Table of Authorities

Cases Page(s)

Ancheril v. Dep’t of Mental Retardation,

342 F. App’x 659 (2d Cir. 2009)............................................. 19

Baraket v. Holder,

632 F.3d 56 (2d Cir. 2011)...................................................... 20

Booker v. Brown & Williamson Tobacco Co.,

879 F.2d 1304 (6th Cir. 1989)................................................ 13

Burlington N. & Santa Fe Ry. Co. v. White,

548 U.S. 53 (2006)................................................................... 21

Correa v. Mana Prods., Inc.,

550 F. Supp. 2d 319 (E.D.N.Y. 2008).................................... 18

Cosgrove v. Sears, Roebuck & Co.,

9 F.3d 1033 (2d Cir. 1993)...................................................... 16

Deravin v. Kerik,

335 F.3d 195 (2d Cir. 2003)............................................. 17, 18

Grant v. Hazlett Strip-Casting Corp.,

880 F.2d 1564 (2d Cir. 1989)................................................. 15

Gregory v. Daly,

243 F.3d 687 (2d Cir. 2001)................................................... 16

Hatmaker v. Mem. Med. Ctr.,

619 F.3d 741 (7th Cir. 2010).................................................. 14

Holt v. Continental Grp., Inc.,

708 F.2d 87 (2d Cir. 1983)...................................................... 22

Kelly v. Howard I. Shapiro & Assoc. Consulting Eng’rs, P.C.,

716 F.3d 10 (2d Cir. 2013)............................................. 7, 8, 10

Kessler v. Westchester Cnty. Dep’t of Social Servs.,

461 F.3d 199 (2d Cir. 2006)......................................... 6, 16, 20

Manoharan v. Columbia Univ. Coll. of Physicians & Surgeons,

842 F.2d 590 (2d Cir. 1988)............................................. 15, 16

Mattson v. Caterpillar, Inc.,

359 F.3d 885 (7th Cir. 2004).................................................. 14

McMenemy v. City of Rochester,

241 F.3d 279 (2d Cir. 2001)................................................... 12

Merritt v. Dillard Paper Co.,

120 F.3d 1181 (11th Cir. 1997)............................................. 14

Nat’l R.R. Pass. Corp. v. Morgan,

536 U.S. 101 (2002)................................................................. 16

Pettway v. Am. Cast Iron Pipe Co.,

411 F.2d 998 (5th Cir. 1969)........................................... 12, 13

Quinn v. Green Tree Credit Corp.,

159 F.3d 759 (2d Cir. 1998) ...................................... 16, 17, 20

Rivera v. Rochester Genesee Reg’l Transp. Auth.,

743 F.3d 11 (2d Cir. 2013)...................................................... 16

Robinson v. Shell Oil Co.,

519 U.S. 337 (1997).......................................................... 12, 21

Rodas v. Town of Farmington,

No. 13-338, 2014 WL 2056325 (2d Cir. May 20, 2014)..... 19

Sarno v. Douglas Elliman-Gibbons & Ives, Inc.,

183 F.3d 155 (2d Cir. 1999)................................................... 17

Sumner v. U.S. Postal Serv.,

899 F.2d 203 (2d Cir. 1990)................................................... 16

Townsend v. Benjamin Enters., Inc.,

679 F.3d 41 (2d Cir. 2012)............................................... 10, 19

Treglia v. Town of Manlius,

313 F.3d 713 (2d Cir. 2003) .................................................. 17

Womack v. Munson,

619 F.2d 1292 (8th Cir. 1980)................................................ 13

Wyatt v. City of Boston,

35 F.3d 13 (1st Cir. 1994)....................................................... 11

Statutes

29 U.S.C. §§ 623 et seq. .................................................................... 15

29 U.S.C. § 623(d).............................................................................. 15

42 U.S.C. §§ 2000e et seq.................................................................... 1

42 U.S.C. § 2000e-3(a)............................................................ 1, 10, 11

42 U.S.C. § 12203(a)......................................................................... 17

Rules

Fed. R. App. P. 29(a)............................................................................ 1

Other Authority

EEOC Compliance Manual, No. 915-003,

Section 8 – Retaliation (1998)......................................... 10, 11

3 Arthur Larson & Lex K. Larson,

Employment Discrimination § 87.12(b) (1994)................... 11

Statement of Interest

The Equal Employment Opportunity Commission is the agency charged by Congress with responsibility for enforcing the federal prohibitions on employment discrimination, including Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. As a federal agency, the Commission is authorized to participate as amicus curiae in the courts of appeals. Fed. R. App. P. 29(a).

In Title VII, Congress broadly prohibited retaliation against individuals who participate in Title VII’s remedial mechanism by filing charges with the Commission or who testify, assist, or participate in any manner in an investigation, proceeding, or hearing under the statute. 42 U.S.C. § 2000e-3(a). More generally, Congress also prohibited retaliation against individuals who oppose practices “made . . . unlawful” by Title VII. Id. The instant appeal raises the question of whether the requirement for protection under the narrower opposition clause—that an individual meet the “made . . . unlawful” prong by showing she had a good faith, objectively reasonable belief that the conduct she is opposing is unlawful under the statute—is also a requirement for protection against retaliation under the broader participation clause.

The Commission submits that conditioning protection against retaliation for “participation” conduct such as charge filing on such a showing, as the district court did here, is contrary to the plain language of the statute and would weaken the vital protection against retaliation afforded charge filers. Because of the importance of this issue to the effective enforcement of Title VII and the unsettled nature of this question in this Court, the Commission respectfully offers its views.

Statement of the Issue[1]

Whether the district court erred in relying on the opposition clause standard to conclude that Grant cannot establish that she engaged in protected activity under Title VII when she filed a charge of discrimination with the Commission.

Statement of the Case

1. Statement of Facts.

In 2000, plaintiff Sherry Grant began working for defendant United Cerebral Palsy of New York City, Inc. (“UCP”). District Court Docket Number (“R.”) 81 at 2. UCP is a private, not-for-profit agency that provides full-time care for individuals—termed “consumers”—with developmental disabilities. Id. UCP manages apartment residences throughout New York City, staffing these facilities with Resident Program Specialists who provide direct care to the consumers. Id.

Until July 2009, Grant held the position of Resident Program Specialist at UCP’s “Landings” residence. Id. From November 2006 to July 2008, Grant was supervised by Program Director Kevin Cameron, and from November 2008 until 2012 by Everett Watts, Cameron’s replacement in the Program Director position. Id. Grant was also supervised by Yurella Lopez, who was the Residence Manager at Landings from November 2007 to April 2011. Id.

In 2007, Cameron promoted Resident Program Specialist Marilyn Kelly-Braithwaite from an on-call position to a thirty-hour position, without interviewing any other candidates for the position. Grant had expressed interest in the position, and believed that she was more qualified for the position than Kelly-Braithwaite, given that Kelly-Braithwaite had only been employed with UCP for a few months while Grant had been employed with UCP for seven years. R.81 at 3. Grant had also been told that Cameron and Kelly-Braithwaite were involved in a sexual relationship. Id. When Grant confronted Cameron about the situation, he removed Kelly-Braithwaite from the position and awarded it to Grant. Id.

Grant alleged that in most of her interactions with Cameron, he spoke to Grant in “a nasty, harsh, abrupt, condescending, rude, and domineering manner.” R.68 at 3. Grant further alleged that Cameron also spoke in this manner to other female employees, but spoke in a “polite and respectful way” to male employees. Id. In June 2008, Grant met with Cameron regarding his treatment of her and other women. R.81 at 3. Grant also complained to Cameron at several staff meetings that he treated females differently than males. R.81 at 4.

In July 2009, after Watts replaced Cameron as Program Director at Landings, Watts transferred Grant to a different location, with an accompanying increase in her workload and management scrutiny. R.81 at 3. The parties disagree as to why Watts transferred Grant—UCP asserts that the transfer was in response to a complaint from a consumer, R.81 at 4, but Grant denies the allegations presented by the consumer and instead asserts that the transfer was in retaliation for her earlier complaints about sex discrimination by Cameron, R.68 at 7.

On August 28, 2009, Grant filed a charge of discrimination with the New York State Division of Human Rights (“NYSDHR”), alleging sex discrimination and retaliation in violation of state law and Title VII. R.46-1 at 2-7. Grant’s charge of discrimination was also simultaneously filed with the Commission. R. 46-1 at 2, 6. Over the next several months, UCP issued Grant several written warnings for her job performance. R.81 at 4-5. On March 12, 2010, Grant filed a second charge of discrimination with the state and the Commission, again alleging sex discrimination and retaliation, including an allegation that “after [filing] the [August 28, 2009] EEO claim,” UCP “continued with constant monitoring and scrutiny and unwarranted disciplinary actions” against her. R.46-1 at 17.

After the NYSDHR found no probable cause to believe that Grant had been discriminated against as alleged in her August 28, 2009, charge, she requested and was granted notices of right to sue from the state and the Commission as to both of her charges. R.46-1 at 20-29. In her complaint in federal district court, Grant alleged that she was retaliated against by UCP, in violation of state law and Title VII, both for her complaining about Cameron’s treatment of her and “for filing an EEOC claim.” R.1 at 6. Grant also presented state and federal claims of sex-based disparate treatment and a hostile work environment. R.1 at 6-7.

2. District Court Decision.

The district court granted summary judgment to UPC on all of Grant’s claims. R.81 at 1-2. In relevant part, the court concluded that Grant’s retaliation claims failed because she could not establish that, at the time she made either her internal complaint regarding Cameron’s conduct or her first formal charge of discrimination, she “possessed the requisite objectively reasonable, good faith belief that UCP was violating Title VII.” R.81 at 21.

The court stated that to establish a prima facie case of retaliation, the plaintiff must have engaged in protected activity, adding that to establish this element “the plaintiff must ‘have a good-faith, reasonable belief that [s]he was opposing an employment practice made unlawful by Title VII.’” R.81 at 18 (citing Kessler v. Westchester Cnty. Dep’t of Soc. Servs., 461 F.3d 199, 210 (2d Cir. 2006)). “‘[M]ere subjective good faith belief is insufficient; the belief must be reasonable and characterized by objective good faith.’” R.81 at 18 (citing Kelly v. Howard I. Shapiro & Assoc. Consulting Eng’rs, P.C., 716 F.3d 10, 16 (2d Cir. 2013) (emphasis in original)).

The court stated that Grant’s retaliation claims “are the most sympathetic of her claims because the record, viewed in the light most favorable to [Grant], does suggest that [UCP] may have been creating a record to justify [Grant’s] eventual placement on administrative leave.” R.81 at 19. “However,” the court continued, “what is critically missing

. . . is evidence sufficient to allow a reasonable jury to believe that [Grant] was disciplined because she engaged in ‘protected activity,’ as it has been interpreted by the courts.” Id. In particular, the court stated, the evidence does not support a finding that [Grant] complained about what objectively could be viewed as gender discrimination, rather than personal animosity or unfair treatment unrelated to her gender.” Id. The court concluded that there was no evidence that Grant’s discussion with Cameron about his different treatment of Grant, as compared to her male colleagues, “was intended as an assertion that UCP was violating the law or was understood by UCP as such an assertion,” and no evidence that would permit a reasonable jury to conclude that a reasonable person in Grant’s position would have concluded that Cameron’s conduct created a hostile work environment. R.81 at 21.

The court similarly concluded that Grant could not establish that “she possessed the requisite objectively reasonable, good faith belief that UCP was violating Title VII” when she filed her first charge. Id. The court characterized the charge as “not referenc[ing] any actions on the part of UCP that could be understood by a reasonable person in [Grant’s] situation, or by UCP, as discrimination on the basis of sex or any other protected characteristic.” Id. (citing Kelly, 716 F.3d at 15-17). The court noted that while Grant alleged in her charge that she had been transferred and treated differently than a female coworker, “she did not offer any explanation of why either of these alleged acts constituted sex discrimination, nor did she even state that the actions were taken because of her sex.” Id. The court also discussed at length how this Court’s decision in Kelly, a case arising under the opposition clause, supported a similar resolution in the instant matter. R.81 at 21-22. The court added that the charge was insufficient to allow UCP to “have a reasonable understanding that [Grant’s] complaint was directed at conduct prohibited by Title VII.” R.81 at 23.

The court did not address whether Grant had engaged in protected activity when she filed her second charge because all of the allegedly retaliatory conduct at issue in this case occurred before she filed her second charge. Id.

Argument

The district court erred in relying on the opposition clause standard to conclude that Grant cannot establish that she engaged in protected activity under Title VII when she filed a charge of discrimination with the Commission.

The district court made no distinction between Grant’s informal discussions with Cameron and her formal act of filing a charge with the Commission and the NYSDHR when it evaluated whether she had engaged in protected activity. In merging the two actions, the court erred, for Title VII by its plain terms distinguishes between the two types of actions.

Section 704(a) of Title VII provides that “[i]t shall be an unlawful employment practice for an employer to discriminate against any of his employees. . . 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). As such, “Title VII contains both an opposition clause and a participation clause.” Townsend v. Benjamin Enters., Inc., 679 F.3d 41, 48 (2d Cir. 2012).

By its terms, Title VII limits its protection for opposition conduct to opposition to practices “made . . . unlawful” by the statute. 42 U.S.C. § 2000e-3(a). Accordingly, to be protected from retaliation under the opposition clause, an individual must both engage in some type of opposition conduct and possess a good faith, reasonable belief that the conduct she is opposing is unlawful under the statute. See, e.g., Kelly, 716 F.3d at 14 (“An employee’s complaint may qualify as protected activity . . . ‘so long as the employee has a good faith, reasonable belief that the underlying challenged action of the employer violated the law.’”) (citation omitted); EEOC Compliance Manual, Section 8 – Retaliation (“Compliance Manual”), No. 915-003, at § 8-II(B)(3)(b) (1998) (available at http://www.eeoc.gov/policy/docs/retal.html) (last visited July 15, 2014) (“A person is protected against retaliation for opposing perceived discrimination if s/he had a reasonable and good faith belief that the opposed practices were unlawful.”).

There is no good faith, reasonable belief requirement or other limiting language for protection under Title VII’s participation clause. Under the participation clause, the statute requires only that an individual engage in an identified protected activity, and does not condition protection for participation on any other criteria. 42 U.S.C. § 2000e-3(a); see also Compliance Manual, at § 8-II(C)(2) (“While the opposition clause applies only to those who protest practices that they reasonably and in good faith believe are unlawful, the participation clause applies to all individuals who participate in the statutory complaint process.”). The statute accords protection under the participation clause for filing a charge of discrimination “regardless of the validity or reasonableness of the charge.” Compliance Manual, at § 8-II(C)(2); see also Wyatt v. City of Boston, 35 F.3d 13, 15 (1st Cir. 1994) (“[T]here is nothing in [the participation clause’s] wording requiring that the charges be valid, nor even an implied requirement that they be reasonable.”) (citing 3 Arthur Larson & Lex K. Larson, Employment Discrimination § 87.12(b), at 17-95 (1994)). The statute does not qualify that protection by requiring that the charge must have been meritorious, or that the charging party must have reasonably believed that a Title VII violation occurred.[2]

Courts directly addressing the question have long recognized the substantial breadth of protection provided by Title VII’s participation clause. In Pettway v. American Cast Iron Pipe Co., 411 F.2d 998, 1005 (5th Cir. 1969), the Fifth Circuit highlighted the central role charges filed with the Commission play in the enforcement of Title VII and the chilling effect employer retaliation would have on the willingness of employees to file charges. The court held that the statute forbids retaliation against an employee because he has filed a charge, even if the charge contains allegations that are false and malicious.[3] Id. at 1007.

Similarly, in Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304 (6th Cir. 1989), the Sixth Circuit recognized that the “‘exceptionally broad protection’ of Title VII’s participation clause extends to persons who have ‘participated in any manner’ in Title VII proceedings,” regardless of the merits of the charge or even if the contents of the charge are malicious and defamatory. Id. at 1312 (citing Pettway, 411 F.2d at 1006-07; Womack v. Munson, 619 F.2d 1292, 1298 (8th Cir. 1980)). “Thus,” the court concluded, “once the activity in question is found to be within the scope of the participation clause, the employee is generally protected from retaliation.” Id. The court directly contrasted this broad protection for participation conduct with, “on the other hand,” opposition conduct, where “the means of opposition have been narrowly construed” and the individual is required to “have a good faith belief that the practice is unlawful.” Id. (citations omitted).

Consistent with this principle of broad protection for participation activity, in Merritt v. Dillard Paper Co., 120 F.3d 1181 (11th Cir. 1997), the Eleventh Circuit held that the district court erred in imposing conditions on the type of testimony or participation that merits protection against retaliation. Id. at 1185-89. The court refused to place any limitation on participation protection based on the motive of the individual seeking such protection, stating, “Courts have no authority to alter statutory language.”[4] Id. at 1187.

This Court does not appear to have addressed explicitly the question of whether the standard applicable to opposition clause claims should also apply to participation clause claims.[5] Nevertheless, this Court’s decisions have followed two different paths, creating some confusion on the issue. In one line of cases, this Court invoked the opposition clause standard when discussing participation-clause-based retaliation claims, but without explaining why that standard should apply in the participation context. This Court first did so in Grant v. Hazlett Strip-Casting Corp., 880 F.2d 1564, 1569 (2d Cir. 1989),[6] where this Court relied on its earlier decision in Manoharan v. Columbia Univ. Coll. of Physicians & Surgeons, 842 F.2d 590, 593 (2d Cir. 1988). Manoharan was an opposition clause case, however, and in Manoharan this Court relied on decisions in opposition-clause-based cases from other circuits in applying the good faith, reasonable belief standard. Manoharan, 842 F.2d at 593 n.1 (citing cases).

Following Grant, this Court continued to mention the good faith, reasonable belief standard in participation clause cases, even where the plaintiff’s satisfaction of that standard was not at issue and without ever addressing whether the standard should be applied to participation-clause-based claims. See, e.g., Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11, 24 (2d Cir. 2013); Kessler v. Westchester Cnty. Dep’t of Social Servs., 461 F.3d 199, 210 (2d Cir. 2006); Gregory v. Daly, 243 F.3d 687, 700-01 (2d Cir. 2001); Quinn v. Green Tree Credit Corp., 159 F.3d 759, 769 (2d Cir. 1998), overruled on other grounds by Nat’l R.R. Pass. Corp. v. Morgan, 536 U.S. 101, 108-15 (2002); Cosgrove v. Sears, Roebuck & Co., 9 F.3d 1033, 1039 (2d Cir. 1993); Sumner v. U.S. Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990). In these cases, this Court has discussed this standard as a requirement for Title VII retaliation claims generally, and not merely as a specific requirement for plaintiffs claiming protection under either the opposition or participation clause.[7]

Other retaliation cases follow a different path, and suggest that if squarely presented with the question, this Court would hold that protection under the participation clause is not conditioned on the individual’s having a good faith, reasonable belief that Title VII has been violated. In Deravin v. Kerik, 335 F.3d 195, 203-04 (2d Cir. 2003), this Court observed that it has been “consistently recognized” that “the explicit language of § 704(a)’s participation clause is expansive and seemingly contains no limitations,” covering “even involuntary participation in Title VII proceedings by an employee accused of sexual harassment.” “Because the primary purpose of Title VII’s anti-retaliation clause is to maintain unfettered access to Title VII’s remedial mechanisms,” the Deravin Court stated, it may well advance the remedial purpose of Title VII to shield all participation, including participation by an employee [(such as Deravin)] accused of illegal discrimination, to ensure the overall integrity of the administrative process and ensure truthful testimony.” Id. at 204 (citations omitted). In so concluding, the Court made no mention of imposing a good faith, reasonable belief standard on participation conduct. See id. at 203-04.

At least one court has interpreted Deravin to support the proposition that “[a] person does not have to actually believe the underlying discrimination complaints of a Title VII proceeding to be protected under the participation clause” and therefore a “plaintiff’s admission that she did not believe the underlying claims of discrimination would not preclude her from Title VII protection as a matter of law under the ‘participation clause.’” Correa v. Mana Prods., Inc., 550 F. Supp. 2d 319, 329 (E.D.N.Y. 2008) (citing Deravin, 335 F.3d at 204).

In other cases, this Court has avoided resolving a participation-clause-based claim on the grounds that the plaintiff lacked a good faith reasonable belief that the employer violated Title VII. In Rodas v. Town of Farmington, No. 13-338, 2014 WL 2056325, at *1 (2d Cir. May 20, 2014) (unpubl.), for example, this Court held that the plaintiff was not protected under the opposition clause on the basis of his internal complaints to his employer because he lacked an “objectively reasonable belief” that the complained-of conduct violated Title VII. However, the court also noted that it was “undisputed” that when the plaintiff filed a charge with the Commission he had “engaged in protected activity.” Id. In Ancheril v. Dep’t of Mental Retardation, 342 F. App’x 659 (2d Cir. 2009) (unpubl.), this Court similarly disaggregated the claimed opposition and participation conduct, concluding that the plaintiff lacked the requisite good faith, reasonable belief in a statutory violation to support the former, and that the claim based on the latter failed because of a lack of evidence showing a causal connection between the conduct and the adverse action. Id. at 660; see also Townsend, 679 F.3d at 44, 48-51 (Human Resources Director allegedly fired for investigating another individual’s internal complaint of discrimination conceded she had not “opposed” unlawful conduct because she did not know whether the individual’s allegations were true; this Court did not affirm based on the plaintiff’s concession, but instead assessed whether such internal investigations constituted “participation”).

While these two lines of cases suggest a possible intra-Circuit split more appropriate for en banc resolution, the Commission’s review of this Court’s cases indicates that the proper standard for participation cases is in fact an open question in this Circuit. In cases where this Court examined whether the plaintiff satisfied the more difficult good faith, reasonable belief standard, this Court has concluded that the plaintiff satisfied that standard. See Kessler, 461 F.3d at 210; Quinn, 159 F.3d at 769. The Commission has found no decision by this Court where the court ruled against a plaintiff’s participation clause claim on the basis of her inability to satisfy the good faith, reasonable belief standard. Accordingly, because application of the good faith, reasonable belief standard would not have changed the outcome of these cases, the proper participation clause standard remains an open question in this Circuit. See Baraket v. Holder, 632 F.3d 56, 59 (2d Cir. 2011).

Whether resolved by a panel of this Court or by the full Court, it is of particular concern to the Commission that imposing an extra-statutory limitation on the breadth of protection against retaliation Congress provided for filing a charge could adversely impact the Commission’s Title VII enforcement efforts. The protection afforded by the participation clause is critical to Title VII’s enforcement scheme, which depends almost entirely on encouraging individuals who suspect discrimination or retaliation to file charges. As the Supreme Court has held, protecting employees from retaliation for filing charges serves the important purpose of “[m]aintaining unfettered access to statutory remedial mechanisms.” Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997). “Title VII depends for its enforcement upon the cooperation of employees who are willing to file complaints and act as witnesses. ‘Plainly, effective enforcement could thus only be expected if employees felt free to approach officials with their grievances.’ Interpreting the antiretaliation provision to provide broad protection from retaliation helps ensure the cooperation upon which accomplishment of the Act’s primary objective depends.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006) (citation omitted).

Unless individuals who file charges can be assured that they have protection against employer retaliation, EEOC’s sources of information about potentially unlawful practices will dry up. See, e.g., Holt v. Continental Grp., Inc., 708 F.2d 87, 91 (2d Cir. 1983) (retaliatory discharge may deter other employees from protecting their own rights or testifying about discrimination against others). Qualified protection for individuals who file charges alleging Title VII violations would give individuals grounds to fear that they could be subjected to retaliation unless they had an ironclad claim. Any doubt could well discourage individuals from coming forward.

In sum, the plain language of Title VII and the purpose of the participation clause counsel in favor of interpreting that clause broadly to protect Title VII charge filers from retaliation for the critical act of filing a charge with the Commission, without regard for whether the allegations in the charge are later deemed valid or reasonable.

Conclusion

For the foregoing reasons, the Commission respectfully requests

that the Court hold that Grant engaged in protected activity when she filed a charge of discrimination.

Respectfully submitted,

P. DAVID LOPEZ

General Counsel

CAROLYN L. WHEELER

Acting Associate General Counsel

JENNIFER S. GOLDSTEIN

Acting Assistant General Counsel

/s/ Barbara L. Sloan

BARBARA L. SLOAN

Attorney

U.S. EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

131 M St. NE, Rm. 5NW10P

Washington, D.C. 20507

(202) 663-4721

Barbara.Sloan@EEOC.gov

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

[2] This Court has previously deferred to the Commission’s interpretation, in the Compliance Manual, of the breadth of coverage afforded by Title VII’s participation clause, concluding that the Commission’s interpretation of the provision was “persuasive because it is consistent with the plain language of Title VII . . . [and] a primary purpose of the retaliation clause: ‘[m]aintaining unfettered access to [Title VII’s] remedial mechanisms.’” McMenemy v. City of Rochester, 241 F.3d 279, 283-84 (2d Cir. 2001) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997)). McMenemy involved a different issue, but the Commission’s interpretation of the participation clause in this case is similarly consistent with the plain statutory language and the clause’s primary purpose.

[3] There has been no suggestion made that Grant’s charges were false or malicious. See R.81 at 19-23. The question before the district court was simply whether the allegations contained within the charges could establish a Title VII violation.

[4] The Seventh Circuit has limited the protection afforded by the participation clause in situations where the individual’s participatory conduct was “utterly baseless.” Mattson v. Caterpillar, Inc., 359 F.3d 885, 889-91 (7th Cir. 2004). An “utterly baseless” charge would encompass one filed maliciously, see id., or one consisting of defamatory statements, “frivolous accusations, or accusations grounded in prejudice” that lack any basis in fact. Hatmaker v. Mem. Med. Ctr., 619 F.3d 741, 745-46 (7th Cir. 2010). The Commission disagrees with these decisions as inconsistent with the language of the participation clause. In any event, there is no allegation or evidence that Grant filed her charge maliciously or in bad faith, and so the Seventh Circuit’s “utterly baseless” standard would not apply.

[5] While the district court’s analysis of Grant’s participation-clause-based retaliation claims relied primarily on this Court’s decision in Kelly, Kelly involved a claim of retaliation based on the opposition clause, not the participation clause. See R.81 at 21-23 (citing almost exclusively to Kelly); Kelly, 716 F.3d at 13-14 (describing the internal complaints of discrimination which served as the basis for the plaintiff’s retaliation claim).

[6] Grant was a participation-clause case brought under the Age Discrimination in Employment Act, 29 U.S.C. §§ 623 et seq. (ADEA). Grant, 880 F.2d at 1568-69. However, the ADEA provides substantially identical protection against retaliation as Title VII provides. Compare 29 U.S.C. § 623(d) (“It shall be unlawful for an employer to discriminate against any of his employees . . . because such individual . . . has opposed any practice made unlawful by this section, or because such individual . . . has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation under this chapter.”), with 42 U.S.C. § 2000e-3(a) (“It shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . 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.”).

[7] This Court has similarly applied, without explanation, the opposition clause standard to claims of retaliation for participation conduct that were brought under the Americans with Disabilities Act, 42 U.S.C. § 12203(a), which contains language substantially the same as Title VII’s anti-retaliation provision. See Treglia v. Town of Manlius, 313 F.3d 713, 719-20 (2d Cir. 2003) (applying good faith, reasonable belief standard in ADA participation-clause-based retaliation claim); Sarno v. Douglas Elliman-Gibbons & Ives, Inc., 183 F.3d 155, 159-60 (2d Cir. 1999) (mentioning good faith, reasonable belief standard in context of ADA participation-based retaliation claim, and assuming for sake of argument that it had been satisfied) (citing Quinn, 159 F.3d at 769).