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519-530_Newman Bur Ling Ton N. & Santa Fe Rwy. Co. v. White 126 S. Ct. 2405 2006

519-530_Newman Bur Ling Ton N. & Santa Fe Rwy. Co. v. White 126 S. Ct. 2405 2006

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 BURLINGTON NORTHERN & SANTA FE RAILWAY CO. V.WHITE
: THE SCOPE OF RETALIATORY ACTIONSAND A LEGAL CATCH-22
M
ARY
N
EWMAN
*
I.I
NTRODUCTION
Under Title VII of the Civil Rights Act of 1964, employers are prohib-ited from discriminating against their employees on the basis of race, color,religion, sex, or national origin.
1
Employers are further prohibited from dis-criminating against employees who have opposed incidents of discrimina-tion in violation of the statute.
2
Until recently, the scope of this retaliationprovision was a matter of debate: Was it limited to employment-related ac-tions, or could it cover retaliation outside the workplace? In 2006, the Su-preme Court directly addressed this question in
 Burlington Northern &Santa Fe Railway Co. v. White
, resolving it in favor of a broadly drawnprovision
.
3
Commentators hailed
 Burlington
as an expansion of civil rights.The decision was put to the test six months later, however, in a district courtopinion,
Sykes v. Pennsylvania State Police
,
4
that seemed to turn the
 Bur-lington
reasoning on its head.
5
This Comment will examine the
 Burlington
decision and the SupremeCourt’s efforts to create a new standard. It will then turn to the
Sykes
deci-sion and address the ways in which it misapplied the
 Burlington
standard.Finally, this Comment will consider the possible ramifications of 
Sykes
onhow the
 Burlington
standard will be applied in other courts, as well as thebroader implications for Title VII litigation.
*J.D. Candidate, Harvard Law School, Class of 2008. The author wishes to thank Charles Newman, Michael Cross, and Kimberly Liu for their insight, support, andassistance.
1
42 U.S.C. §2000e-2 (2000). For the full text of the provision,
see infra
note 26.
2
42 U.S.C. §2000e-3 (2000). For the full text of the provision,
see infra
note 25.
3
Burlington N. & Santa Fe Ry. Co. v. White, 126 S. Ct. 2405 (2006).
4
Sykes v. Pa. State Police, No. 05-1349, 2007 WL 141064 (W.D. Pa. Jan. 17, 2007).
5
It is important to note that other courts seem to have correctly interpreted the
 Bur-lington
standard.
See, e.g.
, Morgan v. Masterfoods USA, No. 2:04-CV-907, 2006 U.S.Dist. LEXIS 83152, at *25
32 (S.D. Ohio Nov. 14, 2006); Watson v. City of Cleveland,No. 05-3519, 2006 U.S. App. LEXIS 23218, at *24
25 (6th Cir. Sept. 8, 2006). Indeed,in another case from the Western District of Pennsylvania
decided before
Sykes
by adifferent judge
the
 Burlington
standard was applied in a way that explicitly sidesteppedthe problem of the
Sykes
opinion. Johnson v. McGraw-Hill Cos., 451 F. Supp. 2d. 681,711 (W.D. Pa. 2006) (“[I]t is not necessary for Johnson to establish that he was actuallydissuaded from seeking legal recourse (which he obviously was not). . . .”).
 
520Harvard Journal of Law & Gender[Vol. 30II.S
ETTINGTHE
S
TANDARDFOR
T
ITLE
VII R
ETALIATORY
A
CTION
Sheila White worked in the Maintenance of Way Department at Bur-lington Northern & Santa Fe Railway Company, where she was the onlywoman employed in her department.
6
Marvin Brown, the roadmaster, hiredWhite in June of 1997 to work as a track laborer, responsible for cleaningdebris from the right-of-way and replacing track components, among otherduties.
7
Shortly after she began working at Burlington, she was assigned towork a forklift, which was considered to be a “less arduous and cleaner job.”
8
This became her primary responsibility.
9
White’s immediate supervisor was a man named Bill Joiner, and in Sep-tember of 1997 White complained that Joiner had made disparaging remarksto her and said that “women should not be working in the Maintenance of Way department.”
10
After investigating White’s complaints, Burlington or-dered that Joiner be suspended for ten days and that he attend sexual-harass-ment training.
11
At the same time that Brown informed White of the actionstaken against Joiner, Brown also told her that she was being removed fromforklift duty.
12
In an October 1997 complaint to the Equal Employment Op-portunity Commission (“EEOC”),
13
White alleged that this reassignment of her duties constituted gender discrimination and retaliation for her complaintabout Joiner’s comments. In December, White filed a second complaint al-leging further retaliation, claiming that Brown “had placed her under sur-veillance and was monitoring her daily activities.”
14
Later that month, White had a dispute with a supervisor, Percy Sharkey,who reported to Brown that White had been insubordinate.
15
Brown orderedthat White be suspended without pay, spurring White to defend herself through Burlington’s internal grievance procedures.
16
When the companycleared White of the insubordination charge, she was reinstated and awardedback-pay for the thirty-seven days of suspension.
17
White filed a third com-
6
 Burlington
, 126 S. Ct. at 2409.
7
 Id 
.
8
 Id 
.
9
 Id 
.
10
 Id 
.
11
 Id 
.
12
 Id 
.
13
The EEOC is the federal agency charged with enforcing anti-discrimination laws,including Title VII. Federal Equal Employment Opportunity (EEO) Laws, http://www.eeoc.gov/abouteeo/overview_laws.html (last visited Mar. 1, 2007). Employees who wishto file discrimination claims under Title VII must first file charges with the EEOC andexhaust the administrative remedies before they can file suit in court. EEOC, FederalLaws Prohibiting Job Discrimination, http://www.eeoc.gov/facts/qanda.html (last visitedMar. 1, 2007);
see also
Robinson v. Dalton, 107 F.3d 1018, 1020
21 (3d Cir. 1997).
14
 Burlington
, 126 S. Ct. at 2409.
15
 Id 
.
16
 Id 
.
17
 Id 
.
 
2007]
 Burlington Northern & Santa Fe Railway Co. v. White
521plaint with the EEOC, alleging that her suspension was retaliation for herearlier complaints.
18
White later brought her claims to federal court, filing suit against Bur-lington under the anti-retaliation provision of Title VII.
19
Specifically, sheclamed that the change in her job duties and the suspension without paywere retaliation for her reports of gender discrimination; the jury agreed andawarded White $43,500 in compensation.
20
Burlington appealed the verdictto the Sixth Circuit.
21
Initially, a panel of the Sixth Circuit overturned the judgment,
22
but the Court of Appeals vacated that decision, and, en banc, theSixth Circuit affirmed the judgment in favor of White.
23
The judges weredivided, however, on the correct standard to apply for claims of retaliationunder Title VII.
24
The divide among the Sixth Circuit judges was illustrative of a largersplit among the circuits. The issue in dispute was whether the anti-retalia-tion provision of Title VII
25
must be read in tandem with the anti-discrimina-tion provision,
26
which would limit actionable retaliations to those thatresulted in a material change in the terms of employment, i.e., firing or de-
18
 Id 
.
19
 Id 
. at 2410.
20
 Id 
.
21
 Id 
.
22
White v. Burlington N. & Santa Fe Ry. Co., 310 F.3d 443 (6th Cir. 2002).
23
White v. Burlington N. & Santa Fe Ry. Co., 364 F.3d 789 (6th Cir. 2004).
24
 Id 
. at 795 (reaffirming the “materially adverse change in the terms of . . . employ-ment” standard);
id 
. at 809 (Clay, J., concurring) (arguing that the “reasonably likely todeter” standard was appropriate).
25
The anti-retaliation provision reads:It shall be an unlawful employment practice for an employer to discriminateagainst any of his employees or applicants for employment, for an employmentagency, or joint labor-management committee controlling apprenticeship or othertraining or retraining, including on-the-job training programs, to discriminateagainst any individual, or for a labor organization to discriminate against anymember thereof or applicant for membership, because he has opposed any prac-tice made an unlawful employment practice by this subchapter, or because he hasmade a charge, testified, assisted, or participated in any manner in an investiga-tion, proceeding, or hearing under this subchapter.42 U.S.C. §2000e-3 (2000).
26
The anti-discrimination provision reads:It shall be an unlawful employment practice for an employer
(1) to fail or refuseto hire or to discharge any individual, or otherwise to discriminate against anyindividual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or nationalorigin; or (2) to limit, segregate, or classify his employees or applicants for em-ployment 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-2 (2000).

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