Mattern v. Eastman Kodak Company Respondents' Brief in Opposition

    No. 97-126

In The

jimpmtip (Himri x f i tl]£ Mmirfr

----------------------------------- $— -----------------------

O ctober Term, 1996

JEAN G. MATTERN,
Petitioner,

vs.

EASTMAN KODAK COMPANY, et a l,

Respondents.

On Petition fo r  a Writ o f  Certiorari to the United States 
Court o f  Appeals fo r  the Fifth Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

STEPHEN F. FINK 
Counsel o f  Record 

BRYAN P. NEAL 
THOMPSON & KNIGHT, RC. 

Attorneys fo r  Respondents 
1700 Pacific Avenue 
Suite 3300 
Dallas, Texas 75201 
(214)969-1700

Lu£, leilata
Jervices, inc.

72041
(800) 3 APPEAL - (300) 5 APPEAL • (800) BRIEF 21



I

Q U ESTIO N  PR ESEN TED

Section 704(a) of Title VII of the Civil Rights Act of 1964 
prohibits employers from “discriminat[ing] against” employees 
who challenge perceived violations of other prohibitions in Title 
VII. Does § 704(a) perm it an employee to obtain relief for 
alleged employer conduct that results in no objective detrimental 
effect on the employment relationship?



PARTIES TO THE PROCEEDING

The petitioner is Jean G. M attern, plaintiff-appellee below.

The named respondents, defendants-appellants below, are 
“Eastman Kodak Company and Eastman Chemical Company 
doing business as Texas Eastman Company.” As stipulated below, 
the correct defendant was Eastman Chemical Company, of which 
Texas Eastman Company is a division. VII R. 7-8. Eastman 
Kodak Company has no interest in this case.

Eastman Chemical Company has no parent company. The 
fo llow ing  are nonw holly  ow ned sub sid ia rie s  o f Eastm an 
C hem ical C om pany: G enenco r In te rn a tio n a l Inc .; H D K  
Industries; K ingsport Hotel L im ited L iability  Corporation; 
Primester; Southern BioSystems, Inc.; Enterprise Genetics, Inc.; 
and Bellpack.



T A B L E  O F  C O N T E N T S

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

Parties to the P ro ceed in g ...................................................... ii

Table of C o n te n ts ...................................................................  iii

Table of Citations .................................................................  iv

Statement of the Case ..........................................................  1

Reasons For Denying The W rit ........................................  3

I. The Circumstances O f This Case Make Review
Inappropriate..............................................................  3

II. There Is No Real And Substantial Conflict In The
Circuits That Warrants This Court’s Review. . . 8

A. The Views of the Other Circuit Courts. . . .  12

B. The Fifth C ircuit’s V ie w ...............................  20

C. Policy Concerns Support the Fifth Circuit’s
V ie w ...................................................................  23

III. The Fifth C ircuit’s Decision Does Not Conflict
With Any Decision O f This Court.........................  24

Conclusion ..............................................................................  28

iii

Page



IV

TABLE OF CITATIONS

Cases Cited:

Adams v. Bethlehem Steel Corp., 736 F.2d 992 (4th Cir.
1984) ...................................................................................  11

Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520 (2d 
C ir.), cert, denied, 506 U.S. 965, 113 S. Ct. 440
(1 9 9 2 ) ................................................................... ...............  15 ,23

Aman v. Cort Furniture Rental Corp., 85 F.3d 1074 (3d
Cir. 1 9 9 6 ) ............................................................................  22

Bailey v. USX Corp., 850 F.2d 1506 (1 1th Cir. 1988) . . 18, 25

Berger v. Iron Workers Reinforced Rodmen Local 201, 843 
F.2d 1395 (D.C. Cir. 1988), cert, denied, 490 U.S. 1105,
109 S. Ct. 3155 (1989) ............................................... .. . 20

Berry v. Stevinson Chevrolet, 74 F.3d 980 (10th Cir.
1996) ............................................................................  18

Boyle v. UnitedTech. Corp., 487 U.S. 498, 108 S. Ct. 2510
(1 9 8 8 ) ...................................................................................  7

Bradford v. NorfolkS. Corp., 54 F.3d 1412 (8th Cir. 1995)
14

Burns v. AAF-McQuay, Inc., 96 F.3d 728 (4th Cir. 1996),
cert, denied, 117 S. Ct. 1247 (1997) ...........................  22

Contents
Page



V

Cesaro v. Lakeville Community Sch. Dist., 953 F.2d 252 
(6th Cir.), cert, denied, 506 U.S. 867, 113 S. Ct. 195
(1 9 9 2 ) ...................................................................................  13

Chertkova v. Connecticut Gen. Life Ins. Co., 92 F.3d 81
(11th Cir. 1 9 9 6 ) ................................................................. 22

Cole v. Ruidoso Mun. Schs., 43 F.3d 1373
(10th Cir. 1 9 9 4 ) ................................................................. 18

Collins v. State o f Illinois, 830 F.2d 692 (7th Cir.
1987) ...................................................................................  15

Commissioner v. Schleier, 515 U.S. 323, 115 S. Ct. 2159
(1 9 9 5 ) ...................................................................................  11

Crady v. Liberty Nat'l Bank & Trust Co. oflnd., 993 F.2d
132 (7th Cir. 1993) ...............................   14

Davis v. City o f Sioux City, 115 F.3d 1365
(8th Cir. 1 9 9 7 ) ...............................   28

Deavenport v. MCI Tel. Corp., 1997 WL 467160, *8 (D.
Col. Aug. 13, 1 9 9 7 ) ..........................................................  22 ,23

DeNovellis v. Shalala, _  F.3d _ ,  1997 WL 527912
(1st Cir. Sept. 2, 1 9 9 7 ) ...................................................  4

Dollis v. Rubin, 77 F.3d 111 (5th Cir. 1995) .................. 12, 22

Easley v. West, 66 Fair Empl. Prac. Cas. (BNA) 1634 (E.D.
Pa. 1994)

Contents

Page

6



VI

EEOC v. Cosmair, Inc., 821 F.2d 1085 (5th Cir.
1987) ...................................................................................  25

Flaherty v. Gas Research Inst., 31 F.3d 451 (7th Cir.
1994) ...................................................................................  14, 28

Gartman v. Gencorp Inc., 120 F.3d 127 (8th Cir.
1997) ............................................................................ .. 22

Gary v. Long, 59 F.3d 1391 (D.C. Cir.), cert, denied, 116
S. Ct. 569 (1 9 9 5 ) ...............................................................  20

Geisler v. Folsom, 735 F.2d 991 (6th Cir. 1984) . . . . . .  13

Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727
(1 9 8 2 ) ...................................................................   21

Harlston v. McDonnell Douglas Corp., 37 F.3d 379 (8th
Cir. 1 9 9 4 ) ............................................................................  14

Harris v. Forklift Sys., Inc., 510 U.S. 17, 114 S. Ct. 367
(1 9 9 3 ) .....................................................   4 ,5 ,6 ,9 ,2 2 ,2 4

Hashimoto v. Dalton, 118 F.3d 671 (9th Cir. 1997) . . .  19, 25

Henry v. Guest Servs., Inc., 902 F. Supp. 245 (D.D.C.
1995) a jf’d, 98 F.3d 646, 1996 WL 560362 (D.C. Cir.
1996) ...................................................................................  6, 20

Hopkins v. Baltimore Gas and Elec. Co., 77 F.3d 745 (4th
Cir.), cert, denied, 117 S. Ct. 70 (1996) ....................  12

Contents

Page



Hystro Prods., Inc. v. MNP Corp., 18 F.3d 1384 (7th Cir.
1994)   7

International Union, United Aerospace and Agricultural 
Implement Workers o f Am. v. Johnson Controls, Inc.,
499 U.S. 187, 111 S. Ct. 1196 (1991) ......................  22

Jones v. Reagan, 696 F.2d 551 (7th Cir. 1983) .............  11

Jordan v. Wilson, 851 F.2d 1290 (1 1th Cir. 1 9 8 8 ) .........  18

Kilgore v. Thompson & Brock Mgmt., Inc., 93 F.3d 752
(11th Cir. 1 9 9 6 ) ................................................................. 22

Lawrence v. National Westminster Bank N.J., 98 F.3d 61
(3d Cir. 1996) ...................................................................  11

Lawson v. McPherson, 679 F. Supp. 28 (D.D.C.
1986) ................................................................................... 23

Ledergerber v. Stangler,__F.3d__ , 1997 WL 545970 (8th
Cir. Sept. 8, 1 9 9 7 ) ............................................................  14

Martin v. Frank, 788 F. Supp. 821 (D. Del. 1992) . . . .  23

McCabe v. Atchison, T. & S.F. Ry., 235 U.S. 157, 35 S.
Ct. 69(1914) .....................................................................  11

McDonnell v. Cisneros, 84 F.3d 256 (7th Cir. 1996) . . .  14

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.
Ct. 1817 (1973) ................................................................. 26

vii

Contents

Page



Meredith v. Beech Aircraft Corp., 18 F.3d 890 (10th Cir.
1994) ...................................................................................  18

Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 106 S. Ct.
2399 (1986) ............................................................. 4, 6, 9, 24, 25

Montandon v. Farmland Indus., Inc., 116 F.3d 355 (8th
Cir. 1997) .  ........................................................................ 13, 28

Moore v. Murphy, 47 F.3d 8 (1st Cir. 1 9 9 5 ) ....................  7

Mosley v. Pena, 100 F.3d 1515 (10th Cir. 1996) ......... .. 18

Nelson v. Upsala College, 51 F.3d 383 (3d Cir.
1995) ...................................................................................  16, 17

Nidds v. Schindler Elevator Corp., 113 F.3d 912 (9th Cir.
1997), petition fo r  cert, filed, No. 97-364 (July 29,
1997)   19

Niehus v. Liberio, 973 F.2d 526 (7th Cir. 1992) ...........  11

Page v. Bolger, 645 F.2d 227 (4th Cir.), cert, denied, 454
U.S. 892, 102 S. Ct. 388 (1981) ..................................... 12

Passer v. American Chem. Soc’y, 935 F.2d 322 (D.C. Cir.
1991) ............................................................   20

Patel v. Allstate Ins. Co., 105 F.3d 365 (7th Cir. 1997)
..............................................................................................................  23

viii

Contents

Page



IX

Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct.
1775 (1989) ........................................................................ 10

Professional Real Estate Investors, Inc, v. Columbia 
Pictures Indus., Inc., 508 U.S. 49, 113 S. Ct. 1920
(1 9 9 3 ) ...................................................................................  21

Rabinovitz v. Pena, 89 F.3d 482 (7th Cir. 1996) ...........  22

Reeder-Baker v. Lincoln National Corp., 834 F.2d 1373
(7th Cir. 1 9 8 7 ) ................................................................   15

Reynolds v. CSX Transp., Inc., 115 F.3d 860 (11th Cir.
1997) ...................................................................................  18

Robinson v. City o f Pittsburgh, __F.3d ___, 1997 WL
386102 (3d Cir. July 14, 1997) .................... ............... 16, 17

Robinson v. Shell Oil Co., 117 S. Ct. 843 (1997) .........  24, 25

Ruedlinger v. Jarrett, 106 F.3d 212 (7th Cir. 1997) . . .  25

Rutan v. Republican Party o f Illinois, 497 U.S. 62, 110 S.
Ct. 2729 ( 1 9 9 0 ) ............................................................  25, 27, 28

Schnidrig v. Columbia Mach., Inc., 80 F.3d 1406 (9th
Cir.), cert, denied, 117 S. Ct. 295 (1996) .................. 22

Serrano-Cruz v. DFI Puerto Rico, Inc., 109 F.3d 23 (1st
Cir. 1 9 9 7 ) ............................................................................  22

Contents

Page



X

Simpson v. Federal Mine Safety and Health Review

Contents

Page

Comm’n, 842 F.2d 453 (D.C. Cir. 1988) ....................  22

Sims v. Mulcahy, 902 F.2d 524 (7th Cir.), cert, denied,
498 U.S. 897, 111 S. Ct. 249 (1990) ...........................  7

Smart v. Ball State Univ., 89 F.3d 437 (7th Cir. 1996) . 13, 14

Smith v. Maryland, 442 U.S. 735, 99 S. Ct. 2577
(1 9 7 9 ) ...................................................................................  21

Smith v. St. Louis Univ., 109 F.3d 1261 (8th Cir.
1997) ................................................................................. . 25

Steiner v. Showboat Operating Co., 25 F.3d 1459 (9th Cir.), 
cert, denied, 513 U .S . 1081, 115 S. C t. 733
(1 9 9 4 ) ...................................................................................  19

St. Louis v. Praprotnik, 485 U.S. 112, 108 S. Ct. 915
(1 9 8 8 ) ...................................................................................  7

St. M ary’s Honor Ctr. v. Hicks, 509 U.S. 502, 113 S. Ct.
2742 ( 1 9 9 3 ) . . . . ...............................................................  10

Steiner v. Showboat Operating Co., 25 F.3d 1459 (9th Cir.), 
cert, denied, 513 U .S . 1081, 115 S. C t. 733
(1 9 9 4 ) ...................................................................................  19

Strother v. Southern California Permanente Medical 
Group, 79 F.3d 859 (9th Cir. 1996) ............................. 19



X I

Swick v. City o f Chicago, 11 F.3d 85 (7th Cir. 1993) . . 12

Talanda v. KFCNatl. Mgmt. Co., 6 A.D. Cas. (BNA) 1321,
1997 WL 160695 (N.D. 111. April 2, 1997) ................ 24

Thomas v. D enny’s, Inc., I l l  F.3d 1506 (10th Cir.
1997) ..........................................................   22

Torres v. Pisano, 116 F.3d 625 (2d Cir. 1 9 9 7 ) ................ 15

Tschappat v. Reich, 957 F. Supp. 297 (D.D.C. 1997) . . 24

Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708 (2d
Cir. 1 9 9 6 ) ............................................................................  16

Vance v. Southern Bell Tel. and Tel. Co., 863 F.2d 1503
(11th Cir. 1 9 8 9 ) ................................................................. 4

Wanamaker v. Columbian Rope Co., 108 F.3d 462 (2d Cir.
1997) ..................................................................................  15

Ward v. Bechtel Corp., 102 F.3d 199 (5th Cir. 1997) . .  22

Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 109 S.
Ct. 2115 (1 9 8 9 ) ................................................................. 10

Welsh v. Derwinski, 14 F.3d 85 (1st Cir. 1994) .............. 17

Williams v. Bristol-Myers Squibb Co., 85 F.3d 270 (7th
Cir. 1 9 9 6 ) ............................................................................ 14, 28

Contents

Page



Contents

Williams v. J.B. Parks Wholesale Florist, Inc., 1997 WL

Page

160194 (N.D. Tex. March 31, 1997) ......................... . 6

Wisconsin Dep ’t o f Revenue v. William Wrigley, Jr., Co.,
505 U.S. 214, 112 S. Ct. 2447 (1992) ....................... 11 ,12

Wu v. Thomas, 996 F.2d 271 (11th Cir. 1993), cert, denied,
511 U.S. 1033, 114 S. Ct. 1543 ( 1 9 9 4 ) ....................... 17, 18

Yates v. Avco Corp., 819 F.2d 630 (6th Cir. 1 9 8 7 ) .........  13, 22

Statutes Cited:

29 U.S.C. § 6 2 3 (d ) .................................................................  17

42 U.S.C. § 7 0 4 (a ) ........................................................  i, 10, 25, 26

42 U.S.C. § 1981 a(b)(3) ......................................................  24

42 U.S.C. § 2 0 0 0 e -3 (a ) ...................................................... 6, 10, 17

42 U.S.C. § 2 0 0 0 e -5 (f)( l) .................................................... 11

Rule Cited:

Fed. R. Civ. P. 51 ...................................................................  7

Other Authorities Cited:

Adm inistrative Office of U.S. Courts, Federal Courts
Caseload Continues Upward Spiral (Press Release 
March 12, 1997) ............................................................... 23



x m

Page
B lack’s L aw D ictionary 61 (6th ed. 1 9 9 0 ) ....................  10

Bryan A. Garner, A D ictionary O f M odern L egal U sage

282 (2d. ed. 1 9 9 5 ) ............................................................  10

1 A m. Jur . 2D Actions § 56 (1 9 9 4 ) .................................... 11

1A C.J.S. Actions § 32a (1985) ........................................  11

Webster’s N inth N ew Collegiate D ictionary 362 (9th 
ed. 1986)

Contents

10



1

STATEM ENT OF TH E CASE*

Mattem sued Eastman, her former employer, alleging that the 
company violated Title VII of the Civil Rights Act of 1964 (“Title 
V II”) by sexually harassing her, retaliating against her for 
complaining about the harassment, and constructively discharging 
her. She also alleged that Eastman’s conduct constituted intentional 
infliction of severe emotional distress under Texas law. A jury in 
Marshall, Texas found that Mattem had been sexually harassed by 
coworkers but that Eastman had taken prompt remedial action. The 
jury also found that Eastman had neither constructively discharged 
M attern nor intentionally inflicted emotional distress. On her 
retaliation claim, the jury found “that Eastman intentionally or 
willfully retaliated against Jean Mattern for filing a charge of 
discrim ination and/or for filing this lawsuit” but went on to find 
that Eastman had acted without malice, willfulness, or reckless 
indifference to M attern ’s rights. The jury  awarded M attern 
$50 ,000  in actual dam ages on the re ta lia tion  claim . The 
magistrate judge later awarded Mattern attorneys’ fees, interest, 
and costs.

On appeal, the United States Court of Appeals for the Fifth 
Circuit, with Judge Dennis dissenting, held that Mattern had failed 
to adduce legally sufficient evidence of an “adverse employment 
action,” an essential element of her retaliation claim. The court 
also held that several of the alleged actions Mattern complained of 
failed to support the verdict on other grounds. The Fifth Circuit 
reversed the trial court’s judgment and rendered judgment in 
Eastman’s favor. On Mattern’s petition for rehearing and suggestion 
for rehearing en banc, no active judge of the Fifth Circuit requested 
a poll of the full court. Accordingly, her suggestion was denied, as 
was her petition for rehearing.

* The petitioner will be referred to as Mattern. The respondent will be 
referred to as Eastman.



2

M attem’s statement of the case seriously misrepresents the 
facts. The first paragraph is devoted to describing her sexual 
harassm ent complaint. The details of the sexual harassm ent 
allegations, however, have nothing to do with the retaliation issue 
before the Court. M attern also describes her accusations as 
established fact. She says she was “repeatedly assaulted by two 
senior company mechanics” and was “regularly” “spanked” by one, 
all in plain view of her supervisor. But the jury obviously did not 
accept Mattern’s version of events. It found only that at least one 
of M attem’s coworkers sexually harassed her. That finding does 
not entitle M attem’s counsel to describe as “facts” what are, for 
the most part, hotly disputed allegations. The jury’s verdict actually 
demonstrates that it discredited much of Mattern’s evidence. For 
example, Mattern accused at least two coworkers, John Godwin 
and George Roberts, of sexual harassment. But as she points out, 
Eastman took disciplinary action only against Godwin. Yet the jury 
found that the company had prom ptly rem edied the sexual 
harassment. The jurors thus could not have believed M attern’s 
accusations against Roberts.

Mattern likewise describes inaccurately the events leading to 
Godwin’s separation from employment. She says that “high ranking 
company officials asked Godwin to take early retirement.” Petition 
at 2. That is incorrect. The disciplinary committee that convened 
to decide the appropriate discipline for Godwin recommended 
discharge. IX. R. 235-39,246-47 & Dx. 18. At his request, however, 
Eastman permitted Godwin to retire instead. Id. at 239.

M attern’s discussion of her retaliation claim is equally 
misleading. She describes every alleged instance of retaliation as 
though she had proven each occurred. But, again, the jury did not 
decide whether each incident happened as Mattern asserted or 
whether any of the incidents it did believe happened were motivated 
by retaliation. Rather, the jury simply found that Mattern had been 
retaliated against. Given its adverse findings on M atte rn ’s 
constructive-discharge and intentional-infliction-of-emotional



3

distress claims as well as its decision that the retaliation it found 
was not willful, malicious, or recklessly indifferent, it seems 
unlikely that the jury believed all of Mattem’s retaliation allegations.

Mattem also says she repeatedly complained about the alleged 
retaliation but that company officials responded there was nothing 
they could or would do about it. Petition at 4. She leaves out that 
those same officials testified that Mattern would not provide them 
the details they needed to take appropriate action to remedy any 
inappropriate conduct toward her. VIIR. 288-89; IX R. 63-64,246. 
She likewise does not mention the company’s transferring her to 
another work group and threatening to fire any of her coworkers 
who retaliated against her. VII R. 174; IX R. 59-62, 138. Mattern 
finally says that the alleged retaliation “soon drove [her] from the 
p lan t.” Petition  at 3. But the ju ry  found that she was not 
constructively discharged.

It is one thing to describe a party’s version of the facts — 
either by specifically identifying the description as such or by 
explaining what some of the evidence was —  and then to assume 
that version true for purposes of a legal argument. But it goes beyond 
proper advocacy to relate bare accusations as fact.

REASONS FOR DENYING THE WRIT

I.

THE CIRCUMSTANCES OF THIS CASE MAKE 
REVIEW INAPPROPRIATE.

The circumstances that led to the reversal of the jury’s verdict 
make this case an inappropriate vehicle for review of the issue stated 
in the petition. Those circumstances include the jury’s unchallenged 
findings against Mattern, the instructions given to the jury without 
objection, and the legal theory Mattern elected to pursue.



4

The jury  found “that Eastm an intentionally or w illfully 
retaliated against Jean Mattem for filing a charge of discrimination 
and/or for filing this lawsuit.” But the jury also decided that Eastman 
had not “violated [Mattern’s] rights under Title VII with malice or 
willfulness or reckless indifference to those rights” despite the 
finding of intentional or willful retaliation. The jury went on to 
find that Eastman had not constructively discharged Mattern, 
meaning, under the instructions given to the jury without objection, 
that Eastman had not “made her working conditions so intolerable 
that a reasonable employee would feel compelled to resign.” 
Because of that finding, Mattern’s retaliation claim necessarily was 
limited to alleged conduct other than an actual or constructive 
discharge.

Her claim was further constrained by the legal theory she chose 
to pursue. To prove sexual harassment, she alleged a “hostile work 
environment” : she attempted to show that a number of events, 
considered together, created a discriminatorily abusive working 
environment. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 114 
S. Ct. 367 (1993); Meritor Sav. Bank, FSB v. Vinson, A l l  U.S. 57, 
106 S. Ct. 2399 (1986). “ ‘A hostile work environment claim is a 
single cause of action rather than a sum total of a number of mutually 
distinct causes of action to be judged each on its own merits.’ ” 
DeNovellis v. Shalala, _  F.3d _ ,  1997 WL 527912, at * 10 (1st 
Cir. Sept. 2, 1997) (quoting Vance v. Southern Bell Tel. and Tel. 
Co., 863 F.2d 1503,1511 (11th Cir. 1989)). The jury was instructed 
on and decided Mattern’s sexual harassment cause of action under 
that theory. App. 8a-9a.

But Mattern did not plead or ask for submission of a hostile- 
work-environment theory on her retaliation claim. She alleged 
instead a number of distinct events each of which she hoped to 
prove constituted retaliatory action attributable to Eastman. The 
instructions the magistrate judge gave to the jury illustrate the 
difference in theories. The instruction on sexual harassment defined 
prohibited conduct as including conduct that “has the purpose or



5

effect of unreasonably interfering with the individual’s work 
performance or creating an intimidating, hostile or offensive 
working environment” and covered the objective and subjective 
tests for hostile-work-environment harassment established by this 
Court in Harris. App. 8a-9a. The instruction on retaliation, in 
contrast, does not even hint at a hostile-work-environment theory: 
it told the jury that Mattern had to prove, among other things, an 
“adverse employment action” and did not define that term using 
any of the standards from hostile-work-environment cases, App. 
9a-10a. Mattern did not object to the instructions, so she cannot 
now characterize her retaliation claim as one based on hostile-work- 
environment harassment.

Having chosen not to assert a hostile-work-environment claim, 
M attern could defend the retaliation verdict only by treating 
separately each alleged retaliatory action. That is, the lower courts 
were obliged to assess each alleged incident of retaliation as though 
it were the only one on which the verdict was based, just as in the 
case of an employee who asserts claims for failure to promote and 
discharge. Moreover, because the jury failed to find a constructive 
discharge, Mattern could not justify the verdict as compensation 
for the loss of her job. The courts below were therefore confined to 
decid ing  w hether an em ployee who had vo lun tarily  left 
employment could obtain Title VII relief against a former employer 
for any one of the retaliatory actions asserted by Mattern considered 
in isolation from the others.

That Mattern did not plead or try to have submitted a hostile- 
work-environment retaliation claim is lost in the rhetoric of her 
petition, as it was in Judge Dennis’s dissent below. Mattern groups 
the alleged retaliatory actions, often uses the term “harassment,” 
and relies on cases concerning harassment to attack the Fifth 
Circuit’s opinion and argue that the circuit courts are in conflict. 
She also re lies  on the Equal E m ploym ent O pportunity  
Commission’s position that retaliatory harassment is actionable.



6

She quotes from and refers to Judge Dennis’s dissent, which argued 
at great length that Mattem could prevail on a claim for hostile- 
work-environment retaliation without once acknowledging that she 
had not asserted such a claim. And she repeatedly contends that 
the Fifth Circuit “permits” retaliation, has “approved” and declared 
“lawful” a variety of retaliatory conduct, and has “declared an open 
season on employees who . .  . oppose discrimination.” The Fifth 
Circuit majority in fact said nothing about whether Mattem would 
have been able to recover under Title VII had she pursued a claim 
of hostile-work-environment retaliation and proved it under the 
analysis established in Meritor Savings Bank and Harris.'

Moreover, review by this Court could not change the outcome 
for Mattem. She waived any complaint about being required to 
prove an “adverse employment action” or about the definition of 
that term. The jury instructions required Mattern to prove an adverse 
employment action and defined such an action in the very way she 
objects to now:

[A jdverse  em ploym en t action  cou ld  be 
defined as a discharge, a demotion, refusal 
to hire, refusal to promote, reprimand, [or] 
acts of sabotage . . .  by employees against 
other employees, either condoned or directed 
by an em p lo y e r fo r the p u rp o se  o f 
establishing cause for discharge. M ere dirty 
looks or reluctance of co-workers to speak

1. Cf. Williams v. J.B. Parks Wholesale Florist, Inc., 1997 WL 160194, * 6 
(N.D. Tex. March 31, 1997) (distinguishing Fifth Circuit’s opinion and holding 
that hostile-work-environment retaliation is actionable); Easley v. West, 66 Fair 
Empl. Prac. Cas. (BNA) 1634, 1643 (E.D. Pa. 1994) (applying-hostile-work 
environment standards to retaliation claims under Title VII and Rehabilitation 
Act of 1973); Henry v. Guest Servs., Inc., 902 F. Supp. 245, 251-52 (D.D.C. 
1995) (applying hostile-work-environment standards to retaliation claim under 
Americans with Disabilities Act of 1990), a ff’d, 98 F.3d 646 (table), 1996 WL 
560362 (D.C. Cir. 1996).



7

to an employee are not the types of adverse 
em ployment action prohibited by Title VII.
M erely placing a memorandum regarding an 
e m p lo y e e ’s p e rfo rm a n c e  in h is or her 
personnel file does not in itself constitute an 
adverse employment action.

App. 9a-10a. As the Fifth Circuit observed, Mattern did not 
object to that instruction before the magistrate judge, nor did 
she challenge it on appeal. App. 10a.

The failure to object to a jury instruction waives any error 
concerning the instruction. Fed. R. Civ. P. 51. Unobjected-to 
instructions, right or wrong, become the law insofar as the particular 
case is concerned, unless the party has preserved error by a motion 
for directed verdict or for judgment as a matter of law. Moore v. 
Murphy, 47 F.3d 8, 11 (1st Cir. 1995); Sims v. Mulcahy, 902 F.2d 
524,536 (7th Cir.), cert, denied, 498 U.S. 897,111 S. Ct. 249 (1990); 
cf. Boyle v. United Tech. Corp., 487 U.S. 498, 513-14, 108 S. Ct. 
2510, 2519 (1988) (failure to object is not fatal when party who 
failed to object raises issue by motion for judgment or directed 
verdict); St. Louis v. Praprotnik, 485 U.S. 112, 118-20, 108 S. Ct. 
915, 921-22 (1988) (same); Hystro Prods., Inc. v. MNP Corp., 18 
F.3d 1384, 1392 n.6 (7th Cir. 1994) (“party need not object to jury 
instructions to urge a j.n.o.v. based on different standards”). So 
M attern’s challenge to the Fifth Circuit’s discussion of adverse 
employment action could not help her. Even if this Court decided 
that the Fifth Circuit’s definition was incorrect in the abstract, 
Mattern still would be bound by the very similar definition given 
to the jury, and her claim still would fail under that definition, as 
the Fifth Circuit correctly held.

In addition, several of Mattem’s claims cannot succeed because 
of alternative holdings by the Fifth Circuit that she does not 
challenge. Her claims of retaliation based on alleged hostility from



8

fellow employees or having tools stolen fail because the Fifth Circuit 
held the evidence legally insufficient to permit a jury to find that 
those events were attributable to Eastman under respondeat superior 
principles. App. 11a. Her retaliation claim based on a missed pay 
increase, which the Fifth Circuit thought might be an adverse 
employment action in some situations but was not under the 
circumstances, App. 14a-15a, also fails independently o f the 
adverse-employment-action holding. The Fifth Circuit held that 
the evidence was legally insufficient to show that the missed pay 
increase resulted from a retaliatory motive. App. 15a-16a.

In light of the case-specific circumstances that constrained the 
Fifth Circuit’s review of Mattern’s claim, the Court should deny 
the writ.

II.

THERE IS NO REAL AND SUBSTANTIAL  
CONFLICT IN THE CIRCUITS THAT 

WARRANTS THIS COURT’S REVIEW.

Upon separate consideration of the alleged actions on which 
Mattem based her retaliation claim, the Fifth Circuit found none 
of them independently actionable. The court applied a basic 
principle: some things that happen to an employee in the workplace 
simply cannot be sued on under Title V I I .

The principle is hardly revolutionary. This Court has applied 
it twice in hostile-work-environment cases:

[N]ot all workplace conduct that may be 
described as “harassment” affects a “term, 
condition, or priv ilege”at o f em ploym ent 
within the meaning of Title VII. See Rogers 
v. EEOC , [454 F.2d 234, 238 (5th Cir. 1971), 
cert, denied, 406 U.S. 957, 92 S. Ct. 2058



9

(1972)] (“m ere utterance o f an ethnic or 
racial ep ithe t which engenders offensive 
feelings in an employee” would not affect the 
conditions o f em ploym ent to sufficiently 
s ig n ifican t degree to v io late  T itle V II);
Henson [v. Dundee, 682 F.2d 897, 904 (1 1th 
Cir. 1982)] (quo ting  sam e). For sexual 
harassm en t to be actionable , it m ust be 
sufficiently severe or pervasive “to alter the 
conditions of [the victim ’s] employment and 
create an abusive working environment.”

Meritor Sav. Bank, A l l  U.S. at 67, 106 S. Ct. at 2405.

T h is  s ta n d a rd  . . . takes a m idd le  path 
between making actionable any conduct that 
is merely offensive and requiring the conduct 
to cause a tangible psychological injury. As 
we pointed out in Meritor, “mere utterance 
of an . . . epithet which engenders offensive 
fe e lin g s  in a em p lo y ee ,” . . . does not 
s u ff ic ie n tly  a ffe c t the c o n d itio n s  o f 
employment to implicate Title VII. Conduct 
that is not severe or pervasive enough to 
create an objectively hostile or abusive work 
en v iro n m en t — an env ironm en t that a 
reasonab le  person would find hostile or 
abusive —  is beyond Title V II’s purview.

Harris, 510 U.S. at 21, 114 S. Ct. at 370. In non-harassment 
cases like this one, the limiting principle is most often expressed 
by the requirem ent that a plaintiff must prove that a defendant 
took an “adverse employment action” because of a prohibited 
characteristic. Although this Court has never directly addressed 
whether such a requirement exists under Title VII, or defined



10

its scope outside the context of sexual harassment, it has used 
the phrase “adverse em ploym ent action” w ith no apparent 
reservations in other Title VII cases. See St. M ary’s Honor Ctr. 
v. Hicks, 509 U.S. 502, 113 S. Ct. 2742 (1993); Wards Cove 
Packing Co. v. Atonio, 490 U.S. 642, 109 S. Ct. 2115 (1989); 
Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct. 1775 
(1989).

The principle derives, moreover, from unambiguous statutory 
language. Section 704(a) of Title VII provides that:

It shall be an unlawful employment practice 
for an employer to discriminate against any 
of his employees . . . because he has opposed 
any practice made an unlawful employment 
practice by this subchapter, or because he has 
m ade a ch a rg e , te s t if ie d , a s s is te d , or 
p a r tic ip a te d  in any m an n e r in an 
investigation, proceeding, or hearing under 
this subchapter.

42 U.S.C. § 2000e-3(a) (emphasis added). To “discrim inate” is, 
of course, to treat d ifferently . See W ebster’s N inth N ew 
Collegiate D ictionary 362 (9th ed. 1986) (“to make a difference 
in treatment or favor on a basis other than individual merit”); 
see also Bryan A. Garner, A D ictionary O f M odern Legal U sage 
282 (2d ed. 1995). The word “ against” m eans adverse or 
negative. B lack’s L aw D ictionary 61 (6th ed. 1990) (“adverse 
to”); W ebster’s N inth N ew Collegiate D ictionary 362 (9th ed. 
1986) (“unfavorable to”). Thus, by proscribing “discrimination 
against” employees, the statute prohibits employers from treating 
employees differently in an “adverse” or “unfavorable” way.

The notion that not every workplace occurrence that an 
employee dislikes can give rise to a Title VII claim also is related



11

to well-settled legal principles presumably incorporated into Title 
VII. First, Title VII authorizes, and Mattern sought, relief through 
a “civil action.” 42 U.S.C. § 2000e-5(f)(l). To maintain a civil 
action, the law requires a legally cognizable injury as distinguished 
from and in addition to damages: “even where a wrongful act has 
caused pecuniary loss, a plaintiff will be without a remedy where 
he has suffered no legally cognizable harm.” 1 Am. Jur. 2d Actions 
§ 56 (1994); accord 1A C.J.S. Actions § 32a (1985). “It is the fact, 
clearly established, of injury to the complainant —  not to others — 
which justifies judicial intervention.” McCabe v. Atchison, T., & 
S.F.Ry., 235 U.S. 157,162,35S.C t. 69,71 (1914). The requirement 
at issue is often expressed in tort cases. E.g.,Niehus v. Liberio, 973 
F.2d 526, 531-32 (7th Cir. 1992) (“There is no tort without an 
injury.”); Jones v. Reagan, 696 F.2d 551, 554 (7th Cir. 1983). 
Employment discrimination laws, at least those that permit recovery 
of compensatory and punitive damages, are generally treated as 
providing a tort-like cause of action. See Commissioner v. Schleier, 
515 U.S. 323, 334-36, 115 S. Ct. 2159, 2163-67 (1995). 
Accordingly, the law requires a p laintiff in an employment 
discrimination case to show some actual injury to prevail on a claim. 
E.g., Lawrence v. National Westminster Bank N.J., 98 F.3d 61, 72 
(3rd Cir. 1996) (employee suffered no cognizable injury under Older 
Workers Benefit Protection Act where his employer asked him to 
sign an invalid waiver but he did not); Adams v. Bethlehem Steel 
Corp., 736 F.2d 992, 994 (4th Cir. 1984) (allegations concerning 
m ere existence o f discrim inatory policy without claim s of 
application of policy to plaintiffs did not allege a cognizable injury 
under Title VII).

Second, limitation of Title VII’s reach to legally cognizable 
injuries is consistent with the maxim de minimis non curat lex —  
“the law cares not for trifles.” That “venerable maxim . . .  is part of 
the established background of legal principles against which all 
enactments are adopted, and which all enactments (absent contrary 
indication) are deemed to accept.” Wisconsin Dep’t of Revenue v. 
William Wrigley, Jr., Co., 505 U.S. 214,231,112 S. Ct. 2447,2457-



12

58 (1992). As the Seventh Circuit has aptly put it, even in civil 
rights cases the law places “outside the scope of legal relief the 
sorts of intangible injuries normally small and invariably difficult 
to measure that must be accepted as the price of living in society 
rather than made a federal case out of.” Swick v. City o f Chicago, 
11 F.3d 85, 87 (7th Cir. 1993). M attern’s contention that any 
discrimination is actionable, no matter how slight or intangible its 
effects, cannot be squared with this Court’s earlier rulings, the plain 
language of the statute, the traditional elements of an “action,” or 
the de minimis doctrine.

Whether Title VII incorporates an adverse-employment-action 
requirement is not open to reasonable debate: it does. On the other 
hand, reasonable judges can differ and have differed about where 
to draw the line between actionable conduct and conduct that simply 
does not constitute “discrimination against” an employee. But that 
is not the kind of “conflict” this Court traditionally has exercised 
its discretionary ju risd iction  to resolve. In fact, prem ature 
involvement by this Court, as the lower courts gradually work 
toward a standard through the normal process of case-by-case 
adjudication, could well be counterproductive.

A. The Views of the Other Circuits Courts

As Mattern points out, the Fourth Circuit applies essentially 
the same test for adverse employment actions as the Fifth Circuit. 
Petition at 12-13. The similarity is not surprising given that the 
Fifth Circuit’s test was adopted from the Fourth Circuit’s seminal 
opinion in Page v. Bolger, 645 F.2d 227, 233 (4th Cir.) (en banc) 
(Title VII prohibits only “ultimate employment decisions” and not 
“interlocutory or mediate decisions having no immediate effect 
upon employment conditions”), cert, denied, 454 U.S. 892, 102 
S. Ct. 388 (1981). See App. 10a-1 la; Dollis v. Rubin, 77 F.3d 111, 
781-82 (5th Cir. 1995); see also Hopkins v. Baltimore Gas and 
Elec. Co., 11 F.3d 745, 755 (4th Cir.), cert, denied, 117 S. Ct. 70 
(1996).



13

The Sixth Circuit also applies a test that, like the Fifth Circuit’s, 
looks for “ultimate employment decisions” before asking whether 
a particular event was discrim inatorily motivated. Cesaro v. 
Lakeville Community Sch. Dist., 953 F.2d 252, 254 (6th Cir.), cert, 
denied, 506 U.S. 867,113 S. Ct. 195 (1992); see also Yates v. Avco 
Corp., 819 F.2d 630,638 (6th Cir. 1987); accordGeislerv. Folsom, 
735 F.2d 991, 994-95 (6th Cir. 1984) (affirming district court’s 
finding that the “predictable tension” that arose after others became 
aware of p la in tiff’s filing of EEOC charge was not adverse 
employment action prohibited by Title VII).

The Eighth Circuit recently cited the Fifth Circuit’s decision 
below with approval in holding that a particular transfer and a poor 
employment evaluation were not adverse employment actions:

Although “actions short of termination may 
constitute adverse actions within the meaning 
of the statute,” Smith [v. St. Louis Univ., 109 
F.3d 1261, 1266 (8th Cir. 1997) (relied 
on by M attern)], “not everything that makes 
an em p loyee  unhappy is an ac tionab le  
adverse employment action.” Smart v. Ball 
State Univ., 89 F.3d 437,441 (7th Cir. 1996); 
see Mattern v. Eastman Kodak Co., 104 F.3d 
702, 707-08 (5th Cir. 1997). Rather, the 
action must have had some adverse impact 
on [the plaintiff] to constitute an adverse 
employment action. See Mattern, 104 F.3d 
at 708; Williams v. Bristol-Myers Squibb Co.,
85 F.3d 270, 274 (7th Cir. 1996).

Montandon v. Farmland Indus., Inc., 116 F.3d 355, 359 (8th 
Cir. 1997). Even more recently, the Eight Circuit applied the 
Fifth C ircuit’s test without citing Mattern: “While the action 
com pla ined  o f may have had a tangen tia l e ffec t on her 
em p loym en t, it d id  not rise  to the level o f an u ltim ate  
employment decision intended to be actionable under Title VII.”



14

Ledergerber v. Stangler,__F .3 d__ , 1997 WL 545970, at *2-3
(8th Cir. Sept. 8, 1997); see also Harlston v. McDonnell Douglas 
Corp., 37 F.3d 379, 382 (8th Cir. 1994) (“Changes in duties or 
w ork ing  cond itions  tha t cause  no m ate ria lly  s ig n if ic a n t 
disadvantage . . .  are insufficient to establish the adverse conduct 
required to make a prima facie case.”); Bradford v. Norfolk S. 
Corp., 54 F.3d 1412, 1420 (8th Cir. 1995) (ADEA case).

Although the Seventh Circuit has not always been consistent 
in applying its adverse action standard, see McDonnell v. Cisneros,
84 F.3d 256, 258 (7th Cir. 1996) (noting “tension” in the cases), it 
plainly has one. Most often, the standard is described as requiring 
“a materially adverse change in the terms and conditions of 
employment.” Crady v. Liberty Nat 7 Bank & Trust Co. o f Ind., 993 
F.2d 132, 136 (7th Cir. 1993); accord Williams v. Bristol-Myers 
Squibb Co., 85 F.3d 270, 274 (7th Cir. 1996); Flaherty v. Gas 
Research Inst., 31 F.3d 451,456-57 (7th Cir. 1994); see also Smart, 
89 F.3d at 441 (negative performance evaluations alone do not 
constitute “adverse employment actions” under Title VII; “not 
everything that makes an employee unhappy is an actionable 
adverse action”). In Williams, the court noted the necessity of some 
rule of limitation:

Otherwise, every trivial personnel action that 
an irritable, chip-on-the-shoulder employee 
did not like w ould form  the basis  o f a 
discrimination suit. The Equal Employment 
Opportunity Commission, already staggering 
under an avalanche of filings too heavy for 
it to cope with, would be crushed, and serious 
complaints would be lost among the trivial.

85 F.3d at 274. The Seventh Circuit’s test is therefore generally 
consistent with the Fifth Circuit’s, despite a few decisions in 
which application of the test has resulted in outcomes different 
than in this case.



15

M attern’s contention that the Fifth Circuit’s position conflicts 
with the Seventh Circuit’s is thus incorrect. Collins v. State o f 
Illinois, 830 F.2d 692, 703 (7th Cir. 1987), for example, simply 
recognized that “Title VII does not limit adverse job action to strictly 
monetary considerations”; the Fifth Circuit’s standard does not 
suggest otherwise. Reeder-Baker v. Lincoln National Corp., 834 
F.2d 1373, 1375 (7th Cir. 1987), is likewise inapposite: whether 
the acts complained of there were sufficient to support a claim was 
not even raised. Finally, the cases cited in footnote five of Mattern’s 
petition all involve claims of First Amendment violations and some 
involve specific allegations of “harassment.” Mattern makes no 
attempt to explain why the test should be the same under the First 
Amendment and Title VII, and, as explained above, she has not 
presented a cognizable claim for “harassment.”

The Second Circuit, contrary to Mattern’s contention, has not 
“recognized a retaliation claim where an employer, allegedly for 
retaliatory reasons, had failed to ask a complainant if she wanted 
to work on a particular overtime assignment.” Petition at 12 (citing 
Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520, 529 (2nd Cir.), 
cert, denied, 506 U.S. 965, 113 S. Ct. 440 (1992)). The Second 
Circuit affirmed summary judgment on the merits for the employer 
in that case; the issue of adverse employment action was either not 
raised or not ruled on. Id. In fact, the Second Circuit applies a test 
akin to the Seventh Circuit’s test, but with more consistency. In the 
Second Circuit, to prove an adverse employment action, a plaintiff 
must show “a materially adverse change in the terms and conditions 
of employment.” Torres v. Pisano, 116 F.3d 625, 639-40 (2d Cir. 
1997) (employer’s request that the plaintiff drop her EEOC charge, 
which “frightened” and “intimidated” her, was not an adverse 
employment action).2

2. Accord Wanamaker v. Columbian Rope Co., 108 F.3d 462, 465-67 (2d 
Cir. 1997) (ADEA protects employees from actions “injurious” to current 
employment or the ability to secure future employment; barring a discharged 
employee from using an office and phone to conduct a job hunt was only a “minor,

(Cont’d)



16

The Third Circuit, whose position on the issue Mattern does 
not address, recently adopted a standard for defining adverse 
employment action:

Retaliatory conduct other than discharge or 
refusal to rehire is thus proscribed by Title 
V II on ly  if  it a lte rs  the  e m p lo y e e ’s 
“c o m p e n sa tio n , te rm s , c o n d itio n s , or 
privileges of employment,” deprives him or 
her o f “em p loym en t o p p o rtu n itie s ,” or 
“adversely affect[s] his [or her] status as an 
employee.” It follows that “not everything 
that makes an employee unhappy” qualifies 
as retaliation, for “ [o therw ise , m inor and 
even triv ial em ploym ent actions that an 
‘irritable, chip-on-the shoulder employee did 
not lik e  w ould  fo rm  the b as is  o f a 
discrim ination suit.’ ” [quoting Sm art, 89 
F.3d at 441, and Williams, 85 F.3d at 274],

Courts have operationalized the principle that 
retaliatory conduct must be serious and tangible 
enough to a lte r an e m p lo y ee ’s term s, 
conditions, or privileges of employment into 
the doctrinal requirem ent that the alleged 
retaliation constitute “adverse employment 
action.”

Robinson v. City o f Pittsburgh,__F .3d__ , 1997 WL 386102, at
*11 (3d Cir. July 14, 1997); see also Nelson v. Upsala College,

(Cont’d)
ministerial stumbling block” and thus was not an adverse employment action 
under the ADEA); Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 713 n.3 
(2d Cir. 1996) (supervisor’s “occasional nastiness, which other employees also 
were subject to,” was not an adverse employment action sufficient to support a 
Title Vll retaliation claim).



17

51 F.3d 383, 389 (3rd Cir. 1995). The court applied its standard 
to hold that “unsubstantiated oral reprimands” and “unnecessary 
derogatory comm ents” were not adverse employment actions 
under Title VII. Robinson, 1997 WL 386102, at *3.

The First Circuit addressed the adverse-employment-action 
issue in Welsh v. Derwinski, 14 F.3d 85 (1st Cir. 1994), a case 
relied on by Mattern. The court considered whether reducing 
the p lain tiff’s duties, which the plaintiff alleged eliminated the 
potential for him to obtain a status upgrade, was sufficiently 
adverse. In doing so it disagreed with the defendant’s argument 
that “only discharge, dem otion, or failure to prom ote can 
constitu te  an adverse em ploym ent action” under the Age 
Discrimination in Employment Act (“ADEA”). Id. at 86.3 But 
the court also conceded that “not every unpleasant matter short 
of those [actions] creates a cause of action.” Id. And the court 
went on to hold that the district court’s “finding that plaintiff 
failed to make a prima facie showing of adverse employment 
action must stand” because reducing the plaintiff’s duties did 
not prevent him from obtaining a status upgrade. Id. at 87. That 
approach is consistent with the Fifth Circuit’s. See App. 11a 
(re jec tin g  certa in  events as adverse em ploym ent actions 
“because of their lack of consequence”).

The Eleventh Circuit, as Mattern correctly noted, has not 
defined “adverse employment action.” Wu v. Thomas, 996 F.2d 271, 
273-74 (11th Cir. 1993), cert, denied, 511 U.S. 1033, 114 S. Ct. 
1543 (1994). But Wu did hold that it was not “clearly established” 
for qualified immunity purposes that retaliatory harassment, as 
opposed to sexual or racial harassment, was actionable under Title

3. Given the similarity between the anti-retaliation provisions in Title VII, 
42 U.S.C. § 2000e-3(a), and the ADEA, 29 U.S.C. § 623(d), Eastman agrees 
with the argument implicit in Mattern’s petition that the two probably should be 
interpreted similarly and thus that cases under one statute may be relevant in 
interpreting the other.



18

VII. Id. at 274-75. That holding is not relevant here because Mattern 
did not assert a retaliatory harassment claim. And the Eleventh 
Circuit’s decisions before Wu show that it does place limits on 
actions for alleged retaliation. In Bailey v. USX Corp., 850 F.2d 
1506, 1508-09 (11th Cir. 1988), for example, the court affirmed 
the district court’s judgment against a plaintiff who claimed that a 
negative em ploym ent reference was retaliatory . The court 
emphasized that because the plaintiff would not have been hired 
for the position for which the reference was provided anyway, he 
suffered no injury; and his removal from a civil service list of 
qualified candidates was temporary, so any harm was minimal. Id.; 
cf. Jordan v. Wilson, 851 F.2d 1290, 1292-93 (11th Cir. 1988); see 
also Reynolds v. CSX Transp., Inc., 115 F.3d 860, 868 (11th Cir. 
1997) (temporary replacement of the plaintiff that led to her being 
out of work for almost a week and being unpaid for the absence 
until almost six months later, was an adverse employment action 
sufficient to support Title VII retaliation claim).

The Tenth Circuit apparently has not adopted a verbal formula 
defining “adverse employment action.” But it has held that various 
actions were not sufficiently adverse to support a claim and, in the 
process, suggested that a plaintiff m ust show some harm to 
employment status or opportunities. Berry v. Stevinson Chevrolet, 
74 F3d 980, 986 (10th Cir. 1996) (retaliatory prosecution can have 
an adverse impact on future employment opportunities and therefore 
can be an adverse employment action under Title VII); Cole v. 
Ruidoso Mun. Schs., 43 F.3d 1373, 1381-82 (10th Cir. 1994) 
(employer’s change in its explanation of the basis for the plaintiff’s 
removal after she filed an EEOC charge did not cause the harm the 
plaintiff complained of and thus was not an adverse employment 
action); Meredith v. Beech Aircraft Corp., 18 F.3d 890, 896 (10th 
Cir. 1994) (performance evaluation that was lower than previous 
rating was not an adverse employment action where there was no 
indication of injury or detriment because of the evaluation); see 
also Mosley v. Pena, 100 F.3d 1515, 1519 (10th Cir. 1996)



19

(employer’s failure to settle the plaintiff’s EEOC complaint was 
not an adverse employment action).

The Ninth Circuit’s view is best described as inconsistent. In 
Strother v. Southern California Permanente Medical Group, 79 F.3d 
859, 869 (9th Cir. 1996), the court held that “ [n]ot every 
employment decision amounts to an adverse employment action” 
and noted that “mere ostracism in the workplace is not enough to 
show an adverse employment action.” While the case was brought 
under California’s fair employment practices statute, that statute is 
interpreted consistently with federal anti-discrimination legislation, 
and the Ninth Circuit cited Title VII cases to support its holding. 
Id. at 866, 869 n.12; see also Nidds v. Schindler Elevator Corp., 
113 F.3d 912, 919 (9th Cir. 1997) (transfer of employee with no 
effect on compensation was not an adverse employment action 
despite em ployee’s characterization of transfer as demotion), 
petition fo r  cert, filed, No. 97-364 (July 29, 1997); Steiner v. 
Showboat Operating Co., 25 F.3d 1459, 1465 n.6 (9th Cir.) 
(questioning whether transfer from swing shift to day shift was 
adverse employment action where employee “was not demoted, or 
put in a worse job, or given any additional responsibilities”), cert, 
denied, 513 U.S. 1081, 115 S. Ct. 733 (1994).

But in Hashimoto v. Dalton, 118 F.3d 671, 675-76 (9th Cir. 
1997), the court seemed to hold that completely inconsequential 
retaliation is actionable under Title VII: it allowed a negative 
employment reference to be sued on even though the plaintiff would 
not have gotten the desired job for other reasons. The court expressly 
rejected what it called the employer’s “no harm, no foul” approach, 
concluding that the adverse job reference violated Title VII simply 
because it was a “personnel action” motivated by retaliatory animus. 
Id. at 674-76. Hashimoto’s recognition of a unique Title VII civil 
action that does not require a legally cognizable injury is wrong, 
but more importantly it is inconsistent even with other decisions 
from the same court. Until the court speaks en banc to reconcile its 
conflict, the Ninth Circuit must be considered as undecided on



20

whether a Title VII action requires proof of some actual negative 
effect on an employment relationship.

The D istrict of Columbia Circuit sets one of the lowest 
thresholds for actionable conduct under Title VII and related 
discrimination statutes, using the formulation that an employer must 
engage in conduct “having an adverse impact on the plaintiff.” 
Passer v. American Chem. Soc’y, 935 F.2d 322,331 (D.C. Cir. 1991). 
In Passer, the employer’s cancellation of a program to honor the 
plaintiff was held sufficiently adverse under the ADEA on the notion 
that the public humiliation involved “made it more difficult for 
him to procure future employment.” Id. at 331. Yet in Berger v. 
Iron Workers Reinforced Rodmen Local 201, 843 F.2d 1395, 1423- 
24 (D.C. Cir. 1988), cert, denied, 490 U.S. 1105, 109 S. Ct. 3155 
(1989), the same court held that veiled threats by a union official 
that he would “make it hard on those who filed this suit” and would 
withhold the plaintiff’s application for a training program until he 
agreed to drop his charge of discrimination were not adverse actions 
under Title VII because the threats were not carried out and thus 
“had no effect.” Id. at 1424; see also Gary v. Long, 59 F.3d 1391, 
1396 (D.C. Cir.) (threats of adverse consequences that were never 
carried out constituted mere “saber rattling” insufficient to 
demonstrate quid pro quo harassment), cert, denied, 116 S. Ct. 
569 (1995); Henry v. Guest Servs., Inc., 902 F. Supp. 245, 251-52 
(D.D.C. 1995) (plaintiff’s receipt of a cartoon making light of his 
disability was not an adverse employment action because it was 
not severe and pervasive enough to alter the term s o f his 
employment), a jf’d, 98 F.3d 646 (table), 1996 WL 560362 (D.C. 
Cir. 1996).

B. The Fifth C ircuit’s View

The Fifth Circuit’s approach to the adverse-employment-action 
issue is sound. Lost in Mattern’s hyperbolic criticism of the court’s 
use of the term “ultimate employment action” is any real sense of 
what the phrase actually means. It first requires some conduct by



21

the employer that has an actual negative impact on the plaintiff as 
an employee. Thus, if an employee who receives three warnings of 
deficient performance is discharged or denied a pay increase, the 
discharge or missed pay increase, either of which of course has an 
actual negative effect on the employment relationship, is actionable. 
The performance warnings themselves, however, caused no harm, 
although they might be evidence for one side or the other in an 
action based on the discharge or denied pay increase. But if an 
employee receives two performance warnings, improves, is not 
discharged, and receives the raises, there has been no actual negative 
impact on the employment relationship —  no “discrimination 
against” the employee. The Fifth Circuit’s focus on the “ultimate” 
employment decision simply looks for an actual impact on the 
plaintiff’s employment, excluding those actions that could in the 
future but do not currently or inevitably impact it.

What Mattern seems to take the most issue with is the Fifth 
Circuit’s implicit requirement that whether an action is adverse 
must be judged objectively as well as subjectively. Employment 
discrimination plaintiffs obviously prefer a standard under which 
the “adverse-ness” or “against-ness” of an employer’s actions is 
decided conclusively by the employee’s own view of it: “I do not 
like it; therefore it is adverse.” But did Congress suggest or even 
permit such a standard?

The law generally disfavors basing legal rights on purely 
subjective standards, as illustrated by many of this Court’s decisions. 
E.g. Professional Real Estate Investors, Inc. v. Columbia Pictures 
Indus., Inc., 508 U.S. 49,60,113 S. Ct. 1920,1928 (1993) (rejecting 
subjective standard for defining “sham” exception to Noerr antitrust 
immunity); Harlow v. Fitzgerald, 457 U.S. 800, 815-19, 102 S. Ct. 
2727, 2736-39 (1982) (rejecting subjective aspect of qualified 
immunity defense and opting for purely objective test); Smith v. 
Maryland, 442 U.S. 735,740,99 S. Ct. 2577,2580 (1979) (objective 
and subjective expectation of privacy is required to complain of 
privacy deprivation under Fourth Amendment).



22

Courts, including this one, insist on objective showings under 
Title VII and other discrimination statutes as well. In a hostile- 
work-environment claim, for example, the Court requires plaintiffs 
to demonstrate “an objectively hostile or abusive work environment 
—  an environment that a reasonable person would find hostile or 
abusive.” Harris, 510 U.S. at 21, 114 S. Ct. at 370. The Court also 
compels employers to meet objectively verifiable standards before 
asserting Title V II’s bona-fide-occupational-qualification defense. 
International Union, United Aerospace and Agricultural Implement 
Workers o f Am. v. Johnson Controls, Inc., 499 U.S. 187, 201, 111 
S. Ct. 1196, 1204 (1991). And all of the circuit courts require 
plaintiffs to meet an objective standard for proving a constructive 
discharge.4

A purely subjective test for adverse action under the 
employment discrimination statutes would have the same defects 
as similar standards in other settings. What constitutes differential 
negative treatment —  “discrimination against” —  for one person 
may be favorable treatment to another. Cases already on the books 
illustrate the point. Compare Dollis, 11 F.3d at 782 (plaintiff alleged 
that denying her a desk audit was an adverse employment action) 
with Harris, _ F .3 d  _ ,  1997 WL 384618, *2, *5 (8th Cir. July 14, 
1997) (to be reported at 119 F.3d 1313) (plaintiff alleged that receiving 
a desk audit was an adverse employment action) and Deavenport 
v. MCI Tel. Corp., 1997 WL 467160, *8 (D. Col. Aug. 13, 1997)

4. E.g., Gartman v. Gencorp Inc., 120 F.3d 127, 130 (8th Cir. 1997); 
Thomas v. Denny’s, Inc., 111 F.3d 1506, 1514 (10th Cir. 1997); Serrano-Cruz v. 
DFI Puerto Rico, Inc., 109 F.3d 23, 26 (1st Cir. 1997); Ward v. Bechtel Corp., 
102 F.3d 199, 202 (5th Cir. 1997); Burns v. AAF-McQuay, Inc., 96 F.3d 728, 733 
(4th Cir. 1996), cert, denied, 117 S. Ct. 1247 (1997); Kilgore v. Thompson & 
Brock Mgmt., Inc., 93 F.3d 752, 754 (11th Cir. 1996); Chertkova v. Connecticut 
Gen. Life Ins. Co., 92 F.3d 81, 89 (11th Cir. 1996); Rabinovitz v. Pena, 89 F.3d 
482, 489 (7th Cir. 1996); Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 
1084 (3rd Cir. 1996); Schnidrig v. Columbia Mach., Inc., 80 F.3d 1406, 1411 
(9th Cir.), cert, denied, 117 S. Ct. 295 (1996); Simpson v. Federal Mine Safety 
and Health Review Comm'n, 842 F.2d 453,462-62 & n.8 (D.C. Cir. 1988); Yates 
v. Avco Corp., 819 F.2d 630, 636-37 (6th Cir. 1987).



23

(plaintiff complained of being “forced” to travel extensively) with 
Lawson v. McPherson, 679 F. Supp. 28, 32 (D.D.C. 1986) (plaintiff 
complained of being denied travel opportunities) and Martin v. 
Frank, 788 F. Supp. 821, 824 (D. Del. 1992) (plaintiff alleged 
discrimination in being forced to work two hours of overtime) with 
Patel v. Allstate Ins. Co., 105 F.3d 365,373 (7th Cir. 1997) (plaintiff 
complained of being denied permission to work overtime) and 
Aldrich, 963 F.2d at 528 (same). Mattem complained that a “final 
warning” was an adverse action. Other employees could complain, 
and no doubt have, that their employer discriminated by failing to 
warn them of deficient performance. Ease of assertion, difficulty 
of disproof, failure to give notice of liability-creating conduct —  
the law’s traditional reasons for rejecting subjective standards of 
liability —  apply fully to civil actions authorized by Congress in 
the employment discrimination statutes. Mattern offers no reasons 
why courts should hold otherwise.

Properly understood, the Fifth C ircuit’s test for adverse 
em ploym ent action requires only a current (or inevitable) 
objectively negative impact on the employment relationship. Most 
other circuits agree, even if they phrase the test differently, because 
they have found not actionable conduct that does not fit within it. 
Only one panel in the Ninth Circuit has arguably staked out a 
different position, but given the evident inconsistency with other 
Ninth Circuit opinions, that decision hardly gives rise to a clear 
conflict that warrants this Court’s intervention.

C. Policy Concerns Support the Fifth Circuit’s View

Practical policy concerns, of which Congress should not be 
assumed ignorant, also support the Fifth Circuit’s standard. The 
Administrative Office of U.S. Courts reported a 25 percent increase 
in filings of civil rights employment cases in district courts and a 
17 percent increase in appeals of such cases for fiscal year 1996. 
Administrative Office of U.S. Courts, Federal Courts Caseload 
Continues Upward Spiral (Press_Release M arch 12, 1997) 
(available at http://www.uscourts.gov/Press Releases/index.htm). 
Som e judges have even called  for the creation of special

http://www.uscourts.gov/Press


24

employment courts because “the federal courts are flooded with 
employment cases.” Tschappat v. Reich, 957 F. Supp. 297, 299 
(D.D.C. 1997) (Sporkin, J.).

The effect of the Civil Rights Act of 1991 cannot be overlooked. 
It allows plaintiffs to recover up to $300,000 in compensatory and 
punitive damages, depending on the size of the employer, for 
violations of Title VII and the Americans with Disabilities Act of 
1990. Even more important, money recoveries are no longer limited 
to the equitable restoration of lost wages and benefits but may 
include damages for less tangible harms such as “emotional pain, 
suffering, inconvenience, m ental anguish . . . [and] loss of 
enjoyment of life.” 42 U.S.C. § 1981a(b)(3). The former self- 
limiting feature of Title VII —  availability of monetary relief only 
for defined, tangible losses —  is gone, an absence that almost 
certainly accounts for the recent surge of cases discussing the 
adverse-employment-action requirement. There is now a hugely 
increased incentive for employees to sue when anything, no matter 
how minor or inconsequential, occurs in the workplace that might 
be attributed to discrimination. Congress of course could have 
chosen to allow actions under Title VII “involving trivial slights, 
real and imagined,”5 but nothing in the language of the statute or 
its remedial scheme suggests that Congress did so.

III.

THE FIFTH CIRCUIT’S DECISION DOES NOT 
CONFLICT WITH ANY DECISION OF THIS COURT.

Mattem argues that the Fifth Circuit’s decision conflicts with 
three of this Court’s decisions, Robinson v. Shell Oil Co., 117 
S. Ct. 843 (1997); Harris v. Forklift Systems, Inc., 510 U.S. 17, 114 
S. Ct. 367 (1993); and Meritor Savings Bank v. Vinson, A l l  U.S.

5. Talanda v>. KFC Natl. Mgmt. Co., 6 A.D. Cas. (BNA) 1321, 1997 WL 
160695 (N.D. 111. April 2, 1997).



25

57, 106 S. Ct. 2399 (1986), and that its reasoning is inconsistent 
with the Court’s decision in Rutan v. Republican Party o f Illinois, 
497 U.S. 62, 110 S. Ct. 2729 (1990).

In Robinson, the Court held only that “former employees are 
included within § 704(a)’s coverage.” 117 S. Ct. at 849. It did not, 
as Mattern puts it, “uph[o]ld a cause of action under section 704(a) 
based on a retaliatory job reference.” The validity of that cause of 
action, beyond the question of whether it may be asserted by a 
former employee, was not before the Court. Moreover, there was 
no reason for it to be. As M attem’s counsel well knows, having 
appeared on the brief in Robinson, the negative reference there did 
cause an adverse employment action: the prospective employer to 
whom the reference was given did not hire the plaintiff. Brief for 
Petitioner, Robinson v. Shell Oil Co., 1996 WL 341308, * 3 (U.S.
1996) (No. 95-1376). Because the Court expressed no opinion as 
to the validity of the cause of action at all, it certainly did not hold 
that the plaintiff would have stated a Title VII claim even if the 
prospective employer had hired him.6

The Fifth Circuit’s decision is likewise not inconsistent with 
this Court’s holding that former employees are covered by section 
704(a). Indeed, the Fifth Circuit has held that the analogous 
retaliation provision in the ADEA applies to former employees. 
EEOC v. Cosmair, Inc., 821 F.2d 1085, 1088 (5th Cir. 1987). The 
fact that the hiring decision in Robinson was made by a different

6. Compare Smith v. St. Louis Univ., 109 F.3d 1261, 1266 (8th Cir. 1997) 
(negative references causing potential employers to decline to hire plaintiff 
constituted actionable retaliation) and Ruedlinger v. Jarrett, 106 F.3d 212, 214 
(7th Cir. 1997) (providing information to subsequent employer that caused it to 
fire plaintiff was adverse employment action) with Bailey v. USX Corp., 850 F.2d 
1506, 1508-09 (11th Cir. 1988) (because the plaintiff would not have been hired 
for the position he sought, he was not injured by his employer’s provision of a 
negative reference) and Hashimoto v. Dalton, 118 F.3d 671, 675-76 (9th Cir. 
1997) (a negative employment reference was actionable retaliation even though 
the plaintiff would not have gotten the job in any event).



26

employer than the one the plaintiff sued does not vitiate the adverse- 
employment-action requirement. Instead, it only reflects that in 
cases involving form er em ployees, the term inology used in 
describing the limits of § 704(a) may have to be adjusted to account 
for the different circum stances involved in such cases. C f 
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 
1817, 1824 n.13 (1973) (noting that the standards for establishing 
a prima facie case of discrimination will vary in different factual 
situations). In sum, Robinson did not address the relevant issue 
and the Fifth Circuit’s decision does not conflict with it.

Mattem’s argument that the Fifth Circuit’s decision contradicts 
Harris and Meritor Savings Bank is nonsense. As explained above, 
both opinions establish that certain conduct, even if motivated by 
discriminatory animus, is not actionable; they are fully consistent 
with the underlying principle applied by the Fifth Circuit. Moreover, 
as also explained  above, M attern  m ade no hostile-w ork - 
environment claim based on retaliation. Not being free to ignore 
the case actually before it, the Fifth Circuit properly did not consider 
the alleged events Mattern complained of in their totality under the 
standards established in Harris and Meritor Savings Bank. 
Likewise, the Fifth Circuit did not purport to define “discrimination” 
so as to exclude “[system atic harassment,” as Mattern contends. 
Mattem’s focus on harassment means that she either is ignoring 
that she brought no such claim or that she would have the Fifth 
Circuit permit her to assert such a claim but avoid meeting the 
standards for it established by this Court. If she intends the latter, it 
is her position, not the Fifth Circuit’s, that conflicts with Harris 
and Meritor Savings Bank.

Mattern’s argument that the Fifth Circuit’s decision contravenes 
Rutan highlights her mistaken view that there should be no limits 
whatsoever to retaliation liability despite authority from this Court 
and traditional legal doctrines to the contrary. In Rutan the Court 
held that employment decisions concerning “promotions, transfers,



27

and recalls after layoffs based on political affiliation or support are 
an impermissible infringement on the First Amendment rights of 
public employees.” 497 U.S. at 75,110 S. Ct. at 2737. At the outset, 
Rutan sheds no light on the issue here because it was decided under 
the First Amendment not Title VII, and Mattern has not attempted 
to show that the same standards do or should apply under both. 
Although there are some inherent similarities between patronage 
discrimination and protected-activity discrimination, there are also 
different considerations involved in each, most prominently that 
one involves constitutional concerns and the limits of governmental 
power.

In any event, the Fifth Circuit’s decision does not conflict with 
Rutan even if the same standards apply. The Court did not hold, as 
M attern contends, that the F irst Amendment prohibits “any 
retaliation” without limitation. The Court did reject the Seventh 
Circuit’s standard under the First Amendment (which is different 
than that circuit’s standard under Title VII) holding actionable “only 
those employment decisions that are the ‘substantial equivalent of 
a dismissal.’ ” Id. But it did not imply that there were no limits. In 
fact, it expressly found that employees subjected to certain actions 
short of discharge still may be “adversely affected” and explained 
some of the harms those employees could experience. 497 U.S. at 
73, 110S. Ct. at 2736.

The Fifth Circuit’s test, as articulated in Mattern, does not 
require, as the Seventh Circuit had in Rutan, the “substantial 
equivalent of a dismissal” before a violation occurs. The court 
expressly recognized various kinds of decisions as actionable, 
including ones related to leaves of absence, promotions, and 
compensation, all of which are short of discharge. More specifically, 
and contrary to Mattern’s apparent reading of the opinion below, 
the Fifth Circuit did not hold that promotions, transfers, and recalls 
after layoffs are not actionable under Title VII. The first and last of 
those actions plainly fall within the Fifth Circuit’s non-exclusive



28

definition of “adverse employment action.” And the court said 
nothing about transfers. But transfers are akin to hiring and 
promoting, or even demoting (which the Fifth Circuit also did not 
mention), all of which fit within the court’s definition of adverse 
employment action: they all are the kind of “ultimate employment 
decisions,” as compared to “interlocutory or mediate” decisions, 
that do or can have an objectively negative im pact on the 
employment relationship.7 In short, Rutan is inapplicable here, and 
the Fifth Circuit’s decision does not in any case contradict it.

CONCLUSION

The petition for writ of certiorari should be denied.

Respectfully submitted,

STEPHEN F. FINK 
Counsel o f Record 
BRYAN P. NEAL 
THOM PSON & KNIGHT, P.C. 
Attorneys fo r  Respondents 
1700 Pacific Avenue 
Suite 3300 
Dallas, Texas 75201 
(214) 969-1700

7. As other circuits have recognized, a particular transfer may or may not 
be an adverse employment action depending on the circumstances and the real, 
objectively measurable impact on the employee. E.g., Montandon v. Farmland 
Indus., Inc., 116 F.3d 355, 359 (8 th Cir. 1997); Davis v. City o f Sioux City, 115 
F.3d 1365, 1369 (8th Cir. 1997); Williams v. Bristol-Myers Squibb Co., 85 F.3d 
270, 274 (7th Cir. 1996); Flaherty v. Gas Research Inst., 31 F.3d 451, 456-57 
(7th Cir. 1994).