Porter v. Houma Terrebonne Housing Authority Board of Commissioners

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.

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