Douglas v. Dyn McDermott Petroleum Operations Co.

REVISED, December 16, 1998
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 96-30883
_____________________
KORDICE M. DOUGLAS,
Plaintiff - Appellee-Cross-Appellant,
versus
DYN McDERMOTT PETROLEUM OPERATIONS
COMPANY; JOHN POINDEXTER,
Defendants - Appellants-Cross-Appellees.
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Appeals from the United States District Court for the
Eastern District of Louisiana
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December 15, 1998
ON PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC
144 F.3d 364 (5th Cir. June 18, 1998)
Before JOLLY, DAVIS, and BARKSDALE, Circuit Judges.
PER CURIAM:
The order of July 23, 1998, denying rehearing and rehearing
en banc is rescinded and this order is substituted in its place.
The petition for rehearing is DENIED and the court having been
polled at the request of one of the members of the court and a
majority of the judges who are in regular active service not having
voted in favor, the suggestion for rehearing en banc is also
DENIED.
BENAVIDES, Circuit Judge, with whom POLITZ, Chief Judge and
STEWART, Circuit Judge, join, dissenting:
I would grant rehearing en banc to allow the en banc court to
address the important and substantive issues identified in the
dissent filed by Judge Dennis.
ENDRECORD
2
DENNIS, Circuit Judge, with whom PARKER, Circuit Judge, joins,
dissenting.
I dissent from the refusal to rehear this case en banc.
The panel opinion clashes with the Supreme Court’s McDonnell
Douglas-Burdine-Hicks1 framework for the trial of Title VII
intentional discrimination cases, as well as our en banc adoption
and explanation of the framework in Rhodes v. Guiberson Oil Tools,
75 F.3d 989 (5th Cir. 1996) (en banc). Instead of following
controlling precedents, the panel opinion uses a free-wheeling,
legislative-like balancing process to fashion a mandatory rule of
law, viz., any employee who is a lawyer loses Title VII protection
when she reveals any employment-related information while opposing
an unlawful employment practice; and proceeds to apply this rule to
facts found by the panel itself directly from the record, in
complete disregard of the panel’s duty to test the jury verdict
under our Boeing v. Shipman2 standard as required by our en banc
decision in Rhodes. The panel opinion also overrules or undermines
prior panel decisions in Doe v. A Corporation3, which held that
ethical rules cannot be asserted to preclude a lawyer’s access to
1
McDonnell Douglas v. Green, 411 U.S. 792 (1973); Texas Dept.
of Community Affairs v. Burdine, 450 U.S. 248 (1981); St. Mary’s
Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
2
Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir. 1969) (en
banc), overruled in part on other grounds, Gautreaux v. Scurlock
Marine, Inc., 107 F.3d 331 (5th Cir. 1997) (en banc).
3
Doe v. A Corp., 709 F.2d 1043 (5th Cir. 1983).
3
courts for the adjudication of his personal rights and tenable
legal claims against his former employer, and Jones v. Flagship4,
which expressly recognized a lawyer’s right to pursue her own
personal Title VII claim against her employer and to have a full
and fair opportunity under the McDonnell Douglas-Burdine framework
to demonstrate that the employer’s proffered reasons for adverse
employment actions were a pretext for unlawful discrimination.5
I will set forth my understanding of the case and the reasons
that I believe a correct application of the statute and the
doctrine of stare decisis should not result in setting aside the
jury’s verdict for the plaintiff or a reversal and remand for entry
of a judgment of dismissal.
I. STATEMENT OF THE CASE
Kordice Douglas, a black woman, was an in-house attorney-
employee of DynMcDermott Petroleum Operations Company (DPO). DPO
was a government contractor performing services for the Department
of Energy (DOE).
4
Jones v. Flagship Int’l, 793 F.2d 714 (5th Cir. 1986), cert.
denied, 479 U.S. 1065 (1987).
5
The panel opinion also incorrectly interprets Louisiana
State Bar Association Rule of Professional Conduct 1.6 to require
the filing of a formal complaint by a lawyer in an administrative
or judicial tribunal against her client in order for there to be a
recognizable controversy with the client that would allow the
lawyer to reveal confidential information when it is necessary to
do so to enforce or defend her own personal rights or to defend
herself against an accusation of wrongful conduct.
4
Between April 13 and July 18, 1994, the DOE conducted an
appraisal of DPO’s Equal Employment Opportunity /Affirmative Action
program to assure that DPO was complying with Federal EEO laws.
The DOE appraisal was authorized by the DOE-DPO government
contract; Executive Order No. 11246, as amended, reprinted as
amended in 42 U.S.C. § 2000(e) note; 41 C.F.R. § 60-1 et seq.; FAR
52.222-26; DOE Order No. 3220.2A. The appraisal consisted of a
review of DPO documents and interviews with a randomly selected
group of DPO employees.6
The government’s contract between the DOE and DPO provided
that “[a]ll records acquired or generated by the contractor [DPO]
under this contract in the possession of the contractor, including
[performance appraisals, reviews, and associated documents, equal
employment opportunity and affirmative action claims and records,
files and records concerning ethics and security investigations,
and attorney-client privilege or attorney work product] shall be
subject to inspection, copying and audit by the government at all
6
In preparation for the appraisal, DOE requested DPO to
complete a questionnaire and turn over certain of its documents.
Among the documents requested were: “List of EEO-related
complaints and disposition actions(s) taken since contract
inception (including those actions pending after taking over from
Boeing Petroleum Services, Inc.)”; “Job group summary by race and
sex as of October, 1993 and March, 1994”; and “Organizational
charts by pay code, race, sex[.]”
5
reasonable times[.]” Therefore, DPO expressly waived its rights of
confidentiality and privilege with respect to these documents.7
On June 8, 1994, during the appraisal, the DOE appraisal team
met with John Poindexter, who was DPO’s general counsel and
Douglas’s supervisor. Douglas was not scheduled or prepared to
attend the meeting. After the meeting was underway, however,
Poindexter sent for Douglas and instructed her to answer some
questions for the DOE team. Poindexter did not apprise Douglas of
the questions she would be asked or how she should answer them.
According to Douglas, she responded to all of the questions by the
DOE team honestly and correctly to the best of her knowledge and
understanding. DOE auditors O’Neill, Barrow and Rochon also
testified at trial that Douglas’s answers were responsive to their
questions. Unbeknownst to Douglas, Poindexter had called her into
the meeting because he could not answer some of the DOE team’s
questions about his own office’s procedures. When team member Dick
O’Neill asked her several questions touching on more substantive
EEO matters, however, she also answered them truthfully and
7
The statement to the contrary in DPO’s brief is incorrect:
“The controlling contract neither required DynMcDermott to waive
any rights of confidentiality or privilege, nor did it give DOE an
unlimited right to seek or obtain confidential or privileged
information from DynMcDermott.” The related statement in the panel
opinion is misleading: “DynMcDermott neither implicitly nor
explicitly waived any of its rights of confidentiality or privilege
with respect to its in-house counsel.” Douglas v. DynMcDermott
Petroleum Operations Co., 144 F.3d 364, 366 (5th Cir. 1998),
petition for cert. filed, 67 U.S.L.W. 3302 (Oct. 20, 1998) (No. 98-
673).
6
accurately within her understanding. Douglas testified that she
later learned that Poindexter, who sat by silently and impassively
during her interrogation, was disappointed and embarrassed by
several of her responses. It may be fairly inferred that
Poindexter, who was already embarrassed by his inability to answer
procedural questions, was further upset because Douglas’s
unrehearsed answers were in some respects inconsistent with his
understanding of circumstances involving DPO’s EEO program that he
wished to present to the DOE team.8
8
These questions and answers, Douglas testified, were as
follows:
[O’Neill] said, “Kordice, we’re conducting the
audit. We’ve received a lot of complaints at
DOE and that’s why we’re conducting the
audit.” He said, “Were you aware of all these
complaints?” So I said, “No, I’m not aware of
all the complaints. What complaints are you
talking about?” So he said, “We’ve had a
number of people to complain.” I said,
“Well,” I said, “If you have all those people
complaining, it’s just a class action
wait[sic] to happen.” And I said, “No,
I’m[sic] wasn’t aware that you had that many
employees complaining.”
These statements were repeated without change in substance during
her testimony.
[O’Neill] said, “Were you aware of the women
at the sites with the equal pay claim?” So I
said, “No, I’m not aware of any equal pay
claim with the women at the sites,” but, I
said, “I’m well aware of the equal pay
situation.” And I said, “Maybe I’ll get my
money now,” something jokingly, and they just
smiled and went on to the next question.
* * *
They also asked me was I aware of the leaks in
7
the human resources department. They had many
complaints from employees about leaks in the
human resources department, and I took up for
the human resources department. I told them
that it was unfair to criticize the human
resources department, when employees were
going back to their desks discussing the
problem. And I specifically mentioned an
employee, Becky S., even though I didn’t call
her name in the interview, and that she was
standing out in the hall, telling people about
their problems.
Poindexter recalled Douglas’s responses to the questions of
the DOE appraisal team somewhat differently. According to
Poindexter:
Well, they started asking her specific details
about certain situations. . . . We had a
situation where some women employees at one of
the sites, who were performing exactly the
same task as the men, were being paid less,
and that was brought to our attention. . . .
DynMcDermott had resolved it. We, in fact,
increased the salary of the women because it
was a legitimate complaint. So she started
explaining that issue -- I mean, they were
asking her what she knew about an equal pay
situation at the sites, and she said, well,
she really didn’t know. And they looked at me
and they said, “Do you know about that?” And
I said, “Yes.” Mr. Turner had talked to me
about the situation and I was aware of it.
But when they asked her is when she gave the
statement, “No, I don’t know about it, but
maybe I’ll get my money now.”
***
There was a another problem with regard
to leaks in the HR department, and she
responded to the leaks in the HR
department. Then the issue that came up
was --- I don’t really remember how it
came up, but the subject was does she
think the employees were satisfied with
resolution of EEOC complaints. At that
point in time is when she went into her
explanation of, “No, but I’ll tell you
8
Significantly, no harm whatsoever to DPO resulted from
Douglas’s statements. O’Neill and JoAnn Rochon, two DOE team
members who testified at the trial, could not even recall that
Douglas had said anything about a class action, human resources
leaks, specific employees or specific employee complaints or cases.
Lansen Barrow, another DOE attorney on the audit team, testified
that he could not recall Douglas commenting on specific employees
or cases. According to O’Neill, the DOE team told Douglas that
some of the female employees they had interviewed believed that
they were not paid on an equal basis with men, although they had
not filed any claims, and asked if she had any knowledge of that.
Although he could not recall exactly what she said, he stated that
Douglas’s “response indicated to me that it either was a personal
issue or a real -- something she was quite interested in.”
On June 22, 1994, after two weeks’ silence and without
previous notice, Poindexter called Douglas into his office and
handed her her first written performance evaluation as a DPO
employee. According to Douglas, Poindexter said, “Kordice, I know
you’re going to think I’m being hard on you and I probably was, but
during the audit you made me look stupid and got the company in
what. We have these plaintiffs’
attorneys coming into contact with our
employees, who are getting information
from our employees, and they’re just a
class-action lawsuit waiting to happen.”
9
trouble.” The evaluation was critical of Douglas’s judgment during
the DOE’s EEO appraisal. Poindexter gave Douglas a rating of
“Improvement Needed” under the “Judgment” category of the
performance evaluation, and at Douglas’s request, Poindexter agreed
to add the handwritten notation “EEO Audit” next to the poor
rating. Poindexter also commented in the written evaluation that
Douglas needed to “focus on issues when dealing in audits and
interviews.” Poindexter also gave Douglas an “Improvement Needed”
rating under the category “Perceptual and Analytical,” and at
Douglas’s request, added the handwritten notation “Bell South” next
to the poor rating. Douglas testified that during her evaluation
Poindexter told her that he and Jocelyn Guarisco, DOE chief
counsel, had discussed Douglas’s statements during the meeting with
the DOE team. According to Douglas, Poindexter also said that he
and Guarisco had decided that she had committed a breach of
professional ethics but would not explain the exact nature of the
violation. The evaluation resulted in an overall rating of “Fully
Satisfactory,” which Douglas perceived to be a severely harmful
downgrading because it was only one grade above the lowest rating
and two grades below the top grade of “Excellent,” which she
thought she deserved and needed to maintain as a professional
employee.
Because Douglas perceived the performance evaluation rating to
be the result of sexual, racial and retaliatory discrimination, she
filed a written “Response To Retaliatory Performance Evaluation” on
10
June 24, 1994, complaining of alleged unlawful employment
practices. She sent the written response to Poindexter, other DPO
executives, and O’Neill who was DOE’s EEO whistle-blower officer
designated to receive EEO complaints from DPO employees and forward
those complaints to the EEOC. In the response she made two
statements that DPO contends were disclosures of the confidences of
her employer-client, DPO, to a third person, viz., Dick O’Neill, as
follows:
I was given a negative rating on Perceptual
and Analytical. The only instance that was
pointed out to me was the Bell South Mobility
issue [-- concerning the problem of the
personal use of DPO cellular phones by DPO and
DOE employees]. Randy [another DPO in-house
attorney] and John worked this project. After
it became a problem the file was turned over
to me. I contacted Bell South Mobility and
all of the employees involved. I drafted a
payment agreement and showed it to John
Poindexter. He told me that Carol Parrella
did not want the DM [DPO] employees to sign
this agreement because the DOE employees could
not be forced to sign the agreement. . . .
Finally, he called Chuck Herring [DPO vice-
president and deputy project manager] and they
discussed the matter. No follow up was given
to me. . . . I drafted a new agreement,
followed up with Bell South Mobility. I have
records of the phone calls. I even noticed a
mathematical error on the bill and pointed it
out to John Poindexter and Bell South
Mobility. The employees I spoke to and Bell
South Mobility can verify that I spoke to
them. Therefore, I cannot understand this low
score. . . .
* * *
I wish to deal with one instance specifically.
The complaint of Becky R. regarding Brian S.
I interviewed Becky and looked at the
documentation and wrote a response. I
11
11
specifically asked John Poindexter if I could
speak to Eugene T. and Brian S. I was told No.
I turned the letter over to him. I never heard
a response. In the performance evaluation
meeting, he told me he spoke to Brian S.
privately. This is an example of di[s]parate
treatment. Brian S. can get a private
consultation about something that was
documented, but, yet, I am asked to listen more
and improve my interpersonal relationships with
other employees in writing in a performance
evaluation. . . .
Douglas testified that, after O’Neill received his copy of her
response, he told her on June 24, 1994 that she had a whistle-
blower complaint and asked whether she was making such a complaint.
She testified that she said, “I have to talk to my attorney first
and I will get back to you. I don’t know what I want to do at this
point. I have to talk to my attorney first, but I want you to have
a copy because you were one of the auditors and I will get back
with you later after I talk to my attorney.”9
9
The panel opinion incorrectly and improperly finds de novo
that “Douglas . . . specifically instructed O’Neill not to treat
the Letter as a whistle-blower complaint.” Douglas, 144 F.3d at
373. The panel’s conclusion that Douglas’s response letter did not
constitute protected participation is thus based on a faulty
factual premise. More important, the panel overlooks that “the
focus is not on whether the employee intends to follow through with
filing the charge, but rather on whether the employer’s decision to
discharge was motivated by an improper desire to retaliate against
an employee for pursuing rights granted by the Act.” Polk v.
Yellow Freight Syst., Inc., 801 F.2d 190, 200 (6th Cir. 1981) (an
employee’s visit to a Civil Rights Commission to inquire about
rights under the Act is a protected activity); see also Gifford v.
Atchison, Topeka & Santa Fe Ry., 685 F.2d 1149, 1156 n.3 (9th Cir.
1982) (“no legal distinction . . . between . . . filing of a charge
. . . and threatening to file a charge.”).
12
DPO terminated Douglas’s employment on July 7, 1994, before
Douglas could confer with her attorney, who was on vacation. DPO
gave Douglas no explanation for her termination, but offered her
“transition funds” if she would sign a release waiving her right to
sue DPO. On or about July 11, 1994 Douglas filed a claim with the
EEOC alleging that DPO had retaliated against her for her
opposition to practices made unlawful under Title VII. The EEOC
issued a right-to-sue letter and she timely filed an action against
DPO in the federal district court. After a jury trial, the
district court correctly instructed the jury on the law, including
the elements that a plaintiff must prove to establish a prima facie
case of retaliation, the defendant’s burden of rebutting the
plaintiff’s prima facie case by offering a legitimate non-
discriminatory reason for termination, and the plaintiff’s burden
to prove that any non-discriminatory reason for termination offered
by the defendant was a pretext, cloak or cover for retaliation.
The court also instructed the jury on the Louisiana Rules of
Professional Conduct, one of which prohibits a lawyer from
revealing information relating to representation of a client except
to the extent the lawyer reasonably believes it necessary to
establish a claim or defense in behalf of the lawyer in a
controversy between the lawyer and the client or to respond to
allegations in any proceeding concerning the lawyer’s
representation of the client.
13
The jury rendered a verdict in favor of Douglas, finding that
a determinative factor in her discharge was that she engaged in an
activity protected by Title VII, and awarding her compensatory and
punitive damages and back pay. The district court reduced
Douglas’s award to $307,830 in accordance with the statutory cap
and denied DPO’s motion for a judgment as a matter of law or
remittitur and denial of punitive damages with written reasons.
II. DISCUSSION
A. Departure From McDonnell Douglas Framework
The panel opinion overrules, in part, the Supreme Court’s
McDonnell Douglas-Burdine-Hicks framework for production and proof
in Title VII cases (and our en banc decision in Rhodes v. Guiberson
adopting and explaining the framework) by creating an anomalous new
mandatory rule of law, viz., that the employer’s production of
evidence that an attorney-employee, in her opposition activity,
revealed any confidential employment-related information, does not
merely dispel the presumption created by the employee’s prima facie
case that the employer discriminated against the attorney-employee
because of her opposition; instead it automatically and
conclusively destroys Title VII’s protection against employer
retaliation for the employee’s opposition activity; unlike all
other employees, an attorney is deprived of the opportunity
guaranteed by the McDonnell Douglas framework to demonstrate that
14
the employer’s proffered reason for adverse employment action was
a pretext or coverup for retaliation.
1. The McDonnell Douglas-Burdine-Hicks-Rhodes Framework
With the goal of “progressively sharpen[ing] the inquiry into
the elusive factual question of intentional discrimination,” St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993) (quoting Texas
Dept. of Community Affairs v. Burdine, 450 U.S. 248, 255 (1981)),
the Supreme Court in McDonnell Douglas “established an allocation
of the burden of production and an order for the presentation of
proof in Title VII discriminatory-treatment cases.” Id.; Rhodes v.
Guiberson Oil Tools, 75 F.3d 989, 992 (5th Cir. 1996) (en banc).
The plaintiff first must establish, by a preponderance of the
evidence, a “prima facie” case of discrimination. See Hicks, 509
U.S. at 255 (citing Burdine, 450 U.S. at 252-53); Rhodes, 75 F.3d
at 992. Establishment of such a prima facie case creates a
presumption that the employer unlawfully discriminated against the
employee. Hicks, 509 U.S. at 255; Burdine, 450 U.S. at 254;
Rhodes, 75 F.3d at 992. This presumption places on the defendant
the burden of producing evidence that the challenged employment
action was taken for a legitimate, nondiscriminatory reason.
Hicks, 509 U.S. at 507; Burdine, 450 U.S. at 254; Rhodes, 75 F.3d
at 992-93. The defendant must clearly set forth, through the
introduction of admissible evidence, reasons for its actions which,
”if believed by the trier of fact,” would support a finding that
unlawful discrimination was not the cause of the employment action.
15
Hicks, 509 U.S. at 507; Burdine, 450 U.S. at 254-55; Rhodes, 75
F.3d at 993.
“[T]he determination that a defendant has met its burden of
production (and has thus rebutted any legal presumption of
intentional discrimination) can involve no credibility assessment.”
Hicks, 509 U.S. at 509. “For the burden-of-production
determination necessarily precedes the credibility-assessment
stage. At the close of the defendant’s case, the court is asked to
decide whether an issue of fact remains for the trier of fact to
determine.” Id. (italics in original).
If the defendant succeeds in carrying its burden of
production, the presumption, having fulfilled its role of forcing
the defendant to come forward with some response, simply drops out
of the picture, and the trier of fact proceeds to decide the
ultimate question of whether the plaintiff has proved that the
defendant intentionally discriminated against her. Id. at 511;
Burdine, 450 U.S. at 253; Rhodes, 75 F.3d at 993. The plaintiff
now must have “‘the full and fair opportunity to demonstrate,’
through presentation of his own case and through cross-examination
of the defendant’s witnesses, ‘that the proffered reason was not
the true reason for the employment decision,” and that unlawful
discrimination was. Hicks, 509 U.S. at 507-08 (quoting Burdine,
450 U.S. at 256); see Rhodes, 75 F.3d at 993. Thus, the
requirement that the employer produce evidence clearly setting
forth its reasons for the challenged employment action gives the
16
plaintiff a “full and fair” rebuttal opportunity. Hicks, 509 U.S.
at 516 (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 805
(1973) (“[O]n the retrial respondent must be given a full and fair
opportunity to demonstrate by competent evidence that the
presumptively valid reasons for his rejection were in fact a
coverup for a racially discriminatory decision. We . . . insist
that respondent . . . must be given a full and fair opportunity to
demonstrate by competent evidence that whatever the stated reasons
for his rejection, the decision was in reality racially
premised.”)); Burdine, 450 U.S. at 255; see Rhodes, 75 F.3d at 993.
In summary, (1) the plaintiff has the burden of proving by the
preponderance of the evidence a prima facie case that the
employer’s employment action constituted unlawful discrimination;
(2) the prima facie case creates a presumption of discrimination in
favor of the plaintiff; (3) if the plaintiff succeeds in proving
the prima facie case, the burden shifts to the defendant to produce
evidence which, if believed by the trier of fact, would support a
finding that the employer had a legitimate, nondiscriminatory
reason for the employment action; (4) if the defendant succeeds in
producing such evidence, the presumption of discrimination
disappears; (5) the plaintiff now must be afforded the opportunity
to prevail without the benefit of the presumption, however, by
proving by a preponderance of the evidence that the employer’s
proffered reason for the employment action was not its real reason,
but a pretext or coverup, and that in reality the employer’s
17
challenged employment action was intentional unlawful
discrimination against the plaintiff.
2. The Panel Opinion’s New Rules of Law Override and
Attempt to Amend, in Legislative Fashion, the McDonnell
Douglas-Burdine-Hicks-Rhodes Line of Decisions
The panel opinion announces several broad mandatory rules of
law. First, it “hold[s] as a matter of law that conduct that
breaches the ethical duties of [her state’s] legal profession is
unprotected under Title VII.” Douglas, 144 F.3d at 376. Second,
“[A]ny betrayal of a client’s confidences that breaches the [state]
ethical duties of the attorney[, including a “minimal disclosure of
any substantive information,”] places that conduct outside Title
VII’s protection.” Id. Third, “So long as the [attorney-
employee’s] conduct actually constituted a violation of the
profession’s ethically imposed duties, the employer is insulated
from liability irrespective of whether it took adverse employment
action because the conduct constituted a breach or because the
conduct was in opposition to discriminatory employment practices.”
Id. at 377 n.16. (underscoring added). Fourth, the defendant is
entitled to the entry of a judgment as a matter of law dismissing
the plaintiff’s case, if the plaintiff’s opposition conduct
involved a breach of her state’s ethical rule. Id. at 376. It is
self-evident, however, that none of the panel’s new rules of law
18
can be reconciled with the Supreme Court’s McDonnell Douglas line
of cases or our en banc decision in Rhodes.
The holdings and underlying rationale of the panel opinion are
at odds with the McDonnell Douglas “basic allocation of burdens and
order of presentation of proof in a Title VII case. . . [,]”
Burdine, 450 U.S. at 252, “[that] serves to bring the litigants and
the court expeditiously and fairly to th[e] ultimate question [of
whether the defendant intentionally discriminated against the
plaintiff].” Id. at 253. The panel opinion erects a barrier
across the McDonnell Douglas framework for employees who are
attorneys, which unfairly truncates the order of proof and
presentation and permits their cases to be disposed of on issues of
legal ethics rather than on the ultimate Title VII question of
whether the employer’s action was a product of unlawful
discrimination. Nothing in law permits a court to create such a
legal barrier or to make such a substitution of the ultimate issue
under the statute. Just as “Title VII is not a cause of action for
perjury,” Hicks, 509 U.S. at 514-15, 521, it is not a lawyer
disciplinary proceeding either; “we have other civil and criminal
remedies for that.” Id. at 521; see also Doe v. A Corp., 709 F.2d
1043, 1050 (5th Cir. 1983).
The panel opinion seems to assume that its judicial
inventiveness is justified because particular kinds of employee
conduct are so reprehensible that Courts of Appeals may simply
abandon the McDonnell Douglas framework and declare that as a
19
matter of law Title VII protection is unavailable to those who
engage in such conduct while opposing unlawful employment
practices. From the beginning, however, the Supreme Court in
McDonnell Douglas made it clear that employee conduct during a
protest of unlawful employment practices, even unlawful and
potentially harmful conduct, cannot be used by the employer as a
pretext or coverup for discriminatory adverse employment action
against the employee. In McDonnell Douglas, the plaintiff had
pleaded guilty to the deliberately unlawful and potentially very
harmful activity of taking part in a carefully planned “stall-in”
designed to block access and egress at the defendant’s plant during
a peak traffic hour to protest allegedly discriminatory employment
conditions. The Supreme Court held that while “[n]othing in Title
VII compels an employer to absolve and rehire one who has engaged
in such deliberate, unlawful activity against it[,]. . . neither
does it permit [the employer] to use [the employee or applicant’s]
conduct as a pretext” for unlawful discrimination prohibited by
Title VII. McDonnell Douglas, 411 U.S. at 803-04. Moreover, the
Court insisted, “[the employee or applicant] must be given a full
and fair opportunity to demonstrate by competent evidence that
whatever the stated reasons for his rejection, the decision was in
reality [based on unlawful discrimination.]” Id. at 804, 807(“[R]espondent must be afforded a fair opportunity to demonstrate
that petitioner’s assigned reason for refusing to re-employ was a
pretext or discriminatory in its application.”). These principles
20
have been reiterated fully and firmly by the Supreme Court and this
court en banc as essential parts of the McDonnell Douglas-Burdine-
Hicks-Rhodes framework.
Consequently, the rules of law announced by the panel opinion
to the effect that an attorney-employee’s unethical conduct, per se
and as a matter of law, places the employee’s opposition to
unlawful employment practices outside the protection of Title VII
are manifestly contrary to the Supreme Court decisions and our own
en banc decision. The third and fourth rules of the panel opinion,
in particular, are diametrically opposed to the plain statements
and holdings of the Supreme Court and this court en banc. Instead
of heeding the Supreme Court’s insistence that the plaintiff be
accorded a full and fair opportunity to demonstrate that the
defendant’s proffered reason for the challenged employment action
was not its real reason, but that the defendant’s discriminatory
retaliation for opposition to unlawful employment practices was,
the panel opinion flatly deprives the plaintiff of such an
opportunity by holding that the employer’s true reason, even if it
was unlawful discrimination, is irrelevant so long as the
employee’s conduct actually violated a rule of professional ethics.
Compare Douglas, 144 F.3d at 377 n.16 (“So long as the [employee’s]
conduct actually constituted a violation of the profession’s
ethically imposed duties, the employer is insulated from liability
irrespective of whether it took adverse employment action because
the conduct constituted a breach or because the conduct was in
21
opposition to discriminatory practices.”)(emphasis added) with
McDonnell Douglas, 411 U.S. at 805 n.18 (“We do. . . insist that
[the plaintiff]. . . must be given a full and fair opportunity to
demonstrate by competent evidence that whatever the stated reasons
for his rejection, the [employer’s] decision was in reality
[discrimination].”). See also id. at 807 (“[The plaintiff] must be
afforded a fair opportunity to demonstrate that petitioner’s
assigned reasons for refusing to re-employ was a pretext or
discriminatory in its application. If the District Judge so finds,
he must order a prompt and appropriate remedy.”); Burdine, 450 U.S.
at 253 (“[S]hould the defendant carry this burden, the plaintiff
must then have an opportunity to prove by a preponderance of the
evidence that the legitimate reasons offered by the defendant were
not its true reasons, but were a pretext for discrimination.”);
Hicks, 509 U.S. at 507-08 (“The plaintiff then has ‘the full and
fair opportunity to demonstrate,’ through presentation of his own
case and through cross-examination of the defendant’s witnesses,
‘that the proffered reason was not the true reason for the
employment decision,’ and that [discrimination] was. He retains
that ‘ultimate burden of persuading the [trier of fact] that [he]
has been the victim of intentional discrimination.’”) (citations
omitted); Rhodes, 75 F.3d at 993 (“[T]he plaintiff is accorded the
opportunity to demonstrate that the defendant’s articulated
rationale was merely a pretext for discrimination.”).
22
When an appropriate factfinder determines, according to proper
procedures, that the employer has unlawfully discriminated, this
court has no authority to declare that employer immune from
liability as a matter of law for the sole reason that the employee
committed a breach of ethics in opposing unlawful employment
practices. The Supreme Court has recognized that even it cannot
engraft such substantive rules upon the statute:
We may, according to traditional practice,
establish certain modes and orders of proof,
including an initial rebuttable presumption of
the sort we described earlier in this opinion,
which we believe McDonnell Douglas represents.
But nothing in law would permit us to
substitute for the required finding that the
employer’s action was the product of unlawful
discrimination, the much different (and much
lesser) finding that the employer’s
explanation of its action was not believable.
Hicks, 509 U.S. at 514. By the same token, nothing in the law
permits this court to substitute, for the Congressional requirement
of a prompt and appropriate remedy for a proven victim of an
employer’s unlawful discrimination under Title VII, this court’s
own rule of absolute immunity for employers in every case in which
an attorney-employee violates an ethical rule while opposing
unlawful employment practices.
In Title VII intentional discrimination cases brought by
employees who happen also to be attorneys, the panel opinion
threatens the destruction of the McDonnell Douglas framework, which
23
has been carefully crafted in precedents as old as 25 years.10 The
handling of litigation based on federal statutes in an orderly and
sensible manner heavily depends upon the structures, modes of proof
and orders of presentation established by the Supreme Court in such
cases as McDonnell Douglas. We ought not casually abandon these
structures and precedents, even in special classes of cases, for
10
The panel opinion is directly contrary to this court’s
proper application of the McDonnell Douglas framework in Payne v.
McLemore’s Wholesale & Retail Stores, 654 F.2d 1130 (5th Cir. Unit
A Sept. 1981), cert. denied, 455 U.S. 1000 (1982). The Payne court
stated “[i]f the defendant took adverse employment action against
the plaintiff because of opposition conduct by the plaintiff that
was outside the protection of the statute, then the defendant may
have had a legitimate, nondiscriminatory reason to justify its
actions.” Id. at 1142 (emphasis added). The emphasized language
is important; it clearly indicates that the analysis does not end
when the employer produces evidence of a legitimate
nondiscriminatory reason for its employment action. The Payne
court continued and acknowledged the necessary final step of the
McDonnell Douglas framework that the panel in Douglas disregarded:
Since the court further found that plaintiff
failed to establish that defendant’s proffered
justification was in fact pretextual, the
court concluded that ‘(b)ecause plaintiff
exceeded the limits of reasonable opposition
activity on a continuing basis and his
dismissal is attributable to these
transgressions, the Court is forced to
conclude that his termination was not
pretextual, but rather was for valid non-
discriminatory reasons.’
Id. at 1143 (quoting Gonzalez v. Bolger, 486 F. Supp. 595, 601-02
(D.D.C. 1980), aff’d, 656 F.2d 899 (D.C. Cir. 1981) (table case)).
Under this proper analysis, if the employer produces evidence that
its adverse employment action was because of the employee’s
unreasonable conduct, and if the employee fails to establish that
the employer’s proffered reason for its adverse employment action
was a pretext for unlawful discrimination, then and only then is
the employer entitled to judgment that the employee has failed to
prove an unlawful employment practice under § 704(a).
24
worthy but adjunctive purposes. “Considerations of stare decisis
have special force in the area of statutory interpretation, for
here, unlike in the context of constitutional interpretation, the
legislative power is implicated, and Congress remains free to alter
what we have done.” Patterson v. McLean Credit Union, 491 U.S.
164, 172-73 (1989). Congress has taken no action to indicate that
amendments creating exceptions to the McDonnell Douglas-Burdine-
Hicks-Rhodes framework, of the kind that will be effected by the
panel opinion’s rules of law, are necessary or desirable.
B. Departure From The Boeing Jury Verdict Review Standard
1. Rhodes v. Guiberson Oil Tools Requires That
Title VII Jury Verdicts Be Tested Under
the Boeing Co. v. Shipman Standard
In Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 993 (5th Cir.
1996)(en banc), this court held that a jury verdict in a McDonnell
Douglas-Burdine case must be tested for sufficiency of the evidence
under the standard of Boeing Company v. Shipman, 411 F.2d 365 (5th
Cir. 1969)(en banc), overruled in part on other grounds, Gautreaux
v. Scurlock Marine, Incorporated, 107 F.3d 331 (5th Cir. 1997) (en
banc). In Boeing, the court adopted, as “a proper standard in
federal court to test the sufficiency of the evidence for
submission of a case to the jury, in connection with motions for a
directed verdict and for judgment notwithstanding the verdict,” id.
at 367, the following standard:
25
On motions for directed verdict and for
judgment notwithstanding the verdict the Court
should consider all of the evidence -- not
just that evidence which supports the non-
mover’s case -- but in the light and with all
reasonable inferences most favorable to the
party opposed to the motion. If the facts and
inferences point so strongly and
overwhelmingly in favor of one party that the
Court believes that reasonable men could not
arrive at a contrary verdict, granting of the
motions is proper. On the other hand, if
there is substantial evidence opposed to the
motions, that is, evidence of such quality and
weight that reasonable and fair-minded men in
the exercise of impartial judgment might reach
different conclusions, the motions should be
denied, and the case submitted to the jury.
The motions for directed verdict and judgment
n.o.v. should not be decided by which side has
the better of the case, nor should they be
granted only when there is a complete absence
of probative facts to support a jury verdict.
There must be a conflict in substantial
evidence to create a jury question. However,
it is the function of the jury as the
traditional finder of the facts, and not the
Court, to weigh conflicting evidence and
inferences, and determine the credibility of
witnesses.
Id. at 374-75 (footnote omitted).
The Boeing standard applies to circumstantial as well as
direct evidence. Rhodes, 75 F.3d at 993. Because direct evidence
of discrimination is rare, a plaintiff in a discrimination case
must ordinarily use circumstantial evidence to satisfy her burden
of persuasion. Id. (citing Davis v. Chevron U.S.A., Inc., 14 F.3d
1082, 1085 (5th Cir. 1994)). Consequently, a plaintiff need not
provide direct evidence to sustain a jury finding of
26
discrimination. Id. (citing, e.g., Burns v. Texas City Refining,
Inc., 890 F.2d 747, 751 (5th Cir. 1989)).
To sustain a finding of discrimination, circumstantial
evidence must be such as to allow a rational factfinder to make a
reasonable inference that discrimination was a determinative reason
for the employment decision. Id. at 994. The factfinder may rely
on all of the evidence in the record to draw an inference of
discrimination. Id. In Rhodes, this court stated:
In tandem with a prima facie case, the
evidence allowing rejection of the employer’s
proffered reasons will often, perhaps usually,
permit a finding of discrimination without
additional evidence. Thus, a jury issue will
be presented and a plaintiff can avoid summary
judgment and judgment as a matter of law if
the evidence taken as a whole (1) creates a
fact issue as to whether each of the
employer’s stated reasons was what actually
motivated the employer and (2) creates a
reasonable inference that [discrimination] was
a determinative factor in the actions of which
plaintiff complains. The employer, of course,
will be entitled to summary judgment if the
evidence taken as a whole would not allow a
jury to infer that the actual reason for the
discharge was discriminatory.
Id.
2. Departure From Boeing-RhodesSufficiency of the Evidence
Standards
The panel opinion did not test the sufficiency of the evidence
for submission of this McDonnell Douglas-Burdine-Hicks case to the
jury under the proper standards as required by our en banc
27
decisions in Rhodes and Boeing, but instead applied the panel’s new
mandatory rules of law to facts found de novo by the panel and
concluded that as a matter of law that the employer was entitled to
a judgment as a matter of law dismissing the employee’s case.
The panel opinion turned its back on stare decisis and decided
the case according to its own freestanding rules of law. The panel
was duty bound in this McDonnell Douglas-Burdine-Hicks case by our
en banc opinion in Rhodes to test the jury verdict for sufficiency
of the evidence under our en banc Boeing standard, as elaborated on
in Rhodes. The panel breached that duty by disregarding the
McDonnell Douglas framework, refusing to determine whether the
correctly instructed jury reasonably could have found for the
plaintiff based on the evidence it saw and heard. The panel found
the facts of the case de novo, and applied its own new mandatory
rules of law to those facts.
The rationale of the panel decision is as follows: In a Title
VII intentional discrimination case, in reviewing a defendant
employer’s appeal from a judgment for an attorney-employee
plaintiff, based on a jury verdict in the plaintiff’s favor, when
the defendant argues on appeal that it terminated the plaintiff
because of her unethical disclosures and not because of her
opposition to the defendant’s unlawful employment practices: (1)
The court “must first determine [from a de novo review of the
record] whether [the attorney-employee] breached her professional
ethical duties.” Douglas, 144 F.3d at 370; (2) Upon determining
28
that the attorney-employee violated her ethical obligations, the
court must next decide “whether [the employee] demonstrated that
[the employer] unlawfully retaliated against her when it terminated
her employment.” Id. at 372; (3) If the court determines (or
assumes) that the plaintiff employee demonstrated that the employer
terminated her because of her opposition to unlawful employment
practices, the court engages in a balancing test to determine
whether the opposition is entitled to protection under Title VII,
in this particular case, by weighing both the employer’s interest
as a client in having the attorney-employee abide by state
professional ethical rules and the state legal profession’s
interest in promoting ethical conduct and discouraging unethical
conduct against the attorney-employee’s individual federal
statutorily protected interest under Title VII to oppose allegedly
discriminatory practices by her employer. Id. at 375-76; (4) Upon
the panel’s first application of this new test in the present case,
it concluded that if the individual attorney-employee’s opposition
to the employer’s alleged unlawful practices under Title VII
involves a violation of an applicable state legal professional
ethical rule, the employee’s federal right or statutorily protected
interest can never in any such case counter the weight of the
interests of the employer-client and the state legal profession;
(5) Consequently, the panel transformed the balancing test into
four overlapping hard-and-fast rules of law: (i) An attorney-
employee’s opposition to an unlawful employment practice that
29
involves a breach of a state ethical rule imposing a duty for the
benefit of a client is unprotected under Title VII; (ii) The
magnitude of the attorney’s transgression and the risk of harm
created are not relevant: “any betrayal of a client’s confidences
that breaches the ethical duties of the attorney places that
conduct outside Title VII’s protection [against retaliatory
discrimination by the employer].” Id. at 376; (iii) If the
attorney-employee’s opposition conduct involves a violation of a
professional ethical rule, “the employer is insulated from
liability irrespective of whether it took adverse employment action
because the conduct constituted a breach or because the conduct was
in opposition to discriminatory employment practices.” Id. at 377
n.16; (iv) Consequently, the employer in such a case is entitled as
a matter of law to a judgment as a matter of law dismissing the
employee’s case. Id. at 376.
Under the panel opinion’s new rules, the allocation of the
burden of production and order for the presentation of proof
established for Title VII discriminatory-treatment cases by the
Supreme Court, i.e., the McDonnell Douglas-Burdine-Hicks framework,
as well as the Boeing-Rhodes standards for testing jury verdicts,
will be virtually obsolete in a case involving an alleged ethical
violation by an attorney-employee while opposing an unlawful
employment practice. The panel opinion indicates, although it does
not explicitly hold, that the question of whether an attorney-
employee violated her state professional code as part of her
30
opposition to an unlawful employment practice is a question of law
for the court that cannot be submitted to the jury. Thus, once the
court at the trial or appellate level decides that such a violation
occurred as part of the attorney-employee’s opposition to an
unlawful employment practice, the entirety of the employee’s
opposition conduct becomes completely unprotected under Title VII.
The panel opinion expressly holds, in diametric opposition to
McDonnell Douglas, Burdine, Hicks and Rhodes, that the plaintiff in
such a case cannot prevail by proving that the ethics breach was a
pretext and not the true reason for the challenged adverse
employment action, but that the real reason was the employer’s
intentional discrimination against the employee. Consequently, few
Title VII intentional discrimination suits brought by attorney-
employees may survive motions for summary judgment or judgment on
the merits or appeals, even though the employees may be able to
demonstrate that the employers’ actions were motivated by unlawful
discrimination rather than a legitimate, nondiscriminatory reason.
C. Adherence To McDonnell Douglas, Burdine, Hicks, Rhodes and
Boeing Requires That the Plaintiff’s Jury Verdict Be Upheld
In the present case, there definitely was sufficient evidence
from which the jury reasonably could have found that DPO’s
proffered reasons for the discharge were false and pretextual and
that Douglas’s opposition to unlawful employment practices was a
determinative reason for the termination of her employment. There
31
was a close and suspicious temporal proximity between Douglas’s
opposition and her discharge. Upon receipt of Douglas’s response
letter complaining of EEO violations, which showed that a copy had
been sent to the DOE whistle-blower officer responsible for
receiving EEO complaints from DPO employees, DPO immediately
convened a “termination board” and decided to terminate Douglas’s
employment. Based on the evidence introduced at trial, the jury
reasonably could have found that DPO’s “ethical” reason for
terminating Douglas’s employment was in fact a pretext because: (1)
The statements in Douglas’s June 24, 1994 response that DPO
proffered as its reason for discharging Douglas were not in fact
disclosures to DOE because DOE already had the information and it
was insignificant anyway; the jury reasonably could have
disbelieved DPO because of this alone; or (2) if Douglas revealed
any confidential information, her revelation was authorized by Rule
1.6(b), as an exception to Rule 1.6(a), because she reasonably
believed the revelation to be necessary to establish a claim or
defense on her behalf in a controversy with her client, DPO, or
necessary to respond to allegations concerning her representation
of DPO; or (3) from the record as a whole, it is evident that DPO’s
discharge of Douglas was motivated by Douglas’s opposition to
unlawful employment practices and not by any breach of a
professional ethical rule she allegedly may have committed.
Under the government contract between DPO and DOE, DPO, the
contractor, waived its rights of confidentiality and privilege with
32
respect to Douglas’s June 24, 1994 response letter when it agreed
that “[a]ll records acquired or generated by the contractor under
this contract in the possession of the contractor, including
[performance appraisals, reviews, and associated documents, equal
employment opportunity and affirmative action claims and records,
files and records concerning ethics and security investigations,
and attorney-client privilege or attorney work product] shall be
subject to inspection, copying, and audit by the government at all
reasonable times[.]” (emphasis added).
Douglas’s response to her performance appraisal was an
“associated document.” Poindexter testified that Douglas was
terminated because the information contained in her statements in
the response letter with regard to Bell South Mobility and Becky R.
and Brian S. was Douglas’s “attorney work product.” Therefore,
Douglas’s June 24, 1994 response letter and her attorney work
product concerning the Bell South Mobility and the Becky R. and
Brian S. matters were subject to inspection, copying, and audit by
the government at all reasonable times pursuant to the government
contract between DOE and DPO.
Also, from the beginning of the appraisal, DPO was required to
disclose to the DOE team a list of EEO-related complaints and
disposition actions taken since contract inception. Becky R. had
submitted a complaint against Brian S. to DPO’s human resources
department. Douglas had been required to confer with DOE employees
33
about their using DPO cellular phones for personal calls in an
effort to resolve that problem with Bell South Mobility.
For all of these reasons, the jury reasonably could have
concluded that Douglas’s June 24, 1994 response letter did not in
reality disclose any new information to DOE, or that DPO had
expressly waived its rights of confidentiality and privilege with
respect to this letter, and that the Becky R. and Bell South
Mobility statements in Douglas’s response were not the true reasons
for Douglas’s discharge.
As indicated by the district court’s reasons for rejecting
DPO’s motion for judgment as a matter of law, the jury also
reasonably could have found that Douglas had not made a prohibited
revelation under Rule 1.6 because she reasonably believed her
statements were necessary to establish a claim or defense by her in
a controversy with DPO or to respond to DPO’s allegations
concerning her representation:
The crux of the defendants’ complaint is that
the plaintiff disclosed confidential matters
in her memorandum which should not have been
disclosed to persons outside the company.
These matters related to (1) bills from Bell
South Mobility and (2) the manner in which
other employees’ performances were evaluated
compared to hers. With respect to Bell South,
the plaintiff’s performance evaluation[, a
recorded company document prepared by
Poindexter, Douglas’s supervisor,]
specifically referenced her handling of that
matter as a reason for a negative rating. The
plaintiff’s response referencing it was
therefore not unreasonable. Most of her
explanation dealt with generic steps she took
in handling the matter, with minimal
34
disclosure of any substantive information.
Likewise, her discussion of “Becky R.” and
“Brian S.” did not disclose any substantive
in-house information. It also related
directly to the plaintiff’s complaint that she
was the victim of disparate treatment in her
performance evaluation. For those reasons,
the Court finds there was a “legally
sufficient evidentiary basis for a reasonable
jury to find for that party on that issue.”
(Emphasis and internal quotations in original)
Finally, even if the jury did not immediately disbelieve DPO’s
proffered reason for discharge because she did not actually
disclose any new information to the DOE, or information to which
DOE was not otherwise contractually entitled, in her June 24, 1994
response statement, the jury reasonably could have found from the
evidence as a whole that DPO discharged Douglas because in her June
24, 1994 response she opposed unlawful employment practices under
§ 704(a) of Title VII, and not because of the information disclosed
in her statements about the Becky R. complaint or the Bell South
Mobility business matter. The evidence taken as a whole, including
Douglas’s opposition, DPO’s termination of her employment, the
suspicious temporal proximity between them, the fact that the
statements were not truly disclosures and that no potential or
actual harm resulted, DPO’s contractual obligation to disclose such
information during a DOE audit, the necessity for Douglas’s minimal
references to these matters to allege facts indicating
discrimination against her by the defendants, the lack of any
showing that DPO previously had genuinely considered such matters
35
to be strictly confidential or had discharged employees for such
disclosures, and Poindexter’s pre-existing animosity towards
Douglas, fully support the jury’s rejection of the reasons for
discharge offered by the defendants and the finding that
retaliatory discrimination was the determinative reason for the
adverse employment decision. Moreover, because Poindexter, during
his performance evaluation interview with her, told Douglas that he
and Jocelyn Guarisco, DOE chief counsel, decided that Douglas had
committed unspecified breaches of professional ethics during the
appraisal meeting, the jury reasonably could have found that
Poindexter’s failure to discharge her, but rating her “Fully
Satisfactory” at that time, indicated that he and DPO did not
consider her breaches so serious as to warrant her discharge, and
that her later opposition to unlawful employment practices in her
response letter was probably what motivated DPO to discharge her.
The jury was correctly instructed that, in order to return a
verdict for Douglas, it must find by a preponderance of the
evidence, “that defendants’ offered reasons [for discharging
Douglas] are pretextual, that is, they are not the true reasons for
her discharge. In other words, Ms. Douglas must prove by a
preponderance of the evidence that the reasons stated by the
defendants were only a cover or a cloak for retaliation.” Because
we must presume that the jury followed the trial court’s
instructions, United States v. Brito, 136 F.3d 397, 413 (5th Cir.),
cert. denied, 118 S. Ct. 1817, cert. denied, 118 S. Ct. 2389, cert.
36
denied, 119 S. Ct. 159 (1998), we must necessarily conclude that
the jury, in specifically finding that Douglas was discharged
because of her protected opposition, found that DPO’s offered
reason for the termination of Douglas’s employment was pretextual,
false and only a cover for its unlawful retaliation. Moreover, the
jury in making the requisite factual determination for imposing
punitive damages explicitly found that “defendants acted wilfully
and maliciously, or in reckless disregard of plaintiff’s federally
protected rights in the discharge of plaintiff in retaliation for
her participation in a protected activity.”
III. THE PANEL OPINION OVERRULES JONES V. FLAGSHIP,
DOE V. A CORPORATION AND MISINTERPRETS RULE 1.6
Doe v. A Corporation., 709 F.2d 1043 (5th Cir. 1983); and
Jones v. Flagship International, 793 F.2d 714 (5th Cir. 1986),
cert. denied, 479 U.S. 1065 (1987), held that lawyers’ ethics rules
cannot be asserted to bar a lawyer’s access to court to adjudicate
her own personal rights against her client (as opposed to
representing other persons against her client). The panel opinion
overrules Doe and Jones by allowing an employer-client to assert an
ethics rule to bar attorney-employees’ enforcement of their own
personal Title VII unlawful discrimination claims. The opinion
creates a mandatory rule of law granting a client-employer absolute
immunity from liability for retaliation prohibited by Title VII
against an attorney-employee for opposing unlawful employment
37
practices, if the attorney-employee breached an ethics rule in her
opposition. In addition to this new barrier to an attorney-
employee’s attempt to vindicate her personal claims, the panel
opinion further disadvantages every Louisiana attorney having a
dispute with any client by incorrectly interpreting Louisiana State
Bar Association Rule of Professional Conduct 1.6 to require that
the attorney must file a formal administrative or judicial
complaint before there can be a “controversy” with the client that
would allow the lawyer to reveal confidential information necessary
to the enforcement or defense of the lawyer’s own personal rights.
A. Doe v. A Corporation
In Doe, this court held that a former in-house counsel could
prosecute an action in his own behalf against his former employer
with respect to claims arising under ERISA, despite his having
advised the employer corporation on matters related to his lawsuit,
but that he was ethically barred from prosecuting such litigation
either as an attorney for or as the class representative for other
employees. The court pointed out that adherence to Canon 4
requires that a lawyer be disqualified from representing a party to
litigation if the adversary party can show that matters in the suit
are substantially related to matters in which the attorney
previously represented the adversary. Doe, 709 F.2d at 1046. But,
the court held that lawyers’ ethical rules cannot be asserted to
prevent a lawyer from having access to the courts to vindicate her
38
own personal rights or tenable legal claims. Id. at 1047.
Moreover, the court stated, a lawyer may reveal confidential
information and secrets when it is necessary for her to do so to
prevent the client from committing a crime, to collect a fee, or to
defend herself against an accusation of wrongful conduct. Id. at
1048.
The rationale for the last of these exceptions
is: “It would be a manifest injustice to allow
the client to take advantage of the rule of
exclusion as to professional confidence to the
prejudice of his attorney, or that it should
be carried to the extent of depriving the
attorney of the means of obtaining or
defending his own rights.” ABA Opinion 250
(1943).
Id. at 1048-49 (footnote citing authorities omitted).
In its own words, the Doe court concluded:
A lawyer, however, does not forfeit his rights
simply because to prove them he must utilize
confidential information. Nor does the client
gain the right to cheat the lawyer by
imparting confidences to him. . . . There is
no social interest in allowing the corporation
to conceal wrongdoing, if in fact any has
occurred. Nor is there any social interest in
allowing it to deny Doe pension rights or
insurance benefits if they are legally due
him. But that would be the effect of our
refusing to allow Doe to prosecute his
individual lawsuit.
Id. at 1050.
B. Jones v. Flagship
Jones v. Flagship also recognized an attorney’s right to
pursue her own personal claim against her client-employer and,
39
although decided prior to Hicks and Rhodes, faithfully applied the
McDonnell Douglas-Burdine framework to ascertain that the attorney-
employee had been afforded a full opportunity to rebut the
employer’s evidence that it had a legitimate, nondiscriminatory
reason for suspending and firing her. In Jones, the district court
entered a judgment for the employer after a bench trial. Although
this court affirmed, it first ascertained that the employee had
been given the opportunity to demonstrate that the employer’s
proffered reasons for her suspension and termination were not the
true reasons for the employment decision. Jones, 793 F.2d at 725
n.11 (citing McDonnell Douglas and Burdine). This court recognized
that Jones, although an attorney and Flagship’s manager of EEO
programs, had a right to be free of discriminatory practices under
the protection of § 704(a); and that, in filing a charge against
Flagship on the ground that the company had discriminated against
her in terms of pay and sexual harassment, Jones was exercising a
protected right under Title VII, as the district court found. Id.
at 726. However, Flagship produced evidence that, in addition to
filing her own Title VII claims, Jones also solicited other
employees to join in a class action suit against Flagship. Id. at
728. This court concluded that because these additional activities
involving other persons’ claims were unnecessary to Jones’s pursuit
of her own claim and were critically harmful to Flagship in all
discrimination suits against it, Flagship had met its burden of
production of evidence of a legitimate, nondiscriminatory basis for
40
suspending and firing Jones. Id. at 729. In affirming the
district court’s judgment, this court held that, “although Jones
did establish a prima facie case of unlawful retaliation under
§704(a) of Title VII, under the McDonnell-Burdine allocation of
burdens and order of presentation of proof, Flagship sufficiently
rebutted Jones’ case by adducing evidence that it suspended and
fired Jones for nonretaliatory reasons[; and] that Jones did not
demonstrate that the reasons proffered by Flagship were pretexts
for discrimination.” Id. at 729-30.
C. Rule 1.6
The panel opinion, by holding that Louisiana State Bar
Association Rule of Professional Conduct 1.6 provides that a
lawyer-employee cannot have a controversy with, or claim or defense
against, her client, which would allow the attorney to reveal
confidential information to the extent necessary to enforce or
defend the attorney’s own personal rights, until the lawyer files
a formal judicial or administrative petition against the client,
incorrectly interprets the rule and further undermines every
attorney’s access to courts for the vindication of personal rights
and claims. The panel opinion cites no authority and provides no
reason for its eccentric reading of the rule. When the words of
the rule are taken in their ordinary and usual sense it is evident
that the drafters of the rule were aware that in reality
controversies, claims and defenses usually arise before pleadings
41
are filed because of them, and not the other way around. For
example, the Comment to Rule 1.6 of the ABA Model Rules of
Professional Conduct states that an attorney’s right to respond to
charges of misconduct involving representation of the client arises
when an assertion has been made, and that paragraph (b) (2) of Rule
1.6 does not require the attorney to await the commencement of an
action or proceeding. See MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.6
cmt. 18 (1983). The jurisdictional tenets of both Louisiana and
federal courts and administrative agencies require that a case or
controversy must preexist the commencement of proceedings. The
panel opinion’s interpretation of the rule unnecessarily adds an
additional technical snare to discourage the enforcement of an
attorney’s valid personal claim. In Title VII discrimination
cases, the panel’s misreading of the rule will have an uncalled for
chilling effect upon the enforcement of an attorney-employee’s
federal constitutional and statutory rights. Judicial efficiency,
as well as the purposes of Title VII, would be better served by a
straightforward reading of Rule 1.6 to recognize that whenever a
serious controversy arises between a lawyer and her client, the
attorney, as well as the client, prior to filing a formal
complaint, may disclose information necessary to the evaluation,
protection and enforcement of legal rights, including the seeking
of legal and other expert advice, the gathering of evidence, and
the identification and evaluation of potential witnesses.
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For all these reasons, I respectfully disagree with our
court’s decision not to rehear this case.11
ENDRECORD
11
Contrary to Judge Jolly’s opinion that a majority of this
court approves of his opinion, I do not believe that all of the
judges who voted not to hear this case en banc did so for that
reason. This court’s case load approaches 8,000 appeals per year.
We can only bring the entire court together to rehear a minuscule
portion of the cases. Many of the judges who voted “no” probably
did so because they thought we have already overfilled our en banc
dockets or that there were more important cases that should be
heard en banc. I, of course, respectfully disagree but recognize
that that is the prerogative of each judge.
43
E. GRADY JOLLY, Circuit Judge, Response To Dissent From The Denial
of Rehearing En Banc:
With all due respect, the dissent is unnecessarily overwrought
by the captioned opinion. Contrary to the dissent’s ominous
outlook, Douglas v. DynMcDermott Petroleum, 144 F.3d 364 (5th Cir.
1998) does not sound the death knell for the legal profession’s
Title VII rights. Nothing in Douglas precludes an attorney from
properly filing suit under Title VII; nor does Douglas abrogate an
attorney’s right to seek redress for retaliatory discharge.
Douglas merely holds that when an attorney pursues claims under
Title VII, she must do so in a manner that does not violate her
profession’s ethical code. Douglas, 144 F.3d at 376. Because
Douglas neither reaches the result the dissent alleges, nor engages
in the de novo review the dissent asserts, such lamentation over
its result is unwarranted.
It should be noted that Douglas indeed recognizes as a valid
means of revealing confidential information, the exceptions under
Rule 1.6 of the Louisiana State Bar Articles of Incorporation,
Rules of Professional Conduct, La.Rev.Stat.Ann. § 37:219 Ch.4--
App., Art. 16, which permits the disclosure, once disclosure
becomes necessary in a legal dispute with the employer-client.
Douglas, 144 F.3d at 376. Douglas further notes that Rule 1.6 does
not bar opposition and protest in an attorney’s conversations,
dialogue, and remonstrations with the employer-client. Id.Notwithstanding the overstated contentions running
repetitively throughout the dissent, a clear majority of our court
properly has concluded that Douglas neither transgresses the
McDonnell Douglas framework, nor deviates from the standards
articulated in Rhodes v. Guiberson Oil Tools, 75 F.3d 989 (5th Cir.
1996) (en banc) or Boeing Company v. Shipman, 411 F.2d 365 (5th
Cir. 1969) (en banc), overruled in part on other grounds, Gautreaux
v. Scurlock Marine, Inc., 107 F.3d 331 (5th Cir. 1997) (en banc).
For these reasons, the court has properly rejected the call
for en banc in this case.
45