Table of Contents

I. A reasonable jury could find that Lemonia experienced actionable race-based harassment based on record evidence that someone placed a noose in his workspace. 11

II. A reasonable jury could find that putting Lemonia on a PIP was a materially adverse action supporting his retaliation claim. 17

III. Retaliation in the form of harassment is actionable if the harassing conduct could deter a reasonable employee from engaging in protected activity. 21

Certificate of Compliance. 26

Table of Authorities

Cases

Agusty-Reyes v. Dep’t of Educ.,

.. 601 F.3d 45 (1st Cir. 2010).............................. 25, 26

Babb v. Secy., Dep’t of Veterans Affs.,

.. 992 F.3d 1193 (11th Cir. 2021)............................... 24

Bagwe v. Sedgwick Claims Mgmt. Servs., Inc.,

.. 811 F.3d 866 (7th Cir. 2016).................................. 21

Ballard v. Burton,

.. 444 F.3d 391 (5th Cir. 2006)................................. 21

Berry v. Tex. Woman’s Univ.,

.. 528 F. Supp. 3d 579 (E.D. Tex. 2021)..................... 15

Brooks v. Firestone Polymers, LLC,

.. 70 F. Supp. 3d 816 (E.D. Tex. 2014)....................... 17

Brown v. Peterson,

.. No. 7:03 CV 0205, 2006 WL 349805 (N.D. Tex. Feb. 3, 2006)................................................................ 15

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

.. 548 U.S. 53, 57 (2006)................. 1, 18, 19, 20, 22, 23

Davis v. Ochsner Med. Ctr.,

.. No. 15-cv-88, 2016 WL 1383638 (E.D. La. Apr. 7, 2016).................................................................... 18

Donaldson v. CDB, Inc.,

.. 335 F. App’x 494 (5th Cir. 2009)..................... 24, 27

EEOC v. WC&M Enters., Inc.,

.. 496 F.3d 393 (5th Cir. 2007)............................ 12, 13

Gowski v. Peake,

.. 682 F.3d 1299 (11th Cir. 2012).............................. 24

Harris v. Forklift Sys., Inc.,

.. 510 U.S. 17 (1993)............................................. 12, 17

Hawkins v. Anheuser-Busch, Inc.,

.. 517 F.3d 321 (6th Cir. 2008)................................. 26

Heath v. Bd. of Supervisors for S. Univ. & Agric. & Mech. Coll.,

.. 850 F.3d 731 (5th Cir. 2017).................................. 23

Hobbs v. City of Chicago,

.. 573 F.3d 454 (7th Cir. 2009)................................. 26

Hudson v. Cleco Corp.,

.. 539 F. App’x 615 (5th Cir. 2013)............................. 13

Jackson v. Honeywell Int’l, Inc.,

.. 601 F. App’x 280 (5th Cir. 2015)..................... 20, 22

Johnson v. PRIDE Indus., Inc.,

.. 7 F.4th 392 (5th Cir. 2021)............................... 13, 16

Lauderdale v. Tex. Dept. of Crim. Just.,

.. 512 F.3d 157 (5th Cir. 2007).................................. 12

Laurent-Workman v. Wormuth,

.. 54 F.4th 201 (4th Cir. 2022)................................. 26

McClain v. Lufkin Indus., Inc.

.. 649 F.3d 374 (5th Cir. 2011).................................. 21

Michael v. Caterpillar Fin. Servs. Corp.,

.. 496 F.3d 584 (6th Cir. 2007)................................. 21

Monaghan v. Worldpay US, Inc.,

.. 955 F.3d 855 (11th Cir. 2020).......................... 25, 27

Moore v. City of Phila.,

.. 461 F.3d 331 (3d Cir. 2006).................................. 26

Morris v. Pellerin Milnor Corp.,

.. No. 16-cv-15905, 2018 WL 1726257 (E.D. La. Apr. 10, 2018)...................................................... 9, 14, 17

Newbury v. City of Windcrest,

.. 991 F.3d 672 (5th Cir. 2021)............................. 10, 19

Noviello v. City of Boston,

.. 398 F.3d 76 (1st Cir. 2005)................................... 26

Payan v. UPS,

.. 905 F.3d 1162 (10th Cir. 2018).............................. 21

Pérez-Cordero v. Wal-Mart P.R., Inc.,

.. 656 F.3d 19 (1st Cir. 2011)..................................... 26

Porter v. Erie Food Int’l, Inc.,

.. 576 F.3d 629 (7th Cir. 2009)................................. 16

Porter v. Shah,

.. 606 F.3d 809 (D.C. Cir. 2010)............................... 21

Poullard v. McDonald,

.. 829 F.3d 844 (7th Cir. 2016)................................. 25

Ray v. Tandem Computers, Inc.,

.. 63 F.3d 429 (5th Cir. 1995)................................... 20

Strong v. Univ. Healthcare Sys., LLC,

.. 482 F.3d 802 (5th Cir. 2007)................................ 22

Tademy v. Union Pac. Corp.,

.. 614 F.3d 1132 (10th Cir. 2008)......................... 14, 16

Thibodeaux-Woody v. Hous. Cmty. Coll.,

.. 593 F. App’x 280 (5th Cir. 2014)............................ 11

Vance v. S. Bell Tel. & Tel. Co.,

.. 863 F.2d 1503 (11th Cir. 1989)............................... 16

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

.. 941 F.3d 818 (5th Cir. 2019)............................ 10, 20

Woods v. Cantrell,

.. 29 F.4th 284 (5th Cir. 2022).................................. 13

Statutes

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

42 U.S.C. § 2000e-2(a)(1)......................................... 12

Regulations

EEOC Compliance Manual § 15-VII, 2006 WL 4673430 (2006))................................................... 17

EEOC Enforcement Guidance on Retaliation and Related Issues, No. 915.004 § II.B.3 (Aug. 25, 2016),

.. https://www.eeoc.gov/laws/guidance/enforcement-guidance-retaliation-and-related-issues................ 27

Statement of Interest

Congress charged the Equal Employment Opportunity Commission (EEOC) with administering and enforcing Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. In this case, where the plaintiff testified and provided photographic evidence that he discovered a noose-shaped wire in his workspace, the district court held as a matter of law that this evidence fell “far short” of establishing a racially hostile work environment. But displaying a noose in an African-American employee’s workspace is precisely the sort of extremely serious conduct that a reasonable jury could find severe enough to establish a hostile work environment.

In addition, the district court held that putting an employee on a performance improvement plan (PIP) is not sufficiently adverse to support an actionable retaliation claim. In doing so, the court failed to apply the governing standard set forth in Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006): whether a reasonable jury could find that the allegedly retaliatory actions, alone or taken together, “could well dissuade a reasonable worker from making or supporting a charge of discrimination.” It also disregarded precedent from this Court holding that a PIP could be an adverse action for retaliation purposes.

Finally, the court ruled that, although this Court has not yet recognized a “retaliatory hostile work environment” claim, even if such a claim exists the plaintiff failed to show that the retaliatory actions he alleged were severe or pervasive enough to be actionable. The Court should take this opportunity to join all other circuits in holding that retaliation in the form of harassment is actionable, and to make clear that Burlington Northern’s “could well dissuade” standard, rather than the “severe or pervasive” test, applies to retaliatory harassment claims. Because the EEOC has an enforcement interest in these questions, we offer our views to the Court. Fed. R. App. P. 29(a).

Statement of the Issues [1]

1. Could a reasonable jury find that an African-American electrician experienced a racially hostile work environment due to an extremely serious incident,, where he testified and provided photographic evidence that someone had shaped his solder wire into a noose and left it in his workspace?

2. Could a reasonable jury find that placing an employee on a PIP is sufficiently adverse to support a Title VII retaliation claim, where failure to achieve the PIP’s objectives in six months would mean likely termination?

3. Can a plaintiff establish a Title VII retaliation claim by showing that the retaliatory harassment he experienced could deter a reasonable employee from engaging in protected activity?

Statement of the Case

I. Statement of Facts

Plaintiff Glenn Lemonia began working as an electrician at the corporate predecessor of Westlake Management Services, Inc., (Westlake) a chemical plant, in 1989. Record on Appeal (ROA) 225, 1512. Lemonia testified that before Westlake’s acquisition in 2016, he saw noose-shaped objects in the workplace, White electricians called him “n****r,” and “n****r” was spray-painted in graffiti on the walls. ROA.1512. The year after Westlake’s acquisition, Leon Campbell, the electrical maintenance superintendent and Lemonia’s supervisor, transferred multiple electricians, including Lemonia, to another plant. ROA.228, 272. Lemonia’s union grieved the move, alleging that Westlake had transferred mostly African-American electricians to the plant, but the company’s internal investigation determined that non-African-American employees had been transferred as well, so Westlake denied the grievance. ROA.272-73, 1528. A few months later, Lemonia filed an administrative charge with the EEOC alleging that the transfer discriminated against him and other employees based on race. ROA.116. The EEOC issued a right-to-sue letter, but Lemonia did not pursue the matter in court. ROA.116-17.

In September 2018, Lemonia told Campbell that new chairs in the break room were causing him pain because of his history of kidney stones. ROA.1145. Lemonia said that Campbell screamed and cursed at him in response. ROA.1145. Lemonia reported this incident to his second-level supervisor, Bryan Thompson, and while he provided a note from Westlake’s medical department explaining his need for a different chair, he focused primarily on Campbell’s yelling and swearing at him, which he said occurred frequently. ROA.1145, 1559. Thompson said he advised Lemonia “that he had been known to elevate issues in the past that could be considered minor[.]” ROA.1145. The two discussed Lemonia’s previous complaints, including those regarding racial slurs, personnel moves Lemonia believed to be based on race, and a safety issue regarding workers not wearing hardhats. ROA.1145.

The parties dispute what Thompson told Lemonia next. Thompson said he told Lemonia that he should report “any racial slur or related concern” but should not raise other issues or he would lose credibility. ROA.1145. Lemonia, in contrast, testified that Thompson threatened to take action against him if he filed further complaints at all, raising his voice while saying “If you come to me with another frivolous report … the first thing I’m going to do is counsel you, and then we’re going to go from there.” ROA.1558. Thompson spoke to Campbell, who denied Lemonia’s account of their conversation, and then Thompson “tried to coach plaintiff on how to effectively elevate issues.” ROA.1145. Lemonia filed an internal complaint against Campbell and Thompson for threatening and harassing conduct. ROA.1559.

A month later, Lemonia interviewed with a panel including Campbell and Thompson for one of three open supervisor positions. ROA.1549, 1564-65. Westlake did not offer him a promotion. ROA.1566. While Westlake first offered one position to an older African-American employee, that employee declined because he had another job offer; the company then filled all three positions with White men over twenty years younger than Lemonia. ROA.222-23.

The following month, a human resources (HR) representative interviewed Campbell about Lemonia’s complaints. ROA.1222. On the same day, Campbell temporarily assigned Lemonia and one other electrician to another plant. ROA.1226. Lemonia submitted an internal complaint with HR. ROA.1226. After two weeks, an HR representative met with him about this complaint as well as his prior complaints about his supervisors and informed him that the company determined the transfer was justified. ROA.229.

Later that day, Lemonia discovered that someone had shaped the solder wire he kept at his work station into a noose. ROA.1575 (testifying about finding the noose); 2259-60 (pictures of noose). He reported this immediately, and an internal investigation began. ROA.1576. The union president advised Lemonia to file a report with the local sheriff’s office “so they can’t sweep it under the rug,” and he did so. ROA.1591. Westlake’s internal investigation, which consisted of interviewing employees in Lemonia’s work area, continued through January 2019 but found that no one had noticed anything “noteworthy.” ROA.230.

Director of HR John Boulanger ultimately told Lemonia that “the end of the spool of wire appeared to [him] how [he] would have safely secured the end of the wire.” ROA.277. According to Lemonia, Boulanger did not even understand what type of wire it was. ROA.1620. Boulanger said that Westlake could not identify the person who left the wire there and was thus closing its investigation. ROA.277. Another HR representative testified that Westlake was “unable to substantiate…with substantial proof that it was a discriminatory act, and so there would always be that possibility that it was not.” ROA.2014. She did not recall any electrician in the investigation ever stating that the wire was tied off in a pragmatically useful way. ROA.2015.

While this investigation took place, Westlake was preparing annual performance reviews. ROA.223. Campbell, who reported that he received negative feedback about Lemonia from other employees, gave Lemonia an “unsatisfactory” performance review for 2018. ROA.223, 2338. Campbell put Lemonia on a PIP, which stated that “all Success Factors included in this Performance Improvement Plan must reach an Acceptable result level by the end of the [six-month] plan period.” ROA.2339. At Westlake, if an employee on a PIP does not meet its objectives, his manager works with HR to initiate a process for termination or “further discipline.” ROA.1846.

Lemonia testified that the PIP affected his health because being put on what he viewed as an unnecessary PIP caused him significant stress. ROA.1634. He believed Westlake was “trying to create a paper trail against” him to justify firing him. ROA.1649-50. The union president attended the first-month review of Lemonia’s PIP and asked Campbell whether he had counseled Lemonia or engaged in any progressive discipline before putting him on a PIP. ROA.1648. Campbell said that he had not—rather, he put him on the PIP “because I can do it.” ROA.1648. In June 2019, Lemonia filed a new EEOC charge alleging race and age discrimination and retaliation. ROA.1384-85.

Shortly thereafter, Campbell passed away; about a month later, his replacement, Keith Willis, told Lemonia at his next PIP review meeting that he was not allowed to speak to coworkers about non-work matters during working hours. ROA.1678. Believing Westlake was trying to isolate him from his coworkers as part of a continuing pattern of harassment, Lemonia suffered a panic attack and took medical leave. ROA.1678-79. He received treatment for post-traumatic stress disorder “after struggling with 30 years of threats of being fired, race-based comments, and objects left in his work station.” ROA.1699. After four months, he returned to work for a short time but was so afraid in his work environment that he felt he had no choice but to resign, and he did so. ROA.1686-87, 1778.

After receiving a Notice of Right to Sue from the EEOC, Lemonia brought this suit. He alleged that Westlake subjected him to a hostile work environment based on race, failed to promote him because of his race and age, and retaliated against him for his prior complaints of race and age discrimination, culminating in his constructive discharge. ROA.11-16.

II. District Court’s Decision

Westlake moved for summary judgment on all claims, which the district court granted. ROA.2435. First, the court addressed Lemonia’s claim that Westlake subjected him to a hostile work environment based on his race. ROA.2443. The court held that “the noose incident” alone, while “serious and troubling,” was not severe enough to meet Lemonia’s burden. ROA.2444 (quoting Morris v. Pellerin Milnor Corp., No. 16-cv-15905, 2018 WL 1726257, at *9 (E.D. La. Apr. 10, 2018)). It opined that “the single appearance of what appeared to plaintiff to be a noose … without any previous or subsequent instances of overtly racial harassment or discrimination, falls far short of establishing an actionable hostile work environment[.]” ROA.2445 (quoting Morris, 2018 WL 1726257, at *10).

The court likewise rejected Lemonia’s claims of retaliation under Title VII and other statutes. ROA.2451-61. According to the court, Lemonia claimed that Westlake retaliated against him for “his 2017 EEOC charge, his internal complaint about the noose incident, his 2018 union grievance regarding the temporary transfer, and his 2019 charge of discrimination with the EEOC.” ROA.2451. The court identified the alleged retaliatory acts as: Westlake’s failure to promote Lemonia; the 2018 temporary transfer; the negative performance review and placement on a performance improvement plan in 2019; Willis’ reprimand; a retaliatory hostile work environment; and constructive discharge. ROA.2451.

In relevant part, the court held that neither the PIP nor the reprimand and directive to avoid speaking with colleagues was sufficiently adverse to support a retaliation claim. ROA.2456-57. The court acknowledged that a materially adverse action in the retaliation context is one that “would dissuade a reasonable employee from making a discrimination complaint,” so that a reprimand “may in some circumstances rise to the level of an adverse employment action.” ROA.2456 (citing Newbury v. City of Windcrest, 991 F.3d 672, 678 (5th Cir. 2021)). But, the court held, placement on a PIP “is not an adverse employment action.” ROA.2456 (citing Welsh v. Ft. Bend Indep. Sch. Dist., 941 F.3d 818, 827 (5th Cir. 2019)).

The court likewise concluded that Willis’ reprimand and instruction to Lemonia not to speak to his colleagues about personal matters except during breaks was not an adverse action, in sum, because the court believed the reason for the instruction to be legitimate and based on reasonable feedback. ROA.2457 (“Although plaintiff testified that he took exception to the instruction, he offers no basis for refuting the problem Willis states he was trying to address. The fact that colorable grounds existed for the warning should likewise lead a reasonable employee to understand ‘that the restrictions were not the offspring of a retaliatory mind-set.’”) (cleaned up). And, the court noted, case law supported the conclusion that a reprimand is not “an adverse employment action.” ROA.2457 (citing Thibodeaux-Woody v. Hous. Cmty. Coll., 593 F. App’x 280, 286 (5th Cir. 2014)).

Finally, the district court addressed Lemonia’s claims of a “retaliatory hostile work environment” and constructive discharge. ROA.2458-61. The court noted that “the Fifth Circuit has not yet recognized a cause of action for ‘retaliatory hostile work environment,’” but stated that “[t]o the extent such a claim exists … plaintiff still fails to show sufficiently severe or pervasive treatment.” ROA.2458-59. Because, in the court’s view, Lemonia had not met his burden to show a retaliatory hostile work environment, he also failed to meet the higher threshold for showing constructive discharge based on harassing treatment. ROA.2461.

Argument

I. A reasonable jury could find that Lemonia experienced actionable race-based harassment based on record evidence that someone placed a noose in his workspace.

Title VII provides that an employers may not “discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race.” 42 U.S.C. § 2000e-2(a)(1). “This text prohibits … the creation of a hostile or abusive working environment” based on a protected ground, such as race. Lauderdale v. Tex. Dept. of Crim. Just., 512 F.3d 157, 162 (5th Cir. 2007). To prove a discriminatory hostile work environment claim, the plaintiff must show that the harassment was “sufficiently severe or pervasive to alter the conditions of the victim’s employment.” EEOC v. WC&M Enters., Inc., 496 F.3d 393, 399 (5th Cir. 2007) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)).

In determining whether the evidence meets this bar, “courts consider the totality of the circumstances,” and under that test, “a single incident of harassment, if sufficiently severe, could give rise to a viable Title VII claim.” Id. at 399-400; see also Woods v. Cantrell, 29 F.4th 284, 285 (5th Cir. 2022) (supervisor calling employee a “‘Lazy Monkey A__ N___’ in front of his fellow employees … states an actionable claim of hostile work environment.”). This Court has recognized that “[u]nder the proper circumstances,” a single placement of a noose in an employee’s workspace could “constitute an ‘extremely serious’ isolated event causing a discriminatory change in the terms and conditions of one’s employment.” Hudson v. Cleco Corp., 539 F. App’x 615, 620 (5th Cir. 2013) (per curiam) (explaining that the “sole” incident of displaying a noose might itself “preclude[] summary judgment” had there been any evidence the plaintiff had ever seen the noose or that it was present in her workspace); see also Johnson v. PRIDE Indus., Inc., 7 F.4th 392, 401 n.9 (5th Cir. 2021) (citing Hudson).

The district court was wrong to hold that the circumstances at issue here were not, as a matter of law, serious enough to be actionable. As a preliminary matter, the court’s remark that the solder wire merely “appeared to plaintiff to be a noose,” ROA.2444 (citing Morris, 2018 WL 1726257 at *9), was not appropriate at the summary-judgment stage. See Tademy v. Union Pac. Corp., 614 F.3d 1132, 1140-41 (10th Cir. 2008) (explaining that treating the knot in that case as something other than a noose, as defendant asserted, “does not comport with [the] principle” of drawing all permissible inferences in favor of the non-moving party on summary judgment). Because witnesses offered conflicting testimony, and a jury would not be required to believe the defendant’s version, the court should have assumed that the wire was a noose for purposes of summary judgment.

Second, while the noose may have been the only actionable instance of harassing conduct at issue, the court should not have treated it as if it occurred in a vacuum. In fact, according to Lemonia’s testimony, it occurred after a history of racial conflict and discrimination, including racial slurs, graffiti, and personnel actions Lemonia alleged were based on race. See supra at 3 (describing pre-acquisition race harassment and other alleged discriminatory acts). A jury might well find that this context reasonably contributed to Lemonia’s interpretation of the noose as a serious act of racial hostility. See Tademy, 614 F.3d at 1145-46 (considering other racially discriminatory acts alleged as background evidence in assessing noose’s severity).

Under these circumstances, leaving a noose in Lemonia’s workspace is the type of conduct that a reasonable jury might well find severe enough to create a hostile work environment. Lemonia’s impression that the noose was a race-based threat was tethered not only to his own experience, but also to historical context. A noose is a uniquely violent symbol of racial hatred. As one court explained, “A hangman’s noose is a loath[]some symbol of hatred in its most evil form, a relic of a terrible historical legacy of slavery, oppression, and mass murder. . . .” Berry v. Tex. Woman’s Univ., 528 F. Supp. 3d 579, 610 (E.D. Tex. 2021) (citing Brown v. Peterson, No. 7:03 CV 0205, 2006 WL 349805, at *9 (N.D. Tex. Feb. 3, 2006)). A noose in the workplace “serves no purpose but to intimidate Black employees and remind them of a violent history of slavery, oppression, and mob lynchings during the most deplorable moments in America’s tortured racial history, the remnants of which Title VII is designed to rectify and overcome.” Brown, 2006 WL 349805, at *9. See also Porter v. Erie Food Int’l, Inc., 576 F.3d 629, 636 (7th Cir. 2009) (“Like ‘a slave-masters whip,’ the image of a noose is ‘deeply a part of this country’s collective consciousness and history, any [further] explanation of how one could infer a racial motive appears quite unnecessary.’”) (internal quotations and citations omitted).

Consequently, this Court has noted that “the display of a hangman’s noose at an African-American employee’s workplace could be the type of extremely serious isolated event that constitutes actionable harassment.” Johnson, 7 F.4th at 401 n.9 (cleaned up). Other courts of appeals have similarly recognized the exceptional severity of displaying a noose in the workplace. See, e.g., Cole v. Bd. of Trustees of N. Ill. Univ., 838 F.3d 888, 897 (7th Cir. 2016) (recognizing that intentional placement of a noose in an employee’s workspace was more akin to a threat of violence than an offensive comment such that it could, by itself, preclude summary judgment in a race harassment case); Tademy, 614 F.3d at 1145 (concluding that a “jury could easily find that the noose was an egregious act of discrimination calculated to intimidate African-Americans”); Vance v. S. Bell Tel. & Tel. Co., 863 F.2d 1503, 1511 (11th Cir. 1989) (two instances of a noose hung in an employee’s workspace were severe enough to create a hostile work environment) (abrogated on other grounds by Harris, 510 U.S. 17). Likewise, the EEOC Compliance Manual on Race and Color Discrimination includes “an actual or depicted noose” among “[e]xamples of the types of single incidents that can create a hostile work environment based on race.” EEOC Compliance Manual § 15-VII, 2006 WL 4673430, at text accompanying n.129 (2006)).

To be sure, some district courts within the Fifth Circuit, like those on which the district court relied, have at times treated a single noose as insufficient, but typically only when the noose’s actual impact on the plaintiff was not clear, and the plaintiff did not report or pursue the issue. ROA.2443-44 (citing Morris, 2018 WL 1726257, at *10 (plaintiff hung noose on his wall for a month and did not follow up on report)); Brooks v. Firestone Polymers, LLC, 70 F. Supp. 3d 816, 860-61 (E.D. Tex. 2014) (plaintiff took noose home and did not mention it to anyone); Davis v. Ochsner Med. Ctr., No. 15-cv-88, 2016 WL 1383638, *4 (E.D. La. Apr. 7, 2016) (plaintiff did not report noose)).

Here, a reasonable jury could find that, especially considering Lemonia’s testimony about his other experiences at Westlake, the noose in Lemonia’s workspace was so severe that it altered the conditions of his job.

II. A reasonable jury could find that putting Lemonia on a PIP was a materially adverse action supporting his retaliation claim.

Title VII’s antiretaliation provision “prohibits an employer from ‘discriminat[ing] against’ an employee or job applicant because that individual ‘opposed any practice’ made unlawful by Title VII or ‘made a charge, testified, assisted, or participated in’ a Title VII proceeding or investigation.” Burlington N., 548 U.S. at 56 (citing 42 U.S.C. § 2000e–3(a)). The Supreme Court’s opinion in Burlington Northern provides the governing standard for whether employer retaliation is sufficiently adverse to be actionable under Title VII. Burlington Northern held that Title VII’s antiretaliation provision prohibits any retaliatory actions that are “harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.” Id. at 57. “[U]nlike [Title VII’s] substantive [antidiscrimination] provision,” the antiretaliation provision “is not limited to discriminatory actions that affect the terms and conditions of employment.” Id. at 64.

Here, while the district court recited the correct standard, ROA.2456, its application went astray. In rejecting Lemonia’s claim that the PIP was actionable retaliation, the court incorrectly applied the “adverse employment action” standard for discrimination claims, rather than the “material adversity” standard that applies in the retaliation context.[2] Unlike claims brought under Title VII’s substantive discrimination provision, 42 U.S.C. § 2000e-2(a), the relevant inquiry in retaliation cases is not whether the action affected the terms and conditions of employment, but whether it was materially—as opposed to trivially—adverse, such that it could dissuade a reasonable employee from engaging in protected activity. Burlington N., 548 U.S. at 64; Newbury, 991 F.3d at 678.

Moreover, even before Burlington Northern introduced this broad standard, this Court held that a PIP could be an adverse action sufficient to support a prima facie case of retaliation. Ray v. Tandem Computers, Inc., 63 F.3d 429, 435 (5th Cir. 1995). By contrast, the decision on which the district court relied, Welsh v. Fort Bend Independent School District, held that the PIP was not an adverse employment action in the Title VII discrimination context. 941 F.3d at 824; see also id. (noting that employer’s decision to put plaintiff on a “growth plan” was not a reprimand and was not adverse). The Welsh Court expressly declined to decide whether placing the employee on a PIP was an adverse action in the retaliation context because of insufficient evidence of causation. Id. at 827. The court noted, however, that “[f]or purposes of Title VII’s anti-retaliation provision, the Supreme Court has held that an adverse employment action is defined slightly more broadly than the term is defined in the employment discrimination context.” Id. at 826-27 (citing Burlington N., 548 U.S. at 67-68).

One unpublished decision of this Court does conclude categorically—and without acknowledging Ray—that a PIP is not a materially adverse action for retaliation purposes “where colorable grounds exist for disciplinary action or where the employee continues to engage in protected activity.” Jackson v. Honeywell Int’l, Inc., 601 F. App’x 280, 286 (5th Cir. 2015). Ray, however, binds the Court, while Jackson does not. See, e.g., McClain v. Lufkin Indus., Inc., 649 F.3d 374, 385 (5th Cir. 2011) (“This court’s rule of orderliness prevents one panel from overruling the decision of a prior panel.”); Ballard v. Burton, 444 F.3d 391, 401 & n.7 (5th Cir. 2006) (recognizing that unpublished decisions issued after January 1, 1996, are not controlling precedent in this Court).[3]

In any event, Jackson is unpersuasive. Whether “colorable grounds exist for disciplinary action,” Jackson, 601 F. App’x at 286, is a question of causation—i.e., whether the employer took action because of legitimate performance problems or to retaliate against the employee for engaging in protected activity. The reasons why the action was taken are entirely separate from whether the action itself was materially adverse. See, e.g., Strong v. Univ. Healthcare Sys., LLC, 482 F.3d 802, 808 (5th Cir. 2007) (employee could not prove retaliation was a but-for cause of adverse action because employer had proffered unrebutted evidence of plaintiff’s poor performance). Jackson also undermines Burlington Northern’s objective standard by considering whether a particular employee actually did continue to engage in protected activity, rather than whether a reasonable employee could be deterred from doing so. Compare Jackson, 601 F. App’x at 286, with Burlington N., 548 U.S. at 68-69 (objective standard “avoids the uncertainties and unfair discrepancies that can plague a judicial effort to determine a plaintiff’s unusual subjective feelings.”).

Moreover, a standard that punishes an employee for persevering in the face of retaliation cannot be squared with Burlington Northern’s insistence that retaliation protections must “help[] ensure the cooperation upon which accomplishment of the Act’s primary objective depends.” 548 U.S. at 67. Ray furthers this goal, and the Court should reaffirm its vitality by holding that a PIP can be a materially adverse action in the retaliation context. Here, where the PIP was the final disciplinary step before termination, a jury could find that being placed on such a PIP might well deter a reasonable employee from engaging in protected activity.

III. Retaliation in the form of harassment is actionable if the harassing conduct could deter a reasonable employee from engaging in protected activity.

The district court also erred in its analysis of Lemonia’s claim that Westlake retaliated against him by harassing him. Retaliation in the form of harassment is actionable and should be evaluated under the Burlington Northern “materially adverse action” standard rather than the “severe or pervasive” standard for hostile work environment claims in the discrimination context. While the district court was correct that this Court’s published decisions have not “recognized a cause of action for retaliatory hostile work environment,” ROA.2458, this Court has repeatedly noted that all other circuits with jurisdiction over Title VII actions treat retaliatory harassment as actionable. See, e.g., Heath v. Bd. of Supervisors for S. Univ. & Agric. & Mech. Coll., 850 F.3d 731, 741 n.5 (5th Cir. 2017). Moreover, in Donaldson v. CDB, Inc., 335 F. App’x 494, 507 (5th Cir. 2009), this Court suggested its inclination to join the other circuits, explaining that “[w]hile pre-Burlington Northern, our court rejected the notion that retaliatory harassment could be sufficiently adverse to be considered actionable … the new, Burlington Northern standard makes clear that a genuine issue of material fact exists for whether the conduct against [the plaintiff] … was such that it ‘might have dissuaded a reasonable worker from making or supporting a charge of discrimination.’” Id. (quoting Burlington N., 548 U.S. at 68).

As the consensus among the circuits reflects, recognizing that retaliatory harassment is actionable under Title VII “is consistent with the statutory text, congressional intent, and the EEOC’s own interpretation of the statute.” Gowski v. Peake, 682 F.3d 1299, 1312 (11th Cir. 2012) (overruled on other grounds as explained in Babb v. Secy., Dep’t of Veterans Affs., 992 F.3d 1193, 1206-07 (11th Cir. 2021) (Burlington Northern standard, rather than “severe or pervasive” standard, applies to claims of retaliation in the form of harassment)). Like any other allegedly retaliatory conduct, harassment that occurs in retaliation for protected activity can be actionable.

Finally, Burlington Northern’s “could well dissuade” standard—not the “severe or pervasive” standard for claims of discriminatory harassment —applies to claims of retaliation in the form of harassment. Many other circuits have reached this conclusion. Monaghan v. Worldpay US, Inc., 955 F.3d 855, 862 (11th Cir. 2020); see also Poullard v. McDonald, 829 F.3d 844, 857-58 (7th Cir. 2016) (analyzing retaliatory harassment claim by asking if the conduct alleged was “serious enough to dissuade a reasonable employee from engaging in protected activity”); Agusty-Reyes v. Dep’t of Educ., 601 F.3d 45, 57 (1st Cir. 2010) (“intensification of [preexisting] harassment” could be actionable as retaliation if it could dissuade a reasonable employee from engaging in protected activity);[4] Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 347 (6th Cir. 2008) (“As Burlington Northern made clear, … the tests for [discriminatory] harassment and retaliation are not coterminous.”); Moore v. City of Phila., 461 F.3d 331, 341 (3d Cir. 2006) (recognizing that after Burlington Northern, “severe or pervasive” standard no longer applies to claims of retaliatory harassment); cf. Laurent-Workman v. Wormuth, 54 F.4th 201, 216-17 (4th Cir. 2022) (applying Burlington Northern to retaliatory harassment claim by assessing whether conduct was severe or pervasive enough to deter a reasonable employee from engaging in protected activity); see also EEOC Enforcement Guidance on Retaliation and Related Issues, No. 915.004 § II.B.3 (Aug. 25, 2016), https://www.eeoc.gov/laws/guidance/enforcement-guidance-retaliation-and-related-issues (“The threshold for establishing retaliatory harassment is different than for discriminatory hostile work environment.”). This Court’s Donaldson decision applied the same standard. 335 F. App’x at 507.

This approach makes sense, as the “severe or pervasive” standard is calculated to assess whether harassment has altered the terms or conditions of employment, and Burlington Northern made clear that actionable retaliation need not do so. Monaghan, 955 F.3d at 861-62 (“Burlington Northern recognized that this retaliation standard protects employees more broadly—and is more easily satisfied—than the standard applicable to claims of discrimination.”). This Court should clarify that Burlington Northern applies to retaliatory harassment, just as it does to any other type of retaliation.

Respectfully submitted,

GWENDOLYN YOUNG REAMS

Acting General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

ELIZABETH E. THERAN

Assistant General Counsel

s/Dara S. Smith

DARA S. SMITH

Assistant General Counsel

Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., 5th Floor

Washington, D.C. 20507

(202) 921-3256

dara.smith@eeoc.gov

Dated: January 6, 2023

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s/Dara S. Smith

DARA S. SMITH

Assistant General Counsel

Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., 5th Floor

Washington, D.C. 20507

(202) 921-3256

dara.smith@eeoc.gov

Dated: January 6, 2023

[1] The EEOC takes no position on any other issue in this appeal.

[2] This Court is currently rehearing Hamilton v. Dallas County, No. 21-10133 (5th Cir.), en banc to consider its precedent about the standard for actionable adverse employment actions in the discrimination context.

[3] Courts across the country have taken differing views about the material adversity of PIPs. Compare, e.g., Porter v. Shah, 606 F.3d 809, 818 (D.C. Cir. 2010) (negative performance evaluation and PIP were materially adverse actions for retaliation claims), and Michael v. Caterpillar Fin. Servs. Corp., 496 F.3d 584, 596 (6th Cir. 2007) (PIP was not an adverse employment action for discrimination claim, but met the “more liberal” Burlington Northern standard for materially adverse action in retaliation context), with Bagwe v. Sedgwick Claims Mgmt. Servs., Inc., 811 F.3d 866, 889 (7th Cir. 2016) (PIP not materially adverse action because it had no adverse consequences and encouraged protected activity), and Payan v. UPS, 905 F.3d 1162, 1172-73 (10th Cir. 2018) (PIP alone is not materially adverse). Ray’s treatment of a PIP as materially adverse—in addition to being binding on this Court—is consistent with the courts that correctly hold PIPs may be retaliatory if they could dissuade a reasonable employee from engaging in protected activity. See Porter, 606 F.3d at 818.

[4] Seventh Circuit and First Circuit precedent is split. In the Seventh Circuit, while Poullard, 829 F.3d at 858, applies Burlington Northern, other decisions such as Hobbs v. City of Chicago, 573 F.3d 454, 464 (7th Cir. 2009) require that retaliatory harassment be “severe enough to cause a significant change in the plaintiff’s employment status.” In the First Circuit, Agusty-Reyes, 601 F.3d at 57, applies the “could dissuade” standard, as do several cases following it, see, e.g., Pérez-Cordero v. Wal-Mart P.R., Inc., 656 F.3d 19, 31 (1st Cir. 2011), but others continue to rely on a pre-Burlington Northern case applying the “severe or pervasive” standard, see, e.g., Noviello v. City of Boston, 398 F.3d 76, 92 (1st Cir. 2005).