No. 08-15
        _________________________________________________

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

                                 
EQUAL EMPLOYMENT OPPORTUNITY
 COMMISSION,

               Plaintiff-Respondent,
v.

STANLEY AUTOMOTIVE ENTERPRISES, INC.,

               Defendant-Petitioner.
        _________________________________________________

          On Petition for Permission to Appeal from the
 United States District Court for the Northern District of Texas
                       Hon. Sam R. Cummings
                 District Court No. 5-07CV0206-C
        _________________________________________________

    Opposition of the Equal Employment Opportunity Commission
 to Petition for Permission to Appeal under 28 U.S.C. 1292(b)
        _________________________________________________
                    
     In this enforcement action, the Equal Employment Opportunity Commission
("EEOC" or "Commission") brought suit alleging that Stanley Automotive
Enterprises ("Stanley Automotive") violated Title VII when it discharged Brian Smith
in retaliation for engaging in activities protected under the statute.  Before filing its
answer to the complaint, Stanley Automotive moved to dismiss the complaint, and it
now seeks immediate interlocutory review of the district court order denying the
motion to dismiss.
     No discovery has yet taken place, and no evidence has been made part of the
district court record.  Stanley Automotive nonetheless asks this Court to resolve what
is an inherently factual question: whether Smith's actions were sufficient to comprise
"opposition" to unlawful employment practices within the meaning of Title VII. 
Every court to consider the question  including the district court decision invoked
by Stanley Automotive  has held that encouraging co-workers to pursue
discrimination claims may comprise protected opposition. The differing conclusions
of the decisions Stanley Automotive cites are the result not of any split on the legal
question, but rather are the result of the different evidence produced by the parties
during the course of discovery.  This Court therefore should reject Stanley
Automotive's request to get an interlocutory ruling on a fact-intensive issue before
any sort of factual record has been developed for this Court to examine.
     Although the district court rejected Stanley Automotive's motion to dismiss the
retaliation claim, it nonetheless agreed to certify two questions to this Court in order
to get this Court's guidance on "what evidence" might support a retaliation claim. 
The district court's uncertainty about the precise factual boundaries of protected
conduct do not warrant interlocutory review of such an abstract question.  As this
Court has repeatedly emphasized, it will not issue advisory opinions based on a
hypothetical set of facts.  The parties should develop the factual record first, and any
ruling by the district court or this Court should be based on that factual record.

                           Background 

     The Commission filed an amended complaint on January 7, 2008, alleging that
Stanley Automotive fired Brian Smith because he engaged in activity protected under
Title VII of the Civil Rights Act of 1964, 42 U.S.C.  2000e-3(a).  R.10 at 1. 
Specifically, the complaint alleges that two female co-workers of Smith at the
Brownfield Motoplex car dealership "informed him that they were being sexually
harassed by General Manager Rick Kitchens, and asked Smith what they could do to
get that sexual harassment to stop."  R.10 at  7.  Smith responded "by encouraging
the co-workers to submit sexual harassment complaints pursuant to Defendant's
sexual harassment policy."  R.10 at  8.  The complaint alleges that only a short time
later, Stanley Automotive fired Smith because "he encouraged [his co-workers] to file
sexual harassment complaints."  R.10 at  9.  No additional information about the
Commission's claim is in the record, because Stanley Automotive immediately filed
a motion to dismiss the complaint.  R.11.  Stanley Automotive contended that, based
only on information set out in the complaint, Smith's actions could not possibly be
protected participation or opposition under Title VII.  R.11.
     The district court denied the motion to dismiss in an order dated April 18,
2008.  R.16.  The district court first reviewed relevant case law and it determined that
most courts had ruled that individuals who encouraged co-workers to file
discrimination complaints were protected from retaliation under Title VII's
opposition clause.  The district court noted one court had ruled otherwise but, the
court stressed, that opinion "was decided on distinguishable facts."  R.16 at 6.  The
court then held that permitting retaliation against individuals who help co-workers
pursue discrimination grievances is contrary to the language and purpose of Title
VII's opposition clause.  R.16 at 7-8.<1>
     Stanley Automotive moved to alter or amend the district court's order.  The
district court denied the motion, but agreed to certify two questions for interlocutory
review.  R.20.  Although the court's original decision had examined the factual
underpinnings of the various rulings on protected activity, the court's certification
order ignored those factual distinctions.  The court simply cited two decisions
reaching opposite results and concluded "there is substantial ground for difference
of opinion'" on whether encouraging co-workers to file sexual harassment complaints
is protected opposition activity.  R.20 at 2 (quoting 28 U.S.C.  1292(b)).  The court
then implicitly recognized how critical facts would be to the protected activity
determination, for it certified an additional question asking this Court to explain
"what evidence does or does not support a  2000e-3(a) claim as a matter of law?" 
R.20 at 2.
                               Argument

     Neither question certified by the district court warrants immediate interlocutory
review by this Court under section 1292(b).  This Court has emphasized repeatedly
that because section 1292 "is intended to carve out limited exceptions to the general
rule that only final judgments of federal district courts are reviewable on appeal, the
statute is construed narrowly."  Sierra Club v. Glickman, 67 F.3d 90, 94 (5th Cir.
1995); see also Thibodeaux v. Vamos Oil & Gas Co., 487 F.3d 288, 292 (5th Cir.
2007) ("Interlocutory appeals are not favored, and we strictly construe statutes
permitting them.'") (citation omitted); In re Ingram Towing Co., 59 F.3d 513, 515 (5th
Cir. 1995) (appellate court should approach section 1292 "somewhat gingerly lest
a floodgate be opened that brings into the exception many pretrial orders'") (citation
omitted).  Permission to appeal therefore "is granted sparingly, not automatically,"
Alabama Labor Council v. Alabama, 453 F.2d 922, 924 (5th Cir. 1972), and the party
seeking interlocutory review bears the "burden of persuading the court of appeals
that exceptional circumstances justify a departure from the basic policy of postponing
appellate review until after the entry of a final judgment.'" Parcel Tankers, Inc. v.
Formosa Plastics Corp., 764 F.2d 1153, 1155 (5th Cir. 1985) (citation omitted).
     Stanley Automotive has not demonstrated that the question on which it seeks
immediate appellate review falls within section 1292(b)'s "narrow exception" to the
"Congressional policy against piecemeal appeals."  Garner v. Wolfinbarger, 433 F.2d
117, 120 (5th Cir. 1970).  Whether an individual who helps and encourages co-
workers to file discrimination complaints has "opposed" discrimination depends on
the facts of the particular case.  Seeking interlocutory review now, before the facts of
this case have been developed, is asking this Court to render a decision without the
record necessary for it to make such a decision, and as such is inappropriate.   See
Johnson v. Jones, 515 U.S. 304, 309 (an interlocutory appeal "risks additional, and
unnecessary, appellate court work . . . when it presents appellate courts with less
developed records"); Tello v. Dean Witter Reynolds, Inc., 410 F.3d 1275, 1294 (11th
Cir. 2005) ("It would be premature and inappropriate for us to decide the legal issue
presented to us on interlocutory appeal on the basis of this pre-discovery,
undeveloped, motion-to-dismiss record. . . ."); Paschall v. Kansas City Star Co., 605
F.2d 403, 407 (8th Cir. 1979) (no interlocutory review because "the record must be
more fully developed so that we can make a precise decision upon a precise record
not an abstract answer to an abstract question").
1.  There is no substantial ground for difference of opinion on the first question
because all courts agree that whether an individual has opposed unlawful
activity by encouraging co-workers to pursue discrimination claims depends on
the facts of each case.

     Title VII makes it unlawful for an employer to retaliate against an employee 
"because he has opposed any practice made an unlawful employment practice by this
subchapter."  42 U.S.C.  2000e-3(a).  By its plain terms, the word "oppose" has a
range of meanings, and can include attempting to correct discrimination against
others in the workplace.  See, e.g., McDonnell Douglas Corp. v. Green, 411 U.S. 792,
796 & n.4 (1973) (opposition clause forbids discrimination against employees "for
attempting to protest or correct allegedly discriminatory conditions of employment");
Jones v. Flagship Int'l, 793 F.2d 714, 727 (5th Cir. 1986) ("employee opposition to
discriminatory employment practices directed against a fellow employee may
constitute activity protected under  704(a) [42 U.S.C.  2000-3(a)]").
     Consistent with the plain meaning of the term "oppose," courts have held that
an individual who encourages and assists a co-worker to make a discrimination
complaint may properly be seen as having engaged in protected activity under Title
VII.  See, e.g., Johnson v. Pioneer Credit Co., No. 06-164, 2007 WL3146091, *3
(W.D. Ky. Oct. 25, 2007) ("The Court holds that when the Plaintiff encouraged [a co-
worker] to file an EEO complaint, she was engaged in a protected activity because
she was opposing' a practice made unlawful by Title VII"); Kendall v. Cobb County,
Ga., 14 F. Supp.2d 1342, 1344-46 (N.D. Ga. 1998) (encouraging co-worker to pursue
sex harassment and discrimination complaint within employer's chain of command
"qualifies as protected activity under  2000e-3(a)"); Lyman v. Nabil's Inc., 903 F.
Supp. 1443, 1448 (D. Kan. 1995) (complaint sufficiently alleged protected opposition
where plaintiff claimed he "was supportive of women who came to him to complain
about [the harasser's] actions'") (quoting complaint); King v. Illinois Bell Tel. Co.,
476 F. Supp. 495, 502 (N.D. Ill. 1978) ("Examples of protected opposition activity
include advising fellow employees of their rights under the law"); EEOC v. Kallir,
Philips, Ross, Inc., 401 F. Supp. 66, 70-71 (S.D.N.Y. 1975) (title VII's anti-retaliation
provision protects an employee from retaliation for "advising fellow employees of
their rights under the law") ; see also Mato v. Baldauf, 267 F.3d 444, 450 (5th Cir.
2001) (stating that "the protected activity that [plaintiff] proved [was] encouraging
and assisting other women to file sexual harassment complaints").
     The case invoked by Stanley Automotive and the district court as reaching a
contrary conclusion is, in fact, consistent with this line of cases.  In Crosby v. City of
Walterboro, S.C., 444 F. Supp.2d 559, 564 (D.S.C. 2006), the court recognized that
"offering support to co-workers can constitute opposition activity."  The court then
reviewed all the evidence in the summary judgment record and concluded that this
particular plaintiff had not produced enough evidence that he had engaged in
protected activity.  Id. at 563-64.  In particular, the court emphasized that the
evidence indicated that plaintiff "neither encouraged [his co-worker] to utilize formal
or informal grievance procedures, nor supported her filing a complaint . . ., nor did
he even express the opinion that sexual harassment took place."  Id. at 564.  Crosby
thus turned on the inability of the particular plaintiff to produce enough evidence that
he encouraged his co-worker.  There was no ruling that encouragement can never
comprise opposition activity under Title VII.  There is, therefore, no ground for a
difference of opinion on this question.  Cf. 28 U.S.C.  1292(b).
     It is certainly not the case  and the Commission is not arguing  that
encouragement of co-workers is always protected opposition under Title VII. 
Evidence developed during the course of discovery or trial may indicate that the
particular encouragement does not amount to protected activity.  See, e.g. Jones v.
Flagship Int'l, 793 F.2d 714, 727-28 (5th Cir. 1986) (while giving "aid and comfort,
if not outright encouragement, to [co-worker] to pursue her grievances against the
company'" might comprise protected opposition, evidence adduced at trial showed
that the manner in which plaintiff opposed the conduct took plaintiff outside
protections of Title VII) (citation omitted); Hopson v. Dollar Bank, 994 F. Supp. 332
(W.D. Pa. 1997) (summary judgment record showed plaintiff who counseled co-
worker to report others' sexual activity had not engaged in protected opposition
because he lacked a good faith belief that his co-worker had suffered discrimination
at the time he counseled her).  But whether the encouragement is or is not
"opposition" under Title VII depends on the facts of each case.  The Commission
therefore urges this Court to deny interlocutory review of such a fact-intensive
question.

2.  Asking this Court to list what evidence does or does not support a retaliation
claim does not present a controlling question of law on which there is substantial
ground for difference of opinion.

     The district court's second question asks this Court to advise it, hypothetically,
as to "what evidence does or does not support a  2000e-3(a) claim as a matter of
law?"  R.20 at 2.  Asking this Court to list appropriate evidence is not a controlling
question of law on which there is substantial ground for difference of opinion, and
answering immediately  before discovery  would not advance the ultimate
termination of the litigation.  See 28 U.S.C.  1292(b).
     The second question in the petition also runs afoul of this Court's emphatic
refusal to issue advisory opinions.  C & H Nationwide, Inc. v. Norwest Bank Texas
NA, 208 F.3d 490, 493 (5th Cir. 2000) ("Federal courts are not in the business of
rendering advisory opinions."); see also Ashcroft v. Mattis, 431 U.S. 171, 172 (1977)
(requiring existence of a "dispute which calls, not for an advisory opinion upon a
hypothetical basis, but for an adjudication upon a present right upon established
facts'") (quoting Aetna Life In. Co. v. Haworth, 300 U.S. 227, 242 (1937)). 
Interlocutory review of the second question therefore should be denied.

                            CONCLUSION

     The petition for interlocutory review should be denied.

Respectfully submitted,

RONALD S. COOPER                   ________________________
General Counsel                    JENNIFER S. GOLDSTEIN
                                   Attorney
VINCENT J. BLACKWOOD               
Acting Associate General Counsel   EQUAL EMPLOYMENT
                                   OPPORTUNITY  COMMISSION
                                   Office of General Counsel
                                   1801 L Street, N.W.
                                   Washington, DC 20507          
                                   (202) 663-4733

                    CERTIFICATE OF COMPLIANCE

     I certify that this brief complies with the type-volume limitation set forth in
FRAP 5(c), FRAP 32(a)(5)(A), and 5th Cir. R. 32.1.  This brief consists of eleven
pages.

____________________________
JENNIFER S. GOLDSTEIN

                      CERTIFICATE OF SERVICE

     I hereby certify that one copy of this answer in opposition was served by
agreement by e-mail on this day to Steven L. Hughes, attorney for Stanley
Automotive, at hughes@MGMSG.com.

____________________________
JENNIFER S. GOLDSTEIN
Attorney

EQUAL EMPLOYMENT
  OPPORTUNITY COMMISSION
Office of General Counsel
1801 L Street, N.W.
Washington, DC 20507                                   
(202) 663-4733

May 8, 2008

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<<FOOTNOTES>>

<1> The district court also held that assisting co-workers in an internal proceeding 
is not protected under Title VIIs participation clause absent the filing of an EEOC 
charge.  R.16 at 8-10.