v. Morgan,
536 U.S. 101
(2002)........................................................ passim
Ne. Ohio Coal. for the
Homeless v. Husted,
831 F.3d 686
(6th Cir. 2016)................................................. 22
Ninying v. N.Y.C. Fire
Dep’t,
807 F. App’x
112 (2d Cir. 2020)..................................... 11, 24
Petrosino v. Bell Atl.,
385 F.3d 210
(2d Cir. 2004)..................................... 26, 27, 28
Pistello v. Bd. of Educ.
of Canastota Cent. Sch. Dist.,
808 F. App’x
19 (2d Cir. 2020)....................................... 18, 19
Ray v. Henderson,
217 F.3d
1234, 1240 (9th Cir. 2000).................................... 18
Robinson v. Shell Oil
Co.,
519 U.S. 337
(1997)................................................................ 14
Sullivan v. Am.
Airlines, Inc.,
424 F.3d 267
(2d Cir. 2005).................................................. 21
Terry v. Ashcroft,
336 F.3d 128
(2d Cir. 2003)..................................... 13, 15, 23
Trans World Airlines,
Inc. v. Thurston,
469 U.S. 111
(1985)................................................................ 13
Union of Needletrades,
Indus. & Textile Employees v. INS,
336 F.3d 200
(2d Cir. 2003).................................................. 21
Univ. of Tex. Sw. Med.
Ctr. v. Nassar,
570 U.S. 338
(2013).......................................................... 11, 24
Wilson v. Taylor,
658 F.2d
1021 (5th Cir. Unit B 1981)................................. 22
Statutes
Age
Discrimination in Employment Act of 1967,
29 U.S.C. §§ 621 et seq. ........................................................... 1
Americans with
Disabilities Act of 1991 (“ADA”),
42 U.S.C. §§ 12101 et seq., ................................................... 19
29
U.S.C. § 623(d) ............................................................................. 12
29
U.S.C. § 626(d)(1)(B) .................................................................. 25
42
U.S.C. § 2000e-3(a) ..................................................................... 12
Rules
Fed. R. App. P.
29(a)(2)...................................................................... 2
Other
Authority
Brief
for Appellee, Duplan v. City of New York, 888 F.3d 612 (2d Cir. 2018) (No.
17-1359), 2017 WL 3948149................................. 23
EEOC
Enforcement Guidance on Retaliation and Related Issues,
No.
915.004 (Aug. 25, 2016)...................................................... 17,
24
Statement of
Interest
Congress
charged the Equal Employment Opportunity Commission (“EEOC” or “Commission”)
with enforcing federal prohibitions on employment discrimination, including the
Age Discrimination in Employment Act of 1967, 29 U.S.C. §§
621 et seq. (“ADEA”). This retaliatory harassment case presents the
Court with an opportunity to clarify its precedent regarding the liability
standard for such retaliation claims. Following Burlington Northern &
Santa Fe Railway v. White, 548 U.S. 53 (2006), this Court has held that employers
are liable for retaliation under the ADEA for conduct that “well might have dissuaded
a reasonable worker from making or supporting a charge of discrimination.” Kessler
v. Westchester Cnty. Dep’t of Soc. Servs., 461 F.3d 199, 205 (2d Cir. 2006)
(quoting Burlington N., 548 U.S. at 68). This Court has also held that
the ADEA’s antiretaliation protections prohibit retaliatory harassing conduct.
However, this Court has yet to squarely address how Burlington Northern applies
to retaliatory harassment claims. In the wake of Kessler, this Court
has examined such claims under two different liability standards—either Burlington
Northern, or the more stringent standard applicable to claims of
discrimination, not retaliation. We urge this Court to clarify which standard
governs.
Also,
on summary judgment, the district court excluded as time-barred all alleged
retaliatory conduct that had occurred more than 300 days before the plaintiff
filed her charge of retaliation with the EEOC. According to the court, this
was necessary because the plaintiff had not produced evidence that the
harassment was the result of a discriminatory policy or mechanism. In so
ruling, the district court disregarded the Supreme Court’s instructions for
assessing the timeliness of harassment claims. See Nat’l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101 (2002).
Because
of the importance of these issues to the effective enforcement of the ADEA,
the EEOC respectfully offers its views to the Court. As a federal agency, the EEOC
is authorized to participate as amicus curiae in the courts of appeals. Fed.
R. App. P. 29(a)(2).
Statement of the Issues
1.
Whether
the Burlington Northern standard, which this Court has held governs retaliation
claims under the ADEA, applies equally to ADEA claims of retaliatory harassment.
2.
Whether
the district court erred in its analysis of the timeliness of Massaro’s retaliatory
harassment claim.
Statement
of the Case
1.
Statement of Facts
Plaintiff
Yvonne Massaro worked for the defendant, the Board of Education of the City
School District of the City of New York (“Board”), as an art teacher. District
Court Docket Number (“R.”) 75 at 1. In 2011, Massaro filed a lawsuit against
the Board, alleging age discrimination in violation of the ADEA. Id.
That suit was dismissed in 2013. Id. From 2012 to 2016, Massaro
alleges, the Board subjected her to a continuous stream of retaliatory conduct
in response to that suit. Id. at 4. This included deliberately
assigning her to a classroom that was cold in the winter, hot in the summer,
and lacked windows; scheduling her classes for open enrollment; assigning her
an excessive number of disruptive students while blocking students with high
GPAs from her classes; and refusing to allow her to teach advanced courses,
giving her outdated equipment, and imposing a lab fee only for her class. Id.
Massaro
further alleged that the Board subjected her to what the district court
characterized as “discrete instances” of retaliation over that same period. Id.
In 2012 Massaro received an “Unsatisfactory” rating, along with other negative
notations in her personnel file. Id. at 4-5. In July 2013, Massaro’s
Principal initiated an investigation into her for allegedly using corporal
punishment on a student who was not in her class. [3]
Id. at 6. During the 2014-15 school year, she was required to
teach four back-to-back classes in different classrooms without adequate time
to prepare or use the restroom between sessions, and in the 2015-16 school year
she was assigned larger classes than her colleagues, and students with
behavioral issues were added to her class. Id. at 5. In January
2016, her students’ work was removed from bulletin boards and furniture was
removed from her classroom. Id. In April 2016, her students were not
able to use computers and the Principal gave her a biased formal observation. Id.
In May 2016, the Principal refused to give her a video of a workplace
injury. Id. And in June 2016, the Assistant Principal refused to allow
her to use a printer. Id.
Massaro
retired in 2016. Id. Shortly thereafter, on August 3, she filed an
EEOC administrative charge alleging that the Board retaliated against her for
the 2011 lawsuit. Id. at 1, 5. Also in August 2016, Massaro applied to
the Board for a substitute teaching license. Id. at 4. On August 18,
the Board denied her application, and on September 12, 2016, Massaro requested
the Board review her application. Id. On September 16, the Board
received notice of Massaro’s August 3 charge. Id. Three days later the
Board asked Massaro to complete additional forms regarding her license
application. Id. The Board alleges Massaro failed to complete and
return the requested additional forms, rendering her application incomplete,
while Massaro states that she received two rejections from the Board and did
not address whether she had been asked to submit any additional forms. Id.
at 4, 14. Massaro ultimately did not receive the license. Id. at 4.
Massaro
filed suit, alleging that the Board had “subjected [her] to a hostile work
environment due to her age and retaliation” based upon all the above-alleged
conduct, including the 2016 denial of her substitute teacher license
application. R.14 at 1, 11-12. Massaro added that she had also been
constructively discharged because of her age and in retaliation for her
protected activity. Id. at 11. The Board moved to dismiss the
complaint for failure to state a claim, and the court granted the motion. Id.
at 1. Massaro appealed, and the Second Circuit affirmed the dismissal of the
age discrimination claims because she had not alleged them in her charge. Massaro
v. Bd. of Educ. of the City Sch. Dist. of the City of New York, 774 F.
App’x 18, 20-21 (2d Cir. 2019). However, the Second Circuit reversed the
district court as to the retaliation claim, concluding that “the retaliation
allegations, taken together, are sufficiently plausible to survive a motion to
dismiss.” Id. at 23.
On
remand, the Board moved for summary judgment, arguing that the district court
had previously dismissed Massaro’s hostile work environment claim. R.62 at 6, 7
(Board’s summary judgment memorandum (“SJ mem.”) at 1, 2). As to several of
the “discrete acts” mentioned above, the Board argued that Massaro erred in
“attempt[ing] to characterize these separate distinct acts into an ongoing
policy of harassment.” Id. at 8-10 (SJ mem. at 3-5). The Board did not
directly address the merits of Massaro’s retaliatory harassment claim beyond
asserting that her allegations of retaliation did not amount to an adverse
action “individually or collectively.” Id. at 23-24 (SJ mem. at 18-19).
The Board instead contended that the pre-2015 alleged retaliatory acts were
time-barred and “discrete acts” to which the continuing violation doctrine did
not apply, id. at 9 (SJ mem. at 4), and that Massaro could not show
causation or pretext as to any of the allegedly retaliatory conduct, id.
at 24-29 (SJ mem. at 19-24). In response, Massaro argued that her retaliatory
harassment claim was not time-barred, but based upon a continuous course of
retaliation from 2011 through 2016; that this Court had revived her retaliatory
harassment claim in the prior appeal; and that she had satisfied the
requirements for her claim to survive summary judgment. R.71 at 18-19
(Massaro’s summary judgment memorandum at 13-14).
2.
District Court Decision
The
district court granted summary judgment to the Board in part and denied it in
part. R.75 at 1. The court first noted that there was no dispute that
Massaro’s 2011 lawsuit against the Board and her August 2016 charge of
discrimination constituted protected activity. Id. at 3. It was also
undisputed, the court added, that the Board did not have notice of the charge
until September 16, 2016; thus, the only potentially retaliatory conduct that
could have been based on the charge was the Board’s review of its earlier
denial of Massaro’s substitute teaching license application. Id. at 3.
The
court then turned to the question of whether the alleged retaliatory conduct
was materially adverse, dividing the conduct into time-barred and
not-time-barred categories based on whether the conduct occurred before or
after October 8, 2015—300 days prior to the date Massaro filed her 2016
charge. Id. at 4-5. As for the earlier, “time-barred” conduct, the
court examined it under the “continuing violation doctrine,” which it described
as “[w]hen a plaintiff experiences a continuous practice and policy [that
violates his or her rights], … the commencement of the statute of limitations
period may be delayed until the last violation.” Id. at 5-6 (quoting Flores
v. United States, 885 F.3d 119, 121 (2d Cir. 2018) (citation omitted;
alterations in original)).
The
court noted that conduct comprising a continuing violation must be repeated
conduct that occurs over time, not discrete acts. Id. at 6.
“‘[M]ultiple incidents of discrimination, even similar ones, that are not the
result of a discriminatory policy or mechanism do not amount to a continuing
violation.’” Id. (quoting Lambert v. Genesee Hosp., 10 F.3d 46,
53 (2d Cir. 1993) (abrogated on other grounds by Kasten v. Saint-Gobain
Performance Plastics Corp., 563 U.S. 1, 5-6 (2011)). The court added,
“[i]n the context of ADEA claims by schoolteachers like Plaintiff, examples of
discrete acts ‘include disciplining, negative performance reviews, termination,
failure to promote, and denial of a preferred job position.’” Id.
(citation omitted). From this, the court concluded that “[c]laims based on
discrete acts that occurred before October 8, 2015, are barred by the statute
of limitations, and … not eligible for consideration as a continuing
violation.” Id. at 6. This included Massaro’s 2012 “Unsatisfactory”
rating and disciplinary actions; the 2013 investigation of Massaro regarding
corporal punishment; and Massaro’s class scheduling from the 2014-15 school
year. Id. at 6-7.
As
for the non-discrete-act conduct, the court stated that Massaro had failed to
“identify any evidence showing that this conduct was the result of a
‘discriminatory policy or mechanism,’ as is required to establish a continuing
violation.” Id. at 7 (quoting Lambert, 10 F.3d at 53). The
court noted Massaro’s argument that “hostile work environment claims by
necessity involve repeated conduct,” but characterized it as “true but beside
the point” because Massaro had merely “list[ed] the objectionable conduct
alongside the bare conclusion that it was retaliatory.” Id. The court
repeated its conclusion that Massaro had “provide[d] no evidence supporting the
inference that the repeated conduct complained of was part of any
discriminatory practice.” Id. Accordingly, the court granted summary
judgment to the Board as to all non-discrete-act conduct occurring prior to
October 8, 2015. Id. at 7-8.
The
court then turned to the non-time-barred conduct—conduct from between October
8, 2015, and Massaro’s retirement in 2016. Id. at 8, 12. It began by
identifying this Court’s precedent holding that “a material adverse action is
one that ‘could well have dissuaded a reasonable employee in [plaintiff’s]
position from complaining of unlawful discrimination.’” Id. at 8
(quoting in part Davis-Garett v. Urban Outfitters, Inc., 921 F.3d 30, 44
(2d Cir. 2019) (citing Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53, 68 (2006))). The court concluded that the alleged conduct “in the
aggregate” was sufficient to satisfy the materially adverse action standard. Id.
at 9.
On
the issue of causation, the court noted that “the law is unsettled” in this
Court “as to whether the Supreme Court’s decision in Gross v. FBL Fin[ancial]
Serv[ices], Inc., 557 U.S. 167, 180 (2009), requires but-for
causation only for ADEA claims of disparate treatment, leaving ADEA retaliation
claims to be decided under the more relaxed ‘motivating factor’ test.” Id.
at 10. The court recognized that, after University of Texas Southwestern Medical
Center v. Nassar, 570 U.S. 338 (2013), in which the Supreme Court held that
Title VII retaliation claims are subject to a but-for causation standard, this
Court had applied Nassar in a “non-binding decision” to require but-for
causation in an ADEA retaliation case. Id. (citing Ninying v. N.Y.C.
Fire Dep’t, 807 F. App’x 112, 115 (2d Cir. 2020) (summary order)).
Nonetheless, the court concluded, under either standard, Massaro failed to show
causation for any allegedly retaliatory conduct for her 2011 lawsuit. Id.
at 10-12. However, as for her claim regarding the substitute teaching license,
the court held that the temporal proximity of the 2016 charge to the Board’s
denial of the license application was sufficient both to show causation under
either standard, and to show pretext. Id. at 12-14. The court then
denied summary judgment on that claim. Id.
Following
the court’s summary judgment ruling, Massaro voluntarily dismissed her sole
surviving claim, R.79, and this appeal followed.
Argument
I. The Burlington
Northern materially-adverse-action standard applies to ADEA retaliatory
harassment claims.
The
ADEA provides that “[i]t shall be unlawful for an employer to discriminate
against any of his employees or applicants for employment … because such
individual … has opposed any practice made unlawful by this section, or because
such individual … has made a charge, testified, assisted, or participated in
any manner in an investigation, proceeding, or litigation under this chapter.”
29 U.S.C. § 623(d). This antiretaliation provision is “nearly identical”
to its analogue in Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e-3(a). Kessler v. Westchester Cnty. Dep’t of Soc. Servs.,
461 F.3d 199, 205 (2d Cir. 2006); see generally Trans World Airlines,
Inc. v. Thurston, 469 U.S. 111, 121 (1985) (observing that “the substantive
provisions of the ADEA ‘were derived in haec verba from Title VII’”)
(quoting in part Lorillard v. Pons, 434 U.S. 575, 584 (1978)). As such,
“the same standards and burdens apply to claims under both statutes.” Kessler,
461 F.3d at 205 (citing Terry v. Ashcroft, 336 F.3d 128, 141 (2d Cir.
2003)).
Accordingly,
in order for allegedly retaliatory conduct to be actionable under Title VII or
the ADEA, it must be materially adverse to the plaintiff—i.e., it “well
might have dissuaded a reasonable worker from making or supporting a charge of
discrimination.” Id. at 207 (quoting Burlington N., 548 U.S. at
68). This standard is broader than the adverse action standard governing
discrimination claims generally under these statutes. See id. at 208
(discussing Burlington Northern). This is because “limit[ing] [the
antiretaliation provision’s scope of coverage] 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.’” Burlington N., 548 U.S. at 64 (quoting
in part Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997)); see
also Kessler, 461 F.3d at 208 (same). “Thus,” the Supreme Court concluded,
“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.” Burlington
N., 548 U.S. at 64; see also Kessler, 461 F.3d at 208 (same).
For
this reason, this Court has clarified, “the harm element of a retaliation claim
is not to be analyzed in the same way as the harm from an alleged
substantive act of discrimination.” Davis-Garett, 921 F.3d at 43 (emphasis
added) (citing Kessler, 461 F.3d at 207-10). “Prior decisions of [the
Second] Circuit that limit unlawful retaliation to actions that affect the
terms and conditions of employment … no longer represent the state of the
law.” Id. at 43-44 (quoting Hicks v. Baines, 593 F.3d 159, 165
(2d Cir. 2010)). “Instead, the proper question for a retaliation claim is
‘whether the [alleged adverse action] to which [the plaintiff] was subjected
could well have dissuaded a reasonable employee in his position from
complaining of unlawful discrimination.’” Id. (quoting in part Kessler,
461 F.3d at 209; citing Burlington N., 548 U.S. at 57). This settled
precedent applying Burlington Northern to ADEA retaliation claims should
apply equally to retaliatory harassment claims, which are just another form of
retaliation.
This
Court has long recognized that retaliatory harassment claims are available
under the ADEA. See Terry, 336 F.3d at 150 (“[A] reasonable fact-finder
could conclude, based on the evidence, that a retaliatory motive played a role
in the creation of a hostile work environment.”). In Terry, which
predated Burlington Northern by several years, the Court analyzed the
adversity requirement for the retaliation claim under the same standard that
governed non-retaliation, discrimination-based hostile work environment
claims. Following that standard, the Court stated that “[i]n order to prevail
on a hostile work environment claim under Title VII, a plaintiff must show that
the harassment was sufficiently severe or pervasive to alter the conditions of
the victim’s employment and create an abusive working environment.” Id.
at 148 (citations and internal punctuation omitted). “[T]he test is whether
the harassment is of such quality or quantity that a reasonable employee would
find the conditions of her employment altered for the worse.” Id.
(citation omitted; emphasis added).
However,
as discussed above, this Court has now held that its pre-Burlington Northern
precedent limiting retaliation claims to actions affecting the terms and
conditions of employment—as the “severe or pervasive” discriminatory hostile
work environment standard does—“no longer represent[s] the state of the law.” Davis-Garett,
921 F.3d at 43. After Burlington Northern, the inquiry is whether the
conduct at issue well might have dissuaded a reasonable worker from making or
supporting a charge of discrimination, not whether it was sufficiently adverse
(“severe or pervasive”) to alter the conditions of the plaintiff’s employment
and create an abusive working environment. See id. And, appropriately,
neither this Court nor the Supreme Court has excluded ADEA retaliatory
harassment claims from this standard.
We
note that those circuit courts of appeals that have directly addressed the
question have agreed that the Burlington Northern materially-adverse-action
standard applies to retaliatory hostile work environment claims. See, e.g.,
Monaghan v. Worldpay U.S., Inc., 955 F.3d 855, 857 (11th Cir. 2020) (per
curiam); Donaldson v. CDB Inc., 335 F. App’x 494, 507 (5th Cir. 2009)
(unpubl.); Moore v. City of Phila., 461 F.3d 331, 341 (3d Cir. 2006).
The Commission has also adopted this approach to retaliatory harassment claims,
recognizing that “[r]etaliatory harassing conduct can be challenged under the Burlington
Northern standard even if it is not severe or pervasive enough to alter the
terms and conditions of employment.” EEOC Enforcement Guidance on Retaliation
and Related Issues, No. 915.004, at II.B.3 (Aug. 25, 2016) (“Retaliation
Guidance”) (citations omitted), available at https://www.eeoc.gov/laws/guidance/enforcement-guidance-retaliation-and-related-issues
(last visited May 28, 2021). “If the conduct would be sufficiently material to
deter protected activity in the given context, even if it were insufficiently
severe or pervasive to create a hostile work environment, there would be
actionable retaliation.” Id.
Notwithstanding
Burlington Northern, other courts of appeals have continued to require
plaintiffs alleging retaliatory harassment to show the conduct was “severe or
pervasive.” See, e.g., Haughton v. Brennan, 695 F. App’x 321,
321 (9th Cir. 2017) (unpubl.); Frazier v. Richland Pub. Health, 685 F.
App’x 443, 450 (6th Cir. 2017) (unpubl.); Boss v. Castro, 816 F.3d 910,
920-21 (7th Cir. 2016); Baird v. Gotbaum, 792 F.3d 166, 168-69 (D.C.
Cir. 2015); Maldonato-Catala v. Mun. of Naranjito, 876 F.3d 1, 10 &
n.11 (1st Cir. 2015). In taking this approach, however, these courts have
simply relied on pre-Burlington Northern standards without assessing the
impact of Burlington Northern on their analysis. See, e.g., Haughton,
695 F. App’x at 321 (relying on Ray v. Henderson, 217 F.3d 1234, 1240,
1245 (9th Cir. 2000), in affirming summary judgment on the plaintiff’s “retaliatory
hostile work environment claim because [she] failed to raise a genuine dispute
of material fact as to whether she was subjected to conduct that was severe or
pervasive enough to alter the conditions of her employment”); Frazier,
685 F. App’x at 450 (describing Morris v. Oldham Cnty. Fiscal Court, 201
F.3d 784, 792 (6th Cir. 2000), as requiring the plaintiff to show “she was
subjected to severe or pervasive retaliatory harassment by a supervisor”).
After
Burlington Northern, this Court has been somewhat inconsistent in its
analysis of retaliatory harassment claims. In some post-Burlington Northern
cases, the court has applied the “severe or pervasive” adversity standard, but
without addressing the impact of Burlington Northern, Kessler, or
Davis-Garett on the continuing viability of that approach. See Pistello
v. Bd. of Educ. of Canastota Cent. Sch. Dist., 808 F. App’x 19, 24 (2d Cir.
2020) (summary order) (concluding that the plaintiff “failed to show that the
School District’s actions were severe or pervasive enough to support a claim of
retaliatory hostile work environment”);
Duplan v. City of New York, 888 F.3d 612, 627 (2d Cir. 2018) (applying
severe-or-pervasive standard to Title VII retaliatory harassment claim and
concluding the plaintiff’s allegations “failed to meet that high bar,” without
considering Burlington Northern).
However,
this Court has also suggested that if the question were squarely presented, it
would apply the Burlington Northern standard to retaliatory harassment
claims. Kaytor v. Electric Boat Corp., 609 F.3d 537 (2d Cir. 2010)—a
published, post-Burlington Northern decision preceding Duplan—involved
a Title VII retaliation claim that sounded in retaliatory harassment, although
neither the court nor the parties used that term. In Kaytor, the
plaintiff adduced evidence that she was “stripped of her former prestigious
responsibility of ordering supplies for the entire engineering department, was
given ‘no work to do,’ was screamed at by [a supervisor] ‘on a daily basis’ for
‘th[e] whole department’ to hear, and ‘was ostracized.’” 609 F.3d at 555-56. This
Court recognized that the plaintiff’s retaliation claims were subject to
the Burlington Northern materially-adverse-action standard, and held
that “there are genuine issues of fact to be tried as to whether the Company’s
treatment of Kaytor, following her complaints … ‘well might have dissuaded a
reasonable worker from making’ those complaints.” Id. at 556.
Accordingly,
while this Court may not have explicitly held in Kaytor that the Burlington
Northern standard applies to retaliatory harassment claims, it
unquestionably applied that standard to a claim of retaliatory harassment in
all but name. Similarly, in LeGrand v. Walmart Stores East, L.P., 779
F. App’x 779, 783 (2d Cir. 2019) (summary order), this Court referred to the Burlington
Northern materially-adverse-action standard in addressing a claim alleging
retaliatory “hostile conduct” by the employer. The Court held that the plaintiff’s
allegations were sufficient “to raise inference of retaliatory conduct” and to survive
a motion to dismiss. Id. at 783.
Duplan
appears to be this Court’s only published post-Burlington Northern
decision applying the severe-or-pervasive standard to a claim of retaliatory
harassment. However, we respectfully submit that, because this Court
overlooked Burlington Northern in Duplan, it is not required to
follow Duplan’s “severe or pervasive” approach to retaliatory harassment
claims. Ordinarily, a subsequent panel of this Court would be bound to follow Duplan
as binding precedent. See Sullivan v. Am. Airlines, Inc., 424
F.3d 267, 274 (2d Cir. 2005) (“This circuit’s prior-panel rule directs us generally
to follow the decisions of prior panels until they are overruled either by this
court sitting en banc or by the Supreme Court.” (citation omitted)). “A
subsequent panel may, however, reconsider a prior panel’s holding that would
otherwise be binding precedent not only when it has been directly overruled,
but also ‘where there has been an intervening Supreme Court decision that casts
doubt on our controlling precedent.’” Id. (quoting in part Union of
Needletrades, Indus. & Textile Employees v. INS, 336 F.3d 200, 210 (2d
Cir. 2003)).
Various
courts of appeals have also recognized that this exception regarding
intervening and controlling authority extends to “the unusual situation where
binding circuit precedent overlooked earlier Supreme Court authority.” Ne. Ohio
Coal. for the Homeless v. Husted, 831 F.3d 686, 720 (6th Cir. 2016); see
also Atl. Thermoplastics Co. v. Faytex Corp., 970 F.2d 834, 838 n.2 (Fed.
Cir. 1992) (“A decision that fails to consider Supreme Court precedent does not
control if the court determines that the prior panel would have reached a
different conclusion if it had considered controlling precedent.”); Wilson
v. Taylor, 658 F.2d 1021, 1035 (5th Cir. Unit B 1981) (in the “unusual and
delicate situation” where a prior circuit case did not consider the impact of
intervening Supreme Court precedent, the court must apply the Supreme Court
decision, not the later-issued circuit case).
This
Court does not appear to have addressed this additional exception to the
prior-panel rule for situations where binding circuit precedent overlooked
earlier Supreme Court authority. Respectfully, this Court should do so here, and
apply the correct Burlington Northern materially-adverse-action standard
to Massaro’s retaliatory harassment claims.
We
note that in Duplan, the parties themselves did not appear to dispute
the applicability of the severe-or-pervasive standard. Perhaps
understandably, then, the Duplan panel applied the same inapposite
authority the defendant cited: Gorzynski v. JetBlue Airways Corp., 596
F.3d 93 (2d Cir. 2010), a case involving a Title VII sex harassment claim, not a
retaliation claim subject to the Burlington Northern standard. See
Duplan, 888 F.3d at 627 (citing Gorzynski, 596 F.3d at 102); Brief
for Appellee at 26, Duplan v. City of New York, 888 F.3d 612 (2d Cir.
2018) (No. 17-1359), 2017 WL 3948149 (citing Gorzynski). Given this
Court’s unequivocal recognition in Kessler and Davis-Garett that
the Burlington Northern standard now controls, this Court should apply
that correct standard here and in the future.
Thus,
the framework for a retaliatory harassment claim is just the same as it is for
any other retaliation claim: the plaintiff “must show ‘[1] participation in a
protected activity known to the defendant; [2] an employment action
disadvantaging the plaintiff; and [3] a causal connection between the protected
activity and the adverse employment action.’” Terry, 336 F.3d at 141
(citation omitted); see also Davis-Garett, 921 F.3d at 43-44 (discussing
elements of retaliation claim pre- and post-Burlington Northern). As this
Court recognized, albeit implicitly, in Kaytor and LeGrand, Burlington
Northern is the correct standard against which material adversity should be
measured in this context. We urge this Court to make the reasoning in those
cases explicit by so holding here.
Lastly,
we note briefly that, while the district court did not decide what causation
standard applies to ADEA retaliation claims, see R.75 at 10, the Supreme
Court’s decision in Nassar suggests that the but-for causation standard
from Title VII should apply to the ADEA as well. See Nassar, 570
U.S. at 352; see also supra pp. 12-13 (discussing
similarities between the antiretaliation provisions in the respective statutes)
(citing Kessler, 461 F.3d at 205). Although this Court has not
addressed this issue directly, in Ninying—an ADEA retaliation case—this
Court cited Nassar’s statement that traditional principles of but-for
causation should apply. See Ninying, 807 F. App’x at 115. The
Commission has also taken the position that, per Nassar, ADEA
retaliation claims are subject to a but-for causation standard, rather than the
more relaxed motivating-factor test. See Retaliation Guidance, at
II.C.1.a (“In private sector and state and local government retaliation cases
under the statutes the EEOC enforces, the causation standard requires the
evidence to show that ‘but for’ a retaliatory motive, the employer would
not have taken the adverse action, as set forth by the Supreme Court in …
Nassar.”).
II. The
district court failed to follow Morgan in assessing the timeliness of
Massaro’s retaliatory harassment claim.
Under
the ADEA, the limitations period for filing a charge alleging unlawful
harassment is 300 days after the alleged unlawful practice occurred. 29
U.S.C. § 626(d)(1)(B). In the retaliation context, the alleged unlawful
practice is harassing conduct sufficient to constitute a materially adverse
action as defined by Burlington Northern. See supra pp. 13-15. As
this Court has recognized, the Supreme Court’s decision in National Railroad
Passenger Corp. v. Morgan, 536 U.S. 101 (2002), sets out the governing
standard for assessing the timeliness of a charge alleging an ADEA violation
based upon harassing conduct. See, e.g., Davis-Garett, 921 F.3d
at 41-43.
In
Morgan, the Supreme Court addressed the viability of the “continuing
violation” doctrine in discrimination cases, drawing a distinction between
hostile work environment claims and claims involving “discrete acts.” Morgan,
536 U.S. at 110-21. Hostile work environment claims, the Court held, are
correctly understood as single violations whose “very nature involves repeated
conduct” and that “cannot be said to occur on any particular day,” instead
“occur[ing] over a series of days or perhaps years.” Id. at 115; see
also Davis-Garett, 921 F.3d at 42 (same) (citing Morgan). Because hostile
work environment claims are “composed of a series of separate acts that
collectively constitute one ‘unlawful employment practice,’” “[t]he statute
does not separate individual acts that are part of the hostile environment
claim from the whole for the purposes of timely filing and liability.” Morgan,
536 U.S. at 117-18 (quoting 42 U.S.C. § 2000e–5(e)(1)). Accordingly, “the
statute of limitations requires that only one … harassing act demonstrating the
challenged work environment occur within 300 days of filing; once that is
shown, a court and jury may consider ‘the entire time period of the hostile
environment’ in determining liability.” Petrosino v. Bell Atl., 385
F.3d 210, 220 (2d Cir. 2004) (citing Morgan, 536 U.S. at 117).
Morgan
explained that “discrete discriminatory acts,” on the other hand, “are not
actionable if time barred, even when they are related to acts alleged in timely
filed charges.” 536 U.S. at 113. Thus, discrete acts, “such as termination,
failure to promote, denial of transfer, or refusal to hire,” “‘occur[]’ on the
day that [they] ‘happen[].’” Morgan, 536 U.S. at 110, 114
(citations omitted); see also Davis-Garett, 921 F.3d at 42 (same).
Although plaintiffs may not bring suit as to such time-barred claims, the
Court explained, “the statute [does not] bar an employee from using the prior
acts as background evidence in support of a timely claim.” Morgan,
536 U.S. at 113; see also Petrosino, 385 F.3d at 220
(characterizing “earlier promotion denials” as “relevant background evidence”)
(internal quotation marks omitted).
The
district court erred in analyzing the timeliness of Massaro’s retaliatory
harassment claim under the “continuing violation doctrine” Morgan
rejected, rather than the standards set out in Morgan and in this
Court’s subsequent precedent. The court divided Massaro’s retaliatory
harassment claim into “time-barred” and “non-time-barred” conduct, stating
categorically that “[a]ny allegedly retaliatory conduct occurring prior to
October 8, 2015, is barred by the statute of limitations, unless Plaintiff can
establish a continuing violation for conduct before that date.” R.75 at 5.
The court further subdivided the alleged retaliatory conduct into categories of
“repeated conduct that occurs over time” and “discrete acts.” Id. at
4-6. It then refused to consider any “time-barred” discrete acts, rather than
assessing whether, at a minimum, these acts could serve as background evidence
for the retaliatory harassment claim. See id. at 6-7; Morgan,
536 U.S. at 113; Petrosino, 385 F.3d at 220.
The
district court observed, correctly, that there was at least one act of alleged
retaliatory harassment that fell within the limitations period—in fact, there
were multiple such acts. R.75 at 8-9. Accordingly, under Morgan, the
court should simply have defined Massaro’s retaliatory harassment claim to
include all the non-discrete acts of retaliatory harassment from 2012 to 2016,
with any time-barred alleged retaliatory discrete acts available as background
evidence on the question of liability. The court’s failure to do so was error.
Conclusion
For
the foregoing reasons, the Commission respectfully requests that this Court
vacate the district court’s grant of summary judgment to the Board.
Respectfully
submitted,
GWENDOLYN YOUNG REAMS
Acting General Counsel
JENNIFER S. GOLDSTEIN
Associate General Counsel
ELIZABETH E. THERAN
Assistant General Counsel
s/ James M. Tucker
JAMES M. TUCKER
Attorney
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
Office of General Counsel
131 M St. NE, Rm. 5NW10P
Washington, D.C. 20507
(202) 921-2554
James.Tucker@EEOC.gov
