E.E.O.C. v. Ohio Edison Co.

Decision Date20 October 1993
Docket NumberNo. 92-3173,92-3173
Citation7 F.3d 541
Parties63 Fair Empl.Prac.Cas. (BNA) 65, 62 Empl. Prac. Dec. P 42,614, 62 USLW 2288 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. OHIO EDISON COMPANY, Defendant-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

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 Allegedly, Edison rescinded that offer following a meeting with management at which another Edison employee protested Whitfield's discharge.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.

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 2000e-3 proscribes the alleged retaliation of which plaintiff complains.

Defendant finally argues that even if defendant's actions that plaintiff alleges are retaliatory are proscribed by the Act, plaintiff's husband, and not plaintiff, is the only person who can seek relief on this claim, [because plaintiff's husband was the one who engaged in the protected activity]. Such a construction of Title VII would produce absurd and unjust results, for while plaintiff's husband might be in a position to seek injunctive relief to prohibit future reprisals against his spouse, he would certainly not be in a position to seek back pay and/or retroactive promotion based on his spouse's employment denial. Thus, unless plaintiff herself is permitted to seek relief based on the denial of her employment application, the "make whole" purpose of Title VII would be frustrated. Such a result would contravene the express legislative history of Title VII, see Albemarle Paper Co. v. Moody, 422 U.S. 405, 419-22, 95 S.Ct. 2362, 2372-74, 45 L.Ed.2d 280 (1975), and would be unacceptable to this Court. Accordingly, the Court holds that plaintiff's allegation of reprisal for her husband's anti-discrimination activities at the USIA states a claim upon which relief can be granted under Title VII.

Id. at 580-81.

We agree with the reasoning of the DeMedina court that a plaintiff's allegation of reprisal for a relative's antidiscrimination activities states a claim upon which relief can be granted under Title VII. 1 We thus reject the conclusion of the district court in the present case that third parties, who have not actually engaged in protected activities themselves, can never sue under 42 U.S.C. § 2000e-3(a). Even though the statute does not specifically provide for such a claim by a relative who has been discriminated against, the majority of courts, including the Supreme Court, have been willing to construe Title VII and companion provisions under the Fair Labor Standards Act, 29 U.S.C. § 215(a)(3), and the Age Discrimination Employment Act (ADEA), 29 U.S.C. § 623(d), broadly in...

To continue reading

Request your trial
114 cases
  • Garcia-Cabrera v. Cohen
    • United States
    • U.S. District Court — Middle District of Alabama
    • February 2, 2000
    ...Compare Holt v. JTM Indus., Inc., 89 F.3d 1224 (5th Cir.1996) (rejecting standing for third party reprisal) with EEOC v. Ohio Edison Co., 7 F.3d 541 (6th Cir.1993) (recognizing standing for third party These cases, however, are inapposite to Garcia-Cabrera's claim that Myles was retaliated ......
  • Gonzales v. Garner Food Services, Inc.
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • August 2, 1996
    ...Paramus Bd. of Educ., 25 F.3d 194 (3rd Cir.1994), cert. denied, 513 U.S. 1022, 115 S.Ct. 590, 130 L.Ed.2d 503 (1994); E.E.O.C. v. Ohio Edison Co., 7 F.3d 541 (6th Cir.1993); Passer v. American Chemical Society, 935 F.2d 322 (D.C.Cir.1991); E.E.O.C. v. J.M. Huber Corp., 927 F.2d 1322 (5th Ci......
  • Holt v. JTM Industries, Inc.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • August 7, 1996
    ...of the ADEA to enable employees to engage in protected activities without fear of economic retaliation. See E.E.O.C. v. Ohio Edison Co., 7 F.3d 541, 544 (6th Cir.1993) (stating that the purpose of the ADEA "is to prevent fear of economic retaliation from inducing employees 'quietly to accep......
  • Jackson v. City of Columbus
    • United States
    • U.S. District Court — Southern District of Ohio
    • July 28, 1998
    ...and 3) that a causal link existed between the protected activity and the adverse employment action. Equal Employment Opportunity Comm'n v. Ohio Edison Co., 7 F.3d 541, 543 (6th Cir.1993). Plaintiff alleges in the amended complaint that the 1997 report was issued in retaliation for his annou......
  • Request a trial to view additional results
6 books & journal articles
  • An Inevitable Progression in the Scope of Title VII's Anti-Retaliation Provision: Third-Party Retaliation Claims
    • United States
    • Capital University Law Review No. 38-3, May 2010
    • May 1, 2010
    ...337, 346 (1997). 12 Booker v. Brown & Williamson Tobacco Co., Inc., 879 F.2d 1304, 1313 (6th Cir. 1989); see also EEOC v. Ohio Edison Co., 7 F.3d 541, 544 (6th Cir. 1993) (stating the purpose of Title VII is “to prevent fear of economic retaliation from inducing employees ‘quietly to accept......
  • Deposing & examining lay witnesses
    • United States
    • James Publishing Practical Law Books Deposing & Examining Employment Witnesses
    • March 31, 2022
    ...cert. denied, 531 U.S. 1052 (2000); Drake v. Minnesota Mining & Manufacturing Co., 134 F.3d 878 (7th Cir. 1998); EEOC v. Ohio Edison Co., 7 F.3d 541 (6th Cir. 1993); McDonnell et al. v. Cisneros, 84 F.3d 256 (7th Cir. 1996); Wu v. Thomas, et al. , 863 F.2d 1543 (11th Cir. 1989); Gonzalez v.......
  • §5.4 Retaliation
    • United States
    • Labor and Employment Law: Private Sector (OSBar) Chapter 5 Equal Employment Opportunity: Race, Color, Sex, Religion, or National Origin Discrimination
    • Invalid date
    ...when it takes adverse employment action against spouse of an employee who engages in protected activity); EEOC v. Ohio Edison Co., 7 F3d 541, 544 (6th Cir 1993) (plaintiff's allegation of reprisal for a relative's protected activities stated a claim under Title VII). "In order to plead an a......
  • Plaintiff's Brief in Support of Motion for Summary Judgment - ADEA - Federal Court
    • United States
    • James Publishing Practical Law Books Archive Texas Employment Law. Volume 2 - 2016 Appendices Substantive Forms
    • July 30, 2023
    ...202 F.3d 424, 432 (1st Cir. 2000) 27 Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1429 (5th Cir. 1995) 18 EEOC v. Ohio Edison Co., 7 F.3d 541, 545 (6th Cir. 1993) 25, EEOC v. Texas Instruments, Inc., 100 F.3d 1173, 1180 (5th Cir. 1996) 22 Faruki, v. Parsons S.I.P., Inc., 123 F.3d 31......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT