Levin H. Campbell

“ The Supreme Court too has made passing reference to the limits of protected conduct under section 704 (a) , stating that an employer may properly deny employment to a former employee who participated in an unlawful "stall-in" to protest the employer's civil rights record. "Nothing in Title VII compels an employer to absolve and rehire one who has engaged in such deliberate, unlawful activity against it." ”

“ In the employment setting at the Foundation, the employer had a particular interest in maintaining a harmonious and congenial working environment conducive to the interchange of ideas and the sharing of research. ”

“ In any event, the competing interests that weigh against granting employees carte blanche protection are the same in the NLRA and Title VII contexts: the employer's right to run his business must be balanced against the rights of the employee to express his grievances and promote his own welfare.
Keeping in mind the legitimate interests both of Dr. Hochstadt and the Foundation, we face the ultimate question, [p234] whether the district court could properly on this record determine that Dr. Hochstadt "went too far" in her activities and deportment. We think it could. ”

“ Hochstadt's hostile conduct, which she justifies as arising from her opposition to the Foundation's allegedly illegal employment practices, afforded an independent, nondiscriminatory basis for her discharge, or whether it was protected "opposition" conduct under section 704 (a) , see footnote 2, supra. It is not claimed that she was fired for scientific incompetence; and where an employee is discharged for aggressive and allegedly disruptive activities associated with her complaints of discrimination, it is plainly a delicate matter to separate out the protected from the nonprotected conduct. ”

“ Observing that the NLRA exists to promote resolution of employment disputes through private negotiation and bargaining, she argues that concerted activity properly covers only conduct aimed at achieving equal bargaining power. On the other hand, section 704 (a) protects opposition to employment discrimination not to encourage private settlement, according to Dr. Hochstadt, but rather to foster the complete eradication of all forms of discrimination. ”

“ The district court was entitled to find that Dr. Hochstadt's constant complaints to colleagues damaged relationships among members of the cell biology group and sometimes even interfered with laboratory research. Even if justified, they occurred upon some occasions when the employer was entitled to expect her full commitment and loyalty. Section 704 (a) does not afford an employee unlimited license to complain at any and all times and places.
Dr. Hochstadt committed, moreover, acts of disloyalty to the Foundation, for which she cannot properly claim immunity. ”

“ This conclusion is reinforced by comparing the Title VII procedures with those under the National Labor Relations Act (NLRA) . The NLRA allows an employee to engage in "concerted activity" to organize his co-workers, 29 U.S.C. § 157, and courts have recognized approvingly that unionization often depends on constant self-help activity since employees have no specific legal remedies to achieve their objective. Despite this broad reading of "concerted activity", however, courts employ a balancing test in the labor cases to determine whether employee organizing activity has gone too far. ”

“ Welsch and her attempt to pit Dr. Welsch against Dr. Hoagland. In its words, these incidents "demonstrated a renewal of plaintiff's disruptive and hostile manner and conduct, inimical to the Foundation, its directors and scientists . . . ."
In reviewing the granting or denial of a preliminary injunction, the standard is whether the district court abused its discretion. An appellate court's role is to decide whether the district court applied proper legal standards and whether there was reasonable support for its evaluation of factual questions. ”

“ Stadtman's laboratory, observed that Dr. Hochstadt "is very disruptive and seems to thrive on setting one individual against another. This particular trait makes it difficult, if not impossible, for her to tolerate a situation which involves more than one person."↑ Plaintiff and the EEOC in its amicus brief seemingly reject a balancing test and argue instead that section 704 (a) immunizes any employee conduct which is arguably relevant to an employee's opposition to employer discrimination. ”

“ Kallir, Philips, Ross, Inc., 401 F. Supp. 66 (S.D.N.Y., 1975) , a case cited by both parties, the plaintiff was discharged for discreetly obtaining from a customer of her employer a written description of her job which had been requested by the New York City Commission on Human Rights during its investigation of the employee's charge of sex discrimination. Stressing the broad language of section 704 (a) protecting an employee for assisting "in any manner" with a proceeding under Title VII, the court held that plaintiff's solicitation of the letter was protected. ”

“ Stressing that the handbills were not tied directly to the on-going labor dispute, but rather were a direct attack on the employer's business, the Court found the discharge justified, observing " [there] is no more elemental cause for discharge of an employee than disloyalty to his employer." Id. at 472. See also McDonnell Douglas Corp. v. Green, supra, 411 U.S. at 803 & n.17 (1973) . Moreover, the Court concluded that even if the subject of the handbills was protected "concerted activity" under section 7, "the means used by the technicians . ”

“ In such instances, we think courts have in each case to balance the purpose of the Act to protect persons engaging reasonably in activities opposing sexual discrimination, against Congress' equally manifest desire not to tie the hands of employers in the objective selection and control of personnel. ”

“ Five scientists from the Foundation, including Dr. Hoagland and Dr. Welsch, offered testimony of their own poor working relations with the plaintiff and related the complaints of other scientists. In addition, in support of its motion to deny preliminary relief, the Foundation introduced affidavits from two former colleagues of Dr. Hochstadt. Dr. Earl Stadtman, Chief of the Laboratory of Biochemistry at the National Heart and Lung Institute of the National Institutes of Health, had supervised Dr. Hochstadt from 1968-1971 and stated that "Dr. ”

“ Hochstadt is a microbiologist, whose research into cell membrane functions, described by one scientist at the hearing as "pioneering", fit into the Foundation's research program. In September, 1971, Dr. Hoagland offered both Dr. Ozer and Dr. Hochstadt positions as senior scientists. Dr. Ozer's salary was set at $24,000, while Dr. Hochstadt's salary was set at $18,000. These salaries reflected the needs of the institution. Dr. Ozer and Dr. Hochstadt accepted the employment offers on October 1, but thereafter Dr. ”

“ However the issue of preliminary injunctive relief is resolved, the EEOC investigation remains a statutory prerequisite to judicial determination of the merits of this case. The statute calls for the Commission to decide if there is reasonable cause to believe that the charge is true, 42 U.S.C. § 2000e-5 (b) , and authorizes it to sue on Dr. ”