CLARK COUNTY SCHOOL DISTRICT v. BREEDEN
No. 00-866.
Decided April 23, 2001
Pee Curiam.
Under Title VII of the Civil Rights Act of 1964, 78 Stat. 255, as amended, 42 U. S. C. §2000e-3(a), it is unlawful “for an employer to discriminate against any of his employees . . . because [the employee] has opposed any practice made an unlawful employment practice by [Title VII], or because [the employee] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII].” In 1997, respondent filed a §2000e-3(a) retaliation claim against petitioner Clark County School District. The claim as eventually amended alleged that petitioner had taken two separate adverse employment actions against her in response to two different protected activities in which she had engaged. The District Court granted summary judgment to petitioner, No. CV-S-97-365-DWH(RJJ) (D. Nev., Feb. 9, 1999), but a panel of the Court of Appeals for the Ninth Circuit reversed over the dissent of Judge Fernandez, No. 99-15522,2000 WL 991821 (July 19, 2000) (per curiam) (unpublished), judgt. order reported at 232 F. 3d 893. We grant the writ of certio-rari and reverse.
On October 21, 1994, respondent’s male supervisor met with respondent and another male employee to review the psychological evaluation reports of four job applicants. The report for one of the applicants disclosed that the applicant had once commented to a co-worker, “I hear making love to you is like making love to the Grand Canyon.” Brief in Opposition 3. At the meeting respondent’s supervisor read the comment aloud, looked at respondent and stated, “I don’t know what that means.” Ibid. The other employee then said, “Well, I’ll tell you later,” and both men chuckled. Ibid. Respondent later complained about the comment to the offending employee, to Assistant Superintendent George Ann Rice, the employee’s supervisor, and to another assistant superintendent of petitioner. Her first claim of retaliation asserts that she was punished for these complaints.
The Court of Appeals for the Ninth Circuit has applied §2000e-3(a) to protect employee “opposition]” not just to practices that are actually “made... unlawful” by Title VII, but also to practices that the employee could reasonably believe were unlawful. 2000 WL 991821, at *1 (stating that respondent’s opposition was protected “if she had a reasonable, good faith belief that the incident involving the sexually explicit remark constituted unlawful sexual harassment”); Trent v. Valley Electric Assn. Inc., 41 F. 3d 524, 526 (CA9 1994). We have no occasion to rule on the propriety of this interpretation, because even assuming it is correct, no one could reasonably believe that the incident recounted above violated Title VII.
Title VII forbids actions taken on the basis of sex that “discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment.” 42 U. S. C. § 2000e-2(a)(l). Just three Terms ago, we reiterated, what was plain from our previous decisions, that sexual harassment is actionable under Title VII only if it is “so ‘severe or pervasive’ as to ‘alter the conditions of [the victim’s] employment and create an abusive working environment.’” Faragher v. Boca Raton, 524 U.S. 775, 786 (1998) (quoting Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986) (some internal quotation marks omitted)). See also Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998) (Only harassing conduct that is “severe or pervasive” can produce a “constructive alteratio[n] in the terms or conditions of employment”); Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81 (1998) (Title VII “forbids only behavior so objectively offensive as to alter the ‘conditions’ of the victim’s employment”). Workplace conduct is not measured in isolation; instead, “whether an environment is sufficiently hostile or abusive” must be judged “by ‘looking at all the circumstances,’ including the ‘frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance."' Faragher v. Boca Raton, supra, at 787-788 (quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1998)). Hence, “[a] recurring point in [our] opinions is that simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.' ” Faragher v. Boca Raton, supra, at 788 (citation and internal quotation marks omitted).
No reasonable person could have believed that the single incident recounted above violated Title VII’s standard. The ordinary terms and conditions of respondent’s job required her to review the sexually explicit statement in the course of screening job applicants. Her co-workers who participated in the hiring process were subject to the same requirement, and indeed, in the District Court respondent “conceded that it did not bother or upset her” to read the statement in the file. App. to Pet. for Cert. 15 (District Court opinion). Her supervisor’s comment, made at a meeting to review the application, that he did not know what the statement meant; her co-worker’s responding comment; and the chuckling of both are at worst an “isolated inciden[t]” that cannot remotely be considered “extremely serious,” as our eases require, Faragher v. Boca Raton, supra, at 788. The holding of the Court of Appeals to the contrary must be reversed.
Besides claiming that she was punished for complaining to petitioner’s personnel about the alleged sexual harassment, respondent also claimed that she was punished for filing charges against petitioner with the Nevada Equal Rights Commission and the Equal Employment Opportunity Commission (EEOC) and for filing the present suit. Respondent filed her lawsuit on April 1,1997; on April 10,1997, respondent’s supervisor, Assistant Superintendent Rice, “mentioned to Allin Chandler, Executive Director of plaintiff’s union, that she was contemplating transferring plaintiff to the position of Director of Professional Development Education,” App. to Pet. for Cert. 11-12 (District Court opinion); and this transfer was “carried through” in May, Brief in Opposition 8. In order to show, as her defense against summary judgment required, the existence of a causal connection between her protected activities and the transfer, respondent “relie[d] wholly on the temporal proximity of the filing of her complaint on April 1,1997 and Rice’s statement to plaintiff’s union representative on April 10,1997 that she was considering transferring plaintiff to the [new] position.” App. to Pet. for Cert. 21-22 (District Court opinion). The District Court, however, found that respondent did not serve petitioner with the summons and complaint until April 11,1997, one day after Rice had made the statement, and Rice filed an affidavit stating that she did not become aware of the lawsuit until after April 11, a claim that respondent did not challenge. Hence, the court concluded, respondent “ha[d] not shown that any causal connection exists between her protected activities and the adverse employment decision.” Id., at 21.
The Court of Appeals reversed, relying on two facts: The EEOC had issued a right-to-sue letter to respondent three months before Rice announced she was contemplating the transfer, and the actual transfer occurred one month after Rice learned of respondent’s suit. 2000 WL 991821, at *3. The latter fact is immaterial in light of the fact that petitioner coneededly was contemplating the transfer before it learned of the suit. Employers need not suspend previously planned transfers upon discovering that a Title VII suit has been filed, and their proceeding along lines previously contemplated, though not yet definitively determined, is no evidence whatever of causality.
As for the right-to-sue letter: Respondent did not rely on that letter in the District Court and did not mention it in her opening brief on appeal. Her demonstration of causality all along had rested upon the connection between the transfer and the filing of her lawsuit — to which connection the letter was irrelevant. When, however, petitioner’s answering brief in the Court of Appeals demonstrated conclusively the lack of causation between the filing of respondent’s lawsuit and Rice’s decision, respondent mentioned the letter for the first time in her reply brief, Reply Brief in No. 99-15522 (CA9) pp. 9-10. The Ninth Circuit’s opinion did not adopt respondent’s utterly implausible suggestion that the EEOC’s issuance of a right-to-sue letter — an action in which the employee takes no part — is a protected activity of the employee, see 42 U. S. C. §2000e-3(a). Rather, the opinion suggests that the letter provided petitioner with its first notice of respondent’s charge before the EEOC, and hence allowed the inference that the transfer proposal made three months later was petitioner’s reaction to the charge. See 2000 WL 991821, at *3. This will not do.
First, there is no indication that Rice even knew about the right-to-sue letter when she proposed transferring respondent. And second, if one presumes she knew about it, one must also presume that she (or her predecessor) knew almost two years earlier about the protected action (filing of the EEOC complaint) that the letter supposedly disclosed. (The complaint had been filed on August 23, 1995, and both Title VII and its implementing regulations require that an employer be given notice within 10 days of filing, 42 U. S. C. §§ 2000e-5(b), (e)(1); 29 CFR §1601.14 (2000).) The cases that accept mere temporal proximity between an employer’s knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be “very close,” O’Neal v. Ferguson Constr. Co., 237 F. 3d 1248, 1253 (CA10 2001). See, e. g., Richmond v. Oneok, Inc., 120 F. 3d 205, 209 (CA10 1997) (3-month period insufficient); Hughes v. Derwinski, 967 F. 2d 1168, 1174-1175 (CA7 1992) (4-month period insufficient). Action taken (as here) 20 months later suggests, by itself, no causality at all.
In short, neither the grounds that respondent presented to the District Court, nor the ground she added on appeal, nor even the ground the Court of Appeals developed on its own, sufficed to establish a dispute substantial enough to withstand the motion for summary judgment. The District Court’s granting of that motion was correct. The judgment of the Court of Appeals is reversed.
It is so ordered.
attorney general of the United States, or his office specified state board or department of education city, town, township, village, or borough government or governmental unit state commission, board, committee, or authority county government or county governmental unit, except school district court or judicial district state department or agency governmental employee or job applicant female governmental employee or job applicant minority governmental employee or job applicant minority female governmental employee or job applicant not listed among agencies in the first Administrative Action variable retired or former governmental employee U.S. House of Representatives interstate compact judge state legislature, house, or committee local governmental unit other than a county, city, town, township, village, or borough governmental official, or an official of an agency established under an interstate compact state or U.S. supreme court local school district or board of education U.S. Senate U.S. senator foreign nation or instrumentality state or local governmental taxpayer, or executor of the estate of state college or university United States State person accused, indicted, or suspected of crime advertising business or agency agent, fiduciary, trustee, or executor airplane manufacturer, or manufacturer of parts of airplanes airline distributor, importer, or exporter of alcoholic beverages alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked American Medical Association National Railroad Passenger Corp. amusement establishment, or recreational facility arrested person, or pretrial detainee attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association author, copyright holder bank, savings and loan, credit union, investment company bankrupt person or business, or business in reorganization establishment serving liquor by the glass, or package liquor store water transportation, stevedore bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines brewery, distillery broker, stock exchange, investment or securities firm construction industry bus or motorized passenger transportation vehicle business, corporation buyer, purchaser cable TV car dealer person convicted of crime tangible property, other than real estate, including contraband chemical company child, children, including adopted or illegitimate religious organization, institution, or person private club or facility coal company or coal mine operator computer business or manufacturer, hardware or software consumer, consumer organization creditor, including institution appearing as such; e.g., a finance company person allegedly criminally insane or mentally incompetent to stand trial defendant debtor real estate developer disabled person or disability benefit claimant distributor person subject to selective service, including conscientious objector drug manufacturer druggist, pharmacist, pharmacy employee, or job applicant, including beneficiaries of employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan electric equipment manufacturer electric or hydroelectric power utility, power cooperative, or gas and electric company eleemosynary institution or person environmental organization employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer. farmer, farm worker, or farm organization father female employee or job applicant female movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of fisherman or fishing company food, meat packing, or processing company, stockyard foreign (non-American) nongovernmental entity franchiser franchisee lesbian, gay, bisexual, transexual person or organization person who guarantees another's obligations handicapped individual, or organization of devoted to health organization or person, nursing home, medical clinic or laboratory, chiropractor heir, or beneficiary, or person so claiming to be hospital, medical center husband, or ex-husband involuntarily committed mental patient Indian, including Indian tribe or nation insurance company, or surety inventor, patent assigner, trademark owner or holder investor injured person or legal entity, nonphysically and non-employment related juvenile government contractor holder of a license or permit, or applicant therefor magazine male medical or Medicaid claimant medical supply or manufacturing co. racial or ethnic minority employee or job applicant minority female employee or job applicant manufacturer management, executive officer, or director, of business entity military personnel, or dependent of, including reservist mining company or miner, excluding coal, oil, or pipeline company mother auto manufacturer newspaper, newsletter, journal of opinion, news service radio and television network, except cable tv nonprofit organization or business nonresident nuclear power plant or facility owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels shareholders to whom a tender offer is made tender offer oil company, or natural gas producer elderly person, or organization dedicated to the elderly out of state noncriminal defendant political action committee parent or parents parking lot or service patient of a health professional telephone, telecommunications, or telegraph company physician, MD or DO, dentist, or medical society public interest organization physically injured person, including wrongful death, who is not an employee pipe line company package, luggage, container political candidate, activist, committee, party, party member, organization, or elected official indigent, needy, welfare recipient indigent defendant private person prisoner, inmate of penal institution professional organization, business, or person probationer, or parolee protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer public utility publisher, publishing company radio station racial or ethnic minority person or organization protesting racial or ethnic segregation or discrimination racial or ethnic minority student or applicant for admission to an educational institution realtor journalist, columnist, member of the news media resident restaurant, food vendor retarded person, or mental incompetent retired or former employee railroad private school, college, or university seller or vendor shipper, including importer and exporter shopping center, mall spouse, or former spouse stockholder, shareholder, or bondholder retail business or outlet student, or applicant for admission to an educational institution taxpayer or executor of taxpayer's estate, federal only tenant or lessee theater, studio forest products, lumber, or logging company person traveling or wishing to travel abroad, or overseas travel agent trucking company, or motor carrier television station union member unemployed person or unemployment compensation applicant or claimant union, labor organization, or official of veteran voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL) wholesale trade wife, or ex-wife witness, or person under subpoena network slave slave-owner bank of the united states timber company u.s. job applicants or employees Army and Air Force Exchange Service Atomic Energy Commission Secretary or administrative unit or personnel of the U.S. Air Force Department or Secretary of Agriculture Alien Property Custodian Secretary or administrative unit or personnel of the U.S. Army Board of Immigration Appeals Bureau of Indian Affairs Bonneville Power Administration Benefits Review Board Civil Aeronautics Board Bureau of the Census Central Intelligence Agency Commodity Futures Trading Commission Department or Secretary of Commerce Comptroller of Currency Consumer Product Safety Commission Civil Rights Commission Civil Service Commission, U.S. Customs Service or Commissioner of Customs Defense Base Closure and REalignment Commission Drug Enforcement Agency Department or Secretary of Defense (and Department or Secretary of War) Department or Secretary of Energy Department or Secretary of the Interior Department of Justice or Attorney General Department or Secretary of State Department or Secretary of Transportation Department or Secretary of Education U.S. Employees' Compensation Commission, or Commissioner Equal Employment Opportunity Commission Environmental Protection Agency or Administrator Federal Aviation Agency or Administration Federal Bureau of Investigation or Director Federal Bureau of Prisons Farm Credit Administration Federal Communications Commission (including a predecessor, Federal Radio Commission) Federal Credit Union Administration Food and Drug Administration Federal Deposit Insurance Corporation Federal Energy Administration Federal Election Commission Federal Energy Regulatory Commission Federal Housing Administration Federal Home Loan Bank Board Federal Labor Relations Authority Federal Maritime Board Federal Maritime Commission Farmers Home Administration Federal Parole Board Federal Power Commission Federal Railroad Administration Federal Reserve Board of Governors Federal Reserve System Federal Savings and Loan Insurance Corporation Federal Trade Commission Federal Works Administration, or Administrator General Accounting Office Comptroller General General Services Administration Department or Secretary of Health, Education and Welfare Department or Secretary of Health and Human Services Department or Secretary of Housing and Urban Development Interstate Commerce Commission Indian Claims Commission Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement Internal Revenue Service, Collector, Commissioner, or District Director of Information Security Oversight Office Department or Secretary of Labor Loyalty Review Board Legal Services Corporation Merit Systems Protection Board Multistate Tax Commission National Aeronautics and Space Administration Secretary or administrative unit of the U.S. Navy National Credit Union Administration National Endowment for the Arts National Enforcement Commission National Highway Traffic Safety Administration National Labor Relations Board, or regional office or officer National Mediation Board National Railroad Adjustment Board Nuclear Regulatory Commission National Security Agency Office of Economic Opportunity Office of Management and Budget Office of Price Administration, or Price Administrator Office of Personnel Management Occupational Safety and Health Administration Occupational Safety and Health Review Commission Office of Workers' Compensation Programs Patent Office, or Commissioner of, or Board of Appeals of Pay Board (established under the Economic Stabilization Act of 1970) Pension Benefit Guaranty Corporation U.S. Public Health Service Postal Rate Commission Provider Reimbursement Review Board Renegotiation Board Railroad Adjustment Board Railroad Retirement Board Subversive Activities Control Board Small Business Administration Securities and Exchange Commission Social Security Administration or Commissioner Selective Service System Department or Secretary of the Treasury Tennessee Valley Authority United States Forest Service United States Parole Commission Postal Service and Post Office, or Postmaster General, or Postmaster United States Sentencing Commission Veterans' Administration War Production Board Wage Stabilization Board General Land Office of Commissioners Transportation Security Administration Surface Transportation Board U.S. Shipping Board Emergency Fleet Corp. Reconstruction Finance Corp. Department or Secretary of Homeland Security Unidentifiable International Entity