Table of Contents

Table of Authorities........................................................................... iii

Statement of Interest.......................................................................... 1

Statement of the Issues...................................................................... 2

Statement of the Case........................................................................ 2

1. Statement of Facts.............................................................. 2

2. District Court Decision....................................................... 5

Argument.............................................................................................. 7

The district court relied on incorrect standards when it

determined that the written warning AGC issued to Randle

did not amount to a materially adverse action for purposes of

a Title VII retaliation claim.................................................... 7

A. Whether an individual continues to engage in protected

activity after receiving allegedly retaliatory discipline from

his employer has no bearing on whether that discipline

constitutes a materially adverse action......................... 5

B. Whether “colorable grounds exist” for disciplinary action

taken by the employer has no bearing on whether that

discipline constitutes a materially adverse action..... 16

1. The district court’s “colorable grounds” basis for

assessing whether disciplinary action is materially

adverse is irreconcilable with Burlington Northern.............................................................................................................. 16

2. The district court’s “colorable grounds” approach

conflicts with controlling authority governing

the analysis of retaliation claims on summary judgment............................................................................................. 18

Conclusion.......................................................................................... 25

Certificate of Service

Certificate of Compliance

Table of Authorities

CasesPage(s)

Aryain v. Wal-Mart Stores Tex., L.P.,

534 F.3d 473 (5th Cir. 2008)................................................. 11

Badgerow v. REJ Props., Inc.,

974 F.3d 610 (5th Cir. 2020).......................................... 19, 20

Baloch v. Kempthorne,

550 F.3d 1191 (D.C. Cir. 2008)............................................. 14

Burlington N. & Santa Fe Ry. Co. v. White,

548 U.S. 53 (2006).......................................................... passim

Burrus v. United Tel. Co. of Kan., Inc.,

683 F.2d 339 (10th Cir. 1982)............................................... 21

Byers v. Dallas Morning News, Inc.,

209 F.3d 419 (5th Cir. 2000)................................................. 19

Davis v. Veslan Enters.,

765 F.2d 494 (5th Cir. 1985)................................................. 18

DeHart v. Baker Hughes Oilfield Operations, Inc.,

214 F. App’x 437 (5th Cir. 2007)............................. 12, 13, 25

Foster v. Univ. of Md.-E. Shore,

787 F.3d 243 (4th Cir. 2015)................................................. 23

Gumpert v. ABF Freight Sys., Inc.,

293 S.W.3d 256 (Tex. Ct. App. 2009)..................................... 6

Jackson v. Honeywell Int’l, Inc.,

601 F. App’x 280 (5th Cir. 2015).................. 5, 10, 12, 18, 24

Lake v. Yellow Transp., Inc.,

596 F.3d 871 (8th Cir. 2010)................................................. 23

Latiolais v. Huntington Ingalls, Inc.,

951 F.3d 286 (5th Cir. 2020)................................................. 18

Love v. Motiva Enters. LLC,

349 F. App’x 900 (5th Cir. 2009)............................. 12, 13, 24

Lynn v. Regents of the Univ. of Cal.,

656 F.2d 1337 (9th Cir. 1981)............................................... 24

McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973)............................................................ 7, 20

Medina v. Ramsey Steel Co.,

238 F.3d 674 (5th Cir. 2001)................................................. 21

Patane v. Clark,

508 F.3d 106 (2d Cir. 2007)............................................ 14, 15

Patrick v. Ridge,

394 F.3d 311 (5th Cir. 2004)................................................. 20

Reed v. Neopost USA, Inc.,

701 F.3d 434 (5th Cir. 2012)................................................. 19

Robinson v. Shell Oil Co.,

519 U.S. 337 (1997)............................................................ 9, 12

Somoza v. Univ. of Denver,

513 F.3d 1206 (10th Cir. 2008)............................................ 14

Tex. Dep’t of Cmty. Affairs v. Burdine,

450 U.S. 248 (1981)................................................................ 21

Univ. of Tex. Sw. Med. Ctr. v. Nassar,

570 U.S. 338 (2013)................................................................ 17

Vessels v. Atlanta Indep. Sch. Sys.,

408 F.3d 763 (11th Cir. 2005)............................................... 22

Welsh v. Ft. Bend Indep. Sch. Dist.,

941 F.3d 818 (5th Cir. 2019)............................................ 8, 16

Wexler v. White’s Fine Furniture, Inc.,

317 F.3d 564 (6th Cir. 2003)................................................. 23

Wheat v. Fla. Parish Juvenile Justice Comm’n,

811 F.3d 702 (5th Cir. 2016)................................................... 9

Statutes

42 U.S.C. §§ 2000e et seq.................................................................... 1

42 U.S.C. § 2000e-3(a).................................................................. 8, 11

42 U.S.C. § 2000e-5(f)(1).................................................................. 12

Rules

Fed. R. App. P. 29(a)(2)...................................................................... 2

Other Authority

EEOC Enforcement Guidance on Retaliation and Related Issues, No. 915-004, at II.B.1 (Aug. 25, 2016) (available at https://www.eeoc.gov/

laws/guidance/enforcement-guidance-retaliation-and-related-issues) (last visited May 10, 2021)................................................. 15

Statement of Interest

Congress charged the Equal Employment Opportunity Commission (“EEOC” or “Commission”) with enforcing federal prohibitions on employment discrimination, including Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”). In this state law retaliation suit, the district court concluded, in part, that the written discipline the plaintiff received from his former employer did not constitute a materially adverse action capable of supporting a retaliation claim. The court reached this result based on an unpublished decision of this Court holding that, for purposes of a Title VII retaliation claim, a written disciplinary action is not materially adverse so long as (1) there were “colorable grounds” for the discipline or (2) the plaintiff continued to engage in protected activity after receiving the discipline. In so ruling, however, the district court applied unduly narrow standards that contravene congressional intent behind the statute’s anti-retaliation provision, as well as Supreme Court and other precedent.

Because of the importance of this issue to the effective enforcement of Title VII, the EEOC respectfully offers its views to the Court. As a federal agency, the EEOC is authorized to participate as amicus curiae in the courts of appeals. Fed. R. App. P. 29(a)(2).

Statement of the Issues[1]

1. Whether the district court erred in ruling that an employee who continues to engage in protected activity after experiencing allegedly retaliatory discipline from his employer cannot establish that the discipline constitutes a materially adverse action for purposes of a Title VII retaliation claim.

2. Whether the district court erred in concluding that, if an employer can show that “colorable grounds” exist for issuing written discipline to an employee, that discipline cannot constitute a materially adverse action for purposes of a Title VII retaliation claim.

Statement of the Case

1. Statement of Facts[2]

In January 2018, plaintiff Joe Randle began working as a laborer and equipment operator on a highway construction project for defendants Dragados USA, Inc., Pulice Construction, Inc., and Shikun & Binui America, Inc., members of defendant Almeda-Genoa Constructors (collectively, “AGC”). District Court Docket Number (“R.”) 37 at 1-2. Randle worked on a crew supervised by Galvino Barrera, a project foreman, until February 22, 2018, when Barrera was replaced. Id. at 3.

Randle alleged that, in early February 2018, bulldozer operator Francisco Botello touched him on the buttocks on two occasions. Id. at 22; R.27-4 at 9-12. Both incidents occurred in front of Barrera, but Barrera refused to do anything about it. R.37 at 22. On or around February 8, 2018, Randle complained to Human Resources Manager Carla Bright about the two incidents. Id. at 23.

On February 8 or 9, 2018, Barrera issued Randle a “Disciplinary Action Form,” describing Randle’s workplace conduct violations as “[t]aking long unauthorized breaks,” “[b]eing on the phone inside the car and away from the crew during working hours,” and “[n]ot following directions when operating equipment.” Id. at 16-18. Subsequently, Randle again contacted Bright to ask whether she had spoken to Botello. Id. at 28. Randle contended that he did not know if Bright investigated the matter; Bright testified that she did so, speaking with Botello and Barrera and then concluding that the complaint was unfounded. Id. at 28-29.

On March 9, 2018, AGC terminated Randle. Id. at 2-3. The reasons AGC gave for Randle’s termination were his “repeatedly violating work rules by using his cell phone while working, taking long and unauthorized breaks, abandoning his position without notice to his supervisors, and incorrectly reporting on the job training hours.” Id. at 3.

Randle ultimately filed suit, alleging that AGC had discriminated against him in violation of the Texas Commission on Human Rights Act based on his race, color, and sex, and in retaliation for engaging in protected activity. Id. at 1, 30. AGC moved for summary judgment on all claims, but on summary judgment the parties did not dispute that the two acts Randle alleged to be retaliatory—issuance of the Disciplinary Action Form and his termination—constituted materially adverse actions sufficient to support a retaliation claim. See generally R.27 at 21-23 (AGC’s summary judgment motion and supporting brief); R.28 (Randle’s summary judgment response); R.30 at 4-5 (AGC’s summary judgment reply).

2. District Court Decision

The district court granted summary judgment to the defendants on all claims. R.37. at 2. The court began by recognizing that the same analytical framework applicable to Title VII claims governed its evaluation of Randle’s state-law claims. Id. at 5-6. Regarding the retaliation claim, the court stated, to establish a prima facie case Randle needed to show that he had engaged in protected activity and suffered a materially adverse action, and that a causal link existed between the protected activity and the adverse action. Id. at 31-32 (citations omitted).

The court found that Randle’s complaints to HR constituted protected activity. Id. at 32. Next, although the parties had not disputed that the written discipline and termination constituted materially adverse actions, the court nevertheless addressed the question on its own initiative, holding that only the termination qualified. Id. at 33-34. As support for its conclusion, the court cited Jackson v. Honeywell International, Inc., 601 F. App’x 280, 286 (5th Cir. 2015) (unpubl.), a decision addressing a Title VII retaliation claim, for the proposition that “written warnings and unfavorable performance reviews are not adverse employment actions where colorable grounds exist for disciplinary action or where the employee continues to engage in protected activity.”^{^[3]} Id. at 34-35. According to the court, the declarations of Bright and other AGC officials had provided “colorable grounds” for the written warning. Id. at 35. The court also pointed to Randle’s deposition testimony that “after he complained of Botello’s conduct to Bright in February of 2018, he returned to Bright on March 9, 2018, to ask about her investigation”—which, it stated, “shows that the written warning did not dissuade Randle from continuing to engage in arguably protected conduct.” Id. From this, the court concluded that the written warning did not constitute a materially adverse action. Id.

Argument

The district court relied on incorrect standards when it determined that the written warning AGC issued to Randle did not amount to a materially adverse action for purposes of a Title VII retaliation claim.

The district court based its conclusion that AGC’s written warning to Randle did not constitute a materially adverse action for retaliation purposes on an erroneous legal standard borrowed from an unpublished decision of this Court. Neither a plaintiff’s continued engagement in protected activity nor the existence of “colorable grounds” for the discipline is relevant to the objective inquiry of whether the employer’s action might have dissuaded a reasonable worker from making or supporting a charge of discrimination. The district court’s contrary ruling is inconsistent with the standards in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006), McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and other Supreme Court cases, and precedential decisions of this Court and other courts of appeals.

A. Whether an individual continues to engage in protected activity after receiving allegedly retaliatory discipline from his employer has no bearing on whether that discipline constitutes a materially adverse action.

Title VII provides that “[i]t shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment … because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). “A litigant who alleges retaliation arising from allegations of discrimination in the workplace must establish (1) that he or she engaged in activity protected by Title VII; (2) that the employer took adverse action against him or her; and (3) that a causal connection exists between the protected activity and the adverse action.” Welsh v. Ft. Bend Indep. Sch. Dist., 941 F.3d 818, 826 (5th Cir. 2019) (internal citation omitted).

As the Supreme Court has explained, Title VII’s “antiretaliation provision protects an individual not from all retaliation, but from retaliation that produces an injury or harm.” Burlington N., 548 U.S. at 67. For this reason, in Burlington Northern, the Court adopted an objective standard “to describe the level of seriousness to which this harm must rise before it becomes actionable retaliation.” Id. The challenged action must be “materially adverse”—i.e., conduct that “might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Burlington N., 548 U.S. at 68 (internal citations and quotation marks omitted); see also Wheat v. Fla. Parish Juvenile Justice Comm’n, 811 F.3d 702, 705-06 & n.1 (5th Cir. 2016).

Recognizing that “Title VII depends for its enforcement upon the cooperation of employees who are willing to file complaints and act as witnesses,” the Court reiterated that “[t]he antiretaliation provision seeks to prevent employer interference with ‘unfettered access’ to Title VII’s remedial mechanisms.” Burlington N., 548 U.S. at 67-68 (quoting in part Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997)). “It does so by prohibiting employer actions that are likely ‘to deter victims of discrimination from complaining to the EEOC,’ the courts, and their employers.” Id. (quoting Robinson, 519 U.S. at 346)).

The Burlington Northern Court explained that this standard focuses on the “reactions of a reasonable employee” because “the provision’s standard for judging harm must be objective,” which makes it “judicially administrable” and accords with “the need for objective standards in other Title VII contexts.” Id. at 68-69 (citing cases). At the same time, the Court “phrase[d] the standard in general terms because the significance of any given act of retaliation will often depend upon the particular consequences. Context matters.” Id. at 69. “Hence, a legal standard that speaks in general terms rather than specific prohibited acts is preferable, for an ‘act that would be immaterial in some situations is material in others.’” Id. (citation omitted).

Here, the district court initially identified the correct materially-adverse-action standard from Burlington Northern. However, it assessed whether Randle had been subjected to a materially adverse action by reference to Jackson v. Honeywell International, Inc., 601 F. App’x 280, 286 (5th Cir. 2015), an unpublished decision involving a Title VII retaliation claim. R.37 at 33. On this point, Jackson states that “written warnings and unfavorable performance reviews are not adverse employment actions where colorable grounds exist for disciplinary action or where the employee continues to engage in protected activity.” 601 F. App’x at 286. Thus, according to Jackson and the district court here, if an employee should remain undeterred from engaging in protected activity by an act of employer discipline—no matter how strong the evidence of a retaliatory motive for the discipline—that action cannot form the basis for a retaliation claim.

In so ruling, the court erred. The approach taken by Jackson and the district court here contravenes Burlington Northern’s objective standard by shifting the focus from whether the disciplinary action might dissuade a reasonable worker from engaging in protected activity to whether it did in fact dissuade the particular plaintiff in the case.

Moreover, the analysis in Jackson and the district court’s decision creates a perverse incentive for workers who have complained once, and suspect retaliation, not to make or support further discrimination charges. For example, further protected activity necessarily includes additional complaints to the employer, see Aryain v. Wal-Mart Stores Stores Tex., L.P., 534 F.3d 473, 478 & n.8 (5th Cir. 2008) (citation omitted), and filing a charge with the Commission, see 42 U.S.C. § 2000e-3(a). But under the Jackson approach, were an individual to take either of these protected actions, such action would immediately insulate his employer from liability for any prior alleged retaliatory written discipline. Thus, a claimant alleging that his employer subjected him to retaliatory discipline would be effectively barred from securing any remedy for the employer’s unlawful conduct—and, were the employer to retaliate further, the same cycle of insulation would only continue into the future. See 42 U.S.C. § 2000e-5(f)(1). This result is at odds with Title VII’s antiretaliation provision and Congress’s expressed intent to encourage and protect individuals’ access to the statute’s remedial mechanisms, as well as with controlling authority interpreting that provision. See supra pp. 8-10 (citing Burlington N., 548 U.S. at 67-68; Robinson, 519 U.S. at 346).

Somewhat puzzlingly, Jackson cited Burlington Northern as support for its holding on this point. 601 F. App’x at 286. As explained above, however, the standard in Jackson is inconsistent with Burlington Northern’s objective test, and Jackson offers no rationale for how they might be reconciled. Nor do the two additional, unpublished decisions cited by Jackson offer its approach any meaningful support.

First, neither Jackson itself nor the unpublished decisions it cites—DeHart v. Baker Hughes Oilfield Operations, Inc., 214 F. App’x 437, 442 (5th Cir. 2007) (per curiam), and Love v. Motiva Enterprises LLC, 349 F. App’x 900, 904-05 (5th Cir. 2009) (per curiam)—constitutes controlling precedent in this Court. Setting aside their lack of precedential value, neither decision provides any basis for Jackson’s deviation from the Burlington Northern standard. In Love, this Court cited the correct, objective materially-adverse-action standard from Burlington Northern, and ultimately determined that the written discipline at issue in that case “would not have ‘dissuaded a reasonable worker from making or supporting a charge of discrimination.’” 349 F. App’x at 904. In so concluding, however, Love did not suggest that a plaintiff’s subsequent protected activity had any bearing on whether she had been subjected to a materially adverse action. See id.

In DeHart, this Court also initially stated the correct Burlington Northern standard but, like Jackson and the district court here, applied it in a way that was inconsistent with that standard. See 214 F. App’x at 442. This Court concluded that the written warning at issue would not “have dissuaded a reasonable worker from making or supporting a charge of discrimination” because the plaintiff had not in fact been dissuaded from filing a charge several weeks later, and because “there were colorable grounds for the warning.”^{^[4]} Id. DeHart thus began the unexplained deviation from Burlington Northern that continued with Jackson and the district court in this case.

Other courts of appeals to have squarely addressed the question have rejected the notion that for an employer’s alleged retaliatory action to be materially adverse, it must in fact dissuade the individual from engaging in protected activity. See Baloch v. Kempthorne, 550 F.3d 1191, 1199 n.5 (D.C. Cir. 2008) (Kavanaugh, J.) (“The District Court explained that Baloch had not been dissuaded from making charges of discrimination and that the alleged actions therefore could not have been materially adverse.… We disagree with the District Court’s reasoning on this one point because it appears that the court focused on Baloch’s subjective reactions rather than on whether the objective ‘reasonable worker’ would have been dissuaded from making a discrimination complaint.”) (citing Burlington N., 548 U.S. at 68); Patane v. Clark, 508 F.3d 106, 116 (2d Cir. 2007) (rejecting the employer’s argument that its conduct did not satisfy the Burlington Northern standard because it did not dissuade the plaintiff herself from reporting sexual harassment again when it recurred; recognizing that such a rule “would require that no plaintiff who makes a second complaint about harassment could ever have been retaliated against for an earlier complaint”); but see Somoza v. Univ. of Denver, 513 F.3d 1206, 1214 (10th Cir. 2008) (in case where employees continued to engage in protected activity after employer took action against them, noting that an employee’s continuing to do so “may shed light as to whether the actions are sufficiently material and adverse”; ultimately concluding for other reasons that the action at issue did not meet the Burlington Northern standard).

In addition, Commission policy guidance is consistent with the approach of Baloch and Patane. In its Enforcement Guidance on Retaliation and Related Issues, the EEOC recognizes both that the Burlington Northern materially adverse action standard “can be satisfied even if the individual was not in fact deterred.” EEOC Enforcement Guidance on Retaliation and Related Issues, No. 915-004, at II.B.1 (Aug. 25, 2016) (“Retaliation Guidance”) (citing Patane, 508 F.3d at 116) (last visited May 10, 2021).[5] The Retaliation Guidance also recognizes that the type of employer actions covered by that standard may include “warnings, reprimands,” and “negative or lowered evaluations.” Id. at II.B.2.

B. Whether “colorable grounds exist” for disciplinary action taken by the employer has no bearing on whether that discipline constitutes a materially adverse action.

1. The district court’s “colorable grounds” basis for assessing whether disciplinary action is materially adverse is irreconcilable with Burlington Northern.

As explained in Section I above, there are three elements to a retaliation claim under Title VII: protected activity, materially adverse action, and causation. See supra p. 8 (citing Welsh, 941 F.3d at 826). As to the second element, in Burlington Northern the Supreme Court adopted the objective “materially adverse action” standard to define the kinds of “injury or harm” that rise to an actionable level under the statute, based on the likely effect of the employer’s action on the individual. See supra pp. 8-10; Burlington N., 548 U.S. at 68 (“[A] plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”) (internal citations and quotation marks omitted). The third element, by contrast, focuses on the employer’s reasons for taking the action in question and whether retaliation was a but-for cause of that action. See generally Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 362 (2013).

The district court here, following Jackson, stated that “written warnings and unfavorable performance reviews are not adverse employment actions where colorable grounds exist for disciplinary action.” R.37 at 34. In so doing, the court contravened Burlington Northern by confusing the second element of a retaliation claim, materially adverse action, with the third, causation. The employer’s reasons for taking the action are unquestionably relevant to causation, but they have no bearing on the Burlington Northern materially adverse action inquiry, which asks whether the action might well have dissuaded a reasonable worker from engaging in protected activity. Thus, whatever evidence there may be regarding the employer’s reasons for taking the alleged retaliatory action, the district court’s assessment of them as germane to the adverse-action element of a retaliation claim cannot be reconciled with Burlington Northern.

2. The district court’s “colorable grounds” approach conflicts with controlling authority governing the analysis of retaliation claims on summary judgment.

The “colorable grounds” analysis also conflicts with the well-established standard for analyzing Title VII retaliation claims on summary judgment, and undermines the purposes behind that analytical framework.

As a preliminary matter, we note that neither the district court nor Jackson explained or defined the phrase “colorable grounds.” See R.37 at 33-34; Jackson, 601 F. App’x at 286. Nevertheless, courts routinely describe the term “colorable” as similar to the term “plausible”—i.e., suggesting a minimal burden of production, and not a burden of proof or persuasion. See, e.g., Latiolais v. Huntington Ingalls, Inc., 951 F.3d 286, 297 (5th Cir. 2020) (stating that “an asserted federal defense is colorable unless it is ‘immaterial and made solely for the purpose of obtaining jurisdiction’ or ‘wholly insubstantial and frivolous,’” and adding that “if a defense is plausible, it is colorable”) (citations omitted); Davis v. Veslan Enters., 765 F.2d 494, 498 n.5 (5th Cir. 1985) (discussing another court of appeals’ description of a “colorable claim” as “when it has some legal and factual support, considered in light of the reasonable belief of the person making the claim,” and observing that “there may be little difference between a ‘colorable claim’ and a ‘plausible view’”).

Requiring an employer to produce a plausible reason—or “colorable grounds”—for an action is roughly equivalent to the defendant’s evidentiary burden of production at the second stage of the burden-shifting framework set forth in McDonnell Douglas and adopted by this Court to evaluate Title VII retaliation claims on summary judgment. See, e.g., Badgerow v. REJ Props., Inc., 974 F.3d 610, 618-19 (5th Cir. 2020); Byers v. Dallas Morning News, Inc., 209 F.3d 419, 427 (5th Cir. 2000). Under the McDonnell Douglas framework, a plaintiff bears the initial burden to show that he engaged in activity protected by Title VII, that a materially adverse action occurred, and that a causal link existed between the protected activity and the adverse action. Badgerow, 974 F.3d at 618. This Court has explained that the plaintiff’s initial burden “is not onerous.” Reed v. Neopost USA, Inc., 701 F.3d 434, 439 (5th Cir. 2012) (citations omitted). Once the plaintiff meets his “minimal initial burden,” id., “the burden shifts to the employer ‘to articulate some legitimate, nondiscriminatory reason’ for its actions,” Badgerow, 974 F.3d at 619 (citing McDonnell Douglas, 411 U.S. at 802). “If the employer proffers a legitimate, nondiscriminatory reason, the burden then returns to the plaintiff to prove that the employer’s reason is pretext for unlawful discrimination.” Badgerow, 974 F.3d at 619 (citation omitted). At the third, “pretext” stage, the court addresses the ultimate question of whether “the adverse action would not have occurred but for [her] employer’s retaliatory motive,” providing the plaintiff the opportunity to challenge the truth of the defendant’s explanation for its motivation. See id.

Here the district court held that Randle had not even satisfied the first stage of the McDonnell Douglas framework (the prima facie case) because the employer, in effect, satisfied its second-stage burden by invoking “colorable grounds”—that is, by producing evidence that it took the contested action for a legitimate, nonretaliatory reason. The approach the court took here deprived Randle of the opportunity to challenge AGC’s explanation as false and to show that AGC’s true motivation was retaliatory. This result plainly undermines the purpose of the McDonnell Douglas framework: focusing the court’s inquiry on the employer’s motive for its action. See, e.g., Patrick v. Ridge, 394 F.3d 311, 319 (5th Cir. 2004) (“The purpose of the McDonnell Douglas framework … is to ‘sharpen the inquiry’ of the court with respect to the ultimate issue in the case, intentional discrimination.” (quoting in part Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 255 n.8 (1981)).

This Court and other courts of appeals have recognized that a district court errs when it bypasses the McDonnell Douglas framework and holds that the employer’s proffered explanation for its conduct itself undermines the plaintiff’s prima facie case. These decisions recognize that such an approach prevents the plaintiff from challenging the employer’s explanation as pretextual. In Medina v. Ramsey Steel Co., a Title VII discrimination case pre-dating Jackson, this Court held that the defendant’s subjective reasons for not promoting the plaintiff—his alleged lack of qualifications—were not to be addressed at the prima facie stage. 238 F.3d 674, 680-81 (5th Cir. 2001). The Court recognized that “[i]f a failure to satisfy subjective hiring criteria could defeat an employee’s prima facie case, the court then would not be required to consider evidence of pretext. Thus the use of the subjective hiring criteria would go unchallenged.” Id. at 681 (quoting in part Burrus v. United Tel. Co. of Kan., Inc., 683 F.2d 339, 342 (10th Cir. 1982) (internal quotation marks omitted)). “This result would ‘collapse the analysis into a single initial step at which all issues would be resolved.’” Id. (quoting Burrus, 683 F.2d at 342).

Other circuit courts of appeals have similarly recognized that considering the employer’s explanation at the prima facie stage allows it to defeat the prima facie case while depriving the plaintiff of an opportunity to challenge that explanation as pretextual, and so is at odds with the McDonnell Douglas framework. For example, in Vessels v. Atlanta Independent School System, the Eleventh Circuit held that “[a] contrary rule, under which an employer’s subjective evaluation could defeat the plaintiff’s initial prima facie case, cannot be squared with the structure and purpose of the McDonnell Douglas framework.” 408 F.3d 763, 769 (11th Cir. 2005). The court reasoned, “[i]f we were to hold an employer’s subjective evaluations sufficient to defeat the prima facie case, the court’s inquiry would end, and plaintiff would be given no opportunity to demonstrate that the subjective evaluation was pretextual. Such a blind acceptance of subjective evaluations is at odds with the intent that underlies the McDonnell Douglas framework.” Id.

Similarly, in Wexler v. White’s Fine Furniture, Inc., the Sixth Circuit, sitting en banc, held that “a court may not consider the employer’s alleged nondiscriminatory reason for taking an adverse employment action when analyzing the prima facie case. To do so would bypass the burden-shifting analysis and deprive the plaintiff of the opportunity to show that the nondiscriminatory reason was in actuality a pretext designed to mask discrimination.” 317 F.3d 564, 574 (6th Cir. 2003) (en banc) (citation omitted). Other circuits have reached the same conclusion. See Foster v. Univ. of Md.-E. Shore, 787 F.3d 243, 251 (4th Cir. 2015) (observing that “applying the ultimate causation standard at the prima facie stage” “would be tantamount to eliminating the McDonnell Douglas framework in retaliation cases,” with the result being that “plaintiffs who cannot satisfy their ultimate burden of persuasion without the support of pretext evidence would never be permitted past the prima facie stage to reach the pretext stage”); Lake v. Yellow Transp., Inc., 596 F.3d 871, 874 (8th Cir. 2010) (recognizing that a plaintiff “is not required to disprove [the defendant’s] reason for firing him at [the prima facie] stage of the analysis. If he were, the McDonnell Douglas burden-shifting analysis would collapse into the second element of the prima facie case. The prima facie burden is not so onerous.” (citations and internal quotation marks omitted)); Lynn v. Regents of the Univ. of Cal., 656 F.2d 1337, 1344 (9th Cir. 1981) (concluding that “objective job qualifications are best treated at step one and subjective criteria … are best treated at the later stages of the process,” as “[t]o do otherwise would in many instances collapse the three step analysis into a single initial step at which all issues would be resolved. This would defeat the purpose underlying the McDonnell Douglas process”).

As noted above, the district court cited Jackson as support for this “colorable grounds” approach, see R.37 at 34, and Jackson in turn pointed to Love and DeHart as support, see 601 F. App’x at 286 n.2. However, neither Love nor DeHart offers any meaningful support for that approach.

In Love, the court simply stated as part of its assessment of whether the claimed retaliatory action was materially adverse that “[t]he record further shows that there were colorable grounds for the Oral Reminder” and “Love failed to meet this evidence with sufficient, competent rebuttal evidence.” 349 F. App’x at 904-05. DeHart made a case-specific analysis of the evidence, observing that “there were colorable grounds for the warning” and concluding that “[u]nder the facts before us … the written warning to DeHart would not ‘have dissuaded a reasonable worker from making or supporting a charge of discrimination.’” 214 F. App’x at 442 (quoting in part Burlington N., 548 U.S. at 68). Neither Love nor DeHart purported to set out a general rule that, where such grounds exist, a plaintiff cannot establish a materially adverse action as a matter of law, or addressed whether such a rule would be consistent with the McDonnell Douglas framework. See Love, 349 F. App’x at 904-05; DeHart, 214 F. App’x at 440-42.

Conclusion

For the foregoing reasons, the district court erred in its analysis of whether AGC subjected Randle to a materially adverse action.

Respectfully submitted,

GWENDOLYN YOUNG REAMS

Acting General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

ELIZABETH E. THERAN

Assistant General Counsel

s/ James M. Tucker

JAMES M. TUCKER

Attorney

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

131 M St. NE, Rm. 5NW10P

Washington, D.C. 20507

(202) 921-2554

James.Tucker@EEOC.gov

[1] We take no position on any other issue in this appeal.

[2] Because the Commission takes no position on any disputed facts in this case, this brief relies primarily on the factual recitation in the district court’s summary judgment decision.

[3] The court also cited Gumpert v. ABF Freight Sys., Inc., 293 S.W.3d 256, 263 (Tex. Ct. App. 2009), describing it as “holding that a ‘single alleged disciplinary action does not amount to a materially adverse employment action necessary to support a claim for retaliation.” (emphasis added). While not material to the EEOC’s argument here, we note that the district court misquoted and misinterpreted Gumpert on this point. Rather than announcing a categorical rule that a single alleged disciplinary action does not amount to a materially adverse employment action, Gumpert stated only that “this single alleged disciplinary action does not amount to a materially adverse employment action necessary to support a claim for retaliation.” Gumpert, 293 S.W.3d at 263 (citation omitted).

[4] We discuss the error of this “colorable grounds” standard in section II.B, infra pp. 18-25.

[5] At https://www.eeoc.gov/laws/guidance/enforcement-guidance-retaliation-and-related-issues.