Fifth Circuit Broadens Scope of Unlawful Retaliation

Fifth Circuit Broadens Scope of Unlawful Retaliation

The U.S. Court of Appeals for the Fifth Circuit (which covers Texas, Louisiana and Mississippi) recently held that an employer’s refusal to permit an employee to rescind her letter of resignation can “sometimes constitute an adverse employment action” and may be considered retaliation under Title VII.  In Tyrikia Porter v. Houma Terrebonne Housing Authority Board of Commissioners, dba Houma Terrebonne Housing Authority, No. 14-31090 (5th Cir. Nov. 17, 2015), plaintiff Tyrikia Porter had worked for the Houma Terrebonne Housing Authority (HTHA) from February 2001 for 11 years.  She alleged that during her last 8 years with the HTHA, she was subjected to repeated instances of unwelcome sexual comments and behavior from the executive director of the agency, Wayne Thibodeaux.  Although Porter reported some of Thibodeaux’s conduct to her immediate supervisor, she did not file a formal complaint.

Porter tendered her resignation on June 6, 2012, to take effect on August 1, 2012.  On July 25th, she requested that her resignation be put off until September 1st, so she could complete projects, train staff, and assist in inspections.  Thibodeaux approved her request, thereby extending her resignation to September 1, 2012.  While still employed by HTHA, Porter decided to testify at a fellow employee’s grievance hearing.  Although the grievance hearing was unrelated to Porter, she decided to testify about Thibodeaux’s behavior towards her.  Prior to testifying, Porter was contacted by the Chairman of the HTHA Board of Commissioners, who had learned of Porter’s expected testimony.  The Chairman asked Porter to consider rescinding her resignation.  Porter said she would decide what to do after testifying at the hearing.

Porter testified on or about July 25th.  As a result of the hearing, Thibodeaux was reprimanded by the HTHA Board, and ordered to attend sexual harassment training.  In late August 2012, Porter’s direct supervisor also asked her to reconsider her resignation, and contacted Porter’s mother and pastor, asking them to encourage Porter to stay on.  Because September 1st fell on the Saturday before Labor Day, Porter submitted a letter rescinding her resignation on September 4th, the Tuesday after Labor Day.  Her direct supervisor forwarded the rescission letter to Thibodeaux, with the recommendation that he accept it and retain Porter as an employee.  Acting in his sole discretion, on September 4th, Thibodeaux denied Porter’s request to rescind her resignation.  Other employees had been allowed to rescind their resignations, and this was the first time an employee was let go from the HTHA against the advice of Porter’s direct supervisor.  In explaining his decision, Thibodeaux said he had determined that Porter was not satisfied or happy working for HTHA.  Porter filed suit under Title VII, alleging sexual harassment and “retaliatory discharge.”

The HTHA moved for summary judgment, seeking to dismiss Porter’s retaliation claim.  A plaintiff alleging retaliation under Title VII must show: (1) she was engaged in protected activity; (2) she was subjected to an adverse employment action; and (3) there was a causal connection between the protected activity and the adverse employment action.  The HTHA argued that Thibodeaux’s denial of Porter’s request to rescind her resignation was not an “adverse employment action.”

In analyzing the issue, the Fifth Circuit Court of Appeals noted that it and other courts had held previously that the failure to accept a rescission of resignation was not an adverse employment action.  The Court pointed out, however, that these decisions predated the U.S. Supreme Court’s decision in Burlington Northern v. White, which changed the standard about what constitutes adverse employment action.  In Burlington Northern, the Supreme Court clarified that adverse employment action is not limited to specific workplace-related or employment-related acts such as firing or demoting, but extends to any act that is so harmful that it could dissuade a reasonable worker from making or supporting a charge of discrimination.  The Supreme Court emphasized that whether a particular act is sufficiently adverse to support a claim of retaliation depends on the particular circumstances.

Using the Burlington Northern standard as its guide, the Fifth Circuit Court of Appeals analyzed the circumstances surrounding Thibodeaux’s refusal to accept Porter’s rescission.  It concluded that Porter had a reasonable expectation that she could rescind her resignation because: (1) Porter was asked to rescind her resignation, both prior to her testimony and after testifying; (2) Thibodeaux had agreed to extend Porter’s original resignation date, giving Porter the reasonable expectation that her resignation was still negotiable and not finalized; (3) Porter’s direct supervisor supported acceptance of the rescission, and Thibodeaux had never made a separation decision contrary to the direct supervisor’s advice; and (4) four other HTHA employees had been allowed to rescind their resignations.  The Court reasoned that, under those circumstances, a reasonable employee would have been dissuaded from making a charge of sexual harassment if she knew it would destroy the chance that her rescission would be accepted.  Therefore, Thibodeaux’s refusal to let Porter rescind her resignation was sufficient to constitute an “adverse action” in support her claim of retaliation.

The Court went on to analyze whether Porter had satisfied the third prong of a retaliation claim: a causal connection between Porter’s protected activity and Thibodeaux’s adverse action.   Thibodeaux claimed he refused Porter’s request to rescind because Porter was not happy working there and often threatened to quit.  The Court concluded that there was conflicting evidence on that question, and therefore permitted Porter’s retaliation claim to move forward to trial.

What does this decision mean for employers? Although the Porter case involved retaliation under Title VII, the Court’s reasoning is equally applicable to retaliation claims brought under other statutes.  This case is a reminder that a plaintiff claiming retaliation has a low bar to clear, making employers more vulnerable to these claims.  To protect against retaliation claims, employers should train their managers and supervisors to understand that “every day” supervisory acts, if committed against employees who have engaged in protected activity, can lead to liability.

Contributor:  Vida L. Thomas, Attorney at Law | Weintraub Tobin