Respondent submits this supplemental brief pursuant to Rule 25.5 of this Court.
Under the unique circumstances of this case, the brief for the United States constitutes "intervening matter that was not available in time to be included in a brief." A majority of the government’s argument consists of an attack on the literal reading of section 704(a) advanced respondent. If this Court were to adopt the government’s narrow reading of section 704(a), it is far from certain that respondent would prevail. The original panel of the Sixth Circuit that heard this case applied a version of the "materially adverse" formulation now advanced by the United States and concluded that the retaliation that occurred in this case was lawful under section 704(a). (Pet. App. 93a-103a). The interpretation of section 704(a) proposed by the Solicitor General is different from that of petitioner, and constitutes a candid repudiation of the position heretofore taken by the EEOC. (U.S. Br. 15-16 n.4). The new matters raised by the government’s brief could not have been addressed in the brief for respondent; the two briefs were filed on the same day.
Donald A. Donati, William B. Ryan, and Eric Schnapper, Supplemental Brief for Respondent, Burlington Northern Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) (No. 05-259), 2006 WL 690256 (2006) https://digitalcommons.law.uw.edu/faculty-court-briefs/10