On January 24, the Supreme Court unanimously reversed two Sixth Circuit decisions.

In Thompson v. North American Stainless, LP, the plaintiff and his fiancee were both employed by the defendant. The plaintiff claimed that the defendant discharged him in retaliation for his fiancee's filing of an EEOC charge of discrimination. The Sixth Circuit, in a divided en banc decision, held that the plaintiff could not sue under Title VII because he had not engaged in any protected activity and thus was not within "the class of persons for whom Congress created a retaliation cause of action." (See our prior reports on this case, here and here.)

The Supreme Court reversed in an 8-0 decision (with Justice Kagan not participating). Adopting a "zone of interests" test developed in administrative law, the Court held that the statutory phrase "person claiming to be aggrieved" is broad enough to include "any plaintiff with an interest 'arguably [sought] to be protected by the statutes,'" not just those persons who engaged in protected activity. As an employee who was intentionally harmed as a means of retaliation against another employee, the plaintiff fell "well within the zone of interests sought to be protected by Title VII."

In Ortiz v. Jordan, the defendants asserted qualified immunity from the plaintiff's Section 1983 lawsuit. The district court denied summary judgment on the qualified immunity defense on the ground that it "turned on material facts genuinely in dispute." After the case proceeded to trial and the jury returned a verdict for the plaintiff, the defendants challenged the denial of summary judgment on appeal. The Sixth Circuit, recognizing denial of qualified immunity denial as an exception to the general rule against review of summary judgment decisions after trial, reversed. (See our guest blog post on this case, here.)

The Supreme Court unanimously reversed the Sixth Circuit. The Court held that an order denying summary judgment may not be reviewed after a trial on the merits. It left open, however, the possibility that a qualified immunity defense raising a purely legal issue--i.e., an issue as to the substance and clarity of existing law, and not as to the facts of what occurred--may be reviewable after trial. The Court did not need to reach that question because the defendants' claim of qualified immunity turned on the facts. That being the case, the defendants were required to preserve their argument by making a Rule 50(b) motion post-verdict, which they did not do.