*1 HERNANDEZ, Juan Plaintiff-Appellee,
CRAWFORD BUILDING MATERIAL
COMPANY, doing business as Craw Carpet
ford’s Discount and Home and Center, Defendant-Appellant.
Floor
No. 01-41393
Summary Calendar. Appeals,
United States Court of
Feb.
Timothy Borne Garrigan, Stuckey, Gar- rigan Castetter, & TX, Nacogdoches, Plaintiff-Appellee. *2 17, 1999, nаndez, Rorie, though, and on June Rorie, Peder- Stripling, D.
Tom TX, Hernandez after he miscut Crawford fired for Defen- Nacogdoches, Floyd, &sen report carpet and failed to a roll of dant-Appellant. time, Hernandez was mistake. At that sixty-one years old. complaint filed a with the
Hernandez Opportunity Equal Employment Commis- KING, Judge, SMITH Chief Before (“EEOC”) and with the Texas Com- sion DENNIS, Judges. neither Rights. Human When mission on PER CURIAM: him provide would commission sought he and secured requested, relief Building Defendant-Appellant Crawford (“Crawford”) from the EEOC. On “right-to-sue” letter appeals Company Material filed suit Hеrnandez October by the District judgment final entered Crawford, that his termi- alleging against Texas District of the Eastern Court for in Age nation violated the Discrimination Plaintiff-Appel- pay ordering Crawford (“ADEA”), 42 U.S.C. $20,000 Employment Act compensa- Hernandez lee Juan and Title VII. $55,000 punitive dam- tory damages claim that of Hernandez’s as a result ages pur- point while Hernandez was At some retaliatory employ- initiated a Crawford suit, told one Craw- suing this someone Title VII. action violation ment that Hernandez had been ford’s owners sufficiency of attacks both Crawford while he was stealing cоmpany property to the presented the evidence witness, The Man- employed Crawford. a Title VII employee to base ability of Guerra, had done painter was a who ual employer’s filing of claim on the reported He see- with Crawford. business after that against а counterclaim belonging materials Craw- ing building discharged. We employee has been house; behind Hernandez’s ford stacked erred the district court conclude that was sell- reported that Hernandez he also judgment motion for denying Crawford’s allegedly Hernandez property. ing quеstion of of law on the as a matter paid him with told Guerra Crawford filing of a counterclaim whether materials. building employment retalia- support an action for com- Hernandez’s Crawford answered therefore reverse tion. We In that an- plaint on November to dis- with instructions court and remand swer, allegations both denied miss the retaliation raised a discharge and discriminatory Hernandez. for theft BACK- I. AND PROCEDURAL FACTS counterclaim, In his answer Crawford’s GROUND ever stolen having Hernandez denied Hernandez, began immigrant, a Mexican Then, from Crawford. building materials a manual laborer Crawford’s working as 21, 2001, supplemented Hernandez May point, At some yard around 1975. lumber that Craw- complaint allege original his dissatis- at Crawford became management to a retalia- amounted ford’s counterclaim he performance; fied with Title in violation of action tory еmployment carpet to Crawford’s was transferred ADEA, VII, § 1981. warehouse, raise pay he received a where summary judg- Hernandez moved Craw- with increased duties. concomitant The district counterclaim. ment on the unhappy with Her- to be ford continued granted motion, Crawford filed mоtions for a new trial prove Crawford could not specifically, or judgment as a matter of In law. even generally, what was stolen or that trial, his motion for a new he argued that Hernandez stole it. allega- Most of the there was insufficient evidence to *3 tions of (1) theft concerned items that the jury’s had findings: that Crawford had gone missing earlier; six years or seven no permissible filing basis for the theft time, (2) Crawford had not investigated counterclaim; that Hernandez had suf- problem. result, the As a Crawford now fered actual damages as a result of the simply lacked sufficient counterclaim; (3) evidence to dem- and that Crawford had jury onstrate to a that Hernandez had acted a manner sufficient to warrant an stolen property. Crawford’s punitive award of damages. In his motion for judgment law, as a matter of Crawford trial, At the instruction covering argued that the filing of a counterclaim Hernandez’s retaliation claim the included was not the kind of “ultimate employment following statements: upon decision” which a claim of retaliation The Plaintiff brings also causes of ac- may and, be based alternatively, Her- retaliation, tion for in viоlation of Title had proven nandez not that Crawford had VII, ADEA, the 1981. These a retaliatory motive in filing the counter- prohibit laws an employer from retaliat- ing against a former filing The district court denied both motions. Here, discrimination lawsuit. Plaintiff The court found that pre- Hernandez had Hernandez contends Defendant sented sufficient evidence to support Crawfords allegations made jury’s findings retaliation, causation, on the claim for theft to against retaliate Plain- and damages questions. As the ques- tiff for having brought this lawsuit and tion of whether the filing of a counterclaim his рursuing claims of discrimination claim, the dis- against this Defendant. that, trict court found by failing object prevail To claim, his retaliation to the jury charge on retaliation, the law of Plaintiff Hernandez by pre- must show a Crawford had preserved not the issue for ponderance of evidenсe good his faith later challenge. result, As a opposition to discrimination and bring- court reviewed the question only plain ing this lawsuit awas substantial or error; finding the issue debatable within motivating factor for a decision De- the federal Texas, district courts in fendant Crawfords to amakе theft alle- district court concluded that no gation and counterclaim. had occurred. found, The special two interrogato- Crawford appealed, timely raising two ries, that Crawford had discharged general appealable classes of issues. Hernandez beсause of age his First, because Crawford reargues that filing of his However, Mexican heritage. a counterclaim is not an employ- jury did find that Crawford’s filing ment decision” sufficient to counterclaim constituted retaliatory em- Second, retaliation. action. The jury awarded assеrts that there was insufficient evidence $20,000 in (for compensatory damages to support jury’s (1) findings that: Hernandez’s claimed anguish mental and Crawford had a retaliatory motive filing shame as a result thief) of being (2) branded a counterclaim; the filing of the $55,000 in punitive damages. any injury caused to Hеrnán- (3) verse action the em to dam- dez; was entitled Hernandez (3) (4) a causal connection exists ployee; anguish; his mental based on ages protected activity between damages, punitive of actual the absence (5) Burger action.” adverse Crawford’s proper; damages were Inc., Apartment Mgmt., sup- Cent. sufficiently egregious was conduct (5th Cir.1999) (citing Mattern v. punitive damages. an award of port Co., Kodak Eastman (5th Cir.1997)). AS analyzed II. FILING COUNTERCLAIM has “Our court EMPLOYMENT AN “ULTIMATE the ‘adverse action’ element OF FOR PURPOSES DECISION” in a stricter than some other cir sense Circuit, VII RETALIATION TITLE In the Fifth cuits.” Id. *4 by only CLAIMS an “ultimate deсision” liability employer an can form the basis for that the contends retaliation under Title VII. on a find based its verdict impermissibly at 705. 104 F.3d a counterclaim con filing that the of ing retaliatory a action. Crawford stituted examples that of typical We have said of a coun emplоyer’s filing that an argues employment decisions that can ultimate constitute the terclaim cannot support a claim of retaliation include “hir necessary sup to leave, employment decision” discharging, promot ing, granting retaliatory Rubin, port a compensating.” Dоllis v. ing, and (5th ADEA in 777, Cir.1997). Title VII and the action under F.3d This 77 781-82 the Fifth Circuit.1 understanding grounded statutory is in the language of Title VII. While retaliation denied this The district specifically by covered Section cases are had part because Crawford ground, 2000e-3(a), to we have looked Section on this object jury charge to the failed to 2000e-2(a)(l), it “to which makes unlawful pre to failed issue. Because Crawford discharge any fail or refuse to hire or to issue, only for it is reviewed serve individual, or otherwise discriminate Pepper v. Dr. Bot plain error. Hartsell any respect to his individual Cir.2000). (5th 269, 272 tling conditions, terms, privi compensation, in the a To overturn verdict which employment,” to determine leges of instructions, find that we must can a retali employment decisions obviously incorrect instructions made Mattem, we action. In ation cause of “probably that was re of law statement em that the kinds of “ultimate concluded verdict, leading sponsible for an incorrect support a that will ployment decisions” injustice.” Tompkins to substantial sim retaliatory conduct must be finding of (5th Cir.2000). Cyr, 202 F.3d 784 of conduct described ilar to the kinds 2000e-2(a)(1). Mattem, F.3d 104 precedents create a three- Section
Our (“Title 709; designed at VII was satisfy in id. 707 plaintiff a must part test decisions, “(1) to address ultimate claim: prove order by made every to address decision activity protected engaged employee has have some (2) arguably might VII; employers ad- employer toоk by Title Therefore, 1998). purposes of this discus- analysis of retalia- court has held that 1. This sion, only as it Title for ADEA claims we will discuss tion claims is same Air- Sherrod v. Amer. is for Title VII claims. VII claim. Inc., (5th lines, Cir. 1122 532 upon
tangential effect
those ultimate deci ployee
upon
based
statements
made
Dollis,
sions”)
781-82).
(quoting
77
F.3d
EEOC).
However,
this cir-
prior
jurispru
of our
Title
review
VII
view,
cuit has
a
skeptical
taken more
re-
consistently
dence confirms
we have
marking that “[i]t is not obvious that coun-
recognize
refused
retaliation claims that
terclaims or lawsuits filed against Title
a
are
prohibited
dissimilаr to the
activities
plaintiff
VII
ought
to be cognizable as
2000e-2(a)(1).2
retaliatory conduct under Title VII. After
District
courts
other circuits have
all, companies and citizens
have
constitu-
held that
filing
of a suit or counter
lawsuits,
tional right
tempered
to file
premised
claim can
lawsuit
requirement
the suits have an
theory of retaliatory employment action.
arguable basis.” Scrivner v. Socorro In-
Inc.,
of N.C.,
Beckham v. Grand Affair
Dist.,
dep.
Sch.
972
(W.D.N.C.1987) (find
671 F.Supp.
Cir.1999).
ing
retaliation where
instituted
reported
While there are no
decisions
criminal prosecution of former employee
from this
dealing directly
circuit
EEOC);
with this
EEOC v. Va.
who filed claim with
question,3
that,
we think it is clear
Corp.,
Carolina Veneer
F.Supp.
given
(W.D.Va.1980)
our
(finding
interpretation
strict
where
*5
claims,
filed defamation suit
em-
an employer’s filing of a counter-
meeting
2. Activities
the
of
standard
"ultimate
less
discipline);
dеsirable shift
formal
employment
615,
decisions"
(5th
include: Green v.
Thompson,
Walker v.
214 F.3d
629
Fund,
Cir.2000) (removal
Adm’rs
the Tulane Educ.
284 F.3d
particular
from duties on
of
642,
(5th Cir.2002) (demotion);
658
account,
Fiaros v.
timing
during
of short breaks
the
Health,
187,
(5th
Dep't
21A
Tex.
F.3d
194
day, and failure to
allegedly
$2.89
of
receive
Cir.2001) (denial
increase);
pаy
of
Mota v.
overtime);
unplanned
owed for
Watts v. Kro
Ctr.,
Univ.
Tex. Houston Health Sci.
261
Co.,
505,
ger
(5th Cir.1999)
of
170 F.3d
511-12
512,
(5th Cir.2000) (discontinuation
F.3d
521
(change
request
of work schedule and
employee’s stipend,
of
request
denial
of
tasks);
employee perform
job
new
Burger,
leave,
paid
request
denial of
unpaid
to extend
(denial
168 F.3d
879
of
request
transfer
to
leave,
termination);
City
v.
Evans
of
position
site);
an identical
at a
job
different
Houston,
344,
(5th Cir.2001)
246 F.3d
353
Surgery
Webb v. Cardiothoracic
Assocs. N.
of
(rude
(demotion);
Dep’t
Thomas v. Tex.
Criminal
Tex.,
of
532,
(5th
1998)
F.3d
139
540
Cir.
Justice,
389,
(5th Cir.2000) (fail-
220 F.3d
394
Meno,
by employer);
treatment
Messer v.
130
promotе employee);
ure
v.
Rubinstein
130,
(5th
1997)
F.3d
140
Cir.
(monitoring of
Fund,
Adm’rs
the Tulane Educ.
218 F.3d
of
conversations,
employee's
criticism
work
of
392,
(5th Cir.2000) (denial
raise);
pay
402
of
conduct,
employ
refusal to consider
Univ.,
365,
Vadie v. Miss. State
218
374
F.3d
input
decisions);
ee’s
in business
104
(5th Cir.2000) (refusal
employee
to consider
(threats
dismissal,
potential
F.3d at 708
of
position
closing
employee's
another
after
verbal reprimands, and low evaluations that
department);
v. Deloitte &
Shackelford
increases).
could
pay
to missed
lead
Touche,
398,
(5th Cir.1999) (ter-
190 F.3d
407
mination);
Houston,
Shaip City
v.
164 F.3d
of
unreported
There
two
are
Tеxas district
923,
(5th Cir.1999) (constructive
933
21
n.
court cases that have
question
considered this
demotion).
well;
as
the courts reached different conclu-
Bunch,
Gustafson,
sions. See
Inc. v.
1999 WL
which
employ-
Activities
are not "ultimate
(N.D.Tex.1999)
304560
Green,
(filing
by
of suit
ment decisions” include:
em-
284 F.3d at
locks,
ployer
emplоyee
discharged
(changing
after
was
restructuring
657-58
not
office
did
duties,
procedures,
constitute an
clarifying job
employment
"ultimate
repri-
deci-
mands); Mota,
sion”);
(removal
Dist.,
County
v.
Hosp.
261 F.3d at
Dallas
521
of
Shafer
letterhead,
employee's
(N.D.Tex.1997)
name from
1997 WL
(filing
ostracism
667933
coworkеrs,
duties);
job
supports
and loss of some
counterclaim
Title VII
ac-
Thomas,
tion).
(assignment
533 Von decisions. See employment in mate claim cannot claim 858, 865 243 F.3d Maryland, v. Gunten filed A counterclaim (4th Cir.2001); v. Wal-Mart Wideman been dis already has after (11th 1453, Stores, Inc., 1456 141 F.3d ultimate way resembles in no charged Indiana, F.3d Cir.1998); Knox v. in Section described decisions (7th Cir.1996); Berry v. Stevinson 2000e-2(a)(1). find that We (10th Chevrolet, 984-86 Cir. instructing committed Boston, 1996); City v. Wyatt that Crawford’s Thomas, (1st Cir.1994); 15-16 retaliatory em Yartzoff Cir.1987). (9th In- 1371, 1375 an 809 F.2d was This instruction action. purports circuit that deed, only other that led the law misstatement of obvious deci- to follow This for Crawford. injustice substantial Circuit, practice rule, Eighth in sion” gotten have should Man- e.g., something broader. applies place.4 the first Ins. ning v. Metro. Life Cir.1997) ultimate em- (defining CONCLUSION III. “tangible to include ployment decision deci- court’s district REVERSE We working conditions in duties change judg- motion denying Crawford’s sion а material that constituted REMAND law matter of ment as disadvantage”). to dismiss instructions borne be Costs shall Hernandez. concurring:
DENNIS, Judge, *6 opinion as curiam per in the fully join
I with our in accord disposition correct LIFE INSUR HERITAGE AMERICAN only to separately COMPANY; I write First Colonial precedents. ANCE Fidelity recon should en banc court Company; that the urgе Insurance ‘ultimate em “only Republic an rule that Corporation, our sider National d/b/a can Plaintiffs-Appellants, decision’ Finance, Inc., retaliation liability for the basis for form v. (citing Opinion at Title VII.” under Defendant-Appellee. LANG, B. Ellis Kodak Eastman Mattern Cir.1997)). inimical to is This rule No. 02-60639 of the anti- purpose the text and both Summary Calendar. VII, 42 of Title U.S.C. provision Appeals, Court States United 2000e-3(a). J., majority (Dennis, dissenting). considered that have circuits
the federal 26, 2003. Feb. protection that the have held question provision anti-retaliation afforded actions to adverse
extends substantial, of ulti- fall short
that, while insufficient at trial was presented evidence we find 4. Because law, jury's verdict. under Fifth uncognizable claims to discuss his not need we do