Tyrikia Porter v. Houma Terrebonne Hsng Auth ( 2015 )

Case: 14-31090 Document: 00513285862 Page: 1 Date Filed: 11/25/2015
REVISED November 25, 2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-31090 United States Court of Appeals
Fifth Circuit
FILED
November 17, 2015
TYRIKIA PORTER,
Lyle W. Cayce
Plaintiff - Appellant Clerk
v.
HOUMA TERREBONNE HOUSING AUTHORITY BOARD OF
COMMISSIONERS, doing business as Houma Terrebonne Housing
Authority,
Defendant - Appellee
Appeal from the United States District Court
for the Eastern District of Louisiana
Before HIGGINBOTHAM, DAVIS, and SOUTHWICK, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
In this case, our court considers a retaliation claim by an employee whose
attempt to rescind her resignation was denied. Tyrikia Porter worked for the
Houma Terrebonne Housing Authority for several years. She offered her
resignation in June of 2012, but before finishing her employment, she testified
against the Executive Director, Wayne Thibodeaux, claiming sexual
harassment. When Porter attempted to rescind her resignation at the urging
of other superiors at work, Thibodeaux rejected her rescission.
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Because we must consider the factual context of a retaliation claim to
determine if the employer has taken an adverse employment action, and
because Porter has demonstrated a substantial conflict of evidence on the
question of whether her employer would have taken the action ‘but for’ her
testimony, we reverse the district court’s grant of summary judgment.
I.
A. Factual History
In considering a motion for summary judgment, courts “must view the
evidence in the light most favorable” to the party opposing summary
judgment. 1 The “evidence of the nonmovant is to be believed, and all justifiable
inferences are to be drawn in [her] favor.” 2 While the court “must disregard
evidence favorable to the moving party that the jury is not required to believe,”
it “gives credence to evidence supporting the moving party that is
uncontradicted and unimpeached if that evidence comes from disinterested
witnesses.” 3
Tyrikia Porter first worked at the Houma Terrebonne Housing Authority
(“HTHA”) from February 2001 to January 2005. During that time, her duties
included answering phones and receiving housing applications. She left briefly
to work in a chemistry lab at Nicholls State University, but Jan Yakupzack
asked Porter to return to the HTHA in July 2005 as a Housing Manager I, a
position with greater responsibilities including more client contact and
substantive processing of applications. In 2010, the HTHA promoted Porter to
Housing Manager II, a promotion that granted her more supervisory authority.
In April 2006, the HTHA hired Wayne Thibodeaux as executive director.
1 Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014) (internal quotation marks omitted).
2 Id. at 1863 (internal quotation marks omitted).
3 Laxton v. Gap Inc., 333 F.3d 572, 577 (5th Cir. 2003).
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Within a year of his arrival, his behavior was making Porter uncomfortable.
He asked her to lunch and if she would attend trainings with him involving
overnight travel. He made comments on Porter’s appearance, clothes, and
weight, making some comment nearly every time he saw her, which was “more
or less on a daily basis.” His comments included statements that she “must
have been thinking about him as [she] got dressed.” He “would single [her] out
in meetings” to make these comments. He would also continually stare at her.
When the entire office exchanged “kiddy” Valentine’s Day cards, he displayed
the one he received from Porter (but not those received from other coworkers)
in his office. When leaving voicemails, he twice commented on her “sexy voice.”
In about 2011, Thibodeaux stated that Porter was fornicating with her fiancé
Troy Johnson and that “fornication” caused her to miscarry in 2009. He then
blocked his office door to prevent her leaving until she asked him to move
several times.
Porter felt the need to avoid Thibodeaux and adjust her behavior to stave
off his comments, which other employees noticed and commented on.
Throughout her time at the HTHA, Jan Yakupzack was her direct supervisor.
Porter reported some of Thibodeaux’s conduct to her, but did not file a formal
grievance.
Porter tendered her resignation on June 6, 2012, to take effect on August
1, 2012. She was aware other employees had been allowed to rescind
resignations, but at the time of her resignation, Porter did intend to actually
leave. On July 25th, she requested that her resignation be put off until
September 1st, so that she could complete projects, train staff, and assist in
inspections. Thibodeaux approved the request the same day, thus “extend[ing]
[her] resignation to September 1, 2012.”
In connection with an unrelated matter, Porter’s fiancé and fellow HTHA
employee, Troy Johnson, was scheduled to testify at a grievance hearing
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initiated on or about July 12th. Porter decided to also testify at the hearing
about Thibodeaux’s behavior towards her. Prior to testifying at the hearing,
Porter was contacted by the Chairman of the HTHA Board of Commissioners,
Allan Luke, who asked her if she planned to pursue any charges, and asked
her to consider rescinding her resignation. Porter said she would consider his
request and would decide what to do about sexual harassment charges after
testifying at the hearing on Johnson’s grievance.
On or about July 25th, 4 Porter testified about Thibodeaux’s
inappropriate conduct at the grievance hearing. As a result of the hearing, the
Housing Authority Board directed that Thibodeaux and his employees undergo
sexual harassment training, and indicated that he should behave more
carefully and appropriately in the future.
In late August, Yakupzack also asked Porter to consider rescinding her
resignation. She also reached out to Porter’s mother and pastor to encourage
her to stay on. September 1, 2012—the effective date of Porter’s resignation—
fell on the Saturday of Labor Day weekend. On the Tuesday after Labor Day,
September 4th, Porter wrote a letter stating that she had “decided to rescind
[her July 25th] resignation notice and remain an employee” of the HTHA. She
also requested—and Yakupzack granted—52 hours of personal leave,
beginning that same afternoon and continuing through the end of the following
Tuesday the 11th. Yakupzack forwarded the rescission letter to Thibodeaux,
stating that she fully supported retaining Porter, and that both she and
Thibodeaux both knew that Porter was an asset to the Agency. Acting in his
sole discretion, Thibodeaux denied the request on September 10th. This is the
4 There is some evidence the hearing may actually have taken place August 2nd. The
district court found that it took place July 26th (not the 25th), but it supports that finding
with a citation to Porter’s deposition transcript, where she says the hearing took place on the
25th, so it appears the district court may be mistaken.
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only time an employee “was separated from” the HTHA against Yakupzack’s
advice. Porter and her supporters appealed to the Board after the decision, but
did not succeed.
As to the reason for the decision not to accept rescission, Thibodeaux
stated that he had “determined that that person was not satisfied or happy
being an employee of the . . . Housing Authority.” Porter states she was in fact
happy with her job, and believes her rescission was not accepted because of her
testimony at the hearing.
B. Procedural History
Porter filed an EEOC Charge of Discrimination on March 27, 2013
alleging that she was sexually harassed until her “discharge” and was
discriminated against in “retaliation for opposing practices made unlawful
under Title VII.” She received a right-to-sue letter. Porter filed suit asserting
Title VII and state law claims for retaliatory discharge and “sexual
harassment/hostile work environment” in the Eastern District of Louisiana.
The parties consented to a magistrate judge handling all proceedings. The
HTHA moved for summary judgment, which the court granted over Porter’s
opposition. Porter timely appealed, challenging the grant of summary
judgment only as to the Title VII retaliation claim.
II.
“This court reviews a district court’s grant of summary judgment de
novo, applying the same standards as the district court.” 5 Summary judgment
is proper when “there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” 6
5 Bluebonnet Hotel Ventures, L.L.C. v. Wells Fargo Bank, N.A., 754 F.3d 272, 275-76
(5th Cir. 2014).
6 Fed. R. Civ. P. 56(a).
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III.
To establish a prima facie retaliation case, Porter 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. 7 There is no dispute about the first
element since it is clear that Porter’s testimony was a protected activity. The
first contested issue before the Court, then, is whether or not the HTHA’s
refusal to accept Porter’s rescission of her resignation constitutes an adverse
employment action.
A.
This Court and others have previously held that the failure to accept a
rescission of resignation is not an adverse employment action. 8 These cases,
however, predate important Supreme Court precedent about what constitutes
an adverse employment action, Burlington Northern, 9 or otherwise do not
address the issue of retaliation. Appellee does point to one retaliation case
7 Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 657 (5th Cir. 2012).
8 Mowbray v. Am. Gen. Life Co, 162 F. App’x 369, 374-76 (5th Cir. 2006) (in pre-
Burlington Northern FMLA retaliation case, holding that resignation in the absence of a
constructive discharge was not an “adverse employment action”); Pownall v. City of
Perrysburg, 63 F. App’x 819, 823 (6th Cir. 2003) (prior to Burlington Northern, holding in
FMLA case (not based on retaliation) that no adverse employment action had occurred under
Ohio law where employee quit, filled out and turned in associated forms, and left before the
end of the workday, then later tried to rescind her resignation); Wilkerson v. Springfield Pub.
Sch. Dist. No. 186, 40 F. App’x. 260, 263 (7th Cir 2002) (holding that refusal to accept
rescission of resignation was not adverse employment action in a Title VII race
discrimination [not retaliation] case); Schofield v. Metro. Life Ins. Co., No. 3:CV-03-0357,
2006 WL 2660704, at *5 n.6, *9 (M.D.Pa. Sept. 15, 2006) (in age and disability discrimination
claims, holding that failure to accept rescission of resignation was not an adverse
employment action, but refusing to so find as to retaliation claim) aff’d, 252 F. App’x 500 (3d
Cir. 2007).
9 Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006).
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issued after Burlington Northern, Smith v. DeTar Hospital LLC, 10 but the case
did not take into account the changed standard.
In Burlington Northern, the Supreme Court clarified that the “adverse
employment action” is in fact not limited to “workplace-related or employment-
related retaliatory acts and harm.” 11 The key question is whether the
challenged action is “materially adverse” in that it is “harmful to the point that
[it] could well dissuade a reasonable worker from making or supporting a
charge of discrimination.” 12 The standard is objective, 13 but “the significance
of any given act of retaliation will often depend upon the particular
circumstances. Context matters.” 14
As this Court previously held in Donaldson v. CDB Inc., Burlington
Northern “abrogated [the Fifth Circuit’s] previous approach, which required
showing an ‘ultimate employment decision’” and “established a less demanding
standard for judging whether conduct is actionable as retaliation.” 15 A few
courts have applied Burlington Northern to rescission of resignation cases.
This Court, for example, appeared to assume without deciding that failure to
accept rescission could constitute an adverse employment action in Barkley v.
Singing River Electric Power Ass’n. 16 One district court similarly assumed that
failure to accept a resignation might constitute an “adverse employment
10 No. CIV.A. V-10-83, 2012 WL 2871673, at *13 (S.D. Tex. July 11, 2012) (in FMLA
retaliation case, finding that refusal to accept rescission of a resignation was not adverse
employment action relying on two pre-Burlington Northern cases and the discrimination (not
retaliation) portion of a post-Burlington Northern case).
11 Burlington, 548 U.S. at 67.
12 Id. at 57.
13 Id. at 68-69.
14 Id. at 69.
15 335 F. App’x. 494, 506 (5th Cir. 2009).
16 433 F. App’x 254, 259-60 (5th Cir. 2011) (concluding that an employee whose
rescission of resignation was denied had not made a prima facie case on the basis that the
employee had not shown a causal link between the protected activity and the adverse
employment action.)
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action” for retaliation purposes, but declined to decide the issue. 17
Other courts have found that even under Burlington Northern, the
failure to accept rescission was not an adverse employment action. These
courts emphasized that there is no inherent right to rescind resignation,
suggesting that employers do not commit an adverse employment action by
denying such rescissions. For instance, one district court concluded that the
failure to accept rescission was not an adverse employment action where the
plaintiff had resigned and completed an exit interview, then quickly tried to
rescind while still an employee. 18 While the court based this conclusion in part
on earlier cases decided under stricter standards, 19 it also reasoned that
because “employers are not usually obligated to allow their employees to
rescind their resignations,” and have no “duty to permit” rescission, the failure
to do so is not an adverse employment action. 20
Another district court similarly concluded that the failure to accept
rescission was not an adverse employment action where the plaintiff rescinded
a week after resigning in a § 1981 retaliation claim. The plaintiff made race
discrimination claims for the first time in the rescission e-mail. 21 The court
reasoned that the employer’s “refusal to permit Plaintiff to rescind his
resignation would [not] have ‘dissuaded a reasonable worker from making . . .
a charge of discrimination.’” 22 The court cited the absence of “a contractual or
statutory duty to” accept rescission. 23 Finally, yet another district court
17 Hammonds v. Hyundai Motor Mfg. Ala., No. 2:10-CV-103-TFM, 2011 WL 2580168,
at *5 (M.D. Ala. June 28, 2011).
18 Cadet v. Deutsche Bank Secs. Inc., No. 11 CIV. 7964 CM, 2013 WL 3090690, at *2,
*13 (S.D.N.Y. June 18, 2013).
19 Cadet, 2013 WL 3090690, at *13.
20 Id.
21 Jones v. McCormick & Schmick's Seafood Rests., Inc., No. 1:12-CV-04503 RMB,
2014 WL 1669808, at *2, *4-5 (D.N.J. Apr. 28, 2014).
22 Id. at *5.
23 Id.
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concluded that a failure to accept rescission was not an adverse employment
action where “resignation was voluntary” and the facts were not enough to
show constructive discharge. 24
These cases suggest that failure to accept rescission has generally not
amounted to an adverse employment action in retaliation cases, but they are
not dispositive in the instant case for two reasons. First, Burlington Northern
requires us to consider the context of the alleged adverse employment
actions, 25 and emphasized that there are all manner of ways employers may
retaliate against employees, some even unrelated to the employment. 26 Second,
and relatedly, the fact that an employee has no statutory or contractual right
to rescind a letter of resignation does not necessarily mean that failing to
accept such a rescission is never an adverse employment action. Most at-will
employees have no right to employment in the first place, but not hiring them
on the basis of their engagement in protected activities is nonetheless the
ultimate adverse employment action, even under the strict, pre-Burlington
Northern standard for what counts. 27 Just as an at-will employer does not have
to hire a given employee, an employer does not have to accept a given
employee’s rescission. Failing to do so in either case because the employee has
engaged in a protected activity is nonetheless an adverse employment action.
B.
It is in light of Burlington Northern that this Court considers whether
24 Hibbard v. Penn-Trafford Sch. Dist., No. CIV.A. 13-622, 2014 WL 640253, at *18
(W.D. Pa. Feb. 19, 2014); see also Santandreu v. Miami Dade Cnty., 513 F. App’x. 902, 904,
906 (11th Cir. 2013) (holding that no adverse employment action occurred due to
resignation—but not explicitly addressing fact that employee had tried to rescind
resignation).
25 Burlington N., 548 U.S. at 69.
26 Id. at 63-64, 67.
27 Dollis v. Rubin, 77 F.3d 777, 782 (5th Cir. 1995) (noting that adverse employment
action cases “have focused upon ultimate employment decisions such as hiring, granting
leave, discharging, promoting, and compensating”).
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Porter experienced an adverse employment action. The district court found
that because Porter had offered her resignation prior to testifying at the
grievance hearing, she suffered no adverse employment action. As a general
matter, it seems unlikely that a reasonable worker would tender her
resignation and plan to leave while nonetheless depending on her employer to
accept rescission of her resignation. The Burlington Northern standard,
however, requires that we consider the context. In this case, circumstances
suggest that a reasonable employee in Porter’s shoes might have legitimately
expected that her rescission of resignation would be accepted.
First, prior to her testimony, she was asked to consider rescinding her
resignation by the Chairman of the Housing Authority Board, Allan Luke. Her
direct supervisor, Jan Yakupzack, also asked her to consider rescission after
her testimony, and spoke with her mother and pastor. While neither of these
individuals had authority to make the decision itself, their requests may have
contributed to a reasonable belief that Porter was at liberty to rescind,
especially considered in the light most favorable to Porter.
Second, her request to stay on a month longer than her initial effective
resignation date was immediately approved, plausibly creating an expectation
that her resignation was still negotiable and not finalized. Porter also had
Yakupzack’s support, which is especially significant in light of the fact that
Thibodeaux’s decision not to accept Porter’s rescission was the only separation
decision he ever made contrary to Yakupzack’s advice. Finally, Porter
identified four individuals who had resigned their positions at the HTHA and
then been allowed to rescind those resignations.
Overall, while a reasonable employee might not normally expect that she
was entitled to rescind her resignation, in this particular context, a reasonable
employee in Porter’s shoes might have expected it. In light of the expectation,
a fact-finder could determine that Porter would have been “well dissuad[ed]
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from making . . . a charge of” 28 sexual harassment if she knew it would destroy
the chance that her rescission would be accepted.
IV.
The second major issue before the Court relates to the third element of
retaliation claims: whether there was a causal connection between the
protected activity and the adverse employment action. 29
Under the McDonnell Douglas framework,
[i]f the employee establishes a prima facie case, the burden shifts to the
employer to state a legitimate, non-retaliatory reason for its
decision. . . . [T]he burden [then] shifts back to the employee to
demonstrate that the employer’s reason is actually a pretext for
retaliation. 30
To demonstrate pretext and avoid summary judgment, Porter must show
“‘a conflict in substantial evidence’ on the question of whether the employer
would not have taken the action ‘but for’ the protected activity.” 31
The District Court did not reach the issue of causation since it
determined that refusing to allow rescission was not an adverse employment
action. The court recited the HTHA’s argument that “the sole reason [her]
request to rescind her resignation was not granted was . . . her repeated threats
to resign,” but it did not rest its decision upon the issue of causation. Having
come out differently on the issue of adverse employment action, this Court
must consider whether Porter has first made a prima facie showing of
causation, and whether, in light of the HTHA’s assertion of a legitimate reason
for denying the rescission, she can demonstrate that this reason is a pretext.
28 Burlington N., 548 U.S. at 57.
29 Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 657 (5th Cir. 2012).
30 Coleman v. Jason Pharm., 540 F. App’x 302, 304 (5th Cir. 2013) (unpublished)
(quoting LeMaire v. Louisiana, 480 F.3d 383, 388-89 (5th Cir. 2007)).
31 Id. (quoting Long v. Eastfield College, 88 F.3d 300, 308 (5th Cir. 1996)).
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A.
In this Circuit, temporal proximity between protected activity and
alleged retaliation is sometimes enough to establish causation at the prima
facie stage. 32 “[T]he protected act and the adverse employment action [must
be] ‘very close’ in time” to establish causation by timing alone 33—this court has
accepted a two-and-a-half-month gap as sufficiently close in one case, 34 and
rejected nearly the same timeframe in another. 35 We have also accepted gaps
of less than two months. 36 Given this precedent, the six-and-a-half-week
timeframe between Porter’s testimony and the denial of her rescission is
sufficient to satisfy the prima facie case of causation.
B.
The HTHA challenges Porter’s argument that its non-retaliatory
justification for denying her rescission is mere pretext. Thibodeaux’s
assessment that Porter was not happy working there and often threatened to
quit is the HTHA’s legitimate non-retaliatory reason for the refusal to accept
32 Swanson v. Gen. Servs. Admin., 110 F.3d 1180, 1188, n.3 (5th Cir. 1997).
33 Washburn v. Harvey, 504 F.3d 505, 511 (5th Cir. 2007) (quoting Clark Cty. Sch. Dist.
v. Breeden, 532 U.S. 268, 273-74 (2001)).
34 Richard v. Cingular Wireless LLC, 233 F. Appx. 334, 338 (5th Cir. 2007)
(unpublished); see Stroud v. BMC Software, Inc., No. 07-20779, 2008 WL 2325639, at *6 (5th
Cir. June 6, 2008) (unpublished) (citing Richard); see also Evans v. City of Houston, 246 F.3d
344, 354 (5th Cir. 2001) (noting that “a time lapse of up to four months has been found
sufficient”); Robinson v. Our Lady of the Lake Reg’l. Med. Ctr., Inc., 535 F. Appx. 348, 353
(5th Cir. 2013) (unpublished) (quoting Evans); cf. Barkley v. Singing River Electric Power
Ass’n 433 F. App’x 254, 260 n.10 (5th Cir. 2011) (unpublished) (noting the Supreme Court
has cited cases finding three and four month gaps insufficient).
35 Amsel v. Tex. Water Dev. Bd., 464 F. Appx. 395, 401-02 (5th Cir. 2012).
36 Richardson v. Prairie Opportunity, Inc., 470 F. Appx. 282, 286-87 (5th Cir. 2012)
(unpublished) (seven week gap is acceptable); Tanner v. LSU Fireman Training Program,
254 F.3d 1082 (5th Cir. 2001) (unpublished) (causal connection demonstrated when after
protected activity, “investigation of [appellant’s] personnel file began within a month, and
she was fired a little over a month later”); see also Cothran v. Potter, 398 F. Appx. 71, 73 (5th
Cir. 2010) (unpublished) (two month gap acceptable where prior adverse action took place
during lapse); Handzlik v. United States, 93 F. Appx. 15, 19 (5th Cir. 2004) (unpublished)
(noting gap of “just over two months” is similar to the timeframe held acceptable in other
cases).
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rescission. Yakupzack testified that Thibodeaux gave a similar explanation to
the one offered in this litigation when she discussed the decision with him soon
after he made it. Both Thibodeaux and Yakupzack stated that Porter
repeatedly threatened to quit, although Porter contends that she was very
happy in the position. Yakupzack and the Human Relations Director testified
that Porter intended to continue to look for a different job, although there is no
evidence Thibodeaux, who had final authority on accepting her rescission,
knew this.
Since the HTHA has produced a legitimate reason for not allowing Porter
to remain on staff, the burden shifts to Porter to show that this reason is mere
pretext. 37 In University of Texas Southwestern Medical Center v. Nassar, the
Supreme Court clarified that “retaliation claims must be proved according to
traditional principles of but-for causation. . . . This requires proof that the
unlawful retaliation would not have occurred in the absence of the alleged
wrongful action or actions of the employer.” 38 This Court has consistently held
that to survive summary judgment, the plaintiff must show “a conflict in
substantial evidence on the question of whether the employer would not have
taken the action ‘but for’ the protected activity.” 39 The standard for summary
judgment on pretext grounds remains unchanged in this Court after Nassar. 40
37 Coleman v. Jason Pharmaceuticals, 540 F. App’x 302, 304 (5th Cir. 2013)
(unpublished).
38 133 S. Ct. 2517, 2533 (2013).
39 Coleman, 540 F. App’x at 304 (quoting Long v. Eastfield College, 88 F.3d 300, 308
(5th Cir. 1996)); see also Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 658 (5th Cir. 2012).
40 Valderaz v. Lubbock Cnty. Hosp. Dist., 611 F. App'x 816, 823 (5th Cir. 2015)
(unpublished) (“To prove pretext, [plaintiff] must bring forth substantial evidence
demonstrating that [defendant’s] proffered reasons are a pretext for retaliation.”); Feist v.
Louisiana, 730 F.3d 450, 454 (5th Cir. 2013) (“[T]he plaintiff must show a conflict in
substantial evidence on the question of whether the employer would not have taken the
action but for the protected activity.”).
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C.
Whether Porter has shown a “conflict in substantial evidence on the
question of whether the employer would not have taken the action ‘but for’ the
protected activity” is a close call. 41 While there is no dispute that Porter’s work
at the HTHA was excellent, as recognized by Yakupzack, Thibodeaux, and
others, there is a conflict in the evidence about whether Porter was happy in
her position. Porter disputes Thibodeaux’s asserted assessment that she was
unhappy with her work, saying instead that she was happy with her job, a
claim that is corroborated by Yakupzack’s testimony that Porter “enjoy[ed]
working with the children.” On the other hand, there is evidence from
Yakupzack that Porter stated “frequently she was leaving, she was quitting,”
and that in deciding to rescind her resignation, she stated that “she would stay,
but that she would continue to look for other employment – I mean, something
to better herself or a better, you know, career.” Naquanda Jefferson, the HTHA
Human Resources Director, also stated that Porter discussed with her whether
she should rescind her resignation “to stay a full-time employee so she would
have benefits and everything until she found another job.” However, it is not
clear that Thibodeaux knew about any of these statements.
The record also contains substantial evidence that might lead a finder of
fact to doubt Thibodeaux’s credibility. Thibodeaux disavowed memory of any
“sexy voice” comments, until confronted with the recording of the voicemail in
which he made them. He denied authorship when confronted with an e-mail
from his account attributing Porter’s behavior to her menstrual cycle,
questioning the email’s authenticity. Finally, Chairman of the Board Allan
Luke recalled that Thibodeaux earlier stated to him that he did remember
making a “sexy voice” comment and blocking Porter from leaving a room, “to
41 Coleman, 540 F. App’x at 304.
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make a point,” even though Thibodeaux later denied both allegations.
Lastly, the circumstances surrounding Thibodeaux’s decision not to
accept Porter’s rescission provide some evidence that the legitimate reason
provided is pretext. Thibodeaux’s action in Porter’s case was the first time he
had overruled a recommendation from Yakupzack about terminating an
employee. In contrast, Porter identified four employees who were allowed to
rescind resignations, though Porter has not demonstrated that those four
employees were similarly situated. 42 Moreover, while “temporal proximity
alone is insufficient to prove but for causation” in arguing pretext, the less than
seven-week space between Porter’s testimony and Thibodeaux’s decision is
evidence suggesting pretext. 43
Thibodeaux, who had been present at the hearing in which Porter
testified against him, acted within his sole discretion to reject Porter’s
rescission. Porter has raised issues about his credibility, and about the truth
of his assertion that she was unhappy in the position. He acted unusually,
based on his prior behavior, in rejecting her letter of rescission. These
circumstances create “‘a conflict in substantial evidence’ on the question of
whether the [HTHA] would not have taken the action ‘but for’ [Porter’s]
protected activity.” 44
V.
Because rejecting an employee’s rescission of resignation can sometimes
constitute an adverse employment action, and Appellant has presented a
substantial conflict of evidence on the question of whether the employer would
have taken the action “but for” the protected activity, we REVERSE the district
court’s grant of summary judgment.
42 Two were maintenance employees; two were Housing Manager-I’s.
43 Strong v. Univ. Healthcare Sys., L.L.C., 482 F.3d 802, 808 (5th Cir. 2007).
44 Coleman, 540 F. App’x at 304.
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