Silver v. KCA, Inc.

• Decision Date: 13 November 1978
• Docket Number: No. 76-1413,76-1413
• Parties: 18 Fair Empl.Prac.Cas. 1199, 49 A.L.R.Fed. 703, 18 Empl. Prac. Dec. P 8862 Sandra SILVER, Plaintiff-Appellant, v. KCA, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 138

586 F.2d 138

18 Fair Empl.Prac.Cas. 1199, 49 A.L.R.Fed. 703,

18 Empl. Prac. Dec. P 8862

Sandra SILVER, Plaintiff-Appellant, v. KCA, INC., Defendant-Appellee.

No. 76-1413.

United States Court of Appeals, Ninth Circuit.

Nov. 13, 1978.

Michael H. Weiss (argued), San Francisco, Cal., for plaintiff-appellant.

James H. Quirk (argued), of Brobeck, Phleger & Harrison, San Francisco, Cal., for defendant-appellee.

On Appeal from the United States District Court for the Northern District of California.

Before GOODWIN and HUG, Circuit Judges, and PALMIERI, ^* District Judge.

PALMIERI, District Judge:

This is an appeal from a final judgment and order in an employment discrimination action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e Et seq. The case was tried without a jury and was dismissed at the close of the plaintiff's case. We affirm the judgment of the district court in all respects.

I.

Sandra Silver, a white woman, was employed as an experienced draftswoman by defendant Kirker, Chapman & Associates, now KCA, Inc. (KCA), from May 11 until June 12, 1970. Among her responsibilities were drafting, maintenance of certain drafting equipment, graphics, ordering supplies, and training a draftsman trainee, a black man named John Spencer. Her work was done in a large open area containing work spaces for a number of persons. Among these was one Robert Warrington, an older white man.

On June 9, 1970, Silver found that certain drafting equipment had been left uncleaned and complained out loud to no one in particular that she would have to come in during the weekend to clean it. Warrington responded, "Why don't you let that jungle bunny do it?" and indicated that he was referring to Spencer, Silver's trainee, who was not present. Silver responded that she did not know any "jungle bunnies" and later told Spencer what Warrington had said. That afternoon Silver, Spencer, and a second black employee of KCA confronted Warrington in the coffee room and demanded an apology, which they received.

Two days after this incident, Silver's supervisor, James Lubin, fired her. KCA maintained in answers to interrogatories that the reasons for Silver's discharge were her "low efficiency in relation to compensation" and her excessive conversation during working time. She claims, however, that KCA discharged her in retaliation for her opposition to Warrington's racial slur.

After having been fired, Silver filed an informal charge with the Equal Employment Opportunity Commission (EEOC) on June 15, 1970, and a formal charge on September 29, 1970, alleging a violation of § 704(a) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a). After exhausting her administrative remedies under § 706(f)(1) of the Act, 42 U.S.C. § 2000e-5(f)(1), she commenced this action in the District Court for the Northern District of California. The trial was bifurcated, and the plaintiff presented her case on the issue of liability only. On the defendant's motion, the case was dismissed under Federal Rule of Civil Procedure 41(b), on the ground that Silver had failed to make out a prima facie case of discriminatory discharge for opposition to any act of her employer. The defendant was awarded $61.71 in costs but was denied attorneys' fees.

II.

The issue before this court is a purely legal one. Can an employer's discharge of an employee constitute an unlawful employment practice in violation of § 704(a), ¹ if the basis for the discharge is the employee's opposition to a racially discriminatory act of a co-worker rather than to any unlawful employment practice by the employer? Because we hold that this question must be answered in the negative, we need not consider the sufficiency of the plaintiff's proof that KCA's actual motive in discharging her was a "retaliatory" one. Even if the discharge was entirely based on her response to Warrington's racial slur against Spencer, the defendant did not violate Title VII.

Under § 704(a), an employer's discharge of an employee can violate the section in either of two ways: (1) if the discharge occurs because of the employee's opposition to conduct made an unlawful employment practice by the subchapter, or (2) if it is in retaliation for the employee's participation in the machinery set up by Title VII to enforce its provisions. ² Silver relies primarily on the first clause, arguing that her opposition to Warrington's remark was protected.

By the terms of the statute, however, not every act by an employee in opposition to racial discrimination is protected. The opposition must be directed at an unlawful employment practice of an employer, not an act of discrimination by a private individual. In addition, the means of opposition chosen must be legal, McDonnell Douglas Corp. v. Green, 411 U.S. 792, 803, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and reasonable in view of the employer's interest in maintaining a harmonious and efficient operation, Hochstadt v. Worcester Foundation for Experimental Biology, 545 F.2d 222, 231 (1st Cir. 1976). Silver does not argue here that Warrington's remark can be imputed to KCA under an agency theory. No "practice" of any kind by KCA or by any other employer ³ is thus involved as the subject of Silver's protest, nor is any aspect of the employer-employee relationship. ⁴

Silver argues, nonetheless, that the policy considerations and congressional purposes underlying Title VII require protection of an employee who opposes "a racially derogatory incident." We think she misconstrues the thrust of the statute. The specific evil at which Title VII was directed was not the eradication of all discrimination by private individuals, undesirable though that is, but the eradication of discrimination by employers against employees. The "incident" to which Silver reacted was not conduct of KCA's or conduct for which it was responsible. While Warrington's remark could be construed as a racially derogatory slur, it simply was not the sort of conduct which Title VII was enacted to prohibit. We bear in mind the fact that Title VII must be construed liberally in order to effectuate the broad remedial purpose of Congress "to eliminate the inconvenience, unfairness, and humiliation of ethnic discrimination." Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir. 1971). Were we to follow Silver's argument, however, and extend the protection of the statute to the situation in which no employment practice of an employer was involved, but only an isolated incident between co-workers, we would clearly exceed the intent of Congress and the plain language of the statute. This we cannot do.

Silver relies heavily on cases which hold that a single act may constitute an unlawful employment practice under § 704(a). See, E. g., King v. LaborersInternational Union, Local 818, 443 F.2d 273 (6th Cir. 1971). These cases, however, are inapplicable, for they differ from Silver's in one vital respect: In all of them, the single act which the employee opposed was an act of the employer or another Which constituted an unlawful employment practice. Silver's opposition, by contrast, was expressed to a co-worker about that co-worker's own individual act of discrimination. ⁵ Such "opposition" does not fall within the protection of the Act. ⁶ A single unauthorized act of discrimination by a co-worker has never been held to justify "opposition" in the sense of protecting a protesting employee from employer discipline. Even a continuing course of racial harassment by a co-employee cannot be imputed to the employer unless the latter both knows of it and fails to take remedial action. Howard v. National Cash Register Co., 388 F.Supp. 603 (S.D.Ohio 1975). Here, no evidence was presented to show that KCA or any of its supervisory personnel authorized Warrington's remark or approved of it, either before or after the incident, and Warrington was reprimanded by KCA on the day the incident occurred.

Silver argues that the district court erred in applying the same legal standard to the phrase "unlawful employment practice" under both §§ 703(a)(1) and 704(a). She maintains that the mere similarity of language used in the two sections does not mandate application of the same standard to both. However, the two sections present more than a mere similarity of language. By requiring that an employee's opposition, to be protected, must be to "any practice made an unlawful employment practice by this subchapter," § 704(a) actually incorporates § 703(a)(1) by reference. Confusion may arise from the fact that § 704 defines one unlawful employment practice (discriminating against an employee, E. g., by discharging him) by reference to another (the practice which the discharged employee opposed). Since §§ 703 and 704 define two distinct unlawful employment practices, the former relating to discrimination directly on the ground of (inter alia) race and the latter relating to retaliatory discrimination, their standards necessarily do differ. Nevertheless, under the clear language of the "opposition" clause of § 704(a), a case of retaliation has not been made out unless the "retaliation" relates to the employee's opposition to a § 703 violation.

Silver cites several cases to support her proposition that a § 703(a)(1) "unlawful employment practice" differs from a § 704(a) "unlawful employment practice." Pettway v. American Cast Iron Pipe Co., 411 F.2d 998 (5th Cir. 1969); EEOC v. Kallir, Philips, Ross, Inc., 401 F.Supp. 66 (S.D.N.Y.1975); Bradford v. Sloan Paper Co., 383 F.Supp. 1157 (N.D.Ala.1974); Francis v. American Tel. & Tel. Co., 55 F.R.D. 202 (D.D.C.1972). In all these cases, however, the plaintiff had filed a charge with a governmental agency prior to dismissal, and there was evidence that the employer dismissed the employee in retaliation for doing so. Silver's reliance on these cases, therefore, is misplaced. Language in McDonnell Douglas Corp. v. Green, supra, on which Silver relies, does not contradict this conclusion....