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Employee Loses Retaliation Claim Based On Coworker’s Use Of The Phrase “Heil Hitler”

April 4, 2016

Some employees think that any workplace complaints over inappropriate conduct or statements are protected from retaliation — meaning that the employer cannot retaliate against them for making such complaints. But, the law is actually far different, as illustrated by a recent case decided the U.S. Court of Appeals for the Fifth Circuit, which covers Texas, Mississippi, and Louisiana.

In Satterwhite v. City of Houston, 602 Fed.Appx. 585 (5th Cir.), cert. denied, 136 S. Ct. 87 (2015), the plaintiff, an employee for the City of Houston, reported his co-worker for allegedly using the phrase “Heil Hitler” during a meeting. The co-worker later became the Plaintiff’s supervisor, and subsequently allegedly recommended that the plaintiff be demoted. The City ultimately agreed with the demotion. Following his demotion, the plaintiff brought an unlawful retaliation claim under Title VII of the Civil Rights Act of 1964. He alleged that he was demoted in retaliation for reporting his co-worker for using the phrase “Heil Hitler” at the meeting.

The district court granted summary judgment for the City, finding that the plaintiff had failed to show that he was actually demoted because of his complaint. The Fifth Circuit Court of Appeals affirmed this decision, but not for the same reason as the district court. Instead, the Fifth Circuit determined that the plaintiff’s reporting of his co-worker did not even rise to the level “protected activity.” For employees to be protected from retaliation by Title VII, they must objectively “reasonably believe” that the conduct they report violates Title VII. As a result, for the plaintiff’s report of his co-worker to have constituted protected activity, the plaintiff had to reasonably believe that a single “Heil Hitler” created a hostile work environment in violation of Title VII. The Fifth Circuit determined that no reasonable employee could have held such a belief, and therefore Title VII’s anti-retaliation provisions did not protect the plaintiff. In other words, even if the plaintiff was demoted in retaliation for his complaint against his co-worker, it would not be illegal under Title VII. The court accordingly affirmed summary judgment for the City. The plaintiff sought review of the Fifth Circuit’s decision from the U.S. Supreme Court, but his request was denied in late 2015.

This case teaches that not all complaints about inappropriate conduct or statements in the workplace are protected from retaliation — even a statement as vile and repulsive as “Heil Hitler.”