Crawford v. Metropolitan Government of Nashville

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Authorship: Darius Graham, Kristina Moore and Kevin Russell

Contents

[edit] Briefs and Documents

Docket: 06-1595

Issue: Whether and to what extent Title VII’s anti-retaliation provision protects employees from being fired for cooperating with an employer’s internal sexual harassment investigation.

Merit briefs

Amicus briefs

Oral Argument: Transcript

Decision: REVERSED AND REMANDED in an opinion by Justice Souter

[edit] Pre-Argument Articles

[edit] Argument Preview

-- Darius Graham

This case stems from petitioner Vicky Crawford’s claims of sexual harassment during her employment with the school district for the Metropolitan Government of Nashville and Davidson County, Tennessee. Prior to this case, Crawford had served as a payroll coordinator for the school system for more than thirty years. In 2001, the school district hired Dr. Gene Hughes as its employee relations director – a position whose responsibilities included investigating complaints of discrimination. Early in the course of his employment, several administrative employees complained of inappropriate behavior by Hughes. Because of the obvious conflict of interest that would arise if Hughes were to investigate complaints against himself, the complaints were investigated by another administrator in the school system’s human resources division.

To conduct the investigation, the investigator asked to interview several employees, including petitioner Vicky Crawford, about their interactions with Hughes. During the interview, Crawford disclosed that Hughes had sexually harassed her and other employees; three other employees made similar allegations. After making these allegations, all four employees were terminated: Crawford, for example, was terminated in January 2003 based on charges of embezzlement and drug use that, according to Crawford, were “ultimately found to be unfounded.” After her termination, Crawford filed a discrimination complaint with the EEOC and subsequently received a “right to sue” notice.

Crawford then filed suit under the non-retaliation provision of Title VII, which protects an employee who participates in an investigation in connection with a pending EEOC charge. Title VII provides two standards for bringing a retaliation claim: the opposition clause and the participation clause. The standards set forth in these clauses provide:

It shall be an unlawful employment practice for an employer to discriminate against any of [its] employees…because [the employee] has opposed any practice made an unlawful employment practice by this subchapter [(“the opposition clause”)], or because [the employee] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter [(“the participation clause”)].

Thus, for Crawford to prevail, she was required to show that (1) she engaged in protected activity; (2) the school district knew that she engaged in this protected activity; (3) the school district took an employment action adverse to her; and (4) there is a causal connection between the protected activity and the adverse employment action. The district court granted the defense’s motion for summary judgment. It emphasized first that the investigation in which Crawford participated was not held pursuant to a pending EEOC charge. Moreover, it observed, Crawford’s mere participation in the internal investigation was not enough to invoke the protections of Title VII; to the contrary, Title VII protection would be available only if she were the employee who initiated the complaints, rather than simply one of the witnesses.

On appeal, the Sixth Circuit affirmed. Specifically, it rejected Crawford’s claim that her actions during the internal investigation constituted both opposition to a practice made unlawful by Title VII and participation in an investigation under Title VII.

First, addressing Crawford’s argument that her participation in the investigation constituted opposition under Title VII, the court concluded that Crawford’s actions were insufficient to constitute opposition. “The general idea,” it explained, “is that Title VII demands active, consistent opposing activities to warrant…protection against retaliation.” Such activities, the court had previously held, included complaining about unlawful practices, refusing to obey an order believed to be unlawful under Title VII, and opposing unlawful acts by persons other than the employer. Because merely being interviewed by the investigator simply was not enough to constitute opposition and invoke the protections of Title VII, the court reasoned, the school district could terminate the employees who had merely participated in the internal investigation (although not the one who initiated it).

Second, turning to Crawford’s argument that her mere participation in the internal investigation was protected by Title VII, the court reasoned that participation in an internal investigation is not protected by Title VII unless there is a pending EEOC charge. Because the investigation of Hughes was simply an internal investigation that occurred without any concurrent EEOC charge, Crawford’s participation was not protected by Title VII. The court rejected Crawford’s argument that requiring a pending EEOC charge would discourage employee participation in internal investigations, because the employees would not be protected by Title VII. To the contrary, the court concluded, requiring a pending EEOC charge “prevents the burden of Title VII from falling on an employer who proactively chooses to launch an internal investigation,” and “expanding the purview of the participation clause to cover such investigations would simultaneously discourage them.”

[edit] Petition for Certiorari

-- Darius Graham

The petitioner offers several reasons for granting certiorari. First among them is the challenge that the Sixth Circuit’s ruling creates in enforcing Title VII. Crawford points out that although the Sixth Circuit holds that employees who serve as witnesses in an internal investigation are not protected by Title VII, the EEOC has taken the opposite position: its Compliance Manual provides that “an employee who assists his/her employer in this endeavor is, by definition, opposing practices made unlawful by Title VII.” And although the Sixth Circuit requires a pending EEOC charge for a witness in an investigation to be protected by Title VII, the EEOC has asserted that the participation clause can be satisfied by “cooperating with an internal investigation of alleged discriminatory practices; or…serving as a witness in an EEO[C] investigation.” Thus, the Sixth Circuit’s ruling creates confusion and uncertainty because the Sixth Circuit and the EEOC hold opposing views on when Title VII can be enforced.

Crawford next argues that certiorari is warranted because the Sixth Circuit’s ruling deviates from similar cases in other courts of appeals. For example, in a case in which an employee offered to serve as a witness in connection with an in-house investigation and was retaliated against, the Third Circuit held that “cooperation in the complaints of…other individuals constituted protected activity,” while the Fifth Circuit has held that testimony at a grievance hearing of another city employee was protected under Title VII. Similarly, the Eighth Circuit has held that “answering questions from ‘internal-affairs investigators’ concerning alleged sexual harassment, and responding to questions from the press about that problem, constituted protected activities.” Moreover, Crawford notes, the Seventh Circuit has rejected the Sixth Circuit’s holding that the opposition clause only protects active opposition, rather than mere participation in an investigation).

Finally, Crawford asserts that if the Sixth Circuit’s holding is permitted to stand, it will discourage employee participation in internal investigations, resulting in an employer being unable to remedy a valid complaint. This scenario, Crawford argues, would encourage employees to bypass their employer’s internal complaint system and instead immediately file a complaint with the EEOC, “significantly increas[ing] the caseload of an already over-burdened EEOC.”

The Metropolitan Government makes three main arguments against granting certiorari. First, it refutes Crawford’s contention that deference should be given to the EEOC’s interpretation of the participation and opposition clauses of Title VII. Instead, it notes, the Supreme Court has in numerous decisions declined to defer to EEOC policy pronouncements that it viewed as conflicting with the law. And although EEOC asserts that participation in an internal investigation – irrespective of whether there is a pending EEOC charge – satisfies the participation clause of Title VII, respondent emphasizes that the courts of appeals unanimously disagree with the EEOC and have instead held that Title VII’s participation clause is satisfied only when there is a pending EEOC charge. Thus, respondent argues, no deference should be given to the EEOC because its policy pronouncements go against the law.

Second, the Metropolitan Government argues that because the circuits unanimously reject Crawford’s participation clause claim, she has resorted to arguing that her participation in her employer’s internal investigation satisfies the opposition clause. However, respondent explains, Crawford’s actions do not constitute “opposition” necessary to satisfy Title VII. Among other things, the Government cites a litany of cases in which courts construed “opposition” to include “plaintiffs engaged in opposition conduct because they consciously took affirmative steps to report conduct they reasonably thought was unlawful under Title VII” – a standard that, according to respondent, Crawford’s actions just do not meet.

Third and finally, the Metropolitan Government refutes Crawford’s claim that allowing the Sixth Circuit ruling to stand would lead employees to not participate in internal investigations out of fear of retaliation. Moreover, Crawford’s argument that the Sixth Circuit’s ruling will encourage employers to retaliate against employees participating in internal investigations also lacks merit. The Government points out that such a “foreboding scenario” has not happened since the Sixth Circuit’s ruling, and that it is unlikely to occur in the future.

[edit] Merits Briefing

-- Darius Graham

In her merits brief, Crawford reiterates the arguments presented in her cert. petition. As before, she argues two main points. First, she again contends that her participation in her employer’s internal investigation constitutes “participation” for purposes of Title VII because a pending EEOC charge is not required for the protections of the participation clause to be available. Moreover, she argues, including an employer’s internal investigations is essential to the proper implementation of Title VII. Second, she emphasizes that her participation in her employer’s internal investigation constitutes “opposition” for purposes of Title VII. In this respect, Crawford urges the Court to hold that her participation in the internal investigation constitutes the kind of “active, consistent opposing activities to warrant…protection against retaliation” that Title VII requires for it to apply.

In its brief on the merits, the Metropolitan Government begins by seeking to refute Crawford’s claim that her participation in the internal investigation satisfies the participation clause of Title VII. The Government explains that the plain meaning of the provision protects only participation undertaken pursuant to a pending EEOC charge, noting that Congress’s use of the word “investigation” in the participation clause could only have meant an investigation related to an EEOC charge. Turning to Crawford’s claim that her participation in the internal investigation satisfies the opposition clause of Title VII, the Government again provides a litany of cases and reasons to support its argument that her mere participation in the investigation is not true “opposition.” Respondent concludes by urging the Court not to defer to the EEOC’s policy pronouncements on the matter – which, it points out, are contrary to current interpretations of Title VII.

[edit] Oral Argument Recap

--Kristina Moore

While it remains to be seen whether the justices will decide only the question presented or will instead generally broaden the anti-retaliation statute, their comments and questions pointed toward a strong ruling in favor of employee protection.

Argument for petitioner Vicky S. Crawford, a former employee of the Nashville school system, was divided between her counsel, University of Washington law professor Eric Schnapper, and Lisa Blatt, an Assistant to the Solicitor General who argued on behalf of the United States as amicus curiae. Petitioner’s argument revolved around two points: whether her conduct — cooperating with an internal sexual harassment investigation against a superior — constituted “opposition” protected by the first clause of Section 704(a) of Title VII; and whether the investigation in this situation can be defined as a Title VII investigation protected by the participation clause. Of the three provisions of the opposition clause, Crawford’s claim limits itself to the question that her conduct was in the nature of opposition.

Represented by Assistant Metropolitan Attorney for Nashville, Francis H. Young, the respondent Metropolitan Government of Nashville and Davidson County contends that cooperating with a sexual harassment investigation should not be protected by either the opposition or the protection clause. The Metropolitan Government’s view is that the active definition of “oppose” — to react against a specific action — is the only one covered under the opposition clause; however, if Crawford had later brought a sexual harassment claim, this would “retroactively imbue the initial disclosure with an opposition quality,” Young said.

Justice Stevens vigorously argued with Young that Crawford’s actions did count as opposition, emphasizing her statement “Get the hell out of my office,” which provoked laughter on the Court.

Across the board, the Court seemed to agree that such a strict standard was preposterous based on the facts of this case-in which Crawford had articulated her victimization by the individual under investigation and expressed her strong disapproval of his behavior during the investigation, but had never brought a formal claim against him. (As Blatt reiterated, Crawford would not have had a cause of action for discrimination because she had not complained to the EEOC under the required time frame.) But the justices continued to push Schnapper and Blatt to define the limits of their proposition.

In petitioner’s view, “opposition” exists when “a reasonable person would conclude from the employee’s statement or conduct that the employee disapproved of or objected to the employment practice in question.” Such opposition need not be in reference to a specific action, but could simply be wearing a button or stating an opinion related to Title VII activity.

Justice Souter questioned whether any worker who was coincidentally dismissed around the time of a sexual harassment investigation might claim retaliation based solely on her belief that “sexual harassment is bad.” Justice Breyer asked if the EEOC’s standard — that an employee may sufficiently believe she is opposing a Title VII illegal practice by providing information in an employer-initiated investigation of an alleged discrimination — should be followed; when the petitioner’s counsel responded that such a definition would be “fine with us,” Justice Scalia quickly quipped, “it wouldn’t be fine with me.” Justices Breyer and Souter most frequently cited the EEOC’s manual on compliance, indicating that they may defer to the agency’s definitions of “oppose.”

Also under consideration was the distinction between the participation and opposition clauses, and whether someone who gave exculpatory or favorable evidence in an internal investigation would also be protected from retaliation.

Justice Scalia posed a hypothetical about an employee who participated in a harassment investigation but approved of this behavior, asking whether that “world class sexual harasser” would be protected under the opposition clause. Schnapper attempted to describe how anyone giving testimony favorable to the person under investigation would be protected by the participation clause rather than the opposition clause, but Justice Ginsburg continued to push discussion back to the specifics of the case. Justice Ginsburg emphasized three times throughout the argument that it was unnecessary to rule outside the case, but did not state any opposition or skepticism about broadening the implications of the participation clause.

Through further probing by the Chief Justice, Schnapper advanced the argument that this case falls under both the participation and opposition clause, but that the provisions overlap to provide the strongest protection in those cases in which an employee opposes without participating or participates without opposing.

Justice Alito and the Chief Justice questioned whether expansion of the clauses’ protections would make either participation or opposition clauses redundant and seemed satisfied by petitioner’s argument that it would not. Opposing may be a broader protection than participating, depending on how far outside the case the Court decides to venture, the Chief Justice said.

Blatt suggested that the justices could narrow their holding by ruling just on the facts of this case — that Crawford’s behavior was protected by the opposition clause — but that the option to determine the scope of the participation clause also remained in defining an “investigation.” She emphasized that the Sixth Circuit, in dismissing the case on summary judgment, had left “a gaping hole in statutory coverage” for witnesses in internal investigations.

On the broader ruling on the participation clause, petitioner contended that to qualify as an investigation (a) the employer must previously have an anti-discrimination policy in place; and (b) the individual conducting the investigation must have been specifically authorized by the employer to do so. Arguing for the Metropolitan Government, Young countered that an internal investigation does not fall under Title VII, but drew skepticism from the entire bench based on the Court’s holdings in Faragher v. Boca Raton (1998) and Burlington v. Ellerth (1998), which required an employer either to conduct an internal investigation as part of the EEOC process or face respondeat superior liability. Souter strongly questioned why it would be reasonable for the Court to construe the statute to exclude coverage of people who under Faragher and Ellerth are supposed to come forward during internal investigations.

After the Court discussed with Young the plaintiff incentives or costs in incurring retaliation lawsuits, Schnapper offered further support on rebuttal for an elastic definition of “investigations under this title” and emphasized the importance of internal investigations to stop sexual harassment and bring justice for its victims. In the lower courts and the Supreme Court, he said, the plaintiffs have often been fired, forced out of their jobs, or simply quit before their harassment claims got to the EEOC.

Based on the justices’ line of questioning, there seems to be little doubt that they will hold that Crawford’s participation falls under the opposition clause, which would allow employees who comply with investigations but do not bring a sexual harassment claim themselves to sue if they are later fired with the belief that this compliance contributed to their termination. On a more sweeping measure that would define an internal employer investigation as a Title VII investigation, a majority ruling seems likely but is not guaranteed.

[edit] Opinion Analysis

Kevin Russell originally wrote the following for SCOTUSblog.

The unanimous decision in Crawford v. Metropolitan Gov’t of Nashville and Davidson County, No. 06-1595, is another in a series of recent cases in which the Court has turned away requests to narrowly construe anti-retaliation provisions, generally by large margins.
The case arose when an employer, investigating rumors of sexual harassment by a supervisor, asked the petitioner, Vicky Crawford, whether she’d witnessed any inappropriate behavior. In fact she had, and she proceeded to tell the employer about a series of harassing acts by the supervisor toward herself. The employer did nothing to discipline the supervisor and, instead, fired Crawford and two other employees who also reported being harassed by the supervisor. Crawford filed suit under Title VII’s anti-retaliation provision, which prohibits an employer from terminating a worker because she “has opposed any practice made an unlawful employment practice by this subchapter.”

The question before the Supreme Court was whether simply disclosing an act of harassment in answer to a question constitutes “oppos[ing]” an unlawful practice, or whether - as the court of appeals had held - opposition within the meaning of the provisions requires something more assertive.

The Court unanimously concluded that the ordinary meaning of “oppose” includes giving a “disapproving account” of unlawful behavior, even if the employee takes no further action on her own to seek to stop or remedy the conduct. Accepting the rule set forth in the EEOC’s Compliance Manual, the Court concluded that “When an employee communicates to her employer a belief that the employer has engaged in . . . a form of employment discrimination, that communication virtually always constitutes the employee’s opposition to the activity.” The Court held open the possibility of “eccentric cases” in which the employee makes clear his approval of the conduct in conveying the information (for example, describing a racist joke as hilarious probably wouldn’t count as opposing the joke-telling).

The Court found that a contrary rule that required the worker to engage in “active, consistent” behavior in order to engage in protected opposition would be inconsistent with common usage - the Court noted, for example, that one can “oppose capital punishment” without doing anything active to end it - and that the contrary understanding would produce a “freakish rule protecting an employee who reports discrimination on her own initiative but not one who reports the same discrimination in the same words when her boss asks a question.”

Justices Alito and Thomas concurred, joining the majority opinion, but writing separately to warn against reading that opinion too broadly. They were particularly concerned that the Court’s opinion could be read to suggest that the statute protects merely opposing a practice in principle (like opposing capital punishment) without taking any action at all to express that opposition. In their view, covered opposition must be “active and purposive.”

It is interesting that Justice Souter’s opinion neither makes that point itself - which presumably would have eliminated the need for the concurrence - nor addresses why the concurring Justices’ concerns are misplaced. (And, for that matter, it is a little curious that none of the other Justices chose to join the concurrence). Could it be that some members of the Court would be willing to hold that unspoken opposition could be a basis for a claim? That would make this a very broad protection indeed (and is, according to Justice Alito’s concurrence, beyond even what the plaintiff in this case advocated).

So does this decision indicate a pro-plaintiff trend emerging on the Court? I don’t think so. It is useful to reflect on the fact that in a number of the recent Court victories for civil rights plaintiffs, the Bush Administration filed in support of the plaintiff (including in this case, and CBOCS v. Humphries, FedEx v. Holowecki, and Meacham v. KAPL from last Term). This reflects, I think, that many of the recent victories (including this one) were instance of the Court was batting down outlier decisions in the circuits, rather than breaking substantial new ground in favor of workers. Nonetheless, the decision does show once again that assertions that the Roberts Court is irretrievably pro-employer are substantially overblown.

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[edit] Podcasts

Ohio State Law Professor L. Camille Hebert discusses this case in this 12-minute podcast.

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