Halliburton Co. v. Administrative Review Board

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

___________________

No. 13-60323

United States Court of Appeals

Fifth Circuit

___________________ FILED

March 11, 2015

HALLIBURTON COMPANY,

Lyle W. Cayce

Clerk

Petitioner,

v.

ADMINISTRATIVE REVIEW BOARD, UNITED STATES DEPARTMENT

OF LABOR,

Respondent.

_______________________

Petition for Review of an Order

of the United States Department of Labor

_______________________

Before STEWART, Chief Judge, DENNIS, Circuit Judge, and GILSTRAP,

District Judge.*

ORDER:

A member of the court in active service having requested a poll on the

reconsideration of this cause en banc, and a majority of the judges in active

service and not disqualified not having voted in favor (Fed. R. App. P. 35 and

5th Cir. R. 35), rehearing en banc is DENIED.

In the en banc poll, seven judges voted in favor of rehearing (Judges

Jolly, Davis, Jones, Smith, Clement, Owen, and Elrod), and eight judges voted

* District Judge of the Eastern District of Texas, sitting by designation.

against (Chief Judge Stewart and Judges Dennis, Prado, Southwick, Haynes,

Graves, Higginson, and Costa).

ENTERED FOR THE COURT:

__/s/ James L. Dennis_____

United States Circuit Judge

No. 13-60323

E. GRADY JOLLY, Circuit Judge, joined by JONES and SMITH, Circuit

Judges, dissenting from the denial of rehearing en banc:

The panel’s decision in this appeal provides yet another gloss upon the

Supreme Court’s standard in Burlington Northern & Santa Fe Railway Co. v.

White, defining a “materially adverse” employment action in the context of a

retaliation claim. 548 U.S. 53, 68 (2006). Under the supposedly objective

standard in Burlington Northern, an employee suffers a materially adverse

action if the employer acts in a way that “well might have dissuaded a

reasonable worker from making or supporting a charge of discrimination.” 1 Id.

(internal quotation marks omitted). Although the Supreme Court crafted this

standard in “general terms,” this Court has grafted so many permutations, on

so many occasions, in so many cases that it has no contours of any kind. See

id. at 69. Because the panel’s decision provides yet another choice for any

panel of the Court to purport to apply Burlington Northern, I respectfully

dissent from the Court’s decision not to rehear the case en banc; we should give

some clear objective meaning to the Supreme Court’s “general terms.”

The panel seems to admit to an ad hoc nature of its decision; it does not

hold that a disclosure of an employee’s identity as a complainant is necessarily

a materially adverse employment action under Burlington Northern. See

Halliburton, Inc. v. Admin. Review Bd., 771 F.3d 254, 261 (5th Cir. 2014)

(acknowledging that the relevant issue was whether the disclosure of the

complaining employee’s identity “in the surrounding circumstances amounted

to a ‘materially adverse’ action under Burlington” (emphasis added)). Of

course, disclosure of the identity of a complaining employee to his co-workers

1Title VII’s anti-retaliation provision was before the Burlington Northern Court, and

thus the Court’s decision refers to charges of discrimination. The Burlington Northern

standard, however, applies to a wide range of anti-retaliation provisions, including the

Sarbanes-Oxley anti-retaliation provision at issue here. Allen v. Admin. Review Bd., 514

F.3d 468, 476 n.2 (5th Cir. 2008).

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cannot, without more, be a materially adverse action, because such a disclosure

causes no inherent harm to an employee. It is unlike a discharge or significant

demotion, where the negative effect on the employee is clear. Indeed, a panel

of this Court has recognized, in an unpublished decision, the common-sense

principle that a disclosure of an employee as a complainant, standing alone, is

not a materially adverse retaliatory action. See Holloway v. Dep’t of Veterans

Affairs, 309 F. App’x 816, 819 (5th Cir. 2009).

The panel holds that if the disclosure of the employee’s identity results

in ostracism, the disclosure may constitute an adverse employment action

under Burlington Northern. 2 Halliburton, Inc., 771 F.3d at 262. This position

cannot be reconciled with this Court’s precedent that ostracism or isolation by

co-workers is not a materially adverse action under Burlington Northern as a

matter of law. Stewart v. Miss. Transp. Comm’n, 586 F.3d 321, 332 (5th Cir.

2009); Aryain v. Wal-Mart Stores Tex. LP, 534 F.3d 473, 484–85 (5th Cir. 2008).

In Stewart, we considered five specific allegations of retaliation, including

ostracism, and we concluded as a matter of law that ostracism is a minor

annoyance in the workplace and not a materially adverse action. 586 F.3d at

332 (concluding that, “[a]s a matter of law, the latter three of these allegations

[including ostracism] do not rise to the level of material adversity but instead

fall into the category of ‘petty slights, minor annoyances, and simple lack of

good manners’ that the Supreme Court has recognized are not actionable

retaliatory conduct”). Similarly, we concluded in Aryain that allegations of

“rude treatment” by an employee’s supervisors are insufficient to constitute a

materially adverse employment action. 534 F.3d at 485. Under our precedents

2 The panel also notes that collaboration was an important part of the employee’s job

to bolster its analysis of ostracism. Of course, collaboration is important in any job, as is

maintaining a positive rapport with co-workers, such that the panel’s emphasis that the

employer valued collaboration adds nothing to the panel’s analysis.

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in Stewart and Aryain, it is established in this Circuit that ostracism or

isolation in the workplace does not rise to the level of material adversity. The

panel plainly erred by concluding otherwise.

The panel does pose speculative consequences that may result from the

disclosure of an employee’s identity as a complainant. For example, the panel

suggests that a boss’s disclosure of an employee’s complaint “could” signal a

warning to other employees not to complain about the employer’s conduct.

Similarly, the panel speculates that Menendez could one day suffer from a

“potential deprivation” of future advancement opportunities as a result of any

ostracism by his coworkers. Halliburton, Inc., 771 F.3d at 262. This

speculation, I respectfully submit, is foreclosed by Burlington Northern, which

emphasizes that retaliation is only actionable if it “produces an injury or

harm.” 548 U.S. at 67 (emphasis added). The Burlington Northern Court did

not say that any action that has the potential to produce an injury is materially

adverse. Under such a standard, virtually any employment action could be

articulated as a material adverse action, contrary to the Court’s admonition

that an employee’s decision to file an employment-related complaint “cannot

immunize that employee from those petty slights or minor annoyances that

often take place at work and that all employees experience.” Id. at 68. Thus,

the panel’s speculation as to future harms is foreclosed by precedent.

Readers of the panel’s opinion will certainly be confused by the absence

of controlling authority for the panel’s holding. Because Stewart and Aryain

predate the panel’s decision and remain cognizable law in this Circuit, we

remain bound by those decisions—not the panel’s errant decision in this case.

See Rios v. City of Del Rio, Tex., 444 F.3d 417, 425 n.8 (5th Cir. 2006) (“The

rule in this circuit is that where two previous holdings or lines of precedent

conflict the earlier opinion controls and is the binding precedent in this circuit

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(absent an intervening holding to the contrary by the Supreme Court or this

court en banc).”). Nevertheless, our authority addressing adverse

consequences of employment decisions remains foggy. In my conscientious

view, the Court should have taken this case en banc to provide some contours

to the concept of an adverse employment action so that we mete out employee

rights on the same standard to all.

For these reasons, I respectfully dissent.

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