Tyrikia Porter v. Houma Terrebonne Hsng Auth

Case: 14-31090 Document: 00513275382 Page: 1 Date Filed: 11/17/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-31090 United States Court of Appeals
Fifth Circuit
FILED
TYRIKIA PORTER, November 17, 2015
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. 4 She left
briefly to work in a chemistry lab at Nicholls State University, but Jan
Yakupzack asked Porter to return to HTHA in July 2005 as a Housing
Manager I, a position with greater responsibilities including more client
contact and substantive processing of applications. 5 In 2010, HTHA promoted
Porter to Housing Manager II, a promotion that granted her more supervisory
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).
4 Id.
5 Id.
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authority.
In April 2006, the HTHA hired Wayne Thibodeaux as executive director.
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.”
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In connection with an unrelated matter, Porter’s fiancé and fellow HTHA
employee, Troy Johnson, was scheduled to testify at a grievance hearing
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, 6 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 1st, 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
6 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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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 only time an employee “was separated from” the HTHA against
Yakupzack’s advice. Porter and her supporters reached out 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 de novo the district court’s grant of summary
judgment. 7 A party may obtain summary judgment when “the pleadings,
depositions, answers to interrogatories, and admissions on file, together with
7 Ford Motor Co. v. Tex. Dep’t of Transp., 264 F.3d 493, 498 (5th Cir. 2001).
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the affidavits, if any, show that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment as a matter of law.” 8
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. 9 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.
Appellees point to precedent from this Court and others holding that
failure to accept a rescission of resignation is not an adverse employment
action. 10 These cases, however, predate important Supreme Court precedent
about what constitutes an adverse employment action, Burlington Northern, 11
8 Fed. R. Civ. P. 56(c).
9 Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 657 (5th Cir. 2012).
10 Mowbray v. Am. Gen. Life Co, 162 Fed. 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 Fed. 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); Schofield v. Metro. Life Ins.
Co., No. 03 Civ. 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); Wilkerson v. Springfield Pub. Sch. Dist. No. 186, 40 Fed. App’x.
at 263 (holding that refusal to accept rescission of resignation was not adverse employment
action in a Title VII race discrimination (not retaliation) case).
11 Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006).
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or otherwise do not address the issue of retaliation. Appellees do point to one
retaliation case issued after Burlington Northern, Smith v. DeTar Hosp. LLC, 12
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.” 13 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.” 14 The standard is objective, 15 but “the significance
of any given act of retaliation will often depend upon the particular
circumstances. Context matters.” 16
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.” 17 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. 18 One
district court similarly assumed that failure to accept a resignation might
12 Smith v. DeTar Hosp. LLC, 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).
13 Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006).
14 Id. at 57.
15 Id. at 68-69.
16 Id. at 69.
17 Donaldson v. CDB Inc., 335 Fed. App’x. 494, 506 (5th Cir. 2009).
18 433 Fed. App’x 254, 259-60 (5th Cir. 2011) (finding 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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constitute an “adverse employment action” for retaliation purposes, but
declined to decide the issue. 19
Other courts have found that even under Burlington Northern, the
failure to accept rescission was not an adverse employment action. Each court
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. 20 While the court based this conclusion in part on earlier
cases decided under stricter standards, 21 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. 22
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. 23 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.’” 24 The court cited the absence of “a contractual or
19 Hammonds v. Hyundai Motor Mfg. Ala., LLC, 2:10-CV-103-TFM, 2011 WL 2580168,
at *5 (M.D. Ala. June 28, 2011).
20 Cadet v. Deutsche Bank Secs. Inc., 11 CIV. 7964 CM, 2013 WL 3090690, at *2, 13
(S.D.N.Y. June 18, 2013).
21 Cadet, 2013 WL 3090690, at *13.
22 Id.
23 Jones v. McCormick & Schmick's Seafood Rests., Inc., 1:12-CV-04503 RMB, 2014
WL 1669808, at *2, 4-5 (D.N.J. Apr. 28, 2014).
24 Id. at *5.
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statutory duty to” accept rescission. 25 Finally, yet another district court
concluded that a failure to accept rescission was not an adverse employment
action where “rescission was voluntary” and the facts were not enough to show
constructive discharge. 26
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, 27 and emphasized that there are all manner of ways employers may
retaliate against employees, some even unrelated to the employment. 28 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 their 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. 29 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.
25 Id.
26 Hibbard v. Penn-Trafford Sch. Dist., CIV.A. 13-622, 2014 WL 640253, at *18 (W.D.
Pa. Feb. 19, 2014); see also Santandreu v. Miami Dade County, 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).
27 Burlington N., 548 U.S. at 69.
28 Id. at 63-64, 67.
29 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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B.
It is in light of Burlington Northern that this Court considers whether
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 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
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employee in Porter’s shoes might have expected it. In light of the expectation,
a fact-finder could determine that Porter was “well dissuad[ed] from making…
a charge of” 30 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. 31
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. 32
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.” 33
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 recites HTHA’s argument that “the sole reason [her] request
to rescind her resignation was not granted was . . . her repeated threats to
resign,” but it does 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
30Burlington N., 548 U.S. at 57.
31Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 657 (5th Cir. 2012).
32 Coleman v. Jason Pharmaceuticals, 540 Fed. App’x 302, 304 (5th Cir. 2013) (quoting
LeMaire v. Louisiana, 480 F.3d 383, 388-89 (5th Cir. 2007)).
33 Coleman, 540 Fed. App’x at 304.
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causation, and whether, in light of HTHA’s assertion of a legitimate reason for
denying the rescission, she can demonstrate that this reason is a pretext.
A.
In this Circuit, temporal proximity between protected activity and
alleged retaliation is sometimes enough to establish causation at the prima
facie. 34 “[T]he protected act and the adverse employment action [must be] ‘very
close’ in time” to establish causation by timing alone 35—this court has accepted
a two and a half month gap as sufficiently close in one case, 36 and rejected
nearly the same time frame in another. 37 We have also accepted gaps of less
than two months. 38 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. More importantly, for purposes of this
appeal, HTHA has not challenged Porter’s prima facie causation argument.
B.
HTHA does, however, challenge 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
34 Swanson v. Gen. Servs. Admin., 110 F.3d 1180, 1188, n.3 (5th Cir. 1997).
35 Washburn v. Harvey, 504 F.3d 505, 511 (5th Cir. 2007).
36 Richard v. Cingular Wireless LLC, 233 Fed. Appx. 334, 338 (5th Cir. 2007); Stroud
v. BMC Software, Inc., No. 07-20779, 2008 WL 2325639, at *6 (5th Cir. June 6, 2008) (citing
Richard); see also Evans v. City of Houston, 246 F.3d 344, 354 (5th Cir. 2001) (noting that
gaps of “up to four months has been found sufficient”); Robinson v. Our Lady of the Lake Regl.
Med. Ctr., Inc., 535 Fed. Appx. 348, 353 (5th Cir. 2013) (quoting Evans); cf. Barkley, 433 Fed.
App’x at 260 n.10 (noting the Supreme Court has cited cases finding three and four month
gaps insufficient).
37 Amsel v. Tex. Water Dev. Bd., 464 Fed. Appx. 395, 401-02 (5th Cir. 2012).
38 Richardson v. Prairie Opportunity, Inc., 470 Fed. Appx. 282, 286-87 (5th Cir. 2012)
(seven week gap is acceptable); Tanner v. LSU Fireman Training Program, 254 F.3d 1082
(5th Cir. 2001) (after protected activity, “investigation of her 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) (two month gap acceptable where prior adverse action took place during
lapse); Handzlik v. United States, 93 Fed. Appx. 15, 19 (5th Cir. 2004) (noting gap of “just
over two months” is similar to the timeframe held acceptable in other cases).
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threatened to quit is HTHA’s legitimate non-retaliatory reason for the refusal
to accept 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 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. 39 In Univ. of Texas Sw. Med. Ctr. 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.” 40 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.” 41 The standard for summary judgment
on pretext grounds remains unchanged in this Court after Nassar. 42
39 Coleman, 540 Fed. App’x at 304.
40 Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013).
41 Coleman, 540 Fed. App’x at 304; see also Hernandez v. Yellow Transp., Inc., 670
F.3d 644, 658 (5th Cir. 2012); Long v. Eastfield College, 88 F.3d 300, 308 (5th Cir. 1996).
42 Valderaz v. Lubbock County Hosp. Dist., No. 14-10761, 2015 WL 3877788, at *6 (“To
prove pretext, [plaintiff] must bring forth substantial evidence demonstrating that
[defendant’s] proffered reasons are a pretext for retaliation.” (internal citations omitted));
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” (internal citations omitted)).
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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. 43 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
43 Coleman, 540 Fed. 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. 44 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 suggests pretext. 45
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.” 46
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.
44 Two were maintenance employees; two were Housing Manager-I’s.
45 Strong v. U. Healthcare System, L.L.C., 482 F.3d 802, 808 (5th Cir. 2007).
46 Coleman, 540 Fed. App’x at 304.
15