Porter v. Houma Terrebonne Hous. Auth., No. 14-31090 (5th Cir. 2015)
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Plaintiff filed suit against her former employer, alleging claims of retaliation after her attempt to rescind her resignation was denied. Plaintiff offered her resignation, but before she finished her employment, she testified against the Executive Director, claiming sexual harassment. Then plaintiff attempted to rescind the resignation but the Executive Director rejected her rescission. The court reversed the district court's grant of summary judgment because rejecting an employee’s rescission of resignation can sometimes constitute an adverse employment action and because plaintiff has demonstrated a substantial conflict of evidence on the question of whether her employer would have taken the action ‘but for’ her testimony.
The court issued a subsequent related opinion or order on November 25, 2015.
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Case: 14-31090 Document: 00513275382 Page: 1 Date Filed: 11/17/2015 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 14-31090 United States Court of Appeals Fifth Circuit FILED TYRIKIA PORTER, v. November 17, 2015 Lyle W. Cayce Clerk Plaintiff - Appellant HOUMA TERREBONNE HOUSING AUTHORITY BOARD OF COMMISSIONERS, doing business as Houma Terrebonne Housing Authority, Defendant - Appellee Appeal from the United States District Court for the Eastern District of Louisiana Before HIGGINBOTHAM, DAVIS, and SOUTHWICK, Circuit Judges. PATRICK E. HIGGINBOTHAM, Circuit Judge: In this case, our court considers a retaliation claim by an employee whose attempt to rescind her resignation was denied. Tyrikia Porter worked for the Houma Terrebonne Housing Authority for several years. She offered her resignation in June of 2012, but before finishing her employment, she testified against the Executive Director, Wayne Thibodeaux, claiming sexual harassment. When Porter attempted to rescind her resignation at the urging of other superiors at work, Thibodeaux rejected her rescission. Case: 14-31090 Document: 00513275382 Page: 2 Date Filed: 11/17/2015 No. 14-31090 Because we must consider the factual context of a retaliation claim to determine if the employer has taken an adverse employment action, and because Porter has demonstrated a substantial conflict of evidence on the question of whether her employer would have taken the action ‘but for’ her testimony, we reverse the district court’s grant of summary judgment. I. A. Factual History In considering a motion for summary judgment, courts “must view the evidence in the light most favorable” to the party opposing summary judgment. 1 The “evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in [her] favor.” 2 While the court “must disregard evidence favorable to the moving party that the jury is not required to believe,” it “gives credence to evidence supporting the moving party that is uncontradicted and unimpeached if that evidence comes from disinterested witnesses.” 3 Tyrikia Porter first worked at the Houma Terrebonne Housing Authority (“HTHA”) from February 2001 to January 2005. During that time, her duties included answering phones and receiving housing applications. 4 She left briefly to work in a chemistry lab at Nicholls State University, but Jan Yakupzack asked Porter to return to HTHA in July 2005 as a Housing Manager I, a position with greater responsibilities including more client contact and substantive processing of applications. 5 In 2010, HTHA promoted Porter to Housing Manager II, a promotion that granted her more supervisory Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014) (internal quotation marks omitted). Id. at 1863 (internal quotation marks omitted). 3 Laxton v. Gap Inc., 333 F.3d 572, 577 (5th Cir. 2003). 4 Id. 5 Id. 1 2 2 Case: 14-31090 Document: 00513275382 Page: 3 Date Filed: 11/17/2015 No. 14-31090 authority. In April 2006, the HTHA hired Wayne Thibodeaux as executive director. Within a year of his arrival, his behavior was making Porter uncomfortable. He asked her to lunch and if she would attend trainings with him involving overnight travel. He made comments on Porter’s appearance, clothes, and weight, making some comment nearly every time he saw her, which was “more or less on a daily basis.” His comments included statements that she “must have been thinking about him as [she] got dressed.” He “would single [her] out in meetings” to make these comments. He would also continually stare at her. When the entire office exchanged “kiddy” Valentine’s Day cards, he displayed the one he received from Porter (but not those received from other coworkers) in his office. When leaving voicemails, he twice commented on her “sexy voice.” In about 2011, Thibodeaux stated that Porter was fornicating with her fiancé Troy Johnson and that “fornication” caused her to miscarry in 2009. He then blocked his office door to prevent her leaving until she asked him to move several times. Porter felt the need to avoid Thibodeaux and adjust her behavior to stave off his comments, which other employees noticed and commented on. Throughout her time at the HTHA, Jan Yakupzack was her direct supervisor. Porter reported some of Thibodeaux’s conduct to her, but did not file a formal grievance. Porter tendered her resignation on June 6, 2012, to take effect on August 1, 2012. She was aware other employees had been allowed to rescind resignations, but at the time of her resignation, Porter did intend to actually leave. On July 25th, she requested that her resignation be put off until September 1st, so that she could complete projects, train staff, and assist in inspections. Thibodeaux approved the request the same day, thus “extend[ing] [her] resignation to September 1, 2012.” 3 Case: 14-31090 Document: 00513275382 Page: 4 Date Filed: 11/17/2015 No. 14-31090 In connection with an unrelated matter, Porter’s fiancé and fellow HTHA employee, Troy Johnson, was scheduled to testify at a grievance hearing initiated on or about July 12th. Porter decided to also testify at the hearing about Thibodeaux’s behavior towards her. Prior to testifying at the hearing, Porter was contacted by the Chairman of the HTHA Board of Commissioners, Allan Luke, who asked her if she planned to pursue any charges, and asked her to consider rescinding her resignation. Porter said she would consider his request and would decide what to do about sexual harassment charges after testifying at the hearing on Johnson’s grievance. On or about July 25th, 6 Porter testified about Thibodeaux’s inappropriate conduct at the grievance hearing. As a result of the hearing, the Housing Authority Board directed that Thibodeaux and his employees undergo sexual harassment training, and indicated that he should behave more carefully and appropriately in the future. In late August, Yakupzack also asked Porter to consider rescinding her resignation. She also reached out to Porter’s mother and pastor to encourage her to stay on. September 1st, 2012—the effective date of Porter’s resignation—fell on the Saturday of Labor Day weekend. On the Tuesday after Labor Day, September 4th, Porter wrote a letter stating that she had “decided to rescind [her July 25th] resignation notice and remain an employee” of the HTHA. She also requested—and Yakupzack granted—52 hours of personal leave, beginning that same afternoon and continuing through the end of the following Tuesday the 11th. Yakupzack forwarded the rescission letter to Thibodeaux, stating that she fully supported retaining Porter, and that both There is some evidence the hearing may actually have taken place August 2nd. The district court found that it took place July 26th (not the 25th), but it supports that finding with a citation to Porter’s deposition transcript, where she says the hearing took place on the 25th, so it appears the district court may be mistaken. 6 4 Case: 14-31090 Document: 00513275382 Page: 5 Date Filed: 11/17/2015 No. 14-31090 she and Thibodeaux both knew that Porter was an asset to the Agency. Acting in his sole discretion, Thibodeaux denied the request on September 10th. This is the only time an employee “was separated from” the HTHA against Yakupzack’s advice. Porter and her supporters reached out to the Board after the decision, but did not succeed. As to the reason for the decision not to accept rescission, Thibodeaux stated that he had “determined that that person was not satisfied or happy being an employee of the . . . Housing Authority.” Porter states she was in fact happy with her job, and believes her rescission was not accepted because of her testimony at the hearing. B. Procedural History Porter filed an EEOC Charge of Discrimination on March 27, 2013 alleging that she was sexually harassed until her “discharge” and was discriminated against in “retaliation for opposing practices made unlawful under Title VII.” She received a right-to-sue letter. Porter filed suit asserting Title VII and state law claims for retaliatory discharge and “sexual harassment/hostile work environment” in the Eastern District of Louisiana. The parties consented to a magistrate judge handling all proceedings. The HTHA moved for summary judgment, which the court granted over Porter’s opposition. Porter timely appealed, challenging the grant of summary judgment only as to the Title VII retaliation claim. II. This Court reviews de novo the district court’s grant of summary judgment. 7 A party may obtain summary judgment when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with 7 Ford Motor Co. v. Tex. Dep’t of Transp., 264 F.3d 493, 498 (5th Cir. 2001). 5 Case: 14-31090 Document: 00513275382 Page: 6 Date Filed: 11/17/2015 No. 14-31090 the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” 8 III. To establish a prima facie retaliation case, Porter must show: (1) she was engaged in protected activity; (2) she was subjected to an adverse employment action; and (3) there was a causal connection between the protected activity and the adverse employment action. 9 There is no dispute about the first element since it is clear that Porter’s testimony was a protected activity. The first contested issue before the Court, then, is whether or not the HTHA’s refusal to accept Porter’s rescission of her resignation constitutes an adverse employment action. A. Appellees point to precedent from this Court and others holding that failure to accept a rescission of resignation is not an adverse employment action. 10 These cases, however, predate important Supreme Court precedent about what constitutes an adverse employment action, Burlington Northern, 11 Fed. R. Civ. P. 56(c). Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 657 (5th Cir. 2012). 10 Mowbray v. Am. Gen. Life Co, 162 Fed. App’x 369, 374-76 (5th Cir. 2006) (in preBurlington Northern FMLA retaliation case, holding that resignation in the absence of a constructive discharge was not an “adverse employment action”); Pownall v. City of Perrysburg, 63 Fed. App’x 819, 823 (6th Cir. 2003) (prior to Burlington Northern, holding in FMLA case (not based on retaliation) that no adverse employment action had occurred under Ohio law where employee quit, filled out and turned in associated forms, and left before the end of the workday, then later tried to rescind her resignation); Schofield v. Metro. Life Ins. Co., No. 03 Civ. 0357, 2006 WL 2660704, at *5 n.6, *9 (M.D.Pa. Sept. 15, 2006) (in age and disability discrimination claims, holding that failure to accept rescission of resignation was not an adverse employment action, but refusing to so find as to retaliation claim) aff’d, 252 F. App’x 500 (3d Cir. 2007); Wilkerson v. Springfield Pub. Sch. Dist. No. 186, 40 Fed. App’x. at 263 (holding that refusal to accept rescission of resignation was not adverse employment action in a Title VII race discrimination (not retaliation) case). 11 Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006). 8 9 6 Case: 14-31090 Document: 00513275382 Page: 7 Date Filed: 11/17/2015 No. 14-31090 or otherwise do not address the issue of retaliation. Appellees do point to one retaliation case issued after Burlington Northern, Smith v. DeTar Hosp. LLC, 12 but the case did not take into account the changed standard. In Burlington Northern, the Supreme Court clarified that the “adverse employment action” is in fact not limited to “workplace-related or employmentrelated retaliatory acts and harm.” 13 The key question is whether the challenged action is “materially adverse” in that it is “harmful to the point that [it] could well dissuade a reasonable worker from making or supporting a charge of discrimination.” 14 The standard is objective, 15 but “the significance of any given act of retaliation will often depend upon the particular circumstances. Context matters.” 16 Burlington Northern “abrogated [the Fifth Circuit’s] previous approach, which required showing an ‘ultimate employment decision’” and “established a less demanding standard for judging whether conduct is actionable as retaliation.” 17 A few courts have applied Burlington Northern to rescission of resignation cases. This Court, for example, appeared to assume without deciding that failure to accept rescission could constitute an adverse employment action in Barkley v. Singing River Electric Power Ass’n. 18 One district court similarly assumed that failure to accept a resignation might Smith v. DeTar Hosp. LLC, CIV.A. V-10-83, 2012 WL 2871673, at *13 (S.D. Tex. July 11, 2012) (in FMLA retaliation case, finding that refusal to accept rescission of a resignation was not adverse employment action relying on two pre-Burlington Northern cases and the discrimination (not retaliation) portion of a post-Burlington Northern case). 13 Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006). 14 Id. at 57. 15 Id. at 68-69. 16 Id. at 69. 17 Donaldson v. CDB Inc., 335 Fed. App’x. 494, 506 (5th Cir. 2009). 18 433 Fed. App’x 254, 259-60 (5th Cir. 2011) (finding that an employee whose rescission of resignation was denied had not made a prima facie case on the basis that the employee had not shown a causal link between the protected activity and the adverse employment action.) 12 7 Case: 14-31090 Document: 00513275382 Page: 8 Date Filed: 11/17/2015 No. 14-31090 constitute an “adverse employment action” for retaliation purposes, but declined to decide the issue. 19 Other courts have found that even under Burlington Northern, the failure to accept rescission was not an adverse employment action. Each court emphasized that there is no inherent right to rescind resignation, suggesting that employers do not commit an adverse employment action by denying such rescissions. For instance, one district court concluded that the failure to accept rescission was not an adverse employment action where the plaintiff had resigned and completed an exit interview, then quickly tried to rescind while still an employee. 20 While the court based this conclusion in part on earlier cases decided under stricter standards, 21 it also reasoned that because “employers are not usually obligated to allow their employees to rescind their resignations,” and have no “duty to permit” rescission, the failure to do so is not an adverse employment action. 22 Another district court similarly concluded that the failure to accept rescission was not an adverse employment action where the plaintiff rescinded a week after resigning in a § 1981 retaliation claim. The plaintiff made race discrimination claims for the first time in the rescission e-mail. 23 The court reasoned that the employer’s “refusal to permit Plaintiff to rescind his resignation would [not] have ‘dissuaded a reasonable worker from making . . . a charge of discrimination.’” 24 The court cited the absence of “a contractual or Hammonds v. Hyundai Motor Mfg. Ala., LLC, 2:10-CV-103-TFM, 2011 WL 2580168, at *5 (M.D. Ala. June 28, 2011). 20 Cadet v. Deutsche Bank Secs. Inc., 11 CIV. 7964 CM, 2013 WL 3090690, at *2, 13 (S.D.N.Y. June 18, 2013). 21 Cadet, 2013 WL 3090690, at *13. 22 Id. 23 Jones v. McCormick & Schmick's Seafood Rests., Inc., 1:12-CV-04503 RMB, 2014 WL 1669808, at *2, 4-5 (D.N.J. Apr. 28, 2014). 24 Id. at *5. 19 8 Case: 14-31090 Document: 00513275382 Page: 9 Date Filed: 11/17/2015 No. 14-31090 statutory duty to” accept rescission. 25 Finally, yet another district court concluded that a failure to accept rescission was not an adverse employment action where “rescission was voluntary” and the facts were not enough to show constructive discharge. 26 These cases suggest that failure to accept rescission has generally not amounted to an adverse employment action in retaliation cases, but they are not dispositive in the instant case for two reasons. First, Burlington Northern requires us to consider the context of the alleged adverse employment actions, 27 and emphasized that there are all manner of ways employers may retaliate against employees, some even unrelated to the employment. 28 Second, and relatedly, the fact that an employee has no statutory or contractual right to rescind a letter of resignation does not necessarily mean that failing to accept such a rescission is never an adverse employment action. Most at-will employees have no right to employment in the first place, but not hiring them on their basis of their engagement in protected activities is nonetheless the ultimate adverse employment action, even under the strict, pre-Burlington Northern standard for what counts. 29 Just as an at-will employer does not have to hire a given employee, an employer does not have to accept a given employee’s rescission. Failing to do so in either case because the employee has engaged in a protected activity is nonetheless an adverse employment action. Id. Hibbard v. Penn-Trafford Sch. Dist., CIV.A. 13-622, 2014 WL 640253, at *18 (W.D. Pa. Feb. 19, 2014); see also Santandreu v. Miami Dade County, 513 F. App’x. 902, 904, 906 (11th Cir. 2013) (holding that no adverse employment action occurred due to resignation— but not explicitly addressing fact that employee had tried to rescind resignation). 27 Burlington N., 548 U.S. at 69. 28 Id. at 63-64, 67. 29 Dollis v. Rubin, 77 F.3d 777, 782 (5th Cir. 1995) (noting that adverse employment action cases “have focused upon ultimate employment decisions such as hiring, granting leave, discharging, promoting, and compensating.”). 25 26 9 Case: 14-31090 Document: 00513275382 Page: 10 Date Filed: 11/17/2015 No. 14-31090 B. It is in light of Burlington Northern that this Court considers whether Porter experienced an adverse employment action. The district court found that because Porter had offered her resignation prior to testifying at the grievance hearing, she suffered no adverse employment action. As a general matter, it seems unlikely that a reasonable worker would tender her resignation and plan to leave while nonetheless depending on her employer to accept rescission of her resignation. The Burlington Northern standard, however, requires that we consider the context. In this case, circumstances suggest that a reasonable employee in Porter’s shoes might have legitimately expected that her rescission of resignation would be accepted. First, prior to her testimony, she was asked to consider rescinding her resignation by the Chairman of the Housing Authority Board, Allan Luke. Her direct supervisor, Jan Yakupzack, also asked her to consider rescission after her testimony, and spoke with her mother and pastor. While neither of these individuals had authority to make the decision itself, their requests may have contributed to a reasonable belief that Porter was at liberty to rescind, especially considered in light most favorable to Porter. Second, her request to stay on a month longer than her initial effective resignation date was immediately approved, plausibly creating an expectation that her resignation was still negotiable and not finalized. Porter also had Yakupzack’s support, which is especially significant in light of the fact that Thibodeaux’s decision not to accept Porter’s rescission was the only separation decision he ever made contrary to Yakupzack’s advice. Finally, Porter identified four individuals who had resigned their positions at the HTHA and then been allowed to rescind those resignations. Overall, while a reasonable employee might not normally expect that she was entitled to rescind her resignation, in this particular context, a reasonable 10 Case: 14-31090 Document: 00513275382 Page: 11 Date Filed: 11/17/2015 No. 14-31090 employee in Porter’s shoes might have expected it. In light of the expectation, a fact-finder could determine that Porter was “well dissuad[ed] from making… a charge of” 30 sexual harassment if she knew it would destroy the chance that her rescission would be accepted. IV. The second major issue before the Court relates to the third element of retaliation claims: whether there was a causal connection between the protected activity and the adverse employment action. 31 Under the McDonnell Douglas framework, [i]f the employee establishes a prima facie case, the burden shifts to the employer to state a legitimate, non-retaliatory reason for its decision. . . . [T]he burden [then] shifts back to the employee to demonstrate that the employer’s reason is actually a pretext for retaliation. 32 To demonstrate pretext and avoid summary judgment, Porter must show “‘a conflict in substantial evidence’ on the question of whether the employer would not have taken the action ‘but for’ the protected activity.” 33 The District Court did not reach the issue of causation since it determined that refusing to allow rescission was not an adverse employment action. The court recites HTHA’s argument that “the sole reason [her] request to rescind her resignation was not granted was . . . her repeated threats to resign,” but it does not rest its decision upon the issue of causation. Having come out differently on the issue of adverse employment action, this Court must consider whether Porter has first made a prima facie showing of Burlington N., 548 U.S. at 57. Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 657 (5th Cir. 2012). 32 Coleman v. Jason Pharmaceuticals, 540 Fed. App’x 302, 304 (5th Cir. 2013) (quoting LeMaire v. Louisiana, 480 F.3d 383, 388-89 (5th Cir. 2007)). 33 Coleman, 540 Fed. App’x at 304. 30 31 11 Case: 14-31090 Document: 00513275382 Page: 12 Date Filed: 11/17/2015 No. 14-31090 causation, and whether, in light of HTHA’s assertion of a legitimate reason for denying the rescission, she can demonstrate that this reason is a pretext. A. In this Circuit, temporal proximity between protected activity and alleged retaliation is sometimes enough to establish causation at the prima facie. 34 “[T]he protected act and the adverse employment action [must be] ‘very close’ in time” to establish causation by timing alone 35—this court has accepted a two and a half month gap as sufficiently close in one case, 36 and rejected nearly the same time frame in another. 37 We have also accepted gaps of less than two months. 38 Given this precedent, the six and a half week timeframe between Porter’s testimony and the denial of her rescission is sufficient to satisfy the prima facie case of causation. More importantly, for purposes of this appeal, HTHA has not challenged Porter’s prima facie causation argument. B. HTHA does, however, challenge Porter’s argument that its nonretaliatory justification for denying her rescission is mere pretext. Thibodeaux’s assessment that Porter was not happy working there and often Swanson v. Gen. Servs. Admin., 110 F.3d 1180, 1188, n.3 (5th Cir. 1997). Washburn v. Harvey, 504 F.3d 505, 511 (5th Cir. 2007). 36 Richard v. Cingular Wireless LLC, 233 Fed. Appx. 334, 338 (5th Cir. 2007); Stroud v. BMC Software, Inc., No. 07-20779, 2008 WL 2325639, at *6 (5th Cir. June 6, 2008) (citing Richard); see also Evans v. City of Houston, 246 F.3d 344, 354 (5th Cir. 2001) (noting that gaps of “up to four months has been found sufficient”); Robinson v. Our Lady of the Lake Regl. Med. Ctr., Inc., 535 Fed. Appx. 348, 353 (5th Cir. 2013) (quoting Evans); cf. Barkley, 433 Fed. App’x at 260 n.10 (noting the Supreme Court has cited cases finding three and four month gaps insufficient). 37 Amsel v. Tex. Water Dev. Bd., 464 Fed. Appx. 395, 401-02 (5th Cir. 2012). 38 Richardson v. Prairie Opportunity, Inc., 470 Fed. Appx. 282, 286-87 (5th Cir. 2012) (seven week gap is acceptable); Tanner v. LSU Fireman Training Program, 254 F.3d 1082 (5th Cir. 2001) (after protected activity, “investigation of her personnel file began within a month, and she was fired a little over a month later”); see also Cothran v. Potter, 398 F. Appx. 71, 73 (5th Cir. 2010) (two month gap acceptable where prior adverse action took place during lapse); Handzlik v. United States, 93 Fed. Appx. 15, 19 (5th Cir. 2004) (noting gap of “just over two months” is similar to the timeframe held acceptable in other cases). 34 35 12 Case: 14-31090 Document: 00513275382 Page: 13 Date Filed: 11/17/2015 No. 14-31090 threatened to quit is HTHA’s legitimate non-retaliatory reason for the refusal to accept rescission. Yakupzack testified that Thibodeaux gave a similar explanation to the one offered in this litigation when she discussed the decision with him soon after he made it. Both Thibodeaux and Yakupzack stated that Porter repeatedly threatened to quit, although Porter contends that she was very happy in the position. Yakupzack and the Human Relations Director testified that Porter intended to continue to look for a different job, although there is no evidence Thibodeaux, who had final authority on accepting her rescission, knew this. Since HTHA has produced a legitimate reason for not allowing Porter to remain on staff, the burden shifts to Porter to show that this reason is mere pretext. 39 In Univ. of Texas Sw. Med. Ctr. v. Nassar, the Supreme Court clarified that “retaliation claims must be proved according to traditional principles of but-for causation. . . . This requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.” 40 This Court has consistently held that to survive summary judgment, the plaintiff must show “a conflict in substantial evidence on the question of whether the employer would not have taken the action ‘but for’ the protected activity.” 41 The standard for summary judgment on pretext grounds remains unchanged in this Court after Nassar. 42 Coleman, 540 Fed. App’x at 304. Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013). 41 Coleman, 540 Fed. App’x at 304; see also Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 658 (5th Cir. 2012); Long v. Eastfield College, 88 F.3d 300, 308 (5th Cir. 1996). 42 Valderaz v. Lubbock County Hosp. Dist., No. 14-10761, 2015 WL 3877788, at *6 (“To prove pretext, [plaintiff] must bring forth substantial evidence demonstrating that [defendant’s] proffered reasons are a pretext for retaliation.” (internal citations omitted)); Feist v. Louisiana, 730 F.3d 450, 454 (5th Cir. 2013) (“[T]he plaintiff must show a conflict in substantial evidence on the question of whether the employer would not have taken the action but for the protected activity” (internal citations omitted)). 39 40 13 Case: 14-31090 Document: 00513275382 Page: 14 Date Filed: 11/17/2015 No. 14-31090 C. Whether Porter has shown a “conflict in substantial evidence on the question of whether the employer would not have taken the action ‘but for’ the protected activity” is a close call. 43 While there is no dispute that Porter’s work at the HTHA was excellent, as recognized by Yakupzack, Thibodeaux, and others, there is a conflict in the evidence about whether Porter was happy in her position. Porter disputes Thibodeaux’s asserted assessment that she was unhappy with her work, saying instead that she was happy with her job, a claim that is corroborated by Yakupzack’s testimony that Porter “enjoy[ed] working with the children.” On the other hand, there is evidence from Yakupzack that Porter stated “frequently she was leaving, she was quitting,” and that in deciding to rescind her resignation, she stated that “she would stay, but that she would continue to look for other employment – I mean, something to better herself or a better, you know, career.” Naquanda Jefferson, the HTHA Human Resources Director, also stated that Porter discussed with her whether she should rescind her resignation “to stay a full-time employee so she would have benefits and everything until she found another job.” However, it is not clear that Thibodeaux knew about any of these statements. The record also contains substantial evidence that might lead a finder of fact to doubt Thibodeaux’s credibility. Thibodeaux disavowed memory of any “sexy voice” comments, until confronted with the recording of the voicemail in which he made them. He denied authorship when confronted with an e-mail from his account attributing Porter’s behavior to her menstrual cycle, questioning the email’s authenticity. Finally, Chairman of the Board Allan Luke recalled that Thibodeaux earlier stated to him that he did remember making a “sexy voice” comment and blocking Porter from leaving a room, “to 43 Coleman, 540 Fed. App’x at 304. 14 Case: 14-31090 Document: 00513275382 Page: 15 Date Filed: 11/17/2015 No. 14-31090 make a point,” even though Thibodeaux later denied both allegations. Lastly, the circumstances surrounding Thibodeaux’s decision not to accept Porter’s rescission provide some evidence that the legitimate reason provided is pretext. Thibodeaux’s action in Porter’s case was the first time he had overruled a recommendation from Yakupzack about terminating an employee. In contrast, Porter identified four employees who were allowed to rescind resignations, though Porter has not demonstrated that those four employees were similarly situated. 44 Moreover, while “temporal proximity alone is insufficient to prove but for causation” in arguing pretext, the less than seven week space between Porter’s testimony and Thibodeaux’s decision is evidence suggests pretext. 45 Thibodeaux, who had been present at the hearing in which Porter testified against him, acted within his sole discretion to reject Porter’s rescission. Porter has raised issues about his credibility, and about the truth of his assertion that she was unhappy in the position. He acted unusually, based on his prior behavior, in rejecting her letter of rescission. These circumstances create “‘a conflict in substantial evidence’ on the question of whether the [HTHA] would not have taken the action ‘but for’ [Porter’s] protected activity.” 46 V. Because rejecting an employee’s rescission of resignation can sometimes constitute an adverse employment action, and appellant has presented a substantial conflict of evidence on the question of whether the employer would have taken the action “but for” the protected activity, we REVERSE the district court’s grant of summary judgment. Two were maintenance employees; two were Housing Manager-I’s. Strong v. U. Healthcare System, L.L.C., 482 F.3d 802, 808 (5th Cir. 2007). 46 Coleman, 540 Fed. App’x at 304. 44 45 15
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