     Case: 12-10642   Document: 00512208831        Page: 1   Date Filed: 04/15/2013




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                 Fifth Circuit

                                                                     FILED
                                                                    April 15, 2013
                                    No. 12-10642
                                                                    Lyle W. Cayce
                                                                         Clerk
ANTHONY CARTER,

                                            Plaintiff - Appellant

v.

LUMINANT POWER SERVICES COMPANY,

                                            Defendant - Appellee


                 Appeal from the United States District Court
                      for the Northern District of Texas


Before KING, HIGGINBOTHAM, and CLEMENT, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
      Title VII of the Civil Rights Act of 1964 proscribes several types of
discrimination. Included among them is “mixed motive” discrimination:
discrimination motivated in part, but not entirely, by an impermissible factor.
An employer found to have acted with such a motivation can limit a plaintiff’s
recovery by demonstrating that it would have made the “same decision”
regardless. But under 42 U.S.C. § 2000e-5(g)(2)(B)(i), the employer may still
need to reimburse the plaintiff’s costs and attorney’s fees. The parties dispute
whether that cost- and fee-shifting provision applies to mixed-motive retaliation
claims. We hold that it does not.
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                                                I.
       Anthony Carter worked for Luminant Power Services Company. He later
sued Luminant in federal district court, alleging several unlawful employment
practices.1 As relevant here, Carter claimed that Luminant disciplined him in
retaliation for his complaints of racial discrimination.2
       A jury agreed with Carter—in part. It found that Carter’s complaints
motivated Luminant’s decision to discipline him. The jury also found, however,
that Luminant proved, by a preponderance of the evidence, that it would have
made the “same decision” irrespective of his complaints.
       The district court entered judgment in Luminant’s favor and taxed all
costs against Carter. Carter moved to retax costs and sought an award of
attorney’s fees, relying on § 2000e-5(g)(2)(B)(i). The district court concluded that
the provision was inapplicable to “a mixed-motive retaliation claim” like Carter’s
and denied his motion. Carter appeals.


                                               II.
       Carter identifies only one statutory provision that might justify awarding
him attorney’s fees and costs: the aforementioned § 2000e-5(g)(2)(B)(i). We
review de novo the district court’s interpretation of that provision.3

       1
         See 42 U.S.C. § 1981 (Civil Rights Act of 1866); id. § 2000e-2, et. seq. (Title VII of the
Civil Rights Act of 1964).
       2
         The parties stipulated that Title VII protected Carter’s decisions to complain. The
district court instructed the jury that Luminant’s disciplining of Carter was an adverse
employment action. Cf. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (“[A]
plaintiff must show that a reasonable employee would have found the challenged action
materially adverse.”).
       3
         See In re S. Scrap Material Co., LLC, 541 F.3d 584, 587 (5th Cir. 2008) (“[T]his Court
reviews a district court’s statutory construction de novo.”). Carter contends that he should
prevail because Luminant represented to the district court that, if Luminant made out a same-
decision defense, § 2000e-5(g)(2)(B)(i) would apply to Carter’s claim. Carter cites no authority
to support this contention. Cf. FED. R. APP. P. 28(9)(A) (“[T]he argument . . . must contain . .
. appellant’s contentions and the reasons for them, with citations to the authorities . . . on
which the appellant relies.”). “In any case, it is well settled that a court is not bound to accept

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                                                A.
       Our analysis begins with the statutory text.4 In relevant part, Section
2000e-5(g)(2)(B)(i) states:
       On a claim in which an individual proves a violation under section
       2000e-2(m) of this title and a respondent demonstrates that the
       respondent would have taken the same action in the absence of the
       impermissible motivating factor, the court . . . may grant . . .
       attorney’s fees and costs demonstrated to be directly attributable
       only to the pursuit of a claim under section 2000e-2(m) of this title.5
By its plain terms, then, the fee- and cost-shifting provision in § 2000e-5(g)
applies only to violations of § 2000e-2(m).
       As relevant here, Section 2000e-2(m) provides that “an unlawful
employment practice is established when the complaining party demonstrates
that race, color, religion, sex, or national origin was a motivating factor for any
employment practice, even though other factors also motivated the practice.”6
Section 2000e-2(m), does not provide, however, that an employment practice
motivated in part by retaliation is unlawful.
       This omission is of great import. Title VII contains both a “core
antidiscrimination provision” and an “antiretaliation provision.”7 Congress
divided these provisions across separate sections. Section 2000e-2(a) proscribes
discrimination against an individual “because of such individual’s race, color,
religion, sex, or national origin.”8 Section 2000e-3(a)—the anti-retaliation


as controlling stipulations as to questions of law.” Equitable Lfe Assur. Soc. of U.S. v. MacGill,
551 F.2d 978, 983 (5th Cir. 1977). And Carter does not even use the phrase “estoppel,” let
alone contend that estoppel is appropriate here.
       4
           See, e.g., Gross v. FBL Fin. Services, Inc., 557 U.S. 167, 175 (2009).
       5
           42 U.S.C. § 2000e-5(g)(2)(B)(i).
       6
           Id. § 2000e-2(m).
       7
           Burlington, 548 U.S. at 61–62.
       8
           42 U.S.C. § 2000e-2(a) (codifying Section 703(a)).

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provision—proscribes discrimination against an individual because “he has
opposed any practice made an unlawful employment practice by this subchapter,
or because he has made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing under this subchapter.”9
Section 2000e-2(m) conspicuously tracks the impermissible factors set out in
§ 2000e-2(a), while making no mention of § 2000e-3(a). From this omission, we
infer that Congress did not intend for § 2000e-2(m) to reach retaliation claims.10
       Other elements of the statutory scheme confirm our understanding.
Section 2000e-5(g)(2)(A) refers to “discrimination on account of race, color,
religion, sex, or national origin or in violation of section 2000e-3(a)”11—implying
that discrimination “on account of” race is distinct from retaliation. And § 1981a
authorizes damages for certain claims brought under § 2000-e(2) or § 2000-e(3),
again suggesting that the sections target different types of mistreatment.12
       Because we are convinced that § 2000e-2(m) does not encompass
retaliation      claims,     we    join   several     other   Circuits   in   holding    that
§ 2000e-5(g)(2)(B)(i) does not apply to mixed-motive retaliation claims.13

       9
           Id. § 2000e-3(a) (codifying Section 704(a)).
       10
          See Bruesewitz v. Wyeth LLC, 131 S. Ct. 1068, 1076 (2011) (“Expressio unius, exclusio
alterius.”).
       11
         42 U.S.C. § 2000e-5(g)(2)(A) (emphasis added). It is true, of course, that the quoted
language existed before the Civil Rights Act of 1991 added §§ 2000e-2(m) and
2000e-5(g)(2)(B)(i) to Title VII. But Congress was almost certainly aware of the quoted
language in 1991—both because it then added § 2000-e(g)(2)(B)(i) and because the 1991 Act
“designat[ed the quoted language] as paragraph (2)(A),” rather than simply the “fourth
sentence” of § 2000e-5(g). Pub. L. No. 102-166, 105 Stat 1071.
       12
         See id. § 1981a(a)(1) (authorizing damages for certain claims brought under “section
703” or “704 . . . (42 U.S.C. 2000e-2 or 2000e-3)”).
       13
         See Matima v. Celli, 228 F.3d 68, 81 (2d Cir. 2000); Norbeck v. Basin Elec. Power
Co-op., 215 F.3d 848, 852 (8th Cir. 2000); McNutt v. Bd. of Trustees of Univ. of Illinois, 141
F.3d 706, 707–09 (7th Cir. 1998); Tanca v. Nordberg, 98 F.3d 680, 682–85 (1st Cir. 1996); see
also Kubicko v. Ogden Logistics Services, 181 F.3d 544, 552 n.7 (4th Cir. 1999) (holding §
2000e-2(m) inapplicable to Title VII retaliation claims); Woodson v. Scott Paper Co., 109 F.3d
913, 935 (3d Cir. 1997) (same); cf. Metoyer v. Chassman, 504 F.3d 919, 934 (9th Cir. 2007);

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                                              B.
       Carter disagrees. He reasons that “[h]ere, race was a motivating factor
because Carter’s protected activity involved complaints about race comments
and incidents and also filing a charge of race discrimination with the [Equal
Employment Opportunity Commission (EEOC)].” In essence, his point is that
retaliation for a complaint of race discrimination makes race a “motivating factor
for [the retaliatory] employment practice”14—bringing it within the ambit of
§ 2000e-2(m), and thus §2000e-5(g)(2)(B)(i).
       This argument has some force. In recent years, the Supreme Court has
repeatedly held that language to the effect of “discrimination on the basis of [a
characteristic]” sweeps in retaliation arising from complaints of discrimination
based on that characteristic.15 Yet all but one of those cases involved broadly
phrased prohibitions—prohibitions in statutes that did not mention retaliation
in one place but omit it from the provision at issue.16
       In Jackson v. Birmingham Board of Education,17 for example, the Supreme
Court held that “when a funding recipient retaliates against a person because he
complains of sex discrimination, this constitutes intentional ‘discrimination,’ ‘on


Lewis v. Young Men's Christian Ass’n, 208 F.3d 1303, 1304 (11th Cir. 2000).
       Although we respect the contrary view set out in the EEOC’s Compliance Manual, see
EEOC Compl. Man., § 8-II-E.1 n.45 (May 20, 1998), that view “is not controlling,” Clackamas
Gastroenterology Associates, P. C. v. Wells, 538 U.S. 440, 449 n.9 (2003). And while we
construe broadly the remedial provisions of Title VII, “[w]e must assume that Congress meant
what it said”—and heed what it did not. Pinter v. Dahl, 486 U.S. 622, 653 (1988).
       14
            42 U.S.C. § 2000e-2(m).
       15
           See CBOCS W., Inc. v. Humphries, 553 U.S. 442 (2008) (construing “‘[a]ll persons
shall have the same right . . . to make and enforce contracts . . . as is enjoyed by white
citizens’” to “encompass[] a [prohibition on] retaliation against a person who has complained
about a violation of another person’s contract-related ‘right.’” (quoting 42 U.S.C. § 1981(a)));
Gomez-Perez v. Potter, 553 U.S. 474, 479 (2008); Jackson v. Birmingham Bd. of Educ., 544 U.S.
167, 174 (2005); see also Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 237 (1969).
       16
            See CBOCS, 553 U.S. at 442; Jackson, 544 U.S. at 174; Sullivan, 396 U.S. at 237.
       17
            544 U.S. at 167.

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the basis of sex,’ in violation of Title IX.”18 But the Jackson Court expressly
distinguished Title VII, calling it “vastly different.”19 The Court explained:
      Title IX is a broadly written general prohibition on discrimination,
      followed by specific, narrow exceptions to that broad prohibition. . . .
      By contrast, Title VII spells out in greater detail the conduct that
      constitutes discrimination in violation of that statute. See 42 U.S.C.
      §§ 2000e-2 (giving examples of unlawful employment practices),
      2000e-3 (prohibiting ‘[o]ther unlawful employment practices,’
      including . . . ‘[d]iscrimination’ in the form of retaliation . . .).
      Because Congress did not list any specific discriminatory practices
      when it wrote Title IX, its failure to mention one such practice does
      not tell us anything about whether it intended that practice to be
      covered.20
Because Congress did list specific practices when it wrote Title VII,
§ 2000e-2(m)’s silence with respect to retaliation is informative.
      Gomez-Perez v. Potter21 is the exceptional case. In it, the Supreme Court
considered whether a federal employee may assert a retaliation claim under
29 U.S.C. § 633a(a), part of the Age Discrimination in Employment Act
(ADEA).22 Section 633a(a) proscribes “discrimination based on age.”23 The Court
held that the phrase reaches “retaliation based on the filing of an age
discrimination complaint,”24 even though § 623(d) “prohibit[s] retaliation against
individuals who complain about age discrimination in the private sector.”25



      18
           Id. at 174.
      19
           Id. at 175.
      20
           Id.
      21
           553 U.S. at 474.
      22
           Id. at 477,
      23
           Id. at 479 (quoting 29 U.S.C. § 633(a)) (internal quotation marks omitted).
      24
           Id.
      25
           Id. at 481, 485.

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       The Court reasoned that § 633a(a) was enacted in 1974, only five years
after Sullivan v. Little Hunting Park, Inc.26 In Sullivan, the Supreme Court held
that “‘discrimination on the basis of race’” likewise proscribed retaliation.27
Unlike the ADEA, however, the 1991 amendment to Title VII implicitly rejects
reliance on Sullivan: it reorganizes and leaves unchanged the language in
§ 2000e-5(g)(2)(A), which addresses “discrimination on account of race, color,
religion, sex, or national origin or in violation of section 2000e-3(a).”28 This
suggests that, at least for purposes of Title VII, “discrimination on account of
race” does not include retaliation; likewise, employment practices motivated by
retaliation are not employment practices motivated by race.29 Finally, the
specific anti-retaliation provision in the ADEA (§ 623(d)) applied to private
employers, while the broad provision at issue (§ 633(a)) applied to federal
employers. Thus, Gomez-Perez did not consider a situation precisely like this
one, in which private employers are already subjected to an “antidiscrimination”
and an “antiretaliation” prohibition, and Congress adds a private-employer
provision that does not mention retaliation. Accordingly, while it is a close
question, we do not believe that Gomez-Perez’s interpretation of the ADEA
controls our interpretation of Title VII.30




       26
            396 U.S. at 229.
       27
            Gomez-Perez, 553 U.S. at 481.
       28
            42 U.S.C. § 2000e-5(g)(2)(A).
       29
         The language of § 2000e-5(g)(2)(A) was, of course, part of Title VII as originally
enacted. The point is not that the 1991 amendment introduced this language, it is that it
reaffirmed the language—reorganizing it without making any substantive changes.
       30
         Carter also argues that § 2000e-5(g) must authorize relief for retaliation claims, since
§ 1981a(1) authorizes damages for claims under § 2000e-2(a) and § 2000e-3(a) “in addition to
any relief authorized by [Section § 2000e-5(g)].” 42 U.S.C. § 1981a. Even if true, the fact that
§ 2000e-5(g) must reach retaliation claims does not mean that § 2000e-5(g)(2)(B)(i) must reach
such claims. See § 2000e-5(g)(1), (2)(A).

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                                              C.
        We pause to note a concern not raised by either of the parties. As
discussed above, § 2000e-2(m) closely tracks the language in § 2000e-2(a), Title
VII’s “core antidiscrimination provision.” But it does so imperfectly. Section
2000e-2(a) targets discrimination against an individual “because of such
individual’s race, color, religion, sex, or national origin.”31 That language—“such
individual’s”—is glaringly absent from § 2000e-2(m). The parties do not suggest
what work this omission was intended to do. It could, for example, prohibit
discrimination based on someone’s association with persons of a particular race.
Or it might prohibit retaliation against a person who objects to racial
harassment levied against someone of a different race.32 Nevertheless, we are
unwilling “to assume that Congress chose a surprisingly indirect route to convey
an important and easily expressed message”—namely, that § 2000e-2(m) reaches
retaliation.33 Accordingly, we maintain that § 2000e-2(m) does not do so.


                                             ***
       Section § 2000e-5(g)(2)(B)(i) authorizes cost- and fee-shifting only for
violations of § 2000e-2(m). Retaliation does not violate § 2000e-2(m).
Consequently, the district court correctly decided that § 2000e-5(g)(2)(B)(i) does
not authorize cost- and fee-shifting for retaliation claims. We therefore
AFFIRM.34


       31
            42 U.S.C. § 2000e-2(a).
       32
          Cf. Jackson, 544 U.S. at 179 (“[Title IX] does not require that the victim of the
retaliation must also be the victim of the discrimination that is the subject of the original
complaint. If the statute provided instead that ‘no person shall be subjected to discrimination
on the basis of such individual’s sex,’ then we would [conclude otherwise].” (citing 42 U.S.C.
§ 2000e-2(a)).
       33
            Landgraf v. USI Film Products, 511 U.S. 244, 262 (1994).
       34
           The Supreme Court will soon hear argument concerning whether mixed-motive
retaliation claims are cognizable under § 2000e-3(a). See Univ. of Texas Sw. Med. Ctr. v.

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Nassar, 133 S. Ct. 978 (2013). In Smith v. Xerox Corp., we held that such claims are
cognizable. 602 F.3d 320, 330 (5th Cir. 2010). We did not hold, however, that they are
cognizable under § 2000e-2(m). See id. at 329 and n.28, 330.

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