STATEMENT OF JURISDICTION

This action was authorized and initiated pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-5. The district court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1345. The district court entered judgment on March 31, 2015. ROA.1807.[1] On May 28, 2015, the Commission filed a timely notice of appeal. ROA.1852. This Court has jurisdiction under 28 U.S.C. § 1291.

STATEMENT OF THE ISSUES

I. Whether Mekeva Tennort’s report to Rite Way of a supervisor’s sexually harassing behavior, made in response to Rite Way’s inquiries about the alleged harassment, constitutes protected opposition under Title VII’s antiretaliation provision.

II. Whether an employee who corroborates allegations of harassment in her employer’s investigation must also separately show that she had an objectively reasonable basis to believe the harassment was unlawful for that report to constitute protected opposition.

III. Given the sudden emergence of purported performance problems related to Tennort after her report of harassment, and factual disputes regarding the basis for that written discipline, whether the record evidence would allow a reasonable jury to conclude that Rite Way’s stated reason for firing Tennort was pretext for unlawful retaliation.

STATEMENT OF THE CASE

I. Nature of the Case and Course of Proceedings

On June 27, 2013, the Equal Employment Opportunity Commission

(“EEOC” or “Commission”) filed this Title VII action in district court alleging that Rite Way Service, Inc. (“Rite Way”) discriminated against charging party Mekeva Tennort when it fired her in retaliation for reporting sexually harassing conduct by a Rite Way supervisor. ROA.27.

On August 29, 2014, Rite Way filed a motion for summary judgment on the Commission’s retaliation claim, arguing, inter alia, that Tennort did not engage in conduct protected under Title VII’s antiretaliation provision. ROA.633-34. The Commission filed a response in opposition to Rite Way’s motion on September 26, 2014, asserting, inter alia, that Tennort’s report of sexually harassing conduct to Rite Way constituted protected activity under the statute. See ROA.992-95; 1486-1525. On March 31, 2015, the district court granted summary judgment to Rite Way on the Commission’s retaliation claim and entered final judgment in the case. ROA.1783-1807. On May 28, 2015, the Commission timely filed this appeal challenging the district court’s final judgment. ROA.1852.

II. Statement of Facts

Mekeva Tennort was a general cleaner for Rite Way and worked at Biloxi Junior High School. ROA.996. As a general cleaner, Tennort cleaned and maintained the school restrooms, hallways, windows, and cafeteria while the students were in school. ROA.1347. Linda Quarles was also a general cleaner for Rite Way at the same location. ROA.1098.

On or about August 5, 2011, Willie Harris became Rite Way’s interim hourly supervisor at Biloxi Junior High School. ROA.813. Hourly supervisors directly supervised general cleaners at the schools. Id.

In early August 2011, Tennort saw Harris pretend like he was slapping Quarles’ behind as she walked by, and heard him say “ooh wee.” ROA.1363. Then, on August 11, 2011, Tennort witnessed another exchange between Harris and Quarles. ROA. 1362-63; 1434. Harris told Quarles “that she shouldn’t have her phone on her” and then told Tennort to tell Quarles to remove her cell phone from her back pocket. ROA.1362. Tennort, in response, told Harris “Somebody must be looking hard because how do you know what’s in your back pocket?” Id. Harris responded, “I’m a man. I’m going to look. They tight, her pants are tight.” ROA.1363. Tennort testified, “that’s when Ms. Quarles got upset.” Id. Tennort saw Quarles “pull[] her slack in her pants and hit[] the leg of her pants and sa[y], ‘If anyone else is asking about how tight my jeans are, there is going to be some trouble.’” Id. Quarles was “real upset. She started shaking her head.” Id. As Tennort saw Quarles walk off, Quarles told her “she was going to do something about it,” which Tennort understood as referring to reporting what had just happened. ROA.1363-64.

Later that day, Quarles approached Tennort and told her that Officer Cannette wanted to speak with her “about the incident that just happened.” ROA.1364. Paul Cannette is the Chief of Police for the Biloxi school system, and his office is located in Biloxi Junior High School. ROA.848. That is how Tennort came to learn that Quarles had complained about Harris’ conduct. ROA.1364. Tennort went to his office, and Cannette asked her what had just happened between Harris and Quarles. Id. Tennort told him that Harris “was making gestures to her behind, and how he was a man, he’s going to look, and how upset she got.” Id. Tennort saw Cannette “writing it down on his tablet, and he told me if I had any more problems to come back and see him.” Id.

Alexander McCullom is Rite Way’s project manager for the Biloxi school system, and supervised all Rite Way employees assigned to work in the Biloxi city schools, including Biloxi Junior High School. ROA.813. McCullom, in turn, reported to Rite Way division manager Brad Marston. ROA.1133-34.

McCullom learned that Quarles made a complaint about Harris. ROA.813. McCullom spoke to Cannette, who identified Tennort as someone who had spoken with him about Harris. Id. McCullom then went to the school to “obtain statements from Harris, Tennort and Jeffrey Sims who were possible witnesses.” ROA.814. On August 18, 2011, McCullom approached Tennort while she was working at her post, saying, “Come on. You know what this is about.” ROA.1358. She understood that to mean the “sexual harassment case.” Id. They went to the school cafeteria, and Rite Way employee Jeffrey Sims was present as well. Id. They sat down at a table, and McCullom said “this is about that Linda girl.” ROA.1359.

McCullom asked Sims, “Sims, what do you know about this?” Id. Sims and Tennort both relayed what they had seen. Id. Sims said he did not know anything. Id. McCullom asked Tennort to write down a statement for Sims reflecting this, which Sims then signed. Id.; ROA.823. Sims left the meeting. ROA.1359. Tennort had a piece of paper in front of her on which to write her own statement. ROA.1360. McCullom told Tennort to stay away from Quarles “because she’s nothing but mess and trouble and he did his background on her.” ROA.1359.

Before Tennort wrote down her statement, McCullom told her “You know what they do to people who do stuff like this.” ROA.1360. Tennort asked him what he meant. Id. McCullom then recounted an occasion when there were “some boys messing with him and he ran home and got something and came back, and he said, ‘Guess what? To this day they still don’t – don’t nobody mess with me.” Id. When Tennort responded that she “had family here,” McCullom said “‘Oh, no, no, you’re going to be okay, you’re going to be okay,’” and “tried to laugh it off.” Id. At that point, Tennort “still had a blank piece of paper in front of me.” Id. He then got up and said “Well, I see you’re still going to do it, so I’m going to let you be for a few minutes.” Id. He walked out but “kept on looking in the cafeteria as [Tennort] was writing [her statement].” Id. Tennort was bothered by McCullom’s comments and did not report them to Human Resources because she “felt terrified.” Id.

In her statement, Tennort wrote “I do not like being in turmoil but yet I was in a situation where I had no choice but to tell the truth.” ROA.1434. Tennort wrote that she “witnessed a situation at Biloxi Jr. High School while on break” during which Harris told Quarles to remove a cell phone from her back pocket. Id. Tennort wrote that Harris said Quarles’ pants were tight, to which Quarles responded “don’t worry about how tight my pants are” and “pulled them showing the slack in [her pants].” Id. Tennort wrote “Then Mr. Willie [Harris] said, ‘I’m a man. I’m gonna look.’” Id. Quarles responded by “slapping her hands” and saying “the next person who comments on that . . . is gonna be trouble [sic].” Id. Tennort concluded her statement by writing, “I don’t want any trouble just what’s rite [sic].” Id.

McCullom walked back into the cafeteria and took the statement. ROA.1360. He then submitted the statements to Cheryl Way, the Director of Human Resources at Rite Way. ROA.814.

On or around August 20, 2011, McCullom recommended Thomas Walker for the hourly supervisor position to replace Harris (ROA.814), which Marston approved. ROA.1080 (“Mr. Alexander McCullom recommended it and I approved it.”). Marston and McCullom “transferred Harris away” from the school. ROA.814. Walker began working at Biloxi Junior High School shortly thereafter. Id.

Every day, Walker “was harassing [Tennort].” ROA.1372. In his conduct toward Tennort, he was “very nasty, following me around and being very rude and mean for no uncertain reason.” ROA.1365. He would tell her to “get this shit right” about “any small, little thing” and said this to her about ten times. Id. Walker changed her work duties every day, so that Tennort “didn’t know what to expect with Mr. Walker every day.” ROA.1366. Instead of having a set lunch break, Walker would change the time of Tennort’s break every day, so that “[w]henever Mr. Walker felt like giving me a break, that’s when I took my break.” ROA.1374.

He also “humiliated” Tennort by ordering her to clean up areas for no apparent reason. ROA.1366-67. On one occasion, for example, Walker told her that the trash can in the offices were overflowing, but when she went to the offices, there was one piece of trash. Walker told her “get this out,” which she did. ROA.1366. Tennort explained, “[i]f someone’s following you around all day behind you just being so rude and cursing and talking to you harshly, you’ll be terrified too.” ROA.1367. On two or three occasions, she would see Walker with his arms crossed, standing and staring at her. ROA.1368.

On August 31, 2011, Walker gave Tennort a written warning. ROA.827; ROA 1435. Walker did not have the authority to issue a warning on his own. ROA.1223. Both McCullom, and McCullom’s assistant project manager Brian Grove (ROA.1133), had to approve it. ROA.1223. In the managerial chain at Rite Way, Grove reported directly to McCullom. ROA.1133.

The August 31, 2011, warning stated that Tennort “refused to empty garbage cans for Officer Cannette,” that she refused to do so in front of Officer Cannette “because she stated she was on break,” but that she emptied the cans “after some resistance.” ROA.1435. The warning also stated “improper break time,” and that Tennort was to take her break before the school lunch period. Id. Tennort checked the box in the employee comments section indicating “I disagree with the above statements,” and wrote a handwritten response that she “did not refuse,” that she “went to change the trash while I was on my break with no problem,” and then took the remainder of her break after she had cleaned the trash. Id. The document’s signature block reflects Walker’s signature dated August 31, 2011 and McCullom’s signature dated September 1, 2011. Id.

This was the first written warning Tennort received. ROA.827 (reflecting Walker’s statement that “I gave Ms. Tennort a first written warning…as a result of this incident.”); ROA. 1374-75. Before giving her statement, Tennort had never received a written or verbal warning about her work performance. ROA.1401. Nor had she ever received any written or verbal warnings about attendance. Id.

Tennort had worked at Rite Way since September 2009, for the duration of each academic school year until the summer break. ROA.996. For example, Rite Way rehired her in August 2010, for the duration of the school year ending in May 2011. Id. Rite Way, through McCullom, rehired Tennort again in August 2011 (ROA.996), weeks before firing her on September 26, 2011.

On September 2, Walker issued “a second written warning.” ROA.827; 1436. McCullom then met with Tennort on September 9, 2011, to issue the warning. ROA.1375; see also ROA 1436 (reflecting Tennort’s signature in the employee section, dated September 9, 2011, and McCullom’s signature in the supervisor section, dated September 9, 2011). This warning stated that “Supervisor Thomas [Walker] received a call…that the bathroom adjacent to the conference room in the offices had not been cleaned. Mekeva recorded a cleaning time of 6:21 a.m. but floors were dirty and trash can was full, etc.” ROA.1436. In the employee comments section, Tennort again checked the box “I disagree with the above statements.” Id. When McCullom met with Tennort, she told him she had not been at the school the day before, and when she came in that morning, the trash was “running over, and the bathrooms hadn’t been cleaned at all the night or the day before.” ROA.1375. She started cleaning it around six a.m., and it was clean by eight a.m. Id. According to Walker, however, he checked the bathroom around 8 a.m., and “the floor was dirty and the trash had not been emptied.” ROA.827. Though Walker told her that the floors needed to be remopped, when Tennort went back to the bathroom, the floor looked the same “[a]s when I just mopped them.” ROA.1375. The trash bin was not full either, but instead had “three pieces of napkins in there.” ROA.1375-76.

According to Grove, though Walker had recommended firing Tennort in relation to the September 2 warning, Grove decided against firing her at that time because he “felt that Tennort should be given another opportunity to improve her job performance.” ROA.830. McCullom “concurred” with Grove’s recommendation not to fire her at that time. Id.

On September 26, 2011, Rite Way fired Tennort. ROA.831; ROA.1485 (termination notice). Walker and Grove met with her on that day to notify her she was being fired. ROA.831. They “pulled me behind the building with no cameras and no one could see us and said, ‘We’re going to have to let you go.’” ROA.1376. When she asked why, she was told it was “[b]ecause the principal just complained, saying the boys bathroom was filthy.” Id.

Walker testified that when he recommended to Grove that Rite Way fire Tennort, Grove responded by saying, “‘We need to check it out, and I need to get with the other managers, and we’ll see what we can do here.’” ROA.1288-89. Grove’s affidavit states that he “agreed with Walker’s recommendation,” but is silent as to whether Grove made the actual termination decision. ROA.830-31.[2] Though Walker stated in his May 22, 2011, declaration that Grove made the decision to fire Tennort (ROA.828), when asked at his August 12, 2014, deposition who made the decision to fire Tennort, Walker testified “I have no knowledge” and that the decision was “left up to management.” ROA.1287. Later in his deposition, Walker testified that the basis for his belief that Grove made the decision to fire Tennort was that Grove had told Tennort she was being fired. ROA.1327-28. McCullom denies any involvement in the decision to fire Tennort. ROA.815 (“I was not involved in the decision to terminate Tennort.”).

III. District Court Decision

The district court held that Tennort’s statements to McCullom did not constitute opposition within the meaning of Title VII’s antiretaliation provision. ROA.1803. The district court granted summary judgment on the Commission’s retaliation claim on the basis that the Commission failed to show, in satisfaction of its prima facie case, that Tennort engaged in protected activity. Id. The district court did not analyze causation or pretext. Id.

In its opposition clause analysis, the district court rejected the Commission’s argument that requiring an employee, in this factual context, to have a “reasonable belief” that the reported conduct was unlawful was contrary to the Supreme Court decision Crawford v. Metro. Gov’t of Nashville and Davidson Cnty., Tennessee, 555 U.S. 271 (2009). ROA.1798. The district court stated that it was “unpersuaded” and cited this Court’s opposition clause analysis in Satterwhite v. City of Houston, No. 14-20240, 2015 WL 877655 (5th Cir. Mar. 3, 2015). Id. In that case, the district court explained, the plaintiff argued that he engaged in protected opposition when reporting an incident he believed to be discriminatory, and also when responding to questions in relation to the employer’s subsequent investigation of that incident. Id. The district court emphasized this Court’s statement in Satterwhite noting that for the plaintiff’s actions in that case “‘to be protected activities [the plaintiff] must also have had a reasonable belief that Singh’s comment created a hostile work environment under Title VII.’” ROA.1798-99 (quoting Satterwhite, 2015 WL 877655, at *2).

The district court articulated the objectively reasonable belief standard as “whether a reasonable person would believe that Harris’ conduct was actionable under Title VII” at the outset of its analysis (ROA.1799), and then discussed the type of proof required for establishing the actual existence of a hostile work environment under Title VII. ROA.1800-03. The district court concluded that there was “insufficient evidence that th[e] isolated incident” of Harris’ comment about being a man and looking at Quarles’ tight pants “can be viewed as having unreasonably interfered with the work performance of Quarles or Tennort.” ROA.1800-01. Though it noted that Harris’ comment to Quarles was “‘wholly inappropriate,’” the district court concluded that the record did “not support a finding that this isolated incident rises to the level of ‘pervasive or severe[]’ sufficient to amount to a cognizable Title VII violation.” ROA.1801. Considering both the “ooh wee” incident in early August, when Harris pretended to slap Quarles’ behind, and the incident on August 11, the court likewise concluded that “the two incidents simply do not rise to the level of being ‘so severe or pervasive as to alter the conditions of . . . employment and create an abusive working environment.’” ROA.1802 (quoting Clark County School District v. Breeden, 532 U.S. 268, 270 (2001)). Based on that reasoning, the district court held that Tennort’s statement to Rite Way during its internal investigation was not protected opposition. ROA.1803.

SUMMARY OF ARGUMENT

As Tennort’s statement exhibits the characteristic features of conduct that the Supreme Court held to be protected opposition in its Crawford decision, her report of harassment made in response to Rite Way’s inquiries constitutes protected activity under Title VII’s antiretaliation provision.

In concluding that the Commission failed to establish the first element of a prima facie case of retaliation—that Tennort engaged in conduct protected by Title VII’s antiretaliation provision—the district court erred in two principal respects. First, the district court erred in concluding that a witness like Tennort who reports harassing conduct in an internal investigation is only protected under Title VII’s opposition clause if she can separately demonstrate she had an objectively reasonable belief that the harassing conduct was unlawful. Second, in its application of that standard, the district court erred in holding that the evidence was insufficient to make that showing.

The record evidence in this case also creates a triable issue as to whether Rite Way fired Tennort in retaliation for her report of Harris’ misconduct. The sudden emergence of written warnings to Tennort’s file only after her report, and Rite Way’s decision to fire her weeks after her report on the basis of those warnings, would allow a reasonable jury to conclude that Rite Way’s purported basis for firing Tennort—performance issues—was pretextual. Applying de novo review,[3] this Court should reverse the district court’s grant of summary judgment on the Commission’s retaliation claim and allow a jury to resolve the factual disputes presented on this evidentiary record.

ARGUMENT

I. Tennort’s reporting of Harris’ sexual misconduct, in response to Rite Way’s

inquiry, is protected opposition within the meaning of Title VII’s antiretaliation provision.

The antiretaliation provision of Title VII states: “It shall be an unlawful employment practice 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, 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 first clause, which protects conduct that “has opposed any practice made an unlawful employment practice,” is referred to as the opposition clause. Crawford, 555 U.S. at 274.

To make out a prima facie case of retaliation, the plaintiff must show: 1) that she engaged in protected conduct, 2) that she was thereafter subjected to a materially adverse action, and 3) that the adverse action was taken in response to the protected conduct. Hockman v. Westward Communications, 407 F.3d 317, 330 (5th Cir. 2004).

A. As Tennort’s conduct has the characteristic features of protected opposition under Crawford, this Court should hold that Tennort’s conduct is protected under the statute’s opposition clause.

In Crawford, the Supreme Court held that the plaintiff’s discrimination complaints, relayed in response to her employer’s inquiry during an internal investigation, constituted protected activity under Title VII’s opposition clause. 555 U.S. at 273. In that case, the employer “began looking into” rumors that an employee was sexually harassing other employees. Id. at 273. When the employer asked the plaintiff whether she had witnessed “‘inappropriate behavior’” by the alleged harasser, she responded by describing “several instances of sexually harassing behavior” by him directed at her. Id. at 274.

In its analysis, the Court emphasized the various forms that opposition can take. Id. at 276. The term “oppose,” in its ordinary meaning, means to “‘resist or antagonize …; to contend against; to confront; resist; withstand.’” Id. (quoting Webster’s New International Dictionary 1710 (2d ed.1958)). The term, the Court explained, also encompasses an individual’s disclosure of a position, with “no action at all to advance” it. Id. at 277 (citing examples of individuals who were known to “oppose” slavery or capital punishment in the present day, without writing letters or resisting the government). It would also be “opposition,” the Court stated, “if an employee took a stand against an employer’s discriminatory practices” by “standing pat” and refusing to follow a discriminatory directive rather than instigating action. Id.

Given the range of the term’s meaning, the Court concluded that “a person can ‘oppose’ by responding to someone else’s question just as surely as provoking the discussion.” Id. No aspect of the statute, the Court explained, “requires a freakish rule protecting an employee who reports discrimination on her own initiative but not one who reports the same discrimination in the same words when her boss asks a question.” Id. at 278. Observing that the plaintiff gave an “ostensibly disapproving account of sexually obnoxious behavior toward her by a fellow employee,” the Court then stated that her “description of the louche goings-on would certainly qualify in the minds of reasonable jurors as ‘resist[ant]’ or ‘antagoni[stic]’ to Hughes’s treatment.” Id. at 276.

Here, Tennort twice reported what she had seen after being identified as a witness to Harris’ conduct toward Quarles. When questioned by Cannette, Tennort told him that Harris “was making gestures to her behind, and how he was a man, he’s going to look, and how upset she got.” ROA.1364. Cannette then identified Tennort as a witness to McCullom, who also questioned Tennort. ROA.813. When questioned by McCullom, Tennort submitted a detailed, narrative statement in which she wrote about Harris’ comment on the tightness of Quarles’ pants, Quarles’ upset reaction, and his comment that he was a man and he was going to look. ROA.1433-34 (Tennort’s written statement).

That Tennort submitted a written statement, despite McCullom’s comments implying it would be in her best interest not to provide one, further demonstrates that she acted in opposition within the meaning of the statute. Before she wrote her statement, McCullom told her, “You know what they do to people who do stuff like this.” ROA.1360. When she asked what he meant, he relayed a “story about how some people was messing with him in North Gulfport and he ran home and got something and came back, and they never messed with him again.” Id. Tennort testified that she was terrified by his comments. Id. McCullom also told her to stay away from Quarles. ROA.1359 (“He told me to stay away from her because she’s nothing but mess and trouble and he did his background on her.”). He then told her “Well, I see you’re still going to do it,” and left the cafeteria for her to write the statement. ROA.1360. By submitting her statement, despite the veiled warning not to do so, Tennort engaged in opposition activity that the statute was meant to protect—reporting harassment, even when faced with resistance and the likelihood of retaliation for doing so.

The Eighth Circuit has also addressed and analyzed a witness’s responsive statement in an employer’s internal investigation, similar to Tennort’s conduct in this case. In Sayger v. Riceland Foods, Inc., 735 F.3d 1023 (8th Cir. 2013), the plaintiff was identified as a witness by two other employees, who had repeatedly complained to Human Resources about a supervisor’s frequent use of offensive language to talk about black employees. Id. at 1028-29. The Human Resources director interviewed Sayger, who reported the supervisor’s derogatory comments. Id. at 1029. About five months later, Sayger was fired. Id. at 1032 (noting “there were five months between the interview with [Human Resources] and Sayger’s layoff”).[4]

Discussing the Supreme Court’s Crawford decision in its analysis, and characterizing the issue to be decided as “whether Sayger’s serving as a witness in the internal investigation was conduct vindicating the rights of minorities,” the court “conclude[d] that someone who has substantiated a complaint of a civil rights violation has demonstrated opposition to that violation and acted to vindicate the rights of minorities.” Id. at 1031-32 (emphasis added).[5] “Such an individual,” the court continued, “should therefore receive the same protection against retaliation as the person who filed the original complaint.” Id. at 1032.

Sayger, the Eighth Circuit explained, demonstrated his opposition to the offensive conduct he witnessed when he reported it to the employer and thereby “acted to vindicate the rights of the minority employees.” Id. at 1032. The court observed that “[i]f employees who give evidence or respond to questions during internal inquiries into alleged discrimination are not protected from retaliation, it would impede any internal efforts to address discrimination.” Id. The Eighth Circuit held that Sayger’s complaints constituted protected activity. Id. at 1031-32.

Both the Crawford and Sayger decisions strongly counsel in favor of holding that Tennort’s conduct in the course of Rite Way’s investigation is likewise protected activity. The plaintiffs in Crawford and Sayger, like Tennort, responded to an employer’s inquiries about alleged discriminatory conduct with a narrative account of what they observed. In their responses, the plaintiffs also reported and corroborated allegations of discriminatory treatment based on a protected characteristic under Title VII. In this case, Tennort not only reported the conduct, which substantiated the victim’s allegations, but did so despite being cautioned by the interviewing manager about the possible adverse consequences of submitting such a statement. In light of Crawford and Sayger, Tennort’s report of harassment of Quarles by Harris, made in response to Rite Way’s questions about the matter, is protected opposition and thus satisfies the first element of the prima facie case.

B. A witness to harassing behavior, who then reports it in response to an employer’s inquiry, need not establish an objectively reasonable belief that the behavior was unlawful for the complaint to be protected under Title VII.

This Court has held that in order for an employee’s complaint of allegedly discriminatory conduct to constitute protected opposition, the evidence must show that the employee had a reasonable belief that the conduct he or she reported was unlawful. Payne v. McLemore’s Wholesale & Retail Stores, 654 F.2d 1130,1140-41 (5th Cir. 1981) (holding that a plaintiff can establish a prima facie case of retaliation under the opposition clause if “he shows that he had a reasonable belief that the employer was engaged in unlawful employment practices”). An opposition clause analysis most commonly concerns a factual context where an employee, without prompting from the employer, lodges a complaint. See, e.g., Long v. Eastfield College, 88 F.3d 300, 303-04 (5th Cir. 1996) (plaintiffs engaged in protected opposition where one plaintiff complained to college officials about racially discriminatory conduct of a supervisor and the other complained to college officials about sexually discriminatory conduct by her immediate supervisor). In that context, this Court examines the evidence of what led the plaintiff to believe that the practices he reported to his employer were unlawful. See, e.g., Byers v. Dallas Morning News, 209 F.3d 419, 428-29 (5th Cir. 2000) (applying the reasonable belief test and holding that plaintiff’s belief was “objectively unreasonable”; none of his four complaints constituted protected opposition because the factual basis upon which he relied in making those complaints was mistaken or false).

This Court has not, however, expressly addressed the issue raised in this case: whether a witness of harassment who reports what she observed—in response to her employer’s inquiry about the incident—must make an additional showing that she had an objectively reasonable belief that the conduct she observed was unlawful under Title VII to be protected from retaliation. As discussed in further detail below, imposing such a requirement in this context would frustrate the statute’s function and purpose. In addition, several considerations unique to this factual context support holding that a witness account provided in response to an internal harassment investigation can be protected opposition, without application of the reasonable belief test.

1. Imposing a reasonable belief test to witness accounts arising during an internal investigation would frustrate the purpose of the statute.

Title VII’s antidiscrimination and antiretaliation provisions are complementary: Title VII’s antidiscrimination provision prohibits discriminatory practices in the workplace while Title VII’s antiretaliation provision “seeks 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.” Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 63 (2006). In other words, the protection for workers under Title VII’s antiretaliation provision is an essential safe harbor to ensure that violations of Title VII’s antidiscrimination provision are reported. The primary purpose of antiretaliation provisions is “[m]aintaining unfettered access to statutory remedial mechanisms.” Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997).

Third party witnesses are essential components of Title VII’s enforcement machinery. That is because “Title VII depends for its enforcement upon the cooperation of employees who are willing to file complaints and act as witnesses.” Burlington N., 548 U.S. at 67. See also Crawford, 555 U.S. at 279 n.3 (noting “employees will often face retaliation not for opposing discrimination they themselves face, but for reporting discrimination suffered by others”).

Applying the reasonable belief test to a witness account of discriminatory conduct in this context, however, would result in significant obstruction to Title VII’s enforcement—the potential cost would be too high for third party witnesses to come forward in an internal investigation without knowing whether they would be protected from retaliation. The absence of protection for such witnesses would deter the reporting of Title VII violations essential for the enforcement of the statute’s antidiscrimination provision. Crawford, 555 U.S. at 279 (“If it were clear law that an employee who reported discrimination in answering an employer’s questions could be penalized with no remedy, prudent employees would have a good reason to keep quiet about Title VII offenses against themselves or against others. This is no imaginary horrible given the documented indications that ‘[f]ear of retaliation is the leading reason why people stay silent instead of voicing their concerns about bias and discrimination.’”) (citation omitted); Burlington N., 548 U.S. at 67 (“‘Plainly, effective enforcement could thus only be expected if employees felt free to approach officials with their grievances.’”) (citation omitted).

In light of the importance of witnesses and uninhibited reporting by employees within Title VII’s statutory scheme, the Supreme Court has consistently interpreted the antiretaliation provision to provide broad coverage. In Robinson, for example, the Court held that the term “employees” in the antiretaliation provision includes former employees, and agreed that “it would be destructive of [the] purpose of the antiretaliation provision” to hold otherwise. 519 U.S. at 346. In so holding, the Court discussed arguments raised by the Commission that exclusion of former employees “would undermine the effectiveness of Title VII 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. “Those arguments,” the Court concluded, “carry persuasive force given their coherence and their consistency with a primary purpose of antiretaliation provisions.” Id.

In Burlington Northern, the Court again construed the provision to include broad coverage and rejected an interpretation that would limit actionable retaliation to workplace-related or employment-related retaliatory acts. 548 U.S. at 67-68. Instead, the Court held that an employee is protected from any adverse act that would dissuade a reasonable worker from making or supporting a charge of discrimination. Id.

Addressing coverage under the provision’s opposition clause, the Supreme Court in Crawford held that protected conduct is not limited to an employee’s proactive reports of discriminatory conduct, but includes reports of discriminatory conduct made in response to an employer’s inquiry. 555 U.S. at 273 (“The question here is whether this protection extends to an employee who speaks out about discrimination not on her own initiative, but in answering questions during an employer’s internal investigation. We hold that it does.”).

This Court should hold that reports by third party witnesses that arise in an internal investigation are protected opposition, without imposition of the reasonable belief test, as such an interpretation coheres with and supports the antiretaliation goals of Title VII. See Burlington N., 548 U.S. at 67 (“Interpreting the antiretaliation provision to provide broad protection from retaliation helps ensure the cooperation upon which accomplishment of the Act’s primary objective depends.”); Robinson, 519 U.S. at 346 (finding arguments to be persuasive that urged the inclusion of former employees within the meaning of “employees” in the antiretaliation provision “given their coherence and their consistency with” the provision’s purpose). See also Hagan v. Echostar Satellite, L.L.C., 529 F.3d 617, 626 (5th Cir. 2008) (holding that an informal, internal complaint constitutes protected activity under the antiretaliation provision of the Federal Labor Standards Act “because it better captures the anti-retaliation goals of that section”). As this Court observed in Pettway v. American Cast Iron Pipe Co., 411 F.2d 998, 1004-05 (5th Cir. 1969), “[t]here can be no doubt about the purpose of § 704(a) [Title VII’s antiretaliation provision]. In unmistakable language it is to protect the employee who utilizes the tools provided by Congress to protect his rights.”

The district court relied on this Court’s application of the reasonable belief test in its unpublished Satterwhite[6] decision to conclude that Tennort was required to make such a showing in this case. See ROA.1798-99 (discussing Satterwhite, 2015 WL 877655, at *2-3). This Court’s analysis in Satterwhite, however, does not compel application of the reasonable belief test to the facts and issue presented in this case. In Satterwhite, the plaintiff argued that he engaged in protected opposition when he made an unsolicited complaint to Human Resources about a supervisor’s use of the phrase “Heil Hitler,” and answered questions in an ensuing investigation of that incident. Satterwhite, 2015 WL 877655, at *2. This Court, in analyzing whether his actions were protected opposition, focused on whether it was objectively reasonable for Satterwhite to believe that the “Heil Hitler” incident was a Title VII violation— an inquiry typically applied to unprompted complaints such as Satterwhite’s complaint to Human Resources. This Court did not, however, discuss the content of Satterwhite’s answers in the investigation, analyze that alleged opposition conduct separately, or expressly hold that complaints arising in the context of an investigation require application of the reasonable belief test to constitute protected opposition. Id. at *2-3. Accordingly, that decision is of limited applicability here, as the analysis did not reach the question expressly raised in this case.

In the context of an internal investigation, where the employee statement arises in response to the employer’s inquiries, this Court need not and should not import a reasonable belief test for such witness accounts.

2. Imposing a reasonable belief standard would impede an employer’s ability to internally investigate allegations of harassment.

In Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775 (1998), the Supreme Court created an affirmative defense for employers facing vicarious liability for a supervisor’s harassment of an employee. Crawford, 555 U.S. at 278 (discussing Faragher-Ellerth defense) (citations omitted). In certain instances, an employer may avoid such liability if the evidence satisfies both prongs of the defense: that the defendant “‘exercised reasonable care to prevent and correct promptly any’ discriminatory conduct and ‘the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.’” Crawford, 555 U.S. at 278 (citations omitted). Under this defense, “[e]mployers are thus subject to a strong inducement to ferret out and put a stop to any discriminatory activity in their operations as a way to break the circuit of imputed liability.” Id. In addition, the defense serves a preventative function, placing “‘corresponding duties’” on the employer and the employee “‘to stop sexual harassment before it reaches the severe or pervasive stage amounting to discrimination in violation of Title VII.’” EEOC v. Boh Bros. Constr. Co., 731 F.3d 444, 466 n.27 (5th Cir. 2013) (en banc) (quoting Baldwin v. Blue Cross/Blue Shield of Ala., 480 F.3d 1287, 1307 (11th Cir. 2007)).

To establish the defense, an employer investigation is “most easily seen as bearing upon the ‘prompt correction’ aspect,” that is, the first prong of the defense. Boh Bros.,731 F.3d at 466 n.25. An employer will be unable to satisfy this prong, however, without the protected reporting of third party witnesses. If an employer, due to witnesses’ fear of reprisal, is unable to gain the cooperation of witnesses with relevant information in the course of an investigation, efforts to identify and stop the discriminatory conduct that has exposed it to liability will be ineffectual. Its inability to uncover and correct harassment through participating witnesses would significantly impair an employer’s ability to establish the affirmative defense in litigation.

In addition to bearing upon the defense’s first prong, this Court has also observed that an employer’s “prompt and thorough investigation serves as a deterrent to potential violators, and investigative findings may inform the employer’s anti-harassment training program in an iterative improvement process.” Id. at 466 n.25. Should witnesses choose to stay silent for fear their statements and honest cooperation could expose them to retaliation without recourse, employers who seek to remedy or prevent discrimination in their workplace through investigations would have great difficulty doing so. The absence of protection for third party witnesses would thus not only obstruct an employer’s ability to establish the affirmative defense, but also frustrate an employer’s diligent efforts to prevent discrimination in its workplace. Should this Court condition protection of witnesses on their demonstration of an objectively reasonable belief, employers would be hindered in fully availing themselves of their “affirmative obligation to prevent violations.” Faragher, 524 U.S. at 806.

3. To apply a reasonable belief test to a witness statement in an internal investigation misapprehends the role of witnesses in the fact-finding process and would leave employees in an untenable position.

This Court has observed, in a variety of contexts, the critical role that witnesses have in any fact-finding process. See, e.g., Charles v. F. W. Wade, 665 F.2d 661, 666 (5th Cir. 1982) (in a §1983 case, discussing the policy behind witness immunity as being premised “upon his status as an essential participant in the judicial process” and observing that “[b]ecause the witness plays such an integral role in the fact-finding process, the reluctant or reticent witness would disserve the ends of justice regardless of the nature of the proceeding.”). See also L & C Marine Transport, Ltd. v. U.S., 740 F.2d 919, 924-25 (11th Cir. 1984) (discussing investigations by the Occupational Safety and Health Administration into workplace safety violations and observing that the agency’s function “can only be achieved by use of its investigatory powers to check out work places and interview workers”; stating that protecting confidentiality of witnesses is necessary given the “great leverage that employers hold over workers and the possibility for retaliation”).

Requiring witnesses, beyond providing information, to additionally prove that they had an objectively reasonable basis for believing the reported conduct was unlawful, inverts the role of the witness. Third party witnesses need not demonstrate liability. They are individuals whom we seek information from, whose involvement is commonly sought, and who each provide a piece of the story from which the investigating body makes an overall determination evaluating the various accounts before it. See, e.g., Reeves v. Claiborne Cnty. Bd. of Educ., 828 F.2d 1096, 1100-01(5th Cir. 1987) (discussing witness who was subpoenaed for trial, who was not a plaintiff or seeking redress herself and had provided “generally factual testimony” concerning a school reading program; though testimony did not concern any political controversy, holding that the testimony was nonetheless protected speech in First Amendment retaliation case, emphasizing need for “uninhibited testimony…to arrive at the truth”). To demand a showing from witnesses—of a reasonable belief that the conduct they were reporting was unlawful to be protected under Title VII’s opposition clause—inserts an analysis that simply misapprehends their role as fact-finding sources and informants.

Moreover, witnesses commonly do not have the “whole” story. Unlike the victim of a crime or civil rights violation, a third party witness will likely not have observed the full range of conduct that was perpetrated. This applies in the harassment context as well, where it is typically the victim and harasser alone who know the full extent of conduct that the harassed employee has been exposed to. See Boh Bros., 731 F.3d at 463 n.19 (noting that victims of sexual harassment “‘are often the only ones, besides the perpetrators, who are aware of sexual harassment’”) (citation omitted). To then deny protection under Title VII for an employee witness, on the basis that the harassing conduct she observed was insufficient to form the basis for an objectively reasonable belief that the conduct was unlawful, would penalize witnesses for being witnesses—that is, observers of part but not the whole story.

In discussing the catch-22 that would be created by failing to protect a victim who reported harassment in the context of an internal investigation, the Supreme Court in Crawford explained that “if the employee reported discrimination in response to the enquiries, the employer might well be free to penalize her for speaking up. But if she kept quiet about the discrimination and later filed a Title VII claim, the employer might well escape liability, arguing that it ‘exercised reasonable care to prevent and correct [any discrimination] promptly’ but ‘the plaintiff employee unreasonably failed to take advantage of ... preventive or corrective opportunities provided by the employer.’ Nothing in the statute’s text or our precedent supports this catch–22.” 555 U.S. at 279 (internal citation omitted). Permitting such a result—a catch-22—for a third party witness in an internal harassment investigation is similarly unjust, if not more so. Where it is the employer who seeks answers from the employee, the witness per se acts reasonably in responding truthfully to the employer’s inquiry.

The Supreme Court in Crawford did not expressly address or analyze whether the reasonable belief test applied to complaints of discrimination made in response to an employer’s inquiries, but nonetheless held that the plaintiff’s report of harassment during the course of her employer’s investigation was protected opposition, without engaging in a reasonable belief analysis. Crawford, 555 U.S. at 276-80. That omission is, at a minimum, instructive. An additional requirement for protection from retaliation—that the employee must offer proof of an objectively reasonable belief that what she saw was unlawful—would import a standard that has no useful function in this context, and would place witnesses like Tennort in an untenable position. If she chooses to speak truthfully, she risks being retaliated against with no remedy. Should she choose to lie or stay silent, the investigation would be compromised and ineffectual. And should she otherwise refuse to answer or cooperate, this could incur charges of insubordination or other forms of discipline, as it is the employer who is actively soliciting an answer from the employee.

This Court has already observed, in another context, that placing witnesses in that difficult position is unsupportable and undermines the fact-finding process. Johnston v. Harris Cnty. Flood Control Dist., 869 F.2d 1565, 1578 (5th Cir. 1989) (in First Amendment retaliation analysis, observing that “[i]f employers were free to retaliate against employees who provide truthful, but damaging, testimony about their employers,” they would face two options: to either “testify truthfully and lose their jobs or [] lie to the tribunal and protect their job security”; holding that a plaintiff’s testimony before a county commissioner hearing was a matter of public concern, as to hold otherwise would “chill the employees’ willingness to testify freely and truthfully and would obstruct the Commissioner’s Court’s path to the truth”). Though the fact-finding forum at issue in Johnston was a county commissioner court’s equal employment opportunity hearing, the same principles discussed by this Court in Johnston counsel in favor of protecting third party witnesses in an employer’s internal investigation: without protection from retaliation for witnesses, the fact-finding process would be compromised, and would chill employee participation and the uncovering of Title VII violations.

C. Even applying the reasonable belief test to Tennort’s statement, the record evidence is sufficient to show that she had an objectively reasonable basis to believe that Harris’ conduct was unlawful.

The district court not only erred when it elected to apply the reasonable belief test to Tennort’s report, but also erred in its application of this Court’s standard. Although the district court correctly articulated the standard at the outset of its analysis, it then emphasized the requisite proof to establish a hostile work environment claim and analyzed the reasonableness of Tennort’s complaint based on whether Harris’ conduct amounted to an actual violation. In examining Harris’ conduct toward Quarles on August 11, for example, the district court concluded that “this isolated incident” did not rise “to the level of ‘pervasive or severe[]’ sufficient to amount to a cognizable Title VII violation.” ROA.1801-02 (citing several cases from this Court affirming the grant of summary judgment to the employer on a hostile work environment claim). Likewise, the district court found that considering both the August 11th incident and Harris’ earlier alleged act of pretending to slap Quarles’ behind, these “two incidents simply do not rise to the level of being ‘so severe or pervasive as to alter the conditions of…employment and create an abusive working environment.’” ROA.1802 (citations omitted).

When applying the reasonable belief test, however, this Court does not require that the employee demonstrate the conduct he or she opposed was an actual Title VII violation, but rather, that the employee reasonably perceived the conduct to be unlawful. Payne, 654 F.2d at 1140-41 (stating plaintiff must show “that he had a reasonable belief that the employer was engaged in unlawful employment practices”). As this Court explained in Payne, “An employee who engages in opposition activity should not be required to act at his own peril if it turns out that no unlawful employment practice actually exists, as long as the employee holds a reasonable belief that the unlawful employment practices do exist.” Id. at 1139 n.9.

Here, the evidence reflects that Tennort saw Harris pretend to slap a female subordinate’s behind, and heard him comment that her pants were tight and that he was going to look because he was a man. The reasonableness of her perception that his conduct was unlawful is supported by this Court’s precedent finding such behavior within the realm of actionable conduct forming a sexually hostile work environment. See Harvill v. Westward Commc’ns, L.L.C., 433 F.3d 428, 435-36 (5th Cir. 2005) (supervisor’s patting of plaintiff’s buttocks was among unlawful sexually harassing conduct that constituted hostile work environment); Farpella-Crosby v. Horizon Health Care, 97 F.3d 803, 806 (5th Cir. 1996) (holding that evidence of frequent sexual comments, without any physical contact, was sufficient to support jury verdict in favor of plaintiff’s hostile work environment claim).

Though Tennort observed Harris on only two occasions, the incidents occurred in close succession. The fact of a second occurrence within two weeks of the first provided Tennort with confirmation— more than a reasonable basis to believe—that the first incident of Harris’ sexual conduct toward Quarles was not an isolated, one-time occasion. Moreover, Harris’ response that he was going to look at Quarles because he was a man, despite Quarles’ upset reaction at the time of that incident, also provided a reasonable basis for Tennort to believe that his conduct could continue.[7]

Finally, that Harris was Tennort’s and Quarles’ supervisor heightens the severity and effect of Harris’ conduct towards Quarles. As the Supreme Court observed, “courts have consistently held that acts of supervisors have greater power to alter the environment than acts of coemployees generally.” Faragher, 524 U.S. at 805. See also Ellerth, 524 U.S. at 763 (observing that “a supervisor’s power and authority invests his or her harassing conduct with a particular threatening character”). Harris’ supervisory relationship to Quarles—the target of his harassing conduct—also supports the reasonableness of Tennort’s belief that the conduct she observed by him was unlawful.

Should this Court apply the reasonable belief test to Tennort’s report, the evidence is sufficient to show that she acted reasonably by reporting Harris’ sexual misconduct toward Quarles when Rite Way questioned her about Quarles’ allegations.

II. The evidence is sufficient to establish a prima facie case of retaliation.

As to the remaining elements of the prima facie case, the evidence is sufficient to show that Tennort was subject to an adverse action, and that there is a causal link between the adverse action and her protected opposition.

Rite Way fired Tennort on September 26, 2011, an act that plainly constitutes an adverse action under Burlington Northern. DeHart v. Baker Hughes Oilfield Operations, Inc., No. 05-21087, 2007 WL 126081, at *4 (5th Cir. Jan. 19, 2007) (in a Title VII retaliation claim, “termination is clearly an adverse employment action”). As for showing causation at the prima facie stage, “the standard for satisfying the causation element is ‘much less stringent’ than a ‘but for’ causation standard.” Ackel v. Nat’l Commc’ns, Inc., 339 F.3d 376, 385 (5th Cir. 2003) (quoting Fierros v. Tex. Dep’t of Health, 274 F.3d 187, 191 (5th Cir. 2001). The plaintiff must produce “some evidence of a causal link between the protected activity and the adverse employment action” to make the requisite showing. Id. (emphasis in original). The evidence must demonstrate that the decision makers involved in the decision were aware of the protected activity. Manning v. Chevron Chem. Co., LLC, 332 F.3d 874, 883 (5th Cir. 2003) ( “[I]n order to establish the causation prong of a retaliation claim, the employee should demonstrate that the employer knew about the employee’s protected activity.”)

The evidence in this case would permit a reasonable jury to find a causal link between Tennort’s reporting of Harris’ conduct to Rite Way on August 18, and Rite Way’s decision to fire her approximately five weeks later, on September 26, 2011. It is undisputed that McCullom had knowledge of Tennort’s participation in the investigation—he questioned Tennort and received her written statement. See ROA.871, Rite Way SJ Memo of Law (stating that McCullom met with Tennort to “obtain statements regarding Quarles’s allegations”). Rather, Rite Way contends that McCullom was not involved in the decision to fire Tennort. ROA.876, Rite Way SJ Memo of Law (“McCullom did not participate in the decision to terminate Tennort”). McCullom states in his sworn statement that he did not participate in the termination decision. ROA.815. See also ROA.1686, Rite Way Reply Br. (“No evidence exists to show McCullom was a decision maker in Tennort’s termination.”).

There is sufficient circumstantial evidence in the record, however, from which a reasonable jury could reject McCullom’s denial of involvement. The documentary evidence shows that he was involved in every other personnel decision relating to Tennort leading up to her termination. That McCullom was involved in every other personnel decision affecting Tennort casts doubt on the assertion that was he not involved in the one personnel decision for which discriminatory retaliation has been alleged.

McCullom’s signature is on both the August 31, 2011, and September 2, 2011, warnings to Tennort. McCullom had to approve the issuance of any written warnings (ROA.1223) and, consequently, necessarily had to approve the issuance of these warnings to Tennort. McCullom, along with Walker and Grove, met with Tennort to have her sign her first written warning. ROA.1393 (when asked whether she recalled any mandatory meetings with Walker, McCullom, and Grove, Tennort testified “[w]hen they had me come into the office to sign my first write-up that I was there”). McCullom met with Tennort again on September 9 to give her the September 2 warning. ROA.1375 (reflecting that Tennort signed this warning on September 9, and that McCullom discussed it with her). When Walker recommended that Tennort be fired, Grove responded, “I need to get with the other managers, and we’ll see what we can do here.” ROA.1289. As McCullom is Grove’s immediate supervisor, it is reasonable to infer that Grove was referring to McCullom, or had to involve McCullom in that decision. Indeed, Grove’s affidavit states that McCullom “concurred” in the decision not to fire Tennort immediately pursuant to the September 2 warning. McCullom’s involvement in the interim decision relating to Tennort’s possible termination on September 2 further supports the reasonable inference that he was involved in her actual termination on September 26.

Viewing the evidence in the light most favorable to the Commission,[8] a jury could reasonably conclude that McCullom must necessarily have been involved in the ultimate decision to fire Tennort on September 26. As evidence reflects that lower-level managers under McCullom’s supervision could not even issue written discipline without his approval, it strains credulity that they could fire an employee without McCullom’s approval or participation, particularly where—as here—McCullom had been involved in every personnel decision relating to Tennort leading up to Rite Way’s termination of her.

Since a reasonable jury could find that McCullom was involved in the decision to fire Tennort, evidence of his knowledge of her protected conduct on August 18 and her termination thereafter is sufficient to establish a causal link for the purpose of the Commission’s prima facie case. See Medina v. Ramsey Steel Co., 238 F.3d 674, 684 (5th Cir. 2001) (holding that evidence of the manager’s knowledge of the plaintiff’s complaint, and his decision to fire the plaintiff thereafter, satisfied the “causal link” element of the prima facie case; concluding that the evidence was “sufficient to demonstrate [the manager]’s knowledge of the complaint and that it was not wholly unrelated to the termination”); Long, 88 F.3d at 306 (evidence established causal link between complaints and the recommendations to fire plaintiffs, where plaintiffs filed complaints about two managers, the two managers became aware of those complaints, and thereafter the managers recommended that the plaintiffs be fired; stating “we have no trouble finding sufficient evidence, for prima facie case purposes, to establish a causal link”).

In addition, the temporal proximity between Tennort’s August 18 statement to McCullom, and her termination approximately five weeks later, on September 26, 2011, also supports a causal link between these events. See, e.g., Hypolite v. City of Houston, Texas, No. 12-20065, 2012 WL 4858198, at *7 (5th Cir. Oct. 15, 2012) (stating that plaintiff’s suspension, which occurred “about two months” after his protected activity, was “within the time frame necessary to establish a causal link”).

III. The evidence would allow a reasonable jury to conclude that Rite Way would not have fired Tennort but for her reporting of Harris’ sexual misconduct.

Under the burden-shifting framework that this Court applies to retaliation claims under Title VII, once the plaintiff has established a prima facie case, the defendant must proffer a non-retaliatory reason for the adverse action. Long, 88 F.3d at 304-05. If the defendant proffers such a reason, the “focus shifts to the ultimate question of whether the defendant unlawfully retaliated against the plaintiff.” Id. at 305 & n.4 (explaining that the “ultimate determination in an unlawful retaliation case is whether the conduct protected by Title VII was a ‘but for’ cause of the adverse employment decision”). To create a triable issue on the ultimate question of retaliation, the evidence must allow a reasonable jury to conclude that Rite Way’s proffered rationale for firing Tennort is “false or ‘unworthy of credence.’” Vaughn v. Woodforest Bank, 665 F.3d 632, 637 (5th Cir. 2011).

Rite Way asserts that it fired Tennort for performance problems, pointing to its issuance of performance warnings before her termination as support for the decision. ROA.868 (asserting that it “terminated Tennort for poor job performance and related customer complaints after providing her with multiple warnings”). Record evidence of the circumstances surrounding Rite Way’s issuance of these written warnings to Tennort—namely, that it issued all of them after her protected activity—would allow a reasonable jury to conclude that poor performance was not the true reason for Rite Way’s termination of her employment, but rather was pretext for retaliating against her. Moreover, other evidence challenges Rite Way’s assertion that she was a poor performer, including the company’s consistent re-hire of Tennort for each successive school year from 2009, including for the 2011-2012 school year, just weeks before firing her for purportedly poor performance.

Under this Court’s precedent, the sudden emergence of purported performance problems after the plaintiff’s protected conduct is indicative of pretext. Medina, 238 F.3d at 685 (holding that triable issue existed as to whether defendant retaliated against plaintiff for his age discrimination complaints, where plaintiff’s “work evaluations changed dramatically after he began complaining” about age discrimination, which was then followed by a suspension, and his eventual termination the following year, despite a long history of positive performance before his complaint); Long, 88 F.3d at 308-09 (where defendant asserted that it fired plaintiff in part for “‘performance-related problems,’” evidence that plaintiff’s past performance evaluations never fell below “‘exceeds’” until after her complaint supported the reasonable inference that the defendant unlawfully retaliated against her); Shirley v. Chrysler First, Inc., 970 F.2d 39, 43 (5th Cir. 1992) (affirming district court’s entry of judgment in favor of plaintiff’s retaliation claim, where plaintiff had no record of performance issues before her protected activity, but was suspended and placed on probation thereafter; stating “[w]e find it surprising that suddenly, after Shirley filed her EEOC complaint, problems with her work surfaced”); Klebe v. Univ. of Texas Health Science Ctr. at San Antonio, No. 10-50458, 2011 WL 5599574, at *1 (5th Cir. Nov. 17, 2011) (holding that evidence of “coincidental timing of the negative evaluations, when Klebe only received negative evaluations after he filed the lawsuit” supported the jury’s finding in favor of the plaintiff’s retaliation claim).

Here, there is no evidence that Rite Way issued any written warnings to Tennort before she reported Harris’ conduct. Rather, Rite Way issued Tennort’s first written warning on August 31, 2011, approximately two weeks after her protected activity on August 18, 2011, and its second warning to Tennort on September 2, 2011.[9] Tennort, who had worked at Rite Way since 2009, also testified that she had never received any written or verbal warnings about her performance before her August 18 statement. This evidence—the timing of discipline to Tennort only after her protected activity—calls into doubt whether she had performance problems warranting discipline or termination, or exhibited performance problems at all.

Indeed, Rite Way rehired Tennort in August 2011 for the 2011-2012 school year, only two months before it fired her on September 26. If Tennort had actual performance or attendance problems, they did not dissuade McCullom from inviting Tennort back for the 2011 school year. ROA.1350 (discussing McCullom’s letter to Tennort, dated May 18, 2011, and testifying that “[w]hoever received one of those letters was [sic] the ones who was [sic] getting rehired for the next school year.”); ROA.1462 (letter to Tennort). Put another way, a jury could infer from Tennort’s rehire for the 2011-2012 school year that she did not have any prior performance problems. Nor did purported performance issues dissuade McCullom from asking Tennort if she could work during the summer of 2011, an offer that Tennort declined so she could spend time visiting family. ROA.1350. Then, in August 2011, Rite Way rehired Tennort for the 2011 school year. ROA.1351.

The close temporal proximity between Tennort’s August 18 written statement and Rite Way’s August 31 written warning also supports the reasonable inference that Rite Way’s warnings are causally related to her witness statement. See LeMaire v. Louisiana Dep’t of Transp. and Dev., 480 F.3d 383, 390 (5th Cir. 2007) (observing that timing of suspension, approximately two weeks after the plaintiff reported harassment, “suggests a causal connection” between the two).

The factual dispute concerning the bases for both the August 31 and September 2 warnings also undermines Rite Way’s assertion that Tennort had performance problems warranting termination. A reasonable jury could choose to believe Tennort’s account, and conclude that Rite Way fabricated or exaggerated what purportedly occurred to form the basis for her termination. See Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 409-10 (5th Cir. 1999) (where defendant asserted plaintiff was fired for hoarding tax returns, but plaintiff disputed defendant’s account of hoarding, finding that a “reasonable jury could choose to believe Shackelford’s account of the events . . . and accordingly conclude that Shackelford did not hoard tax returns”). See also Vaughn, 665 F.3d at 638-40 (where employer asserted it fired plaintiff for inappropriate workplace comments, but her testimony disputed the nature and context of those comments, concluding that “[a] jury could draw inferences from this evidence and reasonably conclude that Woodforest intentionally exaggerated its concern over Vaughn’s ‘unsatisfactory’ conduct and that her workplace comments were not the real reason she was fired”).

Rite Way’s August 31 warning to Tennort stated that she had taken an “improper breaktime,” and that her break was “to be taken prior to the school lunch period.” Tennort testified, however, she had no set meal break because Walker changed it everyday, “when he felt like giving me a break.” ROA.1374. She further testified that on that day, she thought he told her to take her meal break after the school lunch period, not before, though she could not recall with absolute certainty. Id. The warning also stated that Tennort had engaged in “improper insubordination” when she initially refused to empty a trash can. Tennort testified, however, that she responded to Walker’s instruction by informing him she was on break, and then complied with his instruction. Id. (reflecting Tennort’s testimony that she responded by saying something to the effect of, “I was on break, but ‘okay.’”) When asked whether she initially told Walker that she could not empty the trash because she was on break, Tennort answered, “I don’t recall saying it like that, no, ma’am.” Id. Tennort also disputed that she had left a school bathroom dirty, the basis for the September 2 warning. She testified that when she arrived at work at 6 a.m., she cleaned the bathrooms, which were clean by 8 a.m. ROA.1375.

The written warning for Tennort dated September 26, 2011, is marked as being her “3^rd Warning.” ROA.1485; see also ROA 828 (Walker states that he “gave Ms. Tennort a third written warning” on September 26, 2011). This warning also reflects that she was fired on that day, at 2:34 p.m. “in person with Brian and Thomas.” Id. Though the purported basis for the warning was the uncleanliness of one restroom and a water fountain, Tennort asserts that this “was not true because I knew I had cleaned all of those areas.” ROA.999-1000.

Finally, accepting the reasonable inference that McCullom was involved in Tennort’s termination decision, his statements to Tennort at the time of her protected opposition on August 18 constitute evidence of retaliatory intent. Immediately before Tennort was to write down her statement about Harris’ conduct, McCullom told her a story about how he took action against a group of boys, and “[t]o this day they still don’t – don’t nobody mess with me.” ROA.1360. Tennort also testified that McCullom told her at that time, “You know what they do to people who do stuff like this.” Id.

A reasonable juror could infer from McCullom’s comments to Tennort immediately before she was to write her statement that he wanted to dissuade her from doing so, intimidate her, and convey a veiled threat that she would suffer adverse consequences if she wrote the statement. This evidence of suggestive retaliatory action in relation to Tennort’s written statement further supports the inference that Rite Way unlawfully retaliated against her when it fired her. See Medina, 238 F.3d at 679, 685 (holding that summary judgment on plaintiff’s retaliation claim was improper and discussing evidence that plaintiff’s manager had knowledge of his discrimination charge before firing him and told plaintiff at some point after he filed his charge, “I don’t care if you have been with the company five years or fifty years. And I don’t care if you sue me or take me to court. It’s going to be hard for you to collect.”); Shackelford, 190 F.3d at 409 (holding that the totality of evidence was sufficient to preclude summary judgment on the plaintiff’s retaliation claim, where such evidence included that various employees, who were not involved in her termination decision, had warned her not ‘to get involved [in the class action suit against D&T] if you [Shackelford] want to keep your job’”).

The totality of the evidence in this case—Rite Way’s issuance of written warnings only after Tennort’s protected activity on August 18, 2011, the questionable basis for the written warnings themselves, the close temporal proximity of five weeks between Tennort’s protected activity and her termination, and the retaliatory intent reflected by McCullom’s statements to Tennort—are sufficient to create a genuine issue of material fact as to whether Rite Way fired Tennort because of her protected activity. Medina, 238 F.3d at 685 (holding that evidence of dramatic negative change in work evaluations after plaintiff’s protected activity, and a supervisor’s statement from which retaliatory animus could be reasonably inferred, was sufficient to raise a genuine issue of material fact as to whether defendant unlawfully retaliated against plaintiff); Shackelford, 190 F.3d at 409-410 (holding that reasonable juror could conclude that defendant fired plaintiff in retaliation for protected activity, based on factual dispute as to performance issues, statement reflecting retaliatory motive, and suspicious timing of plaintiff’s termination; observing “the combination of suspicious timing with other significant evidence of pretext can be sufficient to survive summary judgment”) (citations omitted).

CONCLUSION

In light of the foregoing, this Court should reverse the district court’s grant of summary judgment to Rite Way and remand the Commission’s retaliation claim for trial.

Respectfully submitted,

P. DAVID LOPEZ

General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

LORRAINE C. DAVIS

Assistant General Counsel

S/Christine J. Back___________________

CHRISTINE J. BACK

Attorney

EQUAL EMPLOYMENT OPPORTUNITY

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131 M Street, NE, Room 5SW24L

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[1] “ROA” refers to the paginated, certified record on appeal.

[2] Grove’s affidavit is also silent as to McCullom’s involvement in the decision that culminated in Tennort’s termination. See ROA.830-31 (reflecting that Grove and Walker discussed Tennort’s termination, but silent as to McCullom’s involvement).

[3] Zastrow v. Houston Auto Imports Greenway Ltd., 789 F.3d 553, 564 (5th Cir. 2015) (de novo review is the standard this Court applies to a district court’s grant of summary judgment).

[4] Though Sayger’s retaliation claim was brought under § 1981, the Eighth Circuit prefaced its analysis by stating that its precedent “establishes that the analysis is the same” for both § 1981 and Title VII retaliation claims, though the language of the provisions differ. Id. at 1030-31. The court of appeals also noted that Title VII cases interpreting opposition conduct are “instructive” in determining whether conduct is protected under §1981, and that statutorily protected activity for a retaliation claim under § 1981 “is conduct covered by Title VII.” Id. at 1031.

In CBOCS West, Inc. v. Humphries, 553 U.S. 442 (2008), the Supreme Court expressly held that § 1981 encompasses a complaint of retaliation. Id. at 451. It also recognized the overlap between Title VII’s antiretaliation provision and § 1981’s prohibition against retaliation in the employment context. Id. at 455. See also Zastrow, 789 F.3d at 564 (“Section 1981 retaliation claims are evaluated under the familiar three-part test” for analyzing retaliation claims under Title VII).

[5] The Eighth Circuit’s “vindication of rights” phrase, specific to retaliation claims arising under §1981 and §1982, is not contained in the statutes themselves, but appears to draw from Sullivan v. Little Hunting Park, Inc., 396 U.S. 229 (1969), in which the Supreme Court held that the plaintiff brought a cognizable §1982 retaliation claim. In Sullivan, a white plaintiff was expelled from a housing corporation after protesting the corporation’s refusal to approve the assignment of his property lease to an African American family. In that context, the Court stated that if such retaliation were permitted, “then Sullivan is punished for trying to vindicate the rights of minorities protected by s 1982. Such a sanction would give impetus to the perpetuation of racial restrictions on property.” Sullivan, 396 U.S. at 237.

[6] A petition for certiorari was filed in this case on June 3, 2015 (No. 14-1426).

[7] That Tennort did not wait to witness more harassing behavior before submitting her written statement cannot form the basis for this Court to hold that Tennort lacked objective reasonableness in this case. That is because, here, it was Rite Way that prompted, and thus controlled, the timing of her report.

Moreover, given the legal schema unique to harassment cases arising under the Supreme Court’s Faragher and Ellerth decisions, this Court has acknowledged that “the Ellerth/ Faragher design ‘works only if employees report harassment promptly, earlier instead of later, and the sooner the better.’” Boh Bros. 731 F.3d at 463, n. 19 (citation omitted). See also Ellerth, 524 U.S. at 764 (“To the extent limiting employer liability could encourage employees to report harassing conduct before it becomes severe or pervasive, it would also serve Title VII’s deterrent purpose.”). Those principles, applied in the context of third party witnesses, also counsel in favor of applying the reasonable belief test in such a way that encourages employees to report harassing conduct early and correspondingly avoids requiring an employee to wait until the harassing behavior has escalated to report it. See Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 282-83 (4th Cir. 2015) (en banc) (overruling earlier formulation of reasonable belief standard that had excluded from opposition clause protection complaints of an isolated incident of harassment insufficient on its own to create a hostile work environment unless the employee submitted evidence of a plan in motion to create a hostile work environment or that one was likely to occur; emphasizing that “rather than encourage the early reporting vital to achieving Title VII’s goal of avoiding harm, [the court’s former] standard deters harassment victims from speaking up”).

[8] Vaughn v. Woodforest Bank, 665 F.3d 632, 635 (5th Cir. 2011) (when reviewing a grant of summary judgment, this Court “draw[s] all reasonable inferences in [the non-movant]’s favor and do[es] not weigh the evidence or make credibility determinations. We also disregard any evidence favorable to [the movant] that the jury is not required to believe.”) (internal citations omitted).

[9] Rite Way asserted that two other documents, both dated August 26, 2011, and signed by Walker, were additional warnings that had been issued to Tennort. ROA.873-74, Rite Way SJ Memo of Law (asserting that Rite Way issued two warnings on August 26, 2011). Rite Way manager Walker, however, referred to the August 31, 2011, warning as the first written warning he had given to Tennort. ROA.827 (discussing basis for the August 31, 2011, warning, and stating “I gave Ms. Tennort a first written warning for her job performance and insubordination as a result of this incident”). Moreover, Tennort testified that she had never received any written or verbal warnings about her performance or attendance before her August 18th statement. ROA.1401. Tennort also stated that she had never seen the two warnings dated August 26, 2011, until after Rite Way fired her and she saw them in her personnel file. ROA.1000. In any event, even these contested August 26, 2011, warnings were issued after Tennort’s August 18 statement.

STATEMENT CONCERNING ORAL ARGUMENT

TABLE OF CONTENTS

TABLE OF AUTHORITIES

STATEMENT OF JURISDICTION

STATEMENT OF THE ISSUES

STATEMENT OF THE CASE

I. Nature of the Case and Course of Proceedings

II. Statement of Facts

III. District Court Decision

SUMMARY OF ARGUMENT

ARGUMENT

I. Tennort’s reporting of Harris’ sexual misconduct, in response to Rite Way’s

inquiry, is protected opposition within the meaning of Title VII’s antiretaliation provision.

A. As Tennort’s conduct has the characteristic features of protected opposition under Crawford, this Court should hold that Tennort’s conduct is protected under the statute’s opposition clause.

B. A witness to harassing behavior, who then reports it in response to an employer’s inquiry, need not establish an objectively reasonable belief that the behavior was unlawful for the complaint to be protected under Title VII.

1. Imposing a reasonable belief test to witness accounts arising during an internal investigation would frustrate the purpose of the statute.

3. To apply a reasonable belief test to a witness statement in an internal investigation misapprehends the role of witnesses in the fact-finding process and would leave employees in an untenable position.

C. Even applying the reasonable belief test to Tennort’s statement, the record evidence is sufficient to show that she had an objectively reasonable basis to believe that Harris’ conduct was unlawful.

II. The evidence is sufficient to establish a prima facie case of retaliation.

III. The evidence would allow a reasonable jury to conclude that Rite Way would not have fired Tennort but for her reporting of Harris’ sexual misconduct.

CONCLUSION

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