7 F.3d 541 (6th Cir. 1993), 92-3173, E.E.O.C. v. Ohio Edison Co.

• Date: 20 October 1993
• Docket Number: 92-3173.
• Citation: 7 F.3d 541
• Parties: Prac. Dec. P 42,614, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. OHIO EDISON COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 541

7 F.3d 541 (6th Cir. 1993)

Prac. Dec. P 42,614,

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant,

v.

OHIO EDISON COMPANY, Defendant-Appellee.

No. 92-3173.

United States Court of Appeals, Sixth Circuit

October 20, 1993

Argued Oct. 16, 1992.

Page 542

Jeffrey A. Stern, E.E.O.C., Cleveland, OH, Robert J. Gregory (argued and briefed), Washington, DC, for plaintiff-appellant.

Gregory P. Szuter (briefed), Buckley, King & Bluso, Cleveland, OH, Gary D. Benz (argued), Ohio Edison Co., Akron, OH, for defendant-appellee.

Before: MARTIN and BOGGS, Circuit Judges; and CONTIE, Senior Circuit Judge.

CONTIE, Senior Circuit Judge.

Plaintiff-appellant, Equal Employment Opportunity Commission (EEOC), appeals the district court's dismissal of this action against defendant-appellee, Ohio Edison, pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim in this retaliation case under 42 U.S.C. § 2000e-3(a).

I.

On July 20, 1988, Johnnie Whitfield (Whitfield) was discharged from his employment with defendant Ohio Edison (Edison). Shortly afterward, Edison made an offer to reinstate Whitfield. Allegedly, Edison rescinded that offer following a meeting with management at which another Edison employee protested Whitfield's discharge. Specifically, the employee, who is black, complained that Whitfield, who is also black, had been treated more harshly than similarly situated white employees, and that court action was being contemplated.

Whitfield filed a charge with the EEOC, who investigated the matter. On behalf of Johnnie Whitfield, the charging party, the EEOC filed a complaint in the United States District Court for the Northern District of Ohio alleging that defendant, Ohio Edison, violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a), by withdrawing an offer to reinstate Whitfield in retaliation for a co-employee's engaging in protected activity under Title VII.

Defendant Edison filed a motion to dismiss the case under Fed.R.Civ.P. 12(b)(6) or, in the alternative, a motion for a more definite statement under Fed.R.Civ.P. 12(e). In its memorandum in opposition to defendant's Rule 12(b)(6) motion, plaintiff asserted:

It has been conclusively established that in January, 1989, Defendant received an accurate copy of Mr. Whitfield's Charge of Discrimination, EEOC Charge No. 220890497, which stated in pertinent part:

During a meeting with management in October 1988, my representative cited several incidents involving Caucasian employees where they were not treated as I was treated. After hearing my representative mention a court action to redress my termination, the Company rescinded a proposal that was previously offered.

The district court granted defendant's Rule 12(b)(6) motion for failure to state a claim, stating that "the language of 42 U.S.C. § 2000e-3(a) does not apply to retaliatory discrimination against an employee for the protected activity of another employee."

The plaintiff, EEOC, timely filed this appeal.

II.

Defendant Edison argues that the district court did not err in dismissing the case under Fed.R.Civ.P. 12(b)(6) because even if all of EEOC's allegations are true, any action is not cognizable under Title VII because Title VII does not protect an inactive employee from retaliation based on the actions of some other employee.

Section 704(a) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a) provides in pertinent part:

It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment ... because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

Page 543

In order to succeed on a claim of retaliation, the plaintiff must show: (1) that he engaged in activity protected by Title VII; (2) that he was the subject of adverse employment action; and (3) that there exists a causal link between his protected activity and the adverse action of his employer. Jackson v. RKO Bottlers of Toledo, Inc., 743 F.2d 370, 375 (6th Cir.), cert. denied, 478 U.S. 1006, 106 S.Ct. 3298, 92 L.Ed.2d 712 (1984). The statute makes it unlawful for an employer to discriminate against an employee because the employee opposed an unlawful employment practice, or made a charge, or participated in an investigation, proceeding, or hearing related to Title VII. It does not specifically cover the situation in the present case in which the employee's (or former employee's) representative engages in protected activity on his behalf and the employee, who had his representative act for him, is then retaliated against.

In the present case we believe neither party accurately states the issue. The EEOC contends that Title VII prohibits employers from discriminating against any and all third parties in retaliation for a co-employee's protected activity and that it is not necessary to establish in the complaint a causal link between the two. Defendant Ohio Edison contends that the statute says nothing about third parties and only prohibits acts of retaliation against the person actually engaged in the protected activity. Neither addresses the issue of retaliation against an employee when he has asked another employee to act on his behalf in protesting allegedly discriminatory practices.

The district court concluded that because the statute does not specifically cover discrimination against one employee for the acts of another, plaintiff failed to state a claim. This conclusion is contrary to the majority of published cases that address this issue. In several cases, courts have found that if an employer retaliated against a close relative of the person engaging in protected activity, the relative may bring a claim under 42 U.S.C. § 2000e-3(a), even though the relative was not the person engaging in the protected activity. The leading case is DeMedina v. Reinhardt, 444 F.Supp. 573 (D.C.1978), aff'd in part and remanded in part, 686 F.2d 997 (D.C.Cir.1982), in which a former employee asserted a claim based on allegations that she was discriminated against by the employer in reprisal for the antidiscriminatory activities of her husband. The court in DeMedina reasoned as follows:

It is ... necessary to consider [the employer's] defendant's argument that since plaintiff is not the person whose protected activities are allegedly being impeded by defendant's retaliatory actions, plaintiff fails to state a claim upon which relief can be granted under 42 U.S.C. § 2000e-3. Section 2000e-3 provides:

It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment ... because he has opposed any practice made an unlawful employment practice by this title, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this title.

While the language of this section indicates that Congress did not expressly consider the possibility of third-party reprisals--i.e., discrimination against one person because of a friend's or relative's protected activities--the very clear intent of Congress would be undermined by the construction defendant suggests. In enacting section 2000e-3, Congress unmistakably intended to ensure that no person would be deterred from exercising his rights under Title VII by the threat of discriminatory retaliation. Since tolerance of third-party reprisals would, no less than the tolerance of direct reprisals, deter persons from exercising their protected rights under Title VII, the Court must conclude, as has the only other court to consider the issue, Kornbluh v. Stearns & Foster Co., 73 F.R.D. 307, 312 (S.D.Ohio 1976), that section...