Fifth Circuit Holds Firm on Retaliation - For Now

By its own words, the Fifth Circuit has a higher standard than others for what constitutes an "adverse employment action", the necessary pre-requisite to a finding of retaliation. In the Fifth Circuit it must be an "ultimate employment decision." Today, a three judge panel consisting of Chief Judge King, Judge Smith and Judge Dennis, stuck with that view in Hernandez v. Crawford Building Material Company, (5th Cir. 2/21/03).


Following his termination Hernandez filed an age and national origin claim. After he filed, Crawford Building counter-claimed against Hernandez for theft of materials. Hernandez amended his pleadings alleging the claim against him was in retaliation for his protected activity of asserting discrimination claims. At trial he lost the claim of age and national origin discrimination, but prevailed on retaliation. In throwing out the jury verdict, the Court held that a counter-claim brought after the employee has been terminated could not be the basis for a retaliation claim as a matter of law.


The "for now" caveat in the title, is based on an unusual concurring opinion by Judge Dennis. While agreeing with the majority opinion that the panel's decision was required by the existing precedent of the Fifth Circuit, he wrote in hopes that a sufficient number of judges would agree to review the prior precedent en banc since he thinks it has been wrongly decided. An unusual call. It will be interesting to see if there are a sufficient number of judges who will heed it.