IN THE UNITED STATES COURT OF APPEALS

FOR THE AMES CIRCUIT

______

DOCKET NO. 04-689 ______

DIANA RIVERA, PLAINTIFF-APPELLANT

v.

BERRYMAN ACADEMY, DEFENDANT-APPELLEE

______

REPLY BRIEF FOR THE PLAINTIFF-APPELLANT, DIANA RIVERA ______

Counsel of Record: Counsel for Plaintiff-Appellant: JASON VOLLBRACHT BRYCE CALLAHAN 1679 MASSACHUSETTS AVENUE ANDREW COOPER CAMBRIDGE, MA 02138 JORDAN HELLER (617) 642-2350 JOSHUA HURWIT NATHAN KITCHENS John Hart Ely Memorial Team TABLE OF CONTENTS

TABLE OF AUTHORITIES...... ii ARGUMENT...... 1 I. DR. RIVERA PRESENTED AN ISSUE OF MATERIAL FACT AS TO WHETHER HER UNWANTED REASSIGNMENT WAS AN ADVERSE EMPLOYMENT ACTION...... 1 A. Section 2000e-3(a) Supports a Definition of Adverse Employment Action That Covers the Harm Dr. Rivera Suffered...... 1 1. Appellee Misinterprets the Text of Section 2000e-3(a) in an Attempt to Restrict Its Scope...... 1 2. The Purpose of the Anti-Retaliation Provision Supports a Flexible Approach to the Adverse Employment Action Inquiry...... 3 B. Dr. Rivera’s Unwanted Reassignment Was Adverse Because It Caused a Setback to Her Career...... 5 1. Removing Dr. Rivera from Her Area of Interest Is Actionable.5 2. Berryman Removed Dr. Rivera from Her Entire Area of Expertise...... 6 3. The Record Provides Sufficient Evidence of Future Career Damage to Dr. Rivera...... 6 II. DR. RIVERA PRESENTED AN ISSUE OF MATERIAL FACT AS TO WHETHER SHE ENGAGED IN PROTECTED ACTIVITY...... 8 A. Section 2000e-3(a) Supports Dr. Rivera’s Third-Party Retaliation Claim...... 8 B. Dr. Rivera’s Actions in Assisting Her Husband’s Charge Are Protected Under the Participation Clause...... 9 1. Dr. Rivera Assisted and Participated in Her Husband’s Formal EEOC Proceeding...... 9 2. Dr. Rivera’s Actions Were Directly Tied to Her Husband’s Formal Proceeding...... 10 C. Dr. Rivera’s Opposition Conduct Constitutes Protected Activity. 12 CONCLUSION...... 14

i TABLE OF AUTHORITIES

CASES Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304 (6th Cir. 1989).9 Bryson v. Chicago State University, 96 F.3d 912 (7th Cir. 1996)...... 7 Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998)...... 1 Burns v. United States, 501 U.S. 129 (1991)...... 8 Clover v. Total Sys. Servs., Inc., 176 F.3d 1346 (11th Cir. 1999)...... 10 DiIenno v. Goodwill Indus. of Mid-Eastern Pa., 162 F.3d 235 (3d Cir. 1998) 4, 5 Doe v. DeKalb Counry Sch. Dist., 145 F.3d 1441 (11th Cir. 1998)...... 6 Dollis v. Rubin, 77 F.3d 777 (5th Cir. 1995)...... 2 EEOC v. Crown Zellerbach Corp., 720 F.2d 1008 (9th Cir. 1983)...... 12 Faragher v. City of Boca Raton, 524 U.S. 775 (1998)...... 2 Felix v. Sun Microsystems, Inc., No. JMF-03-1304, 2004 WL 911303 (D. Md. April 12, 2004)...... 13 Furnco Constr. Co. v. Waters, 438 U.S. 567 (1978)...... 3, 4 Galabya v. New York City Bd. of Educ., 202 F.3d 636 (2d Cir. 2000)...... 6, 7 Hernandez v. Spacelabs Med. Inc., 343 F.3d 1107 (9th Cir. 2003)...... 14 Hillig v. Rumsfeld, 381 F.3d 1028 (10th Cir. 2004)...... 2 Holt v. JTM Indus., Inc., 89 F.3d 1224 (5th Cir. 1996)...... 10 Hudson v. Norfolk S. Ry. Co., 209 F. Supp. 2d 1301 (N.D. Ga. 2001)...... 10 Jones v. Sch. Dist. of Phila., 198 F.3d 403 (3d Cir. 1999)...... 5 Knox v. Indiana, 93 F.3d 1327 (7th Cir. 1996)...... 4 McDonnell v. Cisneros, 84 F.3d 256 (7th Cir. 1996)...... 1, 8 Merritt v. Dillard Paper Co., 120 F.3d 1181 (11th Cir. 1997)...... 3 Page v. Bolger, 645 F.2d 227 (4th Cir. 1981)...... 2 Payne v. McLemore’s Wholesale & Retail Stores, 654 F.2d 1130 (5th Cir. 1981)...... 13 Robinson v. Shell Oil Co., 519 U.S. 337 (1997)...... 5, 8, 9, 11 Rodriguez v. Board of Education of Eastchester Union Free School District, 620 F.2d 362 (2d Cir. 1980)...... 6 Smith v. Columbus Metro. Hous. Auth., 443 F. Supp. 61 (S.D. Ohio 1977). .10 Sumner v. U.S. Postal Serv., 899 F.2d 203 (2d Cir. 1990)...... 12

ii United States v. Ron Pair Enters., Inc., 489 U.S. 235 (1989)...... 9 United Steelworkers v. Weber, 443 U.S. 193 (1979)...... 13 Vasconcelos v. Meese, 907 F.2d 111 (9th Cir. 1990)...... 10 Von Gunten v. Maryland, 243 F.3d 858 (4th Cir. 2001)...... 2 White v. Burlington N. & Santa Fe Ry. Co., 364 F.3d 789 (6th Cir. 2004)...... 3

STATUTES 42 U.S.C. § 2000e-2(a) (2000)...... 1 42 U.S.C. § 2000e-3(a) (2000)...... passim

iii ARGUMENT

I. DR. RIVERA PRESENTED AN ISSUE OF MATERIAL FACT AS TO WHETHER HER UNWANTED REASSIGNMENT WAS AN ADVERSE EMPLOYMENT ACTION.

A. Section 2000e-3(a) Supports a Definition of Adverse Employment Action That Covers the Harm Dr. Rivera Suffered.

1. Appellee Misinterprets the Text of Section 2000e-3(a) in an Attempt to Restrict Its Scope.

The language of the anti-retaliation provision is broad, providing that an employer must not “discriminate against” an employee for engaging in protected activity. Civil Rights Act of 1964 § 704(a), 42 U.S.C. § 2000e-3(a) (2000). Appellee improperly uses a general employment discrimination provision, Section 2000e-2(a)

(1), to restrict the definition of adverse employment action under the anti-retaliation provision. (See Appellee’s Br. 8-9) First, the language of the two sections differs: the anti-retaliation provision has none of the qualifiers contained in Section 2000e-

2(a)(1). See §§ 2000e-2(a)(1), 2000e-3(a). Second, the anti-retaliation provision has a different function than Section 2000e-2(a)(1) and thus “may intentionally be broader, since it is obvious that effective retaliation … need not take the form of a job action.” McDonnell v. Cisneros, 84 F.3d 256, 259 (7th Cir. 1996).

Appellee continues its out-of-context attack on the anti-retaliation provision by using

Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), to apply the term “tangible employment action” to the adverse action definition. (See Appellee’s Br. 9) But

Ellerth undermines Appellee’s narrow interpretation. Ellerth specifically includes an

“undesirable reassignment” as a type of tangible employment action – precisely the harm suffered by Dr. Rivera. Ellerth, 524 U.S. at 765. Moreover, as the Supreme

1 Court noted in Faragher v. City of Boca Raton, 524 U.S. 775 (1998), a companion case decided on the same day as Ellerth, liability under Section 2000e-2(a)(1) “is not limited to economic or tangible discrimination.” Id. at 786 (internal quotations omitted). Thus, Section 2000e-2(a)(1) cannot be used to limit adverse actions to

“economic” or “tangible” harms. See, e.g., Hillig v. Rumsfeld, 381 F.3d 1028, 1031

(10th Cir. 2004) (holding Ellerth imposes no restrictions on the anti-retaliation provision). Ultimately, Appellee cannot use Section 2000e-2(a)(1) or Ellerth to support either standard it proposes – the ultimate employment decision standard or its

“narrow intermediate” standard. (Appellee’s Br. 8)

Appellee cannot provide statutory support for the ultimate employment decision standard because none exists. (See Appellant’s Br. 12-14) It was only in

1995 that the Fifth Circuit first applied the ultimate employment decision standard to a retaliation claim in Dollis v. Rubin, 77 F.3d 777 (5th Cir. 1995). Dollis supported the ultimate employment standard by citing to only one case, Page v. Bolger, 645

F.2d 227 (4th Cir. 1981). See Dollis, 77 F.3d at 781-82. The fundamental concern of

Page – that “the pretext inquiry [under § 2000e-16] must focus on the employment decision itself, not the racial component of a selection committee” – is not applicable in Dr. Rivera’s case, where this Court is only focused on the employment decision she suffered. Von Gunten v. Maryland, 243 F.3d 858, 866 n.3 (4th Cir. 2001). Even the standard’s circuit of origin has explicitly rejected the applicability of Page to retaliation claims. See id.

2 2. The Purpose of the Anti-Retaliation Provision Supports a Flexible Approach to the Adverse Employment Action Inquiry.

The purpose of Section 2000e-3(a) is obvious: to prevent employers from retaliating against employees who engage in protected activity under Title VII.

Appellee overlooks this goal and produces a series of unsubstantiated policy arguments to support its narrow reading. (See Appellee’s Br. 10) Appellee’s

“floodgates” metaphor is inapt. “[C]aseload considerations do not provide a valid basis for questioning whether the statutory language at issue … accurately reflects congressional intent.” Merritt v. Dillard Paper Co., 120 F.3d 1181, 1189 (11th Cir.

1997). Appellee minimizes the burdens that plaintiffs must overcome to reach a jury.

(See Appellant’s Br. 11-12) Moreover, Appellee presents no evidence that a broad adverse action definition leads to unmanageable caseloads. See White v. Burlington

N. & Santa Fe Ry. Co., 364 F.3d 789, 813 (6th Cir. 2004) (Clay, J., concurring)

(“[T]here are no indications that … broad rules … have opened unmanageable floodgates.”) Appellee’s foray into statistics is meaningless. (See Appellee’s Br. 11)

The fact that millions of employees have suffered adverse actions tells this Court nothing about how many employees could establish protected activity and causation and are therefore truly eligible to bring a claim under Section 2000e-3(a).

Appellee’s argument that Title VII is meant to protect managerial autonomy misconstrues the statute. (Appellee’s Br. 12) The only managerial actions that

Section 2000e-3(a) restricts are conscious decisions by employers to retaliate illegally against employees. Appellee selectively quotes Furnco Construction Corp. v. Waters,

438 U.S. 567 (1978), to suggest that courts are “less competent than employers to restructure business practices.” (Appellee’s Br. 12); Furnco, 438 U.S. at 578. But in

3 this same sentence of Furnco, the Supreme Court makes clear that courts should change business practices “when mandated to do so by Congress.” Id.

Section 2000e-3(a) is a clear mandate. Since Title VII’s anti-discrimination provisions depend on private enforcement, employers must be prevented from deterring employees from exercising their rights. (Appellant’s Br. 10) Appellee admits that its proposed standards give employers “leeway” to retaliate. (Appellee’s

Br. 13) Because the forms of retaliation “are as varied as the human imagination will permit,” Knox v. Indiana, 93 F.3d 1327, 1334 (7th Cir. 1996), such “leeway” directly contravenes Congress’s clear mandate. A restrictive adverse employment action definition supports retaliation in the aggregate because employers will target employees in different ways.

Employers often know how to punish employees in ways that cannot be categorically prohibited. See DiIenno v. Goodwill Indus. of Mid-Eastern Pa., 162

F.3d 235, 236 (3d Cir. 1998) (finding adverse action where an employer transferred an employee to a lateral position that the employer knew she was unable to perform).

The under-inclusive approaches advanced by Appellee and the district court will decide cases like Dr. Rivera’s on the threshold matter of adversity and obscure the true inquiry of Section 2000e-3(a): whether an employer acted with a retaliatory motive. The district court’s grant of summary judgment for Berryman on the issue of adversity denies Dr. Rivera the opportunity to prove that Berryman intentionally retaliated against her. This Court should adopt a fact-specific standard that addresses retaliation by giving plaintiffs like Dr. Rivera “unfettered access” to the “statutory

4 remedial mechanisms” of Title VII. (See Appellant’s Br. 14-16); Robinson v. Shell

Oil Co., 519 U.S. 337, 346 (1997).

B. Dr. Rivera’s Unwanted Reassignment Was Adverse Because It Caused a Setback to Her Career.

1. Removing Dr. Rivera from Her Area of Interest Is Actionable.

Reassigning Dr. Rivera to second grade removes her from the field of specialized cultural education she deliberately pursued. This harm is actionable. See, e.g., Jones v. Sch. Dist. of Phila., 198 F.3d 403, 412 (3d Cir. 1999).1 Appellee overlooks the traditional objective test used in retaliation cases, which “take[s] a plaintiff’s job-related attributes into account.” DiIenno, 162 F.3d at 236. Appellee’s claim that Dr. Rivera’s interest in cultural education is a subjective preference,

(Appellee’s Br. 17), disregards her chosen career path. Dr. Rivera decided to leave her previous elementary school position to earn advanced degrees in history and chose to work at Berryman because of the opportunity to pursue cultural education.

(R.15-16) This interest culminated in her development of the “Cultures of the

Americas” course. (R.15-16) Careers are about choice, and the reassignment undercuts Dr. Rivera’s goals. Because “what constitutes retaliation depends on what a person in the plaintiff's position would reasonably understand,” Dr. Rivera has provided sufficient evidence to create an issue of material fact. DiIenno, 162 F.3d at

236 (emphasis added).

1 Appellee misconstrues the facts of Jones, suggesting that the adversity of denying Jones a position teaching physics was rooted in the simultaneous shift to a “difficult campus.” (See Appellee’s Br. 17) However, the court made clear that these were two distinct adverse actions – first, he was denied teaching physics at one school, and second, he was subsequently transferred to another campus. Jones, 198 F.3d at 412. Therefore, Jones shows that removal from one’s area of interest is actionable as a distinct harm.

5 2. Berryman Removed Dr. Rivera from Her Entire Area of Expertise.

Appellee’s contention that Dr. Rivera was shifted from one “subset” of her expertise to another is not supported by the Record. (Appellee’s Br. 19) By focusing myopically on grade level, Appellee dismisses the nature of Dr. Rivera’s expertise: she has made a career as a specialist, not a generalist. She left generalist teaching to earn advanced degrees in history and to develop specialization in cultural education.

(R.15-16) The common thread of all her activities is a deep commitment to teaching about international cultures. Berryman has made clear that the social studies component of the second-grade curriculum is limited to basic skills and that introducing international cultures to second graders is not “educationally appropriate.” (R.11) Dr. Rivera is qualified to teach second grade, but to compel her to teach it through reassignment obviates her professional commitment of the last fifteen years. (R.15-17) Thus, Dr. Rivera is in an equivalently adverse position as

Dr. Rodriguez in Rodriguez v. Board of Education of Eastchester Union Free School

District, 620 F.2d 362 (2d Cir. 1980), with her advanced degrees2 and years of experience rendered “utterly useless.” Id. at 366.

3. The Record Provides Sufficient Evidence of Future Career Damage to Dr. Rivera.

Dr. Rivera presented ample evidence that the reassignment impedes her future career advancement. She has built a portfolio based on cultural education: she has

2 Other courts have emphasized the importance of advanced degrees in measuring expertise. See Galabya v. New York City Bd. of Educ., 202 F.3d 636, 641 n.3 (2d Cir. 2000); Doe v. DeKalb County Sch. Dist., 145 F.3d 1441, 1453 (11th Cir. 1998) (“Unlike the plaintiff in Rodriguez, Doe’s transfer does not substantially obviate a specialized education.”).

6 published in a professional journal and has repeatedly presented to her peers. (R.16-

17) These opportunities are directly attributable to her experience teaching “Cultures of the Americas.” (R.16-17) It is a reasonable inference that becoming a generalist second-grade teacher will deny her opportunities to bolster her professional reputation. In addition, Dr. Rivera’s previous position was as communicative as the title withdrawn in Bryson v. Chicago State University, 96 F.3d 912 (7th Cir. 1996).

(Appellant’s Br. 25); Bryson, 96 F.3d at 916. Holding herself out as a member of the

Berryman social studies department expresses her credentials in a way that she cannot convey as non-departmental generalist. (R.9) These claims are not speculative but are part of a true “setback” to her career. Galabya, 202 F.3d at 641.

Ironically, it is Appellee that engages in speculation, suggesting that teaching second grade may provide Dr. Rivera with new “material.” (Appellee’s Br. 22) The potential for a new and distinct career specialty does not allay the harm caused by derailing Dr. Rivera from the career path she has already developed. Instead,

Appellee’s suppositions present their own issues of material fact and demonstrate that

Dr. Rivera’s claims provide sufficient evidence to defeat summary judgment. Only by assuming that Dr. Rivera’s claims cannot be proven and only by taking inferences in its own favor is Appellee able to construct plausible reasons why Dr. Rivera did not meet her burden of production. (Appellee’s Br. 17-18, 22-23) Dr. Rivera has provided evidence that the reassignment will remove her from her area of interest and expertise and hinder her career development. These claims raise an issue of material fact as to whether the reassignment was adverse.

7 II. DR. RIVERA PRESENTED AN ISSUE OF MATERIAL FACT AS TO WHETHER SHE ENGAGED IN PROTECTED ACTIVITY.

A. Section 2000e-3(a) Supports Dr. Rivera’s Third-Party Retaliation Claim.

Because Section 2000e-3(a) lacks a plain and unambiguous meaning regarding third-party coverage, this Court should look at its purpose and broader context and determine that Dr. Rivera has a third-party retaliation claim. Appellee wants to prevent this Court from looking to the purpose and broader context of the anti-retaliation provision by restricting the analysis to the word “he.” (See Appellee’s

Br. 38) Appellee’s analysis rests on a restrictive reading of the methodology in

Robinson that overlooks the Supreme Court’s emphasis on the lack of language limiting Section 2000e-3(a). See Robinson, 519 U.S. at 341-42. The statute contains no qualifying language excluding coverage of third parties – nothing in the statute distinguishes third-party claims from direct complaints. Furthermore, the “pertinent legislative history” evinces no congressional intent to bar such claims. See Cisneros,

84 F.3d at 262 (holding that covering third-party retaliation under Section 2000e-3(a)

“does no great violence to the statutory language”). Appellee misconstrues

Congress’s silence as an express denial of third-party coverage. Cf. Burns v. United

States, 501 U.S. 129, 136 (1991) (“An inference drawn from congressional silence certainly cannot be credited when it is contrary to all other textual and contextual evidence of congressional intent.”). Interpreting the provision to exclude third-party claims would leave a “gaping hole” in Section 2000e-3(a)’s protection. Cisneros, 84

F.3d at 262.

Appellee does not contest that the broader context of Section 2000e-3(a) favors protection of third parties. Excluding third-party retaliation claims provides

8 perverse incentives for employers to circumvent Section 2000e-3(a)’s protection by discriminating against the close relatives of employees who exercise their Title VII rights. (See Appellant’s Br. 38-40) Such retaliation undermines the purpose of the anti-retaliation provision: “[m]aintaining unfettered access to statutory remedial mechanisms.” Robinson, 519 U.S. at 346. The ambiguous statutory language must be interpreted to cover Dr. Rivera’s claim to ensure that “the statutory scheme is coherent and consistent.” United States v. Ron Pair Enters., Inc., 489 U.S. 235, 240

(1989).

B. Dr. Rivera’s Actions in Assisting Her Husband’s Charge Are Protected Under the Participation Clause.

1. Dr. Rivera Assisted and Participated in Her Husband’s Formal EEOC Proceeding.

Dr. Rivera’s actions in furthering her husband’s EEOC complaint constitute assistance and participation “in any manner” in a “proceeding” under Section 2000e-

3(a). § 2000e-3(a). The “proceeding” in question is her husband’s EEOC charge.

Appellee ignores the existence of this “proceeding” and instead argues that Dr. Rivera failed to engage the machinery of Title VII because she did not conduct a statutorily- defined “investigation.” (Appellee’s Br. 27-28) Appellee’s attempts to establish narrower standards for what constitutes an “investigation” are irrelevant and unrelated to the question of whether Dr. Rivera assisted or participated “in any manner” in her husband’s claim. Mr. Rivera’s filing of formal charges with the EEOC already constituted a “proceeding” that satisfies the “investigation, proceeding, or hearing under this subchapter” clause of Section 2000e-3(a). Booker v. Brown & Williamson

Tobacco Co., 879 F.2d 1304, 1313 (6th Cir. 1989) (filing formal EEOC charges is a

9 “proceeding” under Section 2000e-3(a)). It is well settled that an employee’s participation or assistance in a coworker’s claim can constitute protected activity.

See Clover v. Total Sys. Servs., Inc., 176 F.3d 1346, 1353 (11th Cir. 1999)

(protecting third-party participation in the context of EEOC charges).

In dismissing Dr. Rivera’s fact-finding as “gossiping,” Appellee fails to recognize that Dr. Rivera’s actions were in the context of a pending, formal charge.

(Appellee’s Br. 29) Appellee cites cases in which protected activity was not found precisely because there was no EEOC claim in which anyone could have participated.

(See Appellee’s Br. 27-28); Vasconcelos v. Meese, 907 F.2d 111, 113 (9th Cir. 1990)

(finding no protection because charges were made outside of the context of the

EEOC); Hudson v. Norfolk S. Ry. Co., 209 F. Supp. 2d 1301, 1306-08 (N.D. Ga.

2001) (finding no protection for coworker conversations outside the context of EEOC charges).

2. Dr. Rivera’s Actions Were Directly Tied to Her Husband’s Formal Proceeding.

The remaining question is whether Dr. Rivera had to do anything “formal[ly]” in order to participate in her husband’s proceeding. (R.24) The district court and

Appellee cite no authority for any view that formal conduct is mandated by the statute. The statute’s language contravenes this view (Appellant’s Br. 41), and the relevant case law supports Dr. Rivera. See Smith v. Columbus Metro. Hous. Auth.,

443 F. Supp. 61, 64 (S.D. Ohio 1977) (protecting informal participation because any information a third-party employee provides can be compelled or impeached in a future proceeding); see also Holt v. JTM Indus., Inc., 89 F.3d 1224, 1227 (5th Cir.

1996) (omitting “formal” from the “in any manner” analysis while finding it likely

10 that relatives “who are at risk for retaliation will have participated in some manner in a coworker’s charge”) (emphasis in original).

Appellee does not contest the district court’s finding that Dr. Rivera raised an issue of fact as to whether she “might have provided some assistance.” (R.24

(emphasis added)) Dr. Rivera “thoroughly” discussed the complaint with her husband and elicited information concerning his pending complaint from “several of her colleagues who had better opportunities to observe [her] husband’s professional interactions with Mr. Lowell.” (R.18) Dr. Rivera’s conduct was directly related to uncovering information about the underlying merits of the EEOC charge and could have identified witnesses had Mr. Rivera’s claim proceeded to trial. Her assistance was particularly important since Mr. Rivera was not present at the school to uncover information on his own. The nexus between Dr. Rivera’s actions and the formal charge is tight. Dr. Rivera’s actions are clearly distinguishable from those Appellee characterizes as “general support.” (Appellee’s Br. 30-31)

In light of Appellee’s view that Section 2000e-3(a) bars third-party retaliation claims, Appellee’s reading of the participation clause creates incentives for employers to fire close relatives of employees who file EEOC complaints. Employers will target unprotected relatives before the claim gets to a point where the relatives can

“participate” or “assist” the complainant “in any manner.” See Robinson, 519 U.S. at

346 (cautioning against interpreting Title VII to “provide a perverse incentive for employers to fire employees who might bring Title VII claims”).

11 C. Dr. Rivera’s Opposition Conduct Constitutes Protected Activity.

Dr. Rivera’s statements to her supervisor opposing Appellee’s unlawful discrimination constitute protected conduct under Section 2000e-3(a). Appellee relies on EEOC v. Crown Zellerbach Corp., 720 F.2d 1008 (9th Cir. 1983), to assert that Dr.

Rivera failed to identify a specific discriminatory practice. (Appellee’s Br. 33-34);

Crown Zellerbach, 720 F.2d at 1012. However, the Crown Zellerbach court found opposition even though the employees alleged only general “discrimination” and

“racism” and did not mention a specific practice. Id. The court held that the unlawful employment practices at issue could be inferred from context. Id. Dr. Rivera easily meets this standard because she commented on the disrespectful treatment of her husband, complained about the lack of minorities at Berryman, and elicited information from her colleagues, all in the context of her support for her husband’s

EEOC claim. (R.12, 18-19) Moreover, her comments were directed to Mr. Lowell – her supervisor, the very person accused of discriminatory action in Mr. Rivera’s

EEOC complaint, and the person “principally responsible” for managing Berryman’s response. (R.2, 17-18, 12) Dr. Rivera’s statements communicate her opposition to

Berryman’s discrimination more explicitly than the generic claims of

“discrimination” in Crown Zellerbach. Most importantly, by supporting the position in her husband’s claim, she directly opposed a specific practice made illegal under

Title VII: Berryman’s alleged illegal discrimination against Mr. Rivera. See Crown

Zellerbach, 720 F.2d at 1013; Sumner v. U.S. Postal Serv., 899 F.2d 203, 209 (2d Cir.

1990) (designating “support of co-workers who have filed formal charges” as protected opposition activity).

12 Appellee’s claim that Dr. Rivera lacked a reasonable good faith belief that

Berryman’s discriminatory practices violated Title VII also ignores her statement supporting Mr. Rivera’s EEOC position. But by relying on Felix v. Sun

Microsystems, Inc., No. JMF-03-1304, 2004 WL 911303 (D. Md. April 12, 2004),

Appellee highlights the difference between that case’s unsuccessful plaintiff, who the court suggested might have established opposition conduct had she mentioned her husband’s EEOC claim, and Dr. Rivera, who did exactly that. (Appellee’s Br. 35);

Felix, 2004 WL 911303, at *19. Because Dr. Rivera opposed employment discrimination alleged in an EEOC complaint, Appellee cannot credibly challenge her reasonable good faith belief that the conduct she opposed was illegal under Title VII.

See Payne v. McLemore’s Wholesale & Retail Stores, 654 F.2d 1130, 1137-38 (5th

Cir. 1981) (protecting opposition based on reasonable, rather than correct, belief that the conduct opposed was an unlawful employment practice). Dr. Rivera’s statements characterizing Berryman as a difficult place to be a minority and noting its lack of diversity further support her claim. (R.18-19) Appellee is incorrect that “a charge of ethnic imbalance cannot be held to refer to an illegal employment practice.”

(Appellee’s Br. 36) Courts can consider racial imbalance as evidence of a Title VII violation. See United Steelworkers v. Weber, 443 U.S. 193, 205 n.5 (1979).

Faced with Mr. Lowell’s concession that Dr. Rivera supported her husband’s

EEOC complaint (R.12), Appellee urges this Court to erase this fact from the Record.

(Appellee’s Br. 2) Appellee asks this Court to ignore Mr. Lowell’s own statement that “while [Mr. Rivera’s] complaint was pending at the EEOC, [Dr. Rivera] raised the matter with me, and in that conversation, she expressed support for her husband’s

13 position.” (R.12) Appellee’s insistence that Dr. Rivera’s statement was unrelated to her husband’s EEOC claim strains reason. (Appellee’s Br. 36) According to basic syntax, “the matter” Mr. Lowell referred to and that Dr. Rivera raised is Mr. Rivera’s

EEOC complaint. (R.12)

Appellee is not at liberty to misconstrue the Record simply because the statement comes from its own witness. This Court must review the record as a whole and draw all reasonable inferences in favor of Dr. Rivera. See Hernandez v.

Spacelabs Med. Inc., 343 F.3d 1107, 1112 (9th Cir. 2003). Appellee’s attempt to purge any reference to the position Mr. Rivera took in his EEOC complaint from Dr.

Rivera’s “support for her husband’s position” defies logic and inverts the law. (R.12)

Appellee draws every inference in favor of Berryman instead of in favor of Dr.

Rivera. See Hernandez, 343 F.3d at 1112. Dr. Rivera has raised an issue of material fact.

CONCLUSION

For the foregoing reasons, Dr. Rivera respectfully requests that this Court reverse the district court’s summary judgment order.

Respectfully submitted,

______Jason Vollbracht Counsel of Record Counsel for Plaintiff-Appellant Bryce Callahan Andrew Cooper Jordan Heller Joshua Hurwit Nathan Kitchens

14 STATUTORY APPENDIX

42 U.S.C. § 2000e-2(a) (2000):

(a) Employer practices

It shall be an unlawful employment practice for an employer--

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.

42 U.S.C. § 2000e-3(a) (2000):

(a) Discrimination for making charges, testifying, assisting, or participating in enforcement proceedings

It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment, for an employment agency, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs, to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

15