                                                                              PUBLISH



                     IN THE UNITED STATES COURT OF APPEALS

                             FOR THE ELEVENTH CIRCUIT
                               ________________________

                                      No. 97-2897
                               ________________________

                            D.C. Docket No. 96-255-Civ-T-24E

TONYA J. WIDEMAN,

                                                                         Plaintiff-Appellant,

                                           versus

WAL-MART STORES, INC.,

                                                                        Defendant-Appellee.

                                _______________________

                        Appeal from the United States District Court
                            for the Middle District of Florida
                               _______________________

                                      (May 27, 1998)


Before CARNES, Circuit Judge, KRAVITCH, Senior Circuit Judge, and MILLS *, Senior
District Judge.




_______________________
*Honorable Richard Mills, Senior U.S. District Judge for the Central District of Illinois,
sitting by designation.


CARNES, Circuit Judge:
       Plaintiff Tonya Wideman appeals from the district court's grant of defendant Wal-

Mart's motion for a judgment as a matter of law on her Title VII claims of hostile

environment, constructive discharge, and retaliation. Wideman's contention that the district

court erred in granting Wal-Mart a judgment on her hostile environment and constructive

discharge claims is meritless; the judgment with respect to those claims is affirmed without

further discussion. However, for the reasons set forth below, we agree with Wideman's

contention that the district court erred in granting Wal-Mart judgment as a matter of law on

her retaliation claim.

                                     I. DISCUSSION

       We review de novo the grant of a judgment as a matter of law. See Thomas v. Dillard

Dept. Stores, Inc., 116 F.3d 1432, 1433 (11th Cir. 1997). We, like the district court, are

required to view the facts in the light most favorable to the nonmovant. See Walls v. Button

Gwinnett Bancorp, Inc., 1 F.3d 1198, 1200 (11th Cir. 1993).

       The parties agree that to establish a prima facie case of retaliation under 42 U.S.C. §

2000e-3(a), a plaintiff must show that (1) she engaged in statutorily protected expression; (2)

she suffered an adverse employment action; and (3) the adverse action was causally related

to the protected expression. See, e.g., Weaver v. Casa Gallardo, 922 F.2d 1515, 1524 (11th

Cir. 1991). However, the parties disagree over whether a plaintiff who alleges she was

retaliated against for filing an EEOC charge of discrimination must also establish, as part of

her prima facie case, that she had a good faith, reasonable basis for filing the charge.

Wideman argues that a plaintiff who alleges she suffered retaliation for filing an EEOC

                                              2
charge is pursuing her claim under the participation clause of 42 U.S.C. § 2000e-3(a), and

that protection from retaliation under the participation clause is not conditioned by a good

faith, reasonable basis requirement. Wal-Mart, on the other hand, notes that we have held

that retaliation claims brought under the opposition clause of 42 U.S.C. § 2000e-3(a) are

conditioned by a good faith, reasonable basis requirement, see, e.g, Little v. United

Technologies, 103 F.3d 956, 959-60 (11th Cir. 1997), and argues that we should not

distinguish retaliation claims brought under the participation clause from those under the

opposition clause. The district court agreed with Wal-Mart, holding that Wideman did not

establish a prima facie case of retaliation because her EEOC charge of discrimination was

not “objectively reasonable.”

       Because we conclude that the facts of this case, viewed in the light most favorable to

Wideman, show that Wideman had a good faith, reasonable basis for filing her charge, we

need not decide whether protection from retaliation under the participation clause is

conditioned by a good faith, reasonable basis requirement. During the trial Wideman

testified as follows concerning her reasons for filing her EEOC charge of discrimination on

February 9, 1995:

       Q. At the time you filed [the EEOC] charge, did you feel that you were being
       discriminated against?

       A. Yes.

       Q. Why did you feel that way?

       A. The statements that were made to me, the pay cut, the statement Mr. Telfer made
       when he took half of the raise back, and the fact that I was qualified for that [craft

                                             3
       instructor] position. And the bottom end, Mrs. Dellinger let me know that she was not
       giving it [the position] to anybody black.

(emphasis added). Accepting Wideman’s testimony as true and interpreting it in the light

most favorable to her position, as we must for purposes of reviewing a judgment as a matter

of law, she filed the charge of discrimination because her manager told her that the craft

instructor position would not be filled by a black person. Because refusing to fill a position

based on race is illegal discrimination under Title VII, if Wideman’s testimony is true, she

had a good faith, reasonable basis for filing an EEOC charge of racial discrimination.1 Thus,

the district court erred in concluding that Wideman had failed to establish a prima facie claim

of retaliation because her EEOC charge of discrimination was not “objectively reasonable.”

       Turning to whether Wideman presented sufficient evidence to establish the three

elements of a retaliation claim, Wal-Mart concedes that Wideman engaged in protected

activity by filing the EEOC charge of discrimination on February 9, 1995, but contends that

she failed to show she suffered any adverse employment actions or a causal connection

between the protected activity and any adverse employment actions. We disagree.

       As evidence of adverse employment actions, Wideman points to the following actions

which occurred (viewing the evidence in the light most favorable to her) after she filed her

EEOC charge. First, on February 11, 1995, the day after she informed management that she



       1
        Wal-Mart's counsel conceded at oral argument that Wideman would have a good
faith reasonable basis for her charge if Wideman had testified that she filed the
discrimination charge because Dellinger told her she would not give the position to
anybody black. As we have pointed out, Wideman did testify to that.

                                              4
had filed an EEOC charge, she was improperly listed as a no-show on a day she was

scheduled to have off. Wideman discovered the error when she went into the Wal-Mart to

shop. When she brought the error to the attention of her manager, Mark Telfer, he required

her to work anyway without a lunch break. Second, on February 13 and 22, 1995, Telfer

gave Wideman written reprimands. After the second reprimand, she received a one-day

suspension. In her previous eleven months of employment at Wal-Mart she had not received

any reprimands. Third, around February 13,1995, Telfer began soliciting employees at Wal-

Mart for negative statements concerning Wideman. According to Wideman, Telfer did not

seek statements from employees who would have given positive comments about her.

Fourth, on April 3, 1995, Wideman reported to work and found she had not been scheduled

to work. When she announced her intention to call Wal-Mart headquarters to find out why,

Assistant Manager Rene Willemain threatened to shoot her in the head. Fifth, on May 3,

1995, while she was working at Wal-Mart, Wideman suffered an allergic reaction which

required medical treatment. Although Wal-Mart Assistant Manager Audrey Nichols was

aware that Wideman needed treatment, she needlessly delayed authorizing that medical

treatment.

      Wal-Mart contends that none of those acts are sufficient to constitute an adverse

employment action for purposes of a retaliation claim. Relying principally on the Fifth

Circuit’s holding in Mattern v. Eastman Kodak Co., 104 F.3d 702 (5th Cir. 1997), Wal-Mart

argues that unless the alleged act of retaliation was an “ultimate employment action” such

as discharge or failure to hire, it does not qualify as an adverse employment action for

                                            5
purposes of an unlawful retaliation claim.2

       There is a circuit split on this issue. While the Eighth Circuit has sided with the Fifth

Circuit, see Ledergerber v. Stangler, 122 F.3d 1142, 1144 (8th Cir. 1997) (only adverse

employment actions that “rise to the level of an ultimate employment decision [are] intended

to be actionable under Title VII.”), the First, Ninth, and Tenth Circuits have all held that Title

VII’s protection against retaliatory discrimination extends to adverse actions which fall short

of ultimate employment decisions. See Wyatt v. City of Boston, 35 F.3d 13, 15-16 (1st Cir.

1994) (stating that actions other than discharge are covered by Title VII’s anti-retaliation

provision and listing as examples, “employer actions such as demotions, disadvantageous

transfers or assignments, refusals to promote, unwarranted negative job evaluations and

toleration of harassment by other employees.”) (internal citation omitted); Yartzoff v.

Thomas, 809 F.2d 1371, 1375 (9th Cir. 1987) (holding that such non-ultimate employment

decisions as “[t]ransfers of job duties and undeserved performance ratings, if proven, would

constitute ‘adverse employment decisions’ cognizable under” Title VII’s anti-retaliation

provision); Berry v. Stevinson Chevrolet, 74 F.3d 980, 984-86 (10th Cir. 1996) (construing

Title VII’s anti-retaliation provision to reach beyond ultimate employment decisions and

protect an employee from a malicious prosecution action brought by former employer). In

addition, the D.C. Circuit has held that the Age Discrimination in Employment Act’s anti-


       2
        Wal-Mart also cites the Fourth Circuit case of Page v. Bolger, 645 F.2d 227 (4th
Cir. 1981). We find that case inapposite because it did not involve a case arising under
42 U.S.C. § 2000e-3(a). Instead, it involved a claim of denial of promotion on the basis
of race under 42 U.S.C. § 2000e-16.

                                                6
retaliation clause, which is identical to Title VII’s, “does not limit its reach only to acts of

retaliation that take the form of cognizable employment actions such as discharge, transfer

or demotion.” Passer v. American Chem. Soc’y, 935 F.2d 322, 331 (D.C. Cir. 1991). See

also, Welsh v. Derwinski, 14 F.3d 85, 86 (1st Cir. 1994) (stating that the ADEA’s anti-

retaliation provision covers more than discharge, demotion, or failure to promote and that a

“case by case review” is necessary to determine whether an employer’s actions rise to the

level of adverse employment actions for purposes of stating a prima facie case of retaliation).

       We join the majority of circuits which have addressed the issue and hold that Title

VII’s protection against retaliatory discrimination extends to adverse actions which fall short

of ultimate employment decisions. The Fifth and Eighth Circuits’ contrary position is

inconsistent with the plain language of 42 U.S.C. § 2000e-3(a), which makes it “unlawful to

discriminate against any of his employees . . . because he has made a charge . . .” (emphasis

added). Read in the light of ordinary understanding, the term “discriminate” is not limited

to “ultimate employment decisions.” Moreover, our plain language interpretation of 42

U.S.C. § 2000e-3(a) is consistent with Title VII’s remedial purpose. Permitting employers

to discriminate against an employee who files a charge of discrimination so long as the

retaliatory discrimination does not constitute an ultimate employment action, could stifle

employees’ willingness to file charges of discrimination.

       Although we do not doubt that there is some threshold level of substantiality that must

be met for unlawful discrimination to be cognizable under the anti-retaliation clause, we need

not determine in this case the exact notch into which the bar should be placed. It is enough

                                               7
to conclude, as we do, that the actions about which Wideman complains considered

collectively are sufficient to constitute prohibited discrimination. We need not and do not

decide whether anything less than the totality of the alleged reprisals would be sufficient.

Accordingly, for judgment as a matter of law purposes, Wideman’s evidence satisfied the

adverse employment action requirement for a prima facie case of retaliation.

       To establish the causal relation element of her prima facie case of retaliation,

Wideman need only show “that the protected activity and the adverse action are not wholly

unrelated.” Meeks v. Computer Associates Intern., 15 F.3d 1013, 1021 (11th Cir. 1994)

(quoting EEOC v. Reichhold Chem., Inc., 988 F.2d 1571-72 (11th Cir. 1993). She has done

that by presenting evidence that Wal-Mart knew of her EEOC charge -- she testified that she

informed her Wal-Mart managers on February 10, 1995 that she had filed an EEOC charge

of discrimination the day before -- and that the series of adverse employment actions

commenced almost immediately after management learned she had filed the charge. See

Donnellon v. Fruehauf Corp., 794 F.2d 598, 601 (11th Cir. 1986) (“The short period of time

[(one month)] between the filing of the discrimination complaint and the . . . [adverse

employment action] belies any assertion by the defendant that the plaintiff failed to prove

causation.”).

       Thus, we conclude that Wideman presented sufficient evidence to establish a prima

facie case of retaliation. Because of that and because Wal-Mart did not assert in the district

court any non-discriminatory reasons for the adverse employment actions Wideman allegedly

suffered in retaliation for filing her charge, she was not required to present any additional

                                              8
evidence in order to survive Wal-Mart’s motion for judgment as a matter of law.

Accordingly, we reverse the district court’s entry of judgment against Wideman on the

retaliation claim.

                                  II. CONCLUSION

       We AFFIRM the district court’s entry of a judgment on the hostile environment and

constructive discharge claims, but REVERSE the district court’s entry of a judgment on the

retaliation claim and we REMAND the case for a trial on the merits of that claim.




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