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Porter v. Houma Terrebonne Housing Auth., No. 14-31090 (5th Cir. Nov. 17, 2015)

Courts in Title VII retaliation cases continue to werestle with what constitutes a "materially adverse action" under Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). While accepting an employee's voluntary resignation may not itself be an adverse action, the Fifth Circuit here holds that an employer's refusal to honour an employee's rescission of a resignation may be deemed materially adverse.

Porter v. Houma Terrebonne Housing Auth., No. 14-31090 (5th Cir. Nov. 17, 2015): Ms. Porter, a housing manager for the HTHA, alleged that her employer's Executive Director - Mr. Thibodeaux - engaged in persistent sexual harassment. His actions allegedly included making nearly-daily comments on "Porter's appearance, clothes, and weight," staring at her, commenting on her "sexy voice" (once in a voicemail), accusing her of "fornication" with Mr. Johnson (her fiancé and co-worker), and physically "block[ing] his office door to prevent her leaving until she asked him to move several times."

Ms. Porter "tendered her resignation on June 6, 2012, to take effect on August 1, 2012," later extended to September 1, 2012. During this period, Ms. Porter testified at an unrelated grievance hearing involving Mr. Johnson on July 25, 2012, using the opportunity also to complain about Mr. Thibodeaux's behavior:

"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."

Her direct supervisor, Ms. Yakupzack, also encouraged Ms. Porter to rescind her resignation.

On September 4, 2012, the Tuesday after the Labor Day weekend, Porter forwarded Ms. Yakupzack a letter stating that she had "decided to rescind [her July 25th] resignation notice and remain an employee." But Mr. Thibodeaux "denied the request on September 10th. This 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."

Allegedly, as many as four HTHA employees had been allowed to rescind their resignations. Ms. Porter filed a Title VII and Texas law action alleging that the reason her rescission alone was not horned was because of her testimony.

The district court granted defendant summary judgment, but the Fifth Circuit reverses. The panel notes that while some courts have held that "failure to accept a rescission of resignation is not an adverse employment action," the intervening decision of Burlington NorThern changed the legal landscape. The key question under Burlington NorThern is whether the challenged action is "harmful to the point that [it] could well dissuade a reasonable worker from making or supporting a charge of discrimination."

The panel notes that whether an activity is "materially adverse" cannot hinge, as the defendant argued, on whether an employee is deprived of a contractual or other right:

"[T]hat 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."

The panel holds that There is a genuine dispute of material fact about whether the decision to deny Ms. Porter's request to rescind was materially adverse. Ms. Porter might have reasonably believed that the resignation was still negotiable, in view of the fact that "she was asked to consider rescinding her resignation by the Chairman of the Housing Authority Board" and by her direct supervisor. Also, "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."

The panel also holds that There was sufficiently close "temporal proximity" between the plaintiff's testimony and the decision not to allow Ms. Porter to withdraw her resignation (six and a half weeks) to support causation.

Finally, the panel holds that There is a genuine dispute about whether the employer's reason for refusing Ms. Porter's request was pretextual. Although it was Mr. Thibodeaux's "assessment that Porter was not happy working There," a jury could find that this was untrue based on Ms. Yakupzack's testimony that Porter "enjoy[ed] working with the children." Moreover, There was substantial evidence that might lead a finder of fact to doubt Mr. Thibodeaux's credibility, including his shifting stories about whether he had authored an offending e-mail and left the "sexy voice" message on Ms. Porter's phone, as well as the prior decisions on four other occasions to allow employees to withdraw their resignations.

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