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Chapter 20 - Retaliation Claims
20.300 Protected activity

20.320 Reasonable belief requirement

Supreme Court

In Clark County School Dist. v. Breeden, 532 U.S. 268, 121 S.Ct. 1508 (2001), the Supreme Court held that the facts of this case cannot support a claim of retaliation. Breeden, her male supervisor and a male co-worker were in a meeting reviewing psychological evaluations of four job applicants. One report noted that an applicant had once told a co-worker: "I hear making love to you is like making love to the Grand Canyon." The supervisor read the comment aloud and commented that he did not know what it meant. The male co-worker said: "I'll tell you later," and both men chuckled. Breeden claims she was retaliated against for complaining of this conduct. This complaint was not "protected activity" because no reasonable person could have believed that the incident violated Title VII.

1st Circuit

In Benoit v. Technical Mfg. Corp., 331 F.3d 166 (1st Cir. 2003), the court explained:

the employment activity or practice that [the plaintiff] opposed need not be a Title VII violation so long as [the plaintiff] had a reasonable belief that it was, and he communicated that belief to his employer in good faith. Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 261-62 (1st Cir. 1999).

2d Circuit

In McMenemy v. City of Rochester, 241 F.3d 279 (2d Cir. 2001), the court held:

We held in Wimmer that the employment practices opposed by the plaintiff need not have "actually amounted to a violation of Title VII." Id. at 134. Rather, the plaintiff must have had a "good faith, reasonable belief that the underlying challenged actions of the employer violated the law." Id. (quoting Manoharan v. Columbia Univ. College of Physicians & Surgeons, 842 F.2d 590, 593 (2d Cir. 1988)) (internal quotation marks omitted).

3d Circuit

In Moore v. City of Philadelphia, 461 F.3d 331 (3d Cir. 2006), the court explained:

Whether the employee opposes, or participates in a proceeding against, the employer's activity, the employee must hold an objectively reasonable belief, in good faith, that the activity they oppose is unlawful under Title VII. Clark County v. Breeden, 532 U.S. 268, 271 (2001) (per curiam) (rejecting retaliation claim where "[n]o reasonable person could have believed that" the underlying incident complained about "violated Title VII's standard" for unlawful discrimination); Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1085 (3d Cir. 1996) (retaliation plaintiff must "act[] under a good faith, reasonable belief that a violation existed").

4th Circuit

In Jordan v. Alternative Resources Corp., 458 F.3d 332 (4th Cir. 2006), the court explained:

we have . . . held that opposition activity is protected when it responds to an employment practice that the employee reasonably believes is unlawful. EEOC v. Navy Fed. Credit Union, 424 F.3d 397, 406-07 (4th Cir. 2005). Because the analysis for determining whether an employee reasonably believes a practice is unlawful is an objective one, the issue may be resolved as a matter of law. See Clark County Sch. Dist. v. Breeden, 532 U.S. 268 (2001) (per curiam) (resolving the objective reasonableness of Title VII plaintiff's beliefs through the summary judgment procedure).

Jordan, 458 F.3d at __ (italics in original and (citations omitted).

5th Circuit

In Byers v. Dallas Morning News, Inc., 209 F.3d 419 (5th Cir. 2000), the court explained:

Byers need not prove that [the employer's] practices were actually unlawful, but only that he had "a reasonably belief that the employer was engaged in unlawful employment practices." Payne v. McLemore's Wholesale & Retail Stores, 654 F.2d 1130, 1140 (5th Cir. 1981), cert denied 455 U.S. 1000, 102 S.Ct. 1630, 71 L.Ed.2d 866 (1982) (emphasis added); see also Harvey v. Chevron USA, Inc., 961 F.Supp. 1017, 1032 (S.D. Tex. 1997) (holding that a showing of subjective good faith alone is insufficient).

6th Circuit

In Johnson v. University of Cincinnati, 215 F.3d 561 (6th Cir. 2000), the court explained the opposition clause:

The EEOC has qualified the scope of the opposition clause by noting that the manner of opposition must be reasonable, and that the opposition be based on "a reasonable and good faith belief that the opposed practices were unlawful." Id.

However, the court also explained the participation clause:

The "exceptionally broad protections" of the participation clause extends to persons who have "participated in any manner" in Title VII proceedings. Pettway v. American Cast Iron Pipe Co., 411 F.2d 998, 1006 (5th Cir. 1969). Protection is not lost if the employee is wrong on the merits of the charge, Womack v. Munson, 619 F.2d 1292, 1298 (8th Cir. 1980), cert. denied, 450 U.S. 979, 101 S. Ct. 1513, 67 L. Ed. 2d 814 (1981), nor is protection lost if the contents of the charge are malicious or defamatory as well as wrong. Pettway, 411 F.2d at 1007. Thus, once activity in question is found to be within the scope of the participation clause, the employee is generally protected from retaliation.

Booker, 879 F.2d at 1312.

Johnson, 215 F.3d at ___.

7th Circuit

In Firestine v. Parkview Health System, Inc., 388 F.3d 229 (7th Cir. 2004), the court explained:

In order to establish that she had engaged in a protected activity, Firestine was required to demonstrate that she complained about an act that she " 'reasonably believed in good faith . . . violated Title VII.' " Fine v. Ryan Int'l Airlines, 305 F.3d 746, 752 (7th Cir. 2002) (quoting Alexander v. Gerhardt Enters., Inc., 40 F.3d 187, 195 (7th Cir. 1994)); see Dey v. Colt. Constr. & Dev. Co., 28 F.3d 1446, 1457-58 (7th Cir. 1994). Only a groundless claim "resting on facts that no reasonable person possibly could have construed as a case of discrimination" could not constitute a statutorily protected activity. Fine, 305 F.3d at 752. And a mistake as to the merits of a complaint does not cost an employee the protection of Title VII. Mattson v. Caterpillar, Inc., 359 F.3d 885, 892 (7th Cir. 2004).

8th Circuit

Peterson v. Scott County, 406 F.3d 515, 525 n.3 (8th Cir. 2005)("plaintiffs who reasonably believe that conduct violates Title VII should be protected from retaliation even if a court ultimately concludes that plaintiff was mistaken in her belief.").

9th Circuit

In Freitag v. Ayers, 468 F.3d 528 (9th Cir. 2006), the court explained:

With respect to [whether the plaintiff engaged in protected activity], "opposition clause protection will be accorded whenever the opposition is based on a reasonable belief that the employer has engaged in an unlawful employment practice." Moyo v. Gomez, 40 F.3d 982, 984 (9th Cir. 1994) (internal quotes omitted) (emphasis in original).

10th Circuit

In Hertz v. Luzenac America, Inc., 370 F.3d 1014 (10th Cir. 2004), the court explained:

A plaintiff need not convince the jury that his employer had actually discriminated against him; he need only show that when he engaged in protected opposition, he had a reasonable good-faith belief that the opposed behavior was discriminatory. See Crumpacker v. Kansas Dep't of Human Res., 338 F.3d 1163, 1172 (10th Cir. 2003).

In Crumpacker v. Kansas, Dept. of Human Resources, 338 F.3d 1163 (10th Cir. 2003), the court explained:

   The Supreme Court, however, recently rejected by implication any interpretation of Title VII that would permit plaintiffs to maintain retaliation claims based on an unreasonable good-faith belief that the underlying conduct violated Title VII. Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 269 (2001).

D.C. Circuit

In George v. Leavitt, 407 F.3d 405 (D.C. Cir. 2005), the court explained:

   We have held that "an employee seeking the protection of the opposition clause [must] demonstrate a good faith, reasonable belief that the challenged practice violates Title VII." Parker v. Balt. & Ohio R.R. Co., 652 F.2d 1012, 1020 (D.C. Cir. 1981).




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