A. What Constitutes Protected Activity? The first element of the plaintiff's prima facie case is proof that he engaged in statutorily protected activity. "Protected activity" is defined in Title VII's anti-retaliation provision, which classifies protected activity as either as ?opposition? or ?participation.? It is unlawful for an employer to discriminate against an employee if (1) he or she ?has opposed any practice made an unlawful employment practice by [Title VII]" (the opposition clause), or (2) ?has made a charge, testified, assisted or participated in any manner in an investigation, proceeding, or hearing under [Title VII]" (the participation clause). 42 U.S.C. § 2000e-3(a). The "opposition? and "participation" analysis is also applied under the ADA, the ADEA, and FMLA. The ADEA and the ADA have similar provisions, 42 U.S.C. § 623(d) and 42 U.S.C. § 12203(a), respectively. The ADA also includes a provision stating: ?It shall be unlawful to coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by [the ADA].? 42 U.S.C. § 12203(b). FMLA includes a provision that makes it "unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided." 29 U.S.C. § 2615(a)(1). Further, an employer may not consider the taking of FMLA leave as a negative factor in employment actions. See 29 C.F.R. § 825.220(c). The Opposition Clause The opposition clause has generally been interpreted expansively. As the Ninth Circuit noted in Trent v. Valley Elec. Ass?n, 41 F.3d 524, 526 (9th Cir. 1994), the EEOC and most courts have stated that Title VII's anti-retaliation provision protects opposition to an employment practice, so long as the employee has a ?reasonable and good-faith belief? that the practice opposed constituted conduct unlawful under Title VII.2 In Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 121 S.Ct. 1508, 1509-1510 (2001), the Supreme Court acknowledged that this standard has been widely accepted by the circuit courts. The Breeden court found "no occasion to rule on the propriety of this interpretation." Id. at 1509. However, even assuming that standard was correct, the court held that no reasonable person could have believed that the single incident of sexually related conversation in that case violated Title VII. See also, Curd v. Hank?s Discount Fine Furniture, Inc., 272 F.3d 1039 (8th Cir. 2001)(finding no protected activity under Breeden where plaintiff had sent an e-mail complaining that she was offended by a salesman standing in the showroom floor with his pants open tucking in his shirt). Compare, Schatzman v. Martin Newark Dealership, Inc., 158 F Supp 2d 392 (D. Del 2001)(distinguishing Breeden and rejecting the employer?s claim that the plaintiff could not reasonably have believed that isolated racial comments amounted to a violation of Title VII and §1981). Moore v. California Institute of Technology Jet Propulsion Laboratory, 275 F.3d 838 (9th Cir. 2002)(applying the Title VII reasonable and good-faith belief standard to the anti-retaliation provision of the False Claims Act, and noting that the Breeden court specifically declined rule on the propriety of the expansive interpretation of the protected activity). Breeden should not alter the principle that the underlying allegation of discrimination need not be proven in favor of the employee for a retaliation claim to have merit. See, e.g., Hocevar v. Purdue Frederick Co., 223 F.3d 721 (8th Cir. 2000)(employee could proceed to trial on her retaliation claim even though her hostile work environment sexual harassment claim was defeated on summary judgment); Sanchez v. Denver Pub. Sch., 164 F.3d 527, 533 (10th Cir. 1998)("[a] meritorious retaliation claim will stand even if the underlying discrimination claim fails," holding that retaliation claims could be evaluated by the court despite finding in favor of defendant on underlying Title VII and ADEA claims); Pryor v. Seyfarth, Shaw, Fairweather & Geraldson, 212 F.3d 976 (7th Cir. 2000)(allowing plaintiff's retaliation claim to proceed to trial despite a finding of insufficient evidence to sustain plaintiff's sexual harassment claim). However, after Breeden, plaintiffs can anticipate more vigorous arguments from employers that the plaintiff could not have reasonably believed that the underlying activity violated Title VII or other statutory provisions. Defendants successfully made that argument before Breeden and will likely raise it with increasing frequency in the future. See, e.g., Hamner v. St. Vincent Hosp. and Health Care Center, Inc., 224 F.3d 701 (7th Cir. 2000)(a homosexual plaintiff's retaliation claim failed because his belief that he was opposing unlawful conduct, i.e. sexual orientation discrimination, was unreasonable.) Some courts have also held that the form of the plaintiff?s opposition must be reasonable to satisfy the element of protected activity. See, e.g., Cruz v. Coach Stores, Inc., 202 F.3d 560, 566-67 (2d Cir. 2000)(plaintiff's act of slapping the alleged harasser, even though she may have been reacting to conduct prohibited under Title VII, was not protected activity; Title VII "... does not constitute a license for employees to engage in physical violence to protest discrimination"); Robbins v. Jefferson County Sch. Dist., 186 F.3d 1253 (10th Cir. 2000)(plaintiff's frequent, voluminous, often specious complaints and antagonistic behavior towards her superiors did not constitute protected activity under Title VII). 2. The Participation Clause ?Participation? activities are interpreted very broadly and are likely to be protected regardless of the reasonableness of the alleged statutory violation. See, e.g., Glover v. S.C. Law Enforcement Div., 170 F.3d 411, 412-414 (4th Cir. 1999)(Title VII's "participation clause" protects even "unreasonable testimony" given during a Title VII proceeding; all testimony in a Title VII proceeding is protected against punitive employer action regardless of its reasonableness, to ensure "not only that employers cannot intimidate their employees into foregoing the Title VII grievance process, but also that investigators will have access to the unchilled testimony of witnesses; Clover v. Total System Services Inc., 176 F.3d 1346, 1352-1353 (11th Cir. 1999)(rejecting the employer?s claim that plaintiff?s conduct was not protected activity because she simply participated in an internal investigation of another employee's EEOC charge, and this was not participation in an investigation intended to be covered by Title VII; applying a broad definition of "participation in any manner" under Title VII, the court found that an internal investigation of an employee's EEOC charge is, in effect, an extension of the EEOC investigation itself since the agency often relies on information gleaned from the employer's own internal investigation). Compare, Brower v. Runyon, 178 F.3d 1002 (8th Cir. 1999) (holding plaintiff's visits to employer's EEO counselor and HR manager did not constitute participation where neither conversation involved any complaints of discrimination or implications of unfair treatment). EEOC v. Total Systems Inc. 221 F.3d 117, 1174 (11th Cir. 2000)(holding statements taken prior to filing of a formal EEOC charge did not constitute ?participation?). For a discussion of the ?participation? clause and internal employer investigations, see D. Larkin, ?Note Participation Anxiety: Should Title VII's Participation Clause Protect Employees Participating In Internal Investigations,? 33 Ga. L. Rev. 1181 (Summer, 1999). --------------------- Schnabel v. Abramson, 232 F. 3d 83 (2nd Cir. 2000), affirmed the district court?s grant of summary judgment to defendant on plaintiff?s ADEA claim on the grounds that plaintiff, while proving that defendant?s proffered reasons for termination were pretextual, did not prove that age discrimination was the principal cause of his termination. The panel relied on a caveat in Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000), which stated that while prima facie evidence of discrimination plus evidence of pretext may fulfill plaintiff?s burden, ?there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant?s explanation, no rational factfinder could conclude the action was discriminatory.? Id. at 2109. Accordingly, the panel found that since ?plaintiff has presented no evidence upon which a reasonable trier of fact could base the conclusion that age was a determinative factor in defendants? decision to fire him,? the district court?s ruling should be upheld. The panel distinguished its facts from Reeves on the grounds that plaintiff was not subjected to any age-related comments while at work, was replaced by a man who happened to be younger but who had successfully held the same position at the same firm three years earlier, and was fired by the same man who had hired him when he was already 60 years old. Id. at 91. E.E.O.C. v. Sears Roebuck and Co., 243 F.3d 846 (4th Cir. 2001), supports a narrow and fact-specific reading of the Schnabel case cited above. In the course of reversing the district court?s grant of summary judgment for defendant, the court found Schnabel inapposite. The court distinguished the facts before it from Schnabel on three grounds: (1) the prima facie case was quite strong while the prima facie case in Schnabel was weak; (2) the employer offered changing and inconsistent reasons for its adverse employment action while the employer in Schnabel offered clear and specific reasons for its adverse employments actions; and (3) the employer offered no proof that illegal discrimination was not the real reason for the adverse employment action while in Schnabel such proof was offered by the employer. Id. at 856. ------------------ Skinner v. Maritz, Inc., C F.3d C (2001 WL 641556, 8th Cir., 2001) Appeals court held that an at-will employment relationship is a contract for purposes of a claim by an employee that she was subject to racial discrimination. § 1981 prohibits racial discrimination in contracts; there is an employment contract for purposes of applying that statute. Facts Skinner was an at-will employee of Maritz for 19 years when she was fired for unsatisfactory performance. She filed a § 1981 claim based on discrimination for race and sex. The district court dismissed the suit, holding that at-will employees do not have contractual rights in the event of termination. § 1981 requires a contract to exist, and since one did not, her cause of action must fail. Skinner appealed. Decision Reversed. Under Missouri law, employers may discharge at-will employees without cause and without liability unless the employee falls within a statutory provision that provides to the contrary. An at-will employee, employed without a written contract in an at-will relationship, has a "contract" within the meaning of civil rights statutes guaranteeing equal rights to make and enforce contracts. Such contracts may not be affected by racially discriminatory conduct. Her claim of racial discrimination in the employment relationship may proceed. ------------------- Spriggs v. Diamond Auto Glass, - F.3d - (1999 WL 34938, 4th Cir.) Description Employee sued for discrimination under §1981, contending he was forced to quit due to severe racial discrimination. Appeals court held that although the employment was at-will, the case could proceed. Facts "Spriggs argues that his at-will employment relationship with Diamond was a contract and that, by racially harassing him so severely as to force him to terminate that contract, the defendants violated §1981." District court dismissed the suit, holding that an at-will relationship did not create an enforceable claim. Spriggs appealed. Decision Reversed. Agreeing with the Fifth Circuit, the court held that even though "an at-will employee can be fired for good cause, bad cause, or no cause at all, he or she cannot be fired for an illicit cause." If Spriggs can show that "purposeful, racially discriminatory actions by Diamond personnel were so severe that they caused a 'discriminatory and retaliatory forced termination' of his employment" then he has a cause of action under §1981. ----------------------- Williamson v. City of Houston, 148 F.3d 462 (5th Cir., 1998) Description Female employee's complaints to supervisor about harassment ignored. Appeals court upheld verdict against employer. Fact that supervisor had been informed means that knowledge could be imputed to employer, who failed to act to protect employee. Facts Officer Williamson complained frequently to her supervisor about sexual harassment by a fellow officer, but her complaints were generally ignored. Williamson finally complained to the Internal Affairs Division, which found her claims to be "not sustained." She sued; the jury awarded her $128,000 damages, plus $200,000 in attorney fees and costs. City appealed. Decision Affirmed. Williamson presented sufficient evidence that her supervisor had knowledge of the harassment. That knowledge was properly imputed to the city, which knew or should have known of the harassment. Despite the fact that her supervisor was not in a position to fire or promote the officers involved, he was in the chain of command, so Williamson had taken her complaint to the proper level. -------------------- To establish a prima facie case Honor must show that: (1) he is amember of a protected class; (2) he was qualified for his job and hisjob performance was satisfactory; (3) he was fired; and (4) otheremployees who are not members of the protected class were retainedunder apparently similar circumstances. Bryant v. Bell Atlantic Mary-land, Inc., 288 F.3d 124, 133, 133 n.7 (4th Cir. 2002); Karpel v. InovaHealth Sys. Serv., 134 F.3d 1222, 1228 (4th Cir. 1998). ---------------------- To establish a prima facie retaliation claim, Honor must produceevidence from which a reasonable jury could find (1) that he engagedin a protected activity; (2) that his employer took an adverse employ-ment action against him; and (3) that a causal connection existedbetween the protected activity and the asserted adverse action.Mackey v. Shalala, 360 F.3d 463, 469 (4th Cir. 2004). Adverseemployment actions include any retaliatory act or harassment if thatact or harassment results in an adverse effect on the terms, conditions, or benefits of employment. Von Gunten v. Maryland, 243 F.3d 858,865-68 (4th Cir. 2001)(citing Munday, 126 F.3d at 242). "Once theplaintiff makes this case, the employer can defend itself by producing‘evidence of a legitimate, non-discriminatory reason for taking theadverse employment action.’" Bryant v. Aiken Regional Medical Cen-ters Inc., 333 F.3d 536, 543 (4th Cir. 2003). -------------------------- To demonstrate a racially-hostile work environment, Honor mustshow that he was the subject of conduct that was (1) unwelcome; (2)based on race; (3) sufficiently severe or pervasive to alter the condi-tions of employment and create an abusive atmosphere; and that (4)there is some basis for imposing liability on the employer. Spriggs v.Diamond Auto Glass, 242 F.3d 179, 183-84 (4th Cir. 2001). ------------------------ Novotny v. Great Am. Fed. Sav. & Loan Ass’n, 584 F.2d 1235, 1244-45 (3d Cir. 1978)(affording male standing to sue following discharge because “his actions and advocacy stood in thepath of a plan to deprive women of their equal opportunity rights”); EEOC v. Bailey, 563 F.2d439, 452 (6th Cir. 1977) (holding that EEOC could bring suit based on white female’s charge ofdiscrimination against blacks); Waters v. Hueblein, 547 F.3d 466, 469-70 (9th Cir. 1976)(affording standing to white female to redress discrimination against blacks and Spanish-surnamedemployees); Hackett v. McGuire Bros. Co., 445 F.2d 442, 446 (3d Cir. 1971) (granting standingto pensioner for an unlawful employment practices under Title VII even though he was no longeran employee); ----------------------- Section 704(a) of Title VII forbids retaliation against an employee "because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testi- fied, assisted, or participated in any manner in an investigation, pro- ceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a). This provision has two parts: the opposition clause and the participa- tion clause. A plaintiff makes out a prima facie case of retaliation by showing that she engaged in a protected activity, that she suffered an adverse employment action, and that the two were causally related. Ross v. Communications Satellite Corp. , 759 F.2d 355, 365 (4th Cir. 1985). ------------------------- Moreover, those who testify in Title VII proceedings are endowed with "exceptionally broad protection." Pettway v. American Cast Iron Pipe Co. , 411 F.2d 998, 1006 n.18 (5th Cir. 1969). "The word `testi- fied' is not preceded or followed by any restrictive language that lim- its its reach." Merritt v. Dillard Paper Co. , 120 F.3d 1181, 1186 (11th Cir. 1997). In fact, it is followed by the phrase"in any manner" -- a clear signal that the provision is meant to sweep broadly. Id. ; see also United States v. Wildes , 120 F.3d 468, 470 (4th Cir. 1997) ("`[A]ny' is a term of great breadth."), cert. denied , 118 S. Ct. 885 (1998). Congress could not have carved out in clearer terms this safe harbor from employer retaliation. A straightforward reading of the statute's unrestrictive language leads inexorably to the conclusion that all testimony in a Title VII proceeding is protected against punitive employer action. ------------------------- This conclusion is consistent with the purpose of the participation clause: "Maintaining unfettered access to statutory remedial mecha- nisms." Robinson v. Shell Oil Co. , 117 S. Ct. 843, 848 (1997). Section 704(a)'s protections ensure not only that employers cannot intimidate their employees into foregoing the Title VII grievance process, but also that investigators will have access to the unchilled testimony of witnesses. "Activities under the participation clause are essential to the machinery set up by Title VII." Laughlin , 149 F.3d at 259 n.4 (internal quotation marks omitted). If a witness in a Title VII proceed- ing were secure from retaliation only when her testimony met some slippery reasonableness standard, she would surely be less than forth- coming. It follows that the application vel non of the participation clause should not turn on the substance of the testimony. See Merritt , 120 F.3d at 1185-89 (participation clause applies even where witness does not testify for the purpose of assisting the claimant); see also Ross , 759 F.2d at 357 n.1 (antiretaliation provision applies even where underlying discrimination claim was not meritorious). "A pro- tected activity acquires a precarious status if innocent employees can be discharged while engaging in it, even though the employer acts in good faith." Pettway , 411 F.2d at 1005 (internal quotation marks omitted). Congress has determined that some irrelevant and even pro- vocative testimony must be immunized so that Title VII proceedings will not be chilled. It is not for this court to overturn that judgment. ---------------------------- But "the scope of protection for activity falling under the participation clause is broader than for activity fall- ing under the opposition clause." Laughlin , 149 F.3d at 259 n.4. This is because of the opposition clause's different text-- the ambiguous term "oppose" has the potential to include a wide range of informal activity ranging from petitions to "militant self-help." Hochstadt v. Worcester Found. for Experimental Biology , 545 F.2d 222, 230-31 (1st Cir. 1976). Consequently, courts have applied a balancing test to distinguish between protected opposition and unprotected obstreper- ousness. See id. ; Armstrong v. Index Journal Co. , 647 F.2d 441, 448 (4th Cir. 1981). But as we have noted, the text of the participation clause is unambiguous and specific. Testifying in a Title VII proceed- ing is plainly protected participation -- the clause neither requires nor allows further balancing. ----------------------------- See also Learned v. City of Bellevue , 860 F.2d 928, 932 (9th Cir. 1988) ("The mere fact that an employee is participating in an investi- gation or proceeding involving charges of some sort of discrimina- tion, however, does not automatically trigger the protection afforded under section 704(a)"); Jones v. Flagship International , 793 F.2d 714, 727 (5th Cir. 1986) (recognizing that § 704(a)'s protections may be denied to an employee whose activities adversely affect his effective performance of job duties). ---------------------- Because a claim under the participation clause would "naturally have arisen from an investigation" of these charges, this claim is properly before us. Dennis v. County of Fairfax , 55 F.3d 151, 156 (4th Cir. 1995); see also Chisholm v. United States Postal Serv. , 665 F.2d 482, 491 (4th Cir. 1981). ------------------------- Even within the plain meaning of the term "testify," Glover was not providing "evidence as a witness for the purpose of establishing or prov- ing some fact" in Koball's Title VII action during those some one hun- dred pages of the deposition transcript. Black's Law Dictionary 1476 (6th ed. 1990). ------------------------ Title VII prohibits an employer from discriminating against an employee in retaliation for opposing an unlawful employ- ment practice. See 42 U.S.C. § 2000e-3(a). To establish a prima facie case of retaliation, the EEOC must prove (1) that Scott and Potter engaged in a protected activity; (2) that R&R took an adverse action against Scott and Potter; and (3) a causal connection between the two. Tinsley v. First Union Nat'l Bank, 155 F.3d 435, 443 (4th Cir. 1998). ------------- Section 704(a) of Title VII forbids employers from retaliating against their employees for making use of the procedures offered by the EEOC. See 42 U.S.C. § 2000e-3(a). The statute's protections extend to former employees such as Gibson. Robinson v. Shell Oil Co. , 117 S. Ct. 843, 849 (1997). In order to prove retaliation a plaintiff must show that he engaged in protected activity, that his employer took adverse employment action against him, and that the employer did so because of the pro- tected activity. See Ross v. Communications Satellite Corp. , 759 F.2d 355, 365 (4th Cir. 1985). -----------------