Brazoria County v. Equal Employment Opportunity Commission

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT November 19, 2004

Charles R. Fulbruge III
Clerk
No. 03-60709

BRAZORIA COUNTY, TEXAS;
DAVID CHRISTIAN, former Justice of the Peace of
Brazoria County, Texas (Precinct 2),

Petitioners-Cross-Respondents,

versus

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION;
UNITED STATES OF AMERICA,

Respondents-Cross-Respondents,

and

KYLE KNIGHT,

Intervenor-Cross-Petitioner.

Petitions for Review of a Decision of
the Equal Employment Opportunity Commission

Before BARKSDALE and PICKERING, Circuit Judges, and LYNN*, District
Judge.

RHESA HAWKINS BARKSDALE, Circuit Judge.

Lacking jurisdiction over Kyle Knight’s cross-petition, the

sole issue at hand is whether, under the Government Employee Rights

Act (GERA), 42 U.S.C. § 2000e-16a to 16c (formerly codified at 2

U.S.C. §§ 1201, 1202, 1220), the County and former justice of the

peace David Christian (jointly, the County) were properly held

*
District Judge of the Northern District of Texas, sitting by
designation.
liable by the EEOC for claimed retaliation against Knight. That

decision had two factual bases: ostracism during Knight’s

employment; and a letter written by Christian, after Knight’s

resignation, critical of Knight’s husband. Neither basis was the

ultimate employment decision required for retaliation. PETITION

GRANTED; CROSS-PETITION DISMISSED.

I.

Christian was elected a justice of the peace in 1991. That

year, he hired Knight as one of his five clerks. Knight resigned

in November 1996 and filed a complaint with the EEOC that month

(the letter at issue was written the next month); the complaint was

amended to state a claim under GERA.

The complaint was referred by the EEOC to an administrative

law judge (ALJ), who understood the complaint as presenting two

claims. Knight alleged: Christian had created a hostile work

environment through conduct constituting sexual harassment; and,

after she complained about that conduct to Christian and to a

county official, Christian retaliated against her. There were five

predicates for the retaliation claim. Three of them (not at issue

here) were: failure to promote; placing Knight on probation; and

constructive discharge. At issue are two bases: ostracism; and

the December 1996 letter from Christian to the sheriff about

Knight’s husband. The facts behind each are described infra.

The ALJ ruled in favor of the County on all claims; Knight

2
appealed to the EEOC. It affirmed the ALJ on: no sexual

harassment; and no retaliation due to either constructive

discharge, failure to promote, or probation. The EEOC partly

reversed the ALJ on the retaliation claim, however, ruling that

Christian had retaliated against Knight in ostracizing her and in

writing the letter. The final decision, issued on 2 July 2003,

awarded Knight $20,500 in compensatory damages; $18,952.50 in

attorney’s fees; and $2759.73 in costs.

II.

Before addressing the County’s petition for review, we address

Knight’s cross-petition. Because Knight filed a cross-petition,

the Respondent EEOC did not file a brief, stating: “The cross-

petitions assure that the adverse positions of the real parties in

interest in this matter will be ventilated before the Court”.

Nevertheless, because of our pre-oral argument jurisdictional

concerns about the cross-petition, we obtained supplemental

briefing from the County, Knight, and the EEOC on that issue.

A.

The County filed its petition on 27 August 2003. On 16

September 2003, our court received two documents from Knight: (1)

a combined cross-petition for review, application to enforce, and

motion for leave to intervene; and (2) a motion for extension of

time to file the cross-petition. On 13 October, the motion to

3
intervene and the motion for extension of time were granted;

accordingly, the cross-petition was filed on 14 October.

The EEOC’s decision in favor of Knight was pursuant to its

jurisdiction over complaints brought under GERA. 42 U.S.C. §

2000e-16c(b)(1). Judicial review of the EEOC’s 2 July 2003

decision is pursuant to “chapter 158 of Title 28”. 42 U.S.C. §

2000e-16c(c). Under chapter 158, there is a 60-day period to file

a petition for review of an agency order. 28 U.S.C. § 2344. That

period “is jurisdictional and cannot be judicially altered or

expanded”. Texas v. United States, 749 F.2d 1144, 1146 (5th Cir.),

cert. denied sub nom. Interstate Commerce Comm’n v. Texas, 472 U.S.

1032 (1985).

Sixty days from the EEOC’s 2 July 2003 decision was Sunday, 31

August 2003; the following day was Labor Day. Therefore, a timely

petition for review of the EEOC decision had to be filed no later

than 2 September 2003. FED. R. APP. P. 26(a)(3), (4). Our court did

not receive the cross-petition until 16 September 2003, and it was

not filed until 14 October 2003. Assuming arguendo that the 16

September receipt date was the relevant date, it was outside the

60-day period.

The absence of jurisdiction is clear from the preceding.

Nevertheless, some of the jurisdictional assertions made by Knight

will be addressed. First, we may, of course, notice jurisdictional

4
defects sua sponte. E.g., Weekly v. Morrow, 204 F.3d 613, 615 (5th

Cir. 2000).

Second, our ability to consider jurisdiction is in no way

hampered by the 13 October 2003 order granting Knight’s motion to

extend time to file the petition. We have most commonly confronted

this issue when, after a motions panel denies a motion to dismiss

for lack of jurisdiction, a merits panel dismisses on

jurisdictional grounds. E.g., Mattern v. Eastman Kodak Co., 104

F.3d 702, 704 (5th Cir.), cert. denied, 522 U.S. 932 (1997);

Browning v. Navarro, 887 F.2d 553, 557 (5th Cir. 1989); see also

Harcon Barge Co., Inc. v. D & G Boat Rentals, Inc., 746 F.2d 278,

283 n.2 (5th Cir. 1984), on reh’g, 784 F.2d 665 (5th Cir. 1986).

As Harcon Barge stated: “A denial by a motions panel of a motion

to dismiss for want of jurisdiction ... is only provisional”. Id.

No authority need be cited for the fact that jurisdiction is always

at issue; without it, a court is powerless to act. In this

instance, no judicial authority can extend the time for filing the

petition. See In re Bass, 171 F.3d 1016, 1022 (5th Cir. 1999)

(“All federal courts are courts of limited jurisdiction which, for

the most part, derives from statutory grants of the Congress.”).

Third, Knight cannot rely on her timely intervention in order

to have our court review matters outside the scope of the County’s

petition. “If we permit an intervenor to raise additional issues

for review, we contravene the sixty-day filing limit ... by

5
permitting filings as late as 90 days after the order....” United

Gas Pipe Line Co. v. FERC, 824 F.2d 417, 436 (5th Cir. 1987) (such

90 days based on adding 60-day period for petition to 30-day period

for intervention). United Gas held:

Thus, intervenors in FERC review proceedings
are bound by the issues raised in the
petitions for review. With regard to the
issues raised in the petitions, intervenors
may fully argue for or against the
Commission’s position. However, the
intervenors may not challenge aspects of the
Commission’s orders not raised in the
petitions for review.

Id. at 437; see also Texas Office of Public Utility Counsel v. FCC,

183 F.3d 393, 421 n.39 (5th Cir. 1999). But see Kansas City

Southern Industries, Inc. v. ICC, 902 F.2d 423, 434-35 (5th Cir.

1990). The same is true in this review of an EEOC order.

Although Knight’s cross-petition was untimely and must be

dismissed, her motion to intervene was timely; as intervenor, she

may, of course, address issues raised by the County’s petition.

(Again, because of Knight’s cross-petition, the EEOC did not file

a brief.) Knight’s application to enforce the EEOC order is a

nullity because there is no statutory basis for jurisdiction over

such an application.

B.

The County claims the EEOC’s final decision was incorrect

because neither the ostracism nor the letter was an ultimate

employment decision. It contends further that Knight lacks Article

6
III standing to complain about the letter, because it only

disparaged her husband. We address the GERA framework; then the

County’s standing argument; and, finally, the contention that the

factual bases for the retaliation rulings are insufficient.

Our standard of review is set by GERA. In the light of the

issues raised by the County, we can set aside the EEOC’s final

order only if it was “arbitrary, capricious, an abuse of

discretion, or otherwise not consistent with law”. 42 U.S.C. §

2000e-16c(d)(1).

1.

GERA provides protection against workplace discrimination to

certain individuals exempted from protection under Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Although Title

VII’s familiar protections extended to “employees”, Title VII’s

definition of that term excluded certain groups. Pertinent to this

case, Title VII provides:

The term “employee” means an individual
employed by an employer, except that the term
“employee” shall not include any person
elected to public office in any State or
political subdivision of any State by the
qualified voters thereof, or any person chosen
by such officer to be on such officer's
personal staff, or an appointee on the policy
making level or an immediate adviser with
respect to the exercise of the constitutional
or legal powers of the office.

42 U.S.C. § 2000e(f) (emphasis added).

7
 GERA, originally adopted as Title III of the Civil Rights Act

of 1991, provides protection for those excluded from the definition

of “employee”. Closely mirroring the language from Title VII’s

above-quoted § 2000e(f), GERA provides that certain individuals

(personal staff; those who serve at policymaking level; advisers on

exercise of constitutional or legal powers) shall receive the

“rights, protections, and remedies provided pursuant to [42 U.S.C.

§] 2000e-16b”. 42 U.S.C. § 2000e-16c(a). In turn, § 2000e-16b

provides: “All personnel actions affecting ... the State employees

described in [42 U.S.C. §] 2000e-16c ... shall be made free from

any discrimination based on ... race, color, religion, sex, or

national origin, within the meaning of section 2000e-16....” Id.

§ 2000e-16b(a) (emphasis added). Section 2000e-16, found in the

1972 amendments to Title VII to provide protection for federal

employees, provides: “All personnel actions affecting employees or

applicants for employment ... shall be made free from any

discrimination based on race, color, religion, sex, or national

origin”. 42 U.S.C. § 2000e-16.

Christian was an elected official; Knight, a member of his

personal staff. Cf. Clark v. Tarrant County, Texas, 798 F.2d 736,

742 (5th Cir. 1986) (factors in personal staff exemption).

Therefore, any relief was under GERA and its administrative

procedure.

8
 In the proceeding before the EEOC, the County conceded that

GERA provides a claim for retaliation. For the first time in its

reply brief here, however, it contends: (1) GERA does not provide

a claim for retaliation; and (2) this contention goes to the EEOC’s

jurisdiction and, therefore, could be considered for the first time

on appeal (not to mention, for the first time in a reply brief).

The line between a jurisdictional and merits question (i.e.,

claim) can be blurred. See, e.g., Arbaugh v. Y&H Corp., 380 F.3d

219, 222-26 (5th Cir. 2004) (in Title VII context, applying

precedent that threshold number of employees was a jurisdictional

matter in district court). If we were to conclude that GERA did

not provide a claim for retaliation, we would have to determine

whether the issue is a matter of merits (subject to waiver) or

jurisdiction (not subject to waiver).

Our precedent compels the conclusion that GERA provides a

claim for retaliation. In Porter v. Adams, 639 F.2d 273 (5th Cir.

Unit A 1981), we considered 42 U.S.C. § 2000e-16; as noted, that

section protects certain federal employees from employment

discrimination. (As also noted, this section was incorporated by

GERA.) Section 2000e-16 does not specifically prohibit retaliation

(or “reprisals”, as Porter terms it). It does provide, however,

that “[a]ll personnel actions ... shall be made free from any

discrimination based on race, color, religion, sex, or national

origin”. 42 U.S.C. § 2000e-16 (emphasis added). Comparing §

9
2000e-16 (general ban on discrimination in federal employment) with

other provisions (bans on specific forms of discrimination,

including retaliation, by private employers), Porter held:

The reasonable conclusion, therefore, is that
by drafting [§ 2000e-16] to prohibit [the
above-emphasized] “any discrimination”,
Congress intended to bar the federal
government from engaging in all those forms of
discrimination identified in §§ 703 and 704
[of Title VII], and others as well.
Furthermore, this Court has held, although in
a slightly different context, that the 1972
amendments extending the protections of Title
VII to federal employees ... were intended to
give federal employees the same rights as
private employees.

Porter, 639 F.2d at 277-78 (emphasis added). See also Ayon v.

Sampson, 547 F.2d 446, 450 (9th Cir. 1976) (“When these sections

are read together, it is clear that Congress incorporated the

protections against retaliation in its enactment of § 2000e-16.”).

In short, § 2000e-16 bars retaliation. And, as noted again

above, the GERA provision at issue, 42 U.S.C. § 2000e-16b,

incorporates § 2000e-16. That GERA provision, § 2000e-16b, states:

“All personnel actions ... shall be made free from any

discrimination based on ... race, color, religion, sex, or national

origin, within the meaning of section 2000e-16 of this title”. 42

U.S.C. § 2000e-16b (emphasis added). Therefore GERA makes

retaliation, within the meaning of Title VII, unlawful. See Haddon

v. Executive Residence at the White House, 313 F.3d 1352, 1356-57

(Fed. Cir. 2002) (interpreting GERA’s § 2000e-16b, when it was

10
earlier codified as 2 U.S.C. § 1202, and stating: “It is quite

sensible to conclude that Congress intended for section 1202 ... to

include reprisal”.); see also 29 C.F.R. § 1603.102(a) (employees

protected by GERA, “who believe they have been ... retaliated

against”, may file administrative complaint under GERA).

2.

The County claims Knight lacks standing to state a retaliation

claim based on the letter concerning her husband. It concedes that

this issue was not raised before the EEOC, but cites cases (all

involving appeals from district courts, not petitions for review

from agency decisions) that standing is always subject to being

challenged. Re-stating its contention in its reply brief, it says:

“[B]asic law on Article III standing requires that a party suffer

an injury-in-fact in order to have standing, and this injury must

be personal to the plaintiff”.

The County’s comments about Article III, while correct, are

without application for the procedural posture at hand: a petition

for review of an EEOC order. In other words, her attempted cross-

petition aside, Knight never invoked the jurisdiction of the

federal courts. The standing requirement is based on Article III’s

“case or controversy” requirement. Article III governs the federal

courts; it has no application to this GERA EEOC administrative

proceeding. “Administrative adjudications ... are not an article

III proceeding to which either the ‘case or controversy’ or

11
prudential standing requirements apply; within their legislative

mandates, agencies are free to hear actions brought by parties who

might be without standing if the same issues happened to be before

a federal court.” ECEE, Inc. v. FERC, 645 F.2d 339, 349 (5th Cir.

1981). See also Hydro Investors, Inc. v. FERC, 351 F.3d 1192, 1197

(D.C. Cir. 2003) (“Administrative agencies need not adjudicate only

Article III cases and controversies, but federal courts must.”).

Instead, “[a]dministrative standing analysis must always begin

with the language of the statute and regulations that provide for

an administrative hearing”. ECEE, Inc., 645 F.2d at 350 (emphasis

added). Because “standing” for a GERA proceeding before the EEOC

is a matter of identifying the appropriate statutory harm (and not

a constitutional limit on jurisdiction), we doubt whether the issue

can be raised for the first time in our court. Moreover, we can

readily imagine that the letter written about Knight’s husband

might have been unlawful retaliation against Knight. But we do not

reach either the waivability, or the merits, of Knight’s “standing”

before the EEOC, because of our resolution, infra, of the County’s

third contention.

3.

Regarding ostracism, the EEOC considered Knight’s testimony

that, after she complained about Christian’s conduct: he stopped

speaking to her; when he had to address her, he did so in a curt

and hostile tone; he told her that he no longer trusted her and

12
considered her disloyal; he stated that her job depended on her

loyalty; in order to isolate her further, he would “buddy up” with

his other clerks; and he secretly tape-recorded her.

Regarding Christian’s December 1996 letter to the sheriff of

Brazoria County about Knight’s husband, also a County employee,

Christian recounted how he obtained a sledge hammer from Mr. Knight

and used it during a re-election campaign to drive posts for

election signs. Christian wrote to the sheriff that, when he

returned the hammer to Mr. Knight, Mr. Knight stated: “Keep the

[s]ledge, the county will not miss it”. According to the EEOC’s

decision: “The ALJ found that ... [Christian] attempted to have

[Knight’s] spouse arrested by falsely accusing him of stealing a

sledgehammer that belonged to Brazoria County”. The EEOC

apparently agreed with this finding.

As stated above, GERA provides a claim for retaliation. As

discussed, GERA’s § 2000e-16b incorporates § 2000e-16, which in

turn incorporates the substantive ban on retaliation found in §

2000e-3 (Title VII, for private employees). Porter, 639 F.2d at

277-78. The standard for retaliation under GERA is, therefore, the

same as the familiar standard under Title VII for retaliation.

“A retaliation claim has three elements: (1) the employee

engaged in activity protected by Title VII; (2) the employer took

adverse employment action against the employee; and (3) a causal

connection exists between that protected activity and the adverse

13
employment action.” Mattern v. Eastman Kodak Co., 104 F.3d 702,

705 (5th Cir.) (emphasis added), cert. denied, 522 U.S. 932 (1997).

The adverse employment action for the second step must be an

ultimate employment decision. Id. at 707. “‘Ultimate employment

decisions’ include acts ‘such as hiring, granting leave,

discharging, promoting, and compensating’.” Id. (quoting Dollis v.

Rubin, 77 F.3d 777, 782 (5th Cir. 1995)). Because GERA creates a

retaliation claim by a process of incorporating Title VII

provisions, this “ultimate employment decision” applies in GERA

cases.

Knight maintains, to the contrary, that the introductory

“[a]ll personnel actions” in § 2000e-16b means that GERA extends to

“retaliation” which falls short of an ultimate employment decision.

First, it is unlikely that Congress would create a greater scope of

protection for employees of certain state officials than it has for

other employees. Second, and more importantly, the key provision

in § 2000e-16b is: “All personnel ... shall be made free from any

discrimination based on ... sex ... within the meaning of section

2000e-16”. 42 U.S.C. § 2000e-16b(a) (emphasis added).

In addition, Knight maintains that Mattern may not be good

law, because one month after Mattern was rendered, the Supreme

Court decided Robinson v. Shell Oil Co., 519 U.S. 337 (1997).

Mattern has, of course, been cited by our court post-Robinson.

E.g., Zaffuto v. City of Hammond, 308 F.3d 485, 492 (5th Cir.), on

14
reh’g, 313 F.3d 879 (5th Cir. 2002). Moreover, Robinson did not

address the standard for measuring whether an adverse employment

action could support an actionable retaliation claim. Robinson

held: for Title VII’s anti-retaliation provision, 42 U.S.C. §

2000e-3, the bar on retaliating against “employees” included

retaliating against former employees. 519 U.S. at 346. This was

because such a holding was “more consistent with the broader

context of Title VII” than the alternative. Id. Robinson did not

address what actions against either current or former employees

could be the basis for a retaliation claim. (Along this line,

Knight also maintains that, Mattern aside, the found ostracism

could constitute a hostile work environment. As discussed, the ALJ

and EEOC rejected the hostile work environment claim, which was

premised on sexual harassment, not ostracism. In short, this new

ostracism-constitutes-hostile-work-environment assertion is not

properly at issue.)

Although it agrees with the GERA-mandated standard of review

we have applied, the dissent maintains the EEOC’s retaliation

decision should be upheld, based on the dissent’s reading of

Robinson and Porter and its view that deference is owed the EEOC’s

decision. Robinson and Porter are addressed supra; they do not

compel our applying a different retaliation standard. Regarding

deference vel non owed the EEOC’s decision, neither Knight nor the

County raised that subissue. And, as noted, the Respondent EEOC

15
elected not to file a brief. Had it done so, it might have raised

that point, as well as others. In any event, pursuant to the

applicable standard of review, any deference that might be owed the

EEOC’s decision would not require upholding it, in the light of the

different result compelled, as discussed above, by GERA’s plain

language, which reflects that Congress did not intend to create a

greater scope of protection for employees of certain state

officials than Congress has accorded other employees.

4.

Concluding that the ultimate employment decision requirement

for Title VII applies in this GERA proceeding, the last step is to

determine whether the facts surrounding the ostracism or the letter

were ultimate employment decisions. They are not.

For the claimed ostracism, the retaliatory activities did

nothing more than affect conditions in the workplace. None of the

events listed by the EEOC are akin to the “hiring, granting leave,

discharging, promoting, and compensating” examples listed in

Mattern, 104 F.3d at 707. (We note, as the County has repeatedly

urged, that even courts that do not apply an “ultimate employment

decision” standard have rejected retaliation on the basis of

ostracism. E.g., Manatt v. Bank of America, NA, 339 F.3d 792, 803

(9th Cir. 2003) (“Mere ostracism in the workplace is not grounds

for a retaliation claim”).)

16
 The same applies to the letter. Coming after Knight’s

resignation, and not directed to making (or even influencing) any

employment decision, including post-resignation, regarding Knight,

the letter is not an “ultimate employment decision”.

III.

For the foregoing reasons, the County’s petition is GRANTED;

Knight’s cross-petition is DISMISSED.

17
Charles W. Pickering, Sr., concurring in part and dissenting in part

I concur with the majority opinion that we have no jurisdiction of Knight’s cross petition.

I also agree with the majority that GERA provides protection against retaliation and that the

attempt of the defendant Christian to have the appellant Knight’s husband fired was properly

before the EEOC. I do not agree, however, that the EEOC decision finding retaliation should be

reversed. As to that part of the majority opinion, I respectfully dissent.

In order to make an appropriate decision as to the claim of retaliation, it is necessary to

understand the factual background of this case. Knight testified that during the course of her

employment, Christian consistently made sexual jokes, remarks and innuendos that she found

offensive. She identified some eight instances of inappropriate conversation and three instances of

inappropriate touching. She claimed that she was subjected to a sexually hostile work

environment.

Knight complained of Christian relating that when he was a prison warden “men at the

prison” would smell his former secretary’s bicycle seat after she finished riding around the prison

compound. Christian admitted telling of the incident but claimed his intent was to let his staff

know he would not tolerate sexual harassment. Knight also complained that Christian had made a

remark about another clerk having large breasts and that Knight was not even “in the running.”

Christian denied this conversation. Knight complained of Christian repeating stories of

homosexual rape and sodomy while he was a prison warden. Knight complained of Christian

jokingly offering to have sex with the female employees in order to help them lose weight.

Christian admitted that he told the clerks that he had read an article that stated that you could lose
weight by having sex, but denied he had offered to have sex with the female employees. Knight

also complained of Christian jokingly offering to sexually molest his clerks so that they could

obtain a sexual harassment settlement from the county and split the proceeds. Christian admitted

jokingly making a proposal to that effect.

The EEOC found that

In July 1996, after [Christian] recounted the details of a death scene where the
decedent had died while masturbating, [Knight] asked him not to again repeat the
story because it was so sexually offensive. Shortly thereafter, [Knight] also
complained to a county commissioner regarding [Christian’s] claimed sexual
harassment. After her complaints, [Knight] contended that [Christian] began a
campaign of retaliation against her as evidenced by his shunning her; . . .
additionally appellant claimed that all retaliatory actions, taken together, made
working conditions impossible, forcing her to resign from her job on November 6,
1996. Appellant contended that after her resignation, the retaliation continued
when [Christian] attempted to have her husband, a county worker, falsely arrested.

Although the EEOC found that Christian’s simulation of masturbation was “distasteful,

unprofessional, and in poor judgment”,

the ALJ found that while [Christian’s] stories, comments and jokes were offensive
to Appellant, this conduct, even viewed cumulatively, in the context of the totality
of the circumstances, was not sufficiently severe and persuasive to rise to the level
of sexual harassment.

The EEOC affirmed this finding. Knight also argued that the Administrative Law Judge (ALJ)

failed to take into consideration that Christian “requested pay raises for all of his staff [who

testified in his favor] prior to the hearing, and that he handed out $100 bills at the hearing to buy

lunch for the witnesses, . . .”

The EEOC reversed the ALJ as to the retaliation claim based on ostracism and attempting

to get Knight’s spouse fired. The EEOC found “our review of the record indicates that most of

Appellant’s claimed mental and physical problems developed after she reported the sexual

19
harassment, when [Christian] allegedly engaged in retaliation against her.” The EEOC further

found

that immediately after [Knight] complained about sexual harassment in July 1996,
[Christian] began to shun and isolate her, enlisting the aid of co-workers to do so,
and then tried to secretly tape record her. In fact, contrary to the ALJ’s finding,
we find [Christian’s] frequent remarks to Appellant that she was untrustworthy
and disloyal suggesting that her work depended on her keeping quiet about the
sexual harassment claim, is probative evidence of his animus. Furthermore, we
find that the respondent has failed to proffer a legitimate non-discriminatory reason
for the conduct at issue . . . .

(citation omitted). The EEOC found that Christian’s ostracism of Appellant, which occurred on a

continuous basis from July 1996 until her resignation in November 1996, was motivated by

retaliatory animus and constitutes an impermissible act of reprisal.”

The EEOC noted that “[t]he ALJ found the attempted arrest of Appellant’s spouse . . . to

be the most problematic aspect of Appellant’s reprisal claim. The ALJ found that the attempted

arrest occurred after Appellant filed a complaint with the EEOC against [Christian] . . . and that

[Christian] then attempted to have Appellant’s spouse arrested by falsely accusing him of stealing

a sledgehammer that belonged to Brazoria County.” (emphasis added).

The EEOC held

We find that Appellant has standing to bring the instant claim because of her status
as a ‘former employee’ who engaged in prior protected activity, and also because
the action at issue was taken against her spouse. Moreover, with respect to the
claim itself, we find that it is actionable under the Commission’s view of reprisal
because the attempted arrest of a spouse by a named discriminating official is
without question, an act which would ‘reasonably be likely to deter the charging
party, or others, from engaging in protected activity.’ In this regard, we note the
un-rebutted testimony of Appellant’s spouse wherein he stated that he perceived
[Christian’s] action to be a ‘scare tactic’ to deter [Knight] from pursuing her
discrimination complaint. . . . In reaching this conclusion, we find that
Respondents provide no evidence to otherwise justify [Christian’s] action, with the
ALJ finding that [Christian] provided no credible pertinent testimony on this
matter.

20
The final EEOC decision, issued on 2 July 2003, awarded Knight $20,500 in compensatory

damages for the retaliation claim; $18,952.50 in attorney’s fees; and $2759.73 in costs.

As noted by the majority, our standard of review is found in GERA. We can set aside the

EEOC’s final order only if it was “arbitrary, capricious, an abuse of discretion, or otherwise not

consistent with law.” 42 U.S.C. § 2000e-16c(d)(1).

The majority concludes that Knight’s retaliation claim is barred by Mattern v. Eastman

Kodak Company, 104 F.3d 702 (5th Cir. 1997). I respectfully disagree. In Mattern this court

concluded that Title VII only provides protection for “ultimate employment decisions” and that

“‘[u]ltimate employment decisions’ include acts ‘such as hiring, granting leave, discharging,

promoting, and compensating’.” Id. at 707.

There are three reasons why I conclude that the EEOC’s decision finding retaliation, and

awarding attorneys’ fees and damages, should be affirmed. First, the Fifth Circuit has determined

that GERA is broader than Title VII. In 1981 this court in the case of Porter v. Adams,

addressed the federal statute incorporated in GERA as it applies to federal employees and held:

The draftsmanship of § 717 is different from that of the two sections in Title VII
that prohibit discrimination by private employers. Section 717 is drafted broadly.
It states: “All personnel actions . . . shall be made free from any discrimination
based on race, color, religion, sex, or national origin.” Sections 704 and 705, 42
U.S.C. §§ 20003-3 and 20003-4, are more narrowly drawn. There is no general
proscription against discrimination. Rather, those sections make unlawful only
specific types of employment discrimination by private employers. The reasonable
conclusion, therefore, is that by drafting § 717 to prohibit “any discrimination”,
Congress intended to bar the federal government from engaging in all those forms
of discrimination identified in §§ 703 and 704, and others as well.

639 F.2d 273, 277-78 (5th Cir. 1981) (emphasis added). Thus, the Fifth Circuit has ruled that the

GERA language prohibiting discrimination is broader than the language in Title VII. As this court

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in Mattern pointed out “(No authority need be cited for the necessary and longstanding rule that,

absent a change in the law, a decision by our court, is binding on subsequent panels.)” 104 F.3d at

707.

The second reason I conclude that Knight’s retaliation claim is not barred is because of the

deference this court owes to the EEOC determination.** As already noted, we can set aside the

EEOC’s final order only if it was “arbitrary, capricious, an abuse of discretion, or otherwise not

consistent with law.” 42 U.S.C. § 2000e-16(c)(d)(1).*** As this court in a previous case held:

It matters not that the Department’s interpretations were adjudicative decisions,
rather than purely prospective rulemaking. “Congress has long been aware of the
common practice of both courts and agencies to make binding policy through case-
by-case adjudications.” Any agency’s interpretation need not occur in the context
of formal rulemaking, so long as it is the considered and final policy decision of the
agency. . . . Even the adjudicative interpretations of policy-making agencies are
entitled to Chevron deference.

Microcomputer Technology Institute v. Riley, 139 F.3d 1044,1047 (5th. 1998)(citations

omitted). See also EEOC v. Commercial Office Products Company, 486 U.S. 107, 115 (1988)

(“[I]t is axiomatic that the EEOC’s interpretation of Title VII, for which it has primary

enforcement responsibility, need . . . . only be reasonable to be entitled to deference.”).

The EEOC in this case, found as already noted, that Knight’s retaliation claim was proven,

and that “the attempted arrest of a spouse by a named discriminating official is without question

**
Title VII claims are tried de novo by district courts. GERA cases, in contrast, are tried before an
ALJ, can then be appealed to the EEOC, and may be appealed from the EEOC directly to appellate courts
based on the record before the EEOC. While district court decisions are appealed to the circuit court in which
the district court sits, EEOC decisions are appealed to the various circuits around the country.
***
The majority opinion argues that the deference owed to the EEOC decision was not raised by
Knight, nevertheless, the majority opinion, as does this dissent, analyzes the facts of this case under this
deferential standard.

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an act which would ‘reasonably be likely to deter the charging party, or others from engaging in

protected activity.’” The EEOC noted that “[a]s set forth in the EEOC Compliance Manual, § 8,

(Retaliation R. at 8-9) (May 1998), protection against reprisal extends to employees who are

closely associated, such as spouses, where for example one spouse engages in a protected activity

and the employer retaliates against the other spouse as a consequence.” It is hard to imagine a

more effective act of retaliation than trying to get a spouse, the only breadwinner in the family of

a terminated employee, fired.

Finally, the Supreme Court in Robinson v. Shell Oil Company, 519 U.S. 337 (1997),

decided shortly after Mattern was decided, limited Mattern to some degree. Robinson held that a

terminated employee could bring a post-employment retaliation suit against the employee’s former

employer for giving an unfavorable letter of reference. Id. at 339. Justice Thomas wrote for a

unanimous Supreme Court:

[P]etitioner argues that the word “employees” includes former employees because
to hold otherwise would effectively vitiate much of the protection afforded by §
704(a). This is also the position taken by the EEOC. According to the EEOC,
exclusion of former employees from the protection of § 704(a) would undermine
the effectiveness of Title VII by allowing the threat of postemployment retaliation
to deter victims of discrimination from complaining to the EEOC, and would
provide a perverse incentive for employers to fire employees who might bring Title
VII claims. Those arguments carry persuasive force given their coherence and
their consistency with a primary purpose of antiretaliation provisions: Maintaining
unfettered access to statutory remedial mechanisms.

Id., at 345-346. (citations omitted).

As noted, Mattern held that only “ultimate employment decisions” are covered by Title

VII. Consequently Mattern would exclude any postemployment protection for retaliation, since

you cannot have an ultimate employment decision after employment is terminated. The holding in

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Robinson could hardly be more explicit–postemployment acts of retaliation are covered by Title

VII, and therefore compensable. Mattern is in direct conflict with Robinson as to

postemployment claims. Accordingly, Mattern was modified by Robinson, certainly to the extent

that postemployment retaliation claims are cognizable.

Ostracism by co-workers is usually not an adverse employment action that will sustain a

retaliation claim. Manett v. Bank of America, 339 F.3d 792, 803 (9th Cir. 2003); Scusa v.

Nestle U.S.A. Co., Inc., 181 F.3d 958, 969, (8th Cir. 1999); Parkins v. Civil Constructors of

Illinois Inc., 163 F.3d 1037, 1039 (7th Cir. 1998). However, the EEOC in this case found more

than just ostracism by co-workers. The EEOC found that Christian’s “frequent remarks to

[Knight] that she was untrustworthy and disloyal, suggesting that her job depended on her

keeping quiet about the sexual harassment claim . . . .” was proof of his intent to retaliate. This

was a direct threat of retaliation made by Christian to Knight. When Knight quit, rather than

submit to more harassment, Christian sought to get Knight’s spouse fired. If an employer’s

attempt to have a spouse of a former employee fired because the former employee exercised

GERA rights, does not constitute retaliation, GERA retaliation protection is toothless. It is hard

to imagine a more classic example of retaliation than attempting to get a former employee’s

spouse fired. It was certainly a much more serious act of retaliation than the negative reference

letter at issue in Robinson.

Based on the foregoing I would affirm the EEOC decision finding that Christian’s direct

threats to Knight that her job depended on her keeping quiet about the sexual harassment,

together with Christian’s attempt to have Knight’s husband terminated from his employment is

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sufficient basis to constitute a claim of retaliation under GERA. Accordingly, I respectfully

dissent as to that portion of the majority opinion holding to the contrary.

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