Blog Post

Birdyshaw v. Dillard's Inc., No. 08-12824 (11th Cir. Jan. 28, 2009); McGovern v. City of Philadelphia, No. 08-1632 (3d Cir. Jan. 28, 2009)

Posted by: Paul Mollica
January 28, 2009
Topic: Daily Developments in EEO Law

Retaliation plaintiffs get a wake-up call -- after Monday's Crawford decision -- in an unpublished Eleventh Circuit decision. It reminds us that if an employee is not very specific about the basis of her workplace complaints, she may not be deemed to have "opposed" discrimination under Title VII. The Third Circuit joins other circuits, and against the Ninth Circuit, in holding that § 1981 does not create an alternative basis for liability against state actors.

Birdyshaw v. Dillard's Inc., No. 08-12824 (11th Cir. Jan. 28, 2009): The plaintiff complained about the following incident about a store manager named Moretti --

"On November 25, 2000, Moretti became angry with Birdyshaw for having not filled a particular position in the store. Specifically, Moretti asked her whether she had contacted other managers about the job opening, and Birdyshaw responded that she had done so in a managers' meeting. Moretti challenged her assertion, screamed at her, called her a liar, and told her not to 'bullshit' him. Birdyshaw became terrified, told Moretti that his language was inappropriate, and walked out of the meeting. Birdyshaw made it back to her office, at which point she cried and experienced a headache and chest and arm pains. She proceeded to walk out of the store so that she could go to the doctor. Moretti caught up to her as she was walking out and grabbed her arm. He told Birdyshaw that she needed to return to the store, and Birdyshaw refused, stating that he had been very rude and abusive. Moretti responded that he did not like being lied to and, after Birdyshaw insisted that she had not been lying, Moretti called her a 'lying bitch.' Ultimately, Birdyshaw left the mall, called a doctor, and went to the emergency room."

She wrote a letter to the general manager (Willey), who in response described her complaint in writing as one alleging a "hostile and harassing work environment." (Willey found no grounds for the complaint, though.)

The district court found, and the Eleventh Circuit affirms, that Birdyshaw's complaint was not a protected activity under Title VII's anti-retaliation section, 42 U.S.C. § 2000e-3(a). Opposition to a discriminatory practice, the panel holds, requires that the challenged action be characterized as discrimination within the ambit of Title VII. A mere vague complaint of hostility is not enough --

"In Birdyshaw's November 26, 2000, letter to Dillard's management, she described the November 25 incident with Moretti. Significantly, however, nowhere in the letter did she accuse Moretti of discriminating against her on account of a protected ground. In Coutu v. Martin County Bd. of County Com'rs, we held that an employee's internal grievance 'did not constitute statutorily protected activity' because '[u]nfair treatment, absent discrimination based on race, sex, or national origin, is not an unlawful employment practice under Title VII.' 47 F.3d 1068, 1074 (11th Cir. 1995). In this case, Birdyshaw's letter simply described Moretti's harsh treatment of Birdyshaw in connection with a work related dispute; it did not allege that Moretti was discriminating against her on account of a protected ground. Indeed, Birdyshaw acknowledged at her deposition that the letter did not inform Dillard's that Moretti was engaged in gender discrimination."

Employees must, apparently, check the right box on the complaint form, utter the right words or risk losing any protection under Title VII's opposition clause.

McGovern v. City of Philadelphia, No. 08-1632 (3d Cir. Jan. 28, 2009): Enterprising plaintiffs continue to pursue claims against local government directly under 42 U.S.C. § 1981, but -- except for the Ninth Circuit -- no court of appeals has bitten. The Third Circuit becomes the latest to hold that § 1981 doesn't create a cause of action against state actors, in a case involving a Caucasian city worker.

Though recognizing that the prohibitions of § 1981 against race discrimination apply to government (Jett v. Dallas Independent School District, 491 U.S. 701 (1989)), the Third Circuit reaffirms that the only judicial remedy for a violation of § 1981 is 42 U.S.C. § 1983. (Why does this matter, you ask? Among other reasons, § 1981 employment claims have four-year limitations periods, which in this case would have made a difference.)

The plaintiff attempts to get around that problem by arguing that -- post-Jett -- the 1991 amendments to § 1981 impliedly created a new cause of action. The Third Circuit says "no," as have five other circuits, and specifically disaffirms the Ninth Circuit's decision.

"In our view, the Ninth Circuit's reasoning is inconsistent with the logic of Jett, which held that courts should not imply rights of action where Congress has already established a different remedial scheme. See Jett, 491 U.S. at 731. In other words, § 1981(c) can establish equal rights for parties against private and state defendants without establishing equal remedies; the fact that § 1981(c) establishes a private right of action against private defendants does not lead to the conclusion that a parallel right must exist for suits against state defendants if such actions are provided for elsewhere in the statutory scheme. See id. Indeed, federal courts often view the availability of other enforcement mechanisms in a statutory scheme as preclusive of an implied cause of action."

And then, salting the earth behind it, the panel adds that there would have been no merits to the claim anyway, because the employee failed to "allege that the discrimination he suffered was pursuant to an official policy or custom of the City," under Monell v. New York Department of Social Services, 436 U.S. 658 (1978).