"Utterly Baseless" Charge of Discrimination Not Protected Activity Even Under the Participation Clause

Students of the law of retaliation know that there are two kinds of protected activity under Title VII (and some other statutes). Under the "opposition cause" an employee is protected merely for voicing his opposition to a prohibited practice, even if that opposition is never raised as part of a formal charge. By contrast the "participation clause" protects employees who file a charge of discrimination, or somehow participate in the process of a formal charge as by testifying, providing evidence etc. As a general rule, there has always been more protection afforded "participation" than "opposition," in order to encourage employees to feel free from retaliation when they file a charge. In Matson v. Caterpillar (7th Cir. 3/4/04) [pdf] the 7th Circuit ventures further than any other federal appeals court has gone in holding that filing a formal charge of discrimination, if it is "utterly baseless", is not protected activity. Thus Mattson's termination because he filed a charge with the EEOC and the state agency could not be the basis for a successful claim of retaliation.



Before employers go overboard with what really is a rather remarkable ruling, the Court itself cautions:

We emphasize that this decision sets a low bar for receiving Title VII protection. Protection is not lost simply because an employee is mistaken on the merits of his or her charge. Protection also is not lost if an employee drafts a complaint as best he or she can but does not state an effective legal claim. Cf. Sias v. City Demonstration Agency, 588 F.2d 692, 695 (9th Cir. 1978) (expressing concern that if protection turns on the merits of an employee’s claim, participation under Title VII “would be severely chilled”); Pettway v. American Cast Iron Pipe Co., 411 F.2d 998, 1005 (5th Cir. 1969) (explaining that the participation clause must offer broad protection because individuals draft charges as best they can “without expert legal advice” in challenging “huge industrial employer[s] in this modern day David and Goliath confrontation”). However, the unique circumstances of this case present us with a complaint that is not only unreasonable and meritless, but also motivated by bad faith. Against this factual backdrop, we find that Mattson’s claim is not deserving of protection under the participation clause of Title VII. The paucity of case law on point illustrates the rarity of such claims as well as the limited nature of our holding.

The facts of the case back it up. Matson, an electrician, first filed an internal complaint against his female supervisor that on one occasion when she stood close to him (required because of the environment where they worked) her breast brushed against his arm and one time she reached around him to get a clipboard. In the internal investigation he admitted that he did not think that she was attracted to him and that the contact might have been inadvertent. The investigator concluded that there was no merit to the charge and he was warned that filing false charges of harassment could lead to discipline including termination. (The supervisor was also cautioned to be careful in how close she stood to people.)



Notwithstanding the warning, 3 months later Mattson filed a charge with the EEOC and the Illinois agency, based on these same facts. Still he was not terminated until a co-employee provided the following information:

Hollis submitted a signed affidavit in which he stated that Cone’s breast did not touch Mattson. Hollis further stated that Mattson had told him that Mattson’s goal was to get Cone “out of here any way possible.”

Although an important, and certainly intellectually honest, not to mention correct, decision, it is extremely limited.