Wideman v. Wal-Mart Stores, Inc.

• Decision Date: 27 May 1998
• Docket Number: WAL-MART,No. 97-2897,97-2897
• Citation: 141 F.3d 1453
• Parties: 76 Fair Empl.Prac.Cas. (BNA) 1506, 73 Empl. Prac. Dec. P 45,384, 23 Fla. L. Weekly Fed. C 1406 Tonya J. WIDEMAN, Plaintiff-Appellant, v.STORES, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1453

141 F.3d 1453

76 Fair Empl.Prac.Cas. (BNA) 1506,

73 Empl. Prac. Dec. P 45,384,

23 Fla. L. Weekly Fed. C 1406

Tonya J. WIDEMAN, Plaintiff-Appellant, v. WAL-MART STORES, INC., Defendant-Appellee.

No. 97-2897.

United States Court of Appeals Eleventh Circuit.

May 27, 1998.

Ted E. Karatinos, Nicholas E. Karatinos, Seeley & Karatinos, P.A., St. Petersburg, FL, for Plaintiff-Appellant.

Douglas H. Reynolds, William M. Julien, Jr., Cox & Reynolds, Ft. Lauderdale, FL, for Amicus NELA.

Peter W. Zinober, Scott T. Silverman, Zinober & McCrea, P.A., Tampa, FL, for Defendant-Appellee.

Lisa J. Banks, EEOC, Washington, DC, for Amicus, EEOC.

Appeal from the United States District Court for the Middle District of Florida.

Before CARNES, Circuit Judge, KRAVITCH, Senior Circuit Judge, and MILLS ^*, Senior District Judge.

CARNES, Circuit Judge:

Plaintiff Tonya Wideman appeals from the district court's grant of defendant Wal-Mart's motion for a judgment as a matter of law on her Title VII claims of hostile environment, constructive discharge, and retaliation. Wideman's contention that the district court erred in granting Wal-Mart a judgment on her hostile environment and constructive discharge claims is meritless; the judgment with respect to those claims is affirmed without further discussion. However, for the reasons set forth below, we agree with Wideman's contention that the district court erred in granting Wal-Mart judgment as a matter of law on her retaliation claim.

I. DISCUSSION

We review de novo the grant of a judgment as a matter of law. See Thomas v. Dillard Dept. Stores, Inc., 116 F.3d 1432, 1433 (11th Cir.1997). We, like the district court, are required to view the facts in the light most favorable to the nonmovant. See Walls v. Button Gwinnett Bancorp, Inc., 1 F.3d 1198, 1200 (11th Cir.1993).

The parties agree that to establish a prima facie case of retaliation under 42 U.S.C. § 2000e-3(a), a plaintiff must show that (1) she engaged in statutorily protected expression; (2) she suffered an adverse employment action; and (3) the adverse action was causally related to the protected expression. See, e.g., Weaver v. Casa Gallardo, 922 F.2d 1515, 1524 (11th Cir.1991). However, the parties disagree over whether a plaintiff who alleges she was retaliated against for filing an EEOC charge of discrimination must also establish, as part of her prima facie case, that she had a good faith, reasonable basis for filing the charge. Wideman argues that a plaintiff who alleges she suffered retaliation for filing an EEOC charge is pursuing her claim under the participation clause of 42 U.S.C. § 2000e-3(a), and that protection from retaliation under the participation clause is not conditioned by a good faith, reasonable basis requirement. Wal-Mart, on the other hand, notes that we have held that retaliation claims brought under the opposition clause of 42 U.S.C. § 2000e-3(a) are conditioned by a good faith, reasonable basis requirement, see, e.g., Little v. United Technologies, 103 F.3d 956, 959-60 (11th Cir.1997), and argues that we should not distinguish retaliation claims brought under the participation clause from those under the opposition clause. The district court agreed with Wal-Mart, holding that Wideman did not establish a prima facie case of retaliation because her EEOC charge of discrimination was not "objectively reasonable."

Because we conclude that the facts of this case, viewed in the light most favorable to Wideman, show that Wideman had a good faith, reasonable basis for filing her charge, we need not decide whether protection from retaliation under the participation clause is conditioned by a good faith, reasonable basis requirement. During the trial Wideman testified as follows concerning her reasons for filing her EEOC charge of discrimination on February 9, 1995:

Q. At the time you filed [the EEOC] charge, did you feel that you were being discriminated against?

A. Yes.

Q. Why did you feel that way?

A. The statements that were made to me, the pay cut, the statement Mr. Telfer made when he took half of the raise back, and the fact that I was qualified for that [craft instructor] position. And the bottom end, Mrs. Dellinger let me know that she was not giving it [the position] to anybody black.

(emphasis added). Accepting Wideman's testimony as true and interpreting it in the light most favorable to her position, as we must for purposes of reviewing a judgment as a matter of law, she filed the charge of discrimination because her manager told her that the craft instructor position would not be filled by a black person. Because refusing to fill a position based on race is illegal discrimination under Title VII, if Wideman's testimony is true, she had a good faith, reasonable basis for filing an EEOC charge of racial discrimination. ¹ Thus, the district court erred in concluding that Wideman had failed to establish a prima facie claim of retaliation because her EEOC charge of discrimination was not "objectively reasonable."

Turning to whether Wideman presented sufficient evidence to establish the three elements of a retaliation claim, Wal-Mart concedes that Wideman engaged in protected activity by filing the EEOC charge of discrimination on February 9, 1995, but contends that she failed to show she suffered any adverse employment actions or a causal connection between the protected activity and any adverse employment actions. We disagree.

As evidence of adverse employment actions, Wideman points to the following actions which occurred (viewing the evidence in the light most favorable to her) after she filed her EEOC charge. First, on February 11, 1995, the day after she informed management that she had filed an EEOC charge, she was improperly listed as a no-show on a day she was scheduled to have off. Wideman discovered the error when she went into the Wal-Mart to shop. When she brought the error to the attention of her manager, Mark Telfer, he required her to work anyway without a lunch break. Second, on February 13 and 22, 1995, Telfer gave Wideman written reprimands. After the second reprimand, she received a one-day suspension. In her previous eleven months of employment at Wal-Mart she had not received any reprimands. Third, around February 13,1995, Telfer began soliciting employees at Wal-Mart for negative statements concerning Wideman. According to Wideman, Telfer did not seek statements from employees who would have given positive comments about her. Fourth, on April 3, 1995, Wideman reported to work and found she had not been scheduled to work. When she announced her intention to call Wal-Mart headquarters to find out why, Assistant Manager Rene Willemain threatened to shoot her in the head. Fifth, on May 3, 1995, while she was working at Wal-Mart, Wideman suffered an allergic reaction which required medical treatment. Although Wal-Mart Assistant Manager Audrey Nichols was aware that Wideman needed treatment, she needlessly delayed authorizing that medical treatment.

Wal-Mart contends that none of those acts are sufficient to constitute an adverse employment action for purposes of a retaliation claim. Relying principally on the Fifth Circuit's holding in Mattern v. Eastman Kodak Co., 104 F.3d 702 (5th Cir.1997), Wal-Mart argues that unless the alleged act of retaliation was an "ultimate employment action" such as discharge or failure to hire, it does not qualify as an adverse employment action for purposes of an unlawful retaliation claim. ²

There is a circuit split on this issue. While the Eighth Circuit has sided with the Fifth Circuit, see Ledergerber v. Stangler, 122 F.3d 1142, 1144 (8th Cir.1997) (only adverse employment actions that "rise to the level of an ultimate employment decision [are] intended to be actionable under Title VII."), the First, Ninth, and Tenth Circuits have all held that Title VII's protection against retaliatory discrimination extends to adverse actions which fall short of ultimate employment decisions. See Wyatt v. City of Boston, 35 F.3d 13, 15-16 (1st Cir.1994) (stating that actions other than discharge are covered by Title VII's anti-retaliation provision and listing as examples, "employer actions such as demotions, disadvantageous transfers or assignments, refusals to promote, unwarranted negative job evaluations and toleration of...