STATEMENT PURSUANT TO FED. R. APP. P. 35(b)(1) 1

I. The majority’s overly narrow reading of the term “oppose” in § 2000e-3(a) conflicts with the Supreme Court’s decision in Crawford. 6

II. The panel’s holding that a request for a religious accommodation is protected by Title VII yet cannot support a retaliation claim is inconsistent with law of the Supreme Court, this Court, and other courts of appeal, and contravenes Title VII’s broader purpose. 13

CONCLUSION.. 21

CERTIFICATE OF COMPLIANCE. 23

CERTIFICATE OF SERVICE

Table of Authorities

Cases

Brown v. City of Tucson, 336 F.3d 1181 (9th Cir. 2003).... 20

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006).............................................................................. 12

Coons v. Sec’y, U.S. Dep’t of Treasury, 383 F.3d 879 (9th Cir. 2004).......................................................................... 2

Cossette v. Minn. Power & Light, 188 F.3d 964 (8th Cir. 1999)........................................................................... 2, 18

Crawford v. Metro. Gov’t of Nashville & Davidson Cty.,
555 U.S. 271 (2009)......................................... 1, 6, 7, 8, 12

EEOC v. Abercrombie & Fitch Stores, 135 S. Ct. 2028 (2015)........................................................................................ 10

EEOC v. Prod. Fabricators, Inc., 763 F.3d 963 (8th Cir. 2014)............................................................................... 19

EEOC v. Waffle House, 534 U.S. 279 (2002)....................... 12

Frazier-White v. Gee, 818 F.3d 1249 (11th Cir. 2016).... 3, 19

Freeman v. Quicken Loans, 566 U.S. 624 (2012)................. 17

Griffin v. Oceanic Contractors, 458 U.S. 564 (1982)........... 16

Haulbrook v. Michelin N. Am., 252 F.3d 696 (4th Cir. 2001).......................................................................................... 2

Heisler v. Metro. Council, 339 F.3d 622 (8th Cir. 2003) 2, 17, 18, 19

Hill v. Walker, 737 F.3d 1209 (8th Cir. 2013)........... 2, 18, 19

A.C. ex rel. J.C. v. Shelby Cty. Bd. of Educ., 711 F.3d 687
(6th Cir. 2013).................................................................. 2

Kelley v. Corr. Med. Servs., 707 F.3d 108 (1st Cir. 2013)... 21

King v. Burwell, 135 S. Ct. 2480 (2015).............................. 16

Kirkeberg v. Canadian Pac. Ry., 619 F.3d 898 (8th Cir. 2010)................................................................................... 2, 18, 19

Lincoln v. BNSF Ry. Co., 900 F.3d 1166 (10th Cir. 2018)... 3, 19

Lovejoy-Wilson v. NOCO Motor Fuel, 263 F.3d 208 (2d Cir. 2001)............................................................................... 20

Ollis v. HearthStone Homes, 495 F.3d 570 (8th Cir. 2007).. 8, 9

Robinson v. Shell Oil Co., 519 U.S. 337 (1997).......... 1, 13, 14

Rowlands v. United Parcel Serv.-Fort Wayne, 901 F.3d 792
(7th Cir. 2018).................................................................. 2

Seaworth v. Pearson, 203 F.3d 1056 (8th Cir. 2000)........... 10

Shellenberger v. Summit Bancorp, 318 F.3d 183 (3d Cir. 2010)......................................................................... 15, 21

Soileau v. Guilford of Me., 105 F.3d 12 (1st Cir. 1997)....... 16

Solomon v. Vilsack, 763 F.3d 1 (D.C. Cir. 2014)................... 3

Sulima v. Tobyhanna Army Depot, 602 F.3d 177 (3d Cir. 2010)................................................................................. 2

Tabatchnik v. Cont’l Airlines, 262 F. App’x 674 (5th Cir. 2008)................................................................................. 2

Weixel v. Bd. of Educ. of N.Y., 287 F.3d 138 (2d Cir. 2002). 2

Williams v. Employers Mut. Cas. Co., 845 F.3d 891 (8th Cir. 2017)............................................................................... 16

Wright v. CompUSA, 352 F.3d 472 (1st Cir. 2003)........ 2, 19

Statutes

42 U.S.C. § 2000e-2(a).......................................................... 4

42 U.S.C. § 2000e-2(a)(1).................................................... 12

42 U.S.C. § 2000e-3(a)....................................... 3, 5, 6, 15, 18

42 U.S.C. § 2000e(j)................................................... 1, 14, 15

42 U.S.C. § 12203(a)............................................ 2, 15, 18, 19

42 U.S.C. § 12203(b)............................................ 5, 18, 19, 20

42 U.S.C. § 12203(c)............................................................ 19

Other Authorities

118 Cong. Rec. 705 (1972) (statement of Sen. Randolph)........................................................................................ 14

EEOC Enforcement Guidance on Retaliation and Related Issues § III, ADA Interference Provision, at https://www.eeoc.gov/laws/guidance/retaliation-guidance.cfm................................................................. 20

Fed. R. App. P. 35(b)(1)....................................................... 1

STATEMENT PURSUANT TO F ED. R. APP. P. 35(b)(1)

The EEOC petitions for rehearing en banc because the panel majority’s decision in this case conflicts with opinions of the Supreme Court and of this Court. The majority’s ruling that opposing an unlawful employment action under Title VII’s antiretaliation provision requires overt “resistance” to unlawful conduct conflicts with the holding in Crawford v. Metropolitan Government of Nashville & Davidson County, 555 U.S. 271, 277 (2009). Moreover, the majority’s ruling that an applicant’s request for a religious accommodation cannot support a Title VII retaliation claim contravenes the Supreme Court’s mandate in Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997), that courts must interpret the language of a provision consistently with the larger statutory context. It would also lead to the absurd result that an employer could freely circumvent a right conferred by Congress, see 42 U.S.C. § 2000e(j), by immediately refusing to employ any worker who dares assert it.

Finally, the majority’s failure to interpret Title VII’s antiretaliation provision in pari materia with the Americans with Disabilities Act’s virtually identical provision, 42 U.S.C. § 12203(a), contravenes this Court’s holdings in Cossette v. Minnesota Power & Light, 188 F.3d 964, 972 (8th Cir. 1999), and Hill v. Walker, 737 F.3d 1209, 1218 (8th Cir. 2013), that the two provisions are to be analyzed in tandem. It also conflicts with several published decisions of this Court, including Heisler v. Metropolitan Council, 339 F.3d 622, 632 (8th Cir. 2003), and Kirkeberg v. Canadian Pacific Railway, 619 F.3d 898, 907-08 (8th Cir. 2010), among others, recognizing requests for accommodation as protected activity under the ADA. The majority opinion also conflicts with authoritative decisions of virtually every other United States Court of Appeal, all of which have either held or recognized that such requests are protected activity for purposes of an ADA retaliation action.[1] Consideration by the full Court is thus necessary to secure uniformity of its decisions.

FACTUAL STATEMENT

This appeal arose out of an EEOC enforcement action brought under Title VII’s antiretaliation provision, 42 U.S.C. § 2000e-3(a), which makes it unlawful for an employer to “discriminate against any of his employees or applicants for employment … because he has opposed any practice made an unlawful employment practice by this subchapter.” Joint Appendix (JA)-5. The EEOC alleged that North Memorial Hospital violated this provision when it rescinded an employment offer from Seventh-day Adventist nurse Emily Sure-Ondara after she asked for, then withdrew, a request to be exempt from her assigned Friday night shift because it conflicted with her Sabbath. Id. Sure-Ondara told the hospital repeatedly she would accept the job with or without accommodation. JA-249, 253, 146.

The district court granted summary judgment for the hospital, holding the Commission could not establish a prima facie case of retaliation because requesting an accommodation is not protected activity under the plain language of the statute. Order at 8-9. The Commission argued on appeal that Sure-Ondara engaged in protected opposition to North Memorial’s requirement that she work on her Sabbath when she requested an exemption from working the Friday night shift because of her religious beliefs. Id.

PANEL OPINION

A divided panel of this Court affirmed. The majority held that Sure-Ondara’s request for exemption from the assigned Friday night shift “did not reflect, much less communicate, opposition to or resistance to any North Memorial employment practice.” Slip op. 9. In the majority’s view, a request for religious accommodation “stretches the word ‘oppose’ well beyond its plain or ordinary meaning.” Id. at 6 n.2; see also id. at 8 (“[T]he initial request for a religious accommodation simply does not ‘implicitly’ constitute opposition to the ultimate denial of the requested accommodation.”).

According to the majority, “Sure-Ondara’s Title VII remedy as an unsuccessful job applicant was a disparate treatment claim under § 2000e-2(a) for failure to reasonably accommodate,” not a retaliation claim. Id. at 7. Moreover, North Memorial’s rescission of Sure-Ondara’s job offer “is not an adverse employment action” because “as a job applicant with no prior employment relationship with North Memorial, her failure to obtain the position she sought did not give rise to a claim of unlawful retaliation under § 2000e-3(a).” Id. at 9-10.

The majority rejected the Commission’s argument that this Court should follow the case law holding that accommodation requests are protected activity under the ADA’s virtually identical antiretaliation provision. Rather, an ADA retaliation claim for requesting a disability-related accommodation would arise “under 42 U.S.C. § 12203(b) for interfering with the exercise of the employee’s ADA rights.” Id. at 8.

Judge Grasz dissented. Noting that the Supreme Court adopted an expansive view of the opposition clause, he reasoned, “[c]ommon sense dictates that requesting a religious accommodation in most circumstances communicates support for the grant of the request and opposition to its denial.” Id. at 12. He pointed out that “under the nearly-identical text of the opposition clause of the anti-retaliation provision of the ADA, a request for an accommodation constitutes protected activity,” and “statutes in pari materia are to be interpreted consistently … unless context dictates otherwise.” Id. at 13. Judge Grasz “would follow the Supreme Court’s reading of Title VII’s opposition clause in Crawford, as well as this Court’s precedent in the parallel ADA context, and conclude that requesting a religious accommodation can constitute protected activity.” Id. at 16.

ARGUMENT

I. The majority’s overly narrow reading of the term “oppose” in § 2000e-3(a) conflicts with the Supreme Court’s decision in Crawford.

In Crawford, the Supreme Court held that the plaintiff’s answer to questions about a supervisor’s inappropriate behavior during an internal sexual harassment investigation was protected opposition that could support her retaliation claim. [2] The Court explained that, while Title VII does not define “oppose,” the ordinary definition includes “to contend against; to confront; resist; withstand,” as well as “to be hostile or adverse to, as in opinion.” Id. at 276. It acknowledged that these definitions “entail varying expenditures of energy,” but did not articulate a minimum threshold for what qualifies as “opposition.” Id.

The Crawford Court accordingly ruled that “‘[o]ppose’ goes beyond ‘active, consistent’ behavior in ordinary discourse, where we would naturally use the word to speak of someone who has taken no action at all to advance a position beyond disclosing it.” Id. at 277 (internal citation omitted). Thus, the Court held, because Crawford’s response implicitly showed disapproval of her supervisor’s harassment, it constituted protected “opposition” under Title VII. Id. at 276.

In accordance with Crawford, Sure-Ondara’s identification of a conflict between her religious beliefs and North Memorial’s requirement that she work during her Sabbath when she requested an accommodation constitutes protected opposition within the meaning of Title VII’s antiretaliation provision. As the dissent emphasized, the reading of “oppose” most consistent with Crawford would “encompass a broad definition that would include actions or statements that only indirectly or implicitly convey opposition.” Slip op. 11; see also Ollis v. HearthStone Homes, 495 F.3d 570, 576 (8th Cir. 2007) (affirming jury verdict in favor of plaintiff’s retaliation claim based on evidence he opposed an act of discrimination by requesting to be excused from a work requirement that conflicted with his religious beliefs).

The majority’s conclusion that Sure-Ondara’s request for accommodation “did not reflect, much less communicate, opposition or resistance to any North Memorial employment practice” (slip op. 9) depends on a misreading of Crawford and wrongly conflates accommodation-based disparate treatment with retaliation. The three hypotheticals the majority uses to illustrate its point (id.) reveal its confusion. In all three, the employee actually requires an accommodation—as the majority terms it, she has a “disparate treatment” claim, and may or may not have a retaliation claim. But retaliation claims and accommodation-based disparate treatment claims are entirely independent of one another: they have separate elements of proof, and the viability of one does not depend on the other. As the dissent correctly observed, “[i]f the request is opposition in the one context, it cannot transform into something other than opposition simply because the legal justification for denying the request changes.” Slip op. 14 n.7.

For purposes of a retaliation claim, this Court has held, a plaintiff must first adduce evidence of a prima facie case—i.e., that (1) he engaged in statutorily protected activity, (2) the employer took an adverse action against him, and (3) there was a causal connection between the two. E.g., Ollis, 495 F.3d at 576. If the plaintiff succeeds, the burden shifts to the employer to offer a legitimate, nondiscriminatory reason for the adverse action. Id. The burden then shifts back to the plaintiff to show the employer’s proffered reason is pretextual—i.e., that retaliation was the but-for cause of the adverse action. Id.

On the other hand, to establish a prima facie case of religious discrimination based on an employer’s failure to provide reasonable accommodation, a plaintiff must show (1) she has a bona fide religious belief or practice that conflicts with an employment requirement, (2) she informed the employer of the conflict, and (3) she was not hired or was discharged because she failed to comply with the requirement. Seaworth v. Pearson, 203 F.3d 1056, 1057 (8th Cir. 2000). See also EEOC v. Abercrombie & Fitch Stores, 135 S. Ct. 2028, 2033 (2015) (“If the applicant actually requires an accommodation of [her] religious practice, and the employer’s desire to avoid the prospective accommodation is a motivating factor in his decision, the employer violates Title VII.”) (emphasis added). The burden then shifts to the employer to show it could not reasonably accommodate her without undue hardship. Seaworth, 203 F.3d at 1057.

According to the majority, if an employer has a blatantly illegal policy of not providing religious accommodations at all (hypothetical 1) or if it denies a good-faith request for religious accommodation and takes an adverse action (hypothetical 2), the employee may have a viable retaliation claim. Slip op. 9. Yet, in hypothetical 3, because the employee/applicant’s accommodation request is denied on the basis of “undue hardship,” “there is no basis for an opposition-clause retaliation claim.” Id. There are two fundamental problems with the majority’s reasoning. First, “undue hardship” has no bearing on the analysis of retaliation claims, which turn on the causal relationship between the initial request—not the ultimate feasibility of accommodation—and any adverse action that was taken.

Second, this is not, and has never been, a disparate treatment action. As explained previously, Sure-Ondara withdrew her request for accommodation, and North Memorial had no occasion to raise an undue hardship defense. EEOC’s theory of the case was that North Memorial rescinded Sure-Ondara’s job offer in retaliation for her requesting the accommodation, not because she actually required one. This is why the EEOC did not bring this case as a disparate treatment claim, notwithstanding the majority’s apparent preference for this approach.[3] Slip op. 7, 9; cf. EEOC v. Waffle House, 534 U.S. 279, 291 (2002) (“The statute clearly makes the EEOC the master of its own case and confers on the agency the authority to evaluate the strength of the public interest at stake.”).

Accordingly, the majority’s conclusion that an employee’s request for religious accommodation cannot constitute protected opposition under Title VII does not withstand scrutiny under Crawford or under this Court’s case law differentiating retaliation claims from disparate treatment claims alleging failure to accommodate. Its concern that protecting such requests could result in non-meritorious disparate treatment cases being “repackaged” as successful retaliation claims (Slip op. 7-8) is no more meritorious. As the dissent correctly notes, Title VII’s requirement that the materially adverse action be caused by the protected activity “properly does the work of weeding out such claims, not the opposition requirement.” Slip op. 15.

In this case, Sure-Ondara told North Memorial repeatedly she would do the job without accommodation. As the dissent correctly observed, “[d]espite her willingness to work without accommodation, North Memorial withdrew its job offer, making it reasonable for a fact-finder to infer that it did so because she had requested an accommodation.” Id. at 16.

II. The panel’s holding that a request for a religious accommodation is protected by T itle VII yet cannot support a retaliation claim is inconsistent with law of the Supreme Court, this Court, and other courts of appeal, and contravenes Title VII’s broader purpose.

The Supreme Court in Robinson v. Shell Oil emphasized that statutory meaning is to be determined by “reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” 519 U.S. 337, 341 (1997); see also id at 340 (“[T]he statutory scheme [must be] coherent and consistent.”). Accordingly, the Robinson Court held, excluding former employees from protection against retaliation under Title VII “would undermine the [statute’s] effectiveness by allowing the threat of postemployment retaliation to deter victims of discrimination from complaining to the EEOC, and would provide a perverse incentive for employers to fire employees who might bring Title VII claims.” Id. at 346. “[I]t would be destructive of [maintaining unfettered access to statutory remedial mechanisms] … for an employer to be able to retaliate with impunity against an entire class of acts under Title VII—for example, complaints regarding discriminatory termination.” Id.

The majority’s narrow reading of the opposition clause here is just as inconsistent with and antithetical to Title VII as the exclusion of former employees was recognized to be in Robinson. Indeed, the majority admitted as much when it “construe[d] the express references to religious accommodation in § 2000e(j) as evidencing Congress’ intent to protect requests for religious accommodation.” Slip op. 5, 8 (emphasis added). In this respect, at least, the majority was correct. See, e.g., 118 Cong. Rec. 705 (1972) (statement of Sen. Randolph) (describing amendment offered in response to courts repeatedly failing to recognize Title VII’s required accommodation of employee Sabbaths, to “assure that freedom from religious discrimination in the employment of workers is for all time guaranteed by law”; amendment unanimously approved as § 2000e(j)); Shellenberger v. Summit Bancorp, 318 F.3d 183, 191 (3d Cir. 2010) (“The right to request an accommodation in good faith is no less a guarantee under the ADA than the right to file a complaint with the EEOC.”).

The majority’s purported distinction between “protected” activity and “oppositional” activity in this context, slip op. 8-9, is both puzzling and fundamentally inconsistent with Title VII.[4] In the vast majority of cases, the primary way for an employee or applicant to obtain an accommodation of her religious needs—a right expressly conferred and “protected” by Title VII—is to ask for one. If Congress intended to protect requests for religious accommodation, construing the statute to allow an employer to rescind a job offer because of a withdrawn accommodation request would render that protection largely meaningless. It leaves employees and applicants with a right to request accommodation but no remedy when their employer punishes them for exercising that right. Cf. Soileau v. Guilford of Maine, 105 F.3d 12, 16 (1st Cir. 1997) (in ADA retaliation case, observing that such reasoning “would leave employees unprotected if an employer granted the accommodation and shortly thereafter terminated the employee in retaliation”).

This interpretation of Title VII is at odds with the Supreme Court’s, and this Court’s, instructions for interpreting statutory text. Courts “cannot interpret federal statutes to negate their own stated purposes.” King v. Burwell, 135 S. Ct. 2480, 2493 (2015) (citation and quotation marks omitted). “‘[I]nterpretations of a statute which would produce absurd results are to be avoided if alternative interpretations consistent with the legislative purpose are available.’” Williams v. Employers Mut. Cas. Co., 845 F.3d 891, 901 (8th Cir. 2017) (quoting Griffin v. Oceanic Contractors, 458 U.S. 564, 575 (1982)).

This is why, as the Supreme Court explained in King, questions of statutory interpretation properly turn not on the meaning of words or phrases in isolation but on their meaning in light of the broader context and purpose of the statute. 135 S. Ct. at 2495 (“[W]hile the meaning of the phrase ‘an Exchange established by the State’ … may seem plain when viewed in isolation, such a reading turns out to be untenable in light of [the statute] as a whole.”) (internal quotations and citations omitted); see also Freeman v. Quicken Loans, 566 U.S. 624, 632 (2012) (noting that a potential interpretation would undermine the statutory purpose by imposing liability on “the very class for whose benefit [a particular statute] was enacted,” “provid[ing] strong indication that something in [that] interpretation is amiss”).

It is perhaps for all these reasons that, as the dissent notes, this Court and the other courts of appeal have construed the virtually identical text of the ADA’s antiretaliation provision to cover accommodation requests as protected activity. Slip op. 12-13 (citing Heisler, 339 F.3d at 632); see also id. at 13 n.5 (listing cases). “Under general principles of statutory interpretation, statutes in pari materia are to be interpreted consistently and identical statutory language in related statutes is to be given the same meaning unless context dictates otherwise.” Id.at 13; see also id. n.6 (“The ADA’s enforcement mechanisms were patterned after the earlier-enacted Title VII.”). This Court has stated repeatedly that “[r]etaliation claims under the ADA are analyzed identically to those brought under Title VII.” Cossette, 188 F.3d at 972; Hill, 737 F.3d at 1218 (“[W]e treat retaliation claims under the two statutes interchangeably.”).

The majority, however, interprets these near-identical statutory provisions in diametrically opposite terms. It reasons that ADA retaliation cases based on requests for accommodation should be analyzed differently because the ADA’s prohibition on retaliation contains a separate interference provision, 42 U.S.C. § 12203(b), that does not appear in Title VII. Slip op. 8. According to the majority, the interference theory in § 12203(b) “was the factual basis for the retaliation claims in Kirkeberg and Heisler.” Id.

The majority is correct only that there is no direct analogue to § 12203(b) in Title VII. Section 12203 of the ADA is titled “Prohibition Against Retaliation and Coercion.” It has three subsections: § 12203(a), which is virtually identical to § 2000e-3(a) of Title VII; § 12203(b), which begins, “It shall be unlawful to coerce, intimidate, threaten, or interfere with any individual …”; and § 12203(c), which addresses remedies and procedures. By its plain language, § 12203(a) is the ADA’s antiretaliation provision, not § 12203(b)—and this is exactly how courts have understood it. See, e.g., Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1209 (10th Cir. 2018); Frazier-White v. Gee, 818 F.3d 1249, 1258 (11th Cir. 2016); Wright v. CompUSA, 352 F.3d 472, 477-78 (1st Cir. 2003) (all citing § 12203(a) in cases where a request for accommodation was the protected activity).

This Court has never (until now) relied on the ADA’s interference provision in recognizing that a request for accommodation is protected activity. See Heisler, 339 F.3d at 632; Kirkeberg, 619 F.3d at 908; Hill, 737 F.3d at 1218; EEOC v. Prod. Fabricators, Inc., 763 F.3d 963, 972 (8th Cir. 2014) (all citing 42 U.S.C. § 12203(a), not (b)). Nor was the employer’s interference with the plaintiff’s ADA rights “the factual basis for the retaliation claims” in Kirkeberg and Heisler, as the majority asserts. Both Kirkeberg and Heisler argued they were retaliated against for requesting what they believed were reasonable accommodations. See Heisler, 339 F.3d at 632; Kirkeberg, 619 F.3d at 907.

Interference claims under § 12203(b), on the other hand, typically involve preemptive behavior, such as attempts to prevent an employee from exercising her ADA rights in the future. See, e.g., Brown v. City of Tucson, 336 F.3d 1181, 1193 (9th Cir. 2003) (“[T]he plain language of § 503(b) clearly prohibits a supervisor from threatening an individual with transfer, demotion, or forced retirement unless the individual foregoes a statutorily protected accommodation.”); Lovejoy-Wilson v. NOCO Motor Fuel, 263 F.3d 208, 223 (2d Cir. 2001) (jury could reasonably find that employer’s threatening the plaintiff with legal action when she suggested several possible accommodations “served to ‘intimidate’ or ‘threaten’ her in the assertion of her right to make complaints or file charges under the ADA”); see generally EEOC Enforcement Guidance on Retaliation and Related Issues § III, ADA Interference Provision (examples of interference include coercing an individual to relinquish or forego an accommodation to which he or she is otherwise entitled).[5] While there may be some conduct that is actionable under either provision, an individual punished with the loss of her job for requesting accommodation, whether under the ADA or Title VII, has suffered retaliation. Cf. Kelley v. Corr. Med. Servs., 707 F.3d 108, 118 (1st Cir. 2013) (reasonable factfinder could find the supervisor’s firing of plaintiff was a disingenuous overreaction to justify dismissal of an annoying employee who asserted her rights under the ADA); Shellenberger, 318 F.3d at 190 (employee alleging retaliation under the ADA offered sufficient evidence the employer “tired of [plaintiff]’s persistent requests for an accommodation” and therefore “fired [her] in retaliation for her protected activity”). The majority was wrong in holding otherwise.

CONCLUSION

The Commission respectfully requests rehearing en banc.

Respectfully submitted,

JAMES L. LEE

Deputy General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

ELIZABETH E. THERAN

Assistant General Counsel

s/Julie L. Gantz

JULIE L. GANTZ

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4718

julie.gantz@eeoc.gov

CERTIFICATE OF COMPLIANCE

This petition for rehearing en banc complies with the type-volume limitation of Fed. R. App. P. 35(b)(2)(a) because it contains 3,846 words.

This petition for rehearing en banc 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 2016 in Palatino Linotype 14 point.

s/Julie L. Gantz

JULIE L. GANTZ

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4718

julie.gantz@eeoc.gov

Dated: December 26, 2018

[1] See Wright v. CompUSA, 352 F.3d 472, 477-78 (1st Cir. 2003); Weixel v. Bd. of Educ. of City of N.Y., 287 F.3d 138, 149 (2d Cir. 2002); Sulima v. Tobyhanna Army Depot, 602 F.3d 177, 188 (3d Cir. 2010); Haulbrook v. Michelin N. Am., 252 F.3d 696, 706 (4th Cir. 2001); Tabatchnik v. Cont’l Airlines, 262 F. App’x 674, 676 (5th Cir. 2008); A.C. ex rel. J.C. v. Shelby Cty. Bd. of Educ., 711 F.3d 687, 697 (6th Cir. 2013); Rowlands v. United Parcel Serv.-Fort Wayne, 901 F.3d 792, 798 (7th Cir. 2018); Coons v. Sec’y, U.S. Dep’t of Treasury, 383 F.3d 879, 887 (9th Cir. 2004); Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1209 (10th Cir. 2018); Frazier-White v. Gee, 818 F.3d 1249, 1258 (11th Cir. 2016); Solomon v. Vilsack, 763 F.3d 1, 16 (D.C. Cir. 2014).

[2] The majority mischaracterized Crawford when it defined the issue as “whether an employee’s report of sexually harassing behavior to a human resources officer could support a claim under the opposition clause.” Slip op. 6 n.2. As the dissent recognized, “the plaintiff in Crawford did not initiate the report, but only answered questions when approached by a human resources employee. The absence of active opposition … was a primary reason the lower court in Crawford ruled against the plaintiff.” Id. at 12 n.3.

[3] The majority’s perception that this action is more appropriately an accommodation-based disparate treatment case also apparently led it to conclude, based on the wrong legal standard, that there was no “adverse action.” Slip op. 10. The governing “adverse action” standard for a retaliation claim asks whether it would have dissuaded a reasonable worker from engaging in protected activity. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). Under Burlington Northern, as the dissent notes, North Memorial’s withdrawal of its conditional job offer and refusal to employ Sure-Ondara manifestly qualifies as materially adverse. Slip op. 14-15; see also 42 U.S.C. § 2000e-2(a)(1).

[4] Activity may also be protected under Title VII (and the ADA) if it falls under the “participation clause” of either statute’s antiretaliation provision, not at issue here. 42 U.S.C. §§ 2000e-3(a), 12203(a).