EEOC-Initiated Litigation - 2022 Edition

© 2022 Seyfarth Shaw LLP EEOC-Initiated Litigation: 2022 Edition | 47 “ crusade” to fire her. But the facts showed that whatever actions that may have been taken as part of that crusade were taken within the ranks of HR personnel and other managers and the charging party was not even aware of them. The court held that this was fatal to her retaliation claim because it meant that those actions could not dissuade a reasonable worker from making or supporting a charge of discrimination: “ Because [charging party] has not shown that she was aware of the efforts as they were occurring, she cannot establish genuine issue that conduct like [manager ’ s] would dissuade a reasonable employee from engaging in protected activity since a rational factfinder would not find that someone could be dissuaded by something she was not aware of.” 352 The EEOC has also actively pushed the boundaries of what counts as actionable retaliation by submitting amicus curiae briefs in cases of interest. For example, in McAllister v. Curtis L. Brunk, the EEOC filed an amicus brief, in support of neither party, to address the District Court’s application and construction of various legal standards. 353 The EEOC’s brief clarified that the reasonable belief standard applies only to the opposition clause and does not apply to the participation clause, 354 which protects the filing of a discrimination charge with the EEOC from retaliation, whether or not the charge is ultimately found meritorious. 355 The EEOC also clarified that the District Court incorrectly analyzed plaintiff’s adverse action retaliation claim under the standard applied to substantive discrimination claims brought under Title VII, rather than the broader and more liberal “adverse action” standard applied to Title VII retaliation claims . 356 The EEOC has also filed amicus briefs in recent years to clarify the meaning of an “ultimate employment action” in the context of retaliation claims, 357 as well as the concepts of “protected participation” and “protected opposition. ” 358 352 Id. 353 Brief for Equal Employment Opportunity Commission as Amici Curiae Supporting Neither Party, at 1, 14-17 , McAllister v. Curtis L. Brunk, No. 18-17393 (9th Cir.). The lower Court ruled that both the participation and opposition clauses require a plaintiff to demonstrate a reasonable belief that the employer’s conduct violated Title VII. Id. at 7. 354 Id. at 12-13 (compiling majority of circuit opinions in agreement). 355 Id. at 10-11. In the Ninth Circuit, “an employer may not retaliate for the filing or threatened filing of an EEOC charge regardless of whether the charging party reasonably believes that he is complaining about a violation of Title VII.” Id. at 9. 356 The EEOC argued that a retaliation plaintiff need only show “that a reasonable employee would have found the challenged action materially adverse, ‘which in this context means it might well have dissuaded a reasonable worker from making or supporting a charge of discrimination.’” Id. at 13 (quoting Burlington N. & Santa Fe Ry. Co. v. White , 548 U.S. 53, 68 (2006)) (citations and some internal quotation marks omitted). 357 The EEOC filed an amicus curiae brief in Stancu v. Hyatt Corporation/Hyatt Regency Dallas , arguing that the district court incorrectly granted summary judgment on the plaintiff’s retaliation claim for failure to show an “ultimate employment decision.” Brief of the Equal Employment Opportunity Commission as Amicus Curiae in Support of Appellant and in Favor of Reversal, at *4-5, Stancu v. Hyatt Corporation/Hyatt Regency Dallas , No. 18-11279, 2019 WL 1013132 (5th Cir.), appealed from No. 3:17-CV-675 and 3:17-CV-2918 (N.D. Tex.), affirmed by Stancu v. Hyatt Corporation/Hyatt Regency Dallas , 791 F. App’x. 446, 451 n.1 (5th Cir. 2019) (finding that plaintiff’s retaliation claims failed, even when applying the correct adverse action standard advocated by the EEOC). The EEOC explained that the “ultimate employment decision” standard applies to substantive discrimination claims, and not to retaliation claims. Id. at *6. Most importantly, the EEOC argued, in applying the “ultimate employment decision” test, the lower Court misapplied the Supreme Court’s precedent in the retaliation context, which dictates that a materially adverse action is one that “might well have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Id. at *8-9 (citing Burlington Northern , 548 U.S. at 68). 358 The EEOC filed an amicus brief in Gogel v. Kia Motors Manufacturing of Georgia, Inc. to address the District Court’s decision to grant summary judgment to an employer on a retaliation claim. En Banc Brief of the U.S. Equal Employment Opportunity Commission as Amicus Curiae in Support of Plaintiff-Appellant and Reversal, Gogel v. Kia Motors Mfg. of Ga., Inc. , No. 16-16850 (11th Cir.), appealed from , No. 3:14-CV-00153 (N.D. Ga.), granting rehearing en banc, 926 F.3d 1290 (11th Cir. June 17, 2019). The EEOC argued, among other things, that a jury could find that the employee engaged in protected participation when she filed an EEOC charge, as well as protected opposition when complaining of sex discrimination to managers and assisting a colleague with an EEOC charge by providing the name of an attorney. Id. at *20-22. The EEOC argued that the termination is actionable retaliation even though based on a mistaken belief that the employee assisted another employee in filing an EEOC charge. Id . at *22-23. In that same vein, the EEOC argued that the “honest belief” doctrine applied by the lower Court does not apply here, as the employer terminated the employee exclusively because it believed (albeit, mistakenly) that she engaged in protected activity: “assisting a co-worker with filing an EEOC charge.” Id. at *27-28.