Employment law - Title VII does not extend to third-party retaliation claim by fiancee of discrimination claimant - Thompson v. North American Stainless, LP.

• Author: Hegerich, Robyn M.

Employment Law--Title VII Does Not Extend to Third-Party Retaliation Claim by Fiancee of Discrimination Claimant--Thompson v. North American Stainless, LP, 567 F.3d 804 (6th Cir. 2009)

Section 704(a) of the Civil Rights Act of 1964 (Title VII) creates a cause of action for retaliation against claims of discrimination in the employment context. (1) To prevail in a Title VII retaliation claim, a plaintiff must prove that he or she engaged in Title VII protected activity, the defendant possessed knowledge of the protected activity, the defendant took an adverse employment action against the plaintiff, and a causal connection existed between the protected activity and the adverse employment action. (2) In Thompson v. North American Stainless, LP, (3) the United States Court of Appeals for the Sixth Circuit (Sixth Circuit) considered whether section 704(a) extended to a third-party retaliation claim brought by the fiancee of a discrimination claimant. (4) The Sixth Circuit held that section 704(a) of Title VII does not create a cause of action for third-party retaliation claims where the claimant has not personally engaged in protected activity. (5)

Eric Thompson and his fiancee, Miriam Regalado, worked together at North American Stainless. (6) In September 2002, Regalado filed a charge with the Equal Employment Opportunity Commission (EEOC) against North American Stainless alleging gender discrimination. (7) Approximately three weeks later, North American Stainless terminated Thompson's employment. (8) Thompson subsequently filed a charge with the EEOC alleging that he was terminated in retaliation for his fiancee's EEOC charge against their joint employer. (9)

After the EEOC issued a right-to-sue letter, Thompson filed suit against North American Stainless in the United States District Court for the Eastern District of Kentucky. (10) North American Stainless moved for summary judgment, arguing that Thompson's retaliation claim was not a cognizable claim under section 704(a) of Title VII because he had not personally engaged in the protected activity. (11) In granting summary judgment to North American Stainless, the district court analyzed the language of Title VII and found it did not afford protection against retaliation to employees who have not themselves participated in the protected activity. (12) The district court did acknowledge that other courts had interpreted Title VII more expansively and permitted the adjudication of retaliation claims of third parties. (13) Nevertheless, the court decided that the lack of controlling law in the Sixth Circuit bound it to the unambiguous language of the statute. (14)

On appeal, the Sixth Circuit relied upon the EEOC's Compliance Manual, which provides that a person claiming retaliation need not be the individual who conducted the protected activity. (15) The court further stated that the district court's literal reading of section 704(a) defeated the purpose of Title VII. (16) In granting a rehearing en banc, the Sixth Circuit vacated its prior appellate decision and affirmed the district court's opinion. (17) In doing so, the court held that Thompson had no cause of action against North American Stainless for retaliation insomuch as Thompson did not personally engage in his fiancee's protected activity. (18)

Title VII creates a cause of action for claims of retaliation in the employment setting. (19) It prohibits an employer from discriminating against an employee for opposing any unlawful employment practice or for "ma[king] a charge, testifying], assist[ing], or participating]" in an investigation against his or her employer. (20) To prevail on a retaliation claim, a plaintiff must prove that he or she engaged in protected Title VII activity, the defendant knew of the protected activity and took an adverse employment action against the plaintiff, and that there was a causal connection between the protected activity and the adverse employment action. (21) The overriding purpose of statutory antiretaliation provisions is to "maintain[] unfettered access to statutory remedial mechanisms," thereby supporting an employee's ability and willingness to bring claims against his or her employer. (22)

Where the plain language of a statute is clear and unambiguous, the sole function of the courts is to enforce the statute according to its terms. (23) The courts "must presume that a legislature says in a statute what it means and means in a statute what it says there." (24) The preference for plain meaning stems from the concept of constitutional separation of powers, granting Congress the authority to make laws, and the judiciary the power to interpret laws. (25) Only when adhering to the literal meaning of the statute leads to absurd results does the court look into alternative interpretations so as to be consistent with the legislature's purpose. (26) The EEOC--created by Title VII--supports third-party retaliation claims. (27) The EEOC's Compliance Manual specifically states that the original discrimination claimant and a closely related third party can sue under Title VII if the related third party is fired or otherwise retaliated against based on the original discrimination claimant's pursuit of his or her statutory rights. (28) In 2009, the Supreme Court held that an employee who disclosed a supervisor's sexual harassment in response to an employer-initiated investigation "opposed" suspected discrimination under section 704(a), even though she never actually filed a harassment charge. (29) The Court's holding followed its 2006 ruling in Burlington Northern & Santa Fe Railway Co. v. White, (30) in which it broadly defined actionable retaliation under Title VII as any employer conduct that is so "materially adverse" to a plaintiff that it would "dissuade" a reasonable employee from pursuing a discrimination claim. (31) Nevertheless, the majority of federal courts that have examined the issue of whether a retaliation claim by a third party is authorized under section 704(a) have rejected these claims. (32)

In Thompson v. North American Stainless, LP, the Sixth Circuit considered whether Title VII created a cause of action for retaliation by a terminated fiancee of a discrimination claimant against their joint employer. (33) The court joined the Third, Fifth, and Eighth Circuits in holding that Title VII protections against retaliation extend only to those who have personally engaged in the protected activity by either opposing a practice, making a charge, or participating in an internal investigation. (34) The court noted that it was Congress's prerogative to create a cause of action for retaliation, and in doing so to determine "who may enforce them and in what manner." (35) The court held that the language of section 704(a) was clear that in order to be included in the class of individuals entitled to sue for retaliation, the plaintiff must show that the employer retaliated against him or her for either opposing an unlawful employment practice or participating in a discrimination investigation, neither of which applied to Thompson. (36) Rather, Thompson asserted that his relationship to his fiancee was the "sole motivating factor in his termination," thereby excluding him from the class of employees for whom Congress intended to create a cause of action for retaliation. (37)

The Sixth Circuit distinguished the instant case from the Supreme Court's decision in Burlington Northern, which broadly defined actionable retaliation as conduct so "materially adverse" to a plaintiff that it would "dissuade" a reasonable employee from bringing a claim. (38) While the Court in Burlington Northern addressed the scope of actionable retaliation by an employer, the Sixth Circuit in Thompson examined instances when the employee had not personally engaged in the protected activity to determine if it gave rise to a retaliation claim. (39) The court also determined that the Supreme Court's decision in Crawford v. Metropolitan Government of Nashville & Davidson County, Tennessee (40) was not applicable to the instant case because that matter involved an employee who was terminated after providing unfavorable information about an accused supervisor during an internal investigation. (41) Because Thompson never personally communicated his individual views about his fiancee's claim to his employer, nor did he assist her in filing the charge, the Sixth Circuit distinguished the instant case from Crawford, wherein the claimant had actively participated in an investigation of a fellow employee. (42) Therefore, the Sixth Circuit held that the district court was correct in determining that there was no actionable retaliation claim for a third party who has not personally engaged in the protected activity. (43)

Although recognizing third-party claims in this situation is more consistent with the purpose of Title VII's antiretaliation provision, the majority was correct in asserting that when there is a conflict between a statute's plain meaning and its objective purpose, the court must resolve the conflict in favor of the statute's plain meaning. (44) The plain meaning preference is based...