5th Circuit sounds warning: Don’t mess with retaliation

The U.S. 5th Circuit Court of Appeals (which covers Texas) recently issued a published decision, a rarity since most opinions are unpublished and therefore can’t be cited to courts as precedent. It was also a per curiam opinion, i.e., a three-judge panel decided the appeal but no particular judge took credit for writing it.

So, what is the significance? Appellate judges take the approach when they want to let lower-court judges know (1) they are misinterpreting the law, (2) here is a reminder on what the statute means, and (3) they need to be more careful in the future. The 5th Circuit sent the message in a case involving the meaning of employer retaliation under Title VII of the Civil Rights Act of 1964 and Section 1981, which are increasingly popular claims to file.

All is good until . . .

Paul Scott, who is black, worked for U.S. Bank from March 2016 until May 25, 2018, when he was fired. He had apparently received solid performance reviews until January 2018. What happened then? He claims he heard a white manager tell his (Scott’s) boss, Damarris Triggs, a black male, that he “intended to terminate four African-American employees.” (Note the racial composition here because it plays a role later in the story.)

Scott warned the four employees. One complained to HR, which, in turn, conducted an investigation and naturally interviewed Scott. He cooperated and was assured by HR that he wouldn’t be subject to retaliation for doing so.