Table of Authorities......................................................... iii

Statement of Interest......................................................... 1

Statement of the Issue....................................................... 2

Statement of the Case........................................................ 2

A. Statement of Facts.................................................... 2

B.District Court’s Decision............................................

Summary of the Argument.............................................. 6

Argument........................................................................... 7

The “ultimate employment decision” standard, which this Court

applies to Title VII discrimination claims, does not apply to

retaliation claims.......................................................... 7

Conclusion........................................................................ 14

Certificate of Compliance

Table of Authorities

Cases

Alvarado v. Tex. Rangers, 492 F.3d 605 (5th Cir. 2007). 13

Aryain v. Wal-Mart Stores Tex. LP, 534 F.3d 473 (5th Cir. 2008)............................................................................. 3

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

Haire v. Bd. of Supervisors of La. State Univ. Agric. & Mech. Coll.,

719 F.3d 356 (5th Cir. 2013)............................................ 12

Hamilton v. Dall. Cnty., 42 F.4th 550 (5th Cir.), vacated and reh’g en banc granted, 50 F.4th 1216 (5th Cir. 2022). 7

Holloway v. Dep't of Veterans Affs., 244 F. App’x 566 (5th Cir. 2007)................................................................... 12

Johnson v. Halstead, 916 F.3d 410 (5th Cir. 2019).......... 12

Mattern v. Eastman Kodak Co., 104 F.3d 702 (5th Cir. 1997)..................................................................................... 8

McCoy v. City of Shreveport, 492 F.3d 551 (5th Cir. 2007).................................................................................. 6, 11, 12

Owens v. Circassia Pharms., Inc., 33 F.4th 814 (5th Cir. 2022)..................................................................................... 7

Pegram v. Honeywell, Inc., 361 F.3d 272 (5th Cir. 2004) 13

Stancu v. Hyatt Corp./Hyatt Regency Dallas,

791 F. App’x 446 (5th Cir. 2019)..................................... 12

Wheat v. Fla. Par. Juv. Just. Comm'n, 811 F.3d 702 (5th Cir. 2016)........................................................................... 12

Statutes

Title VII of the Civil Rights Act of 1964 , 42 U.S.C. §§ 2000e et seq.......................................................................... 1

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

42 U.S.C. § 2000e-3(a)..................................... 1, 2, 7, 9

Rules

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

Statement of Interest

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., bars retaliation for engaging in protected activity. 42 U.S.C. § 2000e-3(a). The EEOC and the Attorney General share enforcement responsibility under Title VII, 42 U.S.C. § 2000e-5(a) & (f)(1), and share an interest in the proper interpretation of Title VII’s protections against retaliation.

The Supreme Court set out the standard for evaluating adverse actions in retaliation claims in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006), holding that an adverse action need only be “materially adverse,” meaning it might have dissuaded a reasonable worker from engaging in protected activity. Id. at 68. The district court, however, required the plaintiff to show an “ultimate employment decision[], such as hiring, firing, demoting, promoting, granting leave, and compensating.” ROA.1147 (internal quotation marks omitted). In doing so, it did not cite or apply Burlington Northern or its progeny. The EEOC and the Attorney General have a substantial interest in ensuring courts apply the correct legal standards to the laws it enforces. Accordingly, the EEOC and the Attorney General file this brief pursuant to Federal Rule of Appellate Procedure 29(a).

Statement of the Issue

The Supreme Court held in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006), that Title VII’s anti-retaliation provision, 42 U.S.C. § 2000e-3(a), covers any employer action that might dissuade a reasonable employee or applicant from engaging in protected activity. Did the district court err in using this Court’s “ultimate employment decision” standard for discrimination claims to assess the plaintiff’s retaliation claim?[1]

Statement of the Case

A. Statement of Facts

Carolyn Johnson filed this suit against the Board of Supervisors of Louisiana State University and Agricultural and Mechanical College (“LSU”) based on her employment as an Administrative Coordinator 4 at the LSU Health Science Center – New Orleans.[2] ROA.1137-38. Johnson alleged that Dr. Jeffrey Schumacher subjected her to ongoing sexual and racial harassment. ROA.1138. That harassment culminated, according to Johnson, when Schumacher “slapped [her] on her buttocks.” ROA.1138.

Johnson reported the slap to LSU’s Human Resources Management office. ROA.1138. LSU did not resolve her complaint for more than a month. ROA.1138-39. During that time, LSU assigned Johnson to work in different offices. ROA.1139.

Relevant to her retaliation claim, Johnson asserted that LSU put her in an office that “had a horrible smell and a bug population.” ROA.547. She asserted that her desk was in the back of this office, and “she could hear things scurrying around” as she went down the office’s dark hallway to her desk. ROA.547-48.

According to Johnson, the bugs were not the only problem. She alleged that LSU put paper over the windows to her office and her coworkers “would knock on them, make the sound of a monkey . . . laugh, and leave without speaking to” Johnson. ROA.548. She heard people say “[t]hey got the human primate locked in here,” and call her “crazy.” ROA.548. Johnson also asserted she was told not to open her office door unless Dr. Birke called her. ROA.548. These conditions caused her emotional distress. ROA.546-47.

When LSU substantiated her complaint against Dr. Schumacher, it told Johnson she could move back to her own office and Dr. Schumacher would work elsewhere. ROA.1139. Johnson did not return to work because her doctor had “declared [her] disabled for work and prescribed an anti-depressant”; her psychiatrist informed LSU that Johnson would be out until October 8, 2018. ROA.1139. Johnson remained on leave, and, in mid-December, her psychiatrist said Johnson could return to work if LSU provided several accommodations. ROA.1139. LSU approved the accommodations, but Johnson remained on leave until May 2019, when LSU terminated her. ROA.1139.

B. District Court’s Decision

Johnson alleged that LSU violated Title VII by, among other things, subjecting her to retaliatory harassment.[3] In evaluating that claim, the district court relied on this Court’s standard for evaluating Title VII discrimination claims. See ROA.1147. Johnson’s retaliation claim required “[a]n adverse employment action,” according to the district court, which “consists of ‘ultimate employment decisions’ such as hiring, firing, demoting, promoting, granting leave, and compensating.” ROA.1147. It then summarily held that, contrary to Johnson’s allegations, LSU did not unreasonably delay its investigation and there was “no evidence [Johnson’s] job duties, compensation, or benefits were affected by [Johnson’s] assignment to the ‘bug room’ as required to maintain her retaliation claim.” ROA.1147. Based on that holding, the court granted summary judgment to LSU on the retaliation claim.

Summary of Argument

The district court erred by using this Court’s adverse action standard for discrimination claims to evaluate Johnson’s retaliation claim, inappropriately requiring an “ultimate employment decision.” That standard does not apply to retaliation. To the contrary, the Supreme Court has held—and this Court has recognized—that a plaintiff may show an adverse action for a retaliation claim by showing only “that a reasonable employee would have found the challenged action materially adverse,” that is, that “it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Burlington N., 548 U.S. at 68 (internal quotation marks omitted); McCoy v. City of Shreveport, 492 F.3d 551, 559-60 (5th Cir. 2007).

Argument

The “ultimate employment decision” standard, which this Court applies to Title VII discrimination claims, does not apply to retaliation claims.

The district court required Johnson to show an ultimate employment decision for her retaliation claim, ROA.1147, but that is this Court’s current standard for assessing adverse actions for discrimination claims.[4] Title VII’s anti-retaliation provision makes it unlawful “for an employer to discriminate against any of his employees or applicants” for engaging in activity protected by Title VII. 42 U.S.C. § 2000e-3(a). The prima facie case requires an individual to show protected activity caused an adverse action. Owens v. Circassia Pharms., Inc., 33 F.4th 814, 835 (5th Cir. 2022). The Supreme Court in Burlington Northern held that the adverse action standard for Title VII retaliation claims requires only an action that may dissuade a reasonable worker from engaging in protected activity. 548 U.S. at 68. But the district court here did not cite Burlington Northern or acknowledge the dissuade-a-reasonable-worker standard, instead requiring an “ultimate employment decision[].” ROA.1147. The EEOC and the Attorney General therefore request that the Court reaffirm that a retaliatory adverse action need not be an ultimate employment decision.

To be sure, this Court once interpreted Title VII to require both discrimination claims and retaliation claims to have an ultimate employment decision. See Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir. 1997). But the Supreme Court rejected that approach in Burlington Northern. 548 U.S. at 61, 67. The Burlington Northern Court recognized a circuit split on the level of harm required for a retaliation claim under Title VII. Id. at 60-61. Some circuits used a dissuade-a-reasonable worker standard, while others required “an adverse employment action.” Id. at 60. Quoting Mattern, the Supreme Court observed that “[t]he Fifth and the Eighth Circuits . . . adopted a more restrictive approach,” using “an ‘ultimate employment decision’ standard, which limits actionable retaliatory conduct to acts ‘such as hiring, granting leave, discharging, promoting and compensating.’” Id.

The Supreme Court resolved this circuit split by looking first to Title VII’s language. Title VII prohibits discrimination “with respect to . . . compensation, terms, conditions, or privileges of employment” based on a protected characteristic. 42 U.S.C. § 2000e-2(a)(1). The retaliation provision, the Court noted, does not use this language. Burlington N., 548 U.S. at 62. Instead, it bars discrimination against any “employee[] or applicant[] for employment . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). The Supreme Court compared these two provisions and noted the substantive prohibition on discrimination “explicitly limit[s]” its reach “to actions that affect employment or alter the conditions of the workplace.” Burlington N., 548 U.S. at 62. The retaliation provision includes “[n]o such limiting words.” Id.

Next, the Supreme Court observed that Title VII’s prohibition on retaliation served a different purpose than the prohibition on discrimination. Title VII, it observed, prohibited discrimination in order to “seek[] a workplace where individuals are not discriminated against because of their racial, ethnic, religious, or gender-based status.” Id. at 63. Title VII’s prohibition on retaliation, meanwhile, serves “to secure that primary objective by preventing an employer from interfering (through retaliation) with an employee’s efforts to secure or advance enforcement of the Act’s basic guarantees.” Id.

In light of these significant differences, the Supreme Court held that “the antiretaliation provision, unlike the substantive provision, is not limited to discriminatory actions that affect the terms and conditions of employment.” Id. at 64. And it explicitly “reject[ed] the standards applied in the Courts of Appeals that . . . have limited actionable retaliation to so-called ‘ultimate employment decisions.’” Id. at 67.

Burlington Northern then articulated the standard for courts to apply. Title VII, the Supreme Court held, prohibits retaliatory actions that are “materially adverse,” meaning they might have dissuaded a reasonable worker from engaging in protected activity. Id. at 68. The Court explained that it chose “material adversity” to “separate significant from trivial harms.” Id. (emphasis omitted). But “the significance of any given act of retaliation will often depend upon the particular circumstances.” Id. at 69. Thus, the Supreme Court observed, “refus[ing] to invite an employee to a lunch is normally trivial,” but “excluding an employee from a weekly training lunch that contributes significantly to the employee’s professional advancement might well deter a reasonable employee from complaining about discrimination.” Id. And a schedule change that may otherwise appear trivial “may matter enormously to a young mother with school-age children.” Id.

This Court has long recognized Burlington Northern’s effect. Acknowledging that it had “historically held” that Title VII required “ultimate employment decisions” for both discrimination claims and retaliation claims, this Court recognized that the “the Supreme Court abrogated [that] approach in the retaliation context.” McCoy v. City of Shreveport, 492 F.3d 551, 559 (5th Cir. 2007); see also Johnson v. Halstead, 916 F.3d 410, 419–20 (5th Cir. 2019) (“ultimate employment decision” standard does not apply to § 1981 retaliation claims after Burlington Northern); Holloway v. Dep't of Veterans Affs., 244 F. App’x 566, 567 (5th Cir. 2007) (“Because this circuit’s standard for determining an adverse employment action is no longer limited to ultimate employment decisions, we remand . . . for reconsideration in light of Burlington Northern.”); see also Wheat v. Fla. Par. Juv. Just. Comm'n, 811 F.3d 702, 706 & n.1 (5th Cir. 2016) (recognizing Burlington Northern changed this Court’s adverse action standard for retaliation claims); Haire v. Bd. of Supervisors of La. State Univ. Agric. & Mech. Coll., 719 F.3d 356, 367-68 (5th Cir. 2013) (same). As a result, applying the “ultimate employment decision” to a retaliation claim reflects “an outdated and mistaken understanding of the law.” Stancu v. Hyatt Corp./Hyatt Regency Dall., 791 F. App’x 446, 451 (5th Cir. 2019).

The district court did not engage with this change in the governing standard. In assessing Johnson’s retaliation claim, it never determined whether a jury could find that the actions alleged might have dissuaded a reasonable worker from engaging in protected activity. See ROA.1147. Instead, the district court cited McCoy for the ultimate employment decision standard, ROA.1147 & n.72, without acknowledging that McCoy explicitly limited that standard to discrimination claims.[5] See McCoy, 492 F.3d at 559. The district court similarly cited two other cases in support of its standard: Alvarado v. Tex. Rangers, 492 F.3d 605, 612 (5th Cir. 2007), and Pegram v. Honeywell, Inc., 361 F.3d 272, 282 (5th Cir. 2004).ROA.1147 n.72. While Alvarado and Pegram refer to the ultimate employment decision standard, neither applied it to a retaliation claim.[6] Alvarado, 492 F.3d at 611-615 (discussing prima facie case for sex discrimination claim); Pegram, 361 F.3d at 281-285 (discussing race discrimination claim under § 1981).

Relying on these inapposite authorities, the district court granted summary judgment to LSU because there was “no evidence [Johnson’s] job duties, compensation, or benefits were affected.” ROA.1147. But requiring an effect on the terms and conditions of employment is precisely what Burlington Northern prohibits. 548 U.S. at 64. By failing to follow Burlington Northern’s unequivocal rejection of an ultimate employment decision standard and failing to assess whether a jury could find that the actions alleged might deter a reasonable employee from engaging in protected activity, the district court held Johnson to an inappropriately high standard—a standard that, as this Court has repeatedly acknowledged, the Supreme Court long since set aside.

Conclusion

For all these reasons, the EEOC and the Attorney General respectfully urge this Court to hold that the district court erred in failing to apply the Burlington Northern standard to determine whether a reasonable jury could find that LSU subjected Johnson to a materially adverse action.

Respectfully submitted,

GWENDOLYN YOUNG REAMS KRISTEN CLARKE

Acting General Counsel Assistant Attorney General

JENNIFER S. GOLDSTEIN TOVAH R. CALDERON

Associate General Counsel BONNIE I. ROBIN-VERGEER

ANNE NOEL OCCHIALINO Attorneys

Acting Assistant General Counsel

s/ James Driscoll-MacEachron Department of Justice

James Driscoll-MacEachron Civil Rights Division

Attorney Appellate Section

Equal Employment Ben Franklin Station

Opportunity Commission P.O. Box 14403

Office of General Counsel Washington, D.C. 20044-4403

131 M St. N.E., 5th Floor (202) 305-4278

Washington, D.C. 20507

(602) 661-0014

January 30, 2023

[1] The EEOC and the Attorney General take no position on any other issue in this case.

[2] The EEOC and the Attorney General presents these facts in the light most favorable to Johnson, consistent with the standard of review for an award of summary judgment. See Aryain v. Wal-Mart Stores Tex. LP, 534 F.3d 473, 478 (5th Cir. 2008).

[3] Johnson also alleged racial and sexual harassment, and the district court granted LSU summary judgment on those claims. The EEOC and the Attorney General take no position on those claims.

[4] This Court, sitting en banc, heard oral argument on January 24, 2023, to address whether “ultimate employment decision” is the appropriate standard for substantive discrimination claims under Title VII. Hamilton v. Dall. Cnty., 42 F.4th 550 (5th Cir.), vacated and reh’g en banc granted, 50 F.4th 1216 (5th Cir. 2022).

[5] The district court also articulated the element of the prima facie case for which it required an ultimate employment decision as an “adverse employment action,” ROA.1147, but that phrasing conflicts with Burlington Northern. A materially adverse action does not have to involve an employment action. See Burlington N., 548 U.S. at 63 (“An employer can effectively retaliate against an employee by taking actions not directly related to his employment or by causing him harm outside the workplace.”).