Mattern v. Eastman Kodak Company Petitioners' Reply to Respondent's Brief in Opposition

    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

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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