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Pantchenko v. C. B. Dolge Co., Inc.

United States Court of Appeals, Second Circuit
Aug 15, 1978
581 F.2d 1052 (2d Cir. 1978)

Summary

holding the refusal to write a recommendation letter constituted an actionable retaliation claim

Summary of this case from Schaper v. Bronx Lebanon Hosp. Ctr.

Opinion

No. 782, Docket 77-7534.

Argued March 27, 1978.

Decided August 15, 1978.

Irene Pantchenko, pro se.

Robert L. Julianelle, Westport, Conn. (Leonard A. Schine, Schine, Julianelle, Karp Bozelko, P.C., Westport, Conn., of counsel), for defendant-appellee.

Appeal from the United States District Court for the District of Connecticut.

Before FEINBERG, MANSFIELD and OAKES, Circuit Judges.


Irene Pantchenko appeals from two judgments entered by the District of Connecticut, Jon O. Newman, Judge, dismissing two separate actions instituted by her against her former employer, C. B. Dolge Co., a Connecticut manufacturer of floor polishes, detergents, aerosol and cleaning products, which had employed her as a chemist.

Appellant's first action, No. 15,581, filed on August 17, 1973, alleged that Dolge, in violation of both Title VII of the 1964 Civil Rights Act, 42 U.S.C. §§ 2000e, et seq., and the Equal Pay Act, 29 U.S.C. § 206, had discriminated against her in terms of employment conditions and pay because of her sex, and had subjected her to verbal and physical abuse, assaults and improper sexual advances. Her second action, No. B-74-251, filed on July 1, 1974, alleged that in violation of Title VII Dolge, after she had left its employ in January, 1971, had refused to give her a letter of recommendation and had made disparaging and untrue statements about her to her prospective employers, all in retaliation for her filing with the Equal Employment Opportunities Commission an employment discrimination charge against it. In the first action appellant sought $150,000 damages, declaratory and injunctive relief, and in the second $50,000 damages plus attorney's fees and other appropriate relief.

After consolidation of the two actions, Judge Newman, on June 10, 1976, granted Dolge's motion for summary judgment in the second suit, No. B-74-251, on the ground that since appellant was no longer a Dolge employee when the retaliation allegedly occurred, the conduct did not fall "within the purview" of Title VII, which deals with acts of employers and does not expressly prohibit an employer from refusing to furnish a recommendation for future employment, although it explicitly prohibits an employment agency or a labor organization from refusing to refer a person for employment. Simultaneously Judge Newman denied Dolge's motion for summary judgment dismissing the first action, No. 15,581, and after a non-jury trial of this suit he, on September 21, 1977, filed a Memorandum Decision in which he made detailed findings of fact to the effect that appellant's claims were not supported by persuasive evidence and awarded judgment on the merits in favor of Dolge.

DISCUSSION

Action No. 15,581

Having alleged violations of Title VII by Dolge, appellant assumed the burden in the district court of adducing sufficient evidence to make out a prima facie case of discrimination. Upon this appeal, moreover, Judge Newman's findings may be set aside only upon a showing that they are "clearly erroneous," Rule 52(a), F.R. Civ.P. No such showing has been made by appellant. On the contrary, the trial judge's findings are amply supported by the record, which shows that, although appellant was a competent, conscientious and highly qualified chemist and employed by Dolge as such, she had had no prior experience with floor polishes when she commenced her employment. Thereafter she was not unfairly paid in comparison to male employees doing comparable work, after taking into consideration the nature and extent of her education, experience and responsibilities.

Bearing in mind the deference that must be accorded to the trial judge's appraisal of the credibility of the witnesses testifying before him, we cannot label as clearly erroneous his findings that plaintiff had failed to sustain her claims of harassment, assault and sexual molestation by a fair preponderance of the evidence.

The judgment in Action No. 15,581 must therefore be affirmed.

Action No. B-74,251

Title VII, 42 U.S.C. § 2000e-3 provides in pertinent part:

"It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment . . . because he has made a charge . . . under this subchapter." (Emphasis supplied).

"Employee" is defined as "an individual employed by an employer." 42 U.S.C. § 2000e(f).

Read literally the foregoing language, which prohibits discrimination by an "employer" against his "employees", may be construed, as it was by the district court, to require that an employment relationship exist at the time of the challenged conduct. However, such a narrow construction would not give effect to the statute's purpose, which is to furnish a remedy against an employer's use of discrimination in connection with a prospective, present or past employment relationship to cause harm to another. As Learned Hand wisely observed, "[I]t is a commonplace that a literal interpretation of the words of a statute is not always a safe guide to its meaning." Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir. 1960). See also Federal Deposit Ins. Corp. v. Tremaine, 133 F.2d 827, 830 (2d Cir. 1943) (L. Hand, C.J.). ("There is no surer guide in the interpretation of a statute than its purpose when that is sufficiently disclosed; nor any surer mark of over solicitude for the letter than to wince at carrying out that purpose because the words used do not formally quite match with it.") With these principles in mind we view the term "employee" as used in the statute as including a former employee. In short, the statute prohibits discrimination related to or arising out of an employment relationship, whether or not the person discriminated against is an employee at the time of the discriminatory conduct.

The foregoing interpretation of the term "employee" as used in § 2000e-3(a) has been adopted by the Tenth Circuit in Rutherford v. American Bank of Commerce, 565 F.2d 1162 (10th Cir. 1977), which had not been decided at the time of the district court's decision in this case. See also Dunlop v. Carriage Carpet Co., 548 F.2d 139 (6th Cir. 1977), construing the term "employee" as used in the Fair Labor Standards Act, 29 U.S.C. § 215(a)(3), as including a former employee. We are persuaded by the Rutherford court's reasoning and find Dubnick v. Firestone Tire Rubber Co. of California, 355 F.Supp. 138 (E.D. N.Y. 1973), cited by Judge Newman and relied upon by Dolge, to be clearly distinguishable. There the court held that a former employer's unfavorable post-employment letters, while possibly relevant to charges of discriminatory conduct during the period of the plaintiff's earlier employment, could not be transformed into additional causes of action when they had not been alleged in the complaint. Here, in contrast, appellant's complaint clearly alleges that Dolge refused to provide her with post-employment reference letters in retaliation for her earlier filing of an employment discrimination charge with the EEOC.

Nor does the Act's use of the word "individual" in prohibiting discrimination by a prospective employer against an applicant for employment or by an employment agency, labor organization, or joint labor-management committee, see 42 U.S.C. §§ 2000e-2, e-3, require that the term "employee" be construed literally or as limited to the present tense rather than in accord with the statute's purpose. An applicant for employment, unlike a former employee, may not be described as an "employee." Similarly, a person seeking employment through an agency is not an employee of the agency any more than a member of a union is an employee of the union. In such cases use of the word "individual" rather than "employee" is more appropriate whereas, once an employment relationship has been created, use of the term "employee" in referring to a former employee, while colloquial, is not inappropriate.

The district court here also based its decision on the ground that an employer's mere refusal to provide an employee with a reference does not violate § 2000e-3. Although this may be true, the complaint here alleges, in addition, that the reference was refused in retaliation for plaintiff's efforts to protect herself against the employer's other discriminatory conduct by filing charges with the EEOC. Proof of such conduct would amount to discrimination of the type prohibited by § 2000e-3.

Accordingly, the judgment in No. B-74-251 is reversed, and the case remanded for further proceedings.

No costs are awarded on these appeals.


Summaries of

Pantchenko v. C. B. Dolge Co., Inc.

United States Court of Appeals, Second Circuit
Aug 15, 1978
581 F.2d 1052 (2d Cir. 1978)

holding the refusal to write a recommendation letter constituted an actionable retaliation claim

Summary of this case from Schaper v. Bronx Lebanon Hosp. Ctr.

holding that "refusal to provide an employee with a reference" in retaliation for protected conduct "would amount to discrimination of the type prohibited by" 42 U.S.C. § 2000e-3

Summary of this case from Shakerdge v. Tradition Fin. Servs., Inc.

holding that Title VII “prohibits discrimination related to or arising out of an employment relationship, whether or not the person discriminated against is an employee at the time of the discriminatory conduct”

Summary of this case from Corbett v. Napolitano

holding that Title VII "prohibits discrimination related to or arising out of an employment relationship, whether or not the person discriminated against is an employee at the time of the discriminatory conduct"

Summary of this case from Corbett v. Napolitano

holding that an employer's refusal to give employee a letter of recommendation is sufficient to state a cause of action for retaliation

Summary of this case from Abreu v. Suffolk County Police Department

holding that an employer's refusal to give employee a letter of recommendation is sufficient to state a cause of action for retaliation

Summary of this case from Deluca v. Allied Domecq Quick Service Restaurants

finding that where employer refused to write post-employment letters to prospective employers, a plaintiff could maintain a cause of action for retaliation

Summary of this case from Bentivegna v. People's United Bank

finding that a former employer's refusal to provide references in retaliation for an employee's prior protected activity could constitute an adverse employment action under Title VII, without requiring the plaintiff to allege that the former employer's refusal actually resulted in her failure to be hired by the potential future employer

Summary of this case from Corbett v. Napolitano

finding that a former employer's refusal to provide references in retaliation for an employee's prior protected activity could constitute an adverse employment action under Title VII, without requiring the plaintiff to allege that the former employer's refusal actually resulted in her failure to be hired by the potential future employer

Summary of this case from Corbett v. Napolitano

reversing summary judgment for employer in section 2000e-3 "blacklisting" case seeking $50,000 in damages

Summary of this case from Sherman v. Burke Contracting, Inc.

reversing a district court's grant of summary judgment on this issue

Summary of this case from Santi v. Hot in Here, Inc.

construing "employee" in Title VII to include former employees in light of statute's purpose "to furnish a remedy against an employer's use of discrimination in connection with a prospective, present or past employment relationship to cause harm to another."

Summary of this case from Castellano v. City of New York

alleging that former employer refused to furnish letters of recommendation in retaliation for former employee's having filed discrimination charges with EEOC

Summary of this case from Gonzales v. Garner Food Services, Inc.

noting "the statute's purpose, which is to furnish a remedy against an employer's use of discrimination in connection with a prospective, present or past employment relationship to cause harm to another."

Summary of this case from Knope v. Sessions

interpreting Title VII of the Civil Rights Act of 1964

Summary of this case from Azkour v. Haouzi

labeling an employer's behavior as violative of anti-retaliation provision where employer refuses to provide postemployment reference letters in retaliation for employee's filing charges with EEOC

Summary of this case from Lamison v. Bottling Group, LLC

In Pantchenko, the Court defined "employee" in Title VII to include former employees in order to give effect to the statute's purpose of furnishing "a remedy against an employer's use of discrimination in connection with a prospective, present or past employment relationship to cause harm to another."

Summary of this case from Beckett v. Prudential Ins. Co. of Am.

refusing to give references in retaliation for an employee's filing of a charge with the EEOC constitutes prohibited discrimination

Summary of this case from Beckett v. Prudential Ins. Co. of Am.

In Pantchenko v. C.B. Dolge, 581 F.2d at 1055, the fact that plaintiff's former employer refused to provide her with an employment reference in retaliation for EEOC charges stated a claim as well because it hampered her efforts to find new work after termination.

Summary of this case from Patel v. Lutheran Medical Center, Inc.
Case details for

Pantchenko v. C. B. Dolge Co., Inc.

Case Details

Full title:IRENE PANTCHENKO, PLAINTIFF-APPELLANT, v. C. B. DOLGE COMPANY, INC.…

Court:United States Court of Appeals, Second Circuit

Date published: Aug 15, 1978

Citations

581 F.2d 1052 (2d Cir. 1978)

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