Jean G. Mattern v. Eastmern Kodak Company
 95-40836


 IN THE UNITED STATES COURT OF APPEALS
 FOR THE FIFTH CIRCUIT
 _____________________

 No. 95-40836
 _____________________


 JEAN G. MATTERN,

   Plaintiff-Appellee,
 v.

 EASTMAN KODAK COMPANY, et al.,

   Defendants-Appellants.

 _____________________________________________________

 On Appeal from the United States District Court
 for the Eastern District of Texas
 _____________________________________________________

 BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
 AS AMICUS CURIAE IN SUPPORT OF PETITIONS FOR REHEARING
 AND SUGGESTION OF REHEARING EN BANC
  _____________________________________________________



        C. GREGORY STEWART
        General Counsel

        J. RAY TERRY, JR.
        Deputy General Counsel

        GWENDOLYN YOUNG REAMS
        Associate General Counsel

        VINCENT J. BLACKWOOD
        Assistant General Counsel

        BARBARA L. SLOAN
        Attorney

        EQUAL EMPLOYMENT OPPORTUNITY
          COMMISSION
        Office of General Counsel
        1801 L Street, N.W.
        Washington, D.C.  20507
        (202) 663-4736

 STATEMENT OF COUNSEL

  1. I express a belief, based on a reasoned and studied professional
  judgment, that the panel decision is contrary to the following decision
  of the United States Court of Appeals for the Fifth Circuit, and that
  consideration by the full Court is necessary to secure and maintain
  uniformity of decisions in this Court:
 Capaci v. Katz & Besthoff, Inc., 711 F.2d 647 (5th Cir. 1983).

  2. I express a belief, based on a reasoned and studied professional
  judgment, that this appeal involves the following question of exceptional
  importance:
 Whether an employer violates  704 of Title VII when it retaliates
 against an employee because she complained of sexual harassment, even
 if the retaliation does not take the form of an "ultimate employment
 decision," such as a discharge, demotion or reduction in pay.


 _____________________________
 Barbara L. Sloan
        Attorney
        Equal Employment Opportunity
         CommissionTABLE OF CONTENTS
               Page

 STATEMENT OF COUNSEL .......................................     i

 TABLE OF CONTENTS ..........................................    ii

 TABLE OF AUTHORITIES .......................................   iii

 STATEMENT OF INTEREST ......................................     1

 STATEMENT OF THE ISSUE .....................................     2

 STATEMENT OF THE CASE ......................................     2

 SUMMARY OF ARGUMENT ........................................     4

 ARGUMENT

 THE PANEL'S HOLDING THAT TITLE VII PERMITS
 EMPLOYER RETALIATION UNLESS IT TAKES THE FORM
 FORM OF AN "ULTIMATE EMPLOYMENT DECISION" HAS
 NO BASIS IN THE LANGUAGE OF  704, UNDERMINES
 ENFORCEMENT OF TITLE VII AND CONFLICTS WITH
 CASE LAW IN THIS AND OTHER CIRCUITS ...................     5

 CONCLUSION .................................................    15

 CERTIFICATE OF SERVICETABLE OF AUTHORITIES

             Page(s)

 CASES

 Atkinson v. Oliver T. Carr Co.,
  40 FEP Cases 1041 (D.D.C. 1986) .......................     9

 Beckham v. Grand Affair of N.C., Inc.,
  671 F. Supp. 415 (W.D.N.C. 1987) ......................     9

 Berry v. Stevinson Chevrolet,
  74 F.3d 980 (10th Cir. 1996) .........................      9

 Buzogany v. Roller Bearing Co.,
  47 FEP Cases 1485 (D.N.J. 1986) ......................      9

 Capaci v. Katz & Besthoff, Inc.,
  711 F.2d 647 (5th Cir. 1983),
  cert. denied, 466 U.S. 927 (1984) ...................   13-14

 Dollis v. Rubin,
  77 F.3d 777 (5th Cir. 1995)........................  3, 12-14

 Dominic v. Consolidated Edison Co.,
  822 F.2d 1249 (2d Cir. 1987) ..........................     8

 EEOC v. Cosmair, Inc.,
  821 F.2d 1985 (5th Cir. 1987) .........................    10

 EEOC v. Levi Strauss & Co.,
  515 F. Supp. 640 (N.D. Ill. 1981) ......................    9

 Evans v. Sheraton Park Hotel,
  5 FEP Cases 393 (D.D.C. 1972) .........................     9

 Grant v. Bethlehem Steel Corp.,
  622 F.2d 43 (2d Cir. 1980) ............................     8

 Harris v. Forklift Systems, Inc.,
  510 U.S. 17 (1993) ....................................    12

 Kaiser Aluminum & Chemical Corp. v. Bonjorno,
  494 U.S. 827 (1990) ...................................     6
 Meritor Savings Bank v. Vinson,
  477 U.S. 57 (1986) ....................................    12

 Mitchell v. Robert Demario Jewelry, Inc.,
  361 U.S. 288 (1960) ...................................    10

 Nash v. Electrospace Systems, Inc.,
  9 F.3d 401 (5th Cir. 1993) ............................    11

 Page v. Bolger,
  645 F.2d 227 (4th Cir.),
  cert. denied, 454 U.S. 892 (1981) .....................    13

 Parker v. Baltimore & Ohio Railroad Co.,
  652 F.2d 1012 (D.C. Cir. 1981) ........................    10

 Passer v. American Chemical Society,
  935 F.2d 322 (D.C. Cir. 1991) .........................     6

 Paxton v. Union National Bank,
  688 F.2d 552 (8th Cir. 1982) ..........................     9

 Pennsylvania v. Local Union No. 542,
  347 F. Supp. 268 (E.D. Pa. 1972) ......................     9

 Perez v. FBI,
  49 FEP Cases 1342 (W.D. Tex. 1989),
 aff'd, 956 F.2d 265 (5th Cir. 1992) ...................     9

 Pettway v. American Cast Iron Pipe Co.,
  411 F.2d 998 (5th Cir. 1969) ..........................    10

 Russello v. United States,
  464 U.S. 16, 23 (1983) ................................     7

 Shirley v. Chrysler First, Inc.,
  970 F.2d 39 (5th Cir. 1992) ...........................     8

 Smith v. Secretary of Navy,
  659 F.2d 1113 (D.C. Cir. 1981) ......................   6, 12
 Toscano v. Nimmo,
  570 F. Supp. 1197 (D. Del. 1983) ......................     8

 Yartzoff v. Thomas,
  809 F.2d 1371 (9th Cir. 1987) .........................     8



 STATUTES

  The Age Discrimination in Employment Act of 1967

   29 U.S.C.  621 et seq. .........................     1

   29 U.S.C.  623(d) ..............................      6

  Title VII of the Civil Rights Act of 1964

   42 U.S.C.  2000e et seq. .....................  passim

   42 U.S.C.  703 ........................  3, 4, 6, 7, 12

   42 U.S.C.  704 ................................  passim

   42 U.S.C.  717 ................................  12, 13

  The Americans With Disabilities Act of 1990

   42 U.S.C.  12111 et seq.........................     1

   42 U.S.C.  12203(a) .............................     6

 IN THE UNITED STATES COURT OF APPEALS
 FOR THE FIFTH CIRCUIT
 _____________________

 No. 95-40836
 _____________________

 JEAN G. MATTERN,

   Plaintiff-Appellee,
 v.

 EASTMAN KODAK COMPANY, et al.,

   Defendants-Appellants.
 _____________________________________________________

 On Appeal from the United States District Court
 for the Eastern District of Texas
 _____________________________________________________

 BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
 AS AMICUS CURIAE IN SUPPORT OF PETITIONS FOR REHEARING
 AND SUGGESTION OF REHEARING EN BANC
 _____________________________________________________

 STATEMENT OF INTEREST

  The Equal Employment Opportunity Commission is the agency established
  by Congress to administer, interpret and enforce Title VII of the Civil
  Rights Act of 1964, 42 U.S.C.  2000e et seq., and other federal laws
  prohibiting employment discrimination, including the Age Discrimination
  in Employment Act of 1967 ("ADEA"), 29 U.S.C.  621 et seq., and Title
  I of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. 
  12111 et seq.  Because the enforcement schemes in these statutes depend
  on charges of discrimination filed with the EEOC by persons aggrieved by
  discrimination, Congress prohibited employers from retaliating against
  persons who file charges or otherwise complain of discrimination.
  A divided panel of this Court held in this case, however, that Title
  VII prohibits retaliation only if it takes the form of an "ultimate
  employment decision," such as discharge or demotion, but it does
  not prohibit other forms of retaliation such as harassment or unfair
  evaluations.  Because this decision, if allowed to stand, will inevitably
  deter some employees from complaining about discrimination and, thereby,
  undermine the EEOC's ability to enforce Title VII and the other statutes
  with similar enforcement schemes, we offer our views to the Court.

 STATEMENT OF THE ISSUE

  Whether an employer violates  704 of Title VII when it retaliates
  against an employee because she complained of sexual harassment, even
  if the retaliation does not take the form of an "ultimate employment
  decision," such as a discharge, demotion or reduction in pay.

 STATEMENT OF THE CASE

  Jean Mattern alleges that she was sexually harassed while she was
  employed in a mechanic's apprenticeship program at Eastman Kodak
  Co. ("Kodak").  She also alleges that, after she filed a charge with the
  EEOC complaining of the harassment, she was the target of a campaign of
  retaliation by both coworkers and supervisors because of her complaints.
  The retaliatory actions included harassment, reprimands, and poor
  evaluations of her work (which had been praised before her harassment
  complaints).  Mattern became ill during this time, and her doctor
  believed that her illness was caused by the harassment she was subjected
  to at work.  After being threatened with removal from the program based
  on her poor evaluations, Mattern resigned and brought this action,
  alleging sexual harassment, retaliation and constructive discharge.
  A jury found that Mattern was not constructively discharged and that
  Kodak was not liable for the sexual harassment because it took prompt
  remedial action.  The jury also found, however, that Mattern was the
  victim of retaliation and awarded $50,000 in compensatory damages.
  A divided panel of this Court reversed the judgment entered on that
  verdict.  The majority held that, even if all of the actions Mattern
  complained of were taken in retaliation for her complaints of sexual
  harassment, Kodak did not violate Title VII because  704 prohibits
  retaliation only when it takes the form of an "ultimate employment
  decision," which the majority defined as "'hiring, granting leave,
  discharging, promoting, and compensating'."  1997 WL 14761 ("Op.") at *6
  (quoting Dollis v. Rubin, 77 F.3d 777, 782 (5th Cir. 1995)).  Applying
  that standard, the majority concluded that none of the conduct Mattern
  complained of, including the harassment and the negative evaluations of
  her work, rose to the level of actionable retaliation.  According to the
  majority, even the negative evaluations had no more than "mere tangential
  effect on a possible future ultimate employment decision."  Id. at *7.
  Judge Dennis dissented.  He noted that, under the majority's construction
  of  704, harassment which would clearly be unlawful under  703, if
  motivated by sex or race, is not unlawful under  704, if motivated
  by retaliatory animus.  Op. at *21.  He also reviewed the cases the
  majority relied on and determined that they do not compel the result
  the majority reached.  Id. at *19-*20.

 SUMMARY OF ARGUMENT

  The panel majority erred in holding that employers are free to retaliate
  against employees for participating in Title VII proceedings if the
  retaliation cannot be considered an "ultimate employment decision."
  Section 704(a) of Title VII broadly prohibits employers from
  "discriminating" against an employee for engaging in protected activity.
  The provision is not limited to discrimination which takes the form
  of an employment action, let alone an "ultimate employment decision."
  Rather, the plain terms of the provision prohibit employers from taking
  any kind of adverse action against an employee who participates in
  proceedings under Title VII.  Broad protection against retaliation is
  essential to the enforcement scheme of Title VII.  Unless employees
  are assured that they will not be subject to any form of backlash from
  their employers for coming forward with complaints about discrimination,
  their willingness and ability to seek redress for injuries resulting
  from discrimination will be chilled.  Furthermore, since the Commission
  relies on complaints from individual employees to uncover and remedy
  discrimination, its enforcement efforts will be severely hampered by
  any judge-made limitations on the plain language and coverage of  704.
  Although the panel majority purported to tie its interpretation of 
  704 to the prohibitory language of  703, its restrictive interpretation
  of  704 excludes conduct, such as the harassment alleged in this case,
  which would be actionable under  703 if it were based on race or sex.
  Moreover, courts, including this one, have repeatedly held that conduct
  which would not meet the panel's definition of an "ultimate employment
  decision" is nevertheless prohibited under  704(a).  To the extent
  that recent Fifth Circuit case law can be read as limiting  704's
  protection to "ultimate employment decisions," it is inconsistent with
  prior precedent, as well as case law in other circuits, and, accordingly,
  cannot control.

 ARGUMENT

 THE PANEL'S HOLDING THAT TITLE VII PERMITS EMPLOYER RETALIATION UNLESS
 IT TAKES THE FORM OF AN "ULTIMATE EMPLOYMENT DECISION" HAS NO BASIS IN
 THE LANGUAGE OF  704, UNDERMINES ENFORCEMENT OF TITLE VII AND CONFLICTS
 WITH CASE LAW IN THIS AND OTHER CIRCUITS.

  The panel majority held that Kodak did not violate  704 of Title
  VII when it retaliated against Mattern for filing a charge with the
  EEOC because its retaliatory acts did not take the form of an "ultimate
  employment decision."  According to the majority,  704 does not prohibit
  an employer from subjecting an employee to a campaign of harassment
  and intimidation because she filed a charge, even where, as here, the
  harassment causes the employee physical harm.  The majority's holding
  that  704 permits some forms of retaliation cannot be reconciled with
  the language of the provision which prohibits all retaliation without
  exceptions.  It is antithetical to the purpose of the anti-retaliation
  provision, and inconsistent with decisions by this Court and other
  courts of appeals.  This Court should grant rehearing to reaffirm the
  principle that employees engaging in protected conduct are protected
  from all forms of retaliatory conduct.
  The starting point for interpreting a statute is the language of the
  statute itself.  Kaiser Alum. & Chem. Corp. v. Bonjorno, 494 U.S. 827,
  835 (1990).  Section 704(a) makes it unlawful for "an employer to
  discriminate against any of his employees or applicants for employment
  . . . because he has made a charge" under Title VII.  42 U.S.C. 
  2000e-3(a).<1>  This language broadly prohibits any discrimination
  against an employee for filing a charge.  It "speaks unconditionally,
  without limitation to acts causing particular harms such as the loss of
  a particular job or promotion."  Smith v. Secretary of Navy, 659 F.2d
  1113, 1119 n.56 (D.C. Cir. 1981).  Cf. Passer v. American Chem. Soc'y,
  935 F.2d 322, 331 (D.C. Cir. 1991) (holding that the same language in 
  4(d) of the ADEA "does not limit its reach only to acts of retaliation
  that take the form of cognizable employment actions, such as discharge,
  transfer, or demotion").
  Despite the broad language of  704, the panel majority held that the
  provision prohibits only particular forms of discriminatory treatment
  -- what it calls "ultimate employment decisions."  In justifying this
  limitation, the majority ignores the language of  704, and instead
  analyzes the strikingly different terms of  703(a), which prohibit only
  specific discriminatory employment practices.<2>  While its reasoning is
  unclear, the majority seems to suggest that, because Congress limited
  the prohibition on discrimination in  703(a) to specific employment
  practices, it must have intended to limit  704 in the same way.
  In fact, the opposite inference is compelled.  By writing  703(a) as
  it did, Congress demonstrated that it knew how to draft a prohibition
  on discrimination that is limited to specific employment practices.
  If it had wanted the prohibition on discrimination for filing a
  charge in  704(a) to be similarly limited, it would have been a
  simple matter for Congress to use the same language it had used in 
  703(a) to accomplish that end.  Instead, Congress chose to use broader
  language.  The courts should give effect to this Congressional decision.
  See Russello v. United States, 464 U.S. 16, 23 (1983) (court should
  "refrain from concluding that different language in [two statutory]
  subsections has the same meaning in each").
  The difference in the breadth of  703 and 704 makes eminent sense.
  Title VII is a statute addressing employment discrimination.
  Therefore, the substantive provisions of the statute speak only in
  terms of discrimination in employment practices.  The prohibition on
  retaliation, however, is ancillary to these substantive prohibitions.
  It was intended to ensure the effectiveness of the prohibitions on
  employment discrimination by preventing employers from intimidating
  employees who complain about discrimination.  The harm caused by
  retaliatory acts does not depend on the particular method of retaliation
  chosen by the employer.  An employer can intimidate employees by
  conduct that does not constitute an employment action as well as by
  retaliatory employment decisions.  Accordingly, it is not surprising
  that, to safeguard enforcement of Title VII, Congress drafted  704 to
  prohibit all forms of retaliatory conduct.
  The great majority of retaliation cases under both Title VII and the
  ADEA involve adverse employment decisions, undoubtedly because that
  is usually the easiest way for employers to get back at persons who
  file charges against them.<3>  However, courts have not hesitated to
  find violations of Title VII and the ADEA where employers engaged in
  retaliation which did not take the form of an employment action.  Thus,
  for example, the D.C. Circuit held that the plaintiff stated a claim for
  illegal retaliation where his employer allegedly cancelled a testimonial
  dinner in his honor because he filed a charge protesting his discharge.
  See Passer, 935 F.2d at 331 (ADEA case).  Courts have also held that
  the protection against retaliation extends to situations where the
  employer instituted judicial proceedings against the employee<4> or
  used threats or physical violence against a charging party.<5>
  The panel majority's unjustified restriction on the scope of
  the prohibition on retaliation provided by Congress threatens
  the effectiveness of  704, as well as the statute as a whole.
  Section 704 is designed "to protect the employee who utilizes the
  tools provided by Congress to protect his rights" and to ensure
  that the Commission has access to information about discrimination
  in the workplace.  See Pettway v. American Case Iron Pipe Co., 411
  F.2d 998, 1004-05 (5th Cir. 1969); see also EEOC v. Cosmair, Inc.,
  821 F.2d 1085, 1088 (5th Cir. 1987) (purpose of  4(d) of the ADEA is
  "to protect persons who resort to the legal procedures that Congress
  established in order to right congressionally recognized wrongs").
  The enforcement scheme that Congress established for Title VII "relies
  heavily on the initiative of aggrieved employees."  Parker v. Baltimore
  & Ohio Ry. Co., 652 F.2d 1012, 1019 (D.C. Cir. 1981).  The "filing of
  charges and the giving of information by employees [are] essential to
  the Commission's administration of Title VII" and "the carrying out of
  the congressional policy embodied in the Act."  Pettway, 411 F.2d at
  1005; see also Cosmair, 821 F.2d at 1090 (Commission "depends on the
  filing of charges to notify it of possible discrimination").
  Effective enforcement of the statute can only be expected "if employees
  [feel] free to approach officials with their grievances."  Mitchell
  v. Robert Demario Jewelry, Inc., 361 U.S. 288, 292 (1960) (discussing
  similar provision in Fair Labor Standards Act).  Fear of reprisal will
  deter employees from filing charges and, so, limit the Commission's
  ability to remedy Title VII violations.  The majority held in this case,
  however, that Title VII permits an employer to harass and reprimand an
  employee for filing a Title VII charge, to unfairly evaluate her work
  and threaten to discharge her, as long as the employer stops short of
  firing or demoting the employee.  If this decision is allowed to stand,
  employees within the jurisdiction of this Court will lose an important
  part of their protection against retaliation.  As a consequence, the
  Commission's ability to enforce Title VII will be compromised since
  some employees who would otherwise file charges of discrimination will
  doubtless keep silent once they become aware that they have no statutory
  protection against the sort of harassment alleged by the plaintiff in
  this case.
  The consequences of the decision will be particularly harsh for
  women like Mattern who are victims of sexual harassment by coworkers.
  Under the panel decision, a woman who is being harassed faces a dilemma.
  If she complains about the harassment, she must accept the fact that
  she will have no protection against resulting harassment, reprimands,
  unfair evaluations of her work, and any other retaliation short of an
  "ultimate employment decision."  On the other hand, if she does not
  complain, she will have no redress for the sexual harassment unless
  the conduct becomes so pervasive that her employer is charged with
  constructive notice.  See Nash v. Electrospace Systems, Inc., 9 F.3d
  401, 403-04 (5th Cir. 1993) (actual or constructive notice necessary
  for employer liability for coworker harassment).  Moreover, because many
  women faced with this dilemma will defer complaining to management or the
  EEOC, employers and the Commission will be deprived of the opportunity
  that early notice of harassment provides to prevent more serious harm.
  Furthermore, as the dissent points out, the majority's decision
  makes no sense even if one accepts the premise that the prohibition
  on retaliation in  704 should be construed as coextensive with the
  prohibition on disparate treatment in  703(a) because courts have
  never interpreted  703(a) to apply only to the "ultimate employment
  decisions" described by the panel.  On the contrary, in addition to
  discharges and demotions,  703 also bars discrimination in the "terms,
  conditions, or privileges of employment."  The Supreme Court has twice
  held that this language prohibits harassment based on race, sex or other
  protected status.  See Harris v. Forklift Systems, Inc., 510 U.S. 17,
  23 (1993); Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986).
  Accordingly, even under the majority's approach,  704(a) prohibits
  the sort of retaliatory harassment the panel described in this case.
  The majority stated that it was bound by earlier Fifth Circuit case
  law holding that Title VII's anti-retaliation provision protects only
  "ultimate employment decisions."  See Op. at *6 (citing Dollis v. Rubin,
  77 F.3d 777 (5th Cir. 1995)).  In Dollis, a panel of this Court concluded
  that  717 of Title VII, 42 U.S.C.  2000e-16, the provision applicable
  to federal sector employees, prohibits discrimination only in "ultimate
  employment decisions."  Dollis, 77 F.3d at 781-82.  Other courts have
  reached a contrary conclusion in federal sector cases, see, e.g.,
  Smith, 659 F.2d at 1114, and we believe Dollis was wrongly decided.
  However, regardless of the correctness of Dollis in cases arising
  under  717, it does not decide the question under  704 because of
  the significant difference in the statutory language.  Section 717
  provides: "All personnel actions affecting employees shall be made free
  from any discrimination based on race . . . ."  42 U.S.C.  2000e-16
  (emphasis added).  Thus, there is an argument that  717 applies only to
  employment actions -- albeit not only to "ultimate employment decisions."
  In contrast,  704 does not mention "personnel actions" but rather
  flatly prohibits "discrimination" of any kind.  Thus, Dollis in no way
  compels the result the majority reached in this case under  704.<6>
  Moreover, long before Dollis, this Court had already determined that 
  704 applies to conduct that cannot be considered an "ultimate employment
  decision."  See Capaci v. Katz & Besthoff, Inc., 711 F.2d 647 (5th
  Cir. 1983), cert. denied, 466 U.S. 927 (1984).  In Capaci, the Court held
  that an employer violated  704(a) where, because the plaintiff filed
  a charge, it issued "instructions that unusual occurrences involving
  [plaintiff] should be documented in her personnel file" solely as a
  means of harassment.  See id. at 665.  Quoting the district court,
  the Court stated that "'the[ reports of trivial events in plaintiff's
  file] could serve no purpose other than to impart to [her] a sense of
  harassment.'"  Id.  Significantly, there was no actionable "ultimate
  employment decision" in Capaci: the Court affirmed the rejection of
  the plaintiff's retaliatory discharge claim.  Id.  Capaci has not been
  overruled, and, as the dissent explains in detail, Op. at *19-*20,
  none of the other Fifth Circuit cases the majority cited can be read
  as requiring a different result.  Thus, Capaci, rather than Dollis,
  should constitute binding precedent in this case.
  As Judge Dennis noted in his dissent, this Court has long recognized
  that "to effectuate the purposes of Congress,  704(a) [must be read to
  afford] broad protection against retaliation for those who participate in
  the process of vindicating civil rights through Title VII."  Op. at *20
  (Dennis, J., dissenting).  Had Congress shared the panel majority's
  view that retaliatory harassment like that alleged in this case is
  unimportant, it could have limited the protections of the provision to
  "ultimate employment decisions," or, at a minimum, to specific types of
  employment-related practices, as it did in  703(a).  Instead, however,
  Congress plainly stated that employers could not treat employees
  differently in any significant manner, because of their participation
  in Title VII proceedings.  The effect of the majority's decision is to
  rewrite the statute in a way that drastically weakens the protection
  Congress provided.  We therefore urge the Court to vacate the panel
  decision and hold that  704 prohibits any kind of retaliatory conduct
  that would deter a reasonable person from enforcing their rights under
  Title VII.

 CONCLUSION

  For the foregoing reasons, the petition for rehearing should be granted.

       Respectfully submitted,

       C. GREGORY STEWART
       General Counsel

       J. RAY TERRY, JR.
       Deputy General Counsel

       GWENDOLYN YOUNG REAMS
       Associate General Counsel

       VINCENT J. BLACKWOOD
       Assistant General Counsel




       _______________________________
       BARBARA L. SLOAN
       Attorney

       EQUAL EMPLOYMENT OPPORTUNITY
         COMMISSION
       Office of General Counsel
       1801 L Street, N.W.
       Washington, D.C.  20507
       (202) 663-4736

 CERTIFICATE OF SERVICE

  I, Barbara L. Sloan, hereby certify that two copies of the Commission's
  Brief as Amicus Curiae were sent this 5th day of February, 1997, by
  express mail, postage prepaid, to:

     Stephen F. Fink
    Bryan P. Neal
 THOMPSON & KNIGHT, P.C.
     1700 Pacific Avenue, Suite 3300
     Dallas, TX  75201

     Russell C. Brown
     WELLBORN, HOUSTON, ADKINSON, MANN,
 SADLER, & HILL, L.L.P.
 300 W. Main Street
     Henderson, TX  75652

     Margaret A. Harris
     BUTLER & HARRIS
     3223 Smith, Suite 308
     Houston, TX  77006


 _______________________________


 1 The prohibitions against retaliation in the ADEA and the ADA are
 identical to  704(a) in all relevant respects.  See 29 U.S.C. 
 623(d); 42 U.S.C.  12203(a).

 2 Section 703(a) makes it unlawful for an employer "to fail or refuse
 to hire or to discharge . . . or otherwise discriminate against any
 individual with respect to his compensation, terms, conditions or
 privileges of employment . . . ."  42 U.S.C.  2000e-2(a).

 3 Perhaps for this reason, this Court and others have stated that a
 plaintiff must show an "adverse employment action" to establish a claim of
 retaliation under Title VII.  See, e.g., Shirley v. Chrysler First, Inc.,
 970 F.2d 39, 42 (5th Cir. 1992) (discharge); Grant v. Bethlehem Steel
 Corp., 622 F.2d 43, 46 (2d Cir. 1980) (discriminatory job referrals).
 However, in these cases it was undisputed that the challenged actions were
 employment decisions.  Accordingly, the courts' choice of words is dicta
 which had no bearing on the outcome of the cases under consideration.

  Moreover, many "adverse employment actions" found to violate  704
  would not satisfy the majority's test requiring an "ultimate employment
  decision."  See, e.g., Dominic v. Consolidated Edison Co., 822 F.2d 1249,
  1254 (2d Cir. 1987) (employer gave plaintiff poor performance ratings,
  moved his office to building under construction, and deluged him with
  work); Yartzoff v. Thomas, 809 F.2d 1321, 1377 (9th Cir. 1987) (poor
  appraisals, transfer of job duties, harassment, surveillance); Toscano
  v. Nimmo, 570 F. Supp. 1197, 1205-06 (D. Del. 1983) (harassment).

 4 See Berry v. Stevinson Chevrolet, 74 F.3d 980, 986-87 (10th Cir. 1996)
 (Title VII) (employer caused sales manager to bring criminal complaint
 against plaintiff in retaliation for filing EEOC charge); Beckham v. Grand
 Affair of N.C., Inc., 671 F. Supp. 415, 419 (W.D.N.C. 1987) (Title VII)
 (employer had charging party arrested and prosecuted for trespass in
 retaliation for filing charge); Atkinson v. Oliver T. Carr Co., 40 FEP
 Cases 1041, 1043-44 (D.D.C. 1986) (Title VII) (employer threatened to
 press criminal charges unless plaintiff dropped EEOC charges); cf. Perez
 v. FBI, 49 FEP Cases 1342, 1346-47 (W.D. Tex. 1989) (employer allegedly
 used influence with U. S. Attorney to subpoena employee's phone records
 in retaliation for bringing Title VII claim), aff'd, 956 F.2d 265 (5th
 Cir. 1992).  See also EEOC v. Levi Strauss & Co., 515 F. Supp. 640, 643
 (N.D. Ill. 1981) (filing retaliatory defamation action against charging
 party would violate  704(a)); Buzogany v. Roller Bearing Co., 47 FEP
 Cases 1485, 1486 (D.N.J. 1988) (retaliatory defamation action would
 violate  4(d) of ADEA).

 5 See, e.g., Pennsylvania v. Local Union No. 542, 347 F. Supp. 268, 287
 (E.D. Pa. 1972) (retaliating against plaintiffs for bringing Title VII
 action by beating them; the court noted that Title VII's protection
 against retaliation "will truly have little relevancy . . . if [the
 statute] is interpreted to give a court power to reinstate an employee
 who is fired [for protected activity] but [not to restrain] overt acts of
 violence against Title VII plaintiffs"); Evans v. Sheraton Park Hotel, 5
 FEP Cases 393, 396 (D.D.C. 1972) (threatening to beat employee because she
 filed charge).  See also Paxton v. Union National Bank, 688 F.2d 552, 572
 (8th Cir. 1982) (employer subjected employee to intensive interrogation
 after he filed a charge).

 6 While the majority described its "ultimate employment decision"
 standard as a "long-held rule," Op. at *7, our research has uncovered
 only one published appellate decision, other than Dollis and this one,
 where such a standard has been adopted in a Title VII or ADEA retaliation
 context.  See Page v. Bolger, 645 F.2d 227, 233 (4th Cir.), cert. denied,
 454 U.S. 892 (1981).  Page, like Dollis which relies on it, is a federal
 sector case based on  717.