# Petition for Writ of Certiorari — Hernandez v. Crawford Building Material Co., Dba Crawford's Discount Carpet Home and Floor Center and Malveau v. East Baton Rouge Parish School Board > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1621%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2003 - **Citation:** 540 U.S. 817 ## Text In The orsice of Supreme Court of the nites States Vv JUAN HERNANDEZ, Petitioner, V. CRAWFORD BUILDING MATERIAL CO., etc., Respondent. 2 Vv ROSA MALVEAU, et al., Petitioners, Vv. EAST BATON ROUGE PARISH SCHOOL BOARD, et al., Respondents. , Vv On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Fifth Circuit , Vv PETITION FOR A WRIT OF CERTIORARI ¢ TIMOTHY B. GARRIGAN ERIC SCHNAPPER* STUCKY, GARRIGAN & UNIVERSITY OF WASHINGTON CASTETTER SCHOOL OF LAW 2803 North Street 1100 N.E. Campus Parkway P.O. Box 631902 Seattle, WA 98105 Nacogdoches, TX (206) 616-3167 conan potty A Counsel for Petitioners NANcY PICARD *Counsel of Record ROBEIN, URANN & LURYE 2540 Severn Avenue Suite 400 Metairie, LA 70002 (504) 885-9994 COCKLE LAW BRIEF PRINTING CO. (800) 225-6964 OR CALL COLLECT (402) 342-2831 ae ae QUESTIONS PRESENTED* (1) Do the anti-retaliation provisions of Title VII and the Age Discrimination in Employment Act, which forbid an employer from discriminating against an employee for seeking to enforce his or her rights under Title VII and ADEA respectively, actually permit such retaliation so long as the employer’s actions do not constitute an “ulti- mate employment decision”? (2) Does 42 U.S.C. § 1981, insofar as it forbids retalia- tion against employees for opposing discrimination forbid- den by that section, actually permit such retaliation so long as the employer’s actions do not constitute an “ulti- mate employment decision”? (3) In a section 1983 action to enforce the First Amendment, may a public employer retaliate against employees for engaging in constitutionally protected speech so long as that retaliation does not constitute either an “ultimate employment decision” or a reprimand or disciplinary action? * Both Hernandez and Malveau involve claims under the anti- retaliation provisions of Title VII. Hernandez also asserted a retaliation claim under the ADEA and section 1981. Malveau, et al., also asserted a retaliation claim under section 1983. ii PARTIES The parties in Hernandez are Juan Hernandez and Crawford Building Material Company, doing business as Crawford’s Discount Carpet Home and Floor Center. The petitioners in Malveau (decided in the court of appeals sub nom. Banks v. East Baton Parish School Board) are Rosa Malveau, Tina Brooks, Shirley Brown, Annette J. Gray, Mary Holmes, Annie Johnson, Amy Lane, Dorothy McPipe, Alma Newman, Maggie Tucker, Bertha Twine, Berthella Wallace, Edna Welch, and Nellie Wil- liams. The respondents in Malveau are the East Baton Rouge Parish School Board, Ingrid Kelley, Warren L. Pratt, Jr., Press L. Robinson, Sr., Dr., Jacqueline Mims, Patricia Hayne-Smith, Noel Hammatt, Roger Moser, Daniel R. Henderson, Eldon R. Ledoux, Dalton Devall, William P. Black and James Manley. iii TABLE OF CONTENTS Page QUESTIONS PRESENTED...........::csscsseeseeseesseesseees i RII oo oscnssussessscnccsssessosocessssovevesessensneevescoosoeseceees ii OPINIONS BELOW ...........:::ccccseseeeeeceeeseeeseseeeeeenenees 1 STATEMENT OF JURISDICTION..............:::0eeeeeeees 1 STATUTES INVOLVED ...........:::secccceetsseeseeeennneneeees 2 STATEMENT OF THE CASL..........:::scceeesseeseeeeneeeees 3 Hernandez..............00+ clk cadbah cbeitomnnansesokssuanshuanants 3 Banks/Malveau ............ccccseseeeeeeeeeeeeeeees sacbaeunesban 5 REASONS FOR GRANTING THE WRIT................. 8 I THERE IS A WIDELY RECOGNIZED CONFLICT AMONG THE COURTS OF APPEALS REGARDING WHETHER FEDERAL LAWS PROTECTING EMPLOYEES FROM RETALIATION ACTUALLY PERMIT RETALI- ATION SO LONG AS IT DOES NOT TAKE THE FORM OF AN “ULTIMATE EMPLOY- MENT DECISION?” ..........::.:ssesseeeeeeeseeeeeeeeeeneees 8 Il. FEDERAL AGENCIES IN BRIEFS FILED IN THE COURTS OF APPEALS ARE ADVOCATING CONFLICTING INTERPRETA- TIONS OF THE LAW...........::ccccssseseeseeeereeeeens 21 III. THE DECISIONS BELOW ARE IN CONFLICT WITH THIS COURT’S DECISION IN ROBINSON V. SHELL OIL CO., 519 U.S. 337 (ADB) o0000ccccceeneeee aiiaulinndebaianwivaiairentwnceaxcnepneninen 27 ic, aa ils a cnannetasevncnupaichebson 30 iv TABLE OF AUTHORITIES Page CASES: Arnold v. United States Dept. of the Interior, 213 F.3d 196 CGA Cir. BOOB) 00.0 cssssecssieccscccnsconsessersosncsssosens 22 Bass v. Board of County Comm’rs, 256 F.3d 1095 CEE Ee, Svinte vecaceenskoncicnnnsipeasconieminntonein 15, 20 Berry v. Stevinson Chevrolet, 74 F.3d 980 (10th Cir. SN oinsiecticaticnsecackccsteeenbniesbtoniibeansenteneaanteitaccsitiantennimshanlbtiie 19, 21 Burger v. Central Apartment Mgmt., 168 F.3d 875 Cs Cie. Ti enka dsisesnsicieeiininascon 12, 13 Collins v. State of Illinois, 830 F.2d 692 (7th Cir. DE nticicacnionines ciciilescicedala hildeakcotelalesaduarnanhanauliliiaadatn 18 Connecticut Light & Power v. Secretary of Labor, 85 Pe Ge Ca Ge Fe bev cistrenstrictesiceecrcmnvitninn 26, 27 Connell v. Bank of Boston, 924 F.2d 1169 (1st Cir. DOIN icinsinsicsescndelcmccelanadcsle aneinn indaapeiioenueniutamalanaese 16 Dollis v. Rubin, 77 F.3d 777 (5th Cir. 1995) ............ 8,9, 11 Felton v. Polles, 315 F.3d 470 (5th Cir. 2002) .............000+ 12 Foley v. University of Houston Syst., 324 F.3d 310 CE Er Fe sx ccisicicsshanrahs ccidsihcebinntianianumniotenenidenina 10, 12 Garber v. New York City Police Dept., 1998 WL 614323 °S (2d Cie. Fane 12, TODS) ........crcssverseresecesesesss 17 Graham v. State Farm Mutual Ins., 193 F.3d 1274 CB Ce BI vicccssseicescatetnaneiaieresvesisiennonidaiiaansoonn 15 Green v. Administrators of the Tulane Educ. Fund, BBE P.Bd GED (GC Cae. BOG) wcvcesecsncnesirssvenviscosesevesvevecese 10 Gu v. Boston Police Dept., 312 F.3d 6 (1st Cir. 2002)....... 16 Gunnell v. Utah Valley State College, 152 F.3d 1253 CIs Ce. BI vi xaciccavccssinensceinennnsassnicsveststendenanscingatinsntio 19 eh iahucintae il te RRA SRG GR LEILA ig TONS SGN he HPCs BR MP RM LAT TET AEE AT: Ane . Pe Te Te Se ee ET FO a ee Oe Be en v TABLE OF AUTHORITIES — Continued Page Gupta v. Florida Bd. of Regents, 212 F.3d 571 (11th Clix. DOOD) ..ncssvvencesasesesccnrensesennaunanevenenssbssnenenonesserwanenessnes 15 Gustafson, Inc. v. Bunch, 244 F.3d 134 (5th Cir. ITN casas vsacsnesocienvnpnncomeneitnncenngreetenenerenymreeeetepemennmnsenn erst 27 Hernandez-Torres v. Intercontinental Trading, 158 F.3d 43 (1st Cir. 1998) .......ssssescsssresersererensnnensnrereneneneess 16 Heuer v. Weil-McLain, 203 F.3d 1021 (7th Cir. I cs soosnncsncrccionsemnnsesesssvissnugwannnntniesessereenrePntsensesiroe 18 Hollins v. Atlantic Co., 188 F.3d 652 (6th Cir. 1999)....... 17 Hunt v. Rapides Healthcare Syst., 277 F.3d 757 (Bt Cir. 2002) ........cscsscssssvssesaressecscesensessencssenenseseenees 9,12 Jeffries v. State of Kansas, 147 F.3d 1220 (10th Cir. SOME. sassorsosenarensnsnowennnnnsingnnnaneonbeintnsnnmucerneetentsnne? 19, 20 Kim v. Nash Finch Co., 123 F.3d 1046 (8th Cir. SIT i cnescssenneonsocvcavenmnsnnapnenenemneensnenenmmnsrnapenscte sree 7e2™ 20 Knox v. State of Indiana, 93 F.3d 1327 (7th Cir. ~ NN _ <-sssvetnnensssecbinensinlnsennnmonnmesronnieecteirnsatanncint rents a 18 Ledergerber v. Stangler, 122 F.3d 1142 (8th Cir. SOIT oscooxserenicevasnnnqpnensnbebacesnnnensnonnounctentnnceenene® joc 19 Manning v. Metropolitan Life Ins., 127 F.3d 686 (Sth Cir. 1997) ........cscscssssssosnsesessecesssenerncscecorenenenees 19, 20 Marrero v. Goya of Puerto Rico, 304 F.3d 7 (1st Cir. SN a. pincomecbieensonmnenapnnnemeannesnmenamonnceenn nor 16 Mattern v. Eastman Kodak Co., 104 F.3d 702 (5th Cir.), cert. denied, 522 U.S. 932 (1997)......... 9,10, 11, 17 Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986)........- 9 Messer v. Meno, 130 F.3d 130 (5th Cir. 1997) .......seeeeeees 10 vi TABLE OF AUTHORITIES -— Continued Page Mota v. University of Tex. Houston Health Sci. Ctr., BGR FG BER CI Ge. FED vesisesccresicinvvnesepccvecispncvsvenisnre 9 Passer v. American Chemical Soc., 935 F.2d 322 CES. GE. FE ieticcsicetnithiiinenniviiiiataminiins 19 Preda v. Nissho Iwai American Corp., 128 F.3d 789 COE Gr. BI ivi ckkstisntiincccciedeemiedtiadtatiien 18 Ray v. Henderson, 217 F.3d 1234 (9th Cir. 2000)... 14, 21, 22 Richardson v. New York State Dept. of Correctional Serv., 180 F.3d 426 (2d Cir. 1999) .............ccccceeceeees 17, 20 Robinson v. Shell Oil Co., 519 U.S. 337 (1997)......... passim Scusa v. Nestle U.S.A. Co., 181 F.3d 958 (8th Cir. SO i vinensicihcceccecantcnttscicaucetdeavuieactaecesiaiines 20 Shannon v. Bellsouth Telecommunications, 292 FOR FES CET, BE ial ieticcedcdrtencooeds 15 Smart v. Ball State Univ., 89 F.3d 4387 (7th Cir. Bs isiissisnicnsccnvetastecaiienciadsnisindioddlidesilsapdcliciimnealouaies 18 Smith v. St. Louis Univ., 109 F.3d 1261 (8th Cir. SIIB Y i inccnisinnincssisccsiinnabincgietincsabaiiaissnccalbdiaaiulsa dis spanbanvaisetts 20 Sweeney v. West, 149 F.3d 550 (7th Cir. 1996)................. 20 Thomas v. Texas Dept. of Criminal Justice, 220 Fee BRD Ce Ce, Fr wench tans siditedncirssicneninstnsectnnsints 10 Torres v. Pisano, 116 F.3d 625 (2d Cir.), cert. Gavibed,, GEERT. Ge CR Pivsinsecotstincisicinicavinsinnstciones 16 Trujillo v. New Mexico Dept. of Corrections, 1999 WL 194151 *3 (10th Cir., April 8, 1999)................. eee 20 Vasquez v. County of Los Angeles, 307 F.3d 884 (9th Car; DOC ssncinestinsesbiinciiatevanietpnetiacaicaianeidaavambabieian 14 vii TABLE OF AUTHORITIES — Continued Page Von Gunten v. Maryland, 243 F.3d 858 (4th Cir. DOO1) ..cccoscscccsscerscccsessecccccvscccvessscsocsssccssenseees 15, 21, 22, 27 Walker v. Thompson, 214 F.3d 615 (5th Cir. a 10 Wanamaker v. Columbian Rope Co., 108 F.3d 462 (Qd Cir. 1997).....sscsssscsesseresscssnessssensenenenenssnenssesncnnenenenes 17 Watts v. Kroger Co., 170 F.3d 505 (5th Cir. 1999)........ 9,10 Welsh v. Derwinski, 14 F.3d 85 (1st Cir. 1994) .....16, 21, 22 White v. Burlington Northern & Santa Fe Ry. Co., 310 F.3d 443 (6th Cir. 2002), reh. granted, $21 — F.3d 1203 (6th Cir. 2003)..........::cesessreeeeeerereneens 17, 20, 25 White v. New Hampshire Dept. of Corrections, 221 F.3d 254 (Ast Cir. 2000) ..........:sssccssersecsreeesrnesserseeeneeenes 16 Wideman v. Wal-Mart Stores, 141 F.3d 1453 (11th Cir. 1998).............cscsesccsssssseeeessnrenssecsreesesnsneceonees 15, 23, 28 Wyatt v. City of Boston, 35 F.3d 13 (1st Cir. 1994) .......... 16 Zaffuto v. City of Hammond, 308 F.3d 485 (5th Cir. BOOZ). ....ccervercccocsseccerseresceccncenvssssnccsscsscensesstaconsessensesenss 13 STATUTES: QB U.S.C. § 1254(1) ....cesccsceccesseseereserseesensenseserensensensennennees 1 QD U.S.C. § G23) ....ccsecsescesreeseeeeressensenneesreneenseneesnnes passim AZ U.S.C. § 198 1.......ssccserseseeeseesesressreesensenseennsenseeneees 2, 3, 12 A U.S.C. § 19838.......cccseccesrsesseesnesereeennsennnsnsnsensenes 2, 7, 8, 12 AZ U.S.C. § 2000€-3(a) .......esseceeereeerrecereresnneesereeenseeners passim AZ U.S.C. § 5B51(a) .....sceseesseesseensseeeeneennesensssnsensensenens cana ae Texas Penal Code § 12.34..........ssssessseerreesreesersenensennnsenneees 3 ee 1 PETITION FOR A WRIT OF CERTIORARI Petitioners Juan Hernandez, Rosa Malveau, et al., respectfully pray that this Court grant a writ of certiorari to review the judgments and opinions of the United States Court of Appeals for the Fifth Circuit entered in Hernan- dez v. Crawford Building Material Co. on February 21, 2003 and entered in Banks v. East Baton Rouge Parish School Board on February 19, 2003. OPINIONS BELOW In Hernandez the February 21, 2003 opinion of the court of appeals is reported at 321 F.3d 528 (5th Cir. 2003), and is reprinted in the Appendix to the petition. (1a-11a). The October 27, 2001 order of the district court, which is not officially reported, is reprinted at pp. 12a-19a of the Appendix. The August 9, 2001 decision of the district court, which is not officially reported, is set out in pp. 20a- 29a of the Appendix. In Banks the February 19, 2003 opinion of the court of appeals is reported at 320 F.3d 570 (5th Cir. 2003), and is reprinted in the Appendix to the petition. (30a-50a). The June 5, 2001 opinion of the district court, which is not officially reported, is set out at pp. 62a-75a of the Appen- dix. The December 12, 2001 opinion of the district court, which is not officially reported, is set out at pp. 51a-60a of the Appendix. STATEMENT OF JURISDICTION The decision of the court of appeals in Hernandez was entered on February 21, 2003. The decision of the court of appeals in Banks was entered on February 19, 2003. This Court has jurisdiction pursuant to 28 U.S.C. § 1254(1). 2 STATUTES INVOLVED Section 704(a) of the 1964 Civil Rights Act, 42 U.S.C. § 2000e-3(a), provides in pertinent part: It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment... be- cause he has opposed any practice, made an unlawful employment practice by this title, or because he has made a charge, testified, assisted, or participated in any manner in an investiga- tion, proceeding, or hearing under this title. Section 4(d) of the Age Discrimination in Employment Act, 29 U.S.C. § 623(d), provides in pertinent part: It shall be unlawful for any employer to dis- criminate against any of his employees or appli- cants for employment ... because such individual ... has opposed any practice made unlawful by this section, or because such indi- vidual ... has made a charge, testified, assisted or participated in any manner in an investiga- tion, proceeding or litigation under this Act. Section 1981 of 42 U.S.C. provides in pertinent part: (a) All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce con- tracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceed- ings for the security of persons and property as is enjoyed by white citizens... . (b) For the purposes of this section, the term “make and enforce contracts” includes the mak- ing, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contrac- tual relationship. Section 1983 of 41 U.S.C. provides in pertinent part: Every person who, under color of any statute, or- dinance, regulation, custom, or usage, of any en ec wis iit eS SH AT aM ae 6s I Nat tant watt LS aati Re 3 \ State ... subjects, or causes to be subjected, any citizen of the United States or other persons within the jurisdiction thereof to the deprivation of any rights, privileges or immunities secured by the Constitution and laws, shall be liable to the person injured in an action of law, suit in equity, or other proper proceedings for redress... . STATEMENT OF THE CASE Hernandez Petitioner was a long time employee of respondent Crawford Building Material. In 1999 Crawford dismissed Hernandez from the position he then held at its ware- house. Hernandez filed charges with the EEOC and Texas Commission on Human Rights, alleging that he had been dismissed because of his age, race and national origin. When the Commissions were unable to resolve the matter, Hernandez filed suit in federal district court, alleging discrimination in violation of Title VII and the Age Dis- crimination in Employment Act. Within a month of the filing of that federal complaint, Crawford filed a counterclaim which asserted that many years earlier Hernandez had taken some property owned by Crawford. The counterclaim did not merely seek dam- ages for an alleged act of conversion, but accused Hernan- dez of “theft of the grade of third degree or higher.” Hernandez, in response, amended his complaint to allege that the counterclaim itself had been filed to retaliate against Hernandez for commencing the original federal action. That retaliation, the amended complaint asserted, violated section 704(a) of Title VII, section 4(d) of the ADEA, and 42 U.S.C. § 1981. * Under Texas law that felony carries a penalty of two to ten years imprisonment. Texas Penal Code § 12.34. 4 Crawford’s counterclaim was dismissed on summary judgment. The district court held that Crawford “cannot show ... specifically, or even generally, what was stolen. Next, Crawford cannot provide evidence that anything allegedly missing was taken by Hernandez as opposed to anyone else.” (App. 27a). The case proceeded to trial on Hernandez’ retaliation and dismissal claims. Crawford admitted that its theft allegation had been triggered by Hernandez’ lawsuit. (App. 25a). Hernandez offered substantial evidence that the filing of the counterclaim, particularly the public allega- tion of serious criminal conduct, had caused him substan- tial injury. The jury rejected Hernandez’ dismissal claim, but concluded that Crawford had filed the counterclaim in bad faith in retaliation for Hernandez’ commencement of his federal action. The jury found that the counterclaim had caused $20,000 in actual damages, and also awarded $55,000 in punitive damages. Following the jury verdict, Crawford moved for judg- ment as a matter of law. In that post-trial motion Craw- ford for the first time contended that the anti-retaliation provision of Title VII does not forbid an employer from filing a bad faith counterclaim as a method of retaliating against a plaintiff for opposing unlawful discrimination. Because Crawford had not objected to the jury instruction on the retaliation claim, the verdict could. be overturned only if the retaliation instruction was “plain error.” The district court concluded that the instruction was not mes error. (App. 14 n.1). The court of appeals reversed. The appellate court applied the Fifth Circuit’s longstanding narrow interpreta- tion of the anti-retaliation provisions of Title VII, the ADEA and section 1981. Under that interpretation, retaliation is only unlawful if it takes the form of what the Fifth Circuit characterizes as an “ultimate employment decision.” Under Fifth Circuit precedent other forms of retaliation are entirely lawful. The court of appeals 5 concluded that the retaliatory filing of a bad faith counter- claim was not an “ultimate employment decision,” and thus under Title VII, section 1981 and the ADEA was a permissible method of retaliation. (App. 9a). The appellate court also concluded that the legality of that form of retaliation was so clear that the jury instruction in ques- tion was indeed plain error. (App. 10a). Banks/Malveau Petitioner Malveau and thirteen other named plain- tiffs in Banks seek review of that decision. The original lead plaintiff, Dorothy Banks, was by agreement of the parties dismissed from the case while it was pending in the court of appeals. As of 1992 the East Baton Rouge School Board em- ployed janitors in three capacities: “Janitor I,” “J anitor IT,” and “Janitor III.” The Janitor I employees were virtually all women (App. 32a); they worked part-time for six hours a day, nine months of the year. The Janitor II and Janitor III employees were virtually all men;’ they were employed for the entire year and worked eight hours a day. In 1992 the Board decided to further downgrade the status of the virtually all female Janitor Is, reducing their work to four hours a day, and eliminating their benefits. (App. 32a- 33a). A number of the female Janitor I workers, including all of the petitioners in this case, brought suit in 1993 in Louisiana state court, alleging that these changes dis- criminated on the basis of gender in violation of Louisiana law. While that state court action was pending, the United 2 As of 1992 208 of the 234 Janitor II workers and all of the 33 Janitor III workers were men. Doc. #83, Exhibits 5 and 19. States Department of Justice undertook an investigation of whether the School Board had discriminated against women, in violation of Title VII, by excluding them from the Janitor II and Janitor III positions. In 1997 the De- partment of Justice and the School Board entered into a consent decree. Under that decree the Board created two new full-time positions with benefits, “Janitor” and “Lead Janitor.” Employees in the old Janitor I, II or III jobs could remain in those classifications, but all future promotions (or hiring) were into one of these new positions. Under the Decree the School Board agreed to provide an opportunity to be “promoted to the new [full-time] Janitor position” to all “interested and qualified incumbent employees in the [part-time] JanitorI... positions.” (App. 35a). After agreeing to the Consent Decree, however, the School Board allegedly took several steps that effectively precluded the women in Janitor I from moving into the new Janitor position. First, the Board required most of the women in Janitor I positions to risk dismissal in order to obtain the promotion to Janitor. The Board required anyone seeking to promote from Janitor I to Janitor to pass a reading examination. Of the women in Janitor I who initially took the examination, only one passed. The School Board advised the others that they would have to give up their current jobs as Janitor I in order to be eligible to take the test again. They could move temporar- ily into the position of a probationary Janitor, but if they failed the test a second time, they would be fired. (App. 35a-36a). Only one Janitor I opted to become a probation- ary Janitor. Second, if any of the women accepted the new Janitor position on a probationary basis, they would have to begin at the lowest pay level (the so-called “zero Step”) for Janitors. This meant that any woman who obtained that “promotion” would be subject to a severe reduction in her hourly pay. For example, petitioner Rosa Malveau, who made $10.90 as a Janitor I (Step 15), would have been paid only $5.82 an hour if she promoted to the position of ins Set 7 Janitor (Step 0). (App. 39a n.6). As a Janitor, Malveau would have worked 40 hours a week, rather than only 20 hours a week as a Janitor I. But her resulting salary would have risen from $218 a week only to $232 a week, an increase of only $14 for working an additional 20 hours. Unlike this pay rate reduction, the Board’s general promo- tion policy was to place a promoted employee at whatever pay Step would yield a rate 5% higher than his or her prior hourly rate. (App. 39a n.6). Malveau and fourteen other present or former Janitor I female employees® brought the current action, alleging that these two new rules were adopted to retaliate against them for having filed the original 1993 state court action. Such retaliation, their complaint alleged, violated section 704(a) of Title VII, and was a violation of the First Amendment actionable under 42 U.S.C. § 1983. They asserted, specifically, that a high ranking School Board official had explained the Board’s action by commenting, “That’s what you get for filing a lawsuit.” (App. 36a). The petitioners who were still in the Janitor I position objected to the test and the pass-or-be-fired rule. All of the petition- ers, including several who ultimately had become Janitors, attacked the salary reduction that was imposed under the Board’s plan. The district court dismissed both claims, holding that the retaliatory practices alleged by the petitioners did not violate Title VII. The court concluded that none of the alleged retaliatory acts were “ultimate employment decisions,” and thus none of them were forbidden by the anti-retaliation provision of Title VII. (App. 71a-73a). In a later ruling, the district court decided for similar reasons that the School Board’s actions were not actionable under section 1983. (App. 58a-60a). * One of the original named plaintiffs, Dorothy Banks, was subsequently dismissed as a plaintiff. 8 On appeal the Fifth Circuit reiterated that Circuit’s longstanding position that section 704(a) forbids only those retaliatory practices which constitute an “ultimate employment decision.” (App. 38a). The panel concluded that none of the retaliatory practices alleged by the Banks petitioners constituted ultimate employment decisions. (App. 39a-43a). The court of appeals concluded that a similar limitation was applicable where a government employee asserted that she had been retaliated against for actions protected by the First Amendment. Such retalia- tion was actionable, the court ruled, only if it constituted an ultimate employment decision or took the form of a reprimand or other disciplinary action. (App. 47a-49a). Because neither condition was satisfied, the Fifth Circuit concluded that petitioners’ section 1983 action also had to be dismissed. (App. 49a). REASONS FOR GRANTING THE WRIT I. THERE IS A WIDELY RECOGNIZED CONFLICT AMONG THE COURTS OF APPEALS REGARD- ING WHETHER FEDERAL LAWS PROTECTING EMPLOYEES FROM RETALIATION ACTUALLY PERMIT RETALIATION SO LONG AS IT DOES NOT TAKE THE FORM OF AN “ULTIMATE EM- PLOYMENT DECISION” . (1) This case concerns a well-established Fifth Circuit limitation on the protections afforded by the anti- retaliation provisions of federal law. Since 1995 the Fifth Circuit has insisted that these anti-retaliation provisions forbid only those acts of retaliation which constitute what that circuit labels “ultimate employment decisions.” Dollis v. Rubin, 77 F.3d 777, 782 (5th Cir. 1995). This is avowedly a “strict interpretation” of federal anti-retaliation statutes. (App. 9a). “Ultimate employment decisions” are limited to acts “such as hiring, granting leave, discharging, promot- ing and compensating.” 77 F.3d at 781-82. An employer may retaliate against an individual for protected activity eR eR eT 9 so long as the method of retaliation does not involve an ultimate employment decision. As the panel in the instant case observed, the Fifth Circuit since 1995 has identified a wide variety of retaliatory practices which it deems legal. (App. 8a n.2). On the Fifth Circuit’s view, section 704(a) permits as methods of retaliation practices which would be illegal under section 706(a)(2) of Title VII if taken because of the victim’s sex, race, or national origin. Mattern v. Eastman Kodak Co., 104 F.3d 702, 708-09 (5th Cir.), cert. denied, 522 U.S. 932 (1997). Mattern, for example, held that section 704(a) permits the use of harassment as a method of retaliation, 104 F.3d at 707-709; see Mota v. University of Tex. Houston Health Sci. Ctr., 261 F.3d 512, 521 (5th Cir. 2001) (retaliatory ostracism permitted). The court of appeals in Mattern did not question the jury’s finding in that case that the retaliatory harassment had caused the plaintiff $50,000 in damages. Similarly severe or pervasive harassment on the basis of gender or race, on the other hand, is indisputably unlawful. Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). Other types of retaliatory practices which the Fifth Circuit has held are not “ultimate employment decisions,” and which in that circuit can lawfully be used to retaliate against (or threaten) current or former employees, include refusing to consider an employee for a promotion,’ denying job training, deliberately changing a worker’s schedule so that she has to give up a second job,” moving a worker from the day to the night shift,’ giving the worker less * Mattern, 104 F.3d at 707-08. ® Dollis, 77 F.3d at 779, 782. © Watts v. Kroger Co., 170 F.3d 505, 508, 510 (5th Cir. 1999). ’ Hunt v. Rapides Healthcare Syst., 277 F.3d 757, 769 (5th Cir. 2002). 10 responsible or desirable duties,’ placing the worker in unlivable housing quarters, refusing to process grievances filed by the employee’ and threats of dismissal or physical injury.” The two cases involved in this petition illustrate the breadth of the exception which the Fifth Circuit has created to federal anti-retaliation protections. In Hernan- dez the Fifth Circuit did not question the jury’s finding that the retaliatory counterclaim had caused $20,000 in damage. But such a counterclaim was held to be a permis- sible method of retaliation because it was “dissimilar” to actions like demotions and dismissal. All of the retaliatory practices that had previously been held to constitute ultimate employment actions, the court noted, involved actions against current workers. (App. 8a n.2). “A counter- claim filed after the employee has already been discharged in no way resembles ... ultimate employment decisions.” (App. 9a). The petitioners in Banks alleged retaliatory discrimi- nation in the hourly wages they were offered if they promoted into the Janitor position. That did not constitute an ultimate employment decision, the court of appeals reasoned, because it reduced their compensation in a job they were seeking, not in the Janitor I position they already held. “[TJhe Board’s implementation of the new ® Foley v. University of Houston Syst., 324 F.3d 310, 313, 317 (5th Cir. 2003) (removal of plaintiff as chair of Education Division); Green v. v. Texas Dept. of Criminal Justice, 220 F.3d 389, 394 n.2 (5th Cir. 2000); Walker v. Thompson, 214 F.3d 615, 629 (5th Cir. 2000); Watts v. Kroger Co., 170 F.3d 505, 511 (5th Cir. 1999). * Thomas v. Texas Dept. of Criminal Justice, 220 F.3d 389, 395 n.2 (5th Cir. 2000). © Messer v. Meno, 130 F.3d 130, 140 (5th Cir. 1997). " Mattern, 104 F.3d at 705. 11 Janitor position ... did not constitute an ultimate em- ployment decision because it did not affect the Employees’ job duties, compensation, or level of benefits as Janitor I employees.” (App. 41a-42a) (Emphasis added).” The Board’s new reading requirement, particularly in combination with the requirement that the Banks peti- tioners risk dismissal to retake the test, had the undeni- able effect of deterring virtually all of the petitioners from continuing to seek promotion to Janitor. But even if that was the very purpose of the allegedly retaliatory scheme, it was entirely lawful. [A] decision made by an employer that only lim- its an employee’s opportunities for promotion ... does not qualify as an adverse action under Title VII. ... Even assuming that the Board told Em- ployees they would lose their jobs if they ac- cepted the probationary position but failed the retest, the Board’s decision ... was, at most, a mediate decision that could lead to an adverse employment decision for an applicant who failed that retest. Thus, the Board’s decision ... does not qualify as an ultimate employment deci- sion.... (App. 39a, 43a) (emphasis in original). The Fifth Circuit’s ultimate employment decision doctrine originated in Dollis and Mattern, both Title VII cases. The petitioners in both Hernandez and Banks asserted retaliation claims under section 704(a) of Title VII. The Fifth Circuit has since extended that limitation to claims under the Age Discrimination in Employment Act, and thus dismissed the ADEA retaliation claims in ” “Regardless of whether the conditions placed on the new Janitor position were unfavorable to employees seeking to be ‘promoted’ to it, the Board’s implementation of this new position, with its new salary structure ... did not constitute an ultimate employment decision under Title VII.” (App. 40a). 12 Hernandez. (App. 6a n.1). The Fifth Circuit has also held that the doctrine applies to claims under section 1981,” and thus dismissed the section 1981 claim in. Hernandez. In Banks the Fifth Circuit applied to section 1983 First Amendment claims a slightly modified version of this rule. Government workers retaliated against for activities protected by the First Amendment cannot obtain relief unless the retaliation either took the form of an ultimate employment decision or constituted “a reprimand, disci- plinary action, or transfer ‘equivalent to a demotion.’” (App. 48a).™ (2) The panel in Hernandez candidly recognized that the Fifth Circuit’s “ultimate employment decision” rule is in conflict with the manner in which most circuits inter- pret federal anti-retaliation laws. The majority conceded that “‘oJur court has analyzed the “adverse employment action” element [of a retaliation claim] in a stricter sense than some other circuits.’” (App. 7a) (quoting Burger v. Central Apartment Mgmt., 168 F3d 875, 878 (5th Cir. 1999)). The concurring judge similarly recognized: A majority of the federal circuits that have con- sidered the question have held that the protec- tion afforded by the anti-retaliation provision [of Title VII] extends to adverse employment actions that, while substantial, fall short of ultimate em- ployment decisions. .. . Indeed, the only other circuit that purports to follow the “ultimate em- ployment decision” rule, the Eighth Circuit, in practice applies something broader. (App. 10a-11a). " Foley v. University of Houston System, 324 F.3d 310, 316-17 and n.2 (5th Cir. 2003); Felton v. Polles, 315 F.3d 470, 486 (5th Cir. 2002). “ The Fifth Circuit has also applied the doctrine to retaliation claims under the Family and Medical Leave Act. Hunt v. Rapides Healthcare Syst., 277 F.3d 757, 768-69 (5th Cir. 2001). BE A ae; LW Hite eo aS 13 The, Fifth Circuit had earlier acknowledged the existence of that conflict. Our court has analyzed [section 704(a)] in a 7 stricter sense than some other circuits.... The j Eleventh Circuit has recently discussed the cir- cuit split surrounding the issue of whether Title VII's protection against retaliatory discrimina- : tion extends only to “ultimate employment deci- sions.” ... We are not alone, but we are in the minority. Burger v. Central Apartment Mgmt., 168 F.3d 875, 878 and n.3 (5th Cir. 1999). The courts of appeals are split on this issue. The Fifth and the Eighth Circuit have adopted the “ultimate employment decision” standard.... { Every other circuit to adciress the issue has held 7 that employment decisions falling short of ulti- mate employment decisions may suffice. Zaffuto v. City of Hammond, 308 F.3d 485, 492 (5th Cir. 2002). _ The Ninth Circuit has correctly described the coznplex nature of this inter-circuit conflict. The circuits are currentiy split as to what constitutes an adverse employment action [pro- hibited by section 704(a)].... [Circuits that de- fine adverse employment action brcadly are the First, Seventh, Tenth, Eleventh and D.C. Cir- cuits. An intermediate position is held by the Second and Third Circuits. The most restrictive view of adverse employment actions is held by the Fifth and Eighth Circuits. ... [T]he First, Seventh, Tenth, Eleventh and D.C. Circuits ... all take an expansive view of the type of actions that can be considered ad- verse employment actions.... The Second and Third Circuits hold an intermediate position within the circuit split. They have held that an adverse action is something that materially 1 14 affects the terms and conditions of employ- ment.... The Fifth and Eighth Circuits, adopt- ing the most restrictive test, hold that only “ultimate employment actions” such as hiring, firing, promoting and demoting constitute ac- tionable adverse employment actions. Ray v. Henderson, 217 F.3d 1234, 1241-42 (9th Cir. 2000).”° In Ray the Ninth Circuit adopted yet a fourth distinct position, urged by the EEOC, holding that section 704(a) forbids any practice “reasonably likely to deter employees from engaging in protected activity.” 217 F.3d at 1243. The Eleventh Circuit has also recognized the dis- agreement among the courts of appeals. There is a circuit split on this issue. While the Eighth Circuit has sided with the Fifth Circuit, ... the First, Ninth, and Tenth Circuits have all held that Title VII's protection against retalia- tory discrimination extends to adverse actions which fall short of ultimate employment deci- sions. ... We join the majority of circuits which have addressed the issue and hold that Title VII's protection against retaliatory discrimina- tion extends to adverse actions which fall short of ultimate employment decisions. * See Vasquez v. County of Los Angeles, 307 F.3d 884 (9th Cir 2002) (footnotes omitted): We have taken a broad view of adverse employment actions. There are a wide array of disadvantageous changes in the workplace that constitute adverse actions, including some lateral transfers. As noted in Ray v. Henderson, we are in accord with the First, Seventh, Tenth, Eleventh and D.C. Circuits, which also take an expansive view of adverse em- ployment actions, in holding that an action can be adverse even if it is not an ultimate employment decision like termi- nation. ... 15 Wideman v. Wal-Mart Stores, 141 F.3d 1453, 1456 (11th Cir. 1998). The Eleventh Circuit reiterated in four subse- | quent cases its rejection of the ultimate employment doctrine.” 7 The Fourth Circuit has also acknowledged the prob- lem, noting that even the position of the Eighth Circuit is not as extreme as that of the Fifth. The Fourth Circuit expressly rejected the rule in the Fifth Circuit. [T]he majority of circuits have either implicitly or explicitly rejected the “ultimate employment de- cision” standard in § 2000e-3 cases. ... [While the Eighth Circuit has ostensibly adopted the “ultimate employment decision” standard, it has consistently applied a broader standard... . [I]n Mattern ... the Fifth Circuit expressly held in- sufficient the kind of discriminatory changes in the terms, conditions, and benefits of employ- meat, which most other courts have recognized could constitute adverse employment action un- der § 2000e-3. ... But “ultimate employment de- cision” is not the standard in this circuit.... [Wle have expressly rejected distinctions, like those drawn by Mattern.... Von Gunten v. Maryland, 243 F.3d 858, 864-65 (4th Cir. 2001). % Shannon v. Bellsouth Telecommunications, 292 F.3d 712, 716 (11th Cir. 2002) (“[aldverse employment action does not refer only to ultimate employment decisions”); Bass v. Board of County Comm’rs, 256 F.3d 1095, 1118 (11th Cir. 2001); Gupta v. Florida Bd. of Regents, 212 F.3d 571, 587 (11th Cir. 2000); Graham v. State Farm Mutual Ins., 193 F.3d 1274, 1283 (11th Cir. 1999) (“The Eleventh Circuit recently joined the First, Ninth, and Tenth Circuits in holding that Title VII's protec- tion .. . extends to adverse actions which fall short of ultimate employ- ment decisicns.... Thus, actions such as undeserved negative job evaluations, demotions, disadvantageous transfer, or toleration of harassment are actionable under the retaliation clause.”). 16 In addition to the Fourth, Ninth and Eleventh Cir- cuits, which expressly noted the existence of this conflict in rejecting the Fifth Circuit’s ultimate employment doctrine, five other circuits have held that section 703(a) forbids retaliatory practices that are deemed lawful by the Fifth Circuit. In Wyatt v. City of Boston, 35 F.3d 13, 15-16 (1st Cir. 1994), the First Circuit held that section 703(a) forbids not only ultimate employment actions, but also “actions such as ... , disadvantageous transfers or as- signments, ... unwarranted negative job evaluations and toleration of harassment by other employees,” all practices which are legal forms of retaliation in the Fifth Circuit.” The First Circuit has repeatedly held that a significant reduction in work responsibilities can constitute action- able retaliation.” In Welsh v. Derwinski, 14 F.3d 85, 86 (1st Cir. 1994), the First Circuit rejected a contention that the anti-retaliation provision of the ADEA (also involved in Hernandez) was limited to discharge, demotion or failure to promote. “[MJany things, such as constant rudeness, . . . could have an adverse effect.” That court of appeals has found an asserted retaliatory act insufficient only where the “[pJlaintiff ha{d] not alleged that he was damaged in any way by the [employer’s] action.” Connell v. Bank of Boston, 924 F.2d 1169, 1179 (1st Cir. 1991). The Second Circuit requires only that the retaliatory act cause “a materially adverse change” in the plaintiff’s circumstances. Torres v. Pisano, 116 F.3d 625, 640 (2d That same list of unlawful retaliatory practices short of ultimate employment decisions is set out in Hernandez-Torres v. Intercontinental Trading, 158 F.3d 43, 47 (1st Cir. 1998), Gu v. Boston Police Dept., 312 F.3d 6, 14 (1st Cir. 2002), Marrero v. Goya of Puerto Rico, 304 F.3d 7, 23 (1st Cir. 2002), and White v. New Hampshire Dept. of Corrections, 221 F.3d 254, 262 (1st Cir. 2000). * Gu v. Boston Police Dept., 312 F.3d 6, 14 (1st Cir. 2002). 17 Cir.), cert. denied, 522 U.S. 997 (1997).” It agrees with the majority of circuits that the retaliatory practices barred by section 703(a) are not confined “simply to instances of discrimina- tion in pecuniary emolumen‘s”; diminution of du- ties, motivated by discriminatory animus, may also constitute an adverse employment action. Garber v, New York City Police Dept., 1998 WL 514222 *2 (2d Cir., June 12, 1998). “We recognize that, as in retalia- tion cases brought under Title VII, the ADEA does not define adverse employment action solely in terms of job termination or reduced wages, and that less flagrant reprisals by employers may indeed be adverse.... [An] employer can make [a] job undesirable without affecting money or benefits.” Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir. 1997). The Second Circuit has joined with the Seventh and Tenth circuits in holding that retaliatory harassment is forbidden, expressly rejecting the Fifth Circuit’s holding to the contrary in Mattern.” ” The Sixth Circuit utilizes the same standard. White v. Burling- ton Northern & Santa Fe Ry., 310 F.3d 443, 450-51 (6th Cir. 2002); Hollins v. Atlantic Co., 188 F.3d 652, 662 (6th Cir. 1999). ® Richardson v. New York State Dept. of Correctional Serv., 180 F.3d 426, 445-46 (2d Cir. 1999): Courts disagree about whether an employee suffers ‘adverse employment action’ for the purposes of a retaliation claim when, as Richardson alleges, her employer allows her co- workers to harass her because she engaged in protected ac- tivity. Compare Gunnell v. Utah Valley State College, 152 F.3d 1253, 1264 (10th Cir. 1998) ... , and Knox v. State of Indiana, 93 F.3d 1327, 1334 (7th Cir. 1996), ... with ... Mattern v. Eastman Kodak Co., ... We adopt the view that unchecked retaliatory co-worker harassment, if sufficiently severe, may ... satisfy the [requirements for a] retaliation prima facie case. The Second Circuit has also held that a retaliation claim can be based on a showing that a plaintiff’s “job duties and responsibilities (Continued on following page) 18 The Seventh Circuit has repeatedly held that a retaliatory act is actionable so long as it causes significant injury. There is nothing in the law of retaliation that re- stricts the type of retaliatory act that might be visited upon an employee who seeks to invoke her rights by filing a complaint. It need only be an adverse-employment action. ... No one would question the retaliatory effect of many actions that put the complainant in a more unfriendly working environment: actions like moving the person from a spacious, brightly lit office to a dingy closet, depriving the person of preciously available support services ... OF cutting off chal- lenging assignments. ... The law deliberately does not take a “laundry list” approach to retalia- tion, because unfortunately its forms are as var- ied as the human imagination will permit. Knox v. State of Indiana, 93 F.3d 1327, 1334 (7th Cir. 1996).” The Fifth Circuit, of course, has adopted just such a laundry list approach. were downgraded in retaliation, and his position was reduced to largely clerical tasks,” even though no loss of income was involved. Preda v. Nissho Iwai American Corp., 128 F.3d 789, 791 (2d Cir. 1997). 21 See Heuer v. Weil-McLain, 203 F.3d 1021, 1023 (7th Cir. 2000) (“since the very purpose of the anti-retaliation provision is to prevent Title VII claims from being deterred ... efforts to deter or prevent the filing of a claim can be actionable even if they take forms other than firing or demotion or other job action ... provided they are severe enough to amount to adverse employment actions.”); Smart v. Ball State Univ., 89 F.3d 437, 440 (7th Cir. 1996) (“[a]dverse employment action has been defined quite broadly in this circuit.”); Collins v. State of Illinois, 830 F2d 692, 702-03 (7th Cir. 1987) (“several courts have found an adverse job action, for purposes of discrimination or retalia- tion, in a lateral transfer even where the transfer did not result in a reduction of pay or benefits. Title VII does not limit adverse job action to strictly monetary considerations.”) (footnotes omitted). 19 The Tenth Circuit has also refused to limit the scope of the anti-retaliation provisions to certain types of prac- tices. “In recognition of the remedial nature of Title VII, the law in this circuit liberally defines adverse employ- ment action.” Jeffries v. State of Kansas, 147 F.3d 1220, 1232 (10th Cir. 1998). “[Wle have liberally interpreted the phrase ‘adverse employment action.’” Gunnell v. Utah Valley State College, 152 F.3d 1253, 1264 (10th Cir. 1998). “It would be illogical to define a section 704(a) employee liberally to include former employees and to simultane- ously define an adverse employment action narrowly by limiting it to those formal practices linked to an existing employee/employer relationship.” Berry v. Stevinson Chevrolet, 74 F.3d 980, 986 (10th Cir. 1996). The Tenth Circuit has held that retaliatory co-worker harassment is actionable under section 704(a), citing similar holdings in the First and Seventh Circuits, and rejecting holdings to the contrary in the Fourth, Fifth and Eighth Circuits. Gunnell, 152 F.3d at 1264-65 (10th Cir. 1998). Finally, the District of Columbia Circuit has held that the ADEA “does not limit its reach only to acts of retalia- tion that take the form of cognizable employment actions such as discharge, transfer or demotion.” Passer v. Amert- can Chemical Soc., 935 F.2d 322, 331 (D.C. Cir. 1991). As under Title VII, the plaintiff need only show that “the employer . . . engaged in conduct having an adverse impact on the plaintiff.” Id. As the Ninth Circuit observed in Ray, the inter-circuit conflict is a complicated one. The Eighth Circuit has on two occasions invoked the ultimate employment decision standard. Ledergerber v. Stangler, 122 F.3d 1142, 1144 (8th Cir. 1997); Manning v. Metropolitan Life Ins., 127 F.3d 686, 692 (8th Cir. 1997). But those Eighth Circuit decisions also use much broader language. E.g., Lederger- ber, 122 F.3d at 1144 (“materially significant disadvan- tage,” “materially altered the terms or conditions”); 20 Manning, 127 F.3d at 692 (“materially adverse employ- ment action.”) The Eighth Circuit has held actionable under section 704(a) a variety of practices that would not constitute ultimate employment decisions in the Fifth Circuit. Scusa v. Nestle U.S.A. Co., 181 F.3d 958, 969 (8th Cir. 1999) (change in job title, reduction in duties, inter- ference with employee’s ability to do her job); Manning v. Metropolitan Life Ins., 127 F.3d at 692 (negative job references); Smith v. St. Louis Univ., 109 F.3d 1261, 1266 (8th Cir. 1997); Kim v. Nash Finch Co., 123 F.3d 1046, 1060 (8th Cir. 1997) (reduction of job duties, lower per- formance evaluations, requirement of remedial training). Among the circuits expressly rejecting the ultimate employment action rule, there are also clear differences. The Second,” Sixth” and Eleventh” Circuits require that the impact of an adverse action be “material.” The Tenth Circuit, on the other hand, rejects that additional re- quirement.” In the Ninth Circuit, the touchstone for determining whether retaliation is actionable is whether that action might deter protected activities. The Seventh Circuit insists that that standard is too lax.” * E.g., Richardson v. New York State Dept. of Correctional Serv., 180 F.3d 426, 446 (2d Cir. 1999). * FE.g., White v. Burlington Northern & Santa Fe Ry., 310 F.3d 443, 450 (6th Cir. 2002). * F.g., Bass v. Board of County Comm'rs, 256 F.3d 1095, 1118 (11th Cir. 2001). * Jeffries v. State of Kansas, 147 F.3d 1220, 1232 (10th Cir. 1998) (“The Tenth Circuit has never recognized a ‘materiality’ requirement and we decline to do so here.”); Trujillo v. New Mexico Dept. of Correc- tions, 1999 WL 194151 *3 (10th Cir., April 8, 1999) (same). * Sweeney v. West, 149 F.3d 550, 556 (7th Cir. 1996). 21 Il. FEDERALAGENCIES IN BRIEFS FILED IN THE COURTS OF APPEALS ARE ADVOCATING CON- FLICTING INTERPRETATIONS OF THE LAW The inter-circuit conflict regarding the scope of section 704(a) of Title VII and section 4(d) of the ADEA is the result in part of a disagreement within the Executive Branch. The Department of Justice, as counsel for federal officials and agencies sued for retaliation, has repeatedly urged the appellate courts to adopt or apply the Fifth Circuit’s stringent ultimate employment decision require- ment.” The EEOC, on the other hand, has long disagreed with the Fifth Circuit’s rule, and has repeatedly filed amicus briefs in other cases urging courts of appeals to reject that rule.” In every instance in which the EEOC has filed such a brief outside the Fifth Circuit, the court of appeals has sustained the EEOC’s position. The conflict between the legal position of the Civil Division and that of the EEOC is not a mere oversight. The differences in the positions advanced by the briefs of those agencies is the result of an express and candid disagreement between the two agencies involved. The Solicitor General has not taken action to end the inconsis- tency in the positions being advanced in the courts of appeals by these vying federal agencies. In Ray v. Henderson, for example, the Ninth Circuit noted that “[tJhe government [as counsel for the defendant Postal Service] urges us to... adopt the Fifth and Eighth Circuit rule that only ‘ultimate employment actions’ such as hiring, firing, promoting and demoting constitute actionable adverse employment actions.” 217 F.3d at 1242. E.g., Ray v. Henderson, 217 F.3d 1234, 1242 (9th Cir. 2000); Welsh v. Derwinski, 14 F.3d 85, 86 (1st Cir. 1994); Appellee’s Brief, Hassman v. Caldera, No. 00-1104 (4th Cir.), pp. 14-17. * E.g., Von Guten v. Maryland, 243 F.3d 858, 861 (4th Cir. 2001); Berry v. Stevinson Chevrolet, 74 F.3d 980, 982 (10th Cir. 1996). 22 The Ninth Circuit declined to do so, instead accepting the EEOC’s interpretation of section 704(a). “Because the EEOC standard is consistent with our prior case law and effectuates the language and purpose of Title VII, we adopt it.” 217 F.3d at 1243. In Arnold v. United States Dept. of the Interior, 213 F.3d 193 (5th Cir. 2000), the Civil Division argued that the retaliation alleged in that case was lawful because “[t]his Court has held that a wide array of negative employment events do not satisfy [the ultimate employment decision] standard.”” In Welsh v. Derwinski, 14 F.3d 85, 86 (1st Cir. 1994), the Department of Justice unsuccessfully urged the First Circuit to limit the anti-retaliation provision of the ADEA to discharge, demotion, or failure to promote. In Von Gunten v. Maryland, 243 F.3d 868 (4th Cir. 2001), on the other hand, the EEOC successfully urged the Fourth Circuit to overturn a district court decision that had utilized the ultimate employment action doctrine. [T]he district court erroneously held that § 704 prohibits only “ultimate employment decisions” — “hiring, granting leave, discharging, promoting and compensating.” Section 704 contains no such limitation. ... [C]ase law ... confirms that con- duct short of an “ultimate employment decision” is actionable under § 704. We recognize that two circuits have adopted an “ultimate employment decision” standard. ... However, neither court attempts to explain how allowing employers to take retaliatory measures, short of an “ultimate employment decision,” against employees who assert. their Title VII rights would further the purposes of § 704. On the contrary, it would stifle employees’ willing- ness to complain of discrimination. * Brief for the Appellee, No. 99-10753 (5th Cir.), p. 30. 23 Brief of the EEOC as Amicus Curiae In Support of Plain- tiff, No. 00-1058, pp. 24-28. In Wideman v. Wal-Mart Stores, 141 F.3d 1453 (11th Cir. 1998), the Commission successfully opposed adoption of the Fifth Circuit’s rule. . The most natural reading of [section 704(a)] is that it prohibits- any form of discrimination against an individual for filing a charge. ... The term “ultimate employment decision” nowhere appears in Title VII....An employer who can re- taliate with impunity by using methods that fall short of an “ultimate employment decision” ... will inevitably discourage employees from par- ticipating in Title VII proceedings or opposing unlawful practices. Brief of the EEOC as Amicus Curiae, No. 97-2897, pp. 16-19. The EEOC has unsuccessfully urged the Fifth Circuit to abandon its stringent requirement: The federal anti-discrimination laws prohibit re- taliation for the filing of an EEOC charge even when the retaliation does not involve any form of employment action. This Court’s law to the con- trary is wrong.... [T]he ultimate employment decision doctrine finds no support in the statutes. Brief of the EEOC as Amicus Curiae In Support of Roger Bunch’s Petition for Initial Hearing En Banc, No. 99-11289 (5th Cir.), pp. 3, 7. The EEOC Compliance Manual expressly rejects both the Fifth Circuit’s “ultimate employment decision” doc- trine and the requirement in the Second, Sixth and Elev- enth Circuits that the retaliatory act cause a “material” harm. The EEOC instead endorses the Ninth Circuit's more liberal interpretation of the anti-retaliation provi- sions. Some courts have held that the retaliation provisions apply only to retaliation that takes the form of ultimate employment actions. Others have construed the provisions more broadly, but 24 have required that the action materially affect the terms, conditions, or privileges of employ- ment. The Commission disagrees with those deci- sions and concludes that such constructions are unduly restrictive. The statutory retaliation clauses prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity. Of course, petty slights and trivial annoyances are not actionable, as they are not likely to deter protected activity. More significant retaliatory treatment, however, can be challenged regardless of the level of harm. As the Ninth Circuit has stated, the degree of harm suffered by the individual “goes to the is- sue of damages, not liability.” This broad view of coverage accords with the primary purpose of the anti-retaliation provi- sions, which is to “[mJaintain[ ] unfettered access to statutory remedial mechanisms.” Regardless of the degree or quality of harm to the particular complainant, retaliation harms the public inter- est by deterring others from filing a charge. An interpretation of Title VII that permits some forms of retaliation to go unpunished would un- dermine the effectiveness of the EEO statutes and conflict with the language and purpose of the anti-retaliation provisions. EEOC Compliance Manual, ch. 8, pp. 13-15 (footnotes omitted). * http://www.eeoc.gov/docs/retal.html. 25 The EEOC has also objected to the requirement in the Sixth Circuit that the retaliatory action must be one which is “materially” adverse. In White v. Burlington Northern & Santa Fe Ry. Co., 310 F.3d 443 (6th Cir. 2002), reh. granted, 321 F.3d 1203 (6th Cir. 2003), the Sixth Circuit concluded that the retaliatory practices in that case, though unquestionably harmful, did not meet the “materi- ally” requirement. The Commission filed a brief urging rehearing en banc. There is no language in the anti-retaliation pro- vision of Title VII limiting its protection only to retaliation in the form of “ultimate” or “materi- ally adverse” employment action. ... [U]nder the panel’s interpretation of Title VII, an employer could openly use the threat of a retaliatory trans- fer or temporary suspension, for example, to dis- courage employees from filing a charge or opposing discriminatory conduct. Interpreting Ti- tle VII's anti-retaliation provision so as to permit forms of retaliation that could effectively deter individuals from engaging in what should be pro- tected activity thus places the panel’s decision at odds with the Supreme Court’s Robinson [v. Shell Oil Co., 519 U.S. 337 (1997)] decision. Brief of the EEOC as Amicus Curiae In Support of Plain- tiff-Appellee’s Suggestion for Rehearing En Banc, Nos. 00- 6780 and 01-5024, pp. 3-7 (emphasis in original). Similarly, the Commission has maintained that the retaliatory action need not be an employment action at all. In defendant’s view § 704(a) does not prohibit an employer from taking reprisals against employ- ees who file Title VII charges as long as the re- taliatory acts cannot be labeled as employment actions. This argument ignores the language of § 704(a) and, if accepted, would go a long way toward vitiating the protection Congress in- tended to afford to persons who assert claims under Title VII. 26 Section 704(a) broadly prohibits any “dis- crimination” against a covered individual “be- cause he has made a charge” under Title VII. This prohibition is not limited to any particular actions nor is it confined to any particular form of discrimination. ... The harm caused by retaliatory acts directed at individuals who file charges of discrimination does not depend on the particular method of re- taliation chosen by the employer. Brief of the EEOC as Amicus Curiae, Berry v. Stevinson Chevrolet, Nos. 93-1031, 1055, 1072, 1127 and 1354 (10th Cir.), pp. 14-17. The Justice Department’s litigation position regarding these anti-retaliation provisions is at odds as well with the Secretary of Labor’s interpretation of the anti-retaliation provision of the Energy Reorganization Act of 1974. 42 U.S.C. § 5851(a). That provision forbids retaliation against individuals for participating in proceedings under that Act or the Atomic Energy Act of 1954. In Connecticut Light & Power v. Secretary of Labor, 85 F.3d 89 (2d Cir. 1996), the Secretary insisted that section 5851(a) protected a former employee engaged in litigation with his ex-employer, where the employer had insisted on a gag order as a condition of settlement. The Second Circuit sustained the Secretary's view that section 5851(a) applied to an em- ployer’s post-employment litigation tactics. CL & P argues that the challenged activity did not discriminate against [the worker] with respect to his terms of employment as required by the statutory language, but rather arose from [his] post-termination litigation.... This argu- ment is specious.... As CL & P would have it, once an employment conflict degenerates to the point of formal litigation, the tactics employed by the litigants would be protected from the legal constraints imposed by the ERA. We dis- agree. ... 27 In this case, CL & P sought to impose ... improper conditions on the final terms of its em- ployment relationship with [the worker]. The fact that it did so under the cover of a litigation strat- egy is irrelevant. Therefore, we hold that the Secretary's interpretation is permissible. ... 85 F.3d at 95-96. Ill. THE DECISIONS BELOW ARE IN CONFLICT WITH THIS COURT’S DECISION IN ROBIN- SON V. SHELL OIL CO., 519 U.S. 337 (1997) The Fifth Circuit’s professedly “strict” interpretation of section 704(a) and other anti-retaliation provisions is inconsistent with this Court’s decision in Robinson v. Shell Oil Co., 519 U.S. 337 (1997). Robinson held that the general language of such statutes should be construed in light of “a primary purpose of antiretaliation provisions: maintaining unfettered access to statutory remedial mechanisms.” 519 U.S. at 848. That purpose is assuredly frustrated by the Fifth Circuit's ultimate employment decision doctrine, which the Department of Justice has correctly noted legalizes “a wide array of negative ... actions.” (See p. 22, supra). The EEOC has repeatedly maintained in the courts of appeals that the “ultimate employment decision” is incon- sistent with Robinson. In Von Gunten v. State of Maryland, the Commission insisted that “Robinson cannot be recon- ciled with [the ultimate employment decision doctrine] since post-employment retaliation against a former em- ployee would rarely, if ever, involve ‘hiring, granting leave, discharging, promoting or compensating.” Brief of the EEOC as Amicus Curiae In Support of Plaintiff, No. 06- 1058, pp. 24-28. In Gustafson, Inc. v. Bunch, 244 F.3d 144 (5th Cir. 2000), the Commission advanced the same objection. The EEOC’s broader interpretation of the anti- retaliation provisions, it insisted, 28 is the only one consistent with their fundamental purpose: to “maintain[] unfettered access to statutory remedial mechanisms.” Robinson uv. Shell Oil Co., 519 U.S. 337, 346 (1997). A[] Supreme Court case, ... issued after Mattern, confirms that this Court erred in restricting Title VII's anti-retaliation provision to “ultimate employment decisions.” In Robinson v. Shell Oil Co., 519 U.S. 337 (1997), the Court held that Title VII protects former employees from re- taliation. See id. at 346. Because an employer no longer has an employment relationship with a former employee, it is no longer in a position to make any “ultimate employment decisions” re- garding that individual. Indeed, in Robinson, the alleged retaliation consisted of a negative em- ployment reference. See id. at 337. A negative reference, standing alone is much like a negative performance evaluution. It is not, of itself, an employment action. Brief of the EEOC as Amicus Curiae In Support of Roger Bunch’s Petition for Initial Hearing En Banc, No. 99-11289 (5th Cir.), pp. 4, 9-10.” Even the Sixth Circuit's somewhat less stringent standard, the Commission maintains, is in conflict with Robinson. The majority's holding that Title VII does not prohibit employers from retaliating against individuals as long as the form of retaliation falls short of “materially adverse” or “ultimate” em- ployment actions conflicts with ... the Supreme | The Commission took the same position regarding Robinson in its amicus brief in Wideman v. Wal-Mart Stores. Brief of the EEOC as Amicus Curiae, No. 97-2897, pp. 17-20. 29 Court’s ... interpretation of the anti-retaliation provision. ... The [Sixth Circuit panel opinion in White v. Burlington Northern & Santa Fe Ry. Co., 310 F.3d 443 (6th Cir. 2002)]. . . does not explain how its decision can be reconciled with the purpose of the anti-retaliation provision - namely, to “‘mJaintain[] unfettered ac.ess to statutory re- medial mechanisms.” Robinson, 519 U.S. at 346. ... The panel does not discuss its ruling in light of the purpose of the anti-retaliation provi- sion, and it is difficult to see how the panel’s de- cision can be reconciled with that purpose, for its ruling permits an employer “to retaliate with im- punity” in “an entire class of acts.” Robinson, 519 U.S. at 346.... The panel’s decision ... also cannot be squared with the precise holding of the Robinson Court. In Robinson, the plaintiff sued his former employer, alleging that it had retaliated against him by giving’ a negative employment reference to a potential employer. There was no allegation that the former employer itself had made an ul- timate employment decision. The Supreme Court nevertheless allowed the plaintiff’s claim to pro- ceed after holding that former employees may challenge retaliatory actions. Brief of the EEOC as Amicus Curiae In Support of Plain- tiff’ Appellee’s Suggestion for Rehearing En Banc, Nos. 00- 6780 and 01-5024 (6th Cir.), pp. 3-7. 30 CONCLUSION For the above reasons, a writ of certiorari should issue to review the judgments and opinions of the Court of Appeals for the Fifth Circuit. Respectfully submitted, TIMOTHY B. GARRIGAN Stucky, GARRIGAN & CASTETTER 2803 North Street P.O. Box 631902 Nacogdoches, TX 75963-1902 (936) 560-6020 NANCY PICARD ROBEIN, URANN & LURYE 2540 Severn Avenue Suite 400 Metairie, LA 70002 (504) 885-9994 ERIC SCHNAPPER* UNIVERSITY OF WASHINGTON SCHOOL OF LAW 1100 N.E. Campus Parkway Seattle, WA 98105 (206) 616-3167 Counsel for Petitioners *Counsel of Record la Revised February 28, 2003 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Summary Calendar No. 01-41393 JUAN HERNANDEZ Plaintiff-Appellee v. CRAWFORD BUILDING MATERIAL COMPANY, doing business as Crawford’s Discount Carpet and Home and Floor Center Defendant-Appellant Appeal from the United States District Court for the Eastern District of Texas February 21, 2003 Before KING, Chief Judge, and SMITH and DENNIS, Circuit Judges. PER CURIAM: Defendant-Appellant Crawford Building Material Company (“Crawford”) appeals the final judgment entered by the District Court for the Eastern District of Texas ordering Crawford to pay Plaintiff-Appellee Juan Hernan- dez $20,000 in compensatory damages and $55,000 in punitive damages as a result of Hernandez’s claim that Crawford initiated a retaliatory employment action in 2a violation of Title VII. Crawford attacks both the sufficiency of the evidence presented to the jury and the ability of an -employee to base a Title VII retaliation claim on the employer’s filing of a counterclaim against that employee after the employee has been discharged. We conclude that the district court erred in denying Crawford’s motion for judgment as a matter of law on the question of whether the filing of a counterclaim could support an action for employment retaliation. We therefore reverse the district court and remand with instructions to dismiss the retalia- tion claim. I. FACTS AND PROCEDURAL BACKGROUND Hernandez, a Mexican immigrant, began working as a manual laborer at Crawford’s lumber yard around 1975. At some point, management at Crawford became dissatis- fied with Hernandez’s performance; he was transferred to Crawford’s carpet warehouse, where he received a pay raise concomitant with increased duties. Crawford contin- ued to be unhappy with Hernandez, though, and on June 17, 1999, Crawford fired Hernandez after he miscut a roll of carpet and failed to report the mistake. At that time, Hernandez was sixty-one years old. Hernandez filed a complaint with the Equal Employ- ment Opportunity Commission (“EEOC”) and with the Texas Commission on Human Rights. When neither commission would provide him with the relief requested, he sought and secured a “right-to-sue” letter from the EEOC. On October 13, 2000, Hernandez filed suit against Crawford, alleging that his termination violated the Age Discrimination in Employment Act (“ADEA”), 42 U.S.C. § 1981, and Title VII. 3a At some point while Hernandez was pursuing this suit, someone told one of Crawford’s owners that Hernan- dez had been stealing company property while he was employed at Crawford. The witness, Manual Guerra, was a painter who had done business with Crawford. He reported seeing building materials belonging to Crawford stacked behind Hernandez’s house; he also reported that Hernandez was selling that property. Hernandez allegedly told Guerra that Crawford paid him with building materi- als. Crawford answered Hernandez’s complaint on No- vember 3, 2000. In that answer, Crawford both denied the allegations of discriminatory discharge and raised a counterclaim for theft against Hernandez. In his answer to Crawford’s counterclaim, Hernandez denied having ever stolen building materials from Crawford. Then, on May 21, 2001, Hernandez supplemented his original complaint to allege that Crawford’s counterclaim amounted to a retalia- tory employment action in violation of Title VII, the ADEA, and § 1981. Hernandez moved for summary judgment on the counterclaim. The district court granted that motion, finding that Crawford could not prove specifically, or even generally, what was stolen or that Hernandez stole it. Most of the allegations of theft concerned items that had gone missing six or seven years earlier; at that time, Crawford had not investigated the problem. As a result, Crawford now simply lacked sufficient evidence to demon- strate to a jury that Hernandez had stolen Crawford's property. At trial, the jury instruction covering Hernandez’s retaliation claim included the following statements: 4a : The Plaintiff also brings causes of action for retaliation, in violation of Title VII, the ADEA, and § 1981. These laws prohibit an employer from retaliating against a former employee for filing a discrimination lawsuit. Here, Plaintiff Hernandez contends that Defendant Crawfords made allegations and the claim for theft to re- taliate against Plaintiff for having brought this lawsuit and pursuing his claims of discrimina- tion against this Defendant. To prevail on his retaliation claim, Plaintiff Hernandez must show by a preponderance of evidence his good faith opposition to discrimina- tion and bringing this lawsuit was a substantial or motivating factor for a decision by Defendant Crawfords to make a theft allegation and coun- terclaim. The jury found, in two special interrogatories, that Craw- ford had not discharged Hernandez because of his age or because of his Mexican heritage. However, the jury did find that Crawford’s filing of the counterclaim constituted a retaliatory employment action. The jury awarded $20,000 in compensatory damages (for Hernandez’s claimed mental anguish and shame as a result of being branded a thief) and $55,000 in punitive damages. Crawford filed motions for a new trial and for judg- ment as a matter of law. In his motion for a new trial, he argued that there was insufficient evidence to support the jury’s findings: (1) that Crawford had no permissible basis for filing the theft counterclaim; (2) that Hernandez had suffered actual damages as a result of the counterclaim; and (3) that Crawford had acted in a manner sufficient to warrant an award of punitive damages. In his motion for judgment as a matter of law, Crawford argued that the 5a filing of a counterclaim was not the kind of “ultimate employment decision” upon which a claim of retaliation may be based and, alternatively, that Hernandez had not proven that Crawford had a retaliatory motive in filing the counterclaim. The district court denied both motions. The court found that Hernandez had presented sufficient evidence to support the jury’s findings on the retaliation, causation, and damages questions. As for the question of whether the filing of a counterclaim could support a retaliation claim, the district court found that, by failing to object to the jury charge on the law of retaliation, Crawford had not pre- served the issue for later challenge. As a result, the dis- trict court reviewed the question only for plain error; finding the issue debatable within the federal district courts in Texas, the district court concluded that no plain error had occurred. Crawford timely appealed, raising two general classes of appealable issues. First, Crawford reargues that the filing of a counterclaim is not an “ultimate employment decision” sufficient to support a claim of employer retalia- tion. Second, Crawford asserts that there was insufficient evidence to support the jury’s findings that: (1) Crawford had a retaliatory motive in filing the counterclaim; (2) the filing of the counterclaim caused any injury to Hernandez; (3) Hernandez was entitled to damages based on his mental anguish; (4) in the absence of actual damages, punitive damages were proper; and (5) Crawford’s conduct was sufficiently egregious to support an award of punitive damages. 6a Il. FILING A COUNTERCLAIM AS AN “ULTIMATE EMPLOYMENT DECISION” FOR PURPOSES OF TITLE VII RETALIATION CLAIMS Crawford contends that the jury impermissibly based its verdict on a finding that the filing of a counterclaim constituted a retaliatory action. Crawford argues that an employer’s filing of a counterclaim cannot constitute the “ultimate employment decision” necessary to support a finding of retaliatory employment action under Title Vil and the ADEA in the Fifth Circuit.’ The district court denied this ground, in part because Crawford had failed to object to the jury charge on this issue. Because Crawford failed to preserve the issue, it is reviewed only for plain error. Hartsell v. Dr. Pepper Bot- tling Co., 207 F.3d 269, 272 (5th Cir. 2000). To overturn a verdict for plain error in the jury instructions, we must find that the instructions made an obviously incorrect statement of law that was “probably responsible for an incorrect verdict, leading to substantial injustice.” Tomp- kins v. Cyr, 202 F.3d 770, 784 (5th Cir. 2000). Our precedents create a three-part test that a plaintiff must satisfy in order to prove a retaliation claim: “(1) the employee has engaged in activity protected by Title VII; (2) the employer took adverse employment action against the employee; and (3) a causal connection exists between that protected activity and the adverse employment 1 This court has held that analysis of retaliation claims is the same for ADEA claims as it is for Title VII claims. Sherrod v. Amer. Airlines, Inc., 132 F.3d 1112, 1122 (5th Cir. 1998). Therefore, for purposes of this . discussion, we will discuss only Hernandez’s Title VII claim. 7a action.” Burger v. Cent. Apartment Mgmt., Inc., 168 F.3d 875, 878 (5th Cir. 1999) (citing Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir. 1997)). “Our court has analyzed the ‘adverse employment action’ element in a stricter sense than some other circuits.” Id. at 878. In the Fifth Circuit, only an “ultimate employment decision” by an employer can form the basis for liability for retaliation under Title VII. Mattern, 104 F.3d at 705. We have said that typical examples of ultimate em- ployment decisions that can support a claim of retaliation include “hiring, granting leave, discharging, promoting, and compensating.” Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir. 1997). This understanding is grounded in the statutory language of Title VII. While retaliation cases are specifically covered by Section 2000e-3(a), we have looked to Section 2000e-2(a)(1), which makes it unlawful “to fail or refuse to hire or to discharge any individual, or other- wise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment,” to determine which employment decisions can support a retaliation cause of action. In Mattern, we concluded that the kinds of “ultimate employment deci- sions” that will support a finding of retaliatory conduct must be similar to the kinds of conduct described in Section 2000e-2(a)(1). Mattern, 104 F.3d at 709; id. at 707 (“Title VII was designed to address ultimate employment decisions, not to address every decision made by employers that arguably might have some tangential effect upon those ultimate decisions.”) (quoting Dollis, 77 F.3d at 781- 82). A review of our prior Title VII jurisprudence confirms 8a that we have consistently refused to recognize retaliation claims that are dissimilar to the prohibited activities of § 2000e-2(a)(1).” - * Activities meeting the standard of “ultimate employment decisions” include: Green v. Adm’rs of the Tulane Educ. Fund, 284 F.3d 642, 658 (5th Cir. 2002) (demotion); Fierros v. Tex. Dep’t of Health, 274 F.3d 187, 194 (5th Cir. 2001) (denial of pay increase); Mota v. Univ. of Tex. Houston Health Sci. Ctr., 261 F.3d 512, 521 (5th Cir. 2000) (discon- tinuation of employee’s stipend, denial of request for paid leave, denial of request to extend unpaid leave, and termination); Evans v. City of Houston, 246 F.3d 344, 353 (5th Cir. 2001) (demotion); Thomas v. Tex. Dep't of Criminal Justice, 220 F.3d 389, 394 (5th Cir. 2000) (failure to promote employee); Rubinstein v. Adm’rs of the Tulane Educ. Fund, 218 F.3d 392, 402 (5th Cir. 2000) (denial of pay raise); Vadie v. Miss. State Univ., 218 F.3d 365, 374 (5th Cir. 2000) (refusal to consider employee for another position after closing employee’s department); Shackelford v. Deloitte & Touche, 190 F.3d 398, 407 (5th Cir. 1999) (termination); Sharp v. City of Houston, 164 F.3d 923, 933 n.21 (5th Cir. 1999) (constructive demotion). Activities which are not “ultimate employment decisions” include: Green, 284 F.3d at\657-58 (changing locks, restructuring office proce- dures, clarifying job duties, and reprimands); Mota, 261 F.2d at 521 (removal of employee’s name from letterhead, ostracism by coworkers, and loss of some job duties); Thomas, 220 F.3d at 389 n.2 (assignment to less desirable shift and formal discipline); Walker v. Thompson, 214 F.3d 615, 629 (5th Cir. 2000) (removal from duties on particular account, timing of short breaks during the day, and failure to receive $2.89 allegedly owed for unplanned overtime); Watts v. Kroger Co., 170 F.3d 505, 511-12 (5th Cir. 1999) (change of work schedule and request that employee perform new job tasks); Burger, 168 F.3d at 879 (denial of transfer request to an identical position at a different job site); Webb v. Cardiothoracic Surgery Assocs. of N. Tex., 139 F.3d 532, 540 (5th Cir. 1998) (rude treatment by employer); Messer v. Meno, 130 F.3d 130, 140 (5th Cir. 1997) (monitoring of employee’s conversations, criticism of work and conduct, and refusal to consider employee’s input in business decisions); Mattern, 104 F.3d at 708 (threats of potential dismissal, verbal reprimands, and low evaluations that could lead to missed pay increases). 9a District courts in other circuits have held that the filing of a suit or counterclaim can support a lawsuit premised on a theory of retaliatory employment action. See Beckham v. Grand Affair of N.C., Inc., 671 F. Supp. 415, 419 (W.D.N.C. 1987) (finding retaliation where employer instituted criminal prosecution of former employee who filed claim with EEOC); EEOC uv. Va. Carolina Veneer Corp., 495 F. Supp. 775 (W.D. Va. 1980) (finding retaliation where employer filed defamation suit against employee based upon statements made by employee to EEOC). However, this circuit has taken a more skeptical view, remarking that “[i]t is not obvious that counterclaims or lawsuits filed against a Title VII plaintiff ought to be cognizable as retaliatory conduct under Titie VII. After all, companies and citizens have a constitutional right to file lawsuits, tempered by the requirement that the suits have an arguable basis.” Scrivener v. Socorro Indep. Sch. Dist., 169 F.3d 969, 972 (5th Cir. 1999). While there are no reported decisions from this circuit dealing directly with this question,’ we think it is clear that, given our strict interpretation of retaliation claims, an employer’s filing of a counterclaim cannot support a retaliation claim in the Fifth Circuit. A counterclaim filed after the employee has already been discharged in no way resembles the ultimate employment decisions described in * There are two unreported Texas district court cases that have considered this question as well; the courts reached different conclu- sions. See Gustafson, Inc. v. Bunch, 1999 WL 304560 (N.D. Tex. 1999) (filing of suit by employer after employee was discharged did not constitute an “ultimate employment decision”); Shafer v. Dallas County Hosp. Dist., 1997 WL 667933 (N.D. Tex. 1997) (filing of counterclaim supports Title VII retaliation action). 10a Section 2000e-2(a)(1). We find that the district court committed plain error in instructing the jury that Craw- ford’s counterclaim could support a finding of retaliatory employment action. This instruction was an obvious misstatement of the law that led to substantial injustice for Crawford. This claim should not have gotten to the jury in the first place.‘ IV. CONCLUSION We REVERSE the district court’s decision denying Crawford’s motion for judgment as a matter of law and REMAND with instructions to dismiss Hernandez’s retaliation claim. Costs shall be borne by Hernandez. DENNIS, J., Circuit Judge, concurring: I join fully in the per curiam opinion as a correct disposition in accord with our precedents. I write sepa- rately only to urge that the en banc court should recon- sider our rule that “only an ‘ultimate employment decision’ by an employer can form the basis for liability for retalia- tion under Title VII.” Opinion at 7 (citing Mattern v. Eastman Kodak Co., 104 F.3d 702 (5th Cir. 1997)). This rule is inimical to both the text and the purpose of the anti-retaliation provision of Title VII, 42 U.S.C. § 2000e- 3(a). See Mattern, 104 F.3d at 710 (Dennis, J., dissenting). A majority of the federal circuits that have considered the * Because we find Hernandez’s retaliation claim uncognizable under Fifth Circuit law, we do not need to discuss his claims that the evidence presented at trial was insufficient to support the jury’s verdict. lla question have held that the protection afforded by the anti-retaliation provision extends to adverse employment actions that, while substantial, fall short of ultimate employment decisions. See Von Gunten v. Maryland, 243 F.3d 858, 865 (4th Cir. 2001); Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1456 (11th Cir. 1998); Knox v. State of Indiana, 93 F.3d 1827, 1334 (7th Cir. 1996); Berry v. Sievinson Chevrolet, 74 F.3d 980, 984-86 (10th Cir. 1996); Wyatt v. City of Poston, 35 F.3d 18, 15-16 (1st Cir. 1994); Yarizoff v. Thome:s, 809 F.2d 1371, 1375 (9th Cir. 1987). Indeed, the only other circuit that purports to follow the “ultimate employment decision” rule, the Eighth Circuit, in practice applies something broader. See e.g., Manning v. Metro. Life Ins. Co., 127 F.3d 686, 692 (8th Cir. 1997) (defining ultimate employment decision to include a “tangible change in duties or working conditions that constituted a material employment disadvantage”). sl ae 12a IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS LUFKIN DIVISION JUAN HERNANDEZ, § Plaintiff § i Civil Action No. CRAWFORD BUILDING 5 9:00cv252 MATERIAL COMPANY, § Defendants § ORDER Before the Court are Defendant’s Motion for New Trial (Doc #41), Defendant’s Motion for Judgment as a Matter of Law (Doc. #42), Memoranda in Support (Docs. #43 and #44), and Plaintiff’s Responses (Docs. #46 and #47). This case was tried to a jury on September 17, 2001 through September 20, 2000 [sic]. The jury returned a verdict for Plaintiff on his claim that Defendant retaliated against him by claiming he committed theft. The jury subse- quently awarded Plaintiff compensatory and punitive damages in the amount of $20,000 and $55,000, respec- tively. The Court entered a Final Judgment in accordance with the jury’s findings on October 5, 2001. Defendant claims that the evidence does not support the jury findings in this case: (1) on the issue of retaliation; (2) actual damages resulting from the alleged retaliation by Defen- dant; and (3) punitive damages as found by the jury. Based on the parties’ filings and the applicable law, the Court rules as follows. 13a I. Motion for Judgment as a Matter of Law A. Sufficiency of the evidence Rule 50(a) allows the court to take a case away from the jury by entering judgment as a matter of law against a party if there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on a particular issue. FED. R. CIV. P. 50(a). Title VII makes it unlawful for an employer to retaliate against an employee because [that employee] has opposed any practice made an unlaw- ful employment practice by this subchapter. 42 ¥.S.C. § 2000e-3(a). To prevail on a Title VII retaliation claim, a plaintiff must successfully prove that: (1) the employee has engaged in activity protected by Title VII; (2) the employer took adverse action against the employee; and (3) a causal connection exists between that protected activity and the retaliatory action. Mattern v. Eastman Kodak Co., 104 F.3d 702, 705 (5th Cir. 1997). Former employees may bring suit against former employers for post-employment actions allegedly taken in retaiiation for seeking lawful vindica- tion of their civil rights. Robinson v. Shell Oil Co., 519 U.S. 337, 346, 117 S. Ct. 843, 849, 136 L.Ed.2d 808 (1997). The Fifth Circuit holds that the McDonnell Douglas burden- shifting framework applies in Title VII retaliation cases. See Rios v. Rossotti, 252 F.3d 375, 380 (5th Cir. 2001). As the Supreme Court explained in Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148, 120 S. Ct. 2097, 147 L.Ed.2d 105 (2000), a plaintiff must present “sufficient evidence” for a jury to reasonably conclude that the employer’s justification is unworthy of credence and is a pretext for discrimination or retaliation. See Crawford v. Formosa Plastics Corp., 234 F.3d 899, 902-03 (5th Cir. 2000). l4a Plaintiff had the burden of proving that the retalia- tory counterclaim would not have been filed “but for” the pursuit of his discrimination claims in court. Seaman v. CSPH Inc., 179 F.3d 297 (5th Cir. 1999).’ A retaliatory act’s proximity in time to, protected activity can lead to an . inference that a causal connection exists. Evans v. City of Houston, 246 F.3d 344, 345 (5th Cir. 2001); Shirley v. Chrysler First. Inc., 970 F.2d 39 (5th Cir. 1992). Plaintiff established that he was terminated on June 17, 1999, that he filed a charge with the Texas Commission on Human Rights on or about September 10, 1999, and that he ‘ Defendant maintains that a counterclaim does not constitute an adverse employment action as required for a claim of retaliation in the Fifth Circuit. However, the Court notes that Defendant, states that the jury was properly charged. The Court instructed the jury that; “To prevail on his retaliation claim, Plaintiff Hernandez must show by a preponderance of the evidence his good faith opposition to discrimina- tion and bringing this lawsuit was a substantial or motivating factor for a decision by Defendant Crawford’s to make a theft allegation and counterclaim.” Defendant failed to object to the charge at the time and asserts it now for the first time. Since Defendant failed to preserve the issue, the Court need only review it for plain error. See Hartsell v. Dr. Pepper Bottling Co., 207 F.3d 269, 272 (5th Cir. 2000). Citing Scrivner v. Socorro Indep. Sch. Dist., 169 F.3d 969 (5th Cir. 1999), Defendant looks to the court’s language that it is not obvious to the court that counter- claims filed against a Title VII plaintiff ought to be cognizable as retaliatory conduct under Title VII. However, while not finding the counterclaim in that case constituted retaliation, the court did not close the door that a counterclaim could violate Title VII. The only reason the counterclaim in Scrivner was not retaliation, according to the court, was because it was filed, not by the employer, but by an employee in his individual capacity, so that his conduct could not attributable [sic] to the employer. Here, Crawfords, the employer, did file the counterclaim, an important distinction. See also Shafer v. Dallas Co. Hosp. Dist., 1997 US. Dist. LEXIS 23451 (N.D. Tex. Oct. 22, 1997), (finding it “well- established” that filing a retaliatory lawsuit or counterclaim may be actionable under TITLE VII). The Court finds no plain error occurred. 15a received his right to sue letter from the EEOC on or about July 21, 2000. The parties stipulated that on or about August 2, 2001 [sic], Plaintiff’s attorney wrote to Defen- dant and advised them that Plaintiff Hernandez intended to file a lawsuit. Defendant claims that the jury could not possibly have found a causal connection between the protected activity and the filing of the counterclaim because the latter was not filed until November 3, 2000, over a year after Plaintiff made his charge of illegal employment discrimination. However, the statement by Manuel Guerra, relied on by Defendant as the basis for its counterclaim, was made August 2, 2000, within two weeks after Plaintiff’s receipt of his right to sue letter and during an investigation made by Defendant of the incident in light of the noticed impending lawsuit. Plaintiff filed his complaint on October 13, 2000, and a little over a month later, Defendant filed the counterclaim. Plaintiff presented sufficient evidence that a reasonable juror could infer that Defendant's filing a counterclaim of theft against him was causally connected and in retaliation for Plaintiff’s pro- tected activities. As the burden then shifted to Defendant to establish a nondiscriminatory reason for filing the counterclaim, Crawford asserted that it inadvertently discovered infor- mation regarding the alleged theft during the course of the litigation. At this juncture, Defendant insinuates that the jury’s review of the evidence at trial became a question of credibility of the witnesses, particularly Guerra’s testi- mony relating to his statement, and argues that the jury is not authorize. to draw conclusions in the absence of any evidence. While it is well settled that “disbelief of a wit- ness’s testimony is not sufficient to carry a plaintiff’s burden,” Travelhost. Inc. v. Blandford, 68 F.3d 958, 965 16a (5th Cir. 1995), the Court finds Plaintiff presented enough evidence that the jury could infer discriminatory pretext in filing the counterclaim. Other Crawford employees, including Sam Medley and Sam Roberts, also testified that they had “suspected” Plaintiff of stealing long before they had the “proof’ supplied by the statement of Manuel Guerra, yet further testified that they did not act on their earlier suspicions by notifying the police or even confront- ing the Plaintiff. The jury could reasonably infer from their statements that Defendant treated their suspicions as a nonissue until Plaintiff's filing of the lawsuit. The owner, Joan Williams, testified that they would not have brought the counterclaim had Plaintiff Hernandez not brought his lawsuit, and continued that she had in fact experienced a 25-year history of honesty and trust with Plaintiff. Morecver, even Manuel Guerra testified on cross- examination that he did not have any reason to believe any of the materials in the possession of Plaintiff were stolen. The Court finds that Plaintiff presented sufficient evidence that would allow the jury to reasonably conclude that Defendant’s proffered reason was false and a pretext to retaliate against Hernandez. Accordingly, the evidence supports a finding that “but for” Hernandez’s protected activities, Defendant would not have filed a counterclaim against him, and the findings of the jury stand. B. Actual Damages Defendant further challenges the award of actual damages. Referring to the testimony regarding Plaintiff’s sleeplessness, anxiety and worry following his termina- tion, Defendant points out that none of the evidence relating to Plaintiff’s mental anguish over his termination is relevant to the retaliation claim. While mental, anguish 17a requires a “high degree” of mental pain and distress “more than mere worry, anxiety, vexation, embarrassment, or anger,” [] recent Fifth Circuit cases have upheld a Title VII retaliation award, in the very amount awarded to Plaintiff, for mental anguish where the testimony con- cerned “stress, sleeplessness, betrayal, and shame.” Oden v. Oktibbeha County, Mississippi, 246 F.3d 458 (5th Cir. 2001), cert denied, Oden v. Oktibbeha County, Mississippi, 2001 WL 744067 (U.S. Oct. 09, 2001). See also Giles uv. General Electric Co., 245 F.3d 474, 488 (5th Cir. 2001) (finding that testimony of a plaintiff alone may be suffi- cient to support an award of mental damages for sleep- lessness, anxiety, stress, lost prestige, humiliation, apparent despondence, depression, down, and discour- aged). Likewise, though Defendant minimizes it, Hernan- dez and his daughter both presented similar evidence regarding the effects of the filing of the counterclaim; namely, Hernandez’s continued worry, sleeplessness, changed eating habits, depression and shame that contin- ued until, and was evidenced during, his testimony at trial, and his worry of what effect the theft allegation might have on any future employment. Like Oden and Giles, the Court concludes that Plaintiff’s evidence sup- ports the award for mental anguish resulting from the filing of Defendant’s retaliatory counterclaim. C. Punitive Damages Defendant further challenges the award of punitive damages. While Defendant concedes that the jury's verdict on punitive damages is not excessive in a numerical sense or in proportion to the amount of actual damages found, it claims that no punitive damages can be awarded in the absence of actual damages. The Court having found that 18a Plaintiff proved compensable mental anguish sufficient to recover actual damages, Defendant next urges that there is insufficient evidence upon which the jury could have relied to justify an award of punitive damages. ; Defendant cites Transportation Ins. Co. v. Moriel, 879 S.W.2d 10 (Tex. 1996), a Texas case, for the proposition that punitive damages are justified only when there is evidence of “malicious, intentional, fraudulent, or grossly negligent conduct.” Id. at 18. However, as Defendant notes, Moriel is opposite in that it was predicated on a finding of gross negligence rather than intentional con- duct. Here, the jury was charged, and Defendant does not contest the jury charge, that the jury was permitted to award punitive damages if it found that Crawfords acted with “malice or willfulness or with callous and reckless indifference to the rights of others.” (Emphasis added). Title VII provides for the imposition of punitive damages in intentional discrimination cases is [sic] an employer acts with malice or reckless indifference to an employee’s protected right. Williams v. Treader Publishing Co., 218 F.3d 481, 487 (5th Cir. 2000). Moreover, the Supreme Court and Fifth Circuit have rejected the theory that a level of egregiousness if [sic] necessary in awarding punitive damages under Title VII. See Kolstad v. American Dental Assoc., 527 U.S. 526, 119 S. Ct. 2118 (1999); Def- fenbaugh-Williams v. Wal-Mart Stores, Inc., 188 F.3d 278, 281-82 (5th Cir. 1999). Plaintiff presented evidence show- ing the counterclaim was filed in unlawful retaliation for the exercise of his statutory rights. The jury found the filing of the counterclaim to be willful and intentionally discriminatory, sufficient in this case to support the award of punitive damages. 19a II. Motion for New Trial Pursuant to Rule 59, Defendant moves the Court for a new trial for the same arguments made in its Motion for Judgment as a Matter of Law. See FED. R. CIV. P. 59(a). Under Rule 59, a district court enjoys considerable discre- tion in granting or denying a motion for new trial. Laves- pere v. Niagara Mach. & Tool Works. Inc., 910 F.2d 167, 173 (5th Cir. 1990). For the reasons set forth above, the Court finds Defendant’s arguments to be unpersuasive. Ill. Conclusion The Court finds that Plaintiff presented sufficient evidence that would allow the jury to reasonably conclude that Defendant unlawfully retaliated against Plaintiff. In addition, the Court finds Plaintiff presented sufficient evidence of the effects of the unlawful retaliation to reasonably support a jury award of actual damages in his favor. Further, the Court finds that the Plaintiff proved that the retaliation in the filing of the counterclaim was willful and intentional sufficient to justify the jury’s award of punitive damages. Accordingly, Defendant’s Motion for ~ Judgment on the Pleadings is hereby DENIED. Defen- dant’s Motion for New Trial is likewise DENIED. It is so ORDERED. SIGNED this 27th day of October, 2001. John Hannah, Jr. United States District Judge 20a IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS LUFKIN DIVISION JUAN HERNANDEZ, § Plaintiff ; Vv. § § CIVIL NO. 9:00-cv-252 CRAWFORD BUILDING MATERIAL COMPANY, ; Defendant § ORDER Before the Court are Plaintiff/Counter-Defendant Juan Hernandez’ Motion for Partial Summary Judgment (Doc. #19), Defendant/Counter-Plaintiff’s Response to Plaintiff/Counter-Defendant Juan Hernandez’s Motion for Partial Summary Judgment (Doc. #20), Affidavit (Doc. #21), and Memorandum of Points and Authorities in Support (Doc. #22), and Plaintiff/Counter-Defendant’s Reply (Doc. #23). Based on the parties’ filings and the applicable law, the Court rules as follows. I. Background Juan Hernandez (“Hernandez”), began working for Crawford Building Materials Company (“Crawfords”), in 1975. His principle job was in the lumberyard, where he loaded and unloaded trucks, stacked wood, and performed other various jobs. During this time, Hernandez not only worked at Crawfords’ place of business, but also worked on company time at the home and ranch of its owners, per- forming general maintenance work there. In the almost 25 2la years that Hernandez worked for Crawfords, he made little over minimum wage and supplemented his income with overtime work. In 1998, Crawfords transferred Hernandez to the carpet warehouse, where he was in charge of carpet cutting and security. Hernandez claims that employees of Crawfords had openly discussed that Plaintiff was “too old” to do the heavy work required in the lumberyard. Crawfords alleges that Hernandez’s work was increasingly unsatisfactory, and when Hernandez miscut a carpet square, Crawfords fired him. Hernandez filed suit against Crawfords, alleging age as well as national origin discrimination, as Plaintiff is an Hispanic born in Mexico.’ Crawfords denies any discrimi- natory actions and maintains that Hernandez was fired because his work became unsatisfactory over the years. Crawfords, upon information received during discovery, subsequently counterclaimed that Hernandez has taken building materials, tools, equipment, and supplies from it in violation of the Texas Penal Code and the Texas Theft Liability Act, an allegation that Hernandez denies and that forms the basis of this motion for summary judgment. II. Summary Judgment Standard A motion for summary judgment should be granted if the record, taken as a whole, “together with the affidavits, if any, show that there is no genuine issue as to any ’ Hernandez later amended his complaint to add a claim of retaliation based on Crawfords’ filing a counterclaim for theft. 22a material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 323-25, 106 S. Ct. 2548, 91 L. Ed.2d 265 (1986); Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). The Supreme Court has interpreted the plain language of Rule 56 as mandating “the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322, 106 S. Ct. at 2552. The party moving for summary judgment, the movant, “must ‘demonstrate the absence of a genuine issue of material fact,’ but need not negate the elements of the nonmovant’s case.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (quoting Celotex, 477 US. at 323-25, 106 S. Ct. at 2553). “The movant accomplishes this by informing the court of the basis for its motion, and by identifying portions of the record which highlight the absence of genuine factual issues.” Rizzo v. Children’s Worl [sic] Learning Ctrs., Inc., 84 F.3d 758, 762 (5th Cir. 1996) (citing Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir. 1992)). If the moving party “fails to meet this initial burden, the motion must be denied, regardless of the nonmovant’s response.” Little, 37 F.3d at 1075. If the movant meets this burden, Rule 56 requires the opposing party to go beyond the pleadings and to show by affidavits, depositions, answers to interrogatories, admis- sions on file, or other admissible evidence that specific facts exist over which there is a genuine issue for trial. EEOC v. Texas Instruments, Inc., 100 F.3d 1173, 1180 (5th Cir. 1996); Wallace v. Texas Tech. Univ., 80 F.3d 1042, 23a 1046-47 (5th Cir. 1996). The nonmovant’s burden may not be satisfied by argument, conclusory allegations, unsub- stantiated assertions, metaphysical doubt as to the facts, or a mere scintilla of evidence. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 585, 106 S. Ct. 1348, 89 L.Ed.2d 538 (1986); Wallace, 80 F.3d at 1047; Little, 37 F.3d at 1075. When ruling on a motion for summary judgment, the court is required to view all inferences drawn from the factual record in the light most favorable to the nonmoving party. Matsushita, 475 U.S. at 587, 106 S. Ct. 1348; Ragas, 136 F.3d at 458. However, factual controversies are to be resolved in favor of the opposing party “only when there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts.” Wallace, 80 F.3d at 1047; accord, S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 494 (5th Cir. 1996). The court will not, “in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts.” McCallum Highlands, Ltd. v. Washington Capital Dus, Inc., 66 F.3d 89, 92 (5th Cir.), as modified, 70 F.3d 26 (5th Cir. 1995). The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports its claim. Ragas, 186 F.3d at 458. Unless there is sufficient evidence for a reasonable jury to return a verdict in the opposing party’s favor, there is no genuine issue for trial, and summary judgment must be granted. Celotex, 477 © U.S. at 322-23, 106 S.Ct. at 2548; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-51, 106 S. Ct. 2505, 2511, 91 L. Ed.2d 202 (1986); Texas Instruments, 100 F.3d at 1179. However, if the opposing party sets forth specific facts essential to their claims, a genuine issue of material fact 24a will then preclude summary judgment. Coleman v. Hous- ton Indep. School Dist., 113 F.3d 528, 533 (5th Cir. 1997). III. Discussion Crawfords alleges that Hernandez stole building materials, tocis, equipment, and supplies in violation of section 31.03 of the Texas Penal Code. Under the statute, “(a) A person commits an offense if he unlawfully appro- priates property with intent to deprive the owner of property; (b) Appropriation of property is unlawful if (1) it is without the owner’s consent.” V.T.C.A., PENAL CODE § 31.03. If this statute is violated, a party harmed by its violation may seek recovery for resulting damages under the Texas Theft Liability Act. TEx. Civ. Prac. & REM. CopDE § 134.005(a)(1). The elements of offense of theft under section 31.03 are: (1) a person, (2) with intent to deprive owner of property, (3) unlawfully appropriates that property, (4) without effective consent of owner. Washing- ton v. State, 909 S.W.2d 577 (Tex. App. 1995). In cases alleging the theft of property by an employee, as alleged in this case, theft may be established by showing that the employee did not have authority to dispose of or appropri- ate property in the manner alleged; thus theft is estab- lished by showing that the employee acted in some way inconsistent with his lawful authority. Huff v. State, 897 S.W.2d 829, 834 (Tex. App. 1995). Further, it has been held that evidence that an accused exercised control over property without consent of the owner, intending to deprive him of it, or evidence of accused’s unexplained possession of recently stolen property, is sufficient to prove theft. Jackson v. State, 12 S.W.3d 836 (Tex. App. 2000). To prevail on its claims of theft, Crawfords will have to show that Hernandez, in fact, appropriated or exercised control 25a over Crawfords’ recently stolen property without its consent. Hernandez, as the party moving for summary judg- ment on the counterclaim, has the burden of showing there is no genuine issue as to any material fact, and-that— he is entitled to judgment as a matter of law. To demon- strate the absence of a genuine issue, Hernandez points to the depositicn testimony of three witnesses that Craw- fords produced in response to a notice of deposition: Joan Williams, Sam Medley, and Sam Roberts. Joan Williams, the primary owner of Crawfords, admits in her deposition testimony that Hernandez never stole from her personally, that she couldn’t point to anything specific that was missing from Crawfords, nor did she have any reason to think Hernandez was stealing from Crawfords, that criminal charges were never sought against Hernandez, and that if Hernandez had not filed the discrimination lawsuit against Crawfords, she didn’t believe Crawfords would have accused Hernandez of theft. “We would have just let it go.” (Williams depo. p. 41, In. 20). Hernandez also directs the Court to the deposition of Sam Medley, the manager and twenty-five percent owner of Crawfords, who also stated that he could not point to any specific thing that Hernandez stole from Crawfords, nor to anything in general. According to his testimony, if there was evidence that Hernandez was stealing, he would probably be aware of it. Last, Hernanuez shows the Defendant’s lack of evidence to prove him guilty of theft by way of deposition of Sam Roberts, manager of Crawfords’ carpet store. According to Roberts, his weed eater, a pipe wrench, garden tools, and a shovel were missing from the ware- house at the time when Hernandez was supposed to be in charge of security. However, Roberts testified that, even 26a though he suspected him, he never had nor was he now accusing Hernandez of stealing those things and, more- over, would not approach Hernandez about it without any proof. Hernandez, by the deposition testimony of these three employees, shows that Crawfords has not been able to and cannot support the elements needed for its counter- claim of theft. Even though the burden then shifts to Crawfords to show that specific facts exist over which there is a genuine issue for trial, Crawfords never mentions in its response the deposition testimony of Joan Williams or Sam Roberts. Crawfords dees include an affidavit by Sam Medley that stated that he had no specific or “hard” evidence that any tools had been stolen or taken from the premises by Hernandez, that he had not made any investigation into any missing items, and had never made any accusations of theft to Hernandez. His affidavit only stated a belief that it was “probable” that Hernandez had committed theft. In Huff, an employee was found to have unlawfully appropriated from her employer when it was found that she (1) wrote checks from her employers account and deposited them to her own account, and/or (2) paid bills with company checks or from money obtained from petty case [sic] without approval. Huff, 87 S.W.2d at 833. There, the company noticed that its property was missing, the company investigated, and the company traced the stolen property to its employee. Id. Similarly, stolen property was identified, traced, and recovered in Jackson. Jackson is the reverse of the facts of this case in that Jackson had never been at the scene of the theft but was identified at three separate businesses as the possessor and seller of the alleged stolen materials. 27a Jackson, 12 S.W.3d at 840. There, a storage facility on company grounds was broken into and heavy aluminum molds weighing from 100 to 200 pounds were taken. Jd. The company reported the theft to the police and faxed a reward poster to recycling facilities. Jd. Within two days, the company identified the sold goods as their stolen molds and retrieved them. Jd. at 838. The officer in charge of the investigation discovered who had sold the molds because the recycling facilities routinely make photocopies of the seller’s identification when the metal being sold is valued over $25.00. Id. at 841. Though no witnesses could place Jackson, the seller in possession of the stolen goods, at the company, and the only evidence to convict him consisted of his recent and unexplained possession and sale of the items taken, the court concluded that a reasonable jury could have drawn the inference of Jackson’s guilt. Id. at 841-42. The court held that if a defendant is in fact found in possession of recently stolen property, the fact finder may draw an inference that defendant is guilty of theft. Id. Here, Crawford fails in its burden, because it cannot show first, specifically, or even generally, what was stolen. Next, Crawford cannot provide evidence that anything allegedly missing was taken by Hernandez as opposed to anyone else. Uniike Huff and Jackson, accusations were never made, an investigation was never pursued, and Crawfords has never introduced any proof that materials allegedly missing are in the possessicn of Hernandez, or that any building materials in the possession of Hernan- dez are items that belong to Crawfords. The only disputable proof that Crawfords has in support of its claim is the statement and deposition of a customer, Manual Guerra, that he had bought a ladder and two shovels from Hernandez six or seven years earlier rr a 28a and that at that time Hernandez had allegedly admitted to Guerra that the items came from Crawfords. In Guerra’s deposition, he stated that he saw tools and building materials at Hernandez’s house at the same time of his purchase. Though it had no “hard evidence,” Crawfords submits the affidavit of Sam Medley, admitting it relied on this statement by Guerra as the basis for its claim of theft against Hernandez. Hernandez denies that he stole materials or sold them to Guerra, and Crawfords has not investigated nor identified the materials to know whether they were stolen or even belonged to Crawfords. Moreover, even if Guerra’s allegations seem to create a genuine issue for trial, his statement and deposition do not qualify as admissible evidence. Section 31.03(c) governs the admissibility of extraneous offenses in a theft case and requires a “recent” transaction to show the required intent of the offender. V.T.C.A., PENAL CODE § 31.03(c). “For purposes of Subsection (b): (1) evidence that the actor has previously participated in recent transactions other than, but similar to, that which the prosecution is based is admissible for the purpose of showing knowledge or intent....” Id. (emphasis added). In Ballard v. State, 945 S W.2d 902 (Tex. App. 1997), the court held that a six-year time span between the charged theft and a similar extra- neous offense did not meet the “recent” transaction re- quirement for admission of evidence. Id. at 905. Similarly, there exists a six or seven year time span between the claimed theft here and the alleged incident involving Guerra. Crawfords makes the assumption, without provid- ing the necessary proof, that the tools and materials allegedly seen by Guerra seven years earlier were tools and materials stolen from Crawfords — years before Hernandez transferred to the warehouse and Crawfords complained of 29a missing items, and years before the counterclaim of theft filed here. IV. Conclusion Crawfords has failed to produce evidence from which a rational fact finder could conclude that Hernandez in fact stole from Crawfords or was in possession of its recently stolen property. Consequently, Plaintiff/Counter-Defendant’s Motion for Partial Summary Judgment is GRANTED in all respects. IT IS SO ORDERED. SIGNED this 9th day of August, 2001. United States District Judge John Hannah, dr. 30a DOROTHY BANKS; ET AL, Plaintiffs, TINA BROOKS; SHIRLEY BROWN; ANNETTE J GRAY; MARY HOLMES; ANNIE JOHNSON; AMY LANE; ROSA MALVEAU; DOROTHY MCPIPE; ALMA NEWMAN; MAGGIE TUCKER; BERTHA TWINE; BERTHELLA WALLACE; EDNA WELCH; MARY WILLIAMS; NELLIE WILLIAMS, Plaintiffs- Appellants, versus EAST BATON ROUGE PARISH SCHOOL BOARD; INGRID KELLEY; WARREN L PRATT, JR; PRESS L ROBINSON, SR, DR; JACQUELINE MIMS; PATRICIA HAYNE-SMITH; NOEL HAMMATT; ROGER MOSER; DANIEL R HENDERSON; ELDON R LEDOUX; DALTON DEVALL; WILLIAM P BLACK; JAMES MANLEY, Defendants-Appellees. No. 01-30090 UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT 320 F.3d 570; 2003 U.S. App. LEXIS 2972; 91 Fair Empl. Prac. Cas. (BNA) 280 February 19, 2003, Decided PRIOR HISTORY: Appeal from United States District Court for the Middle District of Louisiana. 98-CV-974-A. John V Parker, US District Judge. DISPOSITION: Affirmed. COUNSEL: For TINA BROOKS, SHIRLEY BROWN, ANNETTE J GRAY, MARY HOLMES, ANNIE JOHNSON, AMY LANE, ROSA MALVEAU, DOROTHY MCPIPE, ALMA NEWMAN, MAGGIE TUCKER, BERTHA TWINE, BERTHELLA WALLACE, EDNA WELCH, MARY WILLIAMS, NELLIE 3la WILLIAMS, Plaintiffs - Appellants: Nancy Picard, Robein, Urann & Lurye, Metairie, LA. For EAST BATON ROUGE PARISH SCHOOL BOARD, INGRID KELLEY, WARREN L PRATT, JR, DR PRESS L ROBINSON, SR, JACQUELINE MIMS, PATRICIA HAYNE-SMITH, NOEL HAMMATT, ROGER MOSER, DANIEL R HENDERSON, ELDON R LEDOUX, DALTON DEVALL, WILLIAM P BLACK, JAMES MANLEY, Defen- dants - Appellees: Kenneth F Sills, Karen Denise Murphy, Hammonds & Sills, Baton Rouge, LA. JUDGES: Before EMILIO M. GARZA and CLEMENT, Circuit Judges, and DAVIS*, District Judge. OPINION BY: EMILIO M. GARZA OPINION: Before EMILIO M. GARZA, Circuit Judge: Fifteen female plaintiffs (collectively, “Employees”) formerly or currently employed as janitors by the East Baton Rouge Parish School Board appeal the district court’s decisions granting summary judgment in favor of the Board, its individuals members, and James Manley, the Personnel Supervisor for the Board’s Maintenance Department (collectively, the “Board”). In granting sum- mary judgment, the district court dismissed Employees’ Title VII retaliation and disparate impact discrimination claims, as well as their § 1983 retaliation claim, against * District Judge of the Eastern District of Texas, sitting by designation. 32a the Board. Employees argue that the district court erred in concluding that Employees failed to make a prima facie showing of an adverse employment action under either Title VII or § 1983. According to Employees, the Board’s implementation of a reading requirement and new salary structure for a new Janitor position, which was created pursuant to a consent decree entered into with the U.S. Department of Justice (the “DOJ”), thwarted Employees’ immediate “promotion.” This action, according to Employ- ees, kept them from reaching their appropriate pay level and step and was, therefore, an adverse employment action under both Title VII and § 1983. Employees also argue that the district court erred in concluding that Employees failed to make a prima facie showing under Title VII that the reading requirement, implemented by the Board, selected applicants for the new Janitor position in a discriminatory pattern resulting in a sex-based imbalance in the Board’s workforce. I We begin with a brief summary of the unique facts of this case. The Board employed janitors in three capacities: “Janitor I,” “Janiter II,”-and “Janitor Ill.” Janitor I em- ployees, all of whom were female, worked part-time for six hours a day, nine months of the year. They were responsi- ble for performing the most basic janitorial tasks. The Janitor II employees, most of whom were male, worked eight hours a day for the entire year. They were responsi- ble for performing tasks essentially the same as those performed by Janitor I employees, with the addition of some duties, such as lawn care. Janitor III employees, all of whom were male, worked full-time and were responsible for performing tasks essentially the same as those 33a performed by Janitor I and Janitor II employees, with the addition of some supervisory tasks, such as locking up buildings and supervising cleaning crews. The Employees, all of whom are female, were Janitor I employees. After the Board decided to eliminate the medical benefits received by Janitor I employees and to reduce their working hours (from six hours per day to four hours per day), a number of Janitor I employees, including Employees, sued the Board in state court, alleging that the Board’s action had a disparate impact on female employ- ees in violation of Louisiana state law, since all Janitor I employees were female. Their suit also alleged intentional sex discrimination in violation of Louisiana state law. While the state court lawsuit was still pending,’ the DOJ began an inquiry into the Board’s procedures for placing women into the Janitor II and Janitor III posi- tions. The impetus for the DOJ investigation was the allegation that the Board discriminated against women on the basis of their gender in violation of Title VII by reserv- ing the Janitor II and Janitor III positions for males only. Subsequently, the Board began to evaluate all school system positions, including job descriptions and salary schedules, for the stated purpose of eliminating the ineffi- cient use of resources. All janitor and custodian classifica- tions were included in this study. The Board decided to phase out the three-tiered janitor position and replace it with two new positions: “Janitor” and “Lead Janitor.” The Janitor position (the “new Janitor position”) combined the ‘ The state court ultimately dismissed the plaintiffs’ lawsuit with prejudice. The plaintiffs chose not to appeal the state court judgment. 34a duties of the Janitor I and Janitor II positions. The “Lead Janitor” position was intended to be the equivalent of the Janitor III position. Both the new Janitor position and the Lead Janitor position were full-time positions, with medical benefits. However, the Board created a new pay scale, which resulted in lower hourly pay for any Janitor I employee who accepted the new Janitor position. Addi- tionally, the Board implemented a testing procedure to select applicants for the new Janitor position. Applicants were required to take and pass a “practical” test involving the use of maintenance equipment, as well as a reading test, which tested an applicant's ability to read at an eighth-grade level. Applicants for the Lead Janitor posi- tion were not required to take either of these two tests. The Board’s implementation of the reading test for the new Janitor position was, according to the Board, ‘its response to an incident in which at least one Board em- ployee was sickened as a result of a custodian’s failure to follow printed instructions on the use of a pesticide. The Board maintains that safety concerns demanded its new Janitors be able to read at an eighth-grade level, since the safety guidelines of the Occupational Safety and Health Administration were written on an eighth-grade level, as were most Material Safety Data Sheets, which are re- quired for all chemicals used in the workplace. The Board subsequently entered into a consent decree (the “Consent Decree”) with the DOJ, which incorporated the Board’s plan for the new Janitor position and Lead Janitor position, as well as its plan for a new salary structure. The purpose of the Consent Decree was to resolve all issues raised by the DOJ in a separate lawsuit that the DOJ, after its lengthy investigation of the Board, brought against the Board under Title VII, alleging 35a discrimination against females in the hiring and promo- tion of janitors. See United States v. East Baton Rouge Parish Sch. Bd., No. 97-264-A-3. The Consent Decree provided that “interested and qualified incumbent employ- ees in the Janitor I ... positions [would] be provided ... an opportunity to be promoted to the new Janitor posi- tion.” It made no mention of the reading requirement, though it did state that “[a]pplicants selected for possible employment as Janitors or Lead Janitors may be required by the School Boa [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1621%3A1. Public record. Not legal advice.