Mattern v. Eastman Kodak Company Petitioners' Reply to Respondent's Brief in Opposition
Public Court Documents
October 8, 1997

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Brief Collection, LDF Court Filings. Mattern v. Eastman Kodak Company Petitioners' Reply to Respondent's Brief in Opposition, 1997. ca22a42c-bd9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/6d2b09c0-1ac3-4d34-8f0d-4658540f8099/mattern-v-eastman-kodak-company-petitioners-reply-to-respondents-brief-in-opposition. Accessed July 13, 2025.
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N A A C P L E G A L DEFENSE AND EDUCATIONAL FUND, INC. National Office Suite 1600 99 Hudson Street New York, N.Y. 10013-2897 (212)219-1900 Fax:(212) 226-7592 Hon. William K. Suter Clerk, Supreme Court of the United States Washington, D.C. 20543 October 8, IS L A N D DELIVERED #cr - a mi OFFICE OF THE CLERK SUPREME COURT, U S Re: Jean G. M attern v. Eastman Kodak Co., et al.: No. 97-126 Dear Mr. Suter: Enclosed please find for filing forty copies of Petitioner’s Reply to Respondent’s Brief in Opposition in the above case, along with proof of service. Since the petition and the opposition have already been circulated to the Court, I would appreciate our reply being circulated immediately. Thank you for your attention to this matter. Very truly yours, Tes ^tephen"Ralston Counsel for Petitioners cc: Counsel for Respondents Contributions are The NAACP Legal Defense & Educational Fund, Inc. (LDF) is not part deductible for U S. of the National Association for the Advancement of Colored People income lax purposes. (NAACP) although LDF was founded by the NAACP and shares its commitment to equal rights. LDF has had, since 1957, a separate Board, program, staff, office and budget. Regional Offices Suite 301 1275 K Street, NW Washington, DC 20005 (202) 682-1300 Fax: (202) 682-1312 Suite 208 315 West Ninth Street Los Angeles, CA 90015 (213) 624-2405 Fax: (21.3) 824-4 X)75 No. 97-126 IN THE SUPREME COURT OF THE UNITED STATES October Term, 1997 JEAN G. MATTERN, Petitioner, v. EASTMAN KODAK COMPANY, et al., Respondents. CERTIFICATE OF SERVICE I, CHARLES STEPHEN RALSTON, hereby certify that I am a member of the bar of the Supreme Court of the United States, and that I have caused PETITIONER’S REPLY TO RESPONDENT’S BRIEF IN OPPOSITION to be served by depositing the same, first class postage prepaid, in the United States mail, this 8th of October, 1997, addressed to: Stephen F. Fink, Esq. Bryan Patrick Neal, Esq. Thompson & Knight 1700 Pacific Avenue, Suite 3300 Dallas, TX 75201 All parties required to be served hav~ 1------------- J 4. Counsel for Petitioner No. 97-126 In The Supreme Court of tfce Hmtetr l£>tateg October Term , 1997 Jean G. M attern , 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 PETITIONERS’ REPLY TO RESPONDENT’S BRIEF IN OPPOSITION * Eric Schnapper University of Washington School of Law 1100 N.E. Campus Way Seattle, WA 98195 (206) 616-3167 Elaine R. Jones Director-Counsel 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 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 o f Record 3223 Smith Suite 308 Houston, TX 77006 (7! 3) 526-5677 ... J r e c e i v e d ! HAND DELIVERED unsel for Petitioned OCT ~ 8 1997 OFFICE OF THE CLERK SUPREME COURT. U.S. PRESS OF BYRON S. ADAMS ♦ WASHINGTON, D.C. ♦ 1-800-347-8208 PETITIONER’S REPLY TO RESPONDENTS’ BRIEF IN OPPOSITION (1) The parties are not in disagreement regarding the substance of the Fifth Circuit’s interpretation of the scope of § 704(a). We set forth in the petition (at 7-8) twelve distinct retaliatory practices expressly declared lawful by the court of appeals. Respondents do not deny that under the decision below all of these practices may now lawfully be used in the Fifth Circuit to punish employees who complain to or cooperate with the EEOC. The application of the Fifth Circuit rule to the instant case is also not in dispute. Respondents admit (Brief in Opposition at 6) that the jury charge defined an "adverse employment action" prohibited by § 704(a) to include, inter alia, "acts of sabotage . . . by employees against other employees." Contrary to respondents’ assertion (id., p. 5), therefore, the jury was not limited to considering "separately each alleged retaliatory action."1 Instead, as respondents acknowledge (id., p. 4), based upon all the proof the "jury found ‘that Eastman intentionally or willfully retaliated against Jean Mattem for filing a charge of discrimination and/or for filing this lawsuit’" and awarded M attem $50,000 in actual damages. Like respondents, the court of appeals did not question that factual finding, and neither respondents nor the court below suggested that the damage award was in any respect excessive. Thus, this case presents an entirely appropriate vehicle for addressing the issue raised in the petition. That respondents acted with an unlawful retaliatory motive, and that their actions caused substantial injury, are no longer in dispute. The specific retaliatory practices on which the jury ‘Whether the retaliatory practices at issue in this case were assessed separately, or in combination, is in fact irrelevant. Under the Fifth Circuit decision that distinction is unimportant; since on its view none of the practices at issue was illegal, a combination of entirely lawful retaliatory actions would be no less permissible. 2 verdict was based provide a specific and concrete application of the Fifth Circuit’s "ultimate employment action" doctrine. (2) Respondents do not contend that any other circuit has ever held, or would hold, that the dozen retaliatory practices sanctioned by the Fifth Circuit are permissible under Title VII. Nor do respondents argue that any circuit has ever held that practices causing $50,000 in damages are too minor to be actionable under Title VIL In its actual operation, then, as indicated by the result below, the Fifth Circuit rule differs dramatically from actual practice in the other circuits. Respondents argue solely that other circuits hold that any alleged discriminatory act is only actionable if that act is adverse to the plaintiff, i.e., that the act in question must actually cause some injury. See Brief in Opposition, pp. 11 ("the law requires a plaintiff in an employment discrimination case to show some actual injury"), 14 (action complained of must cause a "materially significant disadvantage"), 15 ("materially adverse change in the terms and conditions of employment"), 24 (Congress did not authorize actions for "trivial slights, real and imagined"). The cases relied on by respondents require proof of actual injury. See, e.g., Adams v. Bethlehem Steel Corp., 736 F.2d 992, 994 (4th Cir. 1984)("the existence of a wrong without some identifiable injury does not provide a basis for redress").2 2Accord Harlston v. McDonnelDouglas Corp., 37 F.3d 379 (8th Cir. 1994) ("[cjhanges in duties or working conditions that cause no materially significant disadvantage" are not actionable); Flaherty v. Gas Research Inst., 31 F.3d 451, 456 (7th Cir. 1994) (no claim can be based on employment actions that involve "no materially significant disadvantage"); Lawrence v. National Westminster Bank N.J., 98 F.3d 61, 72 (3d Cir. 1996) (claim dismissed because "the district court found [plaintiff] had suffered no injury"). 3 But the common rule that a civil rights plaintiff must prove some actual, non-trivial injury is dramatically different from the holding in this case—that an entirely real, $50,000 injury is not actionable if brought about through one of the "approved" methods of retaliation. The Fifth Circuit did not hold that a $50,000 injury is trivial or de minimis; such an injury would, on its view, have been fully compensable if caused, for example, by a retaliatory dismissal. The court of appeals overturned the jury verdict in this case, not because of any dispute about the magnitude of the harm, but because it insisted that the particular retaliatory methods utilized to inflict that harm simply were not illegal under Title VII. (3) The Fifth Circuit itself emphasized that the rule it was adopting for retaliation cases was deliberately and dramatically different from the requirement in a garden- variety race or gender discrimination case that a plaintiff prove actual injury. The court below insisted that the scope of the prohibition against mistreatment of an employee on the basis of race or sex—encompassing any practice with an adverse effect—"reaches much further than" the Title VII anti-retaliation provision. (Appendix to the Petition, p. 14a.) The Title VII prohibition against adverse action taken on the basis of race or gender, the Fifth Circuit held, forbids any number of "vague harms" that are entirely permissible when engaged in to retaliate against an employee for filing a charge of race or sex discrimination. (Id.) That the decision below marks a sharp departure from prior precedent is well recognized. One recent opinion observed, for example: the Tenth Circuit . . . has not adopted the Mattem standard. . . . In fact, the Tenth Circuit . . . has repeatedly permitted claims for retaliation based upon less than an "ultimate employment decision" as defined in Mattem. . . . Were some discriminatory acts that had a real and negative effect on a person who brings a charge of discrimination under § 2000e- 4 2(a) permitted, it would have a chilling effect upon employees’ willingness to make charges or support others’ charges under that section. Deavenport v. M CI Telecommunications Corp., 1997 WL 46160, *4, *7 (D. Colo. Aug. 13, 1997). Even within the Fifth Circuit it is candidly recognized that Mattem has brought about a "contraction" of the protections of Title VII. Battee v. Eckerd Drugs, Inc., 1997 WL 340941, *8 (N.D. Tex. June 12, 1997). Respondents concede that "judges . . . have differed about where to draw the line between actionable conduct and conduct that simply does not constitute ‘discrimination against’ an employee." (Brief in Opposition 12; see id. at 14 (Seventh Circuit decisions "inconsistent"), 19 (Ninth Circuit decisions "inconsistent"), 20 (District of Columbia Circuit "sets one of the lowest thresholds").) The conflict is acute and must be resolved by this Court. (4) It simply is not the case, as respondents suggest, that the jury instructions in this case anticipated or incorporated the aberrational standard adopted by the Fifth Circuit. None of the twelve now-permissible retaliatory practices approved by the Fifth Circuit are described by the jury instructions as lawful. To the contrary, the jury instruction specifically states, for example, that a retaliatory "reprimand" would be actionable (Appendix to the Petition, p. 10a), while the court of appeals expressly held that such a reprimand was not actionable. (Id., p. 12a.) If the district judge had understood his jury instructions to declare lawful every retaliatory act with which respondents were charged, he would assuredly have granted respondents’ motion for a judgment as a matter of law. Similarly, if the jury had understood the instructions to mean that all the proffered evidence was legally insufficient, it would not likely have returned a substantial verdict in favor of plaintiff. Equally unavailing is respondents’ argument that the jury’s verdict regarding retaliation is inconsistent with its 5 verdict regarding sexual harassment. If the jury verdicts were indeed inconsistent, the proper remedy would have been to order a new trial on both issues. But the Fifth Circuit did not order such a new trial. Respondents misapprehend the scope of the Question Presented when they suggest that petitioner has abandoned her objection that company officials permitted fellow workers to sabotage petitioner’s work. The Question Presented is specifically framed to encompass retaliatoiy acts taken by fellow employees "with the knowledge of company supervisors." (Petition for a Writ of Certiorari, i.) At trial, to be sure, a wide array of factual disputes existed between the parties, and were presented to the jury. With regard to petitioner’s retaliation claims, however, the jury resolved those issues in petitioner’s favor. The issue squarely presented is, therefore, whether the court below was justified in setting aside the jury’s verdict. C o n c l u sio n For the foregoing reasons, a writ of certiorari should issue to review the judgment and opinion of the Court of Appeals for the Fifth Circuit. Respectfully submitted, * E r ic Schnapper U niversity of Washington School of Law 1100 N.E. Campus Parkway Seattle, WA 98105 (206) 616-3167 Counsel of Record R ussell C. Brow n T h e Wellbo rn , H ouston Law F irm 300 W. Main Street Henderson, TX 75652 (903) 657-8544 Ma r g a r et A. Harris Ka th erin e L. Butler Bu tler & Harris 3223 Smith, Suite 308 Houston, TX 77006 (713) 526-5677 E laine R. J ones D ir ec to r -Counsel T h e o d o r e M. Shaw N orm an J. Chachkin Charles Steph en R alston NAACP Legal D efen se and E ducational Fun d , Inc . 99 Hudson Street Suite 1600 New York, New York 10013 (212) 219-1900 Counsel for Petitioner