Mattern v. Eastman Kodak Company Petition for a Writ of Certiorari

    No. 97-

In  Th e

Supreme Court of tf)e Umteti States;
October  Te r m , 1996

Jean G. Mattern,

v.
Petitioner,

Eastman Kodak Company, et al.,

Respondents.

On Petition for a Writ of Certiorari to the 
United States Court of Appeals for the Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

* Eric Schnapper
University of 
Washington 
School of Law 

1100 N.E. Campus Way 
Seattle, WA 98195 
(206) 616-3167

Elaine R. Jones 
Director-Counsel

Theodore M. Shaw 
Norman J. Chachkin 
Charles Stephen Ralston 
NAACP Legal Defense & 

Educational Fund, Inc. 
99 Hudson Street, Suite 1600 
New York, New York 10013 
(212) 219-1900

* Counsel of Record

Russell C. Brown 
The Wellborn, Houston 

Law Firm 
300 W. Main Street 
Henderson, TX 75652 
(903) 657-8544

Margaret A. Harris 
Katherine L. Butler 
Butler & Harris 
3223 Smith 
Suite 308
Houston, TX 77006 
(713) 526-5677

Counsel fo r  Petitioner
PRESS OF BYRON S. ADAMS ♦  WASHINGTON, D.C. 4-1-800-347-8208



1

Q u e s t io n  P r e s e n t e d

Does section 704(a) of Title VII of the 1964 Civil 
Rights Act permit an employee to be retaliated against, by 
or with the knowledge of company supervisors, for filing a 
charge with EEOC or otherwise opposing unlawful 
discrimination, so long as the retaliation does not constitute 
an "ultimate employment decision"?



P a r t ie s

The petitioner is Jean G. Mattem. The respondents 
are the Eastman Kodak Company and the Eastman 
Chemical Company, doing business as the Texas Eastman 
Company.



I ll

T a b l e  o f  C o n t e n t s

Question Presented .............................................    i

P a r t ie s ........................     ii

Table of A uthorities............................................................  iv

Opinions B e lo w ...................................................................  1

Jurisdiction ..........................................................................  2

Statute Involved ...................     2

Statement of the Case .....................    2

Reasons For Granting The W r i t .....................................  6

I. The Decision Below is in Conflict
With the Decisions of Seven Other 
C ircuits.......................................................... 6

II. The Decision Below is in 
Conflict With Three
Decisions of This Court .........................  16

III. This Case Presents Issues of
Substantial Importance ........................... 20

Conclusion................................................................................23



IV

TABLE OF AUTHORITIES

Cases: PaSes:

Aebisher v. Ryan,
622 F.2d 651 (2d Cir. 1980) ................. ...........  12

Aldrich v. Randolph Cent. School Dist.,
963 F.2d 520 (2d Cir. 1992) .............................  12

Banks v. Commonwealth Title of Dallas,
1997 WL 242901 (N.D. Tex. 1 9 9 7 ) ................. • • 21

Bart v. Telford,
677 F.2d 622 (7th Cir. 1982) .............................  11

Berry v. Stevinson Chevrolet,
74 F.3d 980 (10th Cir. 1996) .............................  12

Bievere v. American Airlines,
1996 WL 560073 (E.D. La. 1 9 9 6 )----- . . . . .  22

Bodkin v. West,
91 F.3d 129, 1996 WL 406249
(4th Cir. 1996) ........................................... .. • • • I 3

Cesaro v. Lakeville Community School Dist.,
953 F.2d 252 (6th Cir. 1992) ............................  I 4

Clair v. Commissioner of Social Security,
1995 WL 608472 (E.D. La. 1995) .................... 22

Cohen v. Fred Meyer, Inc.,
686 F.2d 793 (9th Cir. 1982) ----- . . . . . . . . .  12

Collins v. State of Illinois,
830 F.2d 692 (7th Cir. 1987) . ............... ...........  H



V

Dahm v. Flynn,
60 F.3d 253 (7th Cir. 1994) ...............................  11

Dollis v. Rubin,
77 F.3d 777 (5th Cir. 1995) ...............................  13

Edmond v. Fujitsu-ICL Systems, Inc.,
1997 WL 118406 (N.D. Tex. 1997) .................  22

EEOC v. Board of Governors of State Colleges,
957 F.2d 424 (7th Cir. 1992) ............ ................ 11

Hahn v. Bentsen,
1996 WL 383129 (E.D. La. 1996) ...................  22

Harris v. Forklift Systems, Inc.,
510 U.S. 17 (1993) . .................................... .. . 17, 18

Hopkins v. Nationwide Recovery Systems, Ltd.,
1997 WL 42527 (N.D. Tex. 1997) _____ . . . .  22

Hooper v. State of Maryland,
45 F.3d 426, 1995 WL 8043
(4th Cir. 1995) ..................................................... 13

Larry v. North Mississippi Medical Center,
940 F. Supp. 960 (N.D. Miss. 1996) ................. 22

Lewis v. Glickman,
1997 WL 276084 (E.D. La. 1997) ...................... .. 21

McGill v. Board of Educ. of Pekin 
Elementary School,
602 F.2d 774 (7th Cir. 1979)

Pages

11



VI

McKenzie v. Illinois Department of Transp.,
92 F.3d 473 (7th Cir. 1996) ...............................  11

Meritor Savings Bank v. Vinson,
477 U.S. 57 (1986)....................................  17, 18, 19

Merriel v. Pena,
1996 WL 442279 (E.D. La. 1996) . ...............  22

Page v. Bolger,
645 F.2d 227 (4th Cir. 1981) ........................  13, 14

Passer v. American Chemical Soc.,
935 F.2d 322 (D.C. Cir. 1991) .............................  9

Paxton v. Union N at’l. Bank,
688 F.2d 552 (8th Cir. 1982) .............. .. 12

Pieczynski v. Duffy,
875 F.2d 1331 (7th Cir. 1989) ___ . . . . . . . .  11

Reeder-Baker v. Lincoln Nat’l. Corp.,
834 F.2d 1373 (7th Cir. 1987) . . . . . . . ___ _ 11

Roark v. Kidder, Peabody & Co.,
1997 WL 189131 (W.D. Tex. 1997) ___ . . .  21

Robinson v. Shell Oil Company,
117 S. Ct. 843 (1997) ................. .. 5, 16, 17

Rutan v. Republican Party of Illinois,
497 U.S. 62 (1990)................... .......................  18, 19

Pages

Rutan v. Republican Party of Illinois, 
868 F.2d 951 (7th Cir. 1989) . 18



Sauers v. Salt Lake County,
1 F.3d 1122 (10th Cir. 1993) ............................  12

Smith v. American National Red Cross,
1992 WL 357850, (4th Cir. 1992) ...................... 13

Smith v. Perry,
1997 WL 160293 (N.D. Tex. 1997) . . . . ___  22

Smith v. Secretary of the Navy,
659 F.2d 1113 (D.C. Cir. 1981)............................  9

Smith v. St. Louis University,
109 F.3d 1261 (8th Cir. 1997) ..........................  12

St. John v. Employment Development Dept.,
642 F.2d 273 (9th Cir. 1981) ............................. 12

Steiner v. Showboat Operating Co.,
25 F.3d 1459 (9th Cir. 1994) ............................  11

Wallace v. Benware,
67 F.3d 655 (7th Cir. 1995) ............................... 11

Watts v. Kroger Co.,
955 F. Supp. 674 (N.D. Miss. 1997) .................  22

Welsh v. Derwinski,
14 F.3d 85 (1st Cir. 1994) ...............................  9, 10

Wu v. Thomas,
996 F.2d 271 (11th Cir. 1993) .....................  14, 15

Yartzoff v. Thomas,
809 F.2d 1371 (9th Cir. 1987) ___ . . . . . . . .  12

vii

Pages



Vlll

Young v. Lehman,
748 F.2d 194 (4th Cir. 1984) .............................  13

Statutes: Pages:

28 U.S.C. §1254 ................    2

1964 Civil Rights Act, 42 U.S.C. §2000e-3(a) . . . . . . .  2

1964 Civil Rights Act, §§ 703 & 704 ........................passim

1964 Civil Rights Act § 717 ...............     13

Title VII ................       passim

Other Authorities Pages:

EEOC Compliance Manual,
Section 614.7 (App. 1 9 a ) ........................   15

Pages



No. 97-

In The

Supreme Court of tfje Mmteti States;
O ctober Term , 1996

Jean  G. Mattern,
Petitioner,

v.

Eastman Kodak Company, et al,
Respondents.

On Petition for a Writ of Certiorari to the 
United States Court of Appeals 

for the Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

Petitioner Jean G. Mattern respectfully prays that this 
Court grant a writ of certiorari to review the judgment and 
opinion of the United States Court of Appeals for the Fifth 
Circuit entered on January 16, 1997.

O p in io n s  B e l o w

The opinion of the Fifth Circuit, which is reported at 
104 F.3d 702 (5th Cir. 1997), is set out at pp. la-40a of the 
Appendix hereto. The decision of the court of appeals 
denying rehearing and rehearing en banc, which is not 
reported, is set out at p. 40a-41a of the Appendix. The 
September 14, 1995, opinion of the district court denying 
respondents’ motion for judgment as a matter of law, which 
is not reported, is set out at pp. 42a-45a of the Appendix.



2

J u r is d ic t io n

The decision of the Fifth Circuit was entered on 
January 16, 1997. A timely petition for rehearing was 
denied on April 22, 1997. The jurisdiction of this Court is 
invoked pursuant to 28 U.S.C. §1254.

St a t u t e  In v o l v e d

Section 704(a) of Title VII of the 1964 Civil Rights 
Act, 42 U.S.C. §2000e-3(a), provides in pertinent part that 
it shall be unlawful "for an employer to discriminate against 
any of his employees . . . because he has opposed any 
practice made unlawful by this title, or because he has made 
a charge . . . under this title."

St a t e m e n t  o f  t h e  C a s e

This case has its origins in a particularly noxious 
pattern of sexual harassment. From October 1989 until July 
1993 petitioner worked as a mechanical apprentice at a large 
chemical plant operated by respondent in Harrison County, 
Texas. During the latter part of this period, petitioner was 
repeatedly assaulted by two senior company mechanics, 
Johnny Godwin and George Roberts. On numerous 
occasions, these men grabbed petitioner’s breasts and 
buttocks, touched her in other sexual ways, referred to her 
as "my bitch", and attempted to engage her in discussions of 
her sexual practices. Godwin regularly forcibly held 
petitioner over his lap and "spanked" her. This conduct at 
times occurred in the office or in plain view of petitioner’s 
supervisor. The harassment was so severe that petitioner 
ultimately required medical treatment.

Petitioner eventually sought the assistance of counsel, 
brought the abuse to the attention of company officials, and 
filed a Title VII charge with the EEOC. On March 11, 
1993, high ranking company officials asked Godwin to take 
early retirement, to which he agreed. No action was taken, 
however, against Roberts or any of the other accused



3

harassers brought to respondent’s attention. Petitioner’s 
complaint, and the ensuing removal of Godwin, triggered a 
campaign of harassment against petitioner herself. As 
respondent’s counsel explained below, the removal of 
Godwin caused "its employees . . .  disappointment and anger 
that a coworker ha[d] been removed."1 That harassment 
soon drove petitioner herself from the plant. She resigned 
on July 19, 1993, four months after her complaint had cost 
Godwin his own job.

The retaliation that followed petitioner’s complaint 
occurred largely at the hands of company supervisors. 
Petitioner’s most senior supervisor openly announced that he 
was going to "fire" petitioner. (App. 26a). The senior 
supervisor responsible for apprentice progression put 
petitioner on "final warning" of discharge.(App. 7a, 24a). 
Petitioner’s job performance and mechanical skills, which 
previously had been satisfactory, were now rated poorly by 
the same supervisors who had earlier praised her work. 
(App. 7a, 25a). These negative ratings caused petitioner to 
miss a pay increase. (App. 7a, 24a). As part of her job 
testing, after her complaint was filed, petitioner was required 
to realign a pump that had been deliberately placed on a 
wooden pallet, rather than a solid base, to make the test 
impossible to perform. (App. 7a).

Further, petitioner was required to climb scaffolding 
in a fire protection suit so large as to make the ascent 
dangerous. (App. 6a, 24a). On the same day that 
respondent’s managers forced Godwin to retire, petitioner 
was home ill. Respondent sent a senior manager and 
petitioner’s supervisor to petitioner’s home to insist that she 
return with them to the Eastman medical department for 
evaluation. This action was admitted to be "highly unusual, 
if not unprecedented." (App. 6a, 24a). On March 29, 1993, 
when petitioner went to Eastman’s Human Resources *

‘Brief for Appellant, No. 95-40836 (5th Cir.), p. 20.



4

Department to complain about the retaliation, she was 
reprimanded by her managers for being outside her work 
area (App. 6a, 24a).

Petitioner was also harassed by her fellow workers 
following her charge of harassment, in part because Eastman 
had returned petitioner to the very work environment she 
had complained about and to working with the very men, 
other than Godwin, she had accused of harassment. A 
pump which she had repaired was deliberately sabotaged. 
(App. 25a). Several workers commented to petitioner that 
"accidents happen" (App. 26a). Petitioner’s locker was 
broken into and several of her tools stolen, rendering it 
difficult for petitioner to perform her job. (App. 6a). 
Petitioner repeatedly complained about this harassment to 
company officials. A written complaint was also made to 
respondent by petitioner’s attorney. Her physician was so 
alarmed that he too called Eastman management. (App. 
26a). Petitioner and her physician testified that company 
officials responded that there was nothing they could or 
would do about the harassment.2

Petitioner ultimately filed suit under Title VII of the 
1964 Civil Rights Act, as amended, in the United States 
District Court for the Eastern District of Texas. Her 
complaint alleged two distinct causes of action: sexual
harassment and retaliation. A jury concluded that petitioner 
had indeed been subject to sexual harassment, but denied 
recovery because it concluded that company officials had 
taken prompt remedial action against Godwin. (App. 2a). 
The jury found that petitioner had not been constructively 
discharged. The jury found that respondent had retaliated 
against petitioner for having complained about the sexual 
harassment, and awarded $50,000 in compensatory damages. 
In separate orders, the trial court awarded petitioner, as the 
prevailing party, attorneys’ fees and expenses.

2Record, VII p. 112; IX pp. 122-24, 269-70.



5

On appeal, respondent did not argue that the damage 
award was excessive. Rather, respondent contended, and the 
Fifth Circuit held, that the retaliatory acts complained of 
simply were not unlawful, even if they were taken—as the 
jury had found—to punish petitioner for having complained 
about the proven sexual harassment. The Court of Appeals 
panel ruled that an employer could retaliate against a 
worker for complaining about or filing charges of unlawful 
discrimination, so long as the form of retaliation did not 
involve an "ultimate employment decision". Judge Dennis 
dissented from the panel decision, insisting that the Fifth 
Circuit’s "ultimate employment decision" doctrine was 
"contrary to the clear statutory language, the Supreme Court 
decisions, and all prior jurisprudence." (App. 39a).

Petitioner filed a timely petition for rehearing and 
suggestion for rehearing en banc. On February 18, 1997, 
while that petition for rehearing was pending, this Court 
decided Robinson v. Shell Oil Company, 117 S.Ct. 843 (1997). 
That same day counsel for petitioner brought Robinson to 
the attention of the Fifth Circuit by letter, as contemplated 
by Fifth Circuit Rule 28.4.3 On April 22, 1997, the Fifth 
Circuit nonetheless denied the petition for rehearing and 
declined to set the case for reconsideration en banc.

3Letter of Margaret A. Harris to Ms. Mary Francis Noveh, Clerk, 
United States Court of Appeals for the Fifth Circuit, February 18,
1997.



6

R e a s o n s  F o r  G r a n t in g  T h e  W r i t

i .

The  Decision  Below  is in  Conflict With  the 
Decisions of Seven  Other  Circuits

This case concerns a peculiar Fifth Circuit doctrine 
that expressly permits employers to retaliate against 
employees who file charges with EEOC, or who otherwise 
oppose discrimination, so long as the employers utilize 
certain approved methods of retaliation. In the instant case 
a jury found that petitioner had been subject to a long series 
of retaliatoiy acts by or known to respondent’s supervisors, 
and concluded that that retaliation had caused petitioner 
$50,000 in damages. The Fifth Circuit did not question the 
jury’s findings that the actions had occurred and that 
respondent intended to retaliate against petitioner; nor did 
the court of appeals dispute the jury’s finding that those 
retaliatoiy acts had injured petitioner in the amount 
awarded. The court of appeals nonetheless overturned the 
jury verdict, reasoning that the retaliatoiy methods utilized 
by respondent were "non-actionable" under Title VII of the 
1964 Civil Rights Act. (App. 12a).

The decision below applied the Fifth Circuit’s "long- 
held rule that Title VTI’s anti-retaliation provision refers to 
ultimate employment decisions, and not to an ‘interlocutory 
or mediate’ decision which can lead to an ultimate decision." 
(App. 13a). The only retaliatory methods impermissible to 
employers in the Fifth Circuit are those involving "ultimate 
employment decisions", "acts ‘such as hiring, granting leave, 
discharging, promoting, and compensating.’" (App.lOa). All 
other retaliatory methods are permitted in the Fifth Circuit, 
even though they "might jeopardize employment in the 
future" (App. 12a)(emphasis in original), "increas[e] the 
chance that [a complainant] would eventually suffer" an 
adverse "ultimate employment decision" (App. 12a)(emphasis 
omitted), or "‘would tend’ to affect the employee." (App.



7

14a). As the EEOC noted below in its brief urging 
rehearing, "The majority held in this case . . . that Title VII 
permits an employer to harass and reprimand an employee 
for filing a Title VII charge, to unfairly evaluate her work 
and threaten to discharge her, as long as the employer stops 
short of firing or demoting the employee."4 The rule that 
such forms of retaliation are lawful under Title VII, the 
court below held, is a "binding precedent". (App. 11a).

In explaining its holding that Title VTI forbids only 
those retaliatory actions involving "ultimate employment 
decisions," the Fifth Circuit specifically listed a wide range 
of retaliatory acts that, in its view, are permitted by Title 
VII:

(1) "the verbal threat of being fired" (App. 11a), and 
being placed "on ‘final warning’ of discharge" (App. 
7a, 10a);

(2) "disciplinary filings" (App. 12a), "supervisor’s 
reprimands" (App. 12a), and reviewing petitioner’s 
work "more negatively after she . . . EEOC charge" 
(App.6a, 7a, 11a);

(3) being "required to climb scaffolding in a fire 
protection suit that . . . was unsafe" (App. 6a);

(4) when petitioner was out sick, sending "two . . . 
supervisors to [her] house to instruct her to return to 
Eastman" an action which was "highly unusual, if not 
unprecedented" (App. 6a, 11a);

4Brief of the Equal Employment Opportunity Commission as 
Amicus Curiae in Support of Petitions for Rehearing and Suggestion 
of Rehearing En Banc, No. 95-40836 (5th Cir.), pp. 10-11; see id. at 
5. ("According to the majority, § 704 does not prohibit an employer 
from subjecting an employee to a campaign of harassment and 
intimidation because she filed a charge, even where, as here, the 
harassment causes the employee physical harm.")



8

(5) failing to protect petitioner when she complained 
to Kodak that hostile fellow workers "would mutter 
‘accidents happen’" and had broken into petitioner’s 
locker and stolen some of her tools (App. 6a, 11a);

(6) "causing [petitioner] to miss a pay increase" (App. 
7a, 15a) or "prolonging the time [complainant] had to 
wait for disbursement checks" (App. 12a);

(7) requiring petitioner to work on machinery 
"deliberately placed" in such a manner as to "scuttle 
her efforts" to repair it (App. 7a-8a);

(8) being "refused consideration for promotion" 
(App. 11a);

(9) being "refused attendance at a training 
conference" (App. 11a);

(10) giving a complainant "false information 
regarding aspects of [the complainant’s] employment, 
including access to travel funds and methods of filing 
EEO complaints" (App. 12a);

(11) "deleting experience data from a reference form" 
(App. 13a);

(12) distributing an "office newsletter . . . routinely 
ridiculing the [complainant] based on her . . . having 
filed EEOC complaint" (App. 13a).

Such retaliatory acts, the Fifth Circuit held, are simply "non- 
actionable" (App. 12a) because they "do not constitute 
ultimate employment decisions" (App. 11a).

The dissenting member of the Fifth Circuit panel 
below correctly observed that the majority opinion conflicts 
with decisions in numerous other lower courts (App. 12a). 
In fact seven other circuits have ruled that the anti­
retaliation provisions of federal anti-discrimination laws are 
not limited to "ultimate employment actions" such as hiring, 
firing, and promotions.



9

The District of Columbia Circuit holds that the 
ADEA, like Title VII,

proscribes "discrimination" against those who invoke 
the Act’s protections; the statute does not limit its 
reach only to acts of retaliation that take the form of 
cognizable employment actions such as discharge, 
transfer or demotion. . . . Nor could a more 
restrictive reading of ADEA’s anti-retaliation 
provision be squared with other cases that have 
found illegal retaliation in employer conduct that 
could not be described strictly as an "employment 
action."

Passer v. American Chemical Soc., 935 F.2d 322, 331 (D.C. 
Cir. 1991) (citing cases in the District of Columbia, Tenth 
and Eleventh Circuits). In Passer, the District of Columbia 
Circuit upheld the legal sufficiency of a claim that an 
employer had retaliated against Dr. Passer by cancelling a 
symposium in his honor. 935 F.2d at 330. In Smith v. 
Secretary o f the Navy, 659 F.2d 1113 (D.C. Cir. 1981), the 
Court of Appeals awarded injunctive relief to a plaintiff 
where an "unfavorable supervisory evaluation" had been 
placed in his file in retaliation for his EEO activities, 659 
F.2d at 1121. The court continued:

[T]he findings of the District Court establish that 
appellant has so far suffered no financial loss as a 
result of the improper evaluation given by his 
supervisor. Maintenance of the prohibited 
assessment in Smith’s personnel file would damage 
him by threatening his prospects for future 
promotions or merit awards.

659 F.2d at 1122. The claim on which Smith prevailed in 
the District of Columbia Circuit would be dismissed as 
legally insufficient in the Fifth Circuit.

In Welsh v. Derwinski, 14 F.3d 85 (1st Cir. 1994), the 
First Circuit expressly refused to read into the anti­



10

retaliation provision of the ADEA the narrow limitations 
adopted by the Fifth Circuit.

Defendant . . . argues that a reduction in duties 
could not be an "adverse employment action" . . . 
[and] that only discharge, demotion, or failure to 
promote can constitute an adverse employment 
action within the Act. We do not agree. . . . [M]any 
things, such as constant rudeness, conspicuous 
discriminatory acts, etc., could have an adverse effect 
upon employment.

14 F.3d at 86.

Similarly, the Seventh Circuit has expressly rejected 
arguments that section 704(a) applies only to acts of 
retaliation that necessarily cause an immediate loss of 
income.

[Cjontrary to defendants’ assertion, several courts 
have found an adverse job action, for purposes of . . . 
retaliation, in a lateral transfer even where the 
transfer did not result in a reduction of pay or 
benefits. Title VII does not limit adverse job action 
to strictly monetary considerations. One does not 
have to be an employment expert to know that an 
employer can make an employee’s job undesirable or 
even unbearable without money or benefits ever 
entering the picture. . . . We believe adverse job 
action is not limited to loss or reduction of pay or 
solely monetary benefits. It can encompass other 
forms of adversity as well. For example, other courts 
have found adverse job impact, where there was no 
reduction in salary or benefits, in an employer’s 
moving an employee’s office to an undesirable 
location, transferring an employee to an isolated 
comer of the workplace, and requiring an employee 
to relocate her personal files while forbidding her to 
use the firm’s stationary and support services.



11

Collins v. State o f Illinois, 830 F.2d 692, 702-703 (7th Cir. 
1987). The Seventh Circuit has recognized a cause of action 
for a variety of retaliatory acts that would be legal in the 
Fifth Circuit. Collins v. State o f Illinois (retaliatory transfer 
without loss of pay); McKenzie v. Illinois Department o f 
Transp., 92 F.3d 473, 484 (7th Cir. 1996) (retaliatory refusal 
to deliver certain forms to plaintiff, which "made her job 
more difficult"); EEOC  v. Board o f Governors o f State 
Colleges, 957 F.2d 424 (7th Cir. 1992) (retaliatory refusal to 
process discrimination grievance); Reeder-Baker v. Lincoln 
Nat’l. Corp., 834 F.2d 1373, 1375 (7th Cir. 1987) (retaliatory 
acts included lower performance evaluation and placing 
complainant on probation). The Seventh Circuit has 
correctly observed that threats of punitive action short of 
dismissal can often deter employees from speaking out.5

The Ninth Circuit has repeatedly recognized a cause 
of action for types of retaliation that fall short of the Fifth 
Circuit standard of "ultimate employment decision." Steiner 
v. Showboat Operating Co., 25 F.3d 1459, 1462-66 (9th Cir. 
1994) (lower evaluation, ridicule by supervisor, being put in

M cGill v. Board of Educ. of Pekin Elementary School, 602 F.2d 
774, 780 (7th Cir. 1979) ("the threat of transfer—whether it be to a 
school with a less desirable reputation or one perceived as dangerous 
or one that is difficult to get to—could be an effective means of 
chilling . . . speech"); see also Wallace v. Benware, 67 F.3d 655, 662 
(7th Cir. 1995) (refusal to provide materials and equipment needed 
to perform the job; refusal of supervisor to speak with employee); 
Dahm v. Flynn, 60 F.3d 253, 257 (7th Cir. 1994) ("a dramatic 
downward shift in skill level required to perform job responsibilities 
can rise to the level of an adverse employment action"); Pieczynski v. 
Duffy, 875 F.2d 1331, 1335-6 (7th Cir. 1989) (retaliatory acts included 
baseless charges of misconduct, eliminating supervisory powers, verbal 
abuse, denial of requests for different lunch hour; damage award of 
$95,000 upheld despite the fact that complainant had "retained her 
job, salary, benefits, etc. in the face of the alleged campaign of 
harassment"); Bart v. Telford, 611 F.2d 622, 625 (7th Cir. 1982) 
(deterrence by "harassment and ridicule").



12

a worse job or given additional duties); Yartzoff v. Thomas, 
809 F.2d 1371,1376 (9th Cir. 1987) ("[transfers of job duties 
and undeserved [unfavorable] performance ratings . . .  would 
constitute ‘adverse employment decisions’ cognizable under 
. . . section [704(a)]"); Cohen v. Fred Meyer, Inc., 686 F.2d 
793, 795 (9th Cir. 1982) (requiring complainant to work 
night and weekend shifts); St. John v. Employment 
Development Dept., 642 F.2d 273 (9th Cir. 1981) (affirming 
finding of violation for retaliatory transfer).

The Eighth Circuit has found a violation of section 
704(a) and ordered injunctive relief where a supervisor had 
conducted an "intensive interrogation of [a charging party] 
as to why he filed a charge of discrimination with EEOC." 
Paxton v. Union Nat’l. Bank, 688 F.2d 552, 572 (8th Cir. 
1982); see also Smith v. St. Louis University, 109 F.3d 1261, 
1266 (8th Cir. 1997) ("actions short of termination may 
constitute adverse actions within the meaning of the 
statute"). The Tenth Circuit recognizes a cause of action 
under section 704(a) for such retaliatory acts as initiating a 
retaliatoiy criminal prosecution, Berry v. Stevinson Chevrolet, 
74 F.3d 980, 986 (10th Cir. 1996), or reassigning a 
complainant against her wishes to another job. Sauers v. Salt 
Lake County, 1 F.3d 1122 (10th Cir. 1993). The Second 
Circuit has recognized a retaliation claim where an 
employer, allegedly for retaliatoiy reasons, had failed to ask 
a complainant if she wanted to work on a particular 
overtime assignment. Aldrich v. Randolph Cent. School Dist., 
963 F.2d 520, 529 (2d Cir. 1992); see Aebisher v. Ryan, 622 
F.2d 651, 655 (2d Cir. 1980) (employee speech "may be 
deterred almost as potently by the threat of sanctions as by 
their actual application.")

On the other hand, the Fourth Circuit applies a 
version of the "ultimate employment decision" doctrine 
evidently more sweeping than the Fifth Circuit doctrine 
applied in this case. The Fifth Circuit rule set out in the 
decision below is expressly limited to retaliation claims; the



13

court below held that at least some adverse employment 
actions short of ultimate employment decisions, and thus on 
its view permissible as methods of retaliation, would be 
unlawful under section 703(a)(2) if taken against an 
employee because of his or her race, national origin, religion 
or gender. (App. 13a-14a.)6 In the Fourth Circuit, 
however, discrimination other than in ultimate employment 
decisions is lawful, not only as methods of retaliation under 
section 704(a), but also as methods of discrimination under 
sections 703(a) and 717. Page v. Bolger, 645 F.2d 227 (4th 
Cir. 1981). The application of Title VII’s prohibition against 
intentional discrimination, Page held

has consistently focused on . . . discrimination in 
what could be characterized as ultimate employment 
decisions such as hiring, granting leave, discharging,
promoting, and compensating.............. "[Ujltimate
employment decisions" . . . alone should be held 
directly covered by §717 and comparable 
antidiscrimination provisions of Title VII.

645 F.2d at 233. The Fourth Circuit has repeatedly applied 
Page v. Bolger to dismiss non-retaliation claims.7 The

6The Fifth Circuit had earlier applied the ultimate employment 
decision doctrine to a non-retaliation claim. Dollis v. Rubin, 77 F.3d 
777, 782 (5th Cir. 1995).

7Bodkin v. West, 91 F.3d 129 (Table), 1996 WL 406249 (4th Cir. 
1996) (Title VII does not forbid discriminatory processing on the 
basis of race of information related to plaintiff s request for security 
clearance); Hooper v. State of Maryland, 45 F.3d 426 (Table), 1995 
WL 8043, *4 (4th Cir. 1995) (discrimination in assignment lawful); 
Smith v. American National Red Cross, 1992 WL 357850 *4 (4th Cir. 
1992) (lawful to discriminate in filling out interview reports); Young 
v. Lehman, 748 F.2d 194, 198 (4th Cir. 1984) (Title VII not violated 
by race-based decision to disband promotion panel which had 
recommended promotion of black plaintiff and creation of a second 
panel to redecide the issue).



14

Fourth Circuit’s definition of an "ultimate employment 
decision" evidently differs to some degree from the Fifth 
Circuit’s definition. Compare Page, 645 F.2d at 233 (denial 
of training is an ultimate employment decision) with App. 
11a (contra). In one case the Sixth Circuit has applied the 
equivalent of an ultimate employment decision rule in a non­
retaliation case. Cesaro v. Lakeville Community School Dist., 
953 F.2d 252, 254-55 (6th Cir. 1992) (decision to open 
position to outside applicants not actionable under Title VII 
even if motivated by a desire to discriminate against female 
internal applicant). Other lower court decisions have 
expressly "disagreed with Page" (App. 34a n.l).

Finally, the Eleventh Circuit has expressly declined to 
decide whether an employer could lawfully retaliate against 
an employee by means of the sort of harassment which 
would unquestionably be illegal if motivated by an 
employee’s race or gender.

[W]e cannot find any [Eleventh Circuit] case that 
clearly established that retaliatory harassment—as 
opposed to sexual or racial harassment—could violate 
Title VII where the employer caused the employee 
no tangible harm, such as loss of salary, benefits, or 
position. The statute itself says that an employer 
cannot "discriminate" against a protected employee. 
That all hostile acts are wrongful is not plain from 
this language. Although we have interpreted Title 
VII to mean that an employer cannot retaliate by 
taking an "adverse employment action" against an 
employee . . . , we have never defined what this 
general phrase m eans.. . .  [W]e do not reach this . . . 
issue.

Wu v. Thomas, 996 F.2d 271, 273-74 (11th Cir. 1993) 
(footnote omitted). The Eleventh Circuit recognized that 
the Seventh Circuit had held such retaliation unlawful. 996 
F.2d at 274 n.4 (citing Collins v. Illinois). But, reasoning that 
the absence of a prior Eleventh Circuit decision on this issue



15

meant that supervisors enjoyed qualified immunity, the court 
in Wu v. Thomas overturned a substantial damage award 
based on juiy findings of an extensive campaign of 
harassment of the plaintiff.8

It is noteworthy that the EEOC has long maintained, 
as it argued below, that section 704(a) protects employees 
and former employees from any form of adverse action.

Harassing or intimidating an individual because that 
individual has opposed employment discrimination is 
a violation of Section 704(a). Harassment or 
intimidation can take many forms . . . [retaliatory 
reprimands . . . [cjoercive questioning . . . 
[retaliatory surveillance . . . .

EEOC Compliance Manual, Section 614.7 (App. 19a). 
The EEOC holds that an employer would violate section 
704(a) if it knew that coworkers were retaliating against a 
complainant and failed to take effective measures to end 
that retaliation. Id. at section 614.7(g)2) (App.l9a-20a). 
Under the decision below, however, such knowing inaction 
could not violate section 704(a), because fellow employees 
would be incapable of taking the types of retaliatory acts, 
such as firing the charging party, that the Fifth Circuit 
regards as an ultimate employment decision.

8The defendant supervisor had, inter alia, written "a list of 
‘bankersfsicj dozen ideas’ to discipline Kathleen Wu; . . . called her 
dishonest with no proof; and damaged her reputation as a teacher 
and a person." 996 F.2d at 273 n. 1. The jury had awarded $20,000 
in compensatory damages. 996 F.2d at 272.



16

II.

The Decision  Below is in  Conflict With  
Three  Decisions of This Court

The decision below conflicts on several different 
grounds with this Court’s decision in Robinson v. Shell Oil 
Co., 117 S. Ct. 843 (1997). First, Robinson expressly upheld 
a cause of action under section 704(a) based on a retaliatory 
job reference; nothing in the opinion indicated that such 
retaliation would be legal until and unless a second employer 
actually relied on that adverse reference in refusing to hire 
the victim. The Fifth Circuit below, however, held that a 
retaliatory less favorable job reference would be lawful: 
"deleting experience data from a [job applicant’s] reference 
form . . .  did not constitute retaliation . . . .  an ultimate 
employment decision had not occurred" (App. 12a-13a). 
That holding was compelled by the Fifth Circuit’s insistence 
that Title VII permits retaliatory acts that would only "tend 
to" result in the denial or loss of a job; a retaliatory adverse 
job reference does not guarantee an applicant will not be 
hired, just as the retaliatory adverse performance evaluations 
in this case did not automatically mean petitioner would be 
fired.

Second, Robinson held that it would be inconsistent 
with the purpose of section 704(a) to effectively exclude 
former employees from the protection of the prohibition 
against retaliation. 117 S. Ct. at 848-49. Under the Fourth 
Circuit rule overturned in Robinson, a former employee was 
completely outside the protections of section 704(a), except 
in the rare case in which he or she reapplied for work at his 
or her former employer. The Fifth Circuit’s "ultimate 
employment decision" rule in the instant case has precisely 
the same consequence as the Fourth Circuit rule rejected by 
this Court in Robinson, because no retaliatory act that could 
be taken against a former employee, except a refusal to 
rehire, could constitute such an "ultimate employment 
decision."



17

Third, the decision below is manifestly inconsistent 
with what Robinson described as a "primary purpose of 
antiretaliation provisions: Maintaining unfettered access to 
statutory remedial mechanisms." 117 S.Ct. at 848. The Fifth 
Circuit doctrine provides employers with a rich arsenal of 
retaliatory techniques with which to punish and deter current 
and former employees who file charges with the EEOC or 
who otherwise oppose discriminatory practices.

The decision below conflicts as well with Harris v. 
Forklift Systems, Inc., 510 U.S. 17 (1993) and Meritor Savings 
Bank v. Vinson, 477 U.S. 57 (1986), as Judge Dennis noted 
in his dissenting opinion below (App. 20a-21a, 38a, 39a). 
The pivotal rationale of the Fifth Circuit is that the term 
"discriminate" in section 704(a) should be given the same 
meaning as the term has in section 703(a)(1). Section 
703(a)(1), the court below noted, only declares it unlawful 
to "fail or refuse to hire or to discharge any individual or 
otherwise discriminate against any individual with respect to 
his compensation, terms, conditions or privileges of 
employment." In both section 703(a)(1) and section 704(a), 
the Fifth Circuit insisted, "discrimination" "include[s] only 
ultimate employment decisions", and not other "vague 
harms" which "‘would tend’ to affect the employee" (App. 
13a-14a). Systematic harassment, the panel reasoned, simply 
is not "discrimination" within the meaning of either section, 
even though it may have "a tangential effect on conditions 
or employment,. . . [because] in M attem’s case, an ultimate 
employment decision had not occurred" (App. 13a).

This refusal to treat harassment as "discrimination" 
under Title VII is flatly inconsistent with Harris and Meritor. 
Both decisions hold expressly that the "discrimination" 
forbidden by section 703(a)(1) in the terms, conditions and 
privileges of employment:

is not limited to "economic" or "tangible" 
discrimination. The phrase "terms, conditions, or 
privileges of employment" evinces a congressional



18

intent "to strike at the entire spectrum of disparate
treatment of men and women" in employment.

Harris, 510 U.S. at 21; Mentor, 477 U.S. at 64. "A 
discriminatorify abusive work environment, even one that 
does not seriously affect employees’ psychological well-being, 
can and often will detract from the employees’ job 
performance, discourage employees from remaining on the 
job, or keep them from advancing in their careers." Harris, 
510 U.S. at 22 (emphasis added). See id. at 23 (referring to 
harassment as "discriminatory conduct"), 25 (Scalia, J., 
concurring) (Title VII violated when "working conditions 
have been discriminatorily altered" by harassment), 25 
(Ginsburg, J., concurring) (referring to harassment as 
"discriminatory conduct" under section 703(a)(1); Meritor, 
A ll  U.S. at 65 (harassment violated right under section 
703(a)(1) to "an environment free from discriminatory 
intimidation, ridicule, and insult"), 66 (Title VII prohibits "a 
hostile environment based on discriminatory sexual 
harassment") (emphasis omitted).

The reasoning of the Fifth Circuit opinion conflicts 
with this Court’s decision in Rutan v. Republican Party o f 
Illinois, 497 U.S. 62 (1990). The defendants in Rutan had 
retaliated in a variety of ways against government employees 
who had failed to support the Republican Party. The 
Seventh Circuit held that the First Amendment prohibition 
against such retaliation applied only where the victims were 
either formally dismissed or were constructively discharged 
by being subject to abuses so severe "as to be tantamount to 
outright dismissal." Rutan v. Republican Party o f Illinois, 868 
F.2d 951, 950-52 (7th Cir. 1989). One of the plaintiffs in 
Rutan alleged that he had been denied a desirable transfer 
in retaliation for failing to support the Republicans. This 
Court reversed the decision of the Seventh Circuit 
permitting such forms of retaliation, holding that any 
retaliation—including the denial of a transfer—was within 
the scope of the First Amendment’s protections:



19

respondents . . .  argue that the employment decisions 
at issue here do not violate the First Amendment 
because the decisions . . .  do not in any way adversely 
affect the conditions of employment, and therefore 
do not chill the exercise of protected belief and 
association by public employees. This is not credible.
. . . Employees denied transfer to workplaces 
reasonably close to their homes until they join and 
work for the Republican Party will feel a daily 
pressure from their long commutes to do so. . . .  We 
therefore determine that . . . transfers . . . based on 
political affiliation or support are an impermissible 
infringement on the First Amendment rights of 
public employees. . . . The Seventh Circuit proposed 
that only those employment decisions that are the 
"substantial equivalent of a dismissal" violate a public 
employee’s rights under the First Amendment. . . . 
We find this test unduly restrictive because it fails to 
recognize that there are deprivations less harsh than 
dismissal that nevertheless press state employees and 
applicants to conform their beliefs and associations 
to some state-selected orthodoxy.

Rutan, 497 U.S. at 73-75. Obviously the forms of retaliation 
expressly permitted by the decision below against Title VII 
charging parties will have precisely the chilling effect of the 
practices condemned by this Court in Rutan.

The decision below is inconsistent as well with 
Mentor’s holding regarding when an employer is liable under 
Title VII for harassment of an employee by coworkers. 
Under Meritor an employer is liable for discriminatory 
harassment of one worker by fellow employees, inter alia, if 
the employer has knowledge of the harassment and fails to 
take prompt effective action to end it. 477 U.S. at 71-73. In 
the instant case petitioner proved that she, her attorney and 
her physician had all complained about the coworker 
harassment to company officials, who refused to act. The 
dissenting judge below noted, and the panel majority did not



20

deny, that there was ample evidence that those officials had 
failed to end retaliatory harassment of which they were well 
aware. (App. 17a, 22a-26a). The Fifth Circuit, however, 
held that such a demonstration was legally insufficient to 
turn the harassing employees into "agents" of respondent for 
purposes of section 704(a). (App. 11a).

III.

This Case Presents Issues of 
Substantial Importance

In its brief in the court below urging rehearing in the 
instant case, the EEOC accurately described the importance 
and harmfulness of the decision at issue:

Unless employees are assured that they will not be 
subject to any form of backlash from their employers 
for coming forward with complaints about 
discrimination, their willingness and ability to seek 
redress for injuries resulting from discrimination will 
be chilled. Furthermore, since the Commission relies 
on complaints from individual employees to uncover 
and remedy discrimination, its enforcement efforts 
will be severely hampered by any judge-made 
limitations on the plain language and coverage of § 
7 0 4 ... .  The harm caused by retaliatory acts does not 
depend on the particular method of retaliation 
chosen by the employer. An employer can intimidate 
employees by conduct that does not constitute an 
employment action as well as by retaliatory 
employment decisions . . . .  The panel majority’s 
unjustified restriction on the scope of the prohibition 
on retaliation provided by Congress threatens the 
effectiveness of § 704, as well as the statute as a 
whole. . . .  If this decision is allowed to stand, 
employees within the jurisdiction of this Court will 
lose an important part of their protection against 
retaliation. As a consequence, the Commission’s



21

ability to enforce Title VII will be compromised since 
some employees who would otherwise file charges 
will doubtless keep silent once they become aware 
that they have no statutory protection against the 
sort of harassment alleged by the plaintiff in this 
case. . . . The effect of the majority’s decision is to 
rewrite the statute in a way that drastically weakens 
the protection Congress provided.

Brief of the Equal Employment Opportunity Commission as 
Amicus Curiae in Support of Petitions for Rehearing and 
Suggestion of Rehearing En Banc, No. 95-40836 (5th Cir.), 
pp. 4, 8, 9, 11, 14.

Judge Dennis correctly observed in his dissenting 
opinion that the majority’s decision "will drastically weaken 
§ 704(a)’s protection against retaliation for those who 
participate in the enforcement of Title VII by immunizing 
employers who use hostile environment discrimination 
vengefully against them." (App. 39a).

The Fifth Circuit rule at issue in this case has 
declared an open season on employees who complain to the 
EEOC or otherwise oppose discrimination. We set out 
below a list of recent district court decisions in the Fifth 
Circuit which have upheld as lawful a striking array of 
retaliatory measures:

Lewis v. Glickman, 1997 WL 276084 (E.D. La. 1997) 
(denial of access to merit promotion file; elimination of 60% 
of duties; removal of 9 of 14 subordinates; defamation; 
surveillance of employee).

Banks v. Commonwealth Title o f Dallas, 1997 WL 
242901 (N.D. Tex. 1997) ("unjustified verbal and written 
warnings").

Roark v. Kidder, Peabody & Co., 1997 WL 189131 
(W.D. Tex. 1997) (screaming at complainant; spreading false 
rumors: refusal of supervisors to talk with complainant;



22

refusal to sign needed authorization forms; reprimanding 
complainant for actions for which co-workers were not 
criticized).

Smith v. Perry, 1997 WL 160293 (N.D. Tex. 1997) 
(refusal to put complainant’s name on referral roster; lateral 
transfer).

Edmond v. Fujitsu-ICL Systems, Inc., 1997 WL 118406 
(N.D. Tex. 1997) (placing complainant on probation; denial 
of request for change of shift; refusal to permit filing of 
internal grievance).

Watts v. Kroger Co., 955 F. Supp. 674, 686-87 (N.D. 
Miss. 1997) (reassignment to new duties).

Hopkins v. Nationwide Recovery Systems, Ltd., 1997 
WL 42527 (N.D. Tex. 1997) (increasing production quota).

Bievere v. American Airlines, 1996 WL 560073 (E.D. 
La. 1996) (placing advisoiy warning in file; denial of vacation 
time; opposing workers compensation claim; delaying 
payment of salary and sick pay).

Larry v. North Mississippi Medical Center, 940 F. Supp. 
960, 965 (N.D. Miss. 1996) (written warning; refusal to help 
complainant find other work).

Merriel v. Pena, 1996 WL 442279 (E.D. La. 1996) 
(maintaining file of derogatory remarks about complainant; 
harassment; actions to discredit complainant’s job 
performance).

Hahn v. Bentsen, 1996 WL 383129 (E.D. La. 1996) 
(denial of training).

Clair v. Commissioner o f Social Security, 1995 WL 
608472 (E.D. La. 1995) (written reprimand).



23

C o n c l u s io n

For the above reasons, a writ of certiorari should 
issue to review the judgment and opinion of the Court of 
Appeals for the Fifth Circuit.

Respectfully submitted,

*Eric Schnapper 
University of Washington 

School of Law 
1100 N.E. Campus Parkway 
Seattle, WA 98105 
(206) 616-3167

* Counsel of Record

Russell C. Brown 
The Wellborn, H ouston 

Law Firm  
300 W. Main Street 
Henderson, TX 75652 
(903) 657-8544

Margaret A. Harris 
Katherine L. Butler 
Butler & Harris 

3223 Smith, Suite 308 
Houston, TX 77006 
(713) 526-5677



24

Elaine R. J ones 
D irector-Counsel

Theodore  M, Shaw 
Norman J. Chachkin 
Charles Stephen  Ralston 
NAACP Legal Defense 

and Educational Fund , 
Inc.
99 Hudson Street 
Suite 1600
New York, New York 10013 
(212) 219-1900

Counsel for Petitioner



Appendix



No. 95-40836
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 
Filed Jan. 16, 1997

Jean G. MATTERN,

Plaintiff-Appellee,

EASTMAN KODAK COMPANY and Eastman Chemical 
Company, d/b/a Texas Eastman Company,

Defendants-Appellants.

No. 95-40836

Appeal from the United States District Court 
for the Eastern District of Texas

Before GARWOOD, BARKSDALE and 
DENNIS, Circuit Judges

RHESA HAWKINS BARKSDALE,
Circuit Judge:

The linchpin for this appeal is what constitutes an 
"ultimate employment decision" as required for a retaliation 
claim under Title VII of the Civil Rights Act of 1964, 
U.S.C. § 2000e-3(a). Eastman Kodak Company and 
Eastman Chemical Company (collectively "Eastman") contest 
the denial of a Fe d . R.Civ .P. 50 motion for judgment as a 
matter of law, a jury having found that Eastman had 
retaliated against Jean Mattem, its employee, but also 
having made two findings adverse to Mattem that limit her 
retaliation claim: first, that, although M attem had been 
sexually harassed by her coworkers, Eastman did not fail to 
take prompt remedial action after it knew or should have 
known of the harassment, and second, that M attem was not 
constructively discharged from her employment with 
Eastman. M attem does not cross-appeal these adverse



2a

findings. We REVERSE and RENDER.

I.

Mattem, an Eastman employee from late 1989 to 
mid-1993, was enrolled in Eastman’s lengthy mechanic’s 
apprenticeship program, which has two components: on-the- 
job training and related instruction (classroom). The 
program requires successful completion of 14 "review cycles" 
which evaluate both components. Satisfactory performance 
during the review cycles results in regular pay increases. In 
addition, the program includes periodic "Major Skills Tests". 
An apprentice who received either three unsatisfactory 
"review cycle" assessments or fails a skills test three times is 
subject to removal from the program.

M attem  filed a Title VII charge with the EEOC on 
March 11, 1993, claiming sexual harassment by members of 
her on-the-job training crew. She alleged that two senior 
mechanics, Godwin and Roberts, had sexually harassed her 
and created a hostile work environment. She further alleged 
that her supervisors knew of, and condoned, the harassment.

Earlier that month, Eastman had learned of, and 
began investigating, this charge. As a result, on March 11, 
it allowed Godwin to retire early; no action was taken 
against Roberts. Eastman then transferred M attem to 
another crew in the department. Because of the transfer, 
M attem was working under a different immediate 
supervisor, but her departmental supervisors remained the 
same. M attem encountered difficulties which she equated, 
among other things, with Title VII proscribed retaliation. 
She resigned that July.

That November, M attem filed this action against 
Eastman, alleging, inter alia, that it had a policy and practice 
of approving and condoning a hostile work environment; had 
constructively discharged her; and had retaliated, and



3a

allowed its employees to retaliate, against her for reporting 
the harassment to the EEOC and for filing this action. The 
parties consented to trial before a magistrate judge.

A jury found that, although M attem had been 
harassed by coworkers, Eastman had taken prompt remedial 
action; therefore, the hostile work environment sexual 
harassment claim failed. Likewise, it did not find 
constructive discharge or intentional infliction of emotional 
distress. (M attem does not cross-appeal.) On the other 
had, it found retaliation and awarded $50,000 in damages.

II.

Eastman raises several issues. But first, we re­
examine M attem ’s jurisdictional challenge, premised on the 
timeliness vel non of Eastman’s notice of appeal. See e.g., 
Mosley v. Co. v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987). 
This challenge has already been rejected by a motions panel.

A.

The verdict was returned on March 24,1995. A week 
later, the magistrate judge entered a "Judgment" against 
Eastman on the retaliation claim, and, a week after that, 
April 7, Eastman moved under Rule 50 for judgment or for 
new trial, contending that the retaliation evidence was legally 
insufficient. Five days later, the magistrate judge entered a 
second "Judgment", dismissing M attem ’s harassment and 
emotional distress claims; a week later, M attem moved for 
judgment or for new trial. Two weeks later, she moved for 
attorney’s fees as the prevailing party.

The court denied Eastman’s Rule 50 motion on 
September 12. Three days later, it granted attorney’s fees to 
Mattem, but denied her Rule 50 motion. That October 10, 
Eastman appealed the March 30 and april 12 "Judgments" 
and the September 12 and 15 orders. A "Final Judgment"



4a

was entered on October 27; an "Amended Final Judgment", 
on November 2.

M attem ’s early April 1996 motion to dismiss this 
appeal for lack of appellate jurisdiction, asserting that 
Eastman’s notice was untimely, was repeated almost verbatim 
in her brief filed later in April while the motion was pending 
the approximately two weeks after Eastman’s response to the 
motion. The motion was denied in early May, a week in 
advance of Eastman’s reply brief, which, understandably, did 
not respond again to M attem’s jurisdictional challenge.

O f course, a panel hearing the merits of an appeal 
may review a motions panel ruling, and overturn it where 
necessary. United States v. Bear Marine Services, 696 F.2d 
1117, 1119 (5th Cir. 1983). And, the merits panel must be 
especially vigilant where, as here, the issue is one of 
jurisdiction. Id. at 1120; See also Commodity Futures Trading 
Comm’n v. Preferred Capital Inv. Co., 664 F.2d 1316,1320-21 
(5th Cir. 1982). On a parallel track, M attem ’s motion 
appears to be driven, in part, by the dispute over the 
timeliness of her attorney’s fees motion, an aspect of which 
might require deciding which of the several "Judgments" was 
the "judgment" for purposes of Fe d . R.App .R. 54(d)(2)(B) 
(unless otherwise provided by statute, motion for award of 
attorney’s fees must be filed within 14 days of entry of 
judgment).

As noted infra, we do not reach this fees-timeliness 
issue. Furthermore, we agree with the motions panel that 
the notice of appeal was timely. See e.g., Fe d .R.App .P. 
4(a)(2) (notice of appeal filed after announcement of 
decision or order but before entry of judgment treated as 
filed on date of and after entry of judgment) and 
FED.R.APP. 4(a)(4) (timely motion under Rule 50(b), 
among others, tolls time for appeal until entry of order 
disposing of last such motion outstanding); Fe d .R.Civ .P.



5a

50(b).

B.

At issue are the legal sufficiency of the retaliation 
evidence; evidence of pre-EEOC charge conduct by M attem 
ruled inadmissible under Fe d .R.Evid . 412; and the 
attorney’s fees award. Because the retaliation evidence was 
insufficient, we need not reach the other issues.

It goes without saying that the standard of review for 
Rule 50 motions for judgment is found in Boeing Co. v. 
Shipman, 411 F.2d 365 (5th Cir. 1969)(en banc):

[T]he Court should consider all of the evidence—not 
just that evidence which supports the non-mover’s 
case— but in the light and with all reasonable 
inferences most favorable to the party opposed to the 
motion. In the facts and inferences point so strongly 
in favor of one party that the Court believes that 
reasonable men could not arrive at a contrary verdict, 
granting [judgment as a matter of law] is proper.

Boeing, 411 F.2d at 374. To apply this standard, we look, of 
course, to the prerequisites for proving retaliation.

Title VII provides in relevant part that "[i]t shall be 
an unlawful employment practice for an employer to 
discriminate against any of his employees . . . because he 
had made a charge . .  . under this subchapter." 42 U.S.C. § 
2000e-3(a). A retaliation claim has three elements: (1) the 
employee engaged in activity protected by Title VII; (2) the 
employer took adverse employment action against the 
employee; and (3) a causal connection exists between that 
protected activity and the ad verse employment action. E.g., 
Shirley v. Chrysler First, Inc., 970 F.2d 39, 42 (5th Cir. 1992). 
Eastman disputes the last two elements. We turn first to 
whether there was an "adverse employment action".



6a

Basically, M attem ’s retaliation proof is of five types. 
(In addition, M attem  testified that she was required to climb 
scaffolding in the fire protection suit that was too large, 
which she thought was unsafe; and that a telephone message 
was not give to her.) The special interrogatories did not 
require the jury to identify a basis, or bases, relied on in 
finding retaliation.

First, on the day Eastman brought disciplinary 
proceedings against Godwin, M attem told her supervisor, 
Drennan, that she was ill, and that it was work related. 
Because it was work related, Drennan instructed her to 
report the illness to Eastman’s medical department. Instead, 
M attem  went home, opting to take a day of vacation. 
Eastman then sent two of her supervisors, Drennan and 
Holstead (one of the supervisors named in M attem ’s EEOC 
charge), to M attem ’s house to instruct her to return to 
Eastman medical if her illness was work related. Sending 
supervisors to an employee’s home under such circumstances 
was highly unusual, if not unprecedented.

Second, M attem was reprimanded for not being at 
her work station approximately three weeks later, March 29, 
when her supervisors were looking for her. At the time, she 
was at Eastman’s Human Resources Department discussing 
the hostility she was perceiving at Eastman.

Third, Matters’s co-workers became hostile to her 
after Godwin departed. M attem testified that they would 
not say "hello", and would mutter "accidents happen", that 
one supervisor (Holstead) told her he would fire her; and 
that her locker was broken into and some of her tools 
stolen. M attem  claimed that Eastman management knew of, 
but did nothing about, this hostility

Fourth, M attem became ill as a result of her anxiety 
over this situation. Her doctor felt this was attributable to 
the hostility at Eastman. He telephoned Eastman to report



7a

his concerns, but Eastman did not respond.

Fifth, M attem ’s work was reviewed more negatively 
after her March EEOC charge, causing her to miss a pay 
increase, and therefore, in mid-May, to be on "final warning" 
of discharge from the apprenticeship program (she had 
missed another pay increase earlier in the apprenticeship). 
The poor evaluations were being completed and approved by 
supervisors who had praised her work in the past.

Many of the negative reviews, including the missed 
pay increase, resulted from M attem ’s apparent inability to 
rebuild and realign centrifugal pumps. She also failed two 
Major Skills tests, scoring only 19% and 47%. If she were 
to miss another pay increase, or fail another Major Skills 
Test, she would be recommended for termination. But 
M attem resigned her apprenticeship before her next 
evaluation and next test.

Before resigning, M attem was assigned more work 
with pumps, including working one-on-one with a mechanic, 
Humble, in order to improve and evaluate her skills. They 
worked on one pump in particular, which they both testified 
was rebuilt correctly. Drennan, however, received a report 
from a mechanic, Roberts, whom Mattem accuses of bias, 
that the pump failed because of a reassembly defect. (As 
noted, Roberts was one of the co-workers M attem named in 
the March EEOC charge.) Drennan documented the pump 
failure, and continued training Mattem.

Drennan instructed Mattem to attend a training 
session with another mechanic, Thomas. He told M attem 
to realign a pump, which was resting on a wooden pallet, 
while he observed. After approximately three hours, she 
could not complete the task. A pump resting on a wooden 
pallet, as opposed to a more solid base, is more difficult to 
realign. In M attem ’s view, it is reasonable to infer that the 
pump was deliberately placed on the pallet in order to



8a

scuttle her efforts to realign it and continue to the next 
segment of the apprenticeship program.

As noted, the juiy found against M attem  on her 
sexual harassment and constructive discharge claims. As 
also noted, those adverse findings limit the basis for finding 
retaliation. Accordingly, the retaliation claim must be 
viewed in the context of these two jury findings adverse to 
M attem. Along this line, after the court instructed the jury 
on the sexual harassment and constructive termination 
claims it instmcted on the retaliation claim. Concerning 
sexual harassment, the court instmcted:

Now in regard to Mrs. M attem ’s Title VII 
claim of sexual harassment, Title VII ... prohibits 
employers from subjecting their employees to sexual 
harassment. This incudes unwelcome sexual 
advances, requests for sexual favors, other verbal or 
physical conduct of a sexual nature where the 
conduct has the purpose of effect of unreasonably 
interfering with the individual’s work performance or 
creating an intimidating, hostile or offensive working 
environment.

In order for Eastman to be liable to Mrs. 
M attem  for the actions of Eastman’s employees, she 
must prove four things: first, that she was subjected 
to unwelcome harassment in the form of sexual 
advances, requests for sexual favors or other verbal 
or physical conduct of a sexual nature; secondly, that 
the harassment was based on her sex; and third, that 
the harassment affected a term, condition or privilege 
of her employment; and finally, Eastman either knew 
or should have known that Mrs. Mattem was being 
sexually harassed and failed to take prompt reasonable 
measures to stop the harassment.



9a

For sexual harassment to be actionable, it 
must be sufficiently severe or persuasive [sic] to alter 
the conditions o f her employment or create an abusive 
working environment. The conduct must be 
objectively severe or persuasive [sic] that such a 
reasonable person would find the conduct, sexually 
hostile or abusive. Also, the employee must have 
subjectively considered the environment to be 
sexually abusive.

(Emphasis added.)

For constructive termination, the jury was instructed 
that M attem "must prove that Eastern constructively 
discharged or terminated her in violation of Title VII by 
proving that Eastman has made her working conditions so 
intolerable that a reasonable employee would feel compelled to 
resign". (Emphasis added.)

And, for retaliation, the jury was instructed:

In regard to her retaliation claim, Title VII 
. . . prohibits an employer from retaliating or 
discriminating against a person because that person 
has engaged in protective [sic] activity. Protective 
[sic] activity is an employee’s conduct in opposing a 
discriminatory practice, making a charge of 
discrimination or testifying, assisting or participating 
in any manner in an investigation proceeding.

Now, in order for Mrs. M attem to prevail on 
her claim of retaliation, she has to prove three 
things: first, that she was engaged in a protective [sic] 
activity; second, she suffered from an adverse 
employment action; and third, that Eastman acted 
out of a retaliatory motive in taking adverse 
employment action.



10a

Now, adverse employment action could be 
defined as a discharge, a demotion, refusal to hire, 
refusal to promote, reprimand, [or] acts o f sabotage ... 
by employees against other employees, either condoned 
or directed by an employer for the purpose o f 
establishing cause for discharge. Mere dirty looks or 
reluctance o f co-workers to speak to an employee are 
not the types o f adverse employment action prohibited 
by Title VII. Merely placing a memorandum regarding 
an employee’s performance in his or her personnel file 
does not in itself constitute an adverse employment 
action.

(Emphasis added.)

These instructions are not at issue on appeal. (The 
dissent totally ignores the "purpose of establishing cause for 
discharge" language in the retaliation instruction. Moreover, 
it grossly misstates our application of Title VII to the record 
in this case. In fact, the dissent seems to be dealing with 
another case entirely.)

Consistent with the retaliation instruction, our court 
has stated that "Title VII was designed to address ultimate 
employment decisions, not to address every decision made 
by employers that arguably might have some tangential 
effect upon those ultimate decisions", Dollis v. Rubin, 77 
F.3d 777, 781-82 (5th Cir. 1995). "Ultimate employment 
decisions" include acts "such as hiring, granting leave, 
discharging, promoting, and compensating". Id. at 782 
(citing Page v. Bolger, 645 F.2d 226, 233 (4th Cir.), cert,, 
denied, 454 U.S. 892, 102 S.Ct. 388, 70 L.Ed.2d 206 (1981)). 
(No authority need be cited for the necessary and 
longstanding rule that, absent a change in the law, a decision 
by our court is binding on subsequent panels. There has not 
been such a change; most unfortunately, the dissent is simply 
unwilling to adhere to this rule. And, no matter the lengths 
to which it goes to distinguish Dollis, including expending



11a

considerable effort discussing Page, it cannot get around the 
binding precedent established by Dollis.)

Right off the bat, several of the events of which 
M attem  complains, although viewed in the requisite light 
most favorable by her, all well below this standard. Hostility 
from fellow employees, having tools stolen, and resulting 
anxiety, without more, do not constitute ultimate 
employment decisions, and therefore are not the required 
adverse employment actions. See Landgraf v. USI Film 
Prods. 968 F.2d 427, 431 (5th Cir. 1992), affd  512 U.S. 244, 
114 S.Ct. 1483, 128 L.Ed.2d 229 (1994).

In addition, these acts cannot be attributed to 
Eastman, especially when viewed in the light of the jury’s 
remedial action and no constructive discharge findings. 
Moreover, there is no proof that these acts were by 
management. In general, Eastman cannot be held liable 
under Title VII absent proof that its employees acted as its 
agents. See, Title VII’s definition of "employer", 42 U.S.C. 
§ 2000e(b) (act covers "employers" and their "agents", not 
"employees"). In short, a reasonable juror could not find, as 
required by the retaliation instruction, that these acts were 
condoned or directed by Eastman for the purpose of 
establishing cause for discharge — an ultimate employment 
decision.

Likewise, the other events, such as the visit to 
M attem ’s home, the verbal threat of being fired, the 
reprimand for not being at her assigned station, a missed 
pay increase, and being placed on "final warning", do not 
constitute adverse employment actions" because of the lack 
of consequence. For starters, they do not meet the standard 
set out in Dollis.

There, the employee alleged that she: (1) was refused 
consideration for promotion; (2) was refused attendance at 
a training conference; (3) had her work criticized to a



12a

government vendor; and (4) was given false information 
regarding aspects of her employment, including access to 
travel funds and methods of filing EEO complaints. Dollis, 
77 F.3d at 779-80. In holding that these acts did not 
constitute ultimate employment decisions, our court held 
also that they were at most "tangential" to future decisions 
that might be ultimate employment decisions. Id. at 782.

M attem ’s problems at Eastman are similarly non- 
actionable. While she may have been in jeopardy of 
discharge from her apprenticeship program at some point in 
the future, this possibility obviously does not equal being 
discharged. Failing two Major Skills Tests, having difficulty 
with pumps, and having documented reprimands in the file 
may have increased the chance that she would eventfulty 
suffer an adverse employment action but, like the actions in 
Dollis, neither were they ultimate employment decisions nor 
did they rise above having mere tangential effect on a 
possible future ultimate employment decision.

To hold otherwise would be to expand the definition 
of "adverse employment action" to include events such as 
disciplinary filings, supervisor’s reprimands, and even poor 
performance by the employee—anything which might 
jeopardize employment in the future. Such expansion is 
unwarranted. See Whitaker v. Camey. 778 F.2d 216 (5th Cir. 
1985) cert, denied, 479 U.S. 813, 107 S.Ct. 65, 93 L.Ed.2d 
(1986)(refusing to expand coverage of Title VII anti­
retaliation provision to include non-workplace hostility by 
non-employees).

Needless to say, Dollis is consistent with Title VII 
and prior case law. For example, Hill v. Miss. St. Empt. Serv, 
918 F.2d 1233 (5th cir. 1990); cert, denied, 502 U.S. 864, 112 
S.Ct. 188, 116 L.Ed.2d 149 (1991), held that allegations that 
co-workers were staring at the employee, following her, 
prolonging the time she had to wait for disbursement checks, 
relegating her file to a less desirable classification, deleting



13a

experience data from a reference form, and criticizing her 
EEOC complaint did not constitute retaliation. Hill, 918 
F.2d at 1241. Doubtless, some of these actions may have 
had a tangential effect on conditions of employment, but, as 
in M attem ’s case, an ultimate employment decision had not 
occurred. The employee could only prove examples of the 
"many interlocutory or mediate decisions having no 
immediate effect upon employment conditions" which 
therefore were "not intended to fall within the direct 
proscriptions of ... Title VH". Page, 645 F.2d at 233. As 
another example, see DeAngelis v. El Paso Mun. Police 
Officers’ A ss’n, 51 F.3d 591 (5th Cir.)(no adverse 
employment actions when office newsletter ran articles 
routinely ridiculing the plaintiff based on her gender, and 
her having filed an EEOC complaint), cert, denied,__U.S.

116 S.Ct. 473, 133 L.Ed.2d 403 (1995).

The import of these cases, culminating in Dollis, is 
the long-held rule that Title VU’s anti-retaliation provisions 
refers to ultimate employment decisions, and not to an 
"interlocutory or mediate" decision which can lead to an 
ultimate decision. Obviously, this reading is grounded in the 
language of Title VII. As quoted earlier, the anti-retaliation 
provision states that employers shall not "discriminate" 
against employees for taking action protected by Title VII. 
42 U.S.C. § 2000e-3. In defining this term, we look, of 
course, to other Title VII sections for guidance; in this case, 
the preceding section is helpful.

That section states, in part, that it is unlawful to "fail 
or refuse to hire or to discharge any individual or otherwise 
to discriminate against any individual with respect to his 
compensation, terms, conditions or privileges of 
employment". 42 U.S.C. § 2000e-2(a)(l). This type of 
employer action contrasts sharply with the more vague 
proscription, found in the next subpart of "limitation" of 
employees which deprive or "would tend to deprive" the 
employee of "opportunities" or "adversely affect his status".



14a

42 U.S.C. § 2000e-2(a)(l),(2). It goes without saying that 
this second subpart reaches much farther than the first. It 
reaches acts which merely "would tend" to affect the 
employee; obviously, the way in which the employee may be 
affected in this subpart is much broader. Id.

The anti-retaliation provision speaks only of 
"discrimination"; there is no mention of the vague harms 
contemplated in § 2000e-2(a)(2). Therefore, this provision 
can only be read to exclude such vague harms, and to 
include only ultimate employment decisions.

As discussed, another factor mandating the failure of 
M attem ’s retaliation claim is that the jury found (1) she was 
not constructively discharged and (2) Eastman did not fail to 
take remedial action. (She does not cross-appeal.) She 
preempted a possible ultimate employment decision — she 
resigned. See Landgraf, 968 F.2d at 431 (equating jury 
finding of no constructive discharge with no adverse 
employment action resulting in loss of position). Therefore, 
absent an ultimate employment decision prior to her 
resignation, there can be no adverse employment action.

The only event M attem could possibly point to might 
be a missed pay increase. (Although there is evidence that 
M attem missed two increases, one took place in November 
1991, long before her March 1993 EEOC charge.) In any 
event, she did not prove that the increase would have taken 
effect by the time she resigned. In fact, she did not even 
assert in her brief in opposition to the Rule 50 motion, or in 
her brief here, that the missed pay increase was the ultimate 
employment decision. Instead, she contends that here 
problems at Eastman, including receiving poor evaluations 
and a missed increase, were "quickly leading to the ultimate 
adverse employment action". (Emphasis added.)

Moreover, at the time M attem  was receiving poor 
evaluations with respect to her work with pumps, she was



15a

also failing Major Skills Tests with respect to them. She 
does not maintain (nor did she prove) that the tests were 
"rigged"; accordingly, we must assume they were a correct 
assessment of her ability with the pumps. Obviously, an 
employee may not complain that not obtaining a position 
was retaliation if she was not qualified for that position in 
the first place. Gonzalez v. Carlin, 907 F.2d 573 (5th cir. 
12990). Therefore, the evidence that M attem was having 
trouble in her Major Skills Tests precludes her contention 
that, but for the "sabotage", her progress through the pump 
section on the apprenticeship program would have been 
rapid. M attem ’s missed pay increase evidence is not a basis 
for recovery on her retaliation claim.

In closing, we note that Mattem relies on Armstrong 
v. City o f Dallas, 829 F.Supp. 875 (N.D. Tex. 1992), for the 
proposition that reprimands constitute ultimate employment 
decisions. The employer was granted summary judgment in 
Armstrong on the basis that the causation element for a 
retaliation claim was lacking. The district court stated in 
dicta, however, that an adverse employment action could rest 
on proof that the employee: (1) received a letter of 
reprimand; (2) had efficiency ratings cut; (3) was reported to 
the Civil Service Department for unsatisfactory performance;
(4) was informed he could be terminated for failure to lose 
weight; (5) received a letter of reprimand for losing his 
firefighter’s coat; and (6) was transferred to a non-firefighting 
job. Id. at 880.

Because of the lack of causation, our court affirmed 
the summary judgment, Armstrong v. City o f Dallas, 997 F.2d 
62 (5th Cir. 1993). Therefore, this court never reached 
whether the above-listed incidents constituted adverse 
employment actions. In short, M attem relies erroneously on 
dicta by the Armstrong district court.

Even if the missed pay increase were an adverse 
employment action, M attem ’s evidence is insufficient to



16a

show that it resulted from retaliation. Otherwise, there was 
no adverse employment action. Because there was none, we 
need not reach whether M attem  proved the causation 
element. Likewise, she is not a "prevailing party" under Title 
VII, and is, therefore, not entitled to attorney’s fees. 42 
U.S.C. § 2000e-5(k).

III.

For the foregoing reasons, the denial of the motion 
for judgment is REVERSED, and judgment is RENDERED 
for Eastman.

REVERSED and RENDERED.

DENNIS, Circuit Judge, dissenting.

I respectfully dissent from the majority’s reversal of 
the district court’s judgment upholding the jury verdict 
awarding the plaintiff damages on her Title VII, § 704 
retaliation claim and from the majority’s appellate level 
entry of judgment as a matter of law against the plaintiff. 
The majority seriously misreads Title VII and judicial 
precedents in its double-edged holding that (1) when the 
jury rejects an employee-plaintiffs § 703 claims of sex 
discrimination and constructive discharge, it is legally barred 
from looking at all of the relevant circumstances and 
awarding her § 704(a) retaliation damages based on 
retributive hostile environment discrimination; and, (2) in 
such a case, in order to successfully prosecute § 704(a) 
retaliation claim, an employee must prove that the employer 
discriminated against her in an "ultimate employment 
decision" such as "hiring, granting leave, discharging, 
promoting, and compensating."

Correctly interpreted, § 704(a) affords an employee 
an independent hostile work environment retaliatory 
discrimination cause of action upon which she may recover



17a

in a proper case regardless of the outcome of her § 703 sex 
discrimination and constructive discharge claims. In the 
present case the jury’s retaliation award was not clearly 
erroneous and should have been affirmed. The evidence 
provided a sufficient basis for a reasonable juror to find that, 
after the plaintiff engaged in protected activity by filing a 
Title VII sexual harassment claim, adverse employment 
action against her occurred in the form of retaliatory 
discrimination (of which the employer knew or should have 
known) that was not remediated and sufficiently severe or 
pervasive as to alter the conditions of her employment and 
create a hostile or abusive working environment, and that 
there was a causal connection between her participation in 
the protected activity and the adverse employment action.

1. Plaintiff’s Hostile Environment Retaliation Claim is
Independently Actionable

Retributive harassment of an employee who has filed 
a § 703 sex discrimination and abuse claim constitutes 
retaliatory discrimination in violation of § 704(a) if, as in an 
actionable claim for sexual harassment under § 703, the 
employer knew or should have known of the harassment, 
failed to take remedial steps, and the abusive conduct was 
sufficiently severe so as to alter the conditions of 
employment and create a hostile work environment. The 
Supreme Court, in Harris v. Forklift Systems, Inc., 510 U.S. 
17, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993), and Meritor 
Savings Bank v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 
L.Ed.2d 49 (1986), made clear that a plaintiff may establish 
as violation of Title VII by proving that discrimination based 
on sex has created a hostile or abusive work environment. 
Nothing in § 704(a) of Title VII suggests that hostile 
environment discrimination against an employee because she 
filed a charge alleging a sex discrimination violation should 
not be prohibited as unlawful retaliatory discrimination.

Jurists and legal scholars who have specifically



18a

addressed the issue have reached the conclusion that 
retaliatory harassment of an employee because she reported 
sexual harassment may constitute retaliatory discrimination 
in violation of § 704(a) if the requisite elements are proven. 
See., e.g., Davis v. State o f Calif. Dept, o f Corrections, 1996 
WL 271001 (E.D. Cal. Feb. 23, 1996); Cobb v. Anheuser 
Busch, 793 F.Supp. 1457, 1491 (E.D.Mo. 1990); Toscano v. 
Nimmo, 570 F.Supp. 1197,1204-06 (D.Del. 1983); Tannery. 
Calif. Physicians’ Serv., 27 F.E.P. 593, 1978 WL 210 
(N.D.Cal. 1978); EEOC v. Bank ofAriz., 12 F.E.P. 527,1976 
WL 1727 (D.Ariz. 1976); Hyland v. Kenner Prod. Co., 13 
F.E.P. 1309, 1976 WL 561 (S.D.Ohio 1976); LlNDEMAN & 
Kadue, Sexual Harassment in  Employment Law at 
282 (1992); 2 Larson, Employment D iscrimination § 
34.04 at 34-57-34-62 (2d Ed. 1994)("Manipulation of such 
other employment conditions to constitute harassment or to 
tolerate harassment by fellow employees has likewise been 
perceived as retaliatory. Such harassment may take the form 
of interrogation, reprimands, surveillance, unwarranted or 
unfavorable job evaluations, or the deprivation of some of 
the normal benefits or rights of the position. . .  .")(footnotes 
citing cases omitted); 1 Conte, Sexual Harassment in  
the  Workplace § 3.28 at 163-64 (1994). This court 
apparently has assumed that such liability could exist in 
analyzing a retaliation claim. See DeAngelis v. El Paso 
Municipal Police Officers Assoc., 51 F.3d 591, 597 (5th Cir. 
1995); Hamilton v. General Motors corp., 606 F.2d 576, 581 
(5th Cir. 1979); see, also, Wilson v. Southern Nat. Bank o f 
North Carolina, 900 F.Supp. 803 (W.D.N.C. 1995)(same as 
to prompt remedial action).

The EEOC’s administrative interpretations indicate 
that the employer can be held responsible under § 704(a) for 
failing to remedy or prevent co-worker or customer 
retaliation against a § 703 claimant if the retaliation 
subjectively and objectively creates severe or pervasive 
hostility in the claimant-employee’s working environment. 
EEOC Compliance Manual § 614.7, in pertinent parts,



19a

provides

614.7 Examples o f Forbidden Retaliation

(a) Introduction—Retaliation against people 
who protest unlawful employment discrimination can 
take many forms. Discussed in this subsection are 
some of the more widely recognized types of 
forbidden retaliation. This list is not intended to be 
exclusive

(c) Harassment and Intimidation—Harassing 
or intimidating an individual because that individual 
has opposed employment discrimination is a violation 
of § 704(a) and § 4(d). Harassment or intimidation 
can take many forms; some of the more common 
forms are set out below. (Also see § 165, 
Harassment; see also — 614.8(d) below);

(4) Retaliatory reprimands. Unpublished 
Commission Decision No. 71-445 (1971).

(5) Coercive questioning. Commission 
Decisions No. 71-1151, CCH EEOC 
Decisions (1973) U 6208. (See also EEOC  v. 
Plumbing and Pipefiters [sic] Industries, Local 
189, Title VII case.)

(6) Retaliatory surveillance. Commission 
Decision No. 70-683, CCH EEOC Decisions 
(1973) H 6145.

(g) Other Examples o f Retaliation— The 
following types of retaliation represent violations of



20a

§ 704(a) and § 4(d) but do not come under any 
particular heading.

*  *  *  *  *  *

(2^Permitting others to retaliate against charging 
party or complainant—If others, such as 
coworkers or respondent’s customers, retaliate 
against charting party or complainant for 
having opposed employment discrimination, 
the respondent will, under certain  
circumstances, have a duty to take steps 
reasonably calculated to end the retaliation. 
For example, if a respondent knows or has 
reason to know of acts taken against a 
charging party by others because of his/her 
opposition to perceived discrimination, such 
respondent has an obligation to seek and end 
to the retaliation.

Id. (footnote omitted).

The EEOC has reached a similar position in 
administrative adjudications. See EEOC Decision, No. 79-59, 
1979 WL 6935 (EEOC 1979); Commission Decision No. 
YME9-068, CCH EEOC Decisions (1973) II 6039.

According to the Supreme Court, the Fifth Circuit’s 
Rogers v. EEOC, 454 F.2d 234 (5th Cir. 1971), cert, denied, 
406 U.S. 957, 92 S.Ct. 2058, 32 L.Ed.2d 343 (1972), was 
apparently the first case to recognize a cause of action based 
upon a discriminatory work environment. Meritor Savings 
Bank v. Vinson, A ll  U.S. 57, 65, 106 S.Ct. 2399, 2404-05, 91 
L.Ed.2d 49 (1986). The Supreme Court quoted with 
approval from this court’s explanation that an employee’s 
protections under Title VII, § 703, extend beyond the 
economic aspects of employment:



21a

”[T]he phrase ‘terms, conditions or privileges of 
employment’ in [Title VII] is an expansive concept 
which sweeps within its protective ambit the practice 
of creating a working environment so heavily 
polluted with discrimination as to destroy completely 
the emotional and psychological stability of minority 
group workers..." 454 F.2d at 238.

Vinson, M l  U.S. at 66, 106 S.Ct. at 2405.

The Supreme Court in Vinson observed that courts 
generally applied the principle announced by Rogers to 
harassment based on race, religion and notional origin, id. 
at 65; that in 1980 the EEOC drew upon that substantial 
body of judicial decisions in issuing Guidelines specifying 
that sexual harassment creating a hostile work environment 
is prohibited by Title VII; and that "[sjince the Guidelines 
were issued, courts have uniformly held, and we agree, that 
a plaintiff may establish a violation of Title VII by proving 
that discrimination based on sex has created a hostile or 
abusive work environment." Id. at 65.

Thus, when this court, in Whatley v. Metro Atlanta 
Rapid Transit Auth., 632 F.2d 1324 (5th Cir. 1980), first set 
forth the three-pronged test it follows on deciding Title VII, 
§ 704(a), retaliation claims, the discriminatory work 
environment cause of action under § 703 was an established 
precedent of this court and many others. In Whatley this 
court held that to prove a prima facie case under section § 
7-04(a), the plaintiff must establish (1) that there was a 
statutorily protected participation, (2) that an adverse 
employment action occurred, and (3) that there was a causal 
link between the participation and the adverse employment 
action. In doing so, we observed that:

Section 704(a) of Title VII is the primary source of 
protection against retaliation for those who 
participate in the process of vindicating civil rights



22a

through Title VII. Under that section broad 
protection is afforded to the participant in order to 
effectuate the purposes of Congress. Pettway v. Am. 
Cast Iron Pipe Co., 411 F.2d 998, 1006, n.18 (5th Cir. 
1969)["The protection of assistance and participation 
in any manner would be illusory if employer could 
retaliate against employee for having assisted or 
participated in a Commission proceeding."]

Whatley, 632 F.2d at 1328 (footnote omitted). Consequently, 
it is inconceivable that this court, by its use of the shorthand 
judge-made term "adverse employment action," intended to 
exclude or legally could have excluded a cause of action 
based upon a discriminatory work environment from § 
704(a)’s arsenal of protections for employee-complaints 
against all forms of retaliatory discrimination and adverse 
employment practices. In other words, co-worker 
harassment attributable to the employer that creates a 
hostile or abusive work environment for an employee 
because she opposed or complained of discrimination based 
on sex, race, color, national origin or religion, is a form of 
discrimination or adverse employment action prohibited by 
§ 704(a).

Accordingly, an employee has an actionable 
retaliation claim under § 704(a) when (1) the employee 
participated in a statutorily protected activity; (2) the 
employee suffered harassment by co-workers (i) that was 
sufficiently severe or pervasive as to alter the conditions of 
the victim’s employment and create a hostile or abusive work 
environment, and (ii) the employer knew or should have 
known of the harassment and failed to take reasonably 
calculated steps to end the abuse; and (3) there was a causal 
link between participation in the protected activity and the 
harassment creating the discriminatory work environment.

In assessing an employee’s retaliation claim based on 
harassment creating a discriminatory work environment the



23a

teachings of Vinson and Harris should be kept in mind. The 
discrimination prohibited by Title VII is not limited to 
economic or tangible discrimination. Vinson, A ll  U.S. at 64, 
106 S.Ct. at 2404. The discrimination must create an 
objectively and subjectively hostile or abusive work 
environment. Harris 510 U.S. at 17, 114 S.Ct. at 368. But 
Title VII comes into play before the harassing conduct leads 
to a nervous breakdown. Certainly Title VII bars conduct 
that would seriously affect a reasonable person’s 
psychological well-being but the statute is not limited to such 
conduct. So long as the environment would reasonably be 
perceived, and is perceived, as hostile or abusive, there is no 
need for it also to be psychologically injurious. Vinson, A ll  
U.S. at 67, 106 S.Ct. at 2405-06. W hether an environment 
is "hostile" or "abusive" can be determined only by looking at 
all the circumstances. These may include the frequency of 
the discriminatory conduct, its severity, whether it is 
physically threatening or humiliating, or a mere offensive 
utterance; and whether it unreasonably interferes with an 
employee’s work performance. Id.

2. Applica tion  o f  discrim inatory Work 
Environment Principles Requires That The 
Jury’s Retaliation Award Be Affirmed

We review jury verdicts for sufficiency of evidence 
pursuant to the standard articulated in Boeing v. Shipman, 
411 F.2d 365, 374-75 (5th Cir. 1969)(en banc.) Woodhouse 
v. Magnolia Hosp., 92 F.3d 248 (5th Cir. 1996)(citing Rhodes 
v. Guiberson Oil Tools, 15 F.3d 989, 993 (5th Cir. 1966)(en 
banc)).

The plaintiff presented evidence that her employer 
was implicated in co-worker harassment of her because she 
had made prior complaints about sexual harassment by co­
employees. The district court instructed the jury on the 
pertinent elements of Title VII and the nature of retaliatory 
discrimination under the statute. The jury specifically found



24a

in its verdict in response to the court’s interrogatories that 
the plaintiff was sexually harassed by her co-workers, that 
Eastman intentionally or wilfully retaliated against the 
plaintiff for filing a charge of discrimination and/or for filing 
this lawsuit, and that $50,000 would fairly and reasonably 
compensate the plaintiff for the damages proximately caused 
by Eastman’s retaliatory actions. The evidence amply 
supports the jury’s determinations and satisfies the three 
elements of a claim based on retaliatory discrimination 
under § 704(a).

First, it is undisputed that the plaintiff complained to 
the defendant’s personnel department of coworker sexual 
harassment on or about March 3, 1993, and filed her initial 
Title VII charge on March 11, 1993.

Second, plaintiff presented sufficient evidence from 
which a reasonable trier of fact could find that after she 
complained of sex discrimination she was subjected to 
retaliatory harassment by co-workers that created a hostile 
or abusive work environment, about which the employer 
knew or should have known, and that the employer failed to 
take any steps reasonably calculated to end the retaliatory 
abuse. The majority accurately describes some of the 
principal parts of this evidence in its opinion. M attem 
testified that she was required to wear a fire protection suit 
while claiming scaffolding that was unsafe because it was too 
large. Eastman sent two supervisors, one of whom was an 
alleged harasser, to her home, on a day she taken vacation 
leave after complaining of an employment-related illness, to 
tell or require her to return to Eastman Medical if her 
illness was job-related. Sending supervisors to an employee’s 
home under such circumstances was highly unusual, if not 
unprecedented. M attem was reprimanded for not being at 
her work station when she went to Eastman’s Human 
Resources Department to complain that she was being 
harassed on the job. M attem became ill over the perceived 
harassment; her doctor reported to Eastman that he was



25a

concerned and that her illness was related to the hostility. 
M attem ’s work was reviewed negatively by supervisors after 
he first EEOC charge, causing her to miss a pay increase 
and to be given a final warning of potential discharge from 
the apprenticeship program. The supervisors who began to 
give her poor marks had praised her work before her EEOC 
complaint. The plaintiff presented testimony by herself and 
Eastman’s own personnel that tended to show that a pump 
she had rebuilt had been sabotaged by co-workers, causing 
her to receive a negative evaluation and have her job placed 
in jeopardy. The district court emphasized this incident in 
its reasons for denying the defendants’ motion for a 
judgment as a matter of law and, alternatively, for a new 
trial:

[Tjampering with another employee’s work by 
another employee could reasonably be construed as 
sabotage condoned or directed by an employer for 
the purpose of establishing cause for discharge, 
demotion, reprimand or refusal to promote. This 
sabotage could have reasonably taken place in 
response to Ms. M attem ’s actions regarding her 
complaints of sexual harassment, furthermore, at 
trial Ms. M attem produced evidence that the 
defendants acted out of a retaliatory motive 
condoning the actions taken by other employees 
against Ms. M attem. Therefore, the Court finds that 
there is a legally sufficient evidentiary basis for a 
reasonable jury to find for Ms. M attem of her Title 
on her Title VII retaliation claim.

District Court’s September 12, 1995, Order at 2-3.

M attem  points to additional evidence in the record 
that supports the jury verdict because it tends to prove co­
worker harassment with the knowledge of the employer or 
direct harassment by the employer and a resulting hostile 
work environment after her initial Title VII complaint, she



26a

was assigned to a different crew but returned to the same 
work area where her harassers were employed; she had a 
good work record and there was no complaint about her 
work before the Title VII charge; on March 30, 1993, her 
attorney sent a telefax to Eastman’s counsel demanding that 
the retaliatory conduct cease; during March 1993 her doctor 
recorded that she suffered from depression and panic 
attacks; she testified that her work environment got worse 
after her complaint; that the other workers shunned her, 
gave her the silent treatment or muttered things like 
"accidents happen;" that one supervisor told her he would 
fire her; the doctor prescribed Zoloft and Prozac for her 
condition; the jury, in its last note sent during deliberation, 
asked: "May we award damages in answering Question #8  
[pertaining to damages for retaliatory actions] because we 
think Eastman’s credibility and witnesses lied?"

Third, the plaintiffs testimony and other 
corroborating factors provided a sufficient basis for the jury 
reasonably to find a causal link between her initial sexual 
harassment complaints and the subsequent harassment 
creating a discriminatoiy work environment. Among the 
corroborating factors were the evidence of sabotage of 
M attem ’s work product by co-workers that the trial court 
emphasized in its reasons for judgment; the episode in which 
she was required to assemble a pump on the unsteady 
surface of a wooden pallet which caused her poor 
performance; the abrupt descent of the supervisors’ 
evaluations of her work after the complaint was filed; her 
good work record up until that time; evidence that another 
apprentice had been allowed to fail tests and take more than 
the maximum allowable time to complete the program with 
no reprimand by management; the lack of any effective 
action by Eastman to stop the harassment of plaintiff despite 
several notifications to management level employees of the 
retaliatory acts by the plaintiff, her counsel, and her doctor.



27a

Considering all of the circumstances, there was 
sufficient evidence for a reasonable trier of fact to find that 
the plaintiff was harassed by the employer directly through 
its supervisors, and indirectly by knowingly permitting co­
worker harassment, because she had previously made 
informal and formal complaints of sexual harassment; that 
the retaliatory harassment occurred in the forms of 
retaliatory reprimands, retaliatory surveillance or 
confrontation and questioning at her home, and other acts 
of retaliation about which the employer knew or should have 
known but failed to take effective steps to remedy; that the 
harassment was sufficiently severe and pervasive to create a 
hostile or abusive work environment objectively and 
subjectively; and that there was a causal connection between 
her sexual discrimination complaints and the retaliatory 
harassment.

3. The Majority Erroneously Conflates The Employee’s §
703 Causes o f Actio Based on Sex Discrimination and
Constructive discharge With Her § 704(a) Retaliation
Claim

The majority errs seriously in holding that the jury’s 
findings against an employee on her sexual harassment and 
construction discharge claims "limits the bases for finding 
retaliation," by narrowing the ambit of the employee’s § 
704(a) retaliation cause of action to one based on damage 
caused by the employer’s "ultimate employment decisions" 
such as "hiring, granting leave, discharging, promoting, and 
compensating." It is perfectly plain that §§ 703 and 704(a) 
are separate and distinct provisions creating several 
independent causes of actions that serve different integral 
functions furthering the main purpose of Title VII. Section 
703(a)(1) prohibits discrimination against any individual with 
respect to his compensation, terms, conditions, or privileges 
of employment because of race, color, religion, sex, or 
national origin. Section 704(a) prohibits discrimination 
against any employee because he opposed any practice made



28a

an unlawful employment practice by Title VII or because he 
made a charge, testified, assisted, or participated in any 
manner in an investigation, proceeding, or hearing under 
Title VIL The primary purposes of Title VII are to prevent 
discrimination, achieve equal employment opportunity in the 
future, and to make victims of discrimination whole. A 
claim of "hostile environment" sexual harassment is a form 
of sex discrimination that is actionable under Title VII, § 
703(a)(1). Mentor Savings Bank v. Vinson, A ll  U.S. 57, 106 
S.Ct. 2399, 91 L.Ed.2d 49 (1986). Section 704(a) of Title 
VII is intended to provide exceptionally broad protection for 
protestors of discriminatory employment practices. Pettway 
v. Am. Cast Iron Pipe Co., 411 F.2d 998 (5th Cir. 1969). The 
Supreme Court has held that Title VII provides, in actions 
under "section 703, 704 or 717," that "the complaining party 
may recover compensatory and punitive damages..."
Landgraf v. USI Film Products, 511 U.S. 244,__, 114 S.Ct.
1483, 1490, 128 L.Ed.2d 229 (1994)(emphasis added), 42 
U.S.C. § 1981a(a)(West Supp. 1996).

The Fifth Circuit and other courts have recognized 
that the causes of actions afforded by §§ 703 and 704 are 
independent of each other, call for different elements of 
proof, and that the plaintiffs case under one cause of action 
does not depend upon her success under another. For 
example it is not fatal to a plaintiffs § 704(a) case that she 
failed to prove an unlawful employment practice under § 
703(a)(1); it is sufficient to establish a prima facie case of 
retaliation if she had a reasonable belief that defendant had 
engaged in the unlawful practice. Payne v. McLemore’s 
Wholesale & Retail Stores, 654 F.2d 1130 (5th Cir. 1981); See 
EEOC Compliance Manual, Section 614. Moreover, this 
court has recognized that there are significant differences 
between the employee’s causes of actions for constructive 
discharge and for hostile work environment discrimination. 
To prove constructive discharge, the plaintiff must 
demonstrate a greater severity or pervasiveness of 
harassment than the minimum required to prove a hostile



29a

working environment. Landgraf v USI Film Products, 968 
F.2d 427 (5th cir. 1992), citing Pittman v. Hattiesburg Mun. 
Separate Sch. D ist, 644 F.2d 1071, 1077 (5th Cir. 
1981)(constructive discharge requires "aggravating factors"). 
Furthermore, the Fifth Circuit has held that a constructive 
discharge requires an actual intent to get rid of the 
employee; it occurs only "when the employer deliberately 
makes an employee’s working conditions so intolerable that 
the employee is forced into an involuntary resignation." 
Domhecker v. Malibu Grand Prix Corp., 828 F.2d 307, 310 
(5th Cir. 1987).

The majority’s holding that an employee’s failure to 
convince a trier of fact that she is entitled to relief under § 
703 because of sex discrimination and constructive discharge 
limits the scope of her cause of action based on retaliation 
under § 704(a) is contrary to Congressional intent and 
departs from the settled precedents of this court. Moreover, 
it strikes a grievous blow to the entire enforcement 
mechanism of Title VII. As this curt stated in Pettway v. 
Am. Cast Iron Pipe Company, 411 F.2d 998, 1005 (5th cir. 
1969):

There can be no doubt about the purpose of § 
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.

4. The Majority Misunderstands The Prior Cases Applying 
§§ 704(a) & 717 And Erroneously Limits Employees to 
Retaliation Claims Based on "Ultimate Employment 
Decisions."

The majority erroneously fails to consider whether 
the evidence as a whole was sufficient to justify a reasonable 
trier of fact in finding that the plaintiff suffered retaliatory



30a

discrimination prohibited by § 704(a) that created a hostile 
or abusive work environment. My colleagues were deflected 
from this course by their mistaken interpretation and 
application of dicta in cases decided under § 717: Page v. 
Bolger, 645 F.2d 227 (4th Cir. 1981), and Dollis v. Rubin, 77 
F.3d 111 (5th Cir. 1995).

Title VII, § 717(a), in pertinent part, provides:

(a) Discrimination prohibited. All personnel actions 
affecting employees or applicants for employment [in 
defined categories of Federal Government 
employment] shall be made free from any 
discrimination based on race, color, religion, sex, or 
national origin.

Congress added § 717 to Title VII in 1972 to extend 
the protection of Title VII to employees of the Federal 
Government. In Chandler v. Roudebush, 425 U.S. 840, 841, 
96 S.Ct. 1949, 1950, 48 L.Ed.2d 416 (1976), the Supreme 
Court, in holding that § 717 affords federal employees the 
same right to a trial de novo as is enjoyed by private sector 
or state government employees under Title VII stated:

In 1972 congress extended the protection of 
Title VII ... to employees of the Federal 
Government. A principal goal of the amending 
legislation [adding § 717 to Title VII] was to 
eradicate "entrenched discrimination in the Federal 
service.’" ... by strengthening internal safeguards and 
by according "(a)ggrieved (federal) employees or 
applicants ... the full rights available in the courts as 
are granted to individuals in the private sector under 
title VII."

Id. (citations and footnote omitted).
The majority mistakenly reads Page v. Bolger as 

holding that Congress, by adding § 717 to extend the



31a

protection of Title VII to employees of the Federal 
Government, somehow restricted the protection of 
employees in the private sector by Title VII, § 703. 
According to the majority, Page reads a drastic limitation 
into § 703(a)’s broad prohibition against discrimination with 
respect to conditions of employment because of race, color, 
religion, sex, or national origin; viz, to recover under § 
704(a) the 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." Nothing in the statute or in 
Page justified such an interpretation.

In Page v. Bolger, a postal employee, who was twice 
denied promotions, brought suit against the Postmaster 
General claiming racial discrimination in violation of Title 
VII. The district court found that Page had failed to 
establish his claim of discrimination. The Fourth Circuit 
affirmed, concluding that the inference of discriminatory 
intent raised by plaintiffs prima facie case was effectively 
dispelled by articulation of a legitimate nondiscriminatory 
reason; viz, the better qualifications of the employees 
promoted, and that reason was not shown to be mere 
pretextual cover for a discriminatory motive.

In dictum, the Page court commented on a contention 
by the plaintiff that in effect introduced on appeal a new and 
dispositive theory neither advanced nor considered in a 
district court. The Postal Service’s Personnel Handbook 
provides that a review committee shall be designated to 
screen the applicants and to recommend the most 
outstanding to the appointing officer. The official who 
designates a review committee is required to make every 
effort to select at least one women and/or one minority 
group member. The plaintiff argued for a modification of 
the McDonnell Douglas formula under which a claimant 
could establish a prima facie case by showing that he 
belonged to a minority; he qualified for the position; and he



32a

was denied promotion because of an evaluation by a review 
committee consisting only of white males. At this point 
under the 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 
were done, the pretext inquiry would focus on this reason, 
rather than the articulated reason for denying the 
promotion.

The majority of the Fourth Circuit, en banc, rejected 
plaintiffs proposed modification its dictum stating:

The proper object of inquiry in a claim of 
disparate treatment under § 717 is whether there has 
been "discrimination" in respect of "personnel actions 
affecting (covered) employees or applicants for 
employment. ..." 42 U.S.C. § 2000e-16(a) (emphasis 
added). Disparate treatment theory as it has
emerged in application of this and comparable 
provisions of a Title VII, most notably § 703(a)(1), 
42 U.S.C. § 2000e-2(a)(l), 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 o f decision we 
think contemplated by the term "personnel actions" 
in § 717.

*  *  *  *  *  *

By this we suggest no general test for defining 
those "ultimate employment decisions" which alone 
should be held directly covered by § 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



33a

VII there are certainly others than those we have so far 
specifically identified that may be so 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 § 717 and comparable 
provisions of Title VII. We hold here merely that 
among the latter are mediate position o f 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.

Id. 645 F.2d at 233 (emphasis added)(citation omitted).

A careful reading of the Fourth Circuit’s opinion 
indicates clearly that the court did not interpret § 717 to rule 
out a cause of action by an employee who had been 
subjected to discriminatory harassment based on race, sex, 
religion, color or national origin that created a hostile or 
abusive work environment. Instead, the Fourth Circuit’s 
dictum states that § 717 does not prohibit discrimination in 
"interlocutory or mediate decisions having no immediate 
effect upon employment conditions" such as the composition 
of a review committee. Clearly, by implication, the court 
viewed § 717 as proscribing discrimination in "end-decisions" 
that have "immediate effect upon employment conditions," 
such as an employer’s creation of a hostile environment 
discrimination based on sex, race, religion or national origin. 
The curt also expressly stated that the examples of unlawful 
employment actions immediately affecting employment 
conditions referred to, viz, discrimination in hiring, granting 
leave, discharging, promoting, and compensating, did not 
constitute an exclusive list. The court set forth these 
examples only to identify "the general level" of 
discrimination unlawful employment practices forbidden by 
§ 717, not to suggest a "general test" for defining the types 
of discrimination barred by §§ 703, 704 and 717. At the



34a

time of the Page court’s decision the cause of action based 
on a discriminatory work environment was well established 
under § 703 at the same "general level" identified in the 
court’s opinion. See Vinson, A ll  U.S. at 65-66, 106 S.Ct. at 
2404-05. That the Page court drew no distinction between 
§ 1Y1 and § 703 but treated them as equivalents further 
indicates the court did not interpret § 717 as excluding such 
a claim.1

In Dollis v. Rubin, 11 F.3d 111 (5th Cir. 1995), the 
plaintiff, an EEOC specialist in the U.S. Customs Service, 
brought suit against the Secretary of the Department of the 
Treasury, claiming race, sex, and retaliation discrimination 
in violation of Title VII, § 717. The magistrate granted 
summary judgment to the Secretary, rejecting Dollis’ primary 
claim that she had been discriminatorily denied a desk audit

Tn subsequent cases courts have disagreed with Page's restriction 
of "adverse employment action" to mediate decisions and have limited 
its holding to Federal Government employment cases.

In Hayes v. Shalala, 902 F.Supp. 259-266 (D.D.C. Cir. 1995), 
the court noted that while its circuit had not directly addressed the 
holding in Page, ”[w]here it has spoken, it has adopted 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 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 environments, even if 
individual actions may not have left a permanent paper trail or may 
even had been ‘mediate’ employment decisions as identified by the 
Fourth Circuit in Page.

The court in Howze v. Vir. Polytechnic, 901 F.Supp. 1091, 
1097 (W.D. Va. 1995), noted that Page "was not a retaliation case, 
but rather addressed an attempt to rewrite the prima facie case 
requirements in a failure to promote case. Second, the court was 
defining the term ‘personnel actions’ in 42 U.S.C.A. § 2000e-16(a), 
dealing with discrimination in federal employment. ... There is no 
indication that the Fourth Circuit intended this definition to apply to 
the retaliation provision in section 2000e-3(a).



35a

and her retaliation discrimination claims based on her 
employer’s alleged acts or omissions in giving her false 
information about the return of a self-nomination for an 
award for the Federal Women’s Program, informing her of 
the requirement that the EEO Manager approve each 
handwritten document prepared by her, and informing a 
vendor of an incorrect procurement procedure taken by her. 
This court affirmed on the ground that neither the denial of 
the desk audit nor the alleged retaliations arose to the level 
of an adverse personnel action or an ultimate employment 
decision, citing Page v. Bolger. Id. at 781.

Dollis is clearly distinguishable from the present case 
because Dollis did not claim that she had been subjected to 
retaliatory harassment that was sufficiently severe or 
pervasive to create a discriminatoiy hostile or abusive work 
environment. Moreover, under the facts alleged and shown 
by Dollis, it is clear that no reasonable trier of fact could 
have found both objective and subjective perceptions that 
the environment was abusive. Conduct that is not severe or 
pervasive enough to create an objectively hostile or abusive 
work environment—an environment that a reasonable 
person would find hostile or abusive—is beyond Title VII’s 
purview. Likewise, if the victim does not subjectively 
perceive the environment to be abusive, the conduct has not 
actually altered the conditions of the victim’s employment, 
and there is no Title VII violation. Harris, 510 U.S. at 21- 
22, 114 S.Ct. at 370-71.

Nor do any of the other cases relied upon by the 
majority opinion hold or support the majority’s implicit 
holding that acts of harassment and discrimination by co­
workers attributable to the employer creating a hostile 
environment cannot collectively rise to a level of severity or 
pervasiveness to constitute discrimination prohibited by Title 
VII, § 704(a): 1

(1) In Landgraf v. USIFilm Prods., 968 F.2d 427, 431



36a

(5th Cir. 1992), ajfd, 511 U.S. 244, 114 S.Ct. 1483, 128 
F.Ed.2d 229 (1994), this court affirmed the district court’s 
findings that the plaintiff suffered severe enough sexual 
harassment from one male co-worker, a machinist, to create 
a hostile work environment, but that the conflicts and 
unpleasant relationships plaintiff had with other co-workers 
were not related to the charge she filed complaining of the 
machinist’s sexual harassment; therefore, this court 
concluded, the plaintiffs conflicts with the other co-workers 
could not constitute an underlying basis for her retaliation 
claim.

(2) Whitaker v. Carney, 778 F.2d 216 (5th Cir. 1985), 
held that Title VII does not prevent an employer for 
disclosing to the complained-of individual sexual harassment 
in employment complaints made to the employer by its 
employees, and that, consequently, Title VII provides no 
basis for appellants’ attempted removal to federal court 
under the federal civil rights removal statute on the asserted 
ground that to comply with appellee’s state Open Records 
Act request would be an act inconsistent with a law 
providing for equal rights. Therefore, Whitaker is irrelevant 
here and did not refuse to expand coverage of Title VII’s 
anti-retaliation provision as the majority opinion indicates.

(3) Hill v. Miss. St. Empl. Serv., 918 F.2d 1233 (5th 
cir. 1990) did not hold, as the majority claims, that plaintiffs 
allegations that co-workers stared at her, followed her, 
delayed her disbursement checks, relegated the classification 
of her file, deleted experience data from her employment 
referral form, and criticized her EEOC complaint failed to 
constitute retaliation. Instead, this court held that the trial 
magistrate’s finding that the plaintiff failed to prove these 
alleged facts was not clearly erroneous. Id., 918 F.2d at 1241. 
Furthermore, this court’s discussion of the retaliation claim 
in Hill does not mention or allude to ultimate, interlocutory 
or mediate employment decisions as the majority suggests. 
Id., 918 F.2d at 1240-41.



37a

(4) In DeAngelis v. El Paso Municipal Police Officers
Assn., 51 F.2d 591 (5th Cir. 1995), this court set forth the 
criteria for a Title VII hostile environment sex 
discrimination claim as: (a) Sexually discriminatory
intimidation, ridicule and insults, which are (b) sufficiently 
severe or pervasive that they (c) alter the conditions of 
employment and (d) create an abusive working environment, 
citing Harris and Vinson, id., 51 F.3d at 593, and held that 
the anonymous comments in ten columns of a police officer 
association’s newsletter directed toward plaintiff and female 
officers in general were not so frequent, pervasive, or 
pointedly insulting as to create a hostile working 
environment; and that a reference in one of the columns to 
plaintiffs "E-I-E-I-O" [EEOC] complaint and an article 
reporting the association’s intention to sue her for damages 
if her lawsuit proved groundless did not amount to an 
adverse employment action under any reasonable meaning 
of that term. Id., 51 F.2d 3d at 597.

(5) In Gonzalez v. Carlin, 907 F.2d 573 (5th cir. 
1990), the plaintiff claimed that the Postal Service had 
discriminatorily failed to promote him because of his 
national origin, but he failed to present a prima facie case 
because the evidence showed that he had not yet acquired 
the two-year mechanical, electrical and electronic experience 
necessary to qualify for the Level 6 MPE maintenance 
mechanic position. For the same reason, his claim that his 
failure to receive the desired promotion was based on 
retaliatory motive was also rejected. The case has little, if 
any, relevance to an employee’s claim that, as in the present 
case, is based on the employer’s retaliatory conduct, directly 
and through employees for whom he is accountable, that is 
sufficiently severe or pervasive to create a discriminatorily 
hostile or abusive working environment.

CONCLUSION

The majority opinion is in conflict with the aim of



38a

Congress in enacting Title VII. Section 703 of Title VII 
makes it unlawful for an employer to "discriminate against 
any individual with respect to his compensation, terms, 
conditions, or privileges of employment, because of such 
individual’s race, color, religion, sex, or national origin." 
Section 704 of Title VII makes it unlawful for "an employer 
to discriminate against any of his employees ... because he 
has made a charge, testified, assisted, or participated in any 
manner in an investigation, proceeding, or hearing under 
this title." The Supreme Court has emphatically held that 
Title II, § 703, is violated when the employer discriminates 
on the basis of sex by creating a hostile or abusive work 
environment, which "can be determined only by looking at 
all the circumstances." Harris, 510 U.S. at 23, 114 S.Ct. at 
371. Consequently, it necessarily follows that Title VII, § 
704, is violated when all the circumstances show that the 
employer has discriminated against an employee for 
participating in the enforcement of Title VII by creating a 
hostile or abusive work environment. There is no 
justification for recognizing hostile environment 
discrimination based on all circumstances under one section 
and not the other. Nor is there any justification for 
interpreting Title VII to afford less protection against 
retaliatory discrimination than against sexual, racial or other 
types of forbidden discrimination. This court has constantly 
recognized that, to effectuate the purposes of Congress, § 
704(a) affords broad protection against retaliation for those 
who participate in the process of vindicating civil rights 
through Title VII. See, e.g., Whatley v. Metro. Atlanta Rapid- 
Transit Auth., 632 F.2d 1325 (5th Cir. 1980); Pettway v. Am. 
Cast Iron Pipe Co., 411 F.2d 998 (5th Cir. 1969).

Nevertheless, the majority has produced a holding 
that prevents a judge or jury from considering all the 
circumstances in retaliation cases and thereby severely 
impairs the cause of action based upon a discriminatory 
work environment under Tile VII, § 704(a). The holding is 
based on the majority’s mistaken interpretation of two judge-



39a

made terms that were never intended for the use my 
colleagues make of them. There is nothing to indicate that 
this court intended to narrow the scope of protection against 
retaliatory discrimination afforded by § 704(a) when it 
adopted the shorthand term, "adverse employment action," 
to assist its analysis of retaliation claims. Nor is it correct to 
conclude, as the majority must have, that the Page court had 
the authority and the intention, by its judge-minted term, 
"ultimate employment decision," to drastically narrow the 
meaning of discrimination under §§ 703 and 717, effectively 
abolishing altogether the cause of action based on a 
discriminatory work environment. Unfortunately, the 
majority has allowed its mistaken interpretation of the judge- 
made rules to lead it to an incorrect conclusion as to the 
meaning of Title VII.

Because I believe that the majority’s decision is 
contrary to the clear statutoiy language, the Supreme Court 
decisions, and all prior jurisprudence, and that it will 
drastically weaken § 704(a)’s protection against retaliation 
for those who participate in the enforcement of Title VII by 
immunizing employers who use hostile environment 
discrimination vengefully against them, I must respectfully 
dissent.



40a

No. 95-40836
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 
Filed Apr. 22, 1997

JEAN G. MATTERN,

Plaintiff-Appellee, 
v.

EASTMAN KODAK CO; EASTMAN CHEMICAL 
COMPANY, doing business 
as Texas Eastman Co.,

Defendants-Appellants.

Appeal from the United States District Court 
for the Eastern District of Texas, Marshall Division

ON PETITION FOR REHEARING AND 
SUGGESTION FOR REHEARING EN BANC

(Opinion 1/16/97, 5th Cir., 1997,____ F.3d ____ )

Before GARWOOD, BARKSDALE, AND DENNIS, 
Circuit Judges

PER CURIAM

(X) The Petition for Rehearing is DENIED and no 
member of this panel nor judge in regular active service on 
the court having requested that the court be polled on 
Rehearing En Banc, (FRAP and Local Rule 35) the 
Suggestion for Rehearing En Banc is also DENIED.



41a

( ) The Petition for Rehearing is DENIED and the court 
having been polled at the request of one of the members of 
the court and a majority of the judges who are in regular 
active service not having voted in favor, (FRAP and Local 
Rule 35) the Suggestion for Rehearing En Banc is also 
DENIED.

( ) A member of the court in active service having 
requested a poll on the reconsideration of this cause en 
banc, and a majority of the judges in active service not 
having voted in favor, Rehearing En Banc is DENIED.

COURT
E N T E R E D  F O R  T H E

s/___________ _
United States Circuit Judge



42a

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF TEXAS 

MARSHALL DIVISION

JEAN G. MATTERN,

Plaintiff-Appellee,

v. CIVIL ACTION NO. 2:93cvl89

EASTMAN KODAK COMPANY,
EASTMAN CHEMICAL COMPANY 
D/B/A EASTMAN COMPANY,

Defendants-Appellants.

ORDER

Came on for consideration defendants’ Eastman 
Kodak Company, Eastman Chemical Company, D/B/A/ 
Texas Eastman, Motion for Judgment as a M atter of Law 
and Alternatively a Motion for a New Trial. Defendants 
assert that there is no legally sufficient evidentiary basis for 
a reasonable jury to find for Ms. M attem on her Title VII 
claim.

Although Rule 50 of the Federal Rules of Civil 
Procedure has been amended to replace the terms "directed 
verdict" and "judgment notwithstanding the verdict" with the 
term "judgment as a matter of law," the standard to 
determine whether evidence is sufficient to justify submitting 
a case to jury is long established and unchanged in this 
regard:

On motions for directed verdict and for judgment 
notwithstanding the verdict the Court should 
consider all of the evidence—not just that evidence



43a

which supports the non-mover’s case—but in the 
light and with all reasonable inferences most 
favorable to the party opposed to the motion. If the 
facts and inferences point so strongly and 
overwhelmingly in favor of one party that the Court 
believes that reasonable men could not arrive at a 
contrary verdict, granting of the motions is proper. 
On the other hand, if there is substantial evidence 
opposed to the motions, that is, evidence of such 
quality and weight that reasonable and fair-minded 
men in the exercise of impartial judgment might 
reach different conclusions, the motions should be 
denied, and the case submitted to the juiy. A mere 
scintilla of evidence is insufficient to present a 
question for the jury.

Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969)(en
banc).

Furthermore, in order for a party to succeed on a 
claim of retaliation under Title VII, that party must prove: 
1) that the employee engaged in a protected activity under 
Title VII; 2) that the employee suffered an adverse 
employment action; and 3) that the employer acted out of a 
retaliatory motive in taking the adverse action. Grizzle v. 
Travelers Health Network, Inc., 14 F.3d 261, 267 (5th Cir. 
1994).

The defendants’ motion is not well taken. At the 
trial, Ms. M attem presented the testimony of Eastman 
personnel who stated that the pump in which Ms. M attem 
rebuilt must have been tampered with because the pump was 
functioning when she completed rebuilding and that it was 
impossible for the pump to be have been put together 
incorrectly. This alleged tampering led to the plaintiff 
receiving a negative evaluation in her employment records 
and the alleged threat made by a supervisor that Ms. 
M attem would soon be fired. Although placement of a



44a

negative memoranda in Ms. M attem ’s employment file and 
oral threats of termination may not have been considered an 
adverse employment action, tampering with another 
employee’s work by another employee could reasonably be 
construed as sabotage condoned or directed by an employer 
for the purpose of establishing cause for discharge, 
demotion, reprimand or refusal to promote. This sabotage 
could have reasonably taken place in response to Mr. 
M atter’s actions regarding her complaints of sexual 
harassment. Furthermore, at trial, Mr. M attem  produced 
evidence that the defendant acted out of a retaliatory motive 
in condoning the actions taken by other employees against 
Ms. M attem. Therefore, the Court finds that there is a 
legally sufficient evidentiary basis for a reasonable jury to 
find for Ms. M attem on her Title VII retaliation claim.

Furthermore, defendants assert that in the 
alternative, they are entitled to a new trial. Whenever a trial 
court considers a motion for a new trial it may weigh the 
evidence presented to the jury. Bazile v. Bisso Marine Co., 
606 F.2d 101, 105 (5th cir. 1979), cert, denied, 449 U.S. 829, 
101 S.Ct. 94, 66 L.Ed.2d 33 (1980). A party may be entitled 
to a new trial if the verdict is against the "great weight" of 
the evidence. Scott v. Monsanto Co., 868 F.2d 786, 791 (5th 
Cir. 1989). To an extent, then, the trial court substitutes its 
judgment of the facts and of the credibility of the witnesses 
for that of the jury. Massey v. Gulf Oil Corp., 508 F.2d 92, 
95 (5th Cir.), cert, denied, 423 U.S. 838, 96 S.Ct. 46 L.Ed.2d 
57 (1975). A jury has the "undoubted power to sift the 
evidence before it and to believe or disbelieve portions of 
the testimony of various witnesses (or even of the same 
witness) in constructing its own view of what most probably 
happened." Conway v. Chemical Leaman Tank Lines Inc., 
610 F.2d at 360. Against the great weight of the evidence is 
a confining standard; a lesser standard would damage the 
jury’s role as the principal trier of fact. Spurlin v. General 
Motors Corp., 528 F.2d 612, 620 (5th cir. 1976). Issues of 
credibility, considered by the trial court in this context, are



45a

more akin to evaluations of the weight of the evidence than 
to evaluations of the believability of various witnesses. See 
Massey, 508 F.2d at 94 & n.l.

Considering the standards outlined above and in 
weighing the evidence presented at trial, the court finds that 
the jury’s findings regarding Ms. M attem ’s retaliation claim 
are not against the great weight of the evidence and 
therefore a new trial is not justified.

It is hereby

ORDERED that defendants’, Eastman Kodak 
company, Eastman Chemical Company, D/B/A Texas 
Eastman, Motion for Judgment as a M atter of Law and 
Alternatively a Motion for a New Trial be DENIED.

SIGNED this 12th day of September, 1995.

_ _ _ _ _ _ _ ZSL_ _ _ _ _ _ _ _ _ _ __ _ _ _
HARRY W. McKEE

UNITED STATES MAGISTRATE JUDGE