Ross v. Communications Satellite Corp.

Decision Date12 April 1985
Docket NumberNo. 84-1355,84-1355
Parties37 Fair Empl.Prac.Cas. 797, 36 Empl. Prac. Dec. P 35,103 Thomas J. ROSS, Appellant, v. COMMUNICATIONS SATELLITE CORPORATION, Appellee. Equal Employment Opportunity Commission, Amicus Curiae.
CourtU.S. Court of Appeals — Fourth Circuit

Alan S. Gold, Philadelphia, Pa. (Narin & Chait, Philadelphia, Pa., Steven P. Resnick, Martha F. Rasin, Bereano & Resnick, Annapolis, Md., on brief), for appellant.

Anne McCully Murphy, Washington, D.C. (Robert J. Smith, Sheryl J. Powers, Morgan, Lewis & Bockius, Washington, D.C. on brief), for appellees.

Peggy R. Mastroianni, Washington, D.C. (David L. Slate, Gen. Counsel, Philip B. Sklover, Associate Gen. Counsel; Vincent Blackwood, Asst. Gen. Counsel, Washington, D.C. on brief), for amicus curiae.

Before PHILLIPS and WILKINSON, Circuit Judges, and BUTZNER, Senior Circuit Judge.

WILKINSON, Circuit Judge:

This is an employment discrimination action brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq. (1982). Plaintiff Thomas J. Ross, employed by defendant Communications Satellite Corporation (hereinafter COMSAT) until his termination on August 24, 1981, complained of sex discrimination by defendant, 42 U.S.C. Sec. 2000e-2(a), and retaliatory harassment and discharge for filing discrimination charges with the Equal Employment Opportunity Commission (EEOC), 42 U.S.C. Sec. 2000e-3(a). Ross sought damages, reinstatement, attorney's fees and costs.

The district court granted summary judgment for COMSAT. It held that plaintiff's retaliatory discharge claim was barred due to the collateral estoppel effect of a Maryland unemployment compensation proceeding involving the same parties, which concluded that Ross had been discharged for misconduct. Plaintiff's remaining sex discrimination and retaliatory harassment claims were found meritless as well. Ross appeals from the grant of summary judgment to COMSAT on his retaliatory discharge and harassment claims. 1 We reverse.

Under controlling Maryland law, ignored by the district court, the Maryland unemployment compensation decision was not entitled to receive collateral estoppel effect in a Title VII action alleging retaliatory discharge. Therefore, we remand to the district court for reconsideration of the propriety of summary judgment under the applicable Title VII standards. Believing a clear explanation necessary of this Circuit's requirements for a plaintiff to prevail in a retaliation action under Title VII, we rule that to disprove a legitimate nondiscriminatory explanation for adverse action offered by the employer, a plaintiff must show that the alleged retaliation would not have occurred "but for" the protected conduct.

I

Ross, a single white male, was employed by COMSAT in its Research and Development Laboratories in Clarksburg, Maryland, from June 8, 1980 until his termination the next year. He held the position of Materials Engineer in the Materials and Process Department, and was under the supervision of Lawrence R. Sparrow, the department manager, who in turn reported to Dr. Edmund S. Rittner, Director of Physical Sciences.

Plaintiff's original sex discrimination claim, now no longer pressed, was that he experienced harassment, intimidation and unequal treatment following his rejection of purported sexual advances made by a female technician employed by COMSAT in another department of the Laboratories. Although supervisors attempted to resolve the conflict between them, Ross remained dissatisfied with the proposed work arrangements. In early February 1981, Ross threatened to file charges of professional misconduct and sexual harassment against the technician. Subsequently, in a meeting to discuss Ross's complaint, Rittner allegedly threatened Ross with discharge because of his attitude. On March 13, 1981, Ross filed his initial sex discrimination charge with the EEOC.

Following the filing of this charge, Ross contends that he experienced harassment by COMSAT superiors. Allegedly, his responsibilities and professional status were reduced, he was denied a performance review and annual salary and benefit increases, an article was printed in COMSAT's News Digest concerning his EEOC charge, and his supervisor Sparrow provided false information about his employment record to other prospective employers. Sparrow, according to Ross, also told one prospective employer, the Applied Physics Laboratory of Johns Hopkins University, that Ross had filed an EEOC charge. Ross's performance evaluations declined from generally favorable in December 1980 and March 1981 to unfavorable in June 1981, at least in part because of his relations with other employees and superiors. On July 8, 1981, Ross filed a retaliation charge with the EEOC.

There is evidence that Ross threatened to "get" Sparrow and Rittner following his unfavorable June performance evaluation, and that he spent substantial portions of his work day complaining to other employees about COMSAT's management and discussing his legal actions. About August 18, 1981, two other COMSAT employees spoke about Ross's EEOC charges with him. During the conversation Ross was asked what he would do if he lost his suit, and Ross responded that he might "blow the place up." The circumstances and seriousness of the threat are in dispute. The employees, however, reported the conversation, and on August 24, 1981, Rittner informed Ross that his employment was terminated because of unacceptable performance and intimidation of other employees. Ross then amended his second EEOC charge on August 26 to allege retaliatory discharge.

After his termination, Ross filed a claim for unemployment compensation with the Maryland Employment Security Administration (ESA). COMSAT contested his claim, and an ESA Claims Examiner found that Ross had been discharged for misconduct, and was therefore disqualified from receiving unemployment benefits for ten weeks, under Md.Code Ann. art. 95A, Sec. 6(c) (1979). Ross appealed that decision, and a de novo hearing was held before an ESA Appeals Referee. The Referee concluded that the "claimant was discharged for misconduct connected with his work within the meaning of Section 6(c) of the Maryland Unemployment Insurance Law," and affirmed the denial of benefits in a May 27, 1982 opinion. Most significant for this case, the Appeals Referee specifically determined in his opinion:

It is not found that the claimant was discharged as an act of sexual discrimination on the part of the employer. The evidence in this unemployment insurance case, without commenting upon what may be the result in his District Court case, does not substantiate the claimant's charge that he was discriminated against on the basis of sex. The employer attempted to insulate the claimant from the source of his problem in the work place resulting from a personal relationship with a co-employee. The claimant did not even attempt to give that arrangement an opportunity to work.

The Appeals Referee does not find that the claimant was fired as an act of retaliation as a result of his complaint to the Maryland OSHA. 2 The claimant was discharged because he had become so involved in his causes that he, on the employer's premises during working hours, was interferring [sic] with co-employees to the point that they felt it necessary to complain to management.

When he introduced a threat of future violence into these conversations, the employer was left with no alternative but to discharge the claimant. The claimant's actions had they been a present threat to do bodily harm or introduce violence into the work place, would have constituted, without question, gross misconduct. But when one considers the circumstances of the claimant in this case, the elements of deliberateness and willfulness are lacking and his actions are, therefore, not gross misconduct. There is no question, however, but that his badgering of his co-employees to the point that they complained does constitute misconduct and did justify his discharge and his disqualification under Section 6(c) of the Maryland Unemployment Insurance Law.

(footnote added).

Ross unsuccessfully appealed the Appeals Referee's decision to the ESA Board of Appeals, and then to the Circuit Court for Baltimore City, which affirmed the Board of Appeals' denial of benefits on September 20, 1983. Ross took no further appeals. The Appeals Referee rendered his decision while this action, filed March 3, 1982, was pending.

The district court turned first to the question of plaintiff's discharge. It specifically held that "the doctrine of collateral estoppel precludes plaintiff from here relitigating the issues (1) whether plaintiff's termination was based on his sex and (2) whether plaintiff was discharged in retaliation for his having filed charges with the EEOC," because it had been "conclusively established in other litigation that plaintiff was discharged because of misconduct." Observing that the issues of sex discrimination and retaliation were properly before the administrative agency, having been raised by plaintiff as alternative explanations for his discharge, the district court ruled that the administrative proceedings offered plaintiff a "full and fair opportunity" to litigate those claims and thus satisfied minimal due process requirements. Thus, the district court declared the following administrative findings binding in this Title VII action:

(1) that plaintiff was not discharged as an act of sexual discrimination on the part of defendant, his employer; (2) that plaintiff was not discriminated against on the basis of his sex; (3) that plaintiff was discharged for misconduct; (4) that, specifically, plaintiff was discharged because he became involved during work hours in his own causes and because he badgered and interfered with co-employees and (5) that defendant had no alternative but to discharge plaintiff when he threatened...

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