TABLE
OF AUTHORITIES..................................... ii
STATEMENT OF INTEREST................................. 1
STATEMENT OF ISSUES...................................... 1
STATEMENT OF THE CASE................................. 2
A. Statement
of Facts............................... 2
B. District
Court’s Decision...................... 6
ARGUMENT............................................................ 7
I. An
unfulfilled threat can constitute a materially adverse action for purposes of a
retaliation claim under Title VII.................. 7
A. Under
Burlington Northern, an unfulfilled threat is materially adverse if it
well might dissuade a reasonable worker from engaging in protected activity................................................. 8
B. The
district court did not properly apply Burlington Northern in assessing
whether the threats Russo faced were materially adverse............................. 12
C. Under
the correct standard, a reasonable jury could find that the threats Russo faced
were materially adverse............................................... 21
II. A
paid suspension, when based on race, should be actionable as discrimination
under Title VII...................................................... 23
CONCLUSION....................................................... 29
CERTIFICATE OF COMPLIANCE....................... 31
CERTIFICATE OF SERVICE................................ 33
Cases
Billings v. Town of Grafton,
515 F.3d 39 (1st Cir. 2008)........................ 11
Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53 (2006).............................. passim
Canada v. Samuel Grossi & Sons, Inc.,
49 F.4th 340 (3d Cir. 2022).......................... 2
Chambers v. District of Columbia,
35 F.4th 870 (D.C. Cir. 2022) (en banc).... 27, 28
Clarkson v. SEPTA,
700 F. App’x 111 (3d Cir. 2017)................. 20
Cox v. Onondaga Cnty. Sheriff’s Dep’t,
760 F.3d 139 (2d Cir. 2014)....................... 11
Davis v. Legal Servs. Ala., Inc.,
143 S. Ct. 560 (2023) (mem.)..................... 28
Davis v. Legal Servs. Ala., Inc.,
19 F.4th 1261 (11th Cir. 2021)............. 27-28
Davis v. Se. Pa. Transp. Auth.,
2016 WL 97922 (E.D. Pa. Jan. 8, 2016)..... 19
EEOC v. PVNF, LLC,
487 F.3d 790 (10th Cir. 2007).................... 16
Faragher v. City of Boca Raton,
524 U.S. 775 (1998).................................... 25
Gratz v. Ruggiero,
822 F. App’x 78 (3d Cir. 2020)................... 13
Hernandez v. Wal-Mart,
844 F. App’x 598 (3d Cir. 2021)................. 23
Hudson v. Cheyney Univ. of Pa.,
2018 WL 6603870 (E.D. Pa. Dec. 14, 2018)................................................................... 18
In re Trib. Media Co.,
902 F.3d 384 (3d Cir. 2018)....................... 23
Jones v. Se. Pa. Transp. Auth.,
796 F.3d 323 (3d Cir. 2015)................ passim
Killen v. Nw. Hum. Servs., Inc.,
2007 WL 2684541 (E.D. Pa. Sept. 7, 2007) 19
Komis v. Sec’y of U.S. Dep’t of Lab.,
918 F.3d 289 (3d Cir. 2019)....................... 15
LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n,
503 F.3d 217 (3d Cir. 2007)......................... 7
Lesiv v. Ill. Cent. R.R. Co.,
39 F.4th 903 (7th Cir. 2022)...................... 16
Lockridge v. Univ. of Me. Sys.,
597 F.3d 464 (1st Cir. 2010)...................... 16
Meritor Sav. Bank, FSB v. Vinson,
477 U.S. 57 (1986)...................................... 25
Monaghan v. Worldpay US, Inc.,
955 F.3d 855 (11th Cir. 2020).......... 9, 10, 22
Moore v. City of Phila.,
461 F.3d 331 (3d Cir. 2006)......................... 9
Nolan v. Swartz Campbell, LLC,
2008 WL 598291 (W.D. Pa. Feb. 29, 2008) 19
Oncale v. Sundowner Offshore Servs., Inc.,
523 U.S. 75 (1998)...................................... 17
Pantoja v. Am. NTN Bearing Mfg. Corp.,
495 F.3d 840 (7th Cir. 2007)........... 11-12, 18
Planadeball v. Wyndham Vacation Resorts, Inc.,
793 F.3d 169 (1st Cir. 2015)................. 10, 22
Poullard v. McDonald,
829 F.3d 844 (7th Cir. 2016)...................... 12
Pugni v. Reader’s Dig. Ass’n, Inc.,
2007 WL 1087183 (S.D.N.Y. Apr. 9, 2007) 19
Raffaele v. Potter,
2012 WL 33035 (E.D. Pa. Jan. 6, 2012)..... 18
Remp v. Alcon Lab’ys, Inc.,
701 F. App’x 103 (3d Cir. 2017)................. 20
Rivera v. Rochester Genesee Reg’l Transp. Auth.,
743 F.3d 11 (2d Cir. 2014)................... 10, 22
Robinson v. City of Pitt.,
120 F.3d 1286 (3d Cir. 1997)..................... 15
Taniguchi v. Kan Pac. Saipan, Ltd.,
566 U.S. 560 (2012).................................... 25
Thompson v. N. Am. Stainless, LP,
562 U.S. 170 (2011).................................... 18
Threat v. City of Cleveland,
6 F.4th 672 (6th Cir. 2021).................. 26, 28
Vega v. Hempstead Union Free Sch. Dist.,
801 F.3d 72 (2d Cir. 2015)......................... 11
Wharton v. Gorman-Rupp Co.,
309 F. App’x 990 (6th Cir. 2009)................ 11
Statutes
18 U.S.C. § 115.............................................. 13
18 U.S.C. § 1512............................................ 14
42 U.S.C. § 2000e............................................ 1
42 U.S.C. § 2000e-2................................ passim
42 U.S.C. § 2000e-3............................... 1, 7,
15
42 U.S.C. § 2000e-5......................................... 3
Rules
Fed. R. App. P. 29............................................ 1
Other Authorities
EEOC Compliance Manual § 8-II,
2006 WL 4672793 (2006)..................... 14, 27
EEOC, Enforcement Guidance on Retaliation and Related Issues,
No. 915.004, 2016 WL 4688886 (Aug. 25, 2016)....................................................... 9-10
Congress tasked the Equal Employment Opportunity
Commission (EEOC) with administering and enforcing Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.
This appeal presents important questions regarding the interpretation,
application, and scope of Title VII’s anti-discrimination and anti-retaliation
provisions. 42 U.S.C. §§ 2000e-2(a)(1),
2000e-3(a).
Because the EEOC has a substantial interest in the proper resolution of these
questions, the agency offers its views. See Fed. R. App. P. 29(a)(2).
1. Whether an employer’s unfulfilled
threat can constitute a “materially adverse action” for purposes of a
Title VII retaliation claim under the materiality standard set forth in Burlington
Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006).
2. Whether a paid suspension, when
based on race, should be actionable as discrimination under Title VII because
suspending an employee inherently affects her terms, conditions, or privileges
of employment.
Wandrea Russo, who is African American,
worked as a teller at The Bryn Mawr Trust Company (BMT). II.App.64 (¶¶ 1-4).
There, Russo’s manager, Therese Trainer, routinely made racist remarks. For
instance, Trainer stated that “black people don’t know how to budget,” that she
was “so tired of black people complaining about slavery,” and that “she was
tired of Black people complaining and acting like victims.” II.App.65-66 (¶¶ 12,
16), 68 (¶ 30). On one occasion, while Russo was helping a difficult
customer, Trainer told Russo, “Wandrea, this is a little old white lady, and
you’re a big black woman. I’m sure she’s much more scared of you than you are
of her.” II.App.67-68 (¶ 23).
In April 2018, Russo filed an
administrative charge with the EEOC and the Pennsylvania Human Rights
Commission, alleging discrimination. II.App.65 (¶ 11); see also 42 U.S.C.
§ 2000e-5(b) (Title VII
charge-filing provision). She also reported Trainer to BMT. II.App.68-70 (¶¶ 30,
35, 39, 43), 76-77 (¶¶ 92-94). The bank investigated Russo’s complaints,
but “concluded that discrimination or harassment had not occurred.” II.App.78
(¶ 98). However, in June 2018, the same month BMT shared its findings,
Trainer left and was replaced by another manager. II.App.78 (¶ 100), 80
(¶ 116).
Around the same time Russo filed her EEOC
charge, BMT also began investigating her for allegedly mishandling bank keys
and improperly securing a box containing vault combinations. II.App.72-74 (¶¶ 60-74).
Shortly thereafter, in May 2018, BMT placed Russo on “paid administrative
leave” while it completed its investigation. II.App.74 (¶¶ 75, 79). Ultimately,
BMT could not corroborate the allegations against Russo and closed its
investigation without taking any further disciplinary action. II.App.74-75 (¶¶ 75,
82); II.App.42 n.41.
When Russo returned from administrative
leave in June 2018, she met with a BMT human resources representative, Jennifer
Stryker. II.App.78 (¶ 101). During that meeting, Stryker informed Russo
that a reporter had contacted the bank and planned to write a story about
Russo’s EEOC charge. II.App.78 (¶ 103). Apparently believing that Russo
was responsible for the story, Stryker instructed Russo that she “needed to
reach out to [the reporter] immediately and tell him not to run that article;
that once [Russo] went down that road, there was no turning back; [and] that it
was going to be very bad for [Russo].” III.App.591 (525:12-16); II.App.177
(¶ 24); see also R.30-3 at 46 (257:8-16) (Russo testifying that
Stryker “told me she was upset” about the planned article, that “it wasn’t good
to do it,” and that “it was going to be very bad for me”); R.30-3 at 46 (257:20-21)
(Russo testifying that Styker told her “[y]ou need to call [the reporter] and
you need to make sure that this doesn’t run”); R.30-3 at 46-47 (257:24-258:2)
(Russo testifying that Stryker said “[t]his is going to be very bad for you”
and “[y]ou better be careful before you go down this road”).
Stryker also told Russo she was making a
“mistake,” and warned, “[i]t’s not going to be very easy to get a job with your
name, you know, out there that you’re making these kind of claims.” III.App.591
(525:20-22). After Russo responded that she did not have a problem with the
article, Styker announced that she was going to leave the room, wrote the
reporter’s name and telephone number on a note, handed the note to Russo, and
left with an implied ultimatum: “I’m going to allow you to think about it and
what I suggest is you get on the phone and you call [the reporter] and tell him
not to run that article.” III.App.592 (526:5-8); see also R.30-3 at 47
(258:3-7). At some point during this exchange, Stryker added, “[y]ou better
call him.” R.30-3 at 47 (258:6).
In the end, Russo did contact the
reporter. Instead of discouraging him from pursuing the story, though, Russo
gave an interview, and the newspaper ran an article about her complaints. II.App.79
(¶¶ 108, 110).
Less than a year later, in May 2019, Russo
reported another incident to BMT when a bank customer she was helping made a
series of racist and inappropriate comments. II.App.82-83 (¶¶ 127-34). BMT
again investigated the incident, and the customer confirmed Russo’s account. II.App.83
(¶ 138). As a result, BMT informed Russo that it planned to “de-market”
the customer, giving them thirty days to find and transfer their funds to a new
institution, and that Russo did not need to assist the customer if they returned.
II.App.84-85 (¶¶ 139, 145). Believing that BMT’s response was inadequate,
Russo resigned. II.App.85 (¶¶ 146-47).
Russo filed this action, asserting claims
for race discrimination and retaliation under Title VII (among other claims).
II.App.112-114 (¶¶ 51-61). After discovery, the district court granted
summary judgment to BMT on all of Russo’s claims. I.App.26-27.
As relevant here, the district court held
that Russo’s retaliation claim premised on Stryker’s threats failed as a matter
of law because unfulfilled threats categorically are not materially adverse. I.App.19.
The court reasoned that “[w]ords alone, even when harsh, do not constitute an
adverse action if they are unaccompanied by follow up discipline or other
negative action.” I.App.19 (quotation marks omitted). The court further found
that “Russo ha[d] not shown that [BMT] acted unfavorably toward her in any way
after this meeting [with Stryker] or that this alleged threat had any impact on
her employment.” I.App.19. Accordingly, the court concluded, the threats Russo
faced were “not a materially adverse action for purposes of a retaliation
claim.” I.App.19.
The district court also held that Russo’s
discrimination claim premised on her paid administrative leave failed as a
matter of law because, under this Court’s decision in Jones v. Southeastern
Pennsylvania Transportation Authority, 796 F.3d 323 (3d Cir. 2015),
a paid suspension pending an investigation of misconduct does not count as an
adverse employment action for purposes of a discrimination claim. I.App.10-12.
This appeal followed. I.App.28.
Title VII prohibits employers from
retaliating against employees who engage in activity protected by the statute—which
includes filing a charge of discrimination. 42 U.S.C. § 2000e-3(a).
To prevail on a retaliation claim, a plaintiff must show that: “(1) she
engaged in protected activity, (2) the employer took a materially adverse
action against her, and (3) there was a causal connection between the
protected activity and the employer’s action.” LeBoon v. Lancaster Jewish
Cmty. Ctr. Ass’n, 503 F.3d 217, 231 (3d Cir. 2007).
Here, the district court determined that Russo’s
retaliation claim premised on workplace threats failed as a matter of law because
unfulfilled threats categorially are not materially adverse. In other words,
according to the district court, a threat cannot be materially adverse unless
an employer acts on it. But the district court did not properly apply—and its
holding is contrary to—the Supreme Court’s decision in Burlington Northern
& Santa Fe Railway Co. v. White, 548 U.S. 53 (2006),
which established the material adversity standard for Title VII
retaliation claims. Under that standard, an unfulfilled threat, like any other retaliatory
conduct, is materially adverse if it “well might have dissuaded a reasonable
worker from making or supporting a charge of discrimination.” Id. at 68 (cleaned
up). Applying that standard here—and viewing the facts in the light most
favorable to Russo—a reasonable jury could find that the threats Russo faced were
materially adverse.
For these reasons, the district court’s
grant of summary judgment on Russo’s retaliatory threat claim should be
reversed and the case remanded for further appropriate proceedings.
In Burlington Northern, the Supreme
Court held that an action is materially adverse for purposes of a Title VII
retaliation claim if “it well might have dissuaded a reasonable worker from
making or supporting a charge of discrimination.” 548 U.S. at 68 (cleaned up). Accordingly, to survive summary judgment on the issue of material
adversity, a plaintiff need only show that “[a] reasonable jury could conclude
that [her employer] took actions against [her] that might well dissuade a
reasonable worker from filing or supporting a charge of discrimination.” Moore
v. City of Phila., 461 F.3d 331, 346 (3d Cir. 2006) (reversing
district court’s grant of summary judgment to employer on retaliation claim).
The Burlington Northern standard
applies with equal force to retaliatory threats. As the Eleventh Circuit has
explained, in determining whether an employer’s threats are actionable as
retaliation, courts must apply “the standard applicable to all Title VII
retaliation claims,” that is, “the Burlington Northern ‘well might have
dissuaded’ standard.” Monaghan v. Worldpay US, Inc., 955 F.3d 855, 862
(11th Cir. 2020) (emphasis
added). EEOC guidance likewise provides that “adverse actions may include
work-related threats … that in the circumstances might well dissuade a
reasonable person from engaging in protected activity.” EEOC, Enforcement
Guidance on Retaliation and Related Issues, No. 915.004, 2016 WL 4688886,
at *17 & n.110 (Aug. 25, 2016).
Applying Burlington Northern,
multiple courts of appeals have held that under at least some circumstances, an
employer’s threats alone could dissuade a reasonable worker from engaging in
protected activity. Several circuits, for instance, have held that threatening
to fire an employee could have this effect. See Rivera v. Rochester Genesee
Reg’l Transp. Auth., 743 F.3d 11, 26 (2d Cir. 2014) (reasonable
jury “could find both that [employer] threatened [employee] with the loss of
his job, and that this threat would dissuade a reasonable worker from making or
supporting a charge of discrimination”) (cleaned up); Planadeball v. Wyndham
Vacation Resorts, Inc., 793 F.3d 169, 178 (1st Cir. 2015) (employer’s
“multiple threats to fire” employee “could dissuade a reasonable employee from
making or supporting a charge of discrimination”); Monaghan, 955 F.3d at
863 (threats of “termination and possible physical harm” could dissuade
reasonable worker from making or supporting a charge of discrimination).
Courts have similarly recognized that
threatening an employee with disciplinary action, negative performance
evaluations, physical harm, or other negative consequences could dissuade a
reasonable worker from engaging in protected activity under some circumstances.
See Billings v. Town of Grafton, 515 F.3d 39, 54-55 (1st Cir. 2008) (“An
employee who knows that, by [making a charge of discrimination], she risks … a
threat of further, more serious discipline … might well choose not to proceed
with the litigation in the first place.”) (quotation marks omitted); Vega v.
Hempstead Union Free Sch. Dist., 801 F.3d 72, 92 (2d Cir. 2015) (“[T]he
threat of a negative evaluation … might dissuade a reasonable worker from
making or supporting a charge of discrimination.”) (quotation marks omitted); Wharton
v. Gorman-Rupp Co., 309 F. App’x 990, 998 (6th Cir. 2009) (“Threatening
behavior by a vice-president of human resources toward a subordinate employee
in the company parking lot, where that employee reasonably feels that violence
is a real possibility, is likely to dissuade any reasonable worker from making
or supporting a charge of discrimination….”); Cox v. Onondaga Cnty. Sheriff’s
Dep’t, 760 F.3d 139, 148 (2d Cir. 2014) (“[T]he
threat of false reports charges … would often—even usually—be a deterrent to
reasonable employees making or supporting discrimination claims.”); Pantoja
v. Am. NTN Bearing Mfg. Corp., 495 F.3d 840, 849 (7th Cir. 2007) (factfinder
could conclude that threats of disciplinary action “on their own” were
materially adverse for purposes of retaliation claim); but see Poullard v.
McDonald, 829 F.3d 844, 856-57 & n.3 (7th Cir. 2016) (holding
that employer’s “threats of unspecified disciplinary action do not constitute
adverse actions, at least not in this context,” but noting that “we have left
open ‘the possibility that a plaintiff could argue that a singular threat of
termination had the impact of dissuading a reasonable worker from supporting a
discrimination complaint’”) (citation omitted).
Here, although the district court cited Burlington
Northern’s material adversity standard, I.App.16, it did not assess whether
the threats Russo faced might have dissuaded a reasonable worker from engaging
in protected activity. Instead, the court held that threats categorically
cannot be materially adverse unless they are accompanied by “follow up
discipline or other negative action” or have an “impact on [a plaintiff’s]
employment.” I.App.19. In other words, according to the district court, a
threat cannot be materially adverse unless an employer acts on it.
There are at least three problems with
that reasoning. First, it is inconsistent with Burlington Northern and
contrary to the weight of authority canvassed above. Supra at 8-12. As
those decisions demonstrate, an employer’s threats are materially adverse and
actionable as retaliation whether or not the employer acts on them so
long as they might dissuade a reasonable worker from engaging in protected
activity.
That outcome makes sense because threats
are, nearly by definition, often intended to intimidate a person to deter
behavior or compel compliance. As this Court has explained in other contexts,
“[a] threat is an expression of intention to do harm,” and when used to
intimidate, threats are meant to “discourage someone” from doing
something. Gratz v. Ruggiero, 822 F. App’x 78, 84 (3d Cir. 2020) (cleaned
up) (emphasis added). The federal criminal code is likewise replete with laws
recognizing and prohibiting threats of this nature. See, e.g.,
18 U.S.C. § 115(a)(1) (crime
to threaten federal official “with intent to impede, intimidate, or interfere
with such official”); id. § 1512(a)(2)(A) (crime
to threaten witness “with intent to … influence, delay, or prevent [their]
testimony”).
So understood, the fact that a threat
goes unfulfilled does not necessarily diminish its power to intimidate. Quite
the opposite, in the employment context, an employer may be less likely to act
on a threat that has its desired effect: dissuading an employee from
complaining about discrimination. It would therefore be anomalous to require a
plaintiff to show that her employer followed through with its threatened “discipline
or other negative action,” I.App.19, to show that the threats were materially
adverse. Cf. EEOC Compliance Manual § 8-II(E)(1), 2006 WL 4672793,
at n.45 (2006) (“[A]n
interpretation of [the statute] that permits proven retaliation to go
unpunished undermines the purpose of the anti-retaliation provisions of
maintaining unfettered access to the statutory remedial mechanism.”).
The second problem with the district
court’s reasoning is that it revives pre-Burlington Northern standards
by requiring a plaintiff to show that the threats she confronted had an “impact
on her employment.” I.App.19. Before Burlington Northern, some
courts—including this Court—held that retaliatory conduct is materially adverse
only if it affects the “terms” or “conditions” of employment. See, e.g.,
Robinson v. City of Pitt., 120 F.3d 1286, 1300 (3d Cir. 1997).
But Burlington Northern expressly abrogated those holdings.
In Burlington Northern, the
Supreme Court clarified that, unlike Title VII’s anti-discrimination
provision, the anti-retaliation provision “is not limited to discriminatory
actions that affect the terms and conditions of employment.” 548 U.S. at 64;
see also Komis v. Sec’y of U.S. Dep’t of Lab., 918 F.3d 289, 293 (3d
Cir. 2019) (same).
After all, while the anti-discrimination provision prohibits discrimination
“with respect to … compensation, terms, conditions, or privileges of
employment,” 42 U.S.C. § 2000e-2(a)(1),
the anti-retaliation provision contains no such qualification, id. § 2000e-3(a).
The Court found “strong reason to
believe” that Congress intentionally drew this “important” textual distinction
to further Title VII’s aims. Burlington N., 548 U.S. at 61, 63.
As the Court reasoned, because “Title VII depends for its enforcement upon the
cooperation of employees who are willing to file complaints and act as
witnesses, … [i]nterpreting the antiretaliation provision to provide broad
protection from retaliation helps ensure the cooperation upon which
accomplishment of [Title VII’s] primary objective depends.” Id. at 67;
see id. at 66 (rejecting the view that “it is ‘anomalous’ to read [Title
VII] to provide broader protection for victims of retaliation than for …
[discrimination] victims”). Simply put, an employee need not show that an
employer’s threats—or any other form of retaliation—impacted her employment to
show material adversity. Cf. EEOC v. PVNF, LLC, 487 F.3d 790, 803 n.8
(10th Cir. 2007).
The third problem with the district
court’s decision is that it effectively imposes a categorical rule that
unfulfilled threats are never materially adverse. As the Seventh Circuit
recently observed, “[t]he Supreme Court has cautioned against categorical rules
for retaliation claims.” Lesiv v. Ill. Cent. R.R. Co., 39 F.4th 903, 913
(7th Cir. 2022);
see also Lockridge v. Univ. of Me. Sys., 597 F.3d 464, 472 (1st Cir.
2010) (“After
Burlington Northern, employment actions are less susceptible to
categorical treatment when it comes to the question of whether they are or are
not materially adverse.”).
In Burlington Northern, the Supreme
Court made clear that “the significance of any given act of retaliation will
often depend upon the particular circumstances.” 548 U.S. at 69.
“The real social impact of workplace behavior,” the Court explained, “often
depends on a constellation of surrounding circumstances, expectations, and
relationships which are not fully captured by a simple recitation of the words
used or the physical acts performed.” Id. (quoting
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81-82 (1998)).
More simply, “[c]ontext matters.” Id. For
example, a “change in an employee’s work schedule may make little difference to
many workers, but may matter enormously to a young mother with school-age
children.” Id. Similarly, while “[a] supervisor’s refusal to invite an
employee to lunch is normally trivial, a nonactionable petty slight,”
“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.
Given this context-driven inquiry, the
Court concluded, “a legal standard that speaks in general terms rather than
specific prohibited acts is preferable, for an ‘act that would be immaterial in
some situations is material in others.’” Id. (citation
omitted). In a later decision, the Court again eschewed categorical rules, saying
that, “[g]iven the broad statutory text and the variety of workplace contexts
in which retaliation may occur, Title VII’s antiretaliation provision is
simply not reducible to a comprehensive set of clear rules.” Thompson v. N.
Am. Stainless, LP, 562 U.S. 170, 175 (2011).
Had the district court heeded that guidance, it would have declined to rule
categorically that unfulfilled threats cannot be materially adverse. See
Pantoja, 495 F.3d at 849 (given Burlington Northern’s
“context-driven inquiry,” “we have declined to rule categorically that
[disciplinary] warnings cannot be adverse actions”).
The lower court decisions on which the
district court relied do not compel a different result. I.App.19. Putting aside
the fact that those decisions do not bind this Court, at least one applied
caselaw that Burlington Northern had abrogated. See Hudson v. Cheyney
Univ. of Pa., 2018 WL 6603870, at *7 (E.D. Pa. Dec. 14, 2018) (relying
on pre-Burlington Northern precedent holding that materially adverse
action must affect terms and conditions of employment). The rest involved
factually distinguishable conduct, and their cursory analyses lend little
credence to the district court’s reasoning. See Raffaele v. Potter,
2012 WL 33035, at *7-9 (E.D. Pa. Jan. 6, 2012) (supervisor’s
comment that employee “did not know who he was dealing with” neither qualified
as a threat nor could dissuade a reasonable worker from engaging in protected
activity); Nolan v. Swartz Campbell, LLC, 2008 WL 598291, at *5, *20
(W.D. Pa. Feb. 29, 2008) (employer’s
comment that “if he were [plaintiff], he would have quit” was not materially
adverse) (alteration in original); Pugni v. Reader’s Dig. Ass’n, Inc.,
2007 WL 1087183, at *23 (S.D.N.Y. Apr. 9, 2007) (employer’s
comment that plaintiff’s days were “numbered” was not materially adverse).
Moreover, other district court decisions
within this Circuit have reached the opposite conclusion, holding that unfulfilled
threats can constitute materially adverse actions. See, e.g., Davis
v. Se. Pa. Transp. Auth., 2016 WL 97922, at *15 (E.D. Pa. Jan. 8, 2016) (rejecting
employer’s argument that an “unfulfilled threat does not, as a matter of law,
constitute an adverse employment action” and holding that supervisor’s “alleged
threat that Plaintiff would be ‘bounced’ from the Unit if she did not ‘get
along’ with an employee against whom she had previously filed a complaint”
could dissuade reasonable worker from engaging in protected activity); Killen
v. Nw. Hum. Servs., Inc., 2007 WL 2684541, at *7 (E.D. Pa. Sept. 7, 2007) (“[T]he
threat of placement on administrative leave and the threat of a formal audit
could have dissuaded a reasonable employee from making a discrimination
claim.”).
Finally, the district court cited no
Third Circuit precedent for the specific proposition that unfulfilled threats
cannot be materially adverse. Nor could it have done so because this Court’s published
post-Burlington Northern decisions do not appear to squarely address
whether or when an unfulfilled threat, standing alone, may be materially
adverse for purposes of a retaliation claim. In at least two unpublished
decisions, this Court concluded that unfulfilled threats were not actionable as
retaliation. See Remp v. Alcon Lab’ys, Inc., 701 F. App’x 103, 108 (3d
Cir. 2017) (employer’s
“hollow threats” to discipline employee were not materially adverse); Clarkson
v. SEPTA, 700 F. App’x 111, 115 (3d Cir. 2017) (employer’s
“sporadic threats of termination” did not “rise to the level of a materially
adverse employment action”). But aside from lacking precedential value, neither
Remp nor Clarkson explained why an unfulfilled threat could not
dissuade a reasonable worker from making or supporting a claim of
discrimination. As explained above, there is ample reason to believe it could
under some circumstances.
For these reasons, the EEOC urges this
Court to make clear that an employer’s threats, even if unfulfilled, are
materially adverse for the purposes of a retaliation claim if they might
dissuade a reasonable worker from making or supporting a claim of
discrimination.
Under the proper standard—the Burlington
Northern standard—the analysis in this case is straightforward.
While discussing Russo’s EEOC charge,
Stryker warned that it was “not going to be very easy to get a job with [her]
name … making these kind of claims,” III.App.591 (525:12-22), and that “it was
going to be very bad for [Russo]” if her complaints became public, II.App.177
(¶ 24), suggesting that Russo might soon be out of a job and that BMT would not
support (or perhaps even undermine) her efforts to find new employment. These
warnings also came on the heels of Russo’s nearly month-long suspension, II.App.105
(¶ 34), giving her little reason to believe they were mere idle talk. Viewing
these facts in the light most favorable to Russo, a reasonable jury “could find
both that [Stryker] threatened [Russo] with the loss of h[er] job, and that
this threat would ‘dissuade[ ] a reasonable worker from making or
supporting a charge of discrimination.’” Rivera, 743 F.3d at 26 (quoting
Burlinton N., 548 U.S. at 68); see also Planadeball, 793 F.3d at
178 (threats of termination could dissuade reasonable worker from engaging in
protected activity); Monaghan, 955 F.3d at 863 (similar).
In short, under the correct standard, a
reasonable jury could find that the threats Russo faced were materially
adverse. Because BMT did not challenge Russo’s retaliatory threat claim on any
other grounds,
the district court’s grant of summary judgment on that claim should be reversed
and the case remanded for further appropriate proceedings.
Title VII makes it unlawful for an
employer “to discriminate against any individual with respect to [her]
compensation, terms, conditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national origin.” 42 U.S.C.
§ 2000e-2(a)(1). To establish a prima facie case of discrimination, a
plaintiff must prove: “(1) she belongs to a protected class, (2) she
was qualified for the position she occupied, and (3) she was subject to an
adverse employment action (4) under circumstances that give rise to an
inference of unlawful discrimination.” Hernandez v. Wal-Mart, 844 F.
App’x 598, 600 (3d Cir. 2021) (citing
In re Trib. Media Co., 902 F.3d 384, 402 (3d Cir. 2018)).
Here, Russo contends, among other things,
that BMT discriminated by placing her on paid administrative leave pending its
investigation of her alleged violations of the bank’s security protocols. The
district court held that Russo’s discrimination claim premised on that conduct
failed as a matter of law solely on the ground that a paid suspension is not an
adverse employment action. I.App.10-12.
The district court relied on this Court’s decision in Jones v. Southeastern
Pennsylvania Transportation Authority, 796 F.3d 323 (3d Cir. 2015),
which held that “[a] paid suspension pending an investigation of an employee’s
alleged wrongdoing does not fall under any of the forms of adverse action
mentioned by Title VII’s substantive provision.” Id. at 326.
For that reason, Jones concluded, “a suspension with pay, ‘without more,’
is not an adverse employment action” for purposes of a discrimination claim. Id. (citation omitted). Having determined that Russo’s paid suspension was not an
adverse action, the district court did not address whether race played any role
in BMT’s decision.
As published precedent, Jones is binding on this Court and thus, for now, would foreclose Russo’s discrimination
claim if it were premised solely on the fact of a paid suspension, “without more.”
Nonetheless, Jones was wrongly decided and contrary to Title VII’s
text. Under a straightforward reading of the relevant statutory language, a
paid suspension is—or should be—actionable as discrimination if it is based on
race.
Title VII prohibits discrimination
with respect to the “terms, conditions, or privileges of employment.” 42 U.S.C.
§ 2000e-2(a)(1). Congress did not define that phrase, and when terms go
“undefined in a statute,” courts give them their “ordinary meaning.” Taniguchi
v. Kan Pac. Saipan, Ltd., 566 U.S. 560, 566 (2012).
At a minimum, the Supreme Court has said, “[t]he phrase ‘terms, conditions, or
privileges of employment’ evinces a congressional intent ‘to strike at the
entire spectrum of disparate treatment … in employment,” Meritor Sav. Bank,
FSB v. Vinson, 477 U.S. 57, 64 (1986) (citation
omitted), and therefore “is not limited to ‘economic’ or ‘tangible’
discrimination,” and “it covers more than ‘terms’ and ‘conditions’ in the
narrow contractual sense,” Faragher v. City of Boca Raton, 524 U.S. 775,
786 (1998) (citations
and quotation marks omitted).
As the Solicitor General has recently
argued, “[p]lacing an employee on a paid suspension—removing him from the workplace
and prohibiting him from performing his regular work assignments—plainly
affects the employee’s ‘terms’ or ‘conditions’ of employment as those words are
ordinarily understood.” Br. for the United States as Amicus Curiae at 7, Davis
v. Legal Servs. Ala., Inc., No. 22-231 (U.S. May 18, 2023) (quoting 42 U.S.C.
§ 2000e-2(a)(1)). “[W]hether paid or unpaid, a work suspension upends the
most fundamental requirement of employment: that an employee report to the
workplace to complete job-related tasks.” Id. at 8. “The ‘when,’
‘where,’ and ‘what’ of a job—when the employee is required to work, at what
location, and the position he is assigned and tasks he is required to perform
with other employees—are all affected by a suspension and fall squarely within
the ‘terms’ and ‘conditions’ of employment.” Id.; see also Threat
v. City of Cleveland, 6 F.4th 672, 677 (6th Cir. 2021).
In reaching a contrary result, Jones reasoned that placing an employee on a paid suspension pending an investigation
of alleged misconduct does not “effect a ‘serious and tangible’ alteration of
the ‘terms, conditions, or privileges of employment,’ because ‘the terms and
conditions of employment ordinarily include the possibility that an employee
will be subject to an employer’s disciplinary policies in appropriate
circumstances.’” 796 F.3d at 326 (emphasis added) (citations omitted).
But that logic simply assumes that an
employer’s reasons for suspending an employee were legitimate and
non-discriminatory. The relevant question is whether an employer discriminates
with respect to the terms, conditions, or privileges of employment when it
places an employee on a paid suspension “because of [the employee’s] race.” 42
U.S.C. § 2000e-2(a)(1). “[T]he answer provided by the straightforward meaning
of the statute is an emphatic yes.” Chambers v. District of Columbia, 35
F.4th 870, 874 (D.C. Cir. 2022) (en banc) (addressing
race-based transfers); see also EEOC Compliance Manual § 15-VII(B)(7),
2006 WL 4673430 (2006) (“[R]ules and policies regarding discipline … must be
enforced in an evenhanded manner, without regard to race.”).
To be sure, this Court is not alone in holding
that a paid suspension is not an adverse employment action. As Jones
observed, “other courts of appeals have unanimously concluded that ‘placing an
employee on paid administrative leave where there is no presumption of
termination’ is not an adverse employment action under the substantive
provision of Title VII.” 796 F.3d at 326 (collecting cases); see also
Davis v. Legal Servs. Ala., Inc., 19 F.4th 1261, 1266 (11th Cir. 2021) (“No
Circuit has held that a simple paid suspension, in and of itself, constitutes
an adverse employment action.”), petition for cert. filed (U.S. Sept. 8,
2022) (No. 22-231).
But cracks are beginning to show in the
atextual foundations underpinning those decisions. See, e.g.,
Chambers, 35 F.4th at 874-75 (holding that discriminatory lateral job
transfers are actionable under Title VII without showing of “objectively
tangible harm” and overruling prior circuit precedent to the contrary); Threat,
6 F.4th at 677-80 (holding that discriminatory shift changes are actionable
under Title VII, even when unaccompanied by a reduction in pay or
benefits). Indeed, earlier this year, the Supreme Court asked for the
government’s views on whether to grant certiorari in a case presenting
precisely the same question at issue here: whether placing an employee on a
paid suspension because of their race is actionable as discrimination under
Title VII. See Davis v. Legal Servs. Ala., Inc., 143 S. Ct.
560 (2023) (mem.); Pet. for a Writ of Cert. at 7-20, Davis v. Legal Servs.
Ala., Inc., No. 22-231, 2022 WL 4236675 (U.S. Sept. 8, 2022).
In response, the Solicitor General has encouraged the Supreme Court to grant certiorari
on that question and, as noted above, taken the position that Title VII’s
anti-discrimination protections reach paid suspensions. Supra at 25-26.
Accordingly, the EEOC invites this Court to
revisit Jones at the appropriate time, and to make clear that a paid
suspension is actionable as discrimination if it is based on race. If this
Court were to hold that a paid suspension can be actionable as discrimination,
the remaining inquiry here would be whether race motivated BMT’s decision to place
Russo on paid administrative leave. The EEOC takes no position on the ultimate
resolution of that question.
For the foregoing reasons, the district
court’s grant of summary judgment on Russo’s retaliatory threat claim should be
reversed, and the case remanded for further appropriate proceedings.
Respectfully submitted,
GWENDOLYN YOUNG REAMS
Acting General Counsel
JENNIFER S. GOLDSTEIN
Associate General Counsel
DARA S. SMITH
Assistant General Counsel
/s/ Steven Winkelman
STEVEN WINKELMAN
Attorney
Equal Employment
Opportunity
Commission
Office of General Counsel
131 M St. N.E., 5th Floor
Washington, D.C. 20507
(202) 921-2564
steven.winkelman@eeoc.gov
May 19, 2023
Pursuant to 3d Cir. L.A.R. 28.3(d) &
46.1(e), I certify that, as an attorney representing an agency of the United
States, I am not required to be admitted to the bar of this Court. See
3d Cir. L.A.R. 28.3, comm. cmt. I also certify that all other attorneys whose
names appear on this brief likewise represent an agency of the United States
and are also not required to be admitted to the bar of this Court. See id.
This brief complies with the type-volume
limitation of Fed. R. App. P. 29(a)(5) and 32(a)(7)(B) because it contains 5,613
words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(f)
and 3d Cir. L.A.R. 29.1(b).
This brief complies with the typeface
requirements of Fed. R. App. P. 32(a)(5) and the type-style requirements of
Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally
spaced typeface using Microsoft Word in Century 14 point.
Pursuant to 3d Cir. L.A.R. 31.1(c), I
certify that the text of the electronically filed version of this brief is
identical to the text of the hard copies of the brief that will be filed with
the Court. I further certify pursuant to 3d Cir. L.A.R. 31.1(c) that, prior to
electronic filing with this Court, I performed a virus check on the electronic
version of this brief using Microsoft Windows Defender, and that no virus was
detected.
/s/
Steven Winkelman
STEVEN
WINKELMAN
Attorney
May 19, 2023
I certify that on May 19, 2023, I
electronically filed the foregoing brief in PDF format with the Clerk of Court
via the appellate CM/ECF system. I certify that all counsel of record are
registered CM/ECF users, and service will be accomplished via the appellate
CM/ECF system.
/s/
Steven Winkelman
STEVEN
WINKELMAN
Attorney
May 19, 2023
