Greetings, Court Fans!

The Court issued five more opinions today, including an important campaign finance reform case that we’ll be summarizing for you shortly. First off, though, we need to report on some of the five remaining decisions from last Thursday.

Probably the biggest of those decisions came in Burlington Northern & Santa Fe Railway Co. v .White (05-259), in which the Court held that the Civil Rights Act’s bar on retaliation against employees who file discrimination complaints prohibits any conduct aimed to dissuade a reasonable worker from pursuing a claim. White, a Burlington forklift operator and track laborer, made a sexual harassment complaint against her immediate supervisor. He was disciplined, but Burlington also reassigned White and later suspended her without pay in connection with a separate incident (Burlington eventually reinstated her with back pay). White sued under Title VII of the Civil Rights Act, claiming that her reassignment and suspension were retaliation for her harassment complaint. The jury found in her favor and the Sixth Circuit affirmed en banc. The Court took the case to resolve (1) whether the alleged retaliation must be an actual employment action, and (2) how harmful the action must be to constitute retaliation. If the first question presented seems odd to you (and it did to us – White’s allegations, after all, did concern actual employment actions), here’s the story on why the Court considered it: The Sixth Circuit applied its rule that the retaliation bar encompasses any “adverse employment action” that affects the terms and the conditions of employment, and Burlington argued that the Court should adopt the Fifth and Eighth Circuits’ rule barring only an “ultimate employment decision” like discharge, failure to promote or a compensation reduction. Because White’s retaliation allegations easily fell under the Sixth Circuit rule, the Court technically faced a choice between only these two rules. The Circuit split, however, was even more dramatic than this, as the Seventh and D.C. Circuits treat as retaliation anything designed to dissuade a reasonable worker from pursuing a complaint. So the Court broadened its review to clarify a national standard for what counts as retaliation under Title VII, even though the last construction of “retaliation” – allowing non-employment actions to count – was not technically before it.

Justice Breyer wrote the Court’s opinion (for all but Justice Alito), adopting the Seventh and D.C. Circuits broader view of retaliation. While Title VII’s “substantive” provision against employment discrimination is expressly limited to conduct regarding the workplace (e.g., hiring, discharge, compensation, etc.), the retaliation provision bars discrimination generally, and Congress must have intended this distinction to mean something. Moreover, restricting retaliation claims to employment-related matters would leave a huge loophole in the Act, as employers could harm employees outside the workplace to deter them from pursuing complaints. Having established that retaliation could occur within and without the workplace, the Court then held that a retaliation plaintiff must show that the alleged conduct was “materially adverse,” meaning that it “might well have dissuaded a reasonable worker from making or supporting a charge of discrimination.” An objective standard is necessary to avoid messy inquiries into employees’ subjective feelings and to eliminate trivial harms, but it must remain general because context matters (e.g., schedule changes might mean nothing to some employees but everything to young mothers). In White’s case, her reassignment left her with more arduous and less prestigious duties, and a jury reasonably could have found that this could have deterred a reasonable worker from pursuing a claim. And even though White’s suspension was rescinded with back pay, she still had to live over a month without income, which by itself could be a deterrent despite the reinstatement.

Alito concurred in the judgment only. He would adopt the Sixth Circuit’s view and restrict the retaliation provision to materially adverse employment actions as viewed by a reasonable employee (and he agreed that White’s case clearly fit this definition, hence his vote to affirm). He also thought the Court’s test had multiple flaws: Do employees suffering severe discrimination get less protection from retaliation than others (because it will take more to deter reasonable employees with significant discrimination claims)? How many individual characteristics (e.g., woman, young mother, etc.) are imported into the “reasonable employee” to account for context? What does “might well have dissuaded a reasonable employee” really mean? For Alito, this area of the law is complex enough, and the Court’s decision will only make it worse.

In Woodward v. Ngo (05-416), the Court held that a prisoner cannot satisfy the Prison Litigation Reform Act’s exhaustion-of-remedies requirement by filing a defective administrative grievance; he must properly exhaust remedies. After Ngo was barred from participating in various California prison programs, he failed to file a written complaint within fifteen days as required by the prison grievance process; when he did file a complaint six months later, it was rejected as untimely. He later sued corrections officials under 42 U.S.C. § 1983, and the district court dismissed the complaint because Ngo had failed first to exhaust his remedies as required by the PLRA. The Ninth Circuit reversed on the ground that, under the PLRA, exhaustion meant simply that no remedies were “available to” Ngo at the time of suit, regardless of the reason why. The Court reversed in an opinion by Justice Alito (for himself, the Chief, Scalia, Thomas and Kennedy). It held that the PLRA “strongly suggested” that “exhaustion” meant proper exhaustion, because the express purpose of the requirement was to reduce the quantity and increase the quality of prisoner suits and allow corrections officials to fix problems internally. Requiring proper exhaustion gives prisoners an incentive to make full use of the grievance process, which is particularly important given a state’s strong interest in running its prisons, and ensures the creation of an administrative record while the facts of a case are fresh in the parties’ minds. The majority rejected a slew of arguments by Ngo that are beyond the scope of this summary (check them out if you are a criminal practitioner) but two points bear mention: (1) for the majority, this will not be a trap for unwary prisoners because prison officials have an incentive to provide meaningful opportunities for prisoners to air grievances, if only to avoid chaos; and (2) this also will not be harsh for uneducated prisoners given the relative simplicity of prison grievance systems (as compared to civil suits, which thrust pro se prisoners into a plethora of unforgiving procedural requirements). Justice Breyer concurred in the judgment, agreeing that PLRA requires proper exhaustion but arguing that the statute implicitly incorporates the traditional exceptions to the requirement from administrative and habeas law (e.g., futility, hardship, constitutional claims, miscarriage of justice); for Breyer, on remand Ngo should get the chance to argue that his case fits one of these exceptions.

Justice Stevens dissented for himself, Souter and Ginsburg. For the dissenters, the big problem with the Court’s holding was that it allowed states to impose what were effectively draconian statutes of limitation on a prisoner’s right to access the courts (here, Ngo missed his fifteen-day window to complain and forever lost his right to sue). Also, the text of the PLRA itself does not require proper exhaustion, but only that whatever remedies “as are available” be exhausted. The dissent would use the same standard for exhaustion that applies for habeas claims, which requires prisoners to file internal grievances but imposes no waiver sanction for procedural defaults like Ngo’s. This would serve the purposes of the PLRA cited by the majority because prison officials still would get the chance to respond to complaints internally, cutting down on litigation and creating an administrative record. As to the threat of abuse by prisoners who deliberately decline to exhaust on time, federal courts can always use traditional abstention principles to refuse jurisdiction to prisoners acting in bad faith.

We owe you three more from Thursday, plus five more from today, so expect to hear from us again soon. Until then, thanks for reading!

Ken & Kim

From the Appellate Practice Group at Wiggin and Dana. For more information, contact Kim Rinehart, Ken Heath, Aaron Bayer, or Jeff Babbin at 203-498-4400