The Fourth Circuit issues — unpublished — a progressive Title VII retaliation decision, reaffirming its view that there is no “reasonableness” requirement for claims under the “participation” prong. The Fifth Circuit, in a previously nonprecedential decision, considers the standard for a Title II case under the Civil Rights Act of 1964.
Cumbie v. General Shale Brick, Inc., No. 07-1723 (4th Cir. Dec. 8, 2008): The Fourth Circuit has previously held that as long as an employee “participates” in an enumerated activity under section 704(a) (i.e., make a charge, testify, assist or participate in any manner in an investigation, proceeding, or hearing under Title VII), there is no addition al requirement or gloss that such participation be “reasonable.” Glover v. South Carolina Law Enforcement Div., 170 F.3d 411 (4th Cir. 1999) (employee witness who used opportunity of deposition to openly disparage management of her office and accuse superiors of “destruction of office documents, wasting funds, inappropriate behavior, dishonesty, and discrimination” nonetheless protected by section 704(a)).
So nearly a decade later, here’s another case where the district court once again tried to impose a reasonableness standard. The facts are summarized in a footnote::
“Cumbie’s claim originated with the discovery of several drawings in his workplace that he found offensive. He brought the drawings to the attention of his supervisor, whose investigation did not reveal the source of the drawings. There days after informing his supervisor that he had contacted PWCHRC (and filing the intake questionnaire), Cumbie was suspended for failing to report a worker’s compensation claim in a timely manner.”
The panel vacates and remands, reaffirming Glover. “Importantly, when an individual engages in activities constituting participation, such activity is protected conduct regardless of whether that activity is reasonable. . . . Because our established case law imposes the aforementioned reasonableness standard on opposition protected activity, but not on participation protected activity, the district court’s materials before us are insufficient to evaluate the propriety of the court’s finding that Cumbie failed to satisfy the protected activity element of a prima facie case.”
Fahim v. Marriott Hotel Services, Inc., No. 08-20349 (5th Cir. Dec. 8, 2008): Seldom litigated these days, Title II (42 U.S.C. § 2000(a)) allows injunctive relief to persons denied access to public accommodation because of race (or other clasifications). This case involves two, unrelated Air France passengers forced to layover in Houston, attempting to redeem airline vouchers at the Marriott. The plaintiff, an Egyptian-American Muslim woman, queued up at the check-in desk with a young woman whom she did not know. The other passenger spoke Arabic and covered her hair with a hajib. When the plaintiff asked for a room, the Marriott employee said that it did not have any more rooms for Air France passengers. As the plaintiff testified:
“My experience in life taught me to watch body language; and when somebody is very nice when his head was down and he called me and addressed me with ‘Hi, ma’am, how are you, ma’am,’ and all of a sudden when I point to a girl behind me who is wearing the Muslim head scarf, hijab, and his face changes, that tells me he is discriminating.”
Marriott defended that, at the time that the plaintiff showed up with her voucher, there were no more rooms available (although rooms opened up later — indeed, the young woman was later able to redeem her voucher).
The plaintiff filed only under Title II, neglecting (until too late) to amend her complaint to add a separate section 1981 count. So the district court and Fifth Circuit evaluated her claim solely under Title II. But the Fifth Circuit found a dearth of authority under that act (I suppose because the courts award only equitable relief under this section, and no damages).
The Fifth Circuit holds, as did the district court, that the McDonnell Douglas v. Green burden-shifting framework applies (as modified) to Title II: “that (1) she is a member of a protected class; (2) she attempted to contract for the services of a public accommodation; (3) she was denied those services; and (4) the services were made available to similarly situated persons outside her protected class.” The district court held that the plaintiff failed to meet the fourth prong of her prima facie case, because she did not show that the hotel denied services to similarly-situated persons outside her protected class.
The Fifth Circuit affirms, instead, on the ground that the employee failed to meet her burden of proof on the final step of pretext. The hotel proffered evidence that there were no available rooms at the time she presented her voucher. Although the plaintiff introduced evidence that other customers received rooms, the record established that those individuals either had reservations (which the plaintiff did not) or arrived after the plaintiff (when some rooms became available due to cancellations). In short, the plaintiff happened to be standing in line at just the wrong time.