Charles T. Robinson, Sr., Equal Employment Opportunity Commission, Amicus Curiae v. Shell Oil Company

with the extent the district court’s down- son, condemned the lower Fifth Circuit Consequently, departure. ward we cannot accepting the Govern- policy of court’s stated level, decision reduce departure review the district court’s to be- recommended ment’s twenty- Hill’s independent by level levels has an offense two to the district court cause question propriety case.18 we investigate each defendant’s one. Nor shall duty to Having criti- ar- Similarly, King, forty-six the Third Circuit Hill’s month sentence. range, the practice departing appropriate guideline rived at an district court’s cized a three levels substantial-as- district court had the discretion sentence downward conducting anywhere “an imprisonment indi- Hill to cases without a term sistance range, including forty-six of the inci- qualitative examination within that vidualized cooperation.”19 The month maximum.21 of the defendant’s dents applied § in- had 5K1.1 district courts thus DISMISSED. King, correctly sentencing Johnson and 3742(a) therefore afford- respectively, and right appeal extent of the them a

ed departures. downward question decided in reaching the Without King, we note the district Johnson here did conduct an “individualized court cooperation. qualitative of Hill’s examination” agent’s an FBI de- It heard and credited ROBINSON, Sr., T. Charles testimony concerning “truthful and tailed Plaintiff-Appellant, provided. that Hill information verifiable” assistance,” Employment Opportunity Equal “invaluable Because Hill’s Commission, Amicus prosecutors had obtained court learned that Curiae, progressing and were toward two convictions suspects. of two other indictments proper only COMPANY,

Not did the district OIL SHELL assistance, taking Defendant-Appellee. into ly consider Hill’s sentence, unexpired Hill’s Texas account No. 93-1562. offense, imposed was which was for a related 5G1.3(b) required improper. not Appeals, United States Court sentence, it Carolina that whatever South Fourth Circuit. concurrently imposed run must “be Sept. 1995. Argued Moreover, undischarged concurrent term.” 5G1.3(b) sentencing protected Hill 29, 1995. Decided Nov. length his sentence having the

“against multiplied duplicative consideration criminal conduct.”20 same

III. Hill’s sen concluded that We have appli not from an incorrect tence did result Rather, Sentencing Guidelines. cation dissatisfaction appeal boils down his his Jones, Johnson, F.3d States v. 10. 21. United 33 F.3d at 18. 1994) (holding § does authorize Cir. underlying appellate review of district court's King, 53 at 591. 19. imposed factfinding so as the sentence range); States, - U.S. -, -, guideline properly within a calculated 20. Witte v. United Porter, (1995). L.Ed.2d 351 employment” who have either availed protections Title VII’s or as- themselves of doing. in so U.S.C.A. sisted others 2000e-3(a) (West Subsection 2000e(f) “employee” as VII defines Title employed by employer.” individual “an 2000e(f) 1994). (West The See U.S.C.A. banc is whether the issue before the en court “employees” includes former not. We conclude it does ees.

I. (Shell) Company terminated

Shell Oil (Robinson) from T. its em- Charles Robinson Lenehek, Allen Martin Wash- ARGUED: thereafter, Shortly Robin- ployment DC, Appellant. John Foster ington, for Equal Employ- charge with son filed Suhre, Opportunity Equal Employment (EEOC), Opportunity al- ment Commission Commission, DC, Washington, for Amicus him had terminated because leging that Shell Butler, Christopher Lawrence Curiae. pending, charge race. of his While Houston, TX, Appellee. BRIEF: for ON job applied for a with another com- Robinson Jr., Deputy Coun- Neely, R. General James Shell, Robinson’s for- pany that contacted Reams, Young sel, Gwendolyn Associate employer, for an reference. mer Blackwood, Counsel, As- Vincent J. General Robinson, gave him a According to Shell Counsel, Employment Equal sistant General Robinson attributed the negative reference. DC, Commission, Washington, Opportunity re- intention to negative reference Shell’s Amicus Curiae. for filing against him for the EEOC taliate charge. ERVIN, Judge, Chief and Before WIDENER, HALL,

RUSSELL, this subsequently filed action. Robinson NIEMEYER, MURNAGHAN, WILKINS, complaint alleged that he after Robinson’s HAMILTON, LUTTIG, WILLIAMS, charge against and race filed a discrimination EEOC, MICHAEL, provided “false Judges. with the Shell Circuit Shell negative job references information and Judge by published opinion. Affirmed (J.A. 6). employers.” perspective [sic] opinion, wrote which HAMILTON alleged that such action complaint further WIDENER, WILKINS, RUSSELL, Judges Title provision of violated anti-retaliation LUTTIG, NIEMEYER, WILLIAMS and Rights see Act of VII of the Civil dissenting joined. Judge HALL wrote a 2000e-3(a) (West U.S.C.A. and Judge in which Chief ERVIN opinion, provision of Contending the anti-retaliation joined. Judge Judge MICHAEL employees provide former VII does not dissenting also wrote a MURNAGHAN em- against their former a cause action joined. ERVIN Judge opinion, which Chief post-employment ployers Judge did Judge WILKINSON and MOTZ complaint on the moved dismiss the Shell participate in this case. not upon claim ground that failed to state a it Fed. granted, see relief could which OPINION motion, 12(b)(6). support R.Civ.P. HAMILTON, Judge: Circuit Chase, Polsby cited v. Shell (4th Cir.1992), held the anti-retali- which of the Civil of Title VII apply provision of Title VII does (commonly to as ation Act referred Rights of 1964 motion, Upon employees. Shell’s provision) makes former anti-retaliation Title VII’s complaint. Sub- district dismissed employer to discriminate unlawful “for an summarily va- Supreme sequently, the Court applicants his against — Shalala, Polsby Polsby. apply eated the law that enacted. Ac -, must, cordingly, begin, 123 L.Ed.2d 646 “[w]e U.S. S.Ct. as we exam (1993).1 ining statutory language, bearing in mind give legislative that we should effect to the appealed to this court. A divid- Robinson expressed language.” will as in the United panel judgment ed of this court reversed Murphy, States v. court, of the district see Robinson v. Shell — Cir.1994), denied, -, cert. Co., 93-1562, No. 1995 WL 25831 Oil (1995) (citing K 1995) (designated January publi- Cir. Cartier, Inc., 281, 291, Corp. Mart 486 U.S. but, cation, reported), sug- on but not Shell’s 1811, 1817, 100 (1988)). L.Ed.2d 313 gestion, panel decision we vacated In examining statutory language, generally, en banc. affirm. reheard the case We now given usage, words are their common are not into “[c]ourts free to read the lan II. there, guage what is not but rather should 704(a) of Title the VII of Civil apply the statute as written.” Id. We must Rights provides pertinent part: Act of 1964 in acknowledge duty that the of this court is to (a) shall be an unlawful It faithfully statutory adhere to the rules of practice employer for an to discriminate interpretation rather than to “exercise[ ] against any applicants of his or high degree ingenuity of in the effort to find employment ... because he has made justification wrenching from the words of testified, assisted, participated or charge, meaning literally they a statute a which did any investigation, proceed- in in an manner in escape consequences not bear order to ing, hearing subchapter. under this thought great to be absurd or to entail hard (West 2000e-3(a) 1994) (em- 42 U.S.C.A. Harrelson, 55, 60, ship.” Crooks v. 282 U.S. added). phasis reviewing propriety In the of (1930). 49, 50, 51 S.Ct. 75 L.Ed. 156 the court’s dismissal of Robinson’s district

complaint, apply our task is to Title VII’s If a statute defines a in term its provision to the facts anti-retaliation before section, definitional then that definition con regarding appli- the dispute us. The correct meaning trols the of the term wherever it scope on the of the term “em- cation centers appears in Dep’t the statute. See Florida of ployees.” Robinson asserts the term “em- Banking & Fin. v. Board Governors former, current, ployees” includes as well as (11th 1534, Sys., Fed. Reserve F.2d 800 1536 Robinson, employees. According to this in- Cir.1986) (definition in of term definitional terpretation gives favorable it ef- because section of statute controls construction wher statute), purpose fect to the remedial of Title VII to appears throughout ever that term illegal discrimination in the eradicate work denied, 1013, rt. 481 U.S. 107 S.Ct. ce place. Conversely, relying plain on the lan- (1987). 1887, general 95 L.Ed.2d 494 As a statute, guage of the Shell asserts that the rule “[a] definition which declares what a only term includes current em- ... meaning means excludes ployees. Sutherland, George is not 2A stated.” Stat 47.07, Statutory utes and Construction

A. (5th ed.1992) added). (emphasis 152 Initially, helpful lay it is out the inquiry all too familiar framework inter Our must cease if the statu “

pretation. charged duty tory language unambiguous are with the Courts and ‘the stat- judg- Supreme Supreme any way vacated Court this court’s Court in addressed the Polsby present Polsby ment in and remanded the case to this merits issue or concluded light legally Dep't court "for further consideration of the to be incorrect. See United States position Acting asserted Solicitor General Health & Human Servs. v. Federal Labor Rela Auth., 5, 578, in his brief for the United States filed March tions 581-82 & n.2 - Shalala, -, 1992) (adopting reasoning Polsby opinion U.S. 1993.” 113 Cir. of vacated 1940, issue). (1993). S.Ct. Because where vacatur did not address the action, Supreme Polsby light Supreme Court vacated on this Court’s we write on ground, meaningful argument can made a clean slate. no be

329 contrary clearly ex intent must been and consistent.’” utory is coherent scheme body. (quoting pressed legislative United See Russel at 145 Murphy, 35 F.3d Enters., Inc., States, 16, 20, 104 489 Ron Pair U.S. lo v. 464 U.S. S.Ct. States v. United 1026, 1030, 240-41, (1983). 298-99, 103 17 Most 78 L.Ed.2d words, (1989)). if In other expressed 290 absence of importantly, L.Ed.2d “ statutory language intent, and admits ‘is Congressional we must assume duty of inter- meaning, the no more than one convey language’s intended to arise, rules and the which pretation does ordinary meaning. See United States meanings C., need no discus- Dubin, are to aid doubtful Goldberger P. & (quoting (2d v. United Cir.1991) (“The sion.’” Id. Caminetti words of statute should 192, 194, 470, 485, States, 242 U.S. S.Ct. given meaning normal and effect their (1917)). language being “The 61 L.Ed. meaning showing absence of that some “within the constitutional facially clear and intended.”); Stokley, States v. United law-making body authority Cir.1989) which (“In it, of the courts is passed sole function indication, contrary of a the court absence according Id. terms.’” enforce the drafters a statute intend must assume Caminetti, (quoting convey ordinary ed to attached at language.”). to the however, are, narrow There rare and plain language If of the statute may stray beyond exceptions when courts ambiguous, may beyond then look is a court unambiguous statutes. plain language of language legislative history plain to the if circumstance arises the literal Id. One such guidance. See States Southern for United statutory language of would lead application Corp., Management Crooks, 282 at to an absurd result. See Cir.1992) (recognizing that should look courts however, 59-60, Only, at 50-51. legislative if the of intent to other sources exceptional circumstances” “under rare and convey statutory language a clear does application of courts find that literal statu do meaning). an tory language lead to absurd result. would analyt- of this well-established Observant cases, In such Id. at statutory analysis, for we now ical framework absurdity gross be so to shock the “must turn to the statute at hand. And, there general moral or common sense. [Congress’ something plain must to make B. statute is not to that the letter of the

intent] omitted). (internal Id. prevail.” citations Title anti- deciding whether VII’s em provision provides a former permitting retaliation Another circumstance against former plain ployee a cause of action his beyond meaning look courts to post-employment we statutory language employer for unambiguous arises if lit statutory language unambiguously statutory language find application of the eral First, “no.” look at demonstrably question we answers the produce a result odds would cases, Congress “It be an language used: shall in Congress; intent of such with the employ an employment practice for unlawful Congress rather than strict the intent Enters., any employ against discriminate of his Ron er to language controls. See Pair (“The employment ... be applicants ees or U.S. at 109 S.Ct. at for testified, charge, assist he made a meaning legislation be conclu cause has plain should ed, sive, any in inves participated or manner an except eases [in which] in the rare hearing this proceeding, or produce tigation, will application statute literal 2000e-3(a) § subchapter.” U.S.C.A. demonstrably the inten at odds with result added). (West 1994) eases, (emphasis Subsection In such tions its drafters. 2000e(f) drafters, “employee” purposes for than the defines rather intention controls.”) (internal “an individual quotation provisions all of Title VII as language strict omitted). by employer.” an employed U.S.C.A. To come within marks and citation 2000e(f) (West 1994). however, pari mate- Read in exception, of this the ambit ria, provide these sections of Title longer employs VII to mean “one who no remedy of retaliation for acts Accordingly, reject services of others.” we applicants any who have language notion Title VII’s pro- either themselves of Title availed VII’s “employee” ambigu- definition of the term is doing. others in so tections assisted ous. 2000e(f) language Because the in Title VII’s defini-

Although subsection defines the “employee” ambiguous, any tion of is not “employee” employed as “an individual attempt contends, legislative history to resort employer,” an Robinson rather Murphy, foreclosed. See 35 F.3d at 145. remarkably, “employees” the term Therefore, apply this court is bound to liter- provision used Title VII’s anti-retaliation ally the term in Title VII’s anti- employees.” means “former His contention retaliation Congress as defined legally untenable. Title VII defines “em- 2000e(f) in subsection without ployee” examination of purposes provisions of all of Title intent, VII; thus, legislative other sources of unless that definition controls the mean- application such excep- falls within one of the ing “employee” appears wherever application. tions to literal Id. throughout Dep’t the statute. Florida See Fin., Banking & 800 F.2d at 1536. Because Here, exception applies neither because “employee” does not define VII as an require Congress both to have made longer employed by individual no that it intended a result different than literal er, then, under the rules of con- Indeed, application produce. would the ab- struction, meaning is excluded as a any language sence of in Title VII’s anti- “employee.” from the term provision referring retaliation to former em- 47.07, Statutory Statutes and Construction ployees strong evidence that did simply prohibited at 152. We are from read- protect not intend Title toVTI former em- ing language of into the clear the definition ployees. Additionally, Congress’ inclusion of “employee” Congress that which did not “applicants employment” persons as dis- Murphy, include. See 35 F.3d at 145. If “employees,” coupled tinct from with its fail- Congress remedy intended Title VII to dis- employees,” ure to likewise include “former beyond employment crimination relation- strong Congressional is evidence of intent ship, easily then it could have done so “employees” that the term in Title VII’s anti- including employee” defining “former when provision retaliation does not include former “employee.” the term employees. applicable exception With no prevent application literal of the words Con- language comprising Neither is the Title chose, hold, must, gress we as we (“an “employee” VII’s definition of the term of the term in Title employed by employer,” individual provision VII’s anti-retaliation does not in- 2000e(f) (West 1994)), ambiguous.. U.S.C.A. urged by clude former Robin- statutory require The rules of construction employees” son. Because “former are not give Congress us to the words used to define statutory language, included in the Title “employee” usage. their common See Mur- provision pro- VII’s anti-retaliation does not phy, “employed” 35 F.3d at 145. The term tect them. Given that the statute does not 2000e(f) commonly as used in subsection is protect employees, former Robinson has no “performing used to mean work under an aegis. claim under its employer-employee relationship.” Black’s ed.1990). Dictionary Law Certain- C. ly, commonly “employed” the term is not longer performing Although used to mean “no work the rules of construc- further, employer-employee relationship.” require under an proceed tion do not us to Furthermore, “employer” important as used subsec- several other sup- considerations 2000e(f) commonly port tion interpretation used to mean “one our of the anti-retaliation First, employs provision. types who the services of others.” Id. practices that Again, meaningful argument strongly no can be made point Title VII forbids toward the “employer” commonly scope provision the term used of its anti-retaliation not ex- employment ac- “not an adverse relationship. ties were employment tending beyond the Reed, at 492-93. tion.” Title forbids practices that types of VII not employment, related to particularly are practices that VII types of Title Given the relationships. exam- For post-employment forbids, drew it follows “unlawful specifically defines ple, Title VII defining scope of Title VII at line the failure practice” part as employment place termination of logical most —the any discharge indi- or to or refusal “to hire not VII does employment relationship. Title against vidual, or to discriminate otherwise practices, discriminatory however redress compensa- respect to his with individual reprehensible, which occur after conditions, tion, terms, em- privileges Rather, relationship has ended. Con- ment race, of such ployment, because individual’s specifically enacted anti-retaliation gress sex, color, origin.” religion, or national falling applicants/employees so provision 2000e-2(a)(l) (West This U.S.C.A. during applica- discrimination their victim to comprises with re- discrimination definition employment employment tions for and/or employment, and spect aspects of certain protect able to invoke VII would be discriminatory practices redress does not af- of retaliation. rights their fear without relationship has termi- employment ter the nated. D. provi- holding

Second, anti-retaliation not unmindful that our Title VH’s We are post-employment by only retal- circuit court2 and redress one sion embraced does prima circuit courts that majority of a the second element odds with the iation because concluding question.3 VII re- addressed this retaliation under Title have case of facie VH’s anti-retaliation employee to an “adverse that Title quires suffer post-employ- reach parallel necessarily entails statutes action” that employment majority in the the decisions employment ment during the occurs conduct that Cerberonics, “employee” broad- interpreted the term relationship. See Williams “ Cir.1989); employee ly to former ‘include[ ] see F.2d to or alleged is related as the discrimination Shepard, 939 492-93 also Reed ” relationship.’ (7th Cir.1991). employment arises out action Adverse Cosmair, Passer, (quoting action necessarily requires that the adverse Inc., Div., 821 F.2d at Care L’Oreal Hair employer be in relation by must taken the Pantchenko, 1088); F.2d at 1055. 581 bring- see employing employee the its own act of in- supporting this Essentially, rationale Consequently, any adverse charge. ing the application of the terpretation a literal is that employment relation- after the action taken produces result a un- cannot be actionable ship has terminated underlying policies of Title defeat Recognizing point, the would this der VII. in the work discrimination alleged eradicate VII stated that because “the Reed court Charlton, 200; See, F.3d 25 at e.g., place. ter- retaliatory place took activities after Passer, 331; Bailey, 850 F.2d at at F.2d 935 employment” those activi- Reed’s mination of alleged long is Reed, ployees as the discrimination as at 492-93. 2. 939 F.2d See employment rela- out of related to arises Educ., 25 F.3d v. Paramus Bd. 3. See Charlton Chefs, Sky F.2d v. 670 tionship); O'Brien — denied, Cir.1994), 194, (3d cert. 198-200 Cir.1982), 864, (9th overruled on 869 (1994); 590, -, 115 Co., Packing 810 Cove grounds v. Wards Atonio 322, Soc’y., 935 F.2d v. Chem. Passer American banc); Cir.1987) (en 1477, (9th 1481-82 F.2d (D.C.Cir.1991) (holding "employees” under 331 Co., 1052, Dolge 581 F.2d C.B. Pantchenko v. (ADEA) Employment Age Act’s Discrimination Cir.1978); (2d v. American Bank 1055 Rutherford provision em former parallel retaliation includes (10th Commerce, 1165 Cir. 565 F.2d alleged is discrimination ployees as the Co., 1977); Carriage Carpet F.2d Dunlop 548 employment rela arises out of the related to or (6th Cir.1977) "employee” (holding un- 142 Bailey Corp., tionship); F.2d v. USX 850 Act’s anti-retaliation Standard Cosmair, Inc., der Fair Labor Cir.1988); (11th EEOC employees). provision EEOC includes former Div., Cf. Hair Care L'Oreal Corp., 927 F.2d Huber Cir.1987) v. J.M. (holding "employees” ADEA's Cir.1991). provision former em- includes parallel retaliation 1509; Rutherford, F.2d at 1165-66. For III. Charlton, example, opined the court Although extending Title VII to for- cover blacklisting “post-employment is sometimes fruit, judi- mer tantalizing is our on-the-job damaging more than discrimina- inquiry cial when language must cease subject employee an tion because to discrimi- a unambiguous. statute is and Such job often nation on the will continue to re- terms, the rule of law. no uncertain paycheck employee ceive while former chosen, Congress, reason, for whatever has subject may prevented to retaliation from through the anti-retaliation of Title obtaining any occupa- work in trade or VII, i.e., protect “employees,” “individu- Charlton, previously pursued.”

tion employed employer,” “appli- als] and 200. employment,” cants for protect but not to employees. former Because com- Robinson’s totally rationale of these decisions dis plaint alleges post-employment regards, explanation, without the established the district properly dismissed his com- analytical framework for construc plaint under Federal Rule of Civil Procedure Instead, they rely on tion. broad consider 12(b)(6). Accordingly, we affirm. policy. they posit ations of Most divine what AFFIRMED. Congress’ intent from the reach of Title See, Charlton, e.g., VII. at 200. HALL, K.K. Judge, dissenting: Circuit directly None these decisions address the Imagine Friday, day that on the first Congressional expression absence on this month, Corporation XYZ decides ter- are, therefore, issue. These decisions workers, minate two of line its and Smith odds with the well-settled rule that in the Jones, immediately gives and them two expressed Congressional intent, absence of Jones, weeks’ written notice. Smith and courts must assume intended believing each unlawfully that she has been convey ordinary language’s meaning. against, charges discriminated file with the Dubin, C., Goldberger P. & F.2d at Unable, on Monday EEOC the fourth. how- 506; Indeed, Stokley, 881 F.2d at these ever, luxury to afford optimism, undue Supreme fail decisions to heed the Court’s both explore Smith possibility and Jones repeated mandate: have stated “We time signing on competitor, with XYZ’s again presume that courts must that a LMNOP, Inc. legislature says in a what it statute means twelfth, Tuesday On personnel XYZ’s says and means in a what it statute there. department receives letter from unambigu When words of a statute are counterpart, requesting LMNOP ous, then, this first canon also the last: ment information and references on Smith ‘judicial inquiry complete.’” Connecticut Annoyed pair and Jones. filed Germain, 249, 254, 112 Nat. Bank v. charges against company, EEOC the XYZ’s 1146, 1149, (1992) 117 L.Ed.2d 391 S.Ct. personnel intentionally director and vindic- States, (quoting Rubin v. United 449 U.S. tively prepares reports false for dissemina- 424, 430, 701, 698, spurious tion to reports LMNOP. The are (internal (1981)) omitted). placed citations Further separate envelopes in stamped and more, mailing fifteenth, these our Friday decisions of sister on the circuits which also disregard happens to be and “employee” day Title VII’s definition of Smith Jones’s last XYZ. Although report in Smith’s is included the for determining definitive source the mail, Friday’s outgoing in- report Jones’s is of the term as used in excluded, and, advertently therefore, not sent provision. Title VII’s anti-retaliation Monday eighteenth. LMNOP until the short, completely unpersuaded we are by analyses, depend their which for their sub The majority dispute cannot that XYZ’s arguments on policy stance broad which are conduct equally toward Smith and Jones was simply supported not by language the culpable, the company’s and that behavior of Title VII. precisely was which that Title VII’s anti- design the language, but to the statute prohib- provision designed to was retaliation Nevertheless, Cran approach object policy.” the and a whole and to it. States, majority approach 152, today by adopted the don v. United 494 U.S. —an by employed to that opposition in (1990) (cita diametric 997, 1001, 108 L.Ed.2d 132 S.Ct. sister circuits of our preponderance the vast omitted). in this statutory The scheme tions be would by the EEOC itself—Smith and VII, Congress’s purpose in Title and case is charge, and Jones a retaliation to file entitled enacting easily it is discerned. the out in the cold. Because be left would many create majority’s legislation; decision will soon sweeping, remedial Title VII is Smiths, I respectful- must than more Joneses affect applies virtually all entities that it ly dissent. pro- and employment relationship, range ignoble behavior.2 scribes a vast

I. procedure— is a enforcement There detailed courts, which including to the federal resort A. grant legal and power are accorded broad that, acknowledges if majority even The demonstrated, by equitable relief.3 in as used Section ’’employees” the term reach, it is that giving VII broad 704(a) designates only those unambiguously eradicating discrimination and serious about offend- earning paycheck from the persons employment effects within the its invidious ing employer at moment relationship. why statute was That is scope expand may nevertheless this enacted, why anti-retaliation and that grossly absurd designation avoid a included; Congress provision As illustrated understood result.1 plainly unintended majority’s con- hypothetical, only XYZ effec- Title VII could be enforced 704(a) will inevitably struction Section by dis- persons aggrieved if the most tively results; those grossly lead to absurd criminatory practices could come forward can be plainly unintended results are also Unfortunately, fear of retribution. without Congress’s examining readily understood the term “em- majority’s construction of enacting Title VII. purpose actively hinder will ployees” Section mechanism. the enforcement

B. will work on two levels. hindrance This statute, determining meaning of [a] “In course, is, hindrance of statutory the obvious particular There only not to the we look Harrelson, joint labor-management com- (citing organizations, and ante at 328-29 Crooks 59-60, 49, 50-51, excep- prohibits, 75 L.Ed. with few 282 U.S. Section 703 mittees. Enters., (1930), tions, v. Ron Pair aspects and United States in all all of discrimination forms 235, 240-42, 109 S.Ct. 489 U.S. relationship the basis of an on 1029-31, (1989)). See also 103 L.Ed.2d race, color, religion, gender, or na- individual's Co., Wheeling Electric NLRB v. (West origin. § 2000e-2 42 U.S.C.A. tional (4th Cir.1971): to the anti-retali- in addition rule construction cardinal case, prohibits in this at issue ation assembly legislative the intent job or adver- publication most cases of notices interpre- given ... where a literal effect indicating preference on a based tisements statutory provision would ac- of a tation suspect classification. legisla- purpose of the with the intended cord tion, result, produces absurd courts must or an statute, 706(g) empowers court to order 3.Section beyond words of the look omitted); relief, (citations declaratory rein- injunctive Co. such as Blackwell v. relief Crosse & Cir.1959) 600, (4th FTC, (es hiring employees 606 262 F.2d with without or statement or chewi reading Trade Com ng literal of the Federal equitable "any pay, relief as the back interpretation was an mission Act where such appropriate.” 42 U.S.C.A. deems legisla "plainly policy at variance with addition, (West 1994). 2000e-5(g) Section In States, (quoting v. a whole” United tion as Ozawa permits Rights of the Civil Act of 1991 102 65, (1922)), 178, 67 L.Ed. 199 260 case, courts, compen- appropriate award in an to result). produce an absurd and would damages satory punitive for violations of of Title VII. 42 U.S.C.A. 703 and 704 Sections 703 provisions and 704 2. of Sections Various (West 1994). agencies, employment 1981a employers, labor apply to 334

allowing employer escape an ty’s approach sanctions for is the eccentric one. No fewer clearly behavior that is unlawful.4 More sub- concluded, than appeal six courts of Ias tle, however, is the hindrance on enforcement do, that protection the section’s extends to certainly that will almost result from the those longer no actively engaged remaining employees’ reluctance bring in working retaliating employer.5 subsequent violations the EEOC’s atten- now, Until the Seventh Circuit had stood tion; employee no reasonable will «orne for- reaching alone in opposite conclusion. ward if there is chance that his or her 484, Shepard, See Reed v. 939 F.2d 492-93 end, employment term of will giv- soon thus (7th Cir.1991).6 Moreover, the EEOC itself ing employer carte blanche to retaliate. appeared court, has before this as amicus Moreover, aggrieved person an should not be curiae, urge adopt that we the dominant employer forced to remain with an abusive rule fashioned our sister circuits. solely to ensure that he or she receives the protection full of Title VII. Two of explicitly those courts have con- primary cluded that the determining focus in

C. plaintiff whether a states a claim under Sec- Today’s 704(a) decision erodes crucial Title VII tion should be on alleged whether the mechanism; enforcement it thus will inevita- retaliation either employment arose from the bly protections erode the substantive of Title relationship or was employ- related to the Congress’s VII itself. Because inclusion of wholeheartedly ment.7 I agree. By choos- 704(a) strengthen— was intended to ing instead to exclusively focus on the time statute, not weaken —the I interpret would when employee actively working, language the section’s in a manner consistent majority has framed inquiry much too with that intent. narrowly; myopic approach such a only frus- 704(a)

My interpretation hardly Congress’s VII, of Section trates attempt, through Title maverick; indeed, majori- brands me a workplace eradicate discrimination.8 322, (D.C.Cir. 4. The dawn of the brave new world Soc’y, envisioned Chem. 935 F.2d 330-31 1991). majority escape will not the attention of employers, enough will who soon realize that they given Reed, have been a free rein to retaliate 6. appeals the court of affirmed a direct- against employees, disfavored so as the em- plaintiff’s ed verdict for the defendants on the ployee Corporation, claim, is first At terminated. XYZ complained-of retaliation because the ac- may never there be another Smith. place plaintiff tivities took after the had been terminated. , 194, 5. Charlton v. Paramus Bd. Educ. 25 F.3d (3d Cir.), denied, - U.S. -, Charlton, ("an employee 198-200 cert. 7. See 115 25 F.3d at 200 590, (1994); may against previous file a EEOC v. J.M. retaliation action 1322, (5th Cir.1991) Corp., employer retaliatory Huber 927 F.2d occurring conduct after Cosmair, Inc., (citing employment relationship EEOC v. L’Oreal Hair the end of the Care when the Div., 1085, (5th Cir.1987)); Bailey retaliatory reprisal protected 821 F.2d act is in for a act (11th Corp., v. USX 850 F.2d ... and arises 1509-10 out or is related to the Cir.1988); Pantchenko, Chefs, Sky relationship.”); O'Brien v. (9th Cir.1982), ment 670 F.2d 581 F.2d at ("the prohibits overruled on other statute discrimination relat- Co., grounds by Inc., Packing arising Atonio Wards Cove ed to or out relation- (9th Cir.1987) (en ship, person 1481-82 whether or not the discriminated banc); Co., Inc., Dolge against employee v. C.B. Pantchenko is an at the time of the discrim- (2d 1978); conduct.”) added). inatory (emphases Cir. Rutherford Commerce, American Bank case, Cir. See also EEOC v. alleged Ohio In the instant Shell’s retaliation Co., 1993) (former against Edison 7 F.3d 541 Cir. Robinson—said to involve the dissemina- employee may state a claim under Section tion of false poor information and an undeserved something agency theory on akin to an where parties’ employment reference—arose from the offer of reinstatement is relationship withdrawn in retaliation because Shell would not have been employee plain for the provided actions another opportunity against to retaliate —the protesting tiff’s husband—in his wife's dis relationship. Robinson but for that Shell’s al- charge). leged Still another circuit has construed the retaliation was also related to the nearly identical anti-retaliation of the ment because it assumed the form of facts and Age Employment apply opinions in professional Discrimination Act to about Robinson's affiliation employees. to former See Passer v. American with Shell. perceive I to consistently with what the term II. effectively Congress to the clear intent of accepted, for the point, I have To this in remedy problem of discrimination em- majority’s conten- argument, purposes today’s ployment problem that decision —a in “employees,” as used the term tion that solving. in will not assist have 704(a), unambiguous. I ar- Section majori- arrived at gued the result that Judge Judge and Chief ERVIN grossly and so ty absurd is nevertheless join in this MICHAEL dissent. intent to contrary Congressional clearly to ordinary justify expanding the asserted MURNAGHAN, dissenting: Judge, Circuit embrace, if term to neces- meaning I dissent. extraordinary meaning. sary, an majority has for some basis While actuality, my is not as difficult burden reasoning term “em- adopting that the were, If it purports it to be. majority as the in not in ployee” as used the statute does appeal, unlikely six courts of it is that one-time, a former or ex- extend to case doubtlessly fa- judges are comprised of who dissent, In his employee, it is insufficient. statutory construc- miliar the canons of with convincingly points out the more Judge Hall tion, at all arrived a conclusion have would reaching opposite compelling reasons apparently majority of this court conclusion, regardless of whether the term bewildering. finds so sense, cir- “employee” in one certain likely it that our sister circuits I believe here, present has a cumstances have, implicitly, grounded their deci- least all, ambiguous. After truly or is inescapable— premise I find a sions on time, DiMaggio despite lapse of Joe In- ambiguous. term a to as center fielder can still be referred deed, tautological defini- the statute’s the New York Yankees. employed term as “individual[s] tion 2000e(f) employer,” see 42 U.S.C.A. by an joins in this dissent. Judge Chief ERVIN (West 1994), comprehend more one could no employee is one could ascertain than what designee, if of the legal essence designated an “individual merely as

defined designator.” comprehend To the mean- by a (or must employee designee), one first ing of (or employ it what means understand course, “employ,” designate). The root DOUGLASS, Plaintiff-Appellant, W. Paul things, may many even within mean different context; though it is often the business/labor contractual rela- the current used to describe SERVICES AUTOMOBILE UNITED designat- company a and a tionship between ASSOCIATION, Defendant- worker, meaning.9 is not exclusive ed its Appellee. particular of a term a

Where the use No. 95-50007. meaning, of more than one context admits is, ambiguous. facto, ipso that term Appeals, United States Court Fifth Circuit. III. Nov. 1995. “employees,” the term used Because Gerrardstown, se, Douglass, pro ambiguous, duty Paul W. is our meaning. interpret I choose construe WV. may be manufacturing may faithful service example, watch for his her concern For been, be, major "employer,” year-end banquet as a with- awards or will introduced Similarly, regard any particular company. "employee” worker. long-time out receiving gold Company X a recent retiree of

Case Details

Case Name: Charles T. Robinson, Sr., Equal Employment Opportunity Commission, Amicus Curiae v. Shell Oil Company

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Nov 29, 1995

Citation: 70 F.3d 325

Docket Number: 93-1562

Court Abbreviation: 4th Cir.