8/4/2010 8:08 AM HEGERICH_COMMENT_FORMATTED_ DOC (DO NOT DELETE)

Transcription

1 Employment Law Title VII Does Not Extend to Third-Party Retaliation Claim by Fiancée 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 thirdparty retaliation claim brought by the fiancée 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 fiancée, 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, 1. See 42 U.S.C. 2000e-3(a) (2006) (prohibiting discrimination against employees for opposing employer s unlawful employment practices). 2. See Martin v. Toledo Cardiology Consultants, Inc., 548 F.3d 405, 412 (6th Cir. 2008) (setting forth required elements for claimant to establish retaliation claim); Ford v. Gen. Motors Corp., 305 F.3d 545, (6th Cir. 2002) (presenting factors necessary for plaintiff to prevail in retaliation claim) F.3d 804 (6th Cir. 2009). 4. See id. at 808 (declaring issue on appeal). 5. See id. at 816 (summarizing holding regarding scope of eligible claimants under Title VII). The court determined that the plain language of 704(a) elucidated that Thompson was not included in the class of individuals for whom Congress intended to create a cause of action for retaliation. Id. at 808. In stating it was Congress s prerogative to establish a cause of action for retaliation, the court also declared it was entirely appropriate for Congress to determine who may enforce [those rights] and in what manner. Id. at 807 (quoting Davis v. Passman, 442 U.S. 228, 241 (1979)) (explaining court s reasoning regarding Congress s power in drafting and executing laws against retaliation). Where the plain language of a statute is clear and unambiguous, the court s sole function is to enforce it according to its terms. See Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997) (acknowledging courts must construe and enforce unambiguous statutes by their plain meaning); Crooks v. Harrelson, 282 U.S. 55, 60 (1930) (indicating courts override literal forms of statutes only in rare and exceptional circumstances); Caminetti v. United States, 242 U.S. 470, 490 (1917) (stating unambiguous language conveys final expression of legislative intent). The Supreme Court has stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there. Conn. Nat l Bank v. Germain, 503 U.S. 249, (1992). 6. See 567 F.3d at 806 (explaining relationship between Thompson and Regalado). 7. See id. (establishing background for Thompson s cause of action). Title VII makes it an unlawful employment practice for an employer... to discriminate against any individual with respect to his

2 1060 SUFFOLK UNIVERSITY LAW REVIEW [Vol. XLIII:1059 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 fiancée 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 compensation, terms, conditions, or privileges of employment, because of such individual s race, color, religion, sex, or national origin. 42 U.S.C. 2000e-2(a)(1) (2006). 8. See 567 F.3d at 806 (indicating timing of Thompson s termination). 9. See id. (describing substance of Thompson s charge). In its defense, North American Stainless contended that Thompson s termination was due to performance-based reasons. See id. (noting North American Stainless s asserted rationale for Thompson s termination). 10. See id. (outlining procedural history of case prior to adjudication by district court). After Thompson filed his charge, the EEOC performed an investigation and determined there was cause to believe the defendant was in violation of Title VII, triggering the issuance of a right-to-sue letter. See id. (portraying EEOC s role in determining which charges ultimately reach court system). Generally, a complainant must receive a right-tosue letter from the EEOC before bringing a Title VII lawsuit in federal court. See Parry v. Mohawk Motors of Mich., Inc., 236 F.3d 299, 309 (6th Cir. 2000) (recognizing right-to-sue letter as condition precedent to filing wrongful termination claim with court). 11. See 567 F.3d at 806 (contending Thompson s relationship as sole motivating factor for termination insufficient to assert retaliation claim). 12. See Thompson v. N. Am. Stainless, LP, 435 F. Supp. 2d 633, 638 (E.D. Ky. 2006) (asserting statute s use of word he requires retaliation claimant to personally engage in protected conduct). The district court based its analysis, which required the claimant to be the discriminated employee, on the rationale previously set forth by the Sixth Circuit in Bell v. Safety Grooving & Grinding, LP. See id. at 635, 638. In Bell, the Sixth Circuit noted that courts have found only two instances where an association with a protected party is relevant to a claimant s own Title VII status: one instance involving a biracial child of a white employee, and another involving a university administrator advocating on behalf of women of minority backgrounds. See Bell v. Safety Grooving & Grinding, LP, 107 F. App x 607, 609 (6th Cir. 2004) (discussing circumstances permitting claims by individuals not personally engaged in protected activity). The district court in Thompson determined that the plaintiff had not alleged that his race or gender was at issue nor had he engaged in any advocacy on behalf of his fiancée analogous to the situations in which courts have extended Title VII protection to third parties, and therefore Thompson was not entitled to bring a Title VII discrimination claim. See Thompson v. N. Am. Stainless, LP, 435 F. Supp. 2d 633, 636 (E.D. Ky. 2006) (rejecting Thompson as member of protected class under Title VII); see also Bell v. Safety Grooving & Grinding, LP, 107 F. App x 607, 609 (6th Cir. 2004) (discussing cases recognizing third-party claimants as members of protected class). 13. See Thompson v. N. Am. Stainless, LP, 435 F. Supp. 2d 633, (E.D. Ky. 2006) (noting other courts and EEOC interpret Title VII to cover third party claims); U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, EEOC COMPLIANCE MANUAL 8-II.B.3.c (1998), available at (prohibiting retaliation against third party so closely related or associated it discourages pursuit of claim); see also, e.g., Gonzalez v. N.Y. State Dep t of Corr. Servs., 122 F. Supp. 2d 335, 347 (N.D.N.Y. 2000) (allowing Title VII standing for wife s adverse employment action claim

3 2010] CASE COMMENT 1061 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 fiancée 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, testif[ying], assist[ing], or participat[ing] in an investigation against his or her employer. 20 To prevail on a retaliation claim, a plaintiff must prove associated with husband s discrimination complaint); EEOC v. Nalbanian Sales, Inc., 36 F. Supp. 2d 1206, 1213 (E.D. Cal. 1998) (holding passive, inactive employee has standing to assert retaliation claim under Title VII); De Medina v. Reinhardt, 444 F. Supp. 573, (D.D.C. 1978), aff d, 686 F.2d 997 (D.C. Cir. 1982) (pronouncing wife s retaliatory employment action allegation after husband s antidiscrimination activities as viable Title VII claim). The De Medina court noted that unless plaintiff herself is permitted to seek relief based on the denial of her employment application, the make whole purpose of Title VII would be frustrated. De Medina v. Reinhardt, 444 F. Supp. 573, 580 (D.D.C. 1978), aff d, 686 F.2d 997 (D.C. Cir. 1982). 14. See Thompson v. N. Am. Stainless, LP, 435 F. Supp. 2d 633, 639 (E.D. Ky. 2006) (noting plain language of statute prohibits third-party retaliation claims). 15. See Thompson v. N. Am. Stainless, LP, 520 F.3d 644, (6th Cir. 2008) (recognizing EEOC expressly allows third parties to bring Title VII retaliation claims); see also supra note 13 and accompanying text (indicating various jurisdictions permit judicial resolution of third-party retaliation claims). 16. See Thompson v. N. Am. Stainless, LP, 520 F.3d 644, 647 (6th Cir. 2008) (contending employer s potential subsequent retaliation against family members dissuades employees from filing EEOC charge). 17. See 567 F.3d at 816 (indicating agreement between Sixth Circuit and district court regarding thirdparty retaliation claims). 18. See id. (holding Title VII does not create cause of action for third-party retaliation). 19. See 42 U.S.C. 2000e-3(a) (2006) (stating purpose of Title VII in relation to retaliation in employment context). The purpose of the antiretaliation provision, a crucial part of Title VII, is to protect employees who oppose discrimination by speaking out, filing complaints, assisting official investigations, or by aiding others who challenge such discrimination. See Kurtis A. Kemper, Annotation, Who Has Participated in Investigation, Proceeding, or Hearing and Is Thereby Protected from Retaliation Under 704(a) of Title VII of Civil Rights Act of 1964 (42 U.S.C.A. 2000e-3(a)), 149 A.L.R. FED. 431, 2 (1998) (characterizing antiretaliation provision as lynchpin to protect employees opposing or assisting in assailing discrimination) U.S.C. 2000e-3(a) (2006). =xt It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment... because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter. =ft Id. Section 704(a) provides that there are two categories of activities covered under the statute: opposing activity, including formal protests or exercising grievances, and participating activity, including filing a charge or assisting in an investigation against the employer. See Kemper, supra note 19, 2 (exemplifying two kinds

4 1062 SUFFOLK UNIVERSITY LAW REVIEW [Vol. XLIII:1059 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 of protected activity). 21. See Martin v. Toledo Cardiology Consultants, Inc., 548 F.3d 405, 412 (6th Cir. 2008) (listing elements of prima facie case); Ford v. Gen. Motors Corp., 305 F.3d 545, (6th Cir. 2002) (proffering plaintiff s burdens to establish viable retaliation claim). 22. See Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997) (setting forth intrinsic objective of statutory provisions baring retaliation in the workplace); Alex B. Long, The Troublemaker s Friend: Retaliation Against Third Parties and the Right of Association in the Workplace, 59 FLA. L. REV. 931, 950 (2007) (declaring function of antiretaliation provisions as providing legal measures for aggrieved employees). Many courts have recognized that permitting retaliation against third parties allows an employer to accomplish indirectly what is prohibited directly, and therefore allow third parties to bring antiretaliation claims to comply with the provision s purpose. See Gonzalez v. N.Y. State Dep t of Corr. Servs., 122 F. Supp. 2d 335, 347 (N.D.N.Y. 2000) (approving standing for plaintiff who suffered adverse employment action resulting from husband s discrimination complaint); EEOC v. Nalbandian Sales, Inc., 36 F. Supp. 2d 1206, 1210 (E.D. Cal. 1998) (prescribing third-party retaliation claim as cognizable in deference to EEOC s policy recognizing such claims). The recognition of third-party claims permits employees to exercise their rights by reporting discrimination and puts employers on notice that retaliation is impermissible, thus serving Title VII s purpose. See Anita G. Schausten, Comment, Retaliation Against Third Parties: A Potential Loophole in Title VII s Discrimination Protection, 37 J. MARSHALL L. REV. 1313, 1335 (2004) (contending increased allowance of third-party retaliation claims will better serve objective of Title VII); see also Kemper, supra note 19, 2 (asserting broad protection necessary to effectuate Congress s intent to facilitate access to EEOC). 23. See, e.g., Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997) (acknowledging courts must enforce unambiguous language of laws); Rubin v. United States, 449 U.S. 424, 430 (1981) (explaining courts only question unambiguous language in rare and exceptional circumstances); Caminetti v. United States, 242 U.S. 470, 490 (1917) (stating court may not indulge in speculation when interpreting unambiguous statutory language). 24. Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 296 (2006) (quoting Conn. Nat l Bank v. Germain, 503 U.S. 249, (1992)) (recognizing inappropriateness of unbridled judicial forays into legislative sphere). 25. Fogleman v. Mercy Hosp., Inc. 283 F.3d 561, 569 (3d Cir. 2002) (analyzing allocation of authority via separation of powers). If the plain language of a statute is unambiguous, it is neither the duty nor the privilege of the court to speculate as to a different meaning. Caminetti v. United States, 242 U.S. 470, 490 (1917) (observing province of court restricts judicial interpretation of statutes with preexisting plain meaning). 26. Fogleman v. Mercy Hosp., Inc. 283 F.3d 561, 569 (3d Cir. 2002) (explaining court s duty to effectuate intent of legislature permits some, albeit limited, statutory interpretation); United States v. Schneider,

5 2010] CASE COMMENT 1063 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 F.3d 876, 880 (3d Cir. 1994) (stating court obligated to construe statute to avoid absurd outcomes and promote legislature s objective). 27. See 42 U.S.C. 2000e-4 (2006) (explaining creation and describing composition of EEOC). The EEOC can provide technical assistance to employers in furthering compliance with Title VII. See 42 U.S.C. 2000e-4(g)(3) (2006); see also infra note 28 (declaring EEOC expressly encourages third-party retaliation claims under appropriate circumstances). 28. See U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, EEOC COMPLIANCE MANUAL, 8-II.B.3.c (1998), available at (stating Title VII prohibits retaliation against related third party, thereby encouraging claimant to assert rights). The EEOC s Compliance Manual is entitled to some deference because it is the agency s own interpretation of the statute that it is charged with enforcing, however, the Manual is not binding on the courts. See Noviello v. City of Boston, 398 F.3d 76, 90 (1st Cir. 2005) (acknowledging agency s interpretation as informative and entitled to consideration, but not controlling upon courts). 29. See Crawford v. Metro. Gov t of Nashville & Davidson County, Tenn., 129 S. Ct. 846, (2009) (holding retaliation protections extend to employees who participate in employer s internal investigation of discrimination complaint). The Court stated that while oppose goes beyond active, consistent behavior on the part of an employee, oppose may also cover answering questions during an investigation. See id. at 851. The Court in Crawford resolved the issue as to whether an employee s opposition to discrimination by complaining to management during an internal investigation is protected activity, but did not address whether an employee s mere participation in an internal investigation triggers protection against retaliation. See Anne C. Patin, The Impact of Crawford on Employer-Initiated Investigations, N.Y. L.J., July 27, 2009, available at (highlighting limited scope of ruling noteworthy for future claims of retaliation) U.S. 53 (2006). 31. See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (analyzing materially adverse action to mean maneuvers deterring reasonable workers from filing claims). The Court reasoned that a broad interpretation of the antiretaliation provision would assure the cooperation of complaining employees required to meet Title VII s primary objective. See id. at 67 (identifying Title VII s dependence upon employees acting as witnesses to effectively combat unlawful workplace practices). Moreover, the Court settled a circuit split as to what constituted an adverse action for the purposes of establishing a retaliation claim. See id. (adopting approach taken by the Seventh and D.C. Circuits); see also John Sanchez, The Law of Retaliation After Burlington Northern and Garcetti, 30 AM. J. TRIAL ADVOC. 539, (2007) (recognizing Court adopted test defining adverse action as conduct dissuading reasonable worker from filing claim). 32. See generally Fogleman v. Mercy Hosp., Inc., 283 F.3d 561 (3d Cir. 2002) (holding cognizable retaliation claim under ADA required claimant to have engaged in protected activity); Smith v. Riceland Foods,

6 1064 SUFFOLK UNIVERSITY LAW REVIEW [Vol. XLIII:1059 In Thompson v. North American Stainless, LP, the Sixth Circuit considered whether Title VII created a cause of action for retaliation by a terminated fiancée of a discrimination claimant against their joint employer. 33 The court Inc., 151 F.3d 813 (8th Cir. 1998) (ruling Title VII does not support claims by spouses not also engaged in protected activity); Holt v. JTM Indus., Inc., 89 F.3d 1224 (5th Cir. 1996) (declining to use court-defined relationships as basis for standing instead of ADEA language). In examining the plain language of the statute, the Fogleman court held it to unambiguously require the person alleging the retaliation to be the same person who engaged in the protected activity. See Fogleman v. Mercy Hosp., Inc., 283 F.3d 561, 568 (3d Cir. 2002). The court recognized that Congress may have intended to include third-party claims, but ultimately concluded that adhering to the plain text of the statute would not result in an absurd outcome. Id. at 569. The Fogleman court reasoned that permitting third-party retaliation claims would open the door to frivolous lawsuits and interfere with an employer s prerogative to fire at-will employees. Id. at 570. The Holt court recognized the inherent risk that an employer will retaliate against a spouse or relative of the person engaging in a protected activity. See Holt v. JTM Indus., Inc., 89 F.3d 1224, 1227 (5th Cir. 1996). The court also reasoned, however, that many individuals who would assert third-party claims would also be protected from retaliation under the statute for hav[ing] participated in some manner in a co-worker s charge of discrimination. Id. In allowing third-party claims, courts stretch the boundaries of causation, but those courts that refuse to recognize standing for third-party individuals not engaged in a protected activity are most likely to correctly interpret the antiretaliation provisions. See Rhea Gertken, Note, Causation in Retaliation Claims: Conflict Between the Prima Facie Case and the Plaintiff s Ultimate Burden of Pretext, 81 WASH. U. L.Q. 151, (2003) (arguing standing must encompass more than mere temporal proximity to individual engaged in protected activity); see also Melissa A. Essary & Terence D. Friedman, Retaliation Claims Under Title VII, the ADEA, and the ADA: Untouchable Employees, Uncertain Employers, Unresolved Courts, 63 MO. L. REV. 115, (1998) (stating plain language of employment statutes does not support broad reading of antiretaliation clauses). Allowing third-party retaliation claims by those employees who neither complained nor participated in an investigation presents employers with serious practical problems. See Michael Starr & Christine M. Wilson, Third-Party Retaliation, NAT L L.J., July 21, 2008, available at NLJ.jsp?id= (highlighting issues with allowing retaliation claims by third-party employees not engaged in protected conduct). In permitting third parties to bring retaliation claims, courts would have to determine, in each case, if the third party deserves protection because he or she was sufficiently close to the complainant, and whether the employer had knowledge of the relationship. See id. (acknowledging court s difficulty in defining a sufficiently close relationship). Because Title VII fails to specifically address discrimination against third parties, the best reading of the statute s plain language is that one cannot assert a claim for merely being associated with a person who has engaged in protected activity. See Long, supra note 22, at 950 (demonstrating statute s failure to address third-party claims suggests claim not actionable). Allowing an employee to bootstrap his or her retaliation claim to the protected activity of another employee stretches the causation element of retaliation and is problematic. See Jessica Fink, Unintended Consequences: How Antidiscrimination Litigation Increases Group Bias in Employer-Defendants, 38 N.M. L. REV. 333, 356 (2008) (observing adverse action to third party after charge by another would intrinsically appear suspect). Courts are split as to whether Title VII extends to retaliation claims made by a third party, but the clear majority of courts do not recognize such claims as actionable. See Long, supra note 22, at 934 (discussing courts differing opinions pertaining to third-party retaliation topic). Some circuits permit third-party claims believing that they are consistent with Title VII s purpose, while others prohibit such claims contending that they are not recognized by the plain language of the statute. See Carrie B. Temm, Comment, Third-Party Retaliation Claims: Where to Draw the Line, 54 U. KAN. L. REV. 865, (2006) (acknowledging current split in circuits regarding viability of third-party claims under Title VII). But see EEOC v. Ohio Edison Co., 7 F.3d 541, 546 (6th Cir. 1993) (holding employee may vicariously engage in protected activity through actions of agent, thus obtaining standing); Gonzalez v. N.Y. State Dep t of Corr. Servs., 122 F. Supp. 2d 335, 347 (N.D.N.Y. 2000) (determining plaintiff suffered adverse employment action and could assert Title VII claim for husband s complaint); EEOC v. Nalbandian Sales, Inc., 36 F. Supp. 2d 1206, (E.D. Cal. 1998) (deferring to EEOC s policy of permitting third-party claims and allowing judicial recognition of same); De Medina v. Reinhardt, 444 F. Supp. 573, 580 (D.D.C. 1978), aff d, 686 F.2d 997 (D.C. Cir. 1982) (identifying Congress s intention of ensuring no individual deterred from exercising rights under Title VII) F.3d at 806 (defining issue in case).

7 2010] CASE COMMENT 1065 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 fiancée 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 See id. at (noting Thompson did not claim he engaged in statutorily protected activity). The court agreed with the district court in holding that Thompson failed to establish the first element necessary in a retaliation claim because he did not participate in activity protected by Title VII. See id. at 809 (elucidating reason Thompson s claim failed at both district and appellate court levels). 35. Id. at 807 (quoting Davis v. Passman, 442 U.S. 228, 241 (1979)) (articulating Congress s ability to create expansive or restrictive rights and obligations). 36. See id. (noting courts must enforce clear statutory language according to plain terms); see also supra note 5 and accompanying text (contending courts obligated to apply statutes pursuant to their unambiguous meaning). 37. See 567 F.3d at 808 (explaining Thompson had neither personally opposed unlawful employer practices nor participated in any investigation). 38. See id. at 815 (rejecting Thompson s argument of broadly interpreting discriminated against to include third-party claimants, reflecting Burlington Northern); Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (providing reasoning as to what behavior constitutes retaliation under Title VII). 39. See 567 F.3d at 815 (stating instant case required interpretation of different language); Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (setting forth crux of matter addressed by Court) S. Ct. 846 (2009). 41. See 567 F.3d at 813 (discussing inapplicability of reasoning in Crawford). The Sixth Circuit in Thompson acknowledged that the employee in Crawford had opposed activity when she gave a disapproving account of the supervisor s conduct during an internal investigation. See id. (attributing Crawford Court s reasoning to cases when employee personally engages in protected activity); Crawford v. Metro. Gov t of

8 1066 SUFFOLK UNIVERSITY LAW REVIEW [Vol. XLIII:1059 Because Thompson never personally communicated his individual views about his fiancée 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 upon the idea of constitutional separation of powers, which recognizes that Congress s job is to make law, while the job of the judiciary is to interpret it. 45 Thus, a court must not defy a statute s plain meaning when its duty is to enforce the statute according to its terms. 46 The language of the antiretaliation provision unambiguously states that it is unlawful for an employer to discriminate against an employee because he has opposed an employer s unlawful employment practice, or because he has participated in an investigation or proceeding. 47 Therefore, it is clear that Title VII requires that the retaliation claimant must have either opposed or participated in the protected conduct in a personal capacity in order to be recognized as a covered claimant. 48 The merits behind Congress s reasoning in excluding third-party retaliation Nashville & Davidson County, Tenn., 129 S. Ct. 846, (2009) (describing actions of employee resulting in her termination due to employer s retaliation efforts). 42. See 567 F.3d at (acknowledging Thompson never alleged he personally engaged in protected activity nor opposed discrimination); Crawford v. Metro. Gov t of Nashville & Davidson County, Tenn., 129 S. Ct. 846, (2009) (relaying claimants direct involvement with conduct protected under Title VII). 43. See 567 F.3d at 816 (recognizing sensibleness of limiting actionable retaliation to those who opposed or participated in activity). 44. See Fogleman v. Mercy Hosp., 283 F.3d 561, 569 (3d Cir. 2002) (noting resolution of conflict between statute s unambiguous terms and objective purpose should favor plain meaning); see also supra note 5 and accompanying text (discussing debate on statutory interpretation). 45. See Fogleman v. Mercy Hosp., 283 F.3d 561, 569 (3d Cir. 2002) (recognizing implication of separation of powers in court s interpretation of statute s terms). 46. See Fogleman v. Mercy Hosp., 283 F.3d 561, 569 (3d Cir. 2002) (acknowledging best evidence of congressional intent exists in statute s text); see also Arlington Cent. Sch. Dist. Bd. Of Ed. v. Murphy, 548 U.S. 291, 296 (2006) (stating statute s purpose not reason to flout court s obligation to enforce according to plain terms). 47. See 42 U.S.C. 2000e-3(a) (2006) (prohibiting employer from discriminating against employee who opposed or participated in protected activity); supra notes and accompanying text (discussing Title VII applicability and analyzing its terms). 48. See Long, supra note 22, at 951 (contending statute s natural reading precludes claims when no opposition or participation in protected conduct occurred); see also Schausten, supra note 22, at 1321 (acknowledging literal interpretation implies person retaliated against must have personally engaged in protected activity).

9 2010] CASE COMMENT 1067 claims in the explicit language of the statute are irrelevant, but there are, at the very least, plausible justifications for doing so. 49 By limiting standing to those who actually oppose unlawful acts, the statute encourages employees to take an active role in speaking out against illegal employment practices, which furthers the purpose of the statute. 50 In addition, Congress may have contemplated that explicitly recognizing third-party claims in the statute itself would be unnecessary because most relatives or friends of the original claimant would probably have in some manner participated in the co-worker s charge and therefore would possess their own independent standing under the statute. 51 Moreover, Congress likely envisioned that expanding the class of retaliation plaintiffs to include anyone whose friends or relatives have engaged in protected activity would open the door to frivolous lawsuits and interfere with an employer s prerogative to fire at-will employees. 52 For example, anyone with some sort of relationship to a discrimination claimant who also suffered an adverse employment action close in time to the discrimination claimant s protected activity could arguably have a cause of action for retaliation. 53 Because the statute provides no guidance regarding which third parties are entitled to assert retaliation claims, the courts would be forced to determine on a case-by-case basis not only whether there was a sufficiently close relationship between the original claimant and the third party, so as to enjoy protection, but also whether the employer had such knowledge of the relationship. 54 Additionally, Congress probably did not want to overly restrict an employer s ability to manage the workplace and administer proper discipline for misconduct, which could be impaired if such third-party claims were 49. See Fogleman v Mercy Hosp. Inc., 283 F.3d 561, 569 (3d Cir. 2002) (recognizing Congress may have intentionally excluded claims in statute s text for policy reasons). 50. See Brief of the Defendant-Appellee North American Stainless, LP at 15-16, Thompson v. N. Am. Stainless, LP, 567 F.3d 804 (6th Cir. June 1, 2007) (No ) (arguing opposing unlawful practices entitles claimant to protection, thereby encouraging opposition and furthering statute s purpose); see also Holt v. JTM Indus., Inc. 89 F.3d 1224, 1227 (5th Cir. 1996). 51. See Fogleman v. Mercy Hosp., Inc., 283 F.3d 561, 569 (3d Cir. 2002) (suggesting propensity of potential third-party claimants to have also engaged in protected conduct themselves); see also Smith v. Riceland Foods, Inc., 151 F.3d 813, 819 (8th Cir. 1998) (recognizing third-party claims as redundant due to preexisting broad protection for employees assisting or participating ); Holt v. JTM Indus., Inc., 89 F.3d 1224, (5th Cir. 1996) (stating rule of automatic standing largely unnecessary to protect third party from retaliation). 52. See Fogleman v. Mercy Hosp., Inc., 283 F.3d 561, 570 (3d Cir. 2002) (acknowledging possibility of congressional forethought in drafting statute to prevent onslaught of frivolous lawsuits); see also supra note 32 and accompanying text (discussing reasons for denying third-party claims under Title VII). 53. See Temm, supra note 32, at 888 (evaluating issues in determining who constitutes covered claimant, especially in light of varying third-party relationships); see also Long, supra note 22, at 951 (identifying courts questioning whether other relatives, close friends, [or] life-partners included as covered third-party claimants). 54. See Starr & Wilson, supra note 32 (declaring courts encounter serious factual determination issues in classifying relationship of third party with claimant); see also Crawford v. Metro. Gov t of Nashville & Davidson County, Tenn., 129 S. Ct. 846, 854 (2009) (Alito, J., concurring) (identifying problem in opening door to claims where employee never opposed conduct and management unaware).

10 1068 SUFFOLK UNIVERSITY LAW REVIEW [Vol. XLIII:1059 permitted. 55 In Thompson v. North American Stainless, LP, the Sixth Circuit considered whether the fiancée of a discrimination claimant had an actionable retaliation claim against their joint employer where the claimant had not personally engaged in his fiancée s protected activity. The court joined the Third, Fifth, and Eighth Circuits in holding that Title VII does not authorize third-party retaliation claims, but instead only shields those employees who themselves engage in protected activity from employer reprisals. Although Congress could have, and arguably should have, established greater protections for third-party claimants, the plain language of Title VII limits standing to those who have either opposed or participated in the protected conduct. Where the statutory language was unambiguous and there were plausible reasons for excluding these claims, the court s task was solely to interpret the law, and not to rewrite it. Robyn M. Hegerich 55. See Starr & Wilson, supra note 32 (illustrating employer s ability to manage workplace as impaired if third-party claims recognized as cognizable).