Page

The district court erred in holding that Scott failed to adequately plead that he engaged in protected opposition activity. 8

A. Scott pleaded a plausible claim under the opposition clause. 10

1. Scott’s witness statement, regarding Seward’s remark that he planned to fire four African American employees, satisfies the reasonable-belief test. 13

2. The fact that Scott gave his witness statement in response to his employer’s questioning bolsters his reasonable-belief argument. 16

3. All of Scott’s oppositional acts must be considered as a whole in determining whether his opposition was supported by a reasonable belief. 18

B. The district court’s conclusion to the contrary lacks merit. 22

CONCLUSION.. 27

CERTIFICATE OF COMPLIANCE..

CERTIFICATE OF SERVICE..

TABLE OF AUTHORITIES

Page(s)

Cases

Ashcroft v. Iqbal,
556 U.S. 662 (2009).................................................... 8

Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007).................................................... 8

Burlington Northern & Santa Fe Railway Co. v. White,
548 U.S. 53 (2006).................................................... 11

Byers v. Dallas Morning News, Inc.,
209 F.3d 419 (5th Cir. 2000)................................ 1, 2

CBOCS West, Inc. v. Humphries,
553 U.S. 442 (2008).................................................... 2

Cicalese v. University of Texas Medical Branch,
924 F.3d 762 (5th Cir. 2019)................................... 25

Comcast Corp. v. National Association of African American-Owned Media,
140 S. Ct. 1009 (2020).............................................. 14

Crawford v. Metropolitan Government of Nashville & Davidson County,
555 U.S. 271 (2009)......................................... 6, 9, 10

Cuellar v. Southwest General Emergency Physicians, P.L.L.C.,
656 F. App’x 707 (5th Cir. 2016)..................... 12, 27

DeMasters v. Carilion Clinic,
796 F.3d 409 (4th Cir. 2015)............................. 19-20

EEOC v. Abercrombie & Fitch Stores, Inc.,
575 U.S. 768 (2015).................................................. 14

EEOC v. Rite Way Service, Inc.,
819 F.3d 235 (5th Cir. 2016).......................... passim

Elsensohn v. St. Tammany Parish Sheriff’s Office,
530 F.3d 368 (5th Cir. 2008).............................. 9, 14

Faragher v. City of Boca Raton,
524 U.S. 775 (1998)............................................ 23-24

Flowers v. Columbia College Chicago,
397 F.3d 532 (7th Cir. 2005)................................... 18

Jackson v. Birmingham Board of Education,
544 U.S. 167 (2005).................................................. 11

Long v. Eastfield College,
88 F.3d 300 (5th Cir. 1996).............................. 12, 19

Lormand v. US Unwired, Inc.,
565 F.3d 228 (5th Cir. 2009)..................................... 3

Magyar v. Saint Joseph Regional Medical Center,
544 F.3d 766 (7th Cir. 2008)................................... 20

McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973)........................................... 25, 26

National Railroad Passenger Corp. v. Morgan,
536 U.S. 101 (2002).................................................. 24

Oncale v. Sundowner Offshore Services, Inc.,
523 U.S. 75 (1998)............................... …………15-16

Payne v. McLemore’s Wholesale & Retail Stores,
654 F.2d 1130 (5th Cir. 1981)....... 10-11, 12, 15, 26

Satterwhite v. City of Houston,
602 F. App’x 585 (5th Cir. 2015)...................... 22-24

Sayger v. Riceland Foods, Inc.,
735 F.3d 1025 (8th Cir. 2013)................................... 2

United States v. Kimmel,
777 F.2d 290 (5th Cir. 1985)................................... 21

Wallace v. Tesoro Corp.,
796 F.3d 468 (5th Cir. 2015)................................... 27

Wilkerson v. New Media Technology Charter School Inc.,
522 F.3d 315 (3d Cir. 2008).................................... 12

Wright v. Union Pacific Railroad Co.,
990 F.3d 428 (5th Cir. 2021).............................. 9, 23

Yazdian v. ConMed Endoscopic Technologies, Inc.,
793 F.3d 634 (6th Cir. 2015)................................... 16

Statutes

18 U.S.C. § 1514A.......................................................... 27

42 U.S.C. § 1981............................................... 1, 2, 5, 14

42 U.S.C. § 2000e-3(a)................................................ 6, 9

Other Authorities

Federal Rule of Appellate Procedure 29(a)(2)............ 1

Federal Rule of Civil Procedure 8(a)(2)....................... 8

Federal Rule of Civil Procedure 12(b)(6) 3, 5, 8, 14, 27

STATEMENT OF INTEREST

The Equal Employment Opportunity Commission (EEOC or Commission) is the primary agency Congress charged with administering and enforcing federal employment discrimination statutes, including Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. This is a retaliation case under 42 U.S.C. § 1981, which the district court dismissed on the ground that the plaintiff-appellant, Paul Scott, did not engage in protected activity. Although this appeal does not directly involve a statute that the EEOC enforces, the district court and the parties assumed that relevant Title VII principles applied in determining whether Scott engaged in protected activity. Moreover, this Court and others routinely follow Title VII precedent in evaluating § 1981 retaliation claims. See, e.g., Byers v. Dallas Morning News, Inc., 209 F.3d 419, 422 n.1, 427-28, 429 (5th Cir. 2000).

Accordingly, this appeal will likely establish precedent regarding the proper standards for determining whether individuals engage in protected activity under Title VII’s anti-retaliation provision, which will affect the Commission’s enforcement of Title VII and other laws. The EEOC thus respectfully offers its views. See Fed. R. App. P. 29(a)(2).

STATEMENT OF THE ISSUE [1]

Did Scott adequately plead that he engaged in protected activity because he opposed employment practices that he reasonably believed to be unlawful?

STATEMENT OF THE CASE

A. Statutory Background

Section 1981 makes it unlawful to discriminate on the basis of race in “mak[ing] and enforc[ing] contracts.” 42 U.S.C. § 1981(a). In CBOCS West, Inc. v. Humphries, 553 U.S. 442 (2008), the Supreme Court held that this provision encompasses “employment-related retaliation actions,” akin to those under Title VII. Id. at 445, 454, 457. Moreover, courts typically follow Title VII principles in assessing retaliation claims under § 1981. See, e.g., Byers, 209 F.3d at 422 n.1, 427-28, 429; Sayger v. Riceland Foods, Inc., 735 F.3d 1025, 1030 (8th Cir. 2013). Accordingly, for purposes of this brief, the EEOC will assume, as the parties and district court did, that Title VII principles govern in determining whether Scott engaged in protected activity for purposes of his § 1981 retaliation suit.

B. Factual Background [2]

Paul Scott, who is African American, began working for U.S. Bank as an underwriter in March 2016. ROA.2.[3] For almost two years, Scott performed well. See ROA.2 (district court complaint alleging that U.S. Bank gave Scott “only positive reviews” and a “merit increase”). In January 2018, Scott overheard a conversation between two managers, Craig Seward, who is white, and Damaris Triggs, who is African American. ROA.2. In that conversation, Scott heard Seward tell Triggs that he (Seward) “intended to terminate four (4) African American employees.” ROA.2. Scott, in turn, warned the employees “what he had overheard.” ROA.2.

One of those four employees, Kenetra Bunton, then complained of discrimination to U.S. Bank’s human resources (HR) department, which began investigating the incident. ROA.3. A U.S. Bank HR official sought a witness statement from Scott as part of the investigation. ROA.3. Though he feared retaliation, Scott cooperated, providing a statement regarding what he overheard Seward say to Triggs. ROA.3. Some time later, U.S. Bank “convinced Bunton to drop her discrimination complaint.” ROA.3.

About a month after Scott’s witness statement, Bennie Wyatt, a U.S. Bank manager, “failed . . . one of Scott’s loans even though [it] should have passed under [the bank’s] policy and procedure guide.” ROA.3. Scott complained to Triggs, his supervisor, that Wyatt failed the loan “in retaliation” for providing a witness statement. ROA.3. The next day, Triggs and Wyatt gave Scott a “verbal counseling,” supposedly for poor performance. ROA.3.

Scott then complained to HR that he was experiencing various retaliatory acts, including the failing of his loan and the verbal counseling, which he thought were unjustified. ROA.3-4. The HR official who responded was “antagonistic and dismissive.” ROA.4.

Three weeks later, Wyatt and Triggs gave Scott another “verbal warning,” ostensibly for his low production in the month of April. ROA.4. When Scott replied that his performance had improved in May, Wyatt did not disagree but he criticized Scott nonetheless, stating “we cannot have these peaks and valleys.” ROA.4. That remark caused Scott to accuse his supervisors of “harassment”; and Wyatt then invited Scott to resign. ROA.4. Wyatt added, “you can call HR[;] I have her number for you.” ROA.5. Scott deemed this remark a threat related to his earlier complaints of discrimination and retaliation. ROA.5.

The next day, Wyatt and Triggs fired Scott. ROA.5. Wyatt told Scott that despite being “one good underwriter,” he was “a threat to 20 underwriters.” ROA.5. Scott sought an explanation for this cryptic comment, but Wyatt did not elaborate. ROA.5.

C. Procedural Background

Scott sued, alleging retaliation under 4 2 U.S.C. § 1981. ROA.5. The district court dismissed Scott’s complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to adequately allege that he engaged in protected activity. ROA.66. Making clear that it would rely on Title VII’s anti-retaliation provision, ROA.52-53, the court observed that one may engage in protected activity by, among other things, “oppos[ing]” unlawful practices under Title VII or by “participat[ing] in any manner in an investigation” under Title VII. ROA.54 (quoting 42 U.S.C. § 2000e-3(a)).

The district court first ruled that Scott did not engage in protected activity under the participation clause because he did not allege that an EEOC investigation was pending at the time he undertook any activity that he claimed was protected. See ROA.54-57.

Turning to the opposition clause, the district court observed that, in Crawford v. Metropolitan Government of Nashville & Davidson County, 555 U.S. 271 (2009), the Supreme Court held that “opposition” under Title VII’s anti-retaliation provision includes “statements by [an] employee[] describing or reporting discrimination . . . in response to . . . solicitations by an internal investigation regarding potential discrimination.” ROA.57-58. Thus, the district court determined that Scott’s witness statement about Seward’s remark constituted “opposition” under Title VII; and it concluded that Scott’s subsequent complaints of retaliation and harassment to HR and his supervisors also fell “within the meaning of ‘opposition.’” ROA.58-61.

The court then observed that Scott must show that his opposition was directed at conduct he reasonably believed to constitute racial discrimination. ROA.60-61. Focusing first on Scott’s witness statement regarding Seward’s remark that Seward intended to fire four African American employees, the court held that “Scott could not have held a ‘reasonable belief’ that Seward engaged or sought to engage in prohibited racial discrimination.” ROA.63. The court determined that Seward’s remark did not constitute “direct evidence” of race discrimination, and that Scott’s district court complaint contained insufficient circumstantial evidence of Seward’s discriminatory intent. ROA.61-64. The district court then listed types of evidence that did not appear in Scott’s complaint, including a “pattern of disparate hiring, firing, or promotions”; “additional racially charged remarks”; “suspicious circumstances” surrounding Seward’s remark; and allegations that Seward intended to replace the four employees with individuals of a different race. ROA.63-64.

As for Scott’s additional opposition conduct, i.e., his complaints of retaliation and harassment to HR and his supervisors, the court held these acts were not supported by a reasonable belief “for the same reason.” ROA.64. That is, according to the district court, because Scott’s witness statement was not supported by a reasonable belief, Scott’s “subsequent opposition” to retaliation and harassment for making that witness statement “cannot, by definition, implicate Title VII.” ROA.65.

ARGUMENT

The district court erred in holding that Scott failed to adequately plead that he engaged in protected opposition activity.

The district court erred in dismissing Scott’s retaliation claim on the ground that he did not engage in protected opposition activity. The Federal Rules of Civil Procedure require only that a plaintiff’s district court complaint contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “[D]etailed factual allegations” are not required. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). Instead, to survive a Rule 12(b)(6) motion, a complaint must contain sufficient factual matter which, taken as true, states a claim “that is plausible on its face.” E.g., Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 570 (2007). “Asking for plausible grounds to infer [unlawful conduct] does not impose a probability requirement at the pleading stage; it simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of [such conduct].” Id. at 556.

At the motion-to-dismiss stage, moreover, courts must “construe the complaint in the light most favorable to the plaintiff and draw all reasonable inferences in [his] favor.” Elsensohn v. St. Tammany Parish Sheriff’s Office, 530 F.3d 368, 371-72 (5th Cir. 2008). And a plaintiff need not “submit evidence . . . at the pleading stage.” Wright v. Union Pac. R.R. Co., 990 F.3d 428, 433 (5th Cir. 2021) (citation and brackets omitted).

At issue here is whether Scott’s district court complaint plausibly alleged that he engaged in protected activity. An individual engages in protected activity under what is known as the “opposition clause,” by “oppos[ing] any practice made an unlawful employment practice” by Title VII. 42 U.S.C. § 2000e-3(a); see also Crawford, 555 U.S. at 274. Contrary to the district court’s decision, Scott stated a claim for relief under the opposition clause.[4]

A. Scott pleaded a plausible claim under the opposition clause.

In Crawford, the Supreme Court established that statements solicited by an employer during an internal investigation into alleged discrimination, as distinct from those initiated by a plaintiff, can constitute “opposition” for purposes of Title VII’s opposition clause. 555 U.S. at 277-78. It is similarly well settled that a plaintiff must reasonably believe that the employment practices he opposes are unlawful, even if they are not ultimately adjudged to be unlawful. See, e.g., EEOC v. Rite Way Serv., Inc., 819 F.3d 235, 240 (5th Cir. 2016). This “reasonable belief standard recognizes there is some zone of conduct that falls short of an actual violation but could be reasonably perceived to violate Title VII.” Id. at 242.

The reasonable-belief standard effectuates important congressional purposes. As this Court has explained, “interpreting the opposition clause to require proof of an actual unlawful employment practice would [improperly] ‘chill the legitimate assertion of employee rights under Title VII.’” Payne v. McLemore’s Wholesale & Retail Stores, 654 F.2d 1130, 1139-40 (5th Cir. 1981) (citation omitted) (explaining reasonable-belief rule is necessary to “effectuate the policies of Title VII”); cf. Robinson v. Shell Oil Co., 519 U.S. 337, 341-42, 345-46 (1997) (making clear that the text of Title VII’s anti-retaliation provision must be interpreted with the broader statutory purpose in mind). The chilling-effect concerns this Court discussed in Payne have special force where, as here, an employee provides a witness statement in an employer’s investigation into another employee’s discrimination complaint. See, e.g., Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006) (Title VII should be interpreted to “ensure . . . cooperation” of “employees who are willing to . . . act as witnesses”); cf. Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 180 (2005) (explaining that if retaliation were permitted, “individuals who witness discrimination would be loath to report it,” and discriminatory conduct “might go unremedied as a result”).

In assessing whether an individual held a reasonable belief that he was reporting a Title VII violation, this Court does not engage in a searching inquiry into whether the opposed conduct should be adjudged to be unlawful. Instead, this Court has made clear that the standard should ordinarily be assessed from the perspective of a layperson “not instructed on Title VII as a jury would be.” Rite Way, 819 F.3d at 242. Thus, for example, when Payne affirmed the district court’s implicit finding that the plaintiff there held a reasonable belief that his employer was violating Title VII, this Court relied solely on the testimony of the plaintiff and a co-worker that they believed the employer was not hiring or promoting African Americans into certain jobs. 654 F.2d at 1140-41 & n.12. The Payne Court did not, for instance, demand that the plaintiff provide additional factual support for his belief that race was a causal factor in the personnel decisions at issue. See also, e.g., Long v. Eastfield Coll., 88 F.3d 300, 305 (5th Cir. 1996) (concluding, without extensive analysis, that two plaintiffs satisfied the reasonable-belief test). Where, as here, the issue is whether a plaintiff’s district court complaint adequately alleged that he held a reasonable belief, the inquiry is even less searching. See, e.g., Wilkerson v. New Media Tech. Charter Sch. Inc., 522 F.3d 315, 322 (3d Cir. 2008); Cuellar v. Sw. Gen. Emergency Physicians, P.L.L.C., 656 F. App’x 707, 710 (5th Cir. 2016) (unpublished).

This case concerns two types of activity that Scott contends are protected by the opposition clause: (1) the statement Scott provided to his company (related to its investigation into a colleague’s discrimination complaint), in which he reported overhearing Seward’s comment that Seward planned to fire four African American employees; and (2) Scott’s subsequent complaints of retaliation and harassment made to his supervisors and HR. The district court correctly held that each activity was “opposition[al]” within the meaning of Title VII. See ROA.57-59 & n.4. The court erred, however, in holding that the opposition clause protected neither one because, according to the court, (1) Scott did not adequately allege he held a reasonable belief that Seward was engaging in unlawful race-based discrimination; and (2) Scott thus could not have held a reasonable belief that he suffered any unlawful retaliation or harassment stemming from his statement about Seward’s remark. ROA.61-66.

1. Scott’s witness statement, regarding Seward’s remark that he planned to fire four African American employees, satisfies the reasonable-belief test.

Scott’s witness statement, in which he answered questions about Seward’s remark, satisfies the reasonable-belief test, especially for purposes of surviving a Rule 12(b)(6) motion. Scott reported that he “overheard” Seward tell Triggs that Seward intended to fire four African American employees. Although Seward’s comment could be interpreted as the district court construed it (as an innocuous comment not suggesting any causal connection between the terminations and race), ROA.61-62 n.6, all allegations in Scott’s district court complaint must be interpreted in the light most favorable to him. Elsensohn, 530 F.3d at 371-72.

Moreover, the relevant question is whether Scott could have reasonably believed that Seward’s comment indicated that U.S. Bank was engaging in unlawful employment discrimination, and that question must be answered in the affirmative. Under both 42 U.S.C. § 1981 and Title VII, race cannot be a determinative factor in an employer’s termination decision. See, e.g., Comcast Corp. v. Nat’l Ass’n of African American-Owned Media, 140 S. Ct. 1009, 1019 (2020) (interpreting § 1981); EEOC v. Abercrombie & Fitch Stores, Inc., 575 U.S. 768, 772-73 (2015) (interpreting Title VII). It is therefore highly unusual for a manager to mention an employee’s race when stating that he plans to fire that employee, much less for a manager to say he plans to fire four African American individuals. Particularly because Scott “overheard” this conversation, he was reasonable to suspect that U.S. Bank’s decision to fire the four employees was based, at least in part, on their race. See, e.g., Payne, 654 F.2d at 1140-41 & n.12 (plaintiff’s mere observation that his employer did not hire or promote African Americans into certain positions was enough to support a reasonable belief of unlawful employment discrimination).

The district court disagreed, stating that because Seward directed his remark at Triggs, who himself was African American, there was “no reason to think [the] statement was made under suspicious circumstances.” ROA.63-64. But the relevant question is whether Scott reasonably believed that Seward and others involved in the termination decisions were engaged in race discrimination, and Triggs’s race has little if any bearing on that question. Scott could reasonably assume, for example, that Seward was simply notifying a fellow manager about the race-based terminations because of the possibility for resulting fallout. In any event, Triggs’s race does not foreclose the possibility that he could acquiesce in race discrimination by others. Cf. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998) (“[W]e have rejected any conclusive presumption that an employer will not discriminate against members of his own race.”). Thus, it was improper for the district court to hold at the pleading stage that Seward’s remark could not support a reasonable belief. Cf. Yazdian v. ConMed Endoscopic Techs., Inc., 793 F.3d 634, 647 (6th Cir. 2015) (when opposition may reasonably be interpreted either as directed at Title VII-related discrimination or as a more generalized grievance, courts cannot decide the issue as a matter of law).

2. The fact that Scott gave his witness statement in response to his employer’s questioning bolsters his reasonable-belief argument.

The context and setting in which U.S. Bank compelled Scott to discuss Seward’s remark bolster the conclusion that Scott adequately alleged a reasonable belief. In Rite Way, for instance, the individual on whose behalf the EEOC filed suit, Mekeva Tennort, served as a witness in an employer-initiated internal investigation and corroborated a co-worker’s allegation that a supervisor had directed inappropriate sexual comments and gestures toward her. 819 F.3d at 238. This Court concluded that a reasonable jury could determine that Tennort “reasonably believe[d] that she was providing information about a Title VII violation” when she gave her statement. Id. at 242-44. In reaching that conclusion, Rite Way reasoned in part that “the reactive nature of Tennort’s complaint sets it apart from the more common proactive opposition case,” and it emphasized the “context” and “setting” of Tennort’s opposition as critical to determining whether she held a reasonable belief. Id. at 243-44. A key fact this Court highlighted in this regard was that, after Tennort witnessed the supervisor’s two offensive acts, an HR official asked if Tennort could corroborate her co-worker’s allegations. Id. at 244 (also noting that the HR official insinuated that the company would prefer that Tennort not corroborate the harassment complaint). “If Tennort had not yet reached a view that [the supervisor] violated federal employment law when he made offensive comments and gestures,” this Court reasoned, “the circumstances surrounding her [employer’s] questioning may very well have caused her to do so.” Id.

Similarly, here, because Scott’s witness statement was “reactive” rather than “proactive,” the context and setting in which he gave his statement are critical to determining whether he held a reasonable belief of unlawful discrimination. And, much as in Rite Way, even if Scott lacked a reasonable belief that Seward’s comment suggested unlawful discrimination when it was made, his belief in that regard became reasonable when he learned that Seward’s remark caused his co-worker to allege discrimination and that, in turn, led U.S. Bank to launch an investigation. See id. at 244. This is especially true because Scott is a layperson “not instructed on Title VII law as a jury would be.” Id. at 242; see also Flowers v. Columbia Coll. Chi., 397 F.3d 532, 534-35 (7th Cir. 2005) (emphasizing that the reasonable-belief standard must be assessed from a layperson’s perspective).

3. All of Scott’s oppositional acts must be considered as a whole in determining whether his opposition was supported by a reasonable belief.

The district court considered Scott’s witness statement in isolation and concluded that it could not support a reasonable belief of unlawful discrimination on its own. ROA.63-64. According to the court, it then followed that Scott’s “subsequent opposition” to retaliation by his supervisors for making that witness statement, “by definition,” could not “implicate Title VII.” ROA.64-65. This analytical approach was incorrect because, as this Court and others have held, an individual’s oppositional acts must be considered as a whole in determining whether they are supported by a reasonable belief of unlawful discrimination.

In Long, for example, a plaintiff complained to her employer about her supervisor three times, first accusing him of telling “an offensive joke, involving condoms,” and then alleging twice more that he subjected her to various insulting and disciplinary acts, which the plaintiff considered to be discriminatory and in retaliation for her earlier complaints. 88 F.3d at 304 & n.2, 305. Concluding that the plaintiff satisfied the reasonable-belief test for purposes of surviving summary judgment, this Court treated her complaints of discrimination and retaliation as a single course of opposition conduct. Id. at 305; see also id. at 309 n.10; Rite Way, 819 F.3d at 243 (observing that Long “[v]iew[ed] the joke and the supervisor’s alleged reactions to [the plaintiff’s] internal complaints together” (emphasis added)).

Similarly, in DeMasters v. Carilion Clinic, 796 F.3d 409 (4th Cir. 2015), the Fourth Circuit held that when a plaintiff first opposes sex discrimination and then opposes retaliatory conduct linked to the discrimination, “the touchstone is whether the plaintiff’s course of conduct as a whole . . . concerns subject matter . . . that [he] ‘reasonably believes to be unlawful.’” Id. at 418 (citation omitted). Indeed, the DeMasters court added, “nothing in the language of the Opposition Clause nor in its interpretation by the courts supports a myopic analysis under which an employee’s opposition must be evaluated as a series of discrete acts.” Id. at 417; see also id. at 420-21 (criticizing the trial court in that case for “fram[ing] the issue too narrowly”); Magyar v. Saint Joseph Reg’l Med. Ctr., 544 F.3d 766, 769, 771 (7th Cir. 2008) (assessing two oppositional acts, a complaint of harassment and one of retaliatory treatment rooted in the first complaint, and construing them as “one continuous complaint process to which [the plaintiff] resorted”).

These principles apply with full force here because Scott’s witness statement is not the only oppositional act he claims to have taken in this case. Quite to the contrary, after Scott gave his witness statement, he (1) complained to Triggs that Wyatt had failed his loan “in retaliation for” his witness statement; (2) reported to HR that his supervisors were “failing [his] loans” and subjecting him to unjustified “verbal counseling,” among other things, as retaliation for his earlier complaints; and (3) confronted his supervisors the day before his discharge, twice accusing them of “harassment.” ROA.3-4. These actions must be considered in their totality when determining whether Scott held a reasonable belief that U.S. Bank was committing unlawful employment practices.

Moreover, U.S. Bank’s forceful negative reaction to Scott’s witness statement itself strongly bolsters his reasonable-belief argument. In the months following Scott’s witness statement, his supervisors subjected him to a persistent pattern of adverse treatment, which he thought was unjustified and which he thus connected to his earlier witness statement. A reasonable person in Scott’s shoes could have viewed U.S. Bank’s response in this regard as a concerted attempt to intimidate and silence him, further supporting a reasonable belief that Scott’s witness statement described conduct implicating unlawful discrimination. See, e.g., Rite Way, 819 F.3d at 244 (employer’s adverse reaction to statement supports conclusion that employee could have reasonable belief that statement concerns unlawful discrimination); cf., e.g., United States v. Kimmel, 777 F.2d 290, 293 (5th Cir. 1985) (recognizing, in a criminal case, that “efforts at witness intimidation” are relevant to show “defendant’s consciousness of guilt”). Thus, particularly when Scott’s opposition conduct is considered as a whole, he adequately alleged that he reasonably believed U.S. Bank was engaging in unlawful employment practices.

B. The district court’s conclusion to the contrary lacks merit.

The district court did not seriously grapple with the precedent and arguments just discussed. Instead, the court focused on whether Scott could have held a reasonable belief at the time of his witness statement, and it relied on inapposite precedent and considerations in answering that question in the negative.

The district court deemed Scott’s belief that U.S. Bank was engaging in race discrimination unreasonable because, according to the court, that belief was based on Seward’s “isolated comment.” ROA.63. In reaching this conclusion, the court acknowledged this Court’s observation that “opposition clause claims grounded in isolated comments are not always doomed to summary judgment.” Rite Way, 819 F.3d at 243; see also ROA.63. But the court then relied on this Court’s unpublished decision in Satterwhite v. City of Houston, 602 F. App’x 585 (5th Cir. 2015), which it described as standing for the proposition that an employee’s opposition-clause claim grounded in a single comment is “doomed” unless he provides “substantial circumstantial evidence corroborating the . . . allegation of discrimination.” ROA.63 (citation omitted). The district court’s reliance on Satterwhite in this context was misplaced for three reasons. First, Satterwhite was decided on summary judgment, not a motion to dismiss. 602 F. App’x at 587. This Court recently has confirmed that a plaintiff need not “substantiate [his] retaliation claim with evidence at the pleading stage” in any event. Wright, 990 F.3d at 433. In addition, as discussed above, Scott’s oppositional conduct was directed not only at Seward’s “single” comment, but also at the series of retaliatory acts by Wyatt and Triggs that flowed from it. See supra p. 20.

Third, and perhaps most importantly, the underlying violation in Satterwhite was allegedly unlawful harassment, whereas Scott’s witness statement opposed discriminatory firing decisions. See 602 F. App’x at 587-88. This distinction is important because race- or sex-based harassment does not rise to the level of altering an employee’s conditions of employment—and thus is not actionable under Title VII—unless it is “severe or pervasive.” Faragher v. City of Boca Raton, 524 U.S. 775, 786 (1998) (citation omitted). Harassment therefore ordinarily requires repetitive behavior to be deemed actionable. See, e.g., id. at 788 (explaining that “isolated incidents” are insufficient unless “extremely serious”). Conversely, a race-based discharge decision, the underlying violation at issue here, is a discrete act that itself adversely alters the victim’s terms and conditions of employment. See, e.g., Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002) (explaining that terminations “constitute[] a separate actionable ‘unlawful employment practice’”). Arguably, then, it made sense in Satterwhite to focus on whether that case involved repeated offensive acts, as the number of acts was relevant to whether the plaintiff could have reasonably believed that the underlying conduct was actionable. But that consideration has no bearing here because even an “isolated” discriminatory firing decision is enough by itself to violate the statute. Therefore, the district court erred in faulting Scott for lacking “substantial circumstantial evidence” to corroborate the inference of Seward’s discriminatory intent. ROA.63.

The district court made related errors in discussing the framework to be used for evaluating whether Seward’s comment supported a reasonable belief. The court observed that Scott’s district court complaint alleged no “direct evidence that Seward acted with racially discriminatory intent,” and the court determined that it follows that “the burden-shifting framework established in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802-04 (1973), controls.” ROA.61. Under McDonnell Douglas, the court noted, a plaintiff alleging discrimination must establish four prima facie elements. See ROA.61-62 (listing elements as, among other things, that the plaintiff was “qualified for her position” and was “replaced by someone outside of the protected class”). Those standards, however, are what would apply—typically at the summary-judgment stage—in evaluating whether an employer intentionally discriminated based on race; they do not control when answering the question here, which is whether Scott adequately alleged—at the pleading stage—that he “reasonably believed” that U.S. Bank engaged in race discrimination. E.g., Rite Way, 819 F.3d at 242 (“[T]he reasonable belief standard recognizes there is some zone of conduct that falls short of an actual violation but could be reasonably perceived to violate Title VII.”); see also Cicalese v. Univ. of Tex. Med. Branch, 924 F.3d 762, 767-68 (5th Cir. 2019) (reversing dismissal of a substantive discrimination claim because allegations should not be subjected “to a rigorous factual or evidentiary analysis under the McDonnell Douglas framework in response to a motion to dismiss”).

Although the district court recited the principle that a plaintiff can establish a reasonable belief without showing an actual underlying violation, ROA.62-63, the court’s analysis shows that, in actuality, it demanded that Scott adequately plead an underlying race-discrimination claim. That the court imposed this heightened standard follows from the fact that the court (1) found it significant that Scott alleged no “direct evidence” of Seward’s “racially discriminatory intent,” ROA.61; and (2) faulted Scott’s complaint for lacking “circumstantial evidence which would create an inference that Seward’s statement reflected intentional race discrimination.” ROA.63 (emphasis added). This heightened standard imposed by the district court is inconsistent with relevant reasonable-belief precedent. See, e.g., Payne, 654 F.2d at 1140-41 & n.12 (upholding finding that the plaintiff held reasonable belief without demanding evidence that the underlying personnel decisions were actually unlawful). And it is particularly inappropriate at the motion-to-dismiss stage. See, e.g., Cuellar, 656 F. App’x at 710.[5]

CONCLUSION

This Court should reverse the district court’s judgment and remand the case for further proceedings.

Respectfully submitted,

GWENDOLYN YOUNG REAMS

Acting General Counsel

JENNIfer s. goldstein

Associate General Counsel

SYDNEY A.R. FOSTER

Assistant General Counsel

/s/ Philip M. Kovnat

PHILIP M. KOVNAT

Attorney, Appellate Litigation
Services

Office of General Counsel

Equal Employment Opportunity
Commission

131 M St. NE, Fifth Floor

Washington, DC 20507

(202) 921-2702

philip.kovnat@eeoc.gov

April 26, 2021

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

[2] Because this is an appeal from a dismissal under Federal Rule of Civil Procedure 12(b)(6), this recitation of facts is based on the factual allegations in Scott’s district court complaint, which must be taken as true. See, e.g., Lormand v. US Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009).

[3] “ROA” refers to the record on appeal, i.e., the documents filed in district court in the case below. The number following “ROA.” refers to the “PageID” number imprinted on the record documents in the top righthand corner.

[4] An individual also engages in protected activity under the “participation clause,” by “ma[king] a charge, testif[ying], assist[ing], or participat[ing] in any manner in an investigation, proceeding, or hearing under” Title VII. 42 U.S.C. § 2000e-3(a). Because, in the Commission’s view, Scott has stated a plausible claim under the opposition clause, this Court need not address the participation clause. See, e.g., Crawford, 555 U.S. at 280 (declining to decide whether the participation clause covers answering questions during an employer’s internal discrimination investigation because, the Court determined, plaintiff was covered by the opposition clause).

[5] This Court has never affirmed a Rule 12(b)(6) dismissal on reasonable-belief grounds in a published decision. Rather, in an analogous case, involving the reasonable-belief test under the Sarbanes-Oxley Act of 2002, 18 U.S.C. § 1514A, this Court did the opposite. See Wallace v. Tesoro Corp., 796 F.3d 468, 479-80 (5th Cir. 2015) (plaintiff “adequately alleged that he believed the practice [he opposed] violated SEC rules,” and because this belief had a reasonable basis, dismissal under Rule 12(b)(6) was improper).