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Fifth Circuit Holds That A Manager’s Threat To Reduce An Employee’s Pay In Retaliation For the Employee’s Hiring Of A Transgendered Employee Was Not An Adverse Employment Action That The Threatened Employee Could Sue Over

March 21, 2016

In a case decided in December 2015, Brandon v. Sage Corp., 808 F.3d 266, 270 (5th Cir. 2015), the U.S. Court of Appeals for the Fifth Circuit addressed a retaliation claim brought by the plaintiff Brandon, the former Director of the San Antonio Campus of Sage’s truck driving school. The plaintiff had hired a transgendered employee. According to the Plaintiff’s allegations, when the defendant’s National Project Director, Regional Director for the Western United States, and School Director for the Billings, Montana site (Ms. Campanian), found out, she asked Brandon if she was “stupid,” and threatened to cut the plaintiff’s pay by 50% as a means of disciplining her for hiring the transgendered employee. Ms. Campanian was also a stockholder and part-owner of Sage, but she was not a supervisor of the plaintiff. Nevertheless, the plaintiff claimed to be fearful of Ms. Campanian’s threats against her and she resigned after she tried, but was unable to get ahold of Sage’s President, who was traveling at the time. The Plaintiff then sued Sage, claiming that Ms. Campanian’s threat to cut her pay by 50% constituted actionable retaliation in violation of Title VII.

The district court dismissed the plaintiff’s case, and — despite urgings to the contrary from lawyers with the Equal Employment Opportunity Commission — the Fifth Circuit affirmed that decision. The Fifth Circuit observed that in a retaliation case “a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which … means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 68 (2006). Under this standard, the Court held that no reasonable person would have found Ms. Campanian’s threat sufficient to dissuade them from making or supporting a charge of discrimination because Ms. Campanian was not Brandon’s direct supervisor. Rather, the plaintiff reported directly to Sage’s President. As the Court stated: “[a] reasonable employee in [the plaintiff’s] position would have been familiar with the company’s chain of command, the company’s grievance process, and who had the last word on final tangible employment decisions. Therefore, a reasonable high placed employee would not have been dissuaded from engaging in protected activity as a result of threats or actions by someone outside her chain of command and who she knew had no final decision-making authority.”

This case demonstrates that not all threatening or bad acts by an employer’s managers will suffice to support a retaliation claim. Rather, each situation must be analyzed on its own facts. This case also illustrates that employees who do not diligently and rigorously follow their employer’s chain of command to make complaints about abusive or retaliatory conduct often lose in court.

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