Veprinsky v. Fluor Daniel, Inc.

• Decision Date: 26 June 1996
• Docket Number: No. 95-2197,95-2197
• Citation: 87 F.3d 881
• Parties: 71 Fair Empl.Prac.Cas. (BNA) 170, 68 Empl. Prac. Dec. P 44,140, 65 USLW 2020 Yuri D. VEPRINSKY, Plaintiff-Appellant, v. FLUOR DANIEL, INC. Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 881

87 F.3d 881

71 Fair Empl.Prac.Cas. (BNA) 170,

68 Empl. Prac. Dec. P 44,140, 65 USLW 2020

Yuri D. VEPRINSKY, Plaintiff-Appellant, v. FLUOR DANIEL, INC. Defendant-Appellee.

No. 95-2197.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 23, 1996.

Decided June 26, 1996.

Thomas C. Crooks (argued), Chicago, IL, for plaintiff-appellant.

David J. Rowland (argued), Gloria M. Portela, Elizabeth H. Skalitzky, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, IL, for defendant-appellee.

Gwendolyn Young Reams, Carolyn L. Wheeler, Mary L. Clark, C. Gregory Stewart, E.E.O.C., Office of General Counsel, Washington, DC, for amicus curiae E.E.O.C.

Before RIPPLE, MANION, and ROVNER, Circuit Judges.

ILANA DIAMOND ROVNER, Circuit Judge.

Yuri Veprinsky filed a charge with the Equal Employment Opportunity Commission in 1991 alleging that Fluor Daniel had discharged him from its employ on the basis of his national origin and religion, in violation of Title VII of the Civil Rights Act of 1964. He subsequently alleged in this lawsuit that Fluor Daniel had retaliated against him in several ways for filing the charge. The district court granted summary judgment in favor of Fluor Daniel on two of the retaliation claims and denied Veprinsky leave to add another to his complaint, relying in part upon our perceived holding in Reed v. Shepard, 939 F.2d 484, 493 (7th Cir.1991), that posttermination incidents of retaliation are not actionable under Title VII. See Koelsch v. Beltone Elec. Corp., 46 F.3d 705, 709 (7th Cir.1995). Today we clarify our decision in Reed and hold that post-termination acts of retaliation that adversely affect the plaintiff's employment opportunities or are otherwise related to employment are cognizable under Title VII.

I.

Fluor Daniel hired Veprinsky as an electrical engineer in 1986, but with the exception of a one-week period, Veprinsky rendered no services to the company and was on unpaid status until early 1990, when he was upgraded to full-time employment. In June of 1991, Veprinsky's superiors in the electrical engineering department informed him that he would be terminated effective July 12, 1991, due to a lack of work.

In September 1991, Veprinsky filed a charge with the EEOC alleging that Fluor Daniel had discharged him (and declined his request to be placed on leave of absence status) on the basis of his national origin and religion, in violation of Title VII. Veprinsky hails from Russia and is Jewish. He alleged that Donald Hamady, who supervised him during his final assignment at Fluor Daniel, had made disparaging remarks about foreign-born people in general and about Russians in particular. In addition, Hamady had allegedly told Veprinsky a story about a Turkish colleague whose daughter had married a Jewish person, describing the marriage as "a tragedy in the family."

After the EEOC issued a right-to-sue letter, Veprinsky filed suit in the district court. Ultimately Veprinsky abandoned his claim of religious discrimination. The national origin discrimination claim was tried to Judge Kocoras, who found in favor of Fluor Daniel. Veprinsky does not challenge that finding.

Veprinsky also alleged that, following his discharge, Fluor Daniel took several adverse actions against him in retaliation for having filed the EEOC charge. These included providing false information to Veprinsky's subsequent employer, refusing to consider rehiring him for another position, and informing the placement firm with which Veprinsky was working that he had filed the EEOC charge. Veprinsky also sought leave to amend his complaint to add the further allegation that Fluor Daniel's director of human resources had arranged for an attorney who provided legal services to Fluor Daniel to represent at a reduced rate someone that Veprinsky was suing in an unrelated state court action.

The district court found all but one of these acts of retaliation to be outside the scope of Title VII's coverage. Relying principally upon our opinion in Reed v. Shepard, and a Fourth Circuit opinion citing Reed, Polsby v. Chase, 970 F.2d 1360, 1364-67 (4th Cir.1992), vacated and remanded sub nom. Polsby v. Shalala, 507 U.S. 1048, 113 S.Ct. 1940, 123 L.Ed.2d 646 (1993), the district court reasoned from the premise that Title VII's anti-retaliation provision did not extend to adverse actions taken against former employees. Thus, Veprinsky had no cause of action for retaliation based upon the alleged post-termination provision of inaccurate information to his new employer or the disclosure of the EEOC charge to Veprinsky's placement firm. The court therefore granted summary judgment in favor of Fluor Daniel on these claims. May 4, 1994 Mem. Op. at 12, 1994 WL 174136, at * 5. It likewise denied Veprinsky leave to amend his complaint to add the charge that Fluor Daniel had procured an attorney for his opponent in the state court action, as this too post-dated Veprinsky's discharge. R. 33, Dec. 2, 1993 Minute Order.

Retaliation could be alleged for Fluor Daniel's refusal to rehire Veprinsky, the district court reasoned, because in that setting Veprinsky was an "applicant for employment" and thus within the express coverage of the statute. Mem. Op. at 12, 1994 WL 174136, at * 5. Pollak & Skan, a firm specializing in placing temporary technical personnel, had submitted Veprinsky's resume to Fluor Daniel for the position of design engineer, along with the resumes of two other persons. None of the three was offered an interview. Pollak & Skan's Rory Lent subsequently had a conversation with Garry Tackett of Fluor Daniel's recruiting subsidiary to find out why. Lent's notes from that conversation attribute the following remarks to Tackett:

Said Willy Walls was not a designer, Webster not a designer--both did drafting only. Verpinsky [sic] a no--said he's suing Fluor because of religion when he was there last time.

Lent Dep. 20, 34 & Group Ex. 2. Tackett told an EEOC interviewer in 1992 that he had never discussed Veprinsky's EEOC charge with anyone outside Fluor Daniel's human resources department and that he did not recall any conversation with Lent. Later, however, Tackett acknowledged that he had mentioned the EEOC charge to Lent, but denied that he had identified it as a reason for the decision not to interview Veprinsky. The real reason he had rejected Veprinsky as a candidate, Tackett maintained, was that his resume did not reveal a familiarity with AutoCAD, a software design package used to create computerized drawings, and the company had deemed such familiarity a job requirement. Tackett insisted that he had conveyed Veprinsky's lack of qualification to Lent as the reason for the rejection; the EEOC charge was mentioned only as an afterthought.

The district court found the company entitled to summary judgment on this claim because Veprinsky had failed to rebut the evidence that Fluor Daniel had turned him down for a legitimate reason, namely his apparent lack of familiarity with AutoCAD. An employment requisition form that Fluor Daniel had submitted to Pollak & Skan confirmed that the company was indeed seeking someone with AutoCAD experience. Veprinsky averred that he in fact was familiar with AutoCAD, although he had not so indicated on his resume. Veprinsky also pointed out that the resume of the candidate who ultimately was offered the job, John Tassie, merely indicated that Tassie had purchased a computer in order to acquire a working knowledge of AutoCAD, not that Tassie was proficient in computer-aided design. Still, the district court was convinced that Fluor Daniel could have legitimately rejected anyone, including Veprinsky, whose resume (in contrast to Tassie's) did not affirmatively indicate at least some familiarity with AutoCAD. Veprinsky's failure to rebut that proposition left the record void of any evidence from which one could infer that his EEOC charge had been the reason for Fluor Daniel's decision not to re-hire him. Mem. Op. at 12-14, 1994 WL 174136, at * 5-* 6.

From these adverse rulings as to his claims of retaliation, Veprinsky has appealed.

II.

The relevant provision of Title VII, section 704(a), 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 subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding or hearing under this subchapter.

42 U.S.C. § 2000e-3(a). With "magnificent circularity" (Broussard v. L.H. Bossier, Inc., 789 F.2d 1158, 1160 (5th Cir.1986) (per curiam)), Title VII defines "employee" as "an individual employed by an employer." § 2000e(f). Because neither section 704(a) nor the definition of "employee" expressly includes former employees, a literal reading of the statute would exclude them from coverage for acts of retaliation.

However, the majority of circuits have concluded that former employees are protected from acts of retaliation, under Title VII as well as the parallel provisions of the Age Discrimination in Employment Act, 29 U.S.C. § 623(d), ¹ and the Fair Labor Standards Act, 29 U.S.C. § 215(a)(3). ² See Berry v. Stevinson Chevrolet, 74 F.3d 980, 985 (10th Cir.1996) (Title VII) (reaffirming Rutherford v. American Bank of Commerce, 565 F.2d 1162, 1165-66 (10th Cir.1977) (Title VII)); Nelson v. Upsala College, 51 F.3d 383, 386-89 (3d Cir.1995) (Title VII); Charlton v. Paramus Bd. of Educ., 25 F.3d 194, 200 (3d Cir.) (Title VII), cert. denied, --- U.S. ----, 115 S.Ct. 590, 130 L.Ed.2d 503 (1994); EEOC v. J.M. Huber Corp., 927 F.2d 1322, 1331 & n. 41 (5th Cir.1991) (Title VII) (following EEOC v. Cosmair, Inc., L'Oreal Hair Care Div., 821 F.2d 1085, 1088-89 (5th Cir.1987) (ADEA)); Sherman v. Burke Contracting, Inc., 891 F.2d 1527, 1531-32 (11th Cir.1990) (per curiam) (Title VII) (reaffirming Bailey v. USX Corp., 850 F.2d...