Lawsuit Against Tulane University for Discriminatory Discharge
Petition for Writ of Certiorari (View as PDF) (Case No. 97-1844, U.S. Supreme Court, May 6, 1998)
IN THE SUPREME COURT OF THE UNITED STATES October Term, 1998 ____________________ No. 97-1844 ____________________ DR. CARL BERNOFSKY, Petitioner, v. TULANE UNIVERSITY SCHOOL OF MEDICINE (ADMINISTRATORS OF THE TULANE EDUCATIONAL FUND), Respondent. _________________________________________ ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _________________________________________ Petition for Writ of Certiorari _________________________________________ Roger D. Phipps #20326
Evanthea P. Phipps #19857
PHIPPS & PHIPPS
210 Baronne Street, Suite 1410
New Orleans, Louisiana 70112
Counsel for Petitioner
STATEMENT OF QUESTIONS PRESENTED 1. Does 42 U.S.C. Section 1981(b) provide employees with actionable claims for racial harassment, retaliation, and discharge for conduct arising after November 21, 1991, the effective date of the Act?
2. Does "adverse employment action" under 42 U.S.C. Section 1981 or 29 U.S.C. Section 623(d) limit employees in retaliation claims to "ultimate employment decisions?"
3. Does 42 U.S.C. 1981(b) and 29 U.S.C. 623(d) protection against retaliation extend only to employees' complaints about discrimination concerning promotions when they are either clearly entitled to such promotion, or can prove that they were not promoted for unlawful discriminatory reasons?
PARTIES
The party to this petition is Dr. Carl Bernofsky.The parties in the courts below were Dr. Carl Bernofsky and The Administrators of the Tulane University Educational Fund, (Tulane University Medical School).
(Page numbers refer to original document pages and here are hyperlinked to the appropriate reference.)
TABLE OF CONTENTS STATEMENT OF QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . (i) PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (ii) TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (v) PRIOR OPINIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (x) JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (x) STATUTES INVOLVED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (x) STATEMENT OF THE CASE, PROCEDURAL HISTORY . . . . . . . . . (1) FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (4) ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (13) (13) (17) (25) CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (29) CERTIFICATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . (31)
TABLE OF AUTHORITIES CASES PAGE Adams v. City of Chicago, 865 F.Supp. 445 (N.D.Ill. 1994) (15) Butts v. City of New York Dep't of Hous. Preservation & Dev., 990 F.2d 1397 (2d Cir. 1993) (14) Bernofsky v. Tulane University Medical School, 962 F.Supp. 895 (E.D. La. 1997) (3) Cabiness v. YKK (USA), Inc., 859 F.Supp. 582 (M.D.Ga. 1994) aff'd, 98 F.3d 1354 (11th Cir. 1996) (14) Carter v. South Central Bell, 912 F.2d 832 (5th Cir. 1990), cert. denied 501 U.S. 1260 (1991) (3) (13) Dollis v. Rubin, 77 F.3d 777 (5th Cir. 1995) (19) (22) Donnellon v. Fruehauf Corp., 794 F.2d 598, (11th Cir. 1986) (23) EEOC v. Ohio Edison Co., 7 F.3d 541 (6th Cir. 1993) (27) Evans v. Kansas City, Mo. Sch. Dist., 65 F.3d 98 (8th Cir. 1995), cert. denied 517 U.S. 1104, 116 S.Ct. 1319, 134 L.Ed.2d 472 (1996) (14) Goff v. Continental Oil Co., 678 F.2d 593, (5th Cir. 1982) (14) Hayes v. Shalala, 902 F.Supp. 259 (D.D.C.Cir. 1995) (21) Hochstadt v. Worcester Found. for Experimental Biology, Inc., 422 F.Supp. 318 (D.C. Mass.) aff'd, 545 F.2d 222 (1st Cir. 1976) (25) Howze v. Virginia Polytechnic, 901 F.Supp. 1091 (W.D.Va. 1995) (22) Long v. Eastfield College, 88 F.3d 300 (5th Cir. 1996) (25) Mattern v. Eastman Kodak Co., 104 F.3d 702 (5th Cir. 1997), cert. denied ___ U.S. ___ 118 S.Ct. 336, 139 L.Ed.2d 260 (1997) (17) (18) (19) (20)
(21) (22) (23)McDaniel v. Temple Indep. School Dist., 770 F.2d 1340 (5th Cir. 1985) (23) McDonnell v. Cisneros, 84 F.3d 256 (7th Cir. 1996) (27) Merrick v. Farmers Ins. Group, 892 F.2d 1434 (9th Cir. 1990) (26) Mitchell v. Baldridge, 759 F.2d 80 (D.C.Cir. 1985) (24) Monteiro v. Poole Silver Co., 615 F.2d 4 (1st Cir. 1980) (28) Moyo v. Gomez, 32 F.3d 1382 (9th Cir. 1994) (28) Page v. Bolger, 645 F.2d 227 (4th Cir. 1981) (19) (21) (22) Palmer v. Shultz, 815 F.2d 84 (D.C.Cir. 1987) (21) Passer v. American Chemical Soc'y, 935 F.2d 322 (D.C.Cir. 1991) (26) Patterson v. Augat Wiring Sys., Inc., 944 F.Supp. 1509 (M.D.Ala. 1996) (15) Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989) (3) (13) (14) (15)
(16) (17)Pettaway v. Am. Cast Iron Pipe Company, 411 F.2d 998 (5th Cir. 1969) (18) Powell v. Rockwell Int'l Corp., 788 F.2d 279 (5th Cir. 1986) (26) Proulx v. Citibank, N.A., 659 F.Supp. 972 (S.D.N.Y 1987) aff'd, 862 F.2d 304 (2nd Cir. 1988) (27) Shirley v. Chrysler First, Inc., 970 F.2d 39 (5th Cir. 1992) (26) Simmons v. Camden County Bd. of Educ., 757 F.2d 1187 (11th Cir.), cert. denied 474 U.S. 981, 106 S.Ct. 385, 88 L.Ed.2d 338 (1985) (23) Steverson v. Goldstein, 24 F.3d 666 (5th Cir. 1994), cert denied. 513 U.S. 1081, 115 S.Ct. 731, 130 L.Ed.2d 634 (1995) (14) Sumner v. U.S. Postal Service, 899 F.2d 203 (2d Cir. 1990) (28) Thomas v. Exxon, U.S.A., 943 F.Supp. 751 (S.D.Tex. 1996) aff'd, 122 F.3d 1067 (5th Cir. 1997) (unpublished opinion) (15) STATUTES PAGE 29 U.S.C. 623(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (17) (23) (24) (25) (27)
(28)42 U.S.C. Section 1981 . . . . . . . . . . . . . . . . . . . . . . . . . (1) (2) (3) (13) (14) (15)
(16) (17) (18) (22) (23)
(29) (30)42 U.S.C. Section 1981(b) . . . . . . . . . . . . . . . . . . . . . . . (13) (14) (15) (16) (18)
(23) (24) (25) (29)
PRIOR OPINIONS The opinion sought to be reviewed is unpublished. (App. pp. A2). The District Court opinion, Bernofsky v. Tulane University Medical School, is published at 962 F.Supp. 895 (E.D.La. 1997). (App. pp. A5).
JURISDICTION Petitioner seeks this Court's review of the judgment entered on January 8, 1998 by the United States Circuit Court of Appeals for the Fifth Circuit, by a Petition for Writ of Certiorari pursuant to the jurisdiction conferred by 28 U.S.C. Section 1254(1). This Petition is timely filed because it was mailed within ninety days of February 5, 1998, the date a motion for rehearing was denied in the court below. Rules 13.3 and 29.2.
Jurisdictional basis for the Fifth Circuit is 28 U.S.C. 1291, and for the District Court is 28 U.S.C. 1331 and 1337.
STATUTES INVOLVED 42 U.S.C. Section 1981 in pertinent part provides:
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts . . . and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens . . .
42 U.S.C. Section 1981(b) in pertinent part provides:
For purposes of this section, the term `make and enforce contracts' includes making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.
29 U.S.C. 623(d) in pertinent part provides:
It shall be unlawful for an employer to discriminate against any of his employees or applicants for employment . . . 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.
STATEMENT OF THE CASE
PROCEDURAL HISTORY
On January 31, 1995 Bernofsky filed suit alleging discrimination under 42 U.S.C. Section 1981 and joined various state law claims. The complaint asserted that Bernofsky was a professor at Tulane University Medical School where he had been a faculty member for 20 years and that a new Departmental Chairman, who arrived in November 1991, had harassed him, interfered with his staff, hindered his performance causing him to lose grant funding, and threatened termination. The complaint further alleged that this action was based on the fact that Bernofsky was Jewish and that all three older Jewish faculty members in the Department of Biochemistry were being discriminated against on the basis of their Jewish race by the new Chairman, who was of Lebanese descent.A First Amended Complaint was filed on February 27,1995 adding an age discrimination claim under state law.
On April 10, 1995, Bernofsky's Motion for a Preliminary Injunction was denied. The trial date of January 22, 1996 was continued to July 8, 1996 due to Bernofsky's diagnosis of cancer.
A Second Amended Complaint was filed on November 21, 1995 adding an ADEA claim and a claim for conversion of laboratory equipment and materials.Tulane filed a Motion for Summary Judgment on May 14, 1996, and a Reply Memorandum on May 31, 1996. In each of these motions, Tulane treated Bernofsky's claims based on race and age completely separately. Bernofsky filed an Opposition Memorandum to Summary Judgment on May 21, 1996, and a Reply Memorandum opposing summary judgment on June 5, 1996.
In response to issues raised by the District Court, Bernofsky filed a Supplemental Memorandum opposing summary judgment on July 1, 1996 and a Memorandum in Response to Court's Request and a letter setting forth each of his claims also in response to the District Court's directive. Tulane delivered a Pretrial Memorandum to Bernofsky on July 1, 1996. He responded on July 2, 1996. A status conference was held July 5, 1996. On that date, the District Court informed counsel that Tulane's motion for summary judgment would be denied and that the trial would commence as scheduled on July 8, 1996. Due to Tulane's complaints concerning the Exhibit Books assembled by Bernofsky, the parties mutually agreed to continue the trial until the next available date. Thereafter, summary judgment was granted on April 15, 1997. A final judgment was rendered on April 21, 1997.The District Court found that Section 1981 did not extend to any conduct by the employer after the contractual relationship has begun and that harassment claims and retaliation claims were not actionable under Section 1981 citing Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989) and Carter v. South Central Bell, 912 F.2d 832 (5th Cir. 1990), cert. denied 501 U.S. 1260 (1991). Additionally, the District Court found Bernofsky had no retaliation claims under Section 1981 or the ADEA because the alleged discriminatory conduct did not amount to an "ultimate employment decision" which was the standard used for determining whether there has been "adverse employment action." The District Court also determined that the retaliation claims suffered from the absence of "protected activity" since Bernofsky filed a charge with the EEOC after suit was filed and that his prior complaints to his Chairman were of no consequence since he had not proved either he was entitled to tenure or that tenure had been denied due to improper racial or age considerations. Finally, with respect to Bernofsky's retaliation claims, the District Court found they lacked causation but offered no explanation. Bernofsky v. Tulane University Medical School, 962 F.Supp. 895 (E.D.La. 1997). (App. pp. A2). Bernofsky filed a timely Notice of Appeal on May 9, 1997. In an unpublished opinion, the Fifth Circuit affirmed the District Court for "substantially" the same reasons. (App. pp. A15, A20-A21). The Fifth Circuit denied Bernofsky's motion for a rehearing on February 5, 1998.
FACTS
Dr. Carl Bernofsky ("Bernofsky"), a research biochemist, was employed at Tulane University Medical School for nearly 20 years. Before coming to Tulane, Bernofsky was employed at the Mayo Medical School and Clinic. At Tulane, he held the rank of Research Professor. Shortly after his arrival at Tulane, his Department Chairman, Dr. Rune Stjernholm ("Stjernholm") promised Bernofsky that he would become the next tenured member of the Department. Until he was replaced by the new Chairman, Stjernholm continued to promise Bernofsky that he would become tenured.In November, 1991, the Chairmanship of the Biochemistry Department at Tulane changed. Dr. Jim Karam ("Karam") became the new Chairman. Before his arrival, Karam had written a letter to the Dean in which he proposed "to expedite faculty turnover." Immediately thereafter, Karam began to take adverse actions against the three senior Jewish faculty members. The targeted faculty were relieved of their teaching duties, committee assignments, and laboratory space.
One professor with a history of substance abuse was retired. The remainder of the "expedited turnovers" came solely from the ranks of the three senior Jewish professors. Dr. William Cohen ("Cohen") accepted an early retirement package, Bernofsky was fired, and Dr. Melanie Ehrlich ("Ehrlich") was ousted by being physically removed from within the Department despite the fact that she was a tenured member of that Department.
Prior to Karam's arrival, Ehrlich consistently had the first or second highest grant funding, and Bernofsky had the third highest grant funding in the Department. After Karam arrived, Bernofsky and Ehrlich were subjected to a well-documented program of interference and harassment, causing them to lose grant funding and laboratory personnel.
At his initial meeting with Karam, Bernofsky requested that his name be submitted to the appropriate committee for consideration of his credentials for tenure. After Bernofsky requested the long promised tenure, in effect a request for promotion, he began to be harassed, his research efforts were hampered until he lost funding, he was evaluated by a method that did not comply with the requirements set out by the Dean, and he was terminated, despite the fact that he secured a new $250,000 Air Force grant to support his research program before the deadline established by Tulane for obtaining new grant funds.
The most egregious instance of Karam's obstruction and interference with Bernofsky's work performance involves an electron paramagnetic resonance spectrometer ("EPR") needed in his research. Bernofsky prepared a proposal to the Louisiana State Board of Regents ("Regents") for funds to purchase an EPR for use at Tulane for "free radical" research. The Regents awarded Bernofsky's proposal $250,000 for purchase of the EPR.
Karam's appointment as Chairman of the Biochemistry Department coincided with the Regents' award. Karam delayed the project for nearly eighteen months. Initially, Karam's interference caused the EPR to remain on a loading dock in its crates for about a year. During that period, Bernofsky was repeatedly forced to request additional time from the Regents. Installation went forward only after the Regents threatened to rescind the award. Once the EPR was finally installed, Karam effected Bernofsky's removal as Principal Investigator and transferred authority over the EPR to another department.
This eighteen month delay was devastating for Bernofsky because it overlapped with an NSF grant awarded to him for the express purpose of "free radical" research, which required use of the EPR. The NSF grant in the amount of $243,000 was not renewed due to lack of progress on "free radical" research.(1) The eighteen month delay also coincided with the employment of a highly-trained EPR researcher whose salary was paid by Bernofsky's grant funds. When Bernofsky was prevented from using the EPR machine, the delay insured that his NSF grant, the backbone of his grant support at that time, would not be renewed.
Karam also interfered with Bernofsky's staff. Due to nonrenewal of the NSF grant, Bernofsky temporarily had no funds to pay his research associates. Despite this, they agreed to continue working at a minimal salary while Bernofsky sought new funding. Karam refused to permit these researchers to work at salaries that Bernofsky would pay from his personal funds. This refusal hindered Bernofsky's ability to complete and publish the results of his most recent research efforts.
Ehrlich, another senior Jewish professor, filed grievances against Karam who had called her laboratories "ratholes." Karam, in front of his staff, told Ehrlich that she should "leave the dept, leave the school," and that he would "kick her out of here." He subsequently had her removed from the laboratories long assigned to her in the Biochemistry Department.Cohen, also a senior Jewish faculty member, had his laboratory, teaching responsibilities, and committee assignments taken from him. Thereafter, he reluctantly accepted early retirement.
Karam ignored environmental problems affecting Bernofsky and Ehrlich. Bernofsky complained about blood, animal hair and tissue, and chemicals raining down into his laboratory from the floor above. Rather than attempting to remedy the environmental problem, Karam sought to have Bernofsky reprimanded at grievance proceedings. In Ehrlich's case, noxious discharges were ducted from Karam's newly renovated laboratory into her office. When Ehrlich complained, no corrective action was taken by Karam until she wrote to Environmental Health and Safety. Then Karam stalled the requisition to pay for the new duct work necessary to remedy the problem.
In May, 1994, Karam handpicked a "Faculty Review Committee" to examine Bernofsky's performance. The review of Bernofsky did not follow University procedures. According to these procedures, a faculty member is entitled to choose up to two members of the Review Committee, submit three letters from peers at other institutions, challenge the findings of the Review Committee, and have the Personnel and Honors Committee examine and comment on the final report. None of these procedures were allowed.
According to Tulane, the "objective basis" proving Bernofsky's disqualification is derived from "the specially appointed peer review committee, established by Karam to review Bernofsky's performance in the Department of Biochemistry in order to determine if he was qualified for the position of Research Professor."
The Review Committee was composed of Drs. Rune Stjernholm, Richard Steele ("Steele"), and Yu-Teh Li ("Y-T Li"). To evaluate Bernofsky's work, the Committee relied upon Steele, who admitted that he had not read Bernofsky's work under review. Steele stated, "I'm not sure at that time I went back and read any papers." Stjernholm stated, "I don't know what Bernofsky has done the last two years, because I haven't followed it." Y-T Li, in response to, "So you relied primarily on Steele?" admitted, "I think so."
Aside from not having any expertise in Bernofsky's field, Y-T Li consistently rejected interactions with both Ehrlich and Bernofsky. Karam was aware of this, but nonetheless selected him to review Bernofsky's work. Y-T Li wrote to Karam that he hoped for a "long term solution" to the problem of Ehrlich. When Y-T Li was asked whether he liked Bernofsky he replied, "No comment."
Steele referred to Tulane as "Jewlane" during his deposition, further stating the school was called "Jewlane" because "so many Jewish people come down here to go -- to teach, and why they do that, I don't know." He demanded that the evaluation state Bernofsky's work was not competitive. He insisted on this harsh language even though he admitted that he had not bothered to read the publications that Bernofsky had submitted to the Review Committee. Tulane terminated Bernofsky based on the Review Committee's evaluation and Karam's recommendation. World-class experts later attested to Bernofsky's expertise and professional reputation in the "free-radical" field.
According to Tulane, Bernofsky was not contributing any support whatsoever to the Biochemistry Department, was not an "asset in the business sense" to the Department, had not been an asset in recent years, and his inability to generate funding for his research was a direct reflection on the quality of his research and publication.
After review of Tulane financial documents for the Biochemistry Department, Dr. Stuart Wood, an economist stated:
"Bernofsky was, in business terms, an "asset" of the Biochemistry Department and the Tulane School of Medicine. That is, evaluated on a business basis, according to the principles of accounting, Bernofsky brought in more benefits than costs to the Biochemistry Department. . . ."
Tulane retained another Research Professor, Dr. S-C Li ("S-C Li"). She is not Jewish and has lesser qualifications than Bernofsky. Tulane admitted that S-C Li never generated any grant support for her own salary, nor was she ever required to do so by Tulane. S-C Li was never assigned any teaching duties of her own, nor did she ever assume teaching obligations of her own, unlike Bernofsky who assumed his own teaching responsibilities for sixteen years and never refused to teach.
A less qualified research professor in the Department, Dr. Jen-Sie Tou ("Tou"), was converted from a research position to a tenured position after having been employed at Tulane for 18 years. Prior to her conversion, Tou was on tenure track for only one year from July 1, 1979 to July 1, 1980 and had special appointments both before and nine years after that period. Her conversion occurred three years after the publication of the 1986 Faculty Handbook, which Tulane asserts prohibited Bernofsky from being converted. Both Bernofsky and Tou received similar annual appointment letters. Tou's receipt of these yearly appointment letters preceding her conversion did not prohibit her from receiving automatic tenure.
Bernofsky was 61 years of age when he was terminated. When Bernofsky asked Karam to be considered for tenure, Karam told him that he would not be promoted, i.e. officially tenured, because of his age. Karam stated, "a guy of [your] age who has been here so long already has de facto tenure." Karam, an individual with authority over the employment decision at issue, made the remark on three occasions, when Bernofsky sought to have his credentials reviewed so that he might be promoted to a tenured position. At the time Bernofsky requested that Karam submit his credentials for tenure consideration, there were positions available within the Department. Stjernholm testified that openings were available at the time his Chairmanship was ending, but he was not permitted to fill them because the administration wanted them to remain open for Karam to fill with young faculty. Bernofsky was seeking a promotion that had long been promised. When Bernofsky persisted in his request, alleged problems with his performance began to be documented, he was harassed, and his staff and research program were dissolved.
Stjernholm, a tenured professor who was not forced to leave, admitted that he was harassed because he did not retire as Tulane wished him to do when he turned 65. The young faculty members who were hired by Karam were each provided approximately $135,000 in funds with which to set up his or her own laboratory. Bernofsky, who along with several other senior faculty helped Karam obtain funds from the NSF for renovation purposes, received none of those funds for his own program despite repeated requests for a pro rata allocation of those funds.
In April 1995, Bernofsky was discharged and Tulane confiscated his laboratory equipment.
FOOTNOTE
1. Throughout Bernofsky's career as a Research Professor, from 1975 through 1994, he received grant support from the National Science Foundation ("NSF"), the National Institutes of Health ("NIH"), and other funding sources. During these years, the NSF and NIH grants often overlapped and, with the exception of one year, there was never a year when he lacked support from one or another of these major funding sources.
ARGUMENT 1. Does 42 U.S.C. Section 1981(b) provide employees with actionable claims for racial harassment, interference with job performance, retaliation, and discharge for conduct arising after November 21, 1991, the effective date of the Act?
The Circuit Courts of Appeal Are Split In Their Interpretation Of This Important Statute.
Section 1981(b) of the Civil Rights Act of 1991 ("the Act"), 42 U.S.C. Section 1981(b), specifically provides that, "[f]or purposes of this section, the term 'make and enforce contracts' includes the making, performance, modification, and termination of contracts and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship."
In the Civil Rights Act of 1991, enacted November 21, 1991, Congress by adding Section 1981(b) statutorily reversed this Court's decision in Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989). In Patterson, this Court held that a Section 1981 claim will lie only if the discri-minatory conduct complained of resulted in a "new and distinct" contractual relationship between the employer and the employee.
Relying on Patterson, the Fifth Circuit, in Carter v. South Central Bell, 912 F.2d 832 (5th Cir. 1990), cert. denied 501 U.S. 1260 (1991), held that Section 1981 no longer covers claims of retaliatory discharge and that "all suits for discriminatory dismissal must be brought under Title VII." Id. at 841.
The Fifth Circuit, however, has not definitively addressed whether retaliation claims may now be maintained under Section 1981, as amended by the Civil Rights Act of 1991. Steverson v. Goldstein, 24 F.3d 666, 670 n. 7 (5th Cir. 1994), cert denied 513 U.S. 1081, 115 S.Ct. 731, 130 L.Ed.2d 634 (1995). Without expressly discussing the issue, in Steverson, the court affirmed a jury verdict for retaliatory discharge under 42 U.S.C. Sections 1981 and 1983. Id. Prior to Patterson, it was clear that retaliation claims were actionable under Section 1981. Goff v. Continental Oil Co., 678 F.2d 593, 597-99 (5th Cir. 1982).
Other circuits and district courts that have interpreted Section 1981(b) have indicated that retaliation is now actionable under Section 1981. Evans v. Kansas City, Mo. Sch. Dist., 65 F.3d 98, 101 (8th Cir. 1995), cert. denied 517 U.S. 1104, 116 S.Ct. 1319, 134 L.Ed.2d 472 (1996); Butts v. City of New York Dep't of Hous. Preservation & Dev., 990 F.2d 1397, 1404 (2d Cir. 1993); Cabiness v. YKK (USA), Inc., 859 F.Supp. 582, 588 (M.D.Ga. 1994) aff'd, 98 F.3d 1354 (11th Cir. 1996).
'Although Section 1981(b) does not directly state that retaliation claims are actionable under Section 1981, the legislative purpose of Section 1981(b) clearly evinces that Congress intended such claims to be actionable under Section 1981.' Patterson v. Augat Wiring Sys., Inc., 944 F.Supp. 1509, 1519 (M.D.Ala. Oct 28, 1996). . . . [T]he legislative history reflects that Congress intended to make retaliation claims actionable under Section 1981. Id. The House Committee on Education and Labor, the committee to which the bill to amend the Civil Rights Act of 1964 was assigned, stated:
Section 210 would overrule Patterson by adding at the conclusion of section 1981 a new subsection (b). . . . The Committee intends this provision to bar all race discrimination in contractual relations. The list set forth in subsection (b) is intended to be illustrative rather than exhaustive. In the context of employment discrimination, for example, this would include, but not be limited to, claims of harassment, discharge, demotion, promotion, transfer, retaliation, and hiring.
Id. at 1519-20 (quoting H.R.Rep. No. 40(I), 102d Cong., 1st Sess. 92 (1981), reprinted in U.S.C.C.A.N. 549, 630); Adams v. City of Chicago, 865 F.Supp. 445, 446-47 (N.D.Ill. 1994).
Thomas v. Exxon, U.S.A., 943 F.Supp. 751, 762 (S.D.Tex. 1996) aff'd, 122 F.3d 1067 (5th Cir. 1997) (unpublished opinion). Thomas did not challenge on appeal the grant of summary judgment in favor of Exxon on her Section 1981 retaliation claim.
In the decision below, the District Court stated that "[Section] 1981 does not recognize claims for racial harassment, . . . [w]ith regard to . . . [the] discriminatory discharge claim, Section 1981 does not extend to discriminatory discharge claims or retaliatory discharge claims." (App. pp. A15-A16).
The Fifth Circuit by affirming the District Court's decision which concerned alleged discrimination occurring after November 21, 1991, continues to permit Patterson's restrictions on employees' harassment and retaliation claims to bar such claims despite the fact that Congress legislatively reversed Patterson.
By enacting the Act and adding Section 1981(b), Congress expressed its discontent with the jurisprudential limitations developed in Patterson which severely limited claims which could be brought by employees under Section 1981. The judgment below ignores Congress' express purpose in enacting Section 1981(b) which is "to expand the scope of relevant civil rights statutes in order to provide adequate protection to victims of discrimination."
To further the purposes of the Act, Section 1981(b) must be construed to cover claims of harassment and claims of retaliation that occurred after November 21, 1991, the date of enactment. It is in the public interest for this Court to resolve any split to provide uniformity of construction and application of this important statute.
2. Does "adverse employment action" under 42 U.S.C. Section 1981 or 29 U.S.C. Section 623(d) limit employees in retaliation claims to "ultimate employment decisions?"
The Circuit Courts of Appeal Are Split In Their Interpretation Of This Important Statute.
Nothing in the language of either 42 U.S.C. Section 1981 or 29 U.S.C. Section 623(d) suggests that Congress intended to limit retaliation claims to damage caused by the employer's "ultimate employment decisions" such as, hiring, granting leave, discharging, promoting, and compensating.
In Mattern v. Eastman Kodak Co., 104 F.3d 702 (5th Cir. 1997), cert. denied __ U.S. __, 118 S.Ct. 336, 139 L.Ed.2d 260 (1997), the Fifth Circuit held that the definition of "adverse employment action" for retaliation claims under Title VII does not include action that has a "mere tangential effect on a possible future ultimate employment decision" such as disciplinary action, reprimand, or even poor performance, or "anything which might jeopardize employment in the future." Id. at 708.
The Fifth Circuit extended the Mattern limitation on retaliation claims asserted under Title VII to a retaliation claim asserted under Section 1981 and the ADEA in the decision below. The District Court stated that, even if there was no procedural bar under Patterson v. McLean, supra, then the conduct complained of failed to carry with it the degree of consequence necessary to meet the standard of an "ultimate employment decision." (App. pp. A16, A20).
However, as the dissenting judge in Mattern, at 715, persuasively argued, this limitation on a retaliation claim brought under Title VII "is contrary to Congressional intent and departs from settled precedents . . . . Moreover, it strikes a grievous blow to the entire enforcement mechanism of Title VII."
There can be no doubt about the purpose of Section 704(a). In unmistakable language it is to protect the employee who utilizes the tools provided by Congress to protect his rights. The Act will be frustrated if the employer may unilaterally determine the truth or falsity of charges and take independent action.
Id. quoting Pettaway v. Am. Cast Iron Pipe Company, 411 F.2d 998, 1005 (5th Cir. 1969).
Likewise, to extend this judge-made limitation to Section 1981 claims of retaliation in the employment context runs counter to the express purpose of Congress in enacting Section 1981(b) which was to expand the protections available to victims of discrimination in the workplace. See Civil Rights Act of 1991, Pub. L. No. 102-166, Section 3(1) and (4), 105 Stat. 1071 (1991). Also, nothing in the ADEA suggests that such a judge-made limitation on a claim under Section 623(d) is appropriate.
In Mattern, the Fifth Circuit interpreted dicta in Page v. Bolger, 645 F.2d 227 (4th Cir. 1981) and Dollis v. Rubin, 77 F.3d 777 (5th Cir. 1995) to conclude that to recover for retaliation under Section 704(a) of Title VII, an employee must prove that he was discriminated against by the employer in an "ultimate employment decision" such as "hiring, granting leave, discharging, promoting, and compensating." According to the dissenting judge, nothing in the statute or in Page justifies such an interpretation. Mattern at 716.
In Page v. Bolger, a postal employee, who was twice denied promotions, brought suit against the Postmaster General claiming racial discrimination. The district court determined Page had not established his claim of discrimination. The Fourth Circuit affirmed. The court in Page commented on an argument put forth by the plaintiff seeking to modify the McDonnell Douglas formula under which a claimant could establish a prima facie case. Under the proposed modification, the plaintiff would establish a prima facie case by showing that he belonged to a minority; he qualified for the position; he was denied a promotion because of an evaluation by a review committee consisting only of white males. At this point, under the proposed modification, the employer would be required to articulate some nondiscriminatory reason for the absence of a minority member on the review committee, and, if this was done, the pretext inquiry would focus on this reason, rather than the articulated reason for denying the promotion. Mattern at 716.
The majority of the Fourth Circuit, en banc, rejected plaintiff's proposed modification stating in dictum:
The proper object of inquiry in a claim of disparate treatment under Section 717 is whether there has been "discrimination" in respect of "personnel actions affecting (covered employees or applicants for employment . . . ." 42 U.S.C. Section 2000e-16(a) (emphasis added). Disparate treatment theory as it has emerged in application of this and comparable provisions of Title VII, most notably Section 703(a)(1), 42 U.S.C. Section 2000e-2(a)(1), has consistently focused on the question whether there has been discrimination in what could be characterized as ultimate employment decisions such as hiring, granting leave, discharging, promoting, and compensating. This is the general level of decision we think contemplated by the term "personnel actions" in Section 717. . . . By this we suggest no general test for defining those "ultimate employment decisions" which alone should be held directly covered by Section 717 and comparable antidiscrimination provisions of Title VII. Among the myriad of decisions constantly being taken at all levels and with all degrees of significance in the general employment contexts covered by Title VII there are certainly others than those we have so far specifically identified that may be considered for example, entry into training programs. By the same token, . . . there are many interlocutory or mediate decisions having no immediate effect upon employment conditions which were not intended to fall within the direct proscriptions of Section 717 and comparable provisions of Title VII. We hold here merely that among the latter are mediate decisions such as those concerning composition of the review committees in the instant case that are simply steps in a process for making such obvious end-decisions as those to hire, to promote, etc.
Mattern at 716-17 (citing Page, 645 F.2d at 233).
In subsequent cases, courts have disagreed with Page's restricted definition of "adverse employment action" and have limited its holding to Federal Government employment cases. Similarly, in Hayes v. Shalala, 902 F.Supp. 259, 266 (D.C.Cir. 1995), the court noted that the D.C. Circuit had not directly addressed the limitation set forth in Page, but that it had adopted a broader interpretation of actionable personnel actions than that of the Fourth Circuit. (Citing Palmer v. Shultz, 815 F.2d 84 (D.C.Cir. 1987)). The Hayes court concluded that the plaintiff-employee must be permitted to argue that the totality of actions taken by his employer collectively created a harassing and retaliatory environment, even if individual actions may not have left a permanent paper trail or may even have been `mediate' employ-ment decisions as identified by the Fourth Circuit in Page.
In Howze v. Virginia Polytechnic, 901 F.Supp. 1091, 1097 (W.D.Va. 1995), the court noted that Page "was not a retaliation case . . . Second in defining the term `personnel actions' . . . [t]here is no indication that the Fourth Circuit intended this definition to apply to the retaliation provision in section 2000e-3(a)." See Mattern at 717-18.
The other case relied on by the Fifth Circuit in arriving at its limitation on a retaliation claim was Dollis, which was not a retaliation case. See Mattern at 718.
This limitation set on retaliation claims under Title VII which was extended in the decision below both to a claim of retaliation under Section 1981 and a claim of retaliation under the ADEA shows that there is a split in the circuits on this important issue. As the dissenting judge pointed out in Mattern, ". . . [there is no] justification for interpreting Title VII to afford less protection against retaliatory discrimination than against sexual, racial, or other types of forbidden discrimination . . . to effectuate the purposes of Congress, Section 704(A) affords broad protection against retaliation for those who participate in the process of vindicating civil rights through Title VII. (Citations omitted). Mattern at 719.
Mattern precludes consideration of all the circumstances in retaliation cases and thus drastically weakens Section 704(a)'s protection against retaliation. The construction given to Section 704(a) by Mattern below undercuts the enforcement of Title VII. Likewise, applying Mattern's restricted definition of "adverse employment action" to a retaliation claim asserted under Section 1981 or the ADEA weakens the protection against retaliation provided by these important statutes and weakens their enforcement. Nothing in the language of the Civil Rights Act of 1991 exists to permit or justify a similar restriction to be engrafted on the retaliation protection added by Section 1981(b). Moreover, nothing in the language of the ADEA justifies this same restriction on the anti-retaliation provision at Section 623(d).
In addition to the limitation placed on a retaliation claim by the holding in Mattern, the Fifth Circuit has adopted a more stringent analysis of retaliation claims, requiring a plaintiff to demonstrate that the protected conduct was a "but for" cause of the adverse employment action. McDaniel v. Temple Indep. School Dist., 770 F.2d 1340, 1346 (5th Cir. 1985).
The Eleventh Circuit's less stringent approach requires only that the protected activity and adverse action are not wholly unrelated. See Simmons v. Camden County Bd. of Educ., 757 F.2d 1187, 1189 (11th Cir.), cert. denied 474 U.S. 981, 106 S.Ct. 385, 88 L.Ed.2d 338 (1985). See Donnellon v. Fruehauf Corp., 794 F.2d 598, 601 (11th Cir. 1986).
Similarly, the District of Columbia Circuit allows a retaliation claim where the em-ployer has knowledge of the protected activity and the adverse personnel action took place shortly after that activity. Mitchell v. Baldridge, 759 F.2d 80, 86 (D.C.Cir. 1985).
To avoid undercutting enforcement of these important anti-retaliation protections, Section 704(a), Section 1981(b), and Section 623(d) must be construed to cover all circumstances of adverse employment action rather than only those meeting the strict definition of "ultimate employment decision." It is in the public interest for this Court to resolve any split among the circuit courts to provide uniformity of construction and application of these important statutes.
3. Does 42 U.S.C. 1981(b) and 29 U.S.C. 623(d) protection against retaliation extend only to employees' complaints about discrimination concerning promotions when they are clearly entitled to such promotion, or can prove that they were not promoted for unlawful discriminatory reasons?
The Fifth Circuit Court of Appeals Sanctioned Such A Departure by the District Court From The Accepted Course of Judicial Proceedings As To Call For An Exercise of This Court's Supervisory Power.
The plain language of 29 U.S.C. 623(d) prohibits an employer from retaliating against an employee because such individual has opposed any practice made unlawful by the Age Discrimination in Employment Act ("the ADEA"). That provision in pertinent part provides:It shall be unlawful for an employer to discriminate against any of his employees or applicants for employment . . . because such individual . . . has opposed any practice made unlawful by this section . . . 29 U.S.C. 623(d).
The Fifth Circuit by affirming the District Court's decision imposed a more stringent test for determining what is a "protected activity" or "oppositional behavior" to practices reasonably believed to be unlawfully discriminatory. The result is incongruous given the Fifth Circuit's decision in Long v. Eastfield College, 88 F.3d 300 (5th Cir. 1996). The First Circuit in Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F.Supp. 318, 324 (D.C.Mass. 1976) aff'd, 545 F.2d 222 (1st Cir. 1976), noted that "opposed any practice made an unlawful employment practice" is very broadly construed.
Numerous decisions hold that the parallel anti-retaliation provision of Title VII and the ADEA are similar, and "cases interpreting the latter provision are frequently relied upon in interpreting the former." Shirley v. Chrysler First, Inc., 970 F.2d 39, 42 n. 5 (5th Cir. 1992). See also, Passer v. American Chemical Soc., 935 F.2d 322, 330 (D.C.Cir. 1991); Merrick v. Farmers Ins. Group, 892 F.2d 1434, 1441 (9th Cir. 1990). Those circuits that have considered ADEA retaliation claims have generally adopted the analysis used in Title VII cases without comment. Powell v. Rockwell Int'l Corp., 788 F.2d 279 (5th Cir. 1986).
The narrow construction of conduct or opposition in the decision below flouts the ADEA's prohibition of retaliatory conduct to ensure that employees are secure to pursue their claims of discrimination. Under the decision below, the anti-retaliation provision does not prevent the employer from taking adverse employment action against an employee who opposed not being promoted after he was informed he was "too old" or because "he had been around so long." This construction prevents consideration of the totality of the circumstances surrounding the retaliation. For example, instances where the person who made the adverse employment decision is also involved in the underlying discrimination claim, and where the remarks are made in close proximity to the adverse action are ignored under this construction.
Limitations on the anti-retaliation provision should not be permitted to turn on whether the employee is clearly entitled to the promotion he seeks, or can prove unquestionably that he was previously passed over for promotion for unlawful discriminatory reasons. Instead, once the employee establishes that he reasonably believes he is opposing an unlawful refusal to promote him, he has engaged within "protected activity" and falls within the ambit of Section 623(d). The validity of a retaliation claim should not be evaluated on an under-lying discrimination claim. The retaliation claim is distinct and independent. Proulx v. Citibank, N.A., 659 F.Supp. 972 (S.D.N.Y 1987) aff'd, 862 F.2d 304 (2nd Cir. 1988).
The Seventh Circuit rejected an overly strict interpretation of Title VII's anti-retaliation provision in McDonnell v. Cisneros, 84 F.3d 256, 262 (7th Cir. 1996). ("[p]assive opposition" is protected activity plainly covered by the anti-retaliation provision).
The Sixth Circuit noted in EEOC v. Ohio Edison Co., 7 F.3d 541, 545 (6th Cir. 1993):
[C]ourts have frequently applied the retaliation provisions of employ-ment statutes to matters not expressly covered by the literal terms of these statutes where the policy behind the statute supports a nonexclusive reading of the statutory language.
To avoid undercutting the purpose of the anti-retaliation provision of Section 623(d) and aid in the enforcement of this important provision, Section 623(d) must be construed to cover claims of retaliation if the employee has a reasonable belief that he has opposed some employment practice made unlawful by the ADEA. A retaliation claim should not depend on whether the underlying discrimination claim is proved. The retaliation claim is distinct from any underlying claims, such as discriminatory failure to promote or discriminatory discharge.
At least two circuits have recognized that plaintiffs are not required to have proved underlying discrimination claims and need only show that they were acting in "good faith" with a "reasonable belief" that a violation existed to assert a retaliation claim. See Sumner v. U.S. Postal Service, 899 F.2d 203, 209 (2d Cir. 1990) and Moyo v. Gomez, 32 F.3d 1382 (9th Cir. 1994).
The First Circuit requires only that a plaintiff show he had opposition to some honestly held, even if mistaken belief, that a discriminatory practice existed. Monteiro v. Poole Silver Co., 615 F.2d 4 (1st Cir. 1980).
Employees who have a reasonable belief that they have opposed an unlawful employment practice are in need of protection against retaliation in response to such opposition. The purpose of the anti-retaliation provisions of Section 1981 and the ADEA is to give assurance to persons making claims of discrimination that they will not have action taken against them simply for engaging in such activity. In the decision below, the Fifth Circuit Court of Appeals sanctioned such a departure from the accepted course of judicial proceedings as to call for an exercise of this court's supervisory power.
CONCLUSION 42 U.S.C. Section 1981 is of great public importance but the Circuit Courts of Appeal are split in their holdings on the application of Section 1981(b) to claims of racial harrassment, retaliation, and discharge for conduct arising after the effective date of the Civil Rights Act of 1991. The decision below undercuts enforcement of Section 1981.
It is in the public interest for this Honorable Court to resolve that split to provide uniform construction and application of this important statute. Construing Section 1981(b) to make clear that employees may assert claims of harassment, retaliation, and discharge under Section 1981(b) for conduct arising after November 21, 1991 carries out the manifest Congressional purpose in amending Section 1981.
Likewise, the ADEA is a statute of great public importance. The circuits are split on the meaning of "adverse employment action" with respect to retaliation claims brought under Section 1981 and the ADEA. Construing this term to mean only "ultimate employment decisions" overly restricts the anti-retaliation provisions of Section 1981 and the ADEA. Such a limitation runs counter to the Congressional intent in enacting these provisions and undercuts their enforcement. It is in public interest to resolve that split to provide uniform construction of these important statutes. The holding below is in the minority.
Lastly, the overly narrow interpretation of the term "protected activity" given in the decision below so conflicts with the accepted interpretation of this term as to require an excercise of this Honorable Court's supervisory powers to remedy this sanctioned departure from the usual course of judicial proceedings.
This Honorable Court should grant certiorari and reverse the holding below.
Respectfully submitted,
____________________________
Roger D. Phipps #20326
PHIPPS & PHIPPS
210 Baronne Street, Suite 1410
New Orleans, Louisiana 70112
(504) 524-2298
CERTIFICATE This is to certify that three copies of the Petition For Writ of Certiorari were personally hand delivered May 6, 1998 by me to opposing counsel, Mr. G. Phillip Shuler, III, Esq., and/or Ms. Julie D. Livaudais, Esq. at the offices of Chaffe McCall Phillips Toler & Sarpy, 2300 Energy Centre, New Orleans, LA 70163.
______________________
Roger D. Phipps #20326
PHIPPS & PHIPPS
210 Baronne Street, Suite 1410
New Orleans, Louisiana 70112
(504) 524-2298
TABLE OF CONTENTS
APPENDIX TO PETITION
(Items can be viewed in the document PDF)Order, United States Court of Appeals for the Fifth Circuit, Denying Petition For Rehearing,entered 2/5/98 ................................................... A-1 Opinion, United States Court of Appeals for the Fifth Circuit,entered 1/8/98 ................................................... A-2 Judgment, United States District Court for the Eastern District Court of Louisiana,entered 4/21/97 ................................................... A-4 Order And Reasons, United States District Court for the Eastern District Court of Louisiana,entered 4/15/97 ................................................... A-5
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