Yuri D. Veprinsky v. Fluor Daniel, Inc.

return, quiet but after he directed her to yell and continued to

down and she refused

at and interfere with the workers. It

apparent that Hill did not understand Kasa plaintiff

to have instructed him to arrest the plaintiffs having engaged in

without the ille-

gal action. This is made clear Hill’s interrogatories replied

answers to when he regarding arresting

that his instructions were,

plaintiff [plaintiff] “if continued to in- disrupt

terfere or the workers who were

attempting premises to clean the that I was Thus, disorderly

to arrest her for conduct.” provided

Starzenski has sufficient evi- Captain

dence Kasa ordered Officer Hill unlawfully arrest Starzenski to survive the summary judgment.

defendants’ motion for

Affirmed. VEPRINSKY,

Yuri D. Plaintiff-

Appellant, DANIEL,

FLUOR INC. Defendant-

Appellee.

No. 95-2197. Appeals,

United States Court of

Seventh Circuit.

Argued Feb. 1996.

Decided June IL, (argued), Chicago,

Thomas C. Crooks plaintiff-appellant. for (argued), M. David Rowland Gloria J. Pórtela, Skalitzky, Seyfarth, Elizabeth H. Geraldson, Shaw, Chicago, Fairweather & IL, defendant-appellee. Reams, Young Carolyn L.

Gwendolyn Wheeler, Clark, Mary Gregory L. C. Stew- Counsel, art, E.E.O.C., Office of General DC, Washington, for amicus curiae E.E.O.C. RIPPLE, MANTON,and Before ROVNER, Judges. Circuit ROVNER, ILANA DIAMOND Circuit Judge. charge

Yuri Veprinsky filed a Equal Employment Opportunity Commission alleging in 1991 that Fluor Daniel had dis- charged employ from its on the him basis origin religion, in his national violation He Rights the Civil Act of 1964. subsequently alleged in this lawsuit against him Fluor Daniel had retaliated charge. ways filing The dis- several granted summary judgment trict court Daniel two of the retalia- favor Fluor on leave to tion claims denied part complaint, relying to his add another Shep- upon perceived holding in our Reed ard, Cir.1991), that of retaliation are post-termination incidents under Title VII. See Koelsch v. not actionable Corp., Beltone Elec.

Cir.1995). Today clarify our decision post-termination acts Reed and hold adversely plaintiffs affect the retaliation that are employment opportunities or otherwise cognizable under related to Title VII. all

I. district court found but one of these acts of retaliation to be outside the Veprinsky as an electri- Fluor Daniel hired scope coverage. Relying prin- of Title VII’s exception engineer in but with the cal cipally upon Shepard, opinion our Reed v. period, Veprinsky rendered no of a one-week Reed, opinion citing a Fourth Circuit unpaid company to the and was services Chase, 1360, Polsby v. 1990, early upgrad- until when he was status Cir.1992), vacated and remanded sub nom. 1991, employment. In ed to full-time June Shalala, Polsby v. 507 U.S. 113 S.Ct. Veprinsky’s superiors engi- in the electrical (1993), 123 L.Ed.2d 646 the district neering department him that he informed premise court reasoned from the that Title 12, 1991, July effective would be terminated provision anti-retaliation did not extend VII’s due to a lack of work. against to adverse actions taken em- 1991, Veprinsky September In filed a Thus, ployees. Veprinsky had no cause of alleging that Fluor charge with the EEOC upon alleged action for retaliation based (and discharged him declined Daniel had his post-termination provision of in- inaccurate request placed leave of absence to be formation to his new or the disclo- status) origin on the basis of his national charge Veprinsky’s sure the EEOC Veprinsky religion, violation of Title VII. placement grant- firm. The court therefore alleged He hails from Russia and is Jewish. summary judgment ed in favor of Fluor Dan- Hamady, supervised him that Donald who 4,May Op. iel on these claims. 1994 Mem. Daniel, during assignment final at Fluor his at 1994 WL at *5. It likewise disparaging made remarks about for- had Veprinsky denied leave to amend his com- eign-born people general and about Rus- plaint charge Daniel to add the that Fluor addition, Hamady particular. sians in had procured attorney opponent had for his story a allegedly Veprinsky told about action, post-dated the state court as this too daughter mar- colleague Turkish whose had Veprinsky’s discharge. R. Dec. describing the person, ried a mar- Jewish Minute Order. tragedy family.” riage as “a alleged for Dan- Retaliation could be Fluor right-to-sue let- Veprinsky, After the EEOC issued the district iel’s refusal rehire ter, Veprinsky reasoned, setting Vep- in the district court. filed suit in that court Ultimately Veprinsky rinsky “applicant employment” abandoned his claim of was an origin religious express coverage The national discrimination. and thus within 12,1994 Judge Ko- Op. claim was tried to at WL at discrimination statute. Mem. eoras, Skan, specializing in favor of Fluor Daniel. who found Poliak & a firm *5. challenge finding. Veprinsky temporary personnel, does not had placing technical Veprinsky’s Dan- submitted resume to Fluor that, following Veprinsky alleged also design engineer, along position iel for the discharge, Fluor Daniel took several adverse persons. the resumes of two other with having him in retaliation for actions of the three was offered an interview. None pro- charge. the EEOC These included filed subsequently had Rory Lent Poliak Skan’s Veprinsky’s viding information to sub- false Garry Tackett of Fluor a conversation with employer, refusing to consider rehir- sequent recruiting subsidiary to find out Daniel’s informing ing position, him for another why. Lent’s notes from that conversation Veprinsky firm placement with which following remarks to Tackett: attribute the working that he had filed the EEOC designer, Willy was not a Web- Said Walls sought leave to charge. designer drafting ster not a did —both complaint the further alle- amend his to add suing only. Verpinsky a no—said he’s [sic] human gation that Fluor Daniel’s director of religion when he was Fluor because of attorney arranged had for an resources there last time. provided legal services to Fluor Daniel to Group Dep. 34 & Ex. Tackett told represent at a rate someone that Lent reduced interviewer in 1992 that he had suing in an unrelated state an EEOC charge Veprinsky’s EEOC never discussed court action. familiarity Auto- some with Fluor Daniel’s human indicate least anyone with outside he not CAD. failure to rebut department and that did resources Later, evi- proposition Lent. left the record void recall conversation with infer that his however, acknowledged that he had dence from which one could Tackett Lent, charge been reason for Fluor charge to but EEOC had the EEOC mentioned not to him. Mem. it as reason Daniel’s decision re-hire that he had identified denied 12-14, Veprinsky. at *5-*6. Op. 1994 WL interview the decision rejected Veprinsky as The real reason he rulings to his From these adverse maintained, candidate, was that his Tackett retaliation, Veprinsky appealed. claims of familiarity Au- not reveal resume did toCAD, design package used a software II. computerized drawings, and the com- create VII, provision The relevant of Title familiarity joba re- pany deemed such had 704(a),provides: he con- quirement. insisted that had Tackett employment prac- It be an unlawful shall veyed qualification lack of employer for an to discriminate tice rejection; for the as the reason Lent applicants or against any employees of his charge as an was mentioned EEOC op- employment ... because he afterthought. any practice an unlawful em- posed made company found the enti- district court or ployment practice subchapter, this judgment be- summary tled on this claim testified, charge, has made a because he rebut evi- Veprinsky had failed to cause assisted, any participated or manner him Daniel had toned dence that Fluor investigation, proceeding hearing or un- reason, namely his legitimate down for a subchapter. der this familiarity apparent lack with AutoCAD. of 2000e-3(a). § “magnificent 42 U.S.C. With requisition form that Fluor employment An Inc., (Broussard Bossier, circularity” L.H. v. con- had submitted Poliak Skan Daniel Cir.1986) 1158, (per F.2d 1160 cu- 789 company seeking was indeed firmed that the riam)), “employee” “an Title as VII defines Veprin- experience. with AutoCAD someone employer.” employed individual sky he fact was familiar with averred that 2000e(f). § Because neither section AutoCAD, he so although had not indicated “employee” expressly nor the of definition pointed out resume. his reading employees, a includes former literal ulti- of the candidate who that the resume them from cov- of the statute would exclude Tassie, job, mately offered John erage of for acts retaliation. purchased merely that Tassie indicated However, majority con- working of circuits have acquire computer order AutoCAD, employees protected not that Tassie was cluded former knowledge of Still, retaliation, as design. from acts of under Title VII proficient computer-aided provisions Age parallel of the convinced that Fluor well as court was district Act, rejected legitimately any- Employment Discrimination in 29 U.S.C. Daniel could have (in 623(d),1 Act, § one, the Fair Standards including Veprinsky, whose resume Labor 215(a)(3).2 Tassie’s) Berry § affirmatively did not 29 U.S.C. v. Stevin- contrast 630(f),just § part, provides: as it is in VII. The anti-retalia- 1. the ADEA Title In relevant recognized provision tion of the ADEAhas been for an to dis- It be unlawful shall "parallel provision as anti-retaliation against any employees ap- or criminate ..., interpreting cases the latter in- plicants for ... because such frequently upon interpret- provision are relied opposed any practice ... has made dividual ing v. American Chem. the former." Passer section, indi- this or because such unlawful 322, (D.C.Cir.1991). Soc'y, 935 F.2d 330 testified, charge, assist- vidual ... has made ed, 1938, any FLSA, participated in manner an inves- or enacted in makes it unlawful proceeding, litigation any person discharge any tigation, or “to or in against any employee be- chapter. manner discriminate 623(d). exceptions complaint § or With that are has filed 29 cause such U.S.C. here, any proceed- "employee” to be defined instituted caused instituted the term immaterial chapter, ing or has employed by employer,” under or related to this as "an individual

885 Chevrolet, 980, VII); Boston, 74 F.3d 985 Cir. v. Bank 924 son Connell F.2d VII) (1st Cir.) 1996) (Title 1169, (reaffirming (employee v. 1179 “about to be Rutherford Commerce, 1162, protected Bank 565 F.2d terminated” remains from retalia American (10th Cir.1977) (Title VII), denied, VII)); tion under Title cert. Nelson 501 U.S. 1165-66 (3d 1218, 2828, (1991); 383, College, 111 S.Ct. 115 L.Ed.2d 997 Upsala v. 386-89 Cir.1995) (Title VII); Light Secretary & Power Connecticut Co. v. Charlton v. Paramus Labor, (2d (3d Cir.) (Title 89, Dep’t U.S. 93-94 ofEduc., Bd. 200 — 1996) denied, (upholding permissible Cir. VII), -, Secre cert. U.S. 115 S.Ct. tary (1994); of Labor’s determination that former L.Ed.2d 503 130 EEOC J.M. employees qualify employees pro within Corp., 927 F.2d & n. 41 Huber 1331 (5th Cir.1991) (Title VII) provision Energy tection of anti-retaliation (following Reorganization Act of 42 U.S.C. Cosmair, Inc., Div., L’Oreal Hair Care 821 5851(a)). otherwise,” “To read the statute (5th Cir.1987) (ADEA)); F.2d 1088-89 reasoned, the District of Columbia Circuit Inc., Contracting, Sherman v. Burke deny protection any person “would be to (11th Cir.1990) (per F.2d 1531-32 cu discharge who has suffered or termination riam) (Title VII) (reaffirming Bailey v. USX Passer, due to unlawful discrimination.” (11th Cir.1988) Corp., ADEA). (interpreting F.2d at Ex (Title VII)), denied, cert. 498 U.S. cluding protec from the (1990), 112 L.Ed.2d 317 and over S.Ct. provisions tion of anti-retaliation cannot be part grounds by on other ruled in McGinnis justified on the notion that em based such Co., (11th Ingram Equip. v. 918 F.2d 1491 it, ployees require do not the Third Circuit Cir.1990) (en banc); Sky Chefs, v. O’Brien pointed out: (9th Cir.1982) (Title Inc., 864, 670 F.2d 869 protection against The need for retalia- VII), part grounds by other overruled in on disappear employ- tion does not when the Co., Packing Atonio v. Wards Cove 810 F.2d Indeed, relationship post-em- ment ends. (9th Cir.1987) (en banc); 1477, 1481-82 ployment blacklisting is more sometimes Co., 1052, Dolge Pantchenko v. 581 F.2d C.B. damaging on-the-job than discrimination (2d Cir.1978) curiam) (Title (per 1054-55 employee subject because an to discrimi- Desoto, Inc., VII); Czamowski v. 518 job nation on will often continue to J.) 1252, (N.D.Ill.1981) (Flaum, F.Supp. 1257 paycheck receive a while a former em- Paints, (Title VII); Bahu v. Fuller O’Brien ployee subject pre- be (BNA) 1231, 1237, Empl. 41 Fair Prac. Cas. obtaining vented from work in the (N.D.Ind. July at *6 1986 WL occupation previously pursued. trade or 1986) J.) (Title (Miller, VII); Pepe’s, Bilka v. (N.D.Ill.1985) Inc., Charlton, Thus, F.Supp. F.3d at 200. concerned 601 1259 25 J.) (Title VII); (Aspen, interpretation that a of the anti-retal- EEOC v. Levi naiTow Co., F.Supp. provision 515 642-43 iation of Title VII and its counter- Strauss & (N.D.Ill.1981) J.) (Title (Moran, VII); parts significant gap a in the see would leave intended, statutory Congress Soc’y, protection v. American 935 also Passer Chem. (D.C.Cir.1991) (ADEA); majority a con- F.2d 330-31 of courts eschewed Co., would, effectively example, Dunlop Carriage Carpet v. struction that (6th Cir.1977) (FLSA); Hodgson employer 142-47 “allow an to discriminate Petroleum, Inspectors employee long Martin and ‘black list’ a former Charles Cir.1972) Inc., successfully keep the for- 306 can Co., (FLSA); job getting thereby a v. Ohio Edison 7 mer and cf. (6th Cir.1993) becoming technically ‘employed by an (relying on em- F.3d parties ployer.’” Dunlop, 548 F.2d at 147. “This this line of cases to hold that third very engaged protect in conduct the Act who have not themselves reward activity may sought preclude.” for retaliation Title Id. ed sue under testify pro- way purposes and the about to such same it is for of Title VII testified or is ceeding, "any employed by employ- an or has served or is about to serve on individual ADEA— 215(a)(3). industry § 29 U.S.C. committee[.]" 203(e)(1). § er.” "employee” exactly the The term is defined in 886 who inappropriate made remarks to someone thought to have struck out a

areWe supra. was Shepard, company Reed v. for a with whom she different direction worked Koelsch, See, 709; pointed Robinson e.g., seeking employment, out RTC. 325, 331 n. 2 Oil that this claim doomed fact Shell — Cir.1995) (en banc), granted, cert. alleged impact U.S. remarks had (1996); -, L.Ed.2d 645 job S.Ct. the time the re- Koelsch’s search: Employment Larson, made, K. Lex had allegedly were Koelsch marks Discrimina (2d nn.5-6 § at 34-8—34-9 & RTC, job by among 34.01[1] other been offered tion ed.1995). Reed, employee of a former firms, already accepted had and fact she County, Vanderburgh Indiana Sheriffs De employer. Id. at 709. position with another partment that she fired after remarked, claimed Still, Reed, citing law we “The purportedly discriminatory challenging the post-termi- quite clear ... this circuit is practices Department. She later filed nation events are not actionable alleging, among under Title VII 2000e-3(a).” observation, suit This Id. which sexually things, that she been harassed extremely sweep to Reed attributes broad employ. Department’s in the She also (one while justified by Reed’s we do not think subjected to sever alleged that had been she unnecessary our qualified language), was discharge. after her al acts of retaliation Koelsch, consider it to be holding physical by an assault as These included dictum that not bind us here. does suit, drop urged her to late- sailant Meanwhile, the Fourth Circuit followed reprisals, telephone threatening calls night what to be our lead Reed it believed upon car. gunshots fired her that section did not cover concluded that Reed had no claim for We concluded Polsby v. post-termination act of retaliation. VII, emphasizing retaliation under Chase, supra, F.2d at 1365-67. It rea typically facie case of retaliation prima plain language of the retalia soned that proof employment an requires of adverse provision apply tion did not to former em section 939 F.2d at 492-93. “Under action. 1365, 1367. ployees. at Id. 2000e-3(a),” employ- explained, “it is an is specifically indicates that it The statute impair- employment discharge or ee’s for to retaliate unlawful an retaliation, that evidences actionable ment applicant or em- employee for subsequent to not events and unrelated ployment. mention made of former No is (em- employment.” F.2d at 493 Congress employees. consid- Given Thus, any for phasis original). in relief the necessary “applicant for it to add ered lay in complained Reed not acts of which employment” person from an as a distinct but, perhaps, in state suit action Title VII protected “employee” be from retalia- proceeding. damages a criminal Id. for tion, certainly Congress could have also holding of in Reed if it employee The limited extent our a former had de- included greater length point at we shall discuss sired. present For it sufficient to below. the at court noted that be Id. 1365. The also purport to deem emphasize that we did not at cause Title VII as it stood time post-termination acts of retaliation be- all remedies, only equitable for afforded relief 704(a). yond found the reach of section was, prac post-termination retaliation not reach those only that the statute did matter, tical unavailable in most instances. “subsequent retaliatory to and acts are at must in the Id. 1366-67. “While relief plaintiffs] employment.” to [the unrelated making form of the former whole (emphasis supplied). at occurred, had the as if the retaliation Reed, again equitable accomplish goal means years after we were Several calculating lacking. would entail post-discharge Such relief confronted a claim of speculative.” damages future and is far too Elec. retaliation. In Koelsch v. Beltone (footnote omitted). Id. at 1366 See Corp., 46 claimed the Koelsch Sherman, J., (Tjoflat, 1536-42 allegedly harassed her individual who concurring) (criticizing 11th Circuit’s creation during her at Beltone later 25831, but full legal remedy post-termination retali- Cas. 1995 WL the court of a ation).3 elected to rehear the case. Over the dissent members, agreed of four the court with Reed history subsequent of the Fourth Cir (more Reed) accurately, interpretation its of requires point Polsby us to cuit’s decision 704(a) protections that the of do not that the court had reached this issue sua out employees. Looking extend to former first argued sponte, as it had not been briefed or VII, language to the of Title the court found parties. the See Robinson Shell Oil (BNA) statutory neither section nor Empl. 66 Fair Prac. Cas. “employee” any n. 2 1284-85 n. 1995 WL at *9 definition of the term ex- 1995) (vacated), reh’g, 70 press employees. Cir. Jan. reference to former Id. at (en banc). (1995) Polsby rejected F.3d 325 subse majority plaintiffs 329-30. The petitioned Supreme quently Court argument “employees” that the term as used certiorari, Acting grant a writ of and the provision the anti-retaliation could be read urging General filed a brief Solicitor employees. to mean both current and former em not to consider whether former Court “employee” purposes Title defines ployees protected were under section 704 VII; thus, provisions all of Title because the Fourth Circuit’s construction meaning “employ- definition controls the merely Title VII constituted “an alternative appears throughout ee” wherever unnecessary ground for decision to the result Title define statute. Because VII does not adversary presenta on an and does rest “employee” longer as an individual no em- Charlton, question.” tion of the then, ployed by employer, under the (quoting n. Brief for the Re at 199-200 construction, statutory rules of that mean- 9); Moore, spondent Polsby Patricia A. meaning ing is excluded as a from the Note, Parting is Such Sweet Sorrow: “employee.” simply prohibit- term We are Post-Employ Application reading the clear ed from into Retaliation, 62 Fordham L. Rev. ment “employee” that which definition (1993). granted n.4 The Court Pols- Congress Congress did not include. If judg by’s petition, summarily vacated the remedy discrimina- intended VII to ment, to the Fourth Circuit and remanded beyond employment relationship, tion light posi “for further consideration easily by includ- then it could have done so Acting Solicitor General tion asserted ” defining ing employee” when “former States.... Pols his brief for United “employee.” term Shalala, 507 U.S. S.Ct. (1993). The Fourth 123 L.Ed.2d 646 Circuit (citations (emphasis original) Id. at 330 to the district in turn sent the matter back omitted). view, In the court’s the statute did court, plaintiffs post-employment where the ambiguous man- “employee” define in an not briefly retaliation claims were revived ner, nor, face, indicate on its did the statute in view of the en banc deci then dismissed a Congress intended result different that Shalala, Polsby 70 sion in Robinson. See v. literal construction from that a produced (BNA) 800, F.Supp. Empl.Prac.Cas. 925 Fair thus, any statutory language; resort to of the (D.Md. 1996). 379, 381-82 legislative history was foreclosed. Id. the “Congress’ ‘applicants for em- Robinson, inclusion of full Fourth In the Circuit ‘employ- ployment’ persons as distinct opportunity to revisit this issue. 70 F.3d the ees,’ in- coupled its failure to likewise with Initially, panel of that court 325. a divided strong evidence employees,’ ‘former is enjoy protec- clude held that former do that the term ‘em- retaliation, Congressional intent Empl. 66 Fair Prac. of tion from Products, Landgraf v. USI Film Rights permits VII these claims. Act of 1991 a Title 3. The Civil 244, 1483, L.Ed.2d 229 punitive 114 S.Ct. 128 plaintiff compensatory 511 U.S. to recover (7th (1994); Mojica 7 F.3d 552 obviating v. Gannett damages, See 42 this consideration. -, denied, Cir.1993) (en banc), note, however, 1981a(a)(l). cert. - U.S. that all U.S.C. 1643, (1994). 363 The retaliatory Veprinsky 128 L.Ed.2d which 114 S.Ct. but one of the acts of 21, be enti which otherwise complains place prior relief to took to November 1991, the district Title VII is a matter for Act. Conse- tled under the effective date of the 1991 n.8, up apply to take on remand. See provisions Act do not court quently, the of that infra. 888 employment not addressed Reed. provi new is

ployees’ in Title VII’s anti-retaliation follow, employees.” Id. we that include former For the reasons that believe does not sion original). Two additional con (emphasis post-termination of retaliation that acts ex the court the persuaded employment siderations a are actionable nexus employees was correct. VII, argues. clusion of himself Title as First, practices prohibited by of types the statutory con Familiar rules of employment, upon a reveal focus analysis. always, we guide our As relationships. struction Id. at post-employment begin plain Second, language the of the statute prima case retali with a facie of 330-31. require upon apply. we Warner said to “adverse are called Time typically ation is Cir.1995), action,” 867, requirement Doyle, employment a v. 876 Cable — denied, U.S.-, dur “necessarily entails conduct occurs 116 S.Ct. rt. ce (1996). relationship.” 974, Id. at the ing the 894 When 133 L.Ed.2d exemplary cited of the meaning provision 331. The court Reed is made clear of Reed, statute, 939 F.2d at requirement. scrounge See the need not words of we Finally, acknowledged the court legislative history looking 492-93. for an about majority holding that its odds with Hay meaning. States v. alternate United question. Cir.1993), have considered ward, 1241, of circuits that cert. 1245 — In the F.3d & nn. 2-3. Fourth 70 at 331 denied, -, 128 114 U.S. S.Ct. view, however, rationale of these (1994). time, Circuit’s At the same L.Ed.2d 46 considerations of courts rested on “broad provisions care not read individual take contrary rules policy” ran to well-settled in Time Warner isolation. We admonished “ interpretation. Id. at statutory meaning single ‘true Cable recently granted Supreme certiorari Court its precise ... however section of statute — -, See U.S. 116 S.Ct. Robinson. if it be con language, cannot be ascertained ” (1996). 1541, 134L.Ed.2d 645 66 apart sections!.]’ from related sidered (quoting Inter F.3d at 877 Commissioner EEOC, filed a which has brief 104 Engle, nal 464 U.S. Revenue court, us to friend now asks overrule (1984)). 78 420 S.Ct. L.Ed.2d 704(a), Reed. The Cartier, Inc., Corp. K mart 486 U.S. asserts, limiting support “does not its 281, 291, L.Ed.2d 108 S.Ct. scope only of adverse em prohibition to a (1988). way, strict construc the same taken current em ployment actions ” statutory language avoid tion of the be Brief of EEOC as Amicus ployees .... agree ed when result would senseless 6. We with EEOC’s Curiae at purpose of assertion, unnecessary clearly at odds the evident find to revis but we it Labor, recognize Dep’t Reed in order to cause statute. Czerkies v. U.S. (7th Cir.1996) (en banc) in this case. Reed con action for retaliation Friedman, cases); qualification gone important (collecting Newsom v. tains (7th Cir.1996) by Veprin largely (although (citing overlooked United Inc., sky). employee’s that “it Enterprises, held Ron 489 We States v. Pair impairment 242, 1031, discharge employment 235, 1026, or other 103 109 S.Ct. U.S. retaliation, and not (1989)); that evidences actionable Reich v. Lakes L.Ed.2d 290 Great Com’n, 490, subsequent to and unrelated to his events 4 F.3d Indian Fish Wildlife (latter employment.” (7th 939 at 493 em Cir.1993); F.2d see also Commission face, Reed thus phasis supplied). Brown, On its er v. 380 U.S. Internal Revenue the realm of actionable retalia 1166, excludes from 563, 571, 1162, 14 L.Ed.2d 75 85 S.Ct. only post-termination acts which tion those (1965). employment. plaintiffs to the

are unrelated recognized Title 387; long It has been Nelson, v. 51 F.3d at Gantchar See sweep. Airlines, Inc., 1457, VII is a remedial statute with broad 1995 No. 93 C United Swint, 273, 1995) (N.D.Ill. 28, v. 456 U.S. 137053, Pullman-Standard at *13 March WL 1784, 276, 1781, J.). 72 L.Ed.2d 66 (Hart, 102 S.Ct. is related to the Conduct Co., (1982); 424 Transp. gain efforts Franks Bowman plaintiffs employment or his

889 1251, 1263, 747, 763, eliminating employment.” 96 47 L.Ed.2d discrimination S.Ct. U.S. (1976); Unger, 657 F.2d at n. 8. Paper Moody, 915 444 Albemarle Co. 2362, 2371-72, 405, 417-18,

422 95 S.Ct. U.S. 704(a) par- Section of the statute serves a (1975); L.Ed.2d 280 Alexander v. Gard 45 purpose keep ticular that must we mind as Co., 36, 44-45, 415 94 S.Ct. ner-Denver U.S. interpret “employee” again once here. 1017-18, (1974); 1011, Griggs L.Ed.2d 147 39 Supreme pointed As the Court out Alex- Co., 424, 429-30, 91 v. Duke Power 401 U.S. ander, “Congress gave private individuals (1971). 849, 853, 28 L.Ed.2d 158 S.Ct. significant process role the enforcement 45, Title VII.” 415 U.S. at 94 at 1018. S.Ct. objective Congress the enact- plain usually of Title from the lan- grievants ment VII Individual initiate the guage investigatory of the statute. It was to achieve conciliatory [EEOC’s] employment opportunities and equality procedures. although And the 1972 operated that have in the empowers remove barriers amendment actions, group of white past bring to favor an identifiable Commission to its own employees. private over other right of action remains an essential judicial obtaining means of enforcement of Id., 429-31, 401 U.S. at 91 S.Ct. cases, private Title VII. such liti- to make purpose It is also the of Title VII gant injury redresses his own but injuries on ac persons whole for suffered important congressional also vindicates the of unlawful discrimina count policy against discriminatory employment very This is shown fact tion. practices. Congress to arm the courts with took care (citations omitted). 45, Id. at 94 S.Ct. at 1018 equitable powers. full For it is the historic em Given the instrumental role individual complete purpose equity “secur[e] scheme, play statutory ployees Sivann, 503, 497, Pet. justice,” Brown v. 10 protection of those individuals from retaliato (1836); also Porter v. 9 L.Ed. 508 see ry “is essential to ac acts Co., 395, 397-98, Holding 328 U.S. Warner complish purpose of Title VII.” EEOC v. 1086, 1088-89, 90 L.Ed. 1332 66 S.Ct. Ass’n, 1272, 1281 Press Pub. Pacific (1946). “[Wjhere federally protected (9th Cir.1982); accord EEOC v. Board of invaded, it has rights have been been Univs., Colleges & 957 Governors State beginning that courts will be rule from the (7th denied, 424, Cir.), F.2d 431 cert. 506 U.S. adjust remedies as to alert their so (1992). 906, 299, 121 113 S.Ct. L.Ed.2d 223 Hood, necessary relief.” Bell v. grant the also Mitchell v. Robert DeMario Jewel 773, 777, 90 66 S.Ct. 327 U.S. Inc., 332, 335, ry, 361 U.S. 80 S.Ct. (1946). L.Ed. 939 (1960) (commenting upon 4 L.Ed.2d 323 Co., Paper 422 95 Albemarle U.S. FLSA). provision of the anti-retaliation at 2372. S.Ct. plain. purpose is therefore of section protect it is to “In unmistakable liberally, have thus construed provided utilizes the tools purpose. Phil keeping its remedial rights.” Pettway v. Congress protect Lease, Capital Auto Elec. bin v. General Pipe American Cast Iron (7th Cir.1991) Inc., (per (5th Cir.1969); Virgi Cassidy v. accord curiam); Joseph’s Doe v. St. Doe on behalf of Corp., 652 F.2d nia Carolina Veneer 411, 422 Hosp. Wayne, 788 F.2d Fort (4th Cir.1981); City Demonstration Sias v. Cir.1986); Unger Foods v. Consolidated Cir.1978). Agency, (7th Cir.1981), 909, 915, n. 8 Corp., 657 F.2d 704(a) mind, 1002, 102 the mission of section grounds, 456 U.S. With on other vacated (1982); statutory language. It is we return to the 1297 see also 73 L.Ed.2d S.Ct. provision does Marsh, that the anti-retaliation 621 true Cir. Hale v. employees among as 1986). fact, former specifically accorded not mention we have protec- entitled to claim its those individuals “employee” generous a construc term the speaks “employ- of instead tion, to do so in tion. The statute noting important it that was employment.” for “applicants and purposes and of ees” goals further the order “to 890 term, employees former taliation] which the to defendant’s latter extends

use of the at present employees.” who to F.2d statute to individuals have than its 565 reach of the Huber, employees, of can yet (quoted approval the status with J.M. attained 1166 1331). Congress suggest that wanted be read to F.2d at 927 or relin who lost to include individuals however, Ultimately, we need not resort employees, it quished would their status legislative arguments policy on based comparable language to accom have used bring employees complain purpose to former Robinson, 70 at plish end. F.3d 330.4 ing employment-related of retaliation within employees from But the exclusion of former 704(a), in the scope for we find the of section 704(a), if that protection the of section is logically language that statute additional intended, gives Congress us indeed what compels The statute makes their inclusion. all, uncommon, pause. hardly It is after for against illegal employer an to retaliate for to manifest or culmi unlawful discrimination any employee “opposed any practice who has (actual constructive) or discharge nate in the by practice made an unlawful employee. significant percentage an A of of a subchapter, this or he has made charges are and federal lawsuits thus testified, assisted, charge, participated or employees. filed former Such individuals any investigation, proceeding an employ manner beyond means the reach subchapter.” (Empha hearing or under this complaints. ers wish to stifle them who supplied.) an ability employee, Discharging employee a former sis to “blacklist” race, sex, religion, employment possibili basis national thus foreclose future the ties, example employer’s origin obviously practices is made one of an one of the is but VII, employee a unlawful Title use term power punish former for the of the rights. “any practice made unlawful employment of her Title VII See Charl an exercise ton, 200; 147; Dunlop, practice by subchapter” clearly at 25 F.3d at F.2d envisions Hodgson, protesting discharges is protected 459 F.2d at 306. A narrow con such a Yet, activity. likely “employee” the the struction of term would individuals most employer oppose discharges, file permit penalize unlawful and to therefore seeking relief, complaining employee impunity charges discharged are the former with then, Curiously, employees yet taking from adverse themselves. con bar employee action current who has struction of statute so to exclude complaints coverage charge, even if the former un filed address would type provision appears dermine a the same discrimination. See Robin that otherwise son, (Hall, J., dissenting). protect protesting at all manner unlawful 332-33 face, Indeed, design, legis employment practices.5 Nothing purpose, in the or the on its history suggests very lative is much with of Title VII that Con such construction at odds expressed gress approve opposition against of such intent that an anomalous discharge practice protected. It is disparity, particularly when it unlawful be discriminatory interpretation act that an find un self has therefore employee prompted the to exercise tenable. As the Third Circuit so observed Charlton, statutory rights. succinctly surely “Congress did her As Tenth Circuit Rutherford, ground protection against re “[t]here is no not intend VII’s observed affording any protection [against employ re- taliation to end with for less termination of hand, created, employ applicant ‘employee’ use of 4. On for been the term refer- "[a]n ment, employee, may a former not be ring unlike employee, colloquial, to a former while ” Pantchenko, 'employee,' described as Id.; Robinson, inappropriate.” see also has, peri employee F.2d 1055 — a former for at J., (Murnaghan, dissenting). at F.3d time, enjoyed type od some of formal and recognized relationship mutually em would, example, protect 5. That construction although necessity ployer. Consequently, protests a current the unlawful writing "applicants employment” into a stat co-worker, discharge but would leave protects "employees” ute that otherwise clear, unprotected. discharged worker herself employ expressly add the need "former Hale, 619; Robinson, see also protected persons ees” "[ the list of is less obvious. (Hall, J., dissenting). employment relationship O]nce today holding require it is the termination itself that when Our does us to ment Reed, pointed filing a Title overrule Reed. we have now gives protected to the act of rise times, Passer, out several that 200; does not state all F.3d at YII action.” 25 see post-termination manifestations of retaliation Congress could (“Obviously, at 331 remedy allega- lack a under result.”). Title VII. The have intended such an absurd tions before the court in Reed involved acts Congress had to remove former If intended nothing employment, that had to do with protected from the class of work employees explaining why we took care to so note in the “any” type unlawful em protesting ers allegations cognizable. were not 939 F.2d at practice, expect one it to ployment 704(a) holding A that 493. reaches section expressly.6 so have done post-termination act no of retaliation would that former em- We therefore conclude required us to long have line of address they complaining far as ployees, so authority contrary. supra to the at 884- impinges future em- that on their Indeed, given that 86. would have been we ployment prospects or has a nexus otherwise hold, the first circuit to so and we would have right do have to sue their employment, the brought thus ourselves into conflict with ev- 704(a). employers former This ery other circuit that had then considered 40(f) (now holding Congress’ goal question, is true to of “ac- the Circuit Rule Rule 40(e)) hiev[ing] equality opportuni- required would have employment circulation of the 429-30, opinion the panel’s prior full court Griggs, 401 U.S. 91 S.Ct. at ties.” at circulated, Nelson, opinion release. The 853; comple- was not so 51 F.3d at It see 387. suggesting perceived that VII, we no conflict be- the scheme of which relies ments opinions tween Reed and the of our sister themselves, employees including largely on Indeed, many circuits. none of the cited discharged employees, to the dictates enforce on this more All eases fundamental issue. Alexander, 415 at of the statute. See U.S. construing counsels in favor Reed to Mitchell, 1018; at 94 S.Ct. see also says, attributing mean what it rather than harmony 80 S.Ct. It is U.S. 335. repudiation existing authority Reed both many courts with the decisions from other sweeping. silent and Reed holds inactionable recognized importance of as- that have the employees the claims of former when discharged suring employees remain they plaintiffs employ- are unrelated to the protected they from retaliation assert when understood, poses ment. So Reed no bar to statutory rights, particularly them when here, holding our we leave Reed undis- challenged. discharge itself turbed. Charlton, Finally, 25 F.3d at it is con- 200. our in Reed that a sistent with observation acknowledge argu EEOC’s 704(a) for retaliation re- claim under section that, employees where former are con ment quires “employ- an establish cerned, nothing in the of Title impairment actionable ment evidences supports holding limiting reach of sec Nelson, 704(a) retaliation.” at 493. See retaliatory tion acts that affect Moore, 387; L. Rev. prospects 51 F.3d at 62 Fordham or her future employ- constitute an “adverse at 220-22. otherwise suggests Congress might years five or ten and then retaliat The dissent the weeds for filing charge, to exclude her for we see decided former from ed difficulty allowing go coverage create a case to for of section so as not to no If, hand, plaintiff of action "unlimited time.” Post at 897. ward. on the other cause Otherwise, brought activity proof protected cause of action be of a nexus between her “[a] could five, one, purported years job employer’s re twenty or even after the and the act of belated Yet, taliation, ended," points will dissent at 897. we are confident that her case out. Post prima key disposed retalia of in short element of in order to establish tion, facie case of order. This adequate plaintiff always proof prima case safe must offer of "a facie remains significantly protected guard against expression meritless causal link between claims Dey plaintiff’s employment. post-date Dev. See O'Con the adverse action.” v. Colt Constr. & — 1994). Corp., Coin U.S. Cir. If the nor v. Consolidated Caterers -, -, 1307, 1310, 134 L.Ed.2d plaintiff has evidence which one rea 116 S.Ct. (1996). sonably infer that her waited in 892 704(a), violence, Compare job. to which obtain another A threat of

ment action.” employment practice may every makes an unlawful be bit as example, it cite a dramatic against to employer dissuading employee for an “discriminate” in a former effective engaged protected activity in those have pursuing pending who claim as (sec. 2000e-3(a)), 703(a)(1), with section for blackballing among prospective her other example, McDonnell, 256, makes it unlawful for an which employers. See race, color, religion, on basis 258-59. Reed nonetheless deems retaliation sex, origin fail “to or refuse to VII, or national beyond scope this form of Title individual, discharge any other hire or or Reed, to although, pointed as we out in against individual wise to discriminate may remedy in employee have a court. state terns, compensation, to his con respect 493; Nelson, 939 at F.3d at F.2d see also 51 (sec. employment” privileges ditions or 7; Barna, 388 n. but see James Francis 2000e-2(a)(1)) (emphasis supplied). See Comment, Keeping Bay Boss at —Post- Cisneros, 256, F.3d v. 84 258-59 McDonnell Termination Retaliation Title VII: (7th Cir.1996). employee A current can sue Education, 47 Charlton Paramus Board of that, retaliatory for the that for acts but fact Contemp. 259, L. U.J. Urb. & 268 n.55 Wash. by employer, they committed are (1995) (“That mere suggestion constitutes See, e.g., employment as such. unrelated to speculation.”). But we need not resolve Berger Iron Rodmen Workers correctly Reinforced whether decid- this case Reed (D.C.Cir.) 1395, F.2d 1424 Local 843 make ed. The answer does not a difference curiam) (repeated amounting (per threats to here, outcome and reexamination harassment), reh’g part on modified Reed should await a case which does. (1988) grounds, (per cu 852 F.2d 619 retaliatory All but one of the acts of which riam), denied, 490 109 cert. U.S. and complains job do relate to his (1989); 3155, 104 1018 see also S.Ct. L.Ed.2d prospects, and the one claim that does not is Alfaro, 785 F.2d 841 Cir. Ford v. Supreme its meritless on face. The Court violence) 1986) (threats physical acts may light subject in well shed some on this McLane/Western, NLRB, (FLSA); Inc. v. Robinson, case, although like this Robinson (10th Cir.1983) post-termination acts concerns of retaliation alia, employee (threat, punch in the inter employment prospects. that relate future McDonnell, nose) (NLRA); and see Veprinsky’s turn to recognized courts have 258-59. Other court reached the merits claims. district post-termination retaliation claims viable one of claims-that based on per se these based on conduct related See, Veprinsky. Daniel’s Berry v. Fluor refusal to rehire employment. e.g., Stevinson Chevrolet, claim, respect supra, (interpreting at 986 With broadly “applicant employment” to in with an undis “adverse action” 704(a) puted right theft under section re employer’s instigation clude criminal sue complaining gardless employees are forgery charges against for of whether former Op. Mem. at employee); mer Beckham v. Grand covered statute. Affair of Inc., Carolina, F.Supp. court 419- 1994 at *5. district North WL (former (W.D.N.C.1987) granted summary judgment who Fluor Daniel’s bartender prosecuted for criminal on that claim because re favor was arrested he trespass customer sume did not indicate that met one of after she visited bar (overruled retaliation) job requirements the com claim for stated stated viable Robinson); justified pany refusing implicitly by EEOC v. Levi been F.Supp. supra, anyone comparable at 641 hire re submitted Strauss & (retaliation 12-14, in 1994 WL prohibited by section sume. Mem. However, given the direct evidence

cludes and defamation suit filed *5-*6. slander Veprinsky’s pending em claim supervisor complaining former motivating factor Fluor Dan ployee). Certainly a can be have been him, intimidated, harmed, decision to rehire we believe particular and in can be iel’s this was an issue could not that do not on her efforts to acts bear requirement summary judgment. Veprin- that Tassie met the but resolved The district sky Veprinsky did not. thus could Veprinsky’s three other demon- disposed court believing pending no that former em- strate causal nexus between retaliation claims charge company’s Al- the ployees not sue for retaliation. EEOC and decision could him; though irrespective Reed not to rehire retalia- our clarification of revives two harbored, claims, tory company may motive have the third fails on its merits. the of these justified in not hiring Flour Daniel was him. Fluor re- Veprinsky’s claim that Daniel 12-14, Op. at Mem. 1994 WL at *5- filing fused to rehire him retaliation for *6. trial. charge the must be resolved at retaliatory in this The evidence of motive record, however, As view the direct, plausi- circumstantial. A case is not only in placing Fluor Daniel into succeeded Rory (if Lent’s is that reading post-termi- 42 U.S.C. 2000e- claims on role the decision. See founded 2(m). Although undisputed employment, as it that Auto- nation events that relate to is does, requisite claim to position was a for this one we must return this CAD stated the Veprinsky proceedings for sought, that there is no evidence the district court further Employers typically it was well.7 that ironclad. identify variety requirements any for Veprinsky alleged Fluor Daniel that position vary importance one which subsequent provided information to a false flexibility. certain the We cannot be from Lundy employer. Shortly Sargent after & it Fluor record as stands that Daniel would Fluor Veprinsky hired it contacted any have whose in fact refused candidate his regarding Daniel confirm certain to facts proficiency did reveal with application not history. According Veprin- employment to It not clear Tassie’s re- AutoCAD. is sky, depart- Fluor Daniel’s human resources sume, he example, for whether had done ment, reported con- which had accurate data begin anything attempt more to ac- than cerning his he filed an before familiarity the quire with software. Nor is charge, provided information EEOC false any indicating record there in the evidence Sargent Lundy. pur- & information This rejected applicants other that Fluor Daniel portedly the which Fluor included date on for qualified position who were the otherwise Veprinsky, and his position, Daniel hired his speak their did not to them resumes salary. alleges Veprinsky that the familiarity it may with AutoCAD. So be the provided this information on behalf something that this than a case was infor- knowing Fluor Daniel did so that the dispositive prerequisite. In view of the other contradicting mation false and that was suggesting Veprinsky’s pend- that evidence provided to Veprinsky the data himself had Dan- ing charge EEOC contributed Fluor damaging Sargent Lundy, might she & him, interview iel’s decision not to whether Veprinsky’s relationship em- with his new inevitably rejected company might sup- ployer. Veprinsky’s allegations grounds ques- was Veprinsky on lawful not port claim of retaliation under summary on tion that could not be answered 704(a). question There is unresolved factfinder

judgment. It for the to deter- to the in the infor- extent of inaccuracies played whether a desire to retaliate mine provided; actual mation Fluor Daniel company’s role in not significant decision may discrepancies not be material. There design position. for the to rehire purported also some doubt as to whether the then, respect, In this we must reverse the Veprin- inaccuracies resulted harm judgment grant summary Fluor Dan- sky. alleges complaint, example, His iel’s favor. only “jeopardized” his that the inaccuracies Sargent Lundy. grant relationship reverse the with More-

We must also & over, on summary judgment Veprinsky’s pointed as Fluor Daniel has out on claim Sargent appeal, no Fluor Daniel him dis there is evidence retaliated Lundy closing charge disciplined Veprinsky, his pending to Poliak reduced him, pay, pros- Veprinsky asserts that fired or demoted or that his & Skan. once pects firm of the placement apprised charge, with his new suffered way. longer employers resume to evidence Fluor Daniel’s no submitted his Absent open positions. type See resulted some of concrete actions Rutherford design position. new How- We note that Daniel has left this claim consider him for the ever, Fluor largely appeal. district court treated these as distinct first unaddressed 4, 12, (Mem. Op. complaint lump togeth- at WL at claims amended does claim *2, *5), company we. with the that the as do er claim refused retainer), in- nothing ultimate- favorable but there is injury Veprinsky, this claim Koelsch, Moreover, dis- ly herently improper fail. about it. there argued supra attorney any- at 886. But this was allegation cussed is no did summary all, to the district court as basis thing inappropriate at let alone that he consequently Veprinsky un- judgment; did so at Fluor Daniel’s behest. We can present obligation such evidence. der assume, therefore, that the outcome of the v. Board Tmstees Communi- Hartman litigation turned on the facts state College ty Dist. No. law, represented person on who Cir.1993) (citing Malhotra Cotter & Perhaps attorney was a sued. Cir.1989)). 1305, 1310 Reed Veprinsky’s adversary powerhouse, perhaps grant cited for the was the sole basis attorney’s case in this would have lost the Op. summary judgment on this claim. Mem. simply kind of absence. But this is not the at *5. must 1994 WL Any equipped recognize. harm courts are judgment as to this therefore reverse possible adversity Veprinsky may that have court.8 claim and return it to the district of Fluor Daniel’s inter- suffered as the result intangible to constitute the vention is too sought to Finally, Veprinsky leave retaliatory “discrimination” that sec- kind of complaint in order to add the amend his 704(a) prohibits. tion arranged repre that Fluor Daniel had claim Henning, Veprin for Debra whom sentation sky a in a state- had named as defendant III. action, compensa rate of at a reduced court Veprinsky Title VII entitles to sue for normally high-volume for reserved tion alleged employ- retaliation related to acts of attorney for performed That work clients. despite ment the fact that these acts followed regular basis. Because Fluor Daniel on a discharge employ. his from Fluor Daniel’s entirely purported act of retaliation this For this reason and the others we have bar employment, Reed would unrelated given, Fluor Daniel was not entitled to sum- even if it were otherwise meritori the claim mary judgment claims that it refused to on Reed, ous. But we need not rest (and hire) Veprinsky for another interview plainly recog merit. allegations lack charged compa- position because he had that, matter, employer as a factual an nize discrimination, ny employment that the with employee in a against a former can retaliate pending company disclosed the fact of his

variety ways, many them subtle. See of firm, placement charge Veprinsky’s 1942, Int’l Brotherhood Elec. Dole v. Local company provided false informa- and that the Workers, AEL-CIO, history employment to a subse- Cir.1989). tion about his allegations But fall However, quent employer. the district court beyond cognizable retaliation. the realm Veprinsky properly leave to amend interest, denied Veprinsky Barring some conflict of complaint in order to assert an additional his right whom his adver had no to determine claim, proposed The claim of retaliation. Veprinsky sary engaged counsel. Nor has any explained, lacks merit. we have pointed any concrete harm appeal. own costs on parties shall bear their Flour Daniel took support finding material, pro against him in adverse action helpful for its brief. We thank the EEOC might for curing attorney. It be unusual Part, Part, help employee like company a former Affirmed Reversed (and attorney arrange Henning find an Remanded. charge this lawsuit. But this question an EEOC as to what remedies filed

8. There is some is, noted, a for the district Veprinsky as we have matter might under the ver- be available to n.3, supra. surviving on remand. applicable retali- court to address Title VII to his sion of claims, might ultimately prevail of the relief that on one nature ation should he parties might Veprinsky an issue that the Injunctive appro- afford is not relief or more of them. passing, any appeal other than in have addressed on priately inaccu- address dissemination say that no useful regarding employment and we cannot with confidence rate information remedy types retali- for the placement could be fashioned Daniel and the disclosure Fluor alleged. prospective employers ation that firms and 704(a) VII, MANION, Judge, concurring in of Title retaliation under section Circuit part. provides: dissenting which part and prac- It unlawful shall an “employee” as “an indi- Title VII1 defines tice for discriminate an employer.” The coun- by an employed vidual applicants of his or presumably terpart definition to this obvious employment ... because has made for he employee” “former means would be testified, assisted, charge, participated or longer employed formerly or individual investigation, proceed- in an manner employer. This court cor- employed by an subchapter. ing, hearing section rectly “because neither notes that 704(a) ‘employee’ ex- 2000e-3(a). definition of nor the 42 U.S.C. employees, a literal pressly includes have that “em A number of courts held exclude them reading of the statute would 704(a) ployee” purposes section acts retaliation.” Ante coverage (at employees” least where means “former apparently A of courts have at 884. number related). alleged job How oversight as an Con- “gap” treated this ever, in its deci the Fourth Circuit en banc gress than intentional omission. rather Oil 70 F.3d 325 sion Robinson Shell court, courts, and Thus now this those — -, Cir.1995), granted cert. U.S. statutory in the Con- decided fill (1996), held 116 S.Ct. 134 L.Ed.2d 645 gress left out. This court now supposedly plain language of does that the by holding supplements the statute employ to protection not extend its acts of retaliation that have “post-termination Supreme granted certio ees. Court a nexus are actionable split in the rari to to resolve the Robinson they are not actionable Title VII.” Because Supreme instructs circuits. Until the Court it, Congress as drafted I

under Title VII otherwise, prefer I follow Fourth Cir respectfully must dissent. reasoning cuit’s in Robinson. divergent judiciary’s of the role Two views I. (and split. Many cause this circuit courts court) have that “em- claims terminated Yuri now this which held Fluor Daniel ployee” employee” neces- also “former reach Veprinsky it lacked the work means “ holding goals pur- sary employed. Veprinsky him this ‘to further the keep Sargent Lundy. Sargent poses eliminating discrimination em- work & found (quoting Unger, Lundy verify ployment.’” Fluor Daniel to Ante at 889 contacted 8). certainly Using F.2d at n. These Veprinsky’s pay and start in- 657 dates. lofty goals, question com- remains whether formation on Fluor Daniel’s but the contained job Congress in- or courts to system, Fluor it is the puter Daniel’s legal Lundy standards neces- Sargent & establish written formed (and $4,635 sary goals. per to achieve these The courts salary was month base $4,800 rely nature Title Veprinsky had listed on on the remedial VII per month liberally “employee” the word application) and that his start date was construe his (the February Veprinsky employee.” Ante at 889. date also mean “former when must to allow employee- 1986 when But where word be modified became full-time —not no interpretation, a certain that word is Veprinsky first listed on Fluor Daniel’s construed; being being changed. it is unpaid employee.) Veprinsky longer payroll as telling; it provided Sargent Daniel & The use of the modifier “former” is claims Fluor necessary the word to the Lundy in retaliation is to add “former” with false information plain meaning of the Veprinsky claim had filed statute because liberally “employee,” no matter how Daniel.2 sued Fluor word Fluor construed, for, alleged encompass em- things, cannot “former among Daniel this claim, religious seq. dropped his discrimination he § et 1. 42 U.S.C. 2000e origin a full national claim—and had trial on his origi- day 2. had his court under he lost. charge. voluntarily nal VII After he Title thing ployees.” interpret agenda, impor is one statuto- clear or It tive matter how “narrowly” ry language “broadly.” agenda may or It is tant that From the be. sidelines quite thing another to rewrite a statute to upon courts can observe and comment language Congress include to exclude. process. chose legislative given we are And when process “pause” when that excludes “former “Employee” is defined statute as “an statute, employees” from a we nevertheless employed by employer.” individual cannot insert such in a statute ifas 2000e(f). “em- U.S.C. Neither the word a vote Congress. had inter ployee,” ambiguous. definition is nor its pret interpreting the law. it we must statutory require The rales of construction “apply enacted,” that Congress the law give Congress us the words used to the one we think it should enacted. ‘employee’ usage. their define common Robi nson, 70 F.3d at And that law ‘employed’ term used subsection simply protect employees” does not “former 2000e(f) commonly ‘per- used to mean against retaliatory discrimination. forming employer-employee work under an Certainly, relationship.’ term ‘em- Moreover, contrary to statements ployed’ commonly is not to mean ‘no used just that Congress and other courts could not longer performing employ- work under an have intended to leave former un- Furthermore, relationship.’ er-employee 891-92, protected, good ante at there are 2000e(f) ‘employer’ as used subsection Congress for their reasons exclusion. Had commonly employs to mean used ‘one who “employee” defined to include both those Again, of others.’ no mean- services “employed” “formerly well as those em- ingful argument can the term be made that ployed,” it would a cause have created commonly ‘employer’ is to mean ‘one used action unlimited A cause of time. action employers longer who no the services of five, one, brought for retaliation could be others.’ (since twenty years job ended even after the (citations omitted). Robinson, at 330 cause of action accrue until would not occurred). alleged Congress does ‘em- “Because not define logical a line. It at the most to draw did so ployee’ longer employed as an individual point end of the relation- as employer, meaning an is excluded —the effect, a ship. section 704 works as stat- meaning ‘employee’.” term Id. a from the repose. repose, Just a ute of like statute Congress’ ‘appli- “Additionally, inclusion of day an individual has a claim and the one employment’ persons cants as distinct for he does not. No more than a next statute coupled to ‘employees,’ from with its failure plain- repose, “grossly this is not absurd or a strong employees,’ is likewise include ‘former Robinson, ly unintended result.” See Congressional intent evidence of (J. (submit- Hall, dissenting) F.3d at 332-33 in Title anti-retalia- ‘employees’ term VII’s 704(a) grossly ting that section is absurd provision former em- tion does include day’s one will excuse an difference ployees.” Id. behavior). equally employer culpable for Other and now this court reason courts important recognize in this reading a “would It to so- literal litigant gap statutory pro- “retaliation” that the significant leave a called context against already filed of claim employer tection ... allow an to dis- has some sort [and] discriminatory an employer allegedly a former for criminate and ‘black list’ during employment. If that act a employee long employer can suc- act was as keep get- employer, from the “retaliation” cessfully employee the former violation thereby technically protects employee who ting job becoming provision a and ” reinstatement, promotion, or ‘employed by employer.’ Ante at 885. some awarded be, remedy continuing Gap may not allow us that includes a em- there but does other relationship. fill In that cir- ployer-employee this or other rewrite the statute employee could be vulnerable gap we We cannot rewrite stat- cumstance discover. and retribution from merely ute because we it deficient to subtle not-so-subtle find perceive legisla- employer carefully he The statute accomplishing what we as a sued. Support passage potentially em- Its was not assured. such a vulnerable protects wording swayed by precise often ployee. 704(a) statute, of section which in the case alleging trial na- Veprinsky went to Here only protected indi- two classes of included Now he origin and lost. tional discrimination em- “employees applicants for viduals— employer alleges his former by congres- ployment.” Bargains struck for, erroneously among things,3 a clerk “former sponsors have excluded sional $4,635 listing pay per at month instead of his 704(a) gain con- employees” from section claims, $4,800 listing and for his we cannot gressional support. Because (when February he starting date as bargains struck the behind-the-scene know time) of 1986 when he came on full instead apply the passage, to ensure we should unpaid. only are these part-time or Not certainly meaning plain of a statute. We minor, they just relatively but incidents put behind the scenes should not ourselves Congress very un- type of claims might prefer it. negotiate the law as we derstandably could want avoid. 704(a) Further, passed when it twenty years later claim five or file the same it untenable to Congress could have believed clerk, response request to a routine if a protec- its employees” “former within include prospective employer, sent the a new or for re- only relief available tion because the information. presumably inaccurate same eq- taliatory at that time was discrimination Drawing post-employment is not the line uitable, provide difficult to which would be absurd; rather it is a sensible bal- grossly Congress amended Ti- employees.” “former of the and the ance of the interests compensatory and tle VII in 1991to allow for employee. longer damages, this is no punitive so step, Going another Congress wrote the concern. But when protects not who in a “employee” defined that term word applies charge, it also filed a employees,” way that did not include “former assisted, “testified, participated or legitimate limiting protec- it had a reason investigation, proceeding, in an manner applicants for em- “employees tion Imagine protection if ex- hearing.” ployment.” Congress could have believed Or employees. Someone who tends to former prospective em- it more efficient to hold a voluntarily Company A years left earlier “appli- retaliating against an ployer liable for job Company B could be called another employment,” than to hold a former cant for investigation participate in an upon to blacklisting employer liable for employed at by a former coworker still claim employee. “participant” Company A. That has no com- exactly why know point is we don’t against Company A about his own plaint protection in Congress chose to limit the partici- if that previous employment. Yet 704(a) applicants “employees prospective employer re- pant’s present or Possibly an over- employment.” it was Company from A that quests information likely majority implies. More it sight, as the (as Veprinsky’s inaccurate turns out to be intentionally out in the was a result worked was), no matter how much time apparently reason, legislative process. Whatever participant’s employ- passed since that has meaning “employee” applying plain A, Company a ment at produce grossly a absurd result. will not 704(a) a cause of action under as this he has 704(a) or Congress rewrites section Until surely Congress court has rewritten it. “employee,” apply the we must redefines expo- anticipated magnified could have this as written. statute protection employees sure when it limited applicants. II. sweeping leg- Veprinsky’s claim Additionally, The court also holds that Title VII against him Daniel retaliated Congress. that Fluor opposition which faced islation allegations as an the Act. 3. The other relate to his status protected applicant specifically under which is remote- to seek were not presents him a efforts refused to rehire

when it comment; alleged ly impacted by decided on Posen’s she fact which cannot be question of ap- judgment. Significantly, already as an several offers of em- summary had received RTC, clearly covered plicant Veprinsky including and had ployment, one fact, to rehire and accusations accepted Refusal time.” Id. statute. one not rehire because reasoning, Vep- Fluor Daniel would alternative under Koelsch’s company in a previously engaged the he had rinsky’s claim that Fluor Daniel retaliated valid claims under lawsuit could be by providing him false information to 704(a) for em- by Veprinsky applicant as an Lundy Sargent & fails because company’s reasons for ployment. While the any already job failed to offer had the and he any way refusing may not to hire alleged false information evidence legiti- based on retaliatory and well be employment. on his adverse effect reasons, mate, impor- non-discriminatory also, Upsala College, 51 Id. See Nelson (as applicant opposed to point is that an Cir.1995) tant (3d (rejecting post- statutory right to employee) a former has claim because termination retaliation if claims survive sum- day in court his his any evidence that plaintiff “failed to offer judgment. I concur with the mary Thus effect on her remarks had adverse these Veprinsky’s claim is conclusion that court’s employment.”). future However, regard viable. still pertaining Pollack and Stan allegations IV. of the EEOC Daniel’s disclosure and Fluor claim, Veprin- the claim connects Veprinsky has no employee, a former As applicant (42 would I send this sky’s status as an U.S.C. of action under cause for further review. (704(a)) to the district court 2000e-3(a)) back protection because confined court should be Any reversal against retaliation is limited status those issues directed allegedly employer who applicants of the related to his applicant, and not those as an I re- Therefore the violation. committed employee. as a former status the court’s conclusion spectfully dissent from employee, has Veprinsky, as a former III. Daniel for retalia- against Fluor valid claim the court that as with the court’s I concur with Finally, I do not concur tion. do statutory right v. Bel distinguishing Koelsch long applicant discussion prema- Corp., probably Cir. Elec. and that was tane 1995), Shepard, judgment 939 F.2d 484 if there was grant summary and Reed v. ture to Cir.1991). issue Reed could The retaliation the EEOC claim evidence that direct issue, secondary rejecting the claims motivating factor have been a employment. The central unrelated to if disclosure were rehire. And application for person case was whether question placement firm charge to the the EEOC substantially created a hostile sexual in his impacted Veprinsky Pollack Skan that environment could blame environment further I concur that applicant, as an status However, discharge. cause for her join as the I do not But review is order. Koelsch, law “[t]he the statement regarding the Seventh expanded discussion clear, however, post- quite circuit is and Koelsch. opinions Reed Circuit’s actionable under events are not termination reasons, I foregoing For these and 2000e-3(a)” mere dicta. is more than part. part concur dissent holding unnec reasons such court doomed claim was essary because Koelsch’s alleged had no that the

by the fact job search. This

impact on Koelsch’s affirming the reason for

merely an added But consider claim. of Koelseh’s

dismissal if Koelsch: “Even

the actual relief, possible Koelsch’s offered ble notes dispute any) retaliatory the what role Garry Fluor Daniel Tackett of indicated suggested by Tackett’s motive remark to open a “no” Lent that for the reject upon Veprin had Lent its decision engineer position design because he was sky open position. for the We have stated suing religious company for discrimina- the summary judgment that motions for in dis Thus, Dep. Group tion. Lent 34 & Ex. par crimination cases must be decided with certainly may infer that Fluor Daniel care, one given ticular the extent which the adverse, employment-related took action questions credibility often merits turn on him) (it against Veprinsky refused re-hire E.g., and intent. v. Budd 66 F.3d Collier (7th he had a Title part at least in filed Cir.1995); v. 892 DeLuca Winer company. (7th the Robin- charge Indus., Inc., Cir.1995). 793, 797 53 F.3d Inc., Indus., v. 1164- Also, case, son PPG as in the other non-movant Cir.1994). (7th Indeed, proof 66 & nn. 2-3 every entitled the benefit of reasonable played a role in the improper that motive permits. E.g., the record inference that rarely stronger than employer’s Climber, Inc., decision is v. 72 Sky Grottkau this kind of evi- (7th States, this. the face of direct Cir.1996); Stratmeyer v. United dence, Cir.1995). ultimately must estab- Fluor Daniel 1340, 1345 F.3d When the 67 evidence, lish, by of the that preponderance sup plaintiff produced direct evidence if Veprinsky even a it would not have rehired the porting strong employer inference that way its deci- retaliated, to retaliate no tainted particular desire must take care court Hopkins, sionmaking. Price Waterhouse employer’s evaluating the evidence that 1775, 1795, 228, 258, 104 490 U.S. 109 S.Ct. decision have made the same absent would (1989) (plurality); id. 109 L.Ed.2d 268 As the Eleventh retaliatory motive. that (O’Connor, J., concurring); S.Ct. Circuit has noted: Telecommunications, Inc., Randle v. LaSalle stage, summary judgment an em- At the (7th Cir.1989); also 42 F.2d 569 see 876 only if the ployer prevail can on this issue 2000e-2(m). U.S.C. its deci- record evidence that is so based on discrimination sion above, company sought As summarized strong trier of fact must that a reasonable summary judgment matter on to resolve this words, conclude; in there must be so position by demonstrating for which material fact but that genuine no issue of required familiarity with Veprinsky applied made same would have software, design AutoCAD absent the dis- employment decision even familiarity, and no such resume disclosed criminatory motive. position, hired for the individual Community College, Tassie, Burns v. Gadsden State experience with Auto- John did have Cir.1990) record, (per cu on the evidence CAD. Based riam) (quoted approval Visser Auto- persuaded district court was Inc., Assocs., Eng’g Packer concoct- requirement was valid CAD J., (7th Cir.1991) (en banc) (Flaum, fact, dissent that a after ed the defendant (majority opinion). ing)); see id. at 660 Veprin- comparison of Tassie’s resume with may infer Fluor agree that one Daniel We sky’s have indicated Fluor would Commerce, supra, Bank Daniel’s evidence that American rejected if Fluor Daniel har- F.2d at 1164-65. The sole basis on which even been compa- disposed But claim was no motive to retaliate. district court of this bored Reed; ground summary strong rational no other ny’s evidence not so Having contrary judgment argued inference has been to us. factfinder could draw poses played a made clear that Reed no obstacle retaliatory that a motive substantial

Case Details

Case Name: Yuri D. Veprinsky v. Fluor Daniel, Inc.

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Jun 26, 1996

Citation: 87 F.3d 881

Docket Number: 95-2197

Court Abbreviation: 7th Cir.