National Litigation Hotline

Alexander brought suit under the ADA, and the district court granted summary judgment to the employer. On appeal, the Eighth Circuit affirmed. The court first determined that vacuuming was an essential function of the housekeeping supervisor position, citing three supporting factors: 1) the importance of cleanliness to maintaining a AAA four-diamond rating; 2) the limited number of employees available to perform vacuuming and other housekeeping tasks; and 3) the employer's persistent problems with housekeeping staff truancy. In response to Alexander's claim that she could not vacuum without a reasonable accommodation, the Court held that the employer was entitled to rely on the written report from Alexander's doctor that unambiguously and permanently restricted her from vacuuming. Further, in response to Alexander's claim that she could vacuum with a reasonable accommodation, the court rejected Alexander's two proposed accommodations (relieving her of vacuuming duties while she worked with a physical therapist, or transferring her to a day housekeeping supervisor position) as not being required under the ADA.

Oil Company Must Arbitrate Unilateral Decision

The Tenth Circuit has held that an oil company must arbitrate grievances challenging the company's categorization of repair-person jobs at a refinery as requiring 'high technical skills,' despite a broad management-rights provision in the union contract covering those jobs. Paper, Allied-Indus. Chem. and Energy Workers Int'l Union v. Conoco Inc., 2003 WL 723988 (10th Cir. Mar. 4).

The Paper, Allied-Industrial, Chemical and Energy Workers International Union (PACE) represents, among others, workers at a Conoco oil refinery in Oklahoma. The collective bargaining agreement between refinery workers and Conoco contains a broad management rights clause; that clause provides that disputes arising under it are not arbitral. Under another article of the union contract, when vacancies arise in within the 'repairman craft,' the most senior worker bidding for the job is entitled to it. However, that same article states that vacancies requiring 'high technical skills or created by abnormal circumstances' may be filled out of seniority order and at management's discretion. The collective bargaining agreement also contained a provision providing for the arbitration of grievances. In December 1999, Conoco informed the union that the whole of the 'repairman craft' required 'high technical skills,' such that Conoco could fill any job arising within that job classification without regard to seniority and at its sole discretion. PACE disagreed and grieved the reclassification, informing the employer that it was unlikely that the repair jobs in question, whose duties had not substantially changed in recent years, should suddenly require high technical skills. The employer denied the grievance, and also started to deny repair jobs to employees who would have received them by seniority. PACE sued in 2001, arguing that the court should compel arbitration of the grievances.

The district court ruled to compel arbitration of the grievances and, on review, the Tenth Circuit agreed, holding that the broad management rights clause did not 'unambiguosly invest management with the discretion to define and interpret terms found in other provisions' of the union contract, and certainly did not 'expressly exclude the present dispute from arbitration.' The court first observed that where, as here, 'a contract contains an arbitration clause, there is a presumption in favor of arbitrability. Although the management rights provision of the union contract gave management the right to use discretion in filling positions requiring 'high technical skills,' it did not follow, according to the Court, that management had the right to unilaterally decide which jobs required such skills in the first place.

Title VII: Counterclaim Not Evidence of Retaliation

The mere fact that an employer filed a counterclaim in a Title VII discrimination suit against the terminated plaintiff himself did not support a claim for retaliation under the statute, the Fifth Circuit has held. Hernandez v. Crawford Building Material Co., WL (5th Cir. Feb. 21).

Plaintiff Juan Hernandez, a Mexican immigrant, began working in Crawford Building Material Co.'s lumberyard in 1975. Later, Hernandez was moved to Crawford's carpet warehouse into a position with increased responsibilities and pay. Subsequently, Hernandez committed a mistake in cutting a role of carpet, failed to report the mistake, and was consequently fired in June 1999. Hernandez sued in federal district court. After he filed suit, the company learned from a witness that Hernandez had been engaging in the theft and resale of building materials. In selling the materials, Hernandez claimed to one prospective buyer that Crawford paid him in building materials. However, the witness reported theft that was supposed to have occurred nearly 6 years earlier, so the company lacked the ability to investigate the reports. When the company answered Hernandez's complaint, it asserted a counterclaim for theft. Hernandez then amended his complaint to include a claim of retaliation based on the company's counterclaim. At trial, the company prevailed on Hernandez's underlying discrimination claim, but the jury found for Hernandez on his retaliation claim and awarded him $20,000 in compensatory damages and $55,000 in punitive damages. Before the jury's deliberation, the trial court had instructed the jury that Crawford's theft counterclaim against the plaintiff could not support a retaliation claim. Crawford appealed.

On appeal, the Fifth Circuit reversed the trial court judge, holding that the judge's jury instruction as to retaliation was plain error. The court noted, citing the well-established prima facie case of retaliation, that Hernandez must show that he was engaged in activity protected under Title VII, that Crawford took an unlawful employment action against Hernandez, and that there was a causal connection between the protected activity and the adverse employment action. The Fifth Circuit, the court went on, has applied a more restrictive interpretation of 'adverse employment action,' requiring some adverse action as to 'ultimate employment decisions' such as hiring or firing. Acknowledging that some other federal courts of appeals have held that the filing of a lawsuit could be a form of adverse employment action sufficient to support a retaliation claim, the Fifth Circuit has previously taken a 'more skeptical view.' According to the Fifth Circuit, it was not obvious that a counterclaim could amount to an adverse employment action because companies and individuals 'have a constitutional right to file lawsuits, tempered by the requirement that the suits have an arguable basis.' Accordingly, Hernandez could not ground a retaliation claim based on Crawford's counterclaim.

Church Employee's Suit Barred by 'Ministerial Exception'

The Seventh Circuit has held that a 'communications manager' position to the Catholic Bishop of Chicago, which had been held by a Hispanic employee, fell within the First Amendment's 'ministerial exception' to Title VII of the Civil Rights Act of 1964. Alicea-Hernandez v. Catholic Bishop of Chicago, 2003 WL 373349 (Feb. 21).

Plaintiff Gloria Alicea-Hernandez was hired in early 2000 to serve as the Catholic Church of Chicago's Hispanic Communications Manager. Alicea-Hernandez's duties in that role included composing media releases for the Hispanic community; composing correspondence for the Cardinal; developing a working relationship with the Hispanic media and parishes in that community to promote Church activities; developing a working relationship with the Hispanic community to enhance its involvement; composing articles for Church publications; and translating Church materials into Spanish. Alicea-Hernandez claims that, while working for the Church, she was experienced discrimination on the basis of her gender and national origin, and also experienced retaliation for filing an EEOC charge. Her claims rested on allegations of poor office conditions, attempts by the Church to prevent her from improving those conditions, exclusion from management meetings and communications, denial of resources necessary for her to perform her job, and constructive discharge and subsequent replacement by a less qualified male who received a higher salary and a more significant title for the same position. However, while being subjected to this alleged discrimination, Alicea-Hernandez was sharply criticizing the Church on its relations with the Hispanic community. Eventually, Alicea-Hernandez resigned in December of 2000 and later filed suit. The Church moved to dismiss her complaint on two grounds: first, the Church argued, the trial court lacked subject matter jurisdiction because the plaintiff's complaints were based solely on her disagreements with the it policies toward Hispanics, an inquiry which would require the Court to look into Church policy; and second, the plaintiff's duties were 'ministerial' in nature, and thus fell within an exception to the ambit of Title VII. The trial court agreed and dismissed the complaint.

The Seventh Circuit affirmed, agreeing only with the district court's second rationale. The 'ministerial exception' to Title VII coverage, first articulated by the Fifth Circuit in 1972, bars Title VII actions brought against churches by their 'ministers,' since allowing such suits would trample on the First Amendment principle of the free exercise of religion. This exception to the applicability of Title VII stems, the court explained, from the principle that 'the perpetuation of a church's existence may depend upon those whom it selects to preach its values, teach its message, and interpret its doctrines[.]' The Court went on to find that Alicea-Hernandez served as a 'liaison' between the Church and the Hispanic community it served, and, since the plaintiff 'was integral in shaping the message the Church presented to the Hispanic community,' her claim fell squarely within Title VII's ministerial exception.

The Paper, Allied-Industrial,Chemical and Energy Workers International Union (PACE) represents, among others, workers at a Conoco oil refinery in Oklahoma. The collective bargaining agreement between refinery workers and Conoco contains a broad management rights clause; that clause provides that disputes arising under it are not arbitral. Under another article of the union contract, when vacancies arise in within the 'repairman craft,' the most senior worker bidding for the job is entitled to it. However, that same article states that vacancies requiring 'high technical skills or created by abnormal circumstances' may be filled out of seniority order and at management's discretion. The collective bargaining agreement also contained a provision providing for the arbitration of grievances. In December 1999, Conoco informed the union that the whole of the 'repairman craft' required 'high technical skills,' such that Conoco could fill any job arising within that job classification without regard to seniority and at its sole discretion. PACE disagreed and grieved the reclassification, informing the employer that it was unlikely that the repair jobs in question, whose duties had not substantially changed in recent years, should suddenly require high technical skills. The employer denied the grievance, and also started to deny repair jobs to employees who would have received them by seniority. PACE sued in 2001, arguing that the court should compel arbitration of the grievances.

The district court ruled to compel arbitration of the grievances and, on review, the Tenth Circuit agreed, holding that the broad management rights clause did not 'unambiguosly invest management with the discretion to define and interpret terms found in other provisions' of the union contract, and certainly did not 'expressly exclude the present dispute from arbitration.' The court first observed that where, as here, 'a contract contains an arbitration clause, there is a presumption in favor of arbitrability. Although the management rights provision of the union contract gave management the right to use discretion in filling positions requiring 'high technical skills,' it did not follow, according to the Court, that management had the right to unilaterally decide which jobs required such skills in the first place.The mere fact that an employer filed a counterclaim in a Title VII discrimination suit against the terminated plaintiff himself did not support a claim for retaliation under the statute, the Fifth Circuit has held. Hernandez v. Crawford Building Material Co., WL (5th Cir. Feb. 21).

Plaintiff Juan Hernandez, a Mexican immigrant, began working in Crawford Building Material Co.'s lumberyard in 1975. Later, Hernandez was moved to Crawford's carpet warehouse into a position with increased responsibilities and pay. Subsequently, Hernandez committed a mistake in cutting a role of carpet, failed to report the mistake, and was consequently fired in June 1999. Hernandez sued in federal district court. After he filed suit, the company learned from a witness that Hernandez had been engaging in the theft and resale of building materials. In selling the materials, Hernandez claimed to one prospective buyer that Crawford paid him in building materials. However, the witness reported theft that was supposed to have occurred nearly 6 years earlier, so the company lacked the ability to investigate the reports. When the company answered Hernandez's complaint, it asserted a counterclaim for theft. Hernandez then amended his complaint to include a claim of retaliation based on the company's counterclaim. At trial, the company prevailed on Hernandez's underlying discrimination claim, but the jury found for Hernandez on his retaliation claim and awarded him $20,000 in compensatory damages and $55,000 in punitive damages. Before the jury's deliberation, the trial court had instructed the jury that Crawford's theft counterclaim against the plaintiff could not support a retaliation claim. Crawford appealed.

On appeal, the Fifth Circuit reversed the trial court judge, holding that the judge's jury instruction as to retaliation was plain error. The court noted, citing the well-established prima facie case of retaliation, that Hernandez must show that he was engaged in activity protected under Title VII, that Crawford took an unlawful employment action against Hernandez, and that there was a causal connection between the protected activity and the adverse employment action. The Fifth Circuit, the court went on, has applied a more restrictive interpretation of 'adverse employment action,' requiring some adverse action as to 'ultimate employment decisions' such as hiring or firing. Acknowledging that some other federal courts of appeals have held that the filing of a lawsuit could be a form of adverse employment action sufficient to support a retaliation claim, the Fifth Circuit has previously taken a 'more skeptical view.' According to the Fifth Circuit, it was not obvious that a counterclaim could amount to an adverse employment action because companies and individuals 'have a constitutional right to file lawsuits, tempered by the requirement that the suits have an arguable basis.' Accordingly, Hernandez could not ground a retaliation claim based on Crawford's counterclaim.

This month's National Litigation Hotline, and Recent Developments from Around the States were both written by Mark A. Konkel, an associate with Winston & Strawn, New York, and Associate Editor of this publication.

ADA: Vacuuming May Be an Essential Job Function

The Eighth Circuit recently held that an employer who terminated an employee unable to perform the essential job function of vacuuming, with or without accommodation, did not violate the ADA. Alexander v. The Northland Inn, 2003 WL 865072 (8th Cir. Mar. 5).

Plaintiff Ansaf Alexander began working as a 'p.m. housekeeping supervisor' in July 1997. She was in an automobile accident in October 1997, which exacerbated earlier injuries and caused chronic pain. In February 1998, Alexander took another housekeeping position. Her doctor prepared a report listing temporary work restrictions, including, among other things, no heavy or repetitive pushing or pulling. Alexander provided the list to her supervisor. In May 1998, Alexander's employer rehired her as a p.m. housekeeping supervisor, which required her to assist the housekeeping staff in maintaining the cleanliness and attractive appearance of the guest rooms and public areas, as well as supervising the staff's work. Included in her responsibilities were (when necessary) vacuuming guest rooms, the common areas, and the large hotel restaurant. Further, Alexander also filled in for day housekeeping supervisors, and vacuumed during those times as well. In February 1999, Alexander was asked by her supervisor to vacuum a room, which she declined to do, instead asking another employee to do it for her. She took 2 days off, visited a chiropractor, and returned with a report from her doctor listing permanent work restrictions, including 'no heavy or repetitive pushing or pulling,' and an annotation of 'no vacuuming.' In response, the employer's benefits manager contacted the doctor by fax, asking if the doctor would release Alexander to vacuum more than five times daily. The doctor responded in the negative, and the employer terminated Alexander because she was unable to perform an essential function of her job.

Alexander brought suit under the ADA, and the district court granted summary judgment to the employer. On appeal, the Eighth Circuit affirmed. The court first determined that vacuuming was an essential function of the housekeeping supervisor position, citing three supporting factors: 1) the importance of cleanliness to maintaining a AAA four-diamond rating; 2) the limited number of employees available to perform vacuuming and other housekeeping tasks; and 3) the employer's persistent problems with housekeeping staff truancy. In response to Alexander's claim that she could not vacuum without a reasonable accommodation, the Court held that the employer was entitled to rely on the written report from Alexander's doctor that unambiguously and permanently restricted her from vacuuming. Further, in response to Alexander's claim that she could vacuum with a reasonable accommodation, the court rejected Alexander's two proposed accommodations (relieving her of vacuuming duties while she worked with a physical therapist, or transferring her to a day housekeeping supervisor position) as not being required under the ADA.

Oil Company Must Arbitrate Unilateral Decision

The Tenth Circuit has held that an oil company must arbitrate grievances challenging the company's categorization of repair-person jobs at a refinery as requiring 'high technical skills,' despite a broad management-rights provision in the union contract covering those jobs. Paper, Allied-Indus. Chem. and Energy Workers Int'l Union v. Conoco Inc., 2003 WL 723988 (10th Cir. Mar. 4).

The Paper, Allied-Industrial, Chemical and Energy Workers International Union (PACE) represents, among others, workers at a Conoco oil refinery in Oklahoma. The collective bargaining agreement between refinery workers and Conoco contains a broad management rights clause; that clause provides that disputes arising under it are not arbitral. Under another article of the union contract, when vacancies arise in within the 'repairman craft,' the most senior worker bidding for the job is entitled to it. However, that same article states that vacancies requiring 'high technical skills or created by abnormal circumstances' may be filled out of seniority order and at management's discretion. The collective bargaining agreement also contained a provision providing for the arbitration of grievances. In December 1999, Conoco informed the union that the whole of the 'repairman craft' required 'high technical skills,' such that Conoco could fill any job arising within that job classification without regard to seniority and at its sole discretion. PACE disagreed and grieved the reclassification, informing the employer that it was unlikely that the repair jobs in question, whose duties had not substantially changed in recent years, should suddenly require high technical skills. The employer denied the grievance, and also started to deny repair jobs to employees who would have received them by seniority. PACE sued in 2001, arguing that the court should compel arbitration of the grievances.

The district court ruled to compel arbitration of the grievances and, on review, the Tenth Circuit agreed, holding that the broad management rights clause did not 'unambiguosly invest management with the discretion to define and interpret terms found in other provisions' of the union contract, and certainly did not 'expressly exclude the present dispute from arbitration.' The court first observed that where, as here, 'a contract contains an arbitration clause, there is a presumption in favor of arbitrability. Although the management rights provision of the union contract gave management the right to use discretion in filling positions requiring 'high technical skills,' it did not follow, according to the Court, that management had the right to unilaterally decide which jobs required such skills in the first place.

Title VII: Counterclaim Not Evidence of Retaliation

The mere fact that an employer filed a counterclaim in a Title VII discrimination suit against the terminated plaintiff himself did not support a claim for retaliation under the statute, the Fifth Circuit has held. Hernandez v. Crawford Building Material Co., WL (5th Cir. Feb. 21).

Plaintiff Juan Hernandez, a Mexican immigrant, began working in Crawford Building Material Co.'s lumberyard in 1975. Later, Hernandez was moved to Crawford's carpet warehouse into a position with increased responsibilities and pay. Subsequently, Hernandez committed a mistake in cutting a role of carpet, failed to report the mistake, and was consequently fired in June 1999. Hernandez sued in federal district court. After he filed suit, the company learned from a witness that Hernandez had been engaging in the theft and resale of building materials. In selling the materials, Hernandez claimed to one prospective buyer that Crawford paid him in building materials. However, the witness reported theft that was supposed to have occurred nearly 6 years earlier, so the company lacked the ability to investigate the reports. When the company answered Hernandez's complaint, it asserted a counterclaim for theft. Hernandez then amended his complaint to include a claim of retaliation based on the company's counterclaim. At trial, the company prevailed on Hernandez's underlying discrimination claim, but the jury found for Hernandez on his retaliation claim and awarded him $20,000 in compensatory damages and $55,000 in punitive damages. Before the jury's deliberation, the trial court had instructed the jury that Crawford's theft counterclaim against the plaintiff could not support a retaliation claim. Crawford appealed.

On appeal, the Fifth Circuit reversed the trial court judge, holding that the judge's jury instruction as to retaliation was plain error. The court noted, citing the well-established prima facie case of retaliation, that Hernandez must show that he was engaged in activity protected under Title VII, that Crawford took an unlawful employment action against Hernandez, and that there was a causal connection between the protected activity and the adverse employment action. The Fifth Circuit, the court went on, has applied a more restrictive interpretation of 'adverse employment action,' requiring some adverse action as to 'ultimate employment decisions' such as hiring or firing. Acknowledging that some other federal courts of appeals have held that the filing of a lawsuit could be a form of adverse employment action sufficient to support a retaliation claim, the Fifth Circuit has previously taken a 'more skeptical view.' According to the Fifth Circuit, it was not obvious that a counterclaim could amount to an adverse employment action because companies and individuals 'have a constitutional right to file lawsuits, tempered by the requirement that the suits have an arguable basis.' Accordingly, Hernandez could not ground a retaliation claim based on Crawford's counterclaim.

Church Employee's Suit Barred by 'Ministerial Exception'

The Seventh Circuit has held that a 'communications manager' position to the Catholic Bishop of Chicago, which had been held by a Hispanic employee, fell within the First Amendment's 'ministerial exception' to Title VII of the Civil Rights Act of 1964. Alicea-Hernandez v. Catholic Bishop of Chicago, 2003 WL 373349 (Feb. 21).

Plaintiff Gloria Alicea-Hernandez was hired in early 2000 to serve as the Catholic Church of Chicago's Hispanic Communications Manager. Alicea-Hernandez's duties in that role included composing media releases for the Hispanic community; composing correspondence for the Cardinal; developing a working relationship with the Hispanic media and parishes in that community to promote Church activities; developing a working relationship with the Hispanic community to enhance its involvement; composing articles for Church publications; and translating Church materials into Spanish. Alicea-Hernandez claims that, while working for the Church, she was experienced discrimination on the basis of her gender and national origin, and also experienced retaliation for filing an EEOC charge. Her claims rested on allegations of poor office conditions, attempts by the Church to prevent her from improving those conditions, exclusion from management meetings and communications, denial of resources necessary for her to perform her job, and constructive discharge and subsequent replacement by a less qualified male who received a higher salary and a more significant title for the same position. However, while being subjected to this alleged discrimination, Alicea-Hernandez was sharply criticizing the Church on its relations with the Hispanic community. Eventually, Alicea-Hernandez resigned in December of 2000 and later filed suit. The Church moved to dismiss her complaint on two grounds: first, the Church argued, the trial court lacked subject matter jurisdiction because the plaintiff's complaints were based solely on her disagreements with the it policies toward Hispanics, an inquiry which would require the Court to look into Church policy; and second, the plaintiff's duties were 'ministerial' in nature, and thus fell within an exception to the ambit of Title VII. The trial court agreed and dismissed the complaint.

The Seventh Circuit affirmed, agreeing only with the district court's second rationale. The 'ministerial exception' to Title VII coverage, first articulated by the Fifth Circuit in 1972, bars Title VII actions brought against churches by their 'ministers,' since allowing such suits would trample on the First Amendment principle of the free exercise of religion. This exception to the applicability of Title VII stems, the court explained, from the principle that 'the perpetuation of a church's existence may depend upon those whom it selects to preach its values, teach its message, and interpret its doctrines[.]' The Court went on to find that Alicea-Hernandez served as a 'liaison' between the Church and the Hispanic community it served, and, since the plaintiff 'was integral in shaping the message the Church presented to the Hispanic community,' her claim fell squarely within Title VII's ministerial exception.

The Paper, Allied-Industrial,Chemical and Energy Workers International Union (PACE) represents, among others, workers at a Conoco oil refinery in Oklahoma. The collective bargaining agreement between refinery workers and Conoco contains a broad management rights clause; that clause provides that disputes arising under it are not arbitral. Under another article of the union contract, when vacancies arise in within the 'repairman craft,' the most senior worker bidding for the job is entitled to it. However, that same article states that vacancies requiring 'high technical skills or created by abnormal circumstances' may be filled out of seniority order and at management's discretion. The collective bargaining agreement also contained a provision providing for the arbitration of grievances. In December 1999, Conoco informed the union that the whole of the 'repairman craft' required 'high technical skills,' such that Conoco could fill any job arising within that job classification without regard to seniority and at its sole discretion. PACE disagreed and grieved the reclassification, informing the employer that it was unlikely that the repair jobs in question, whose duties had not substantially changed in recent years, should suddenly require high technical skills. The employer denied the grievance, and also started to deny repair jobs to employees who would have received them by seniority. PACE sued in 2001, arguing that the court should compel arbitration of the grievances.

The district court ruled to compel arbitration of the grievances and, on review, the Tenth Circuit agreed, holding that the broad management rights clause did not 'unambiguosly invest management with the discretion to define and interpret terms found in other provisions' of the union contract, and certainly did not 'expressly exclude the present dispute from arbitration.' The court first observed that where, as here, 'a contract contains an arbitration clause, there is a presumption in favor of arbitrability. Although the management rights provision of the union contract gave management the right to use discretion in filling positions requiring 'high technical skills,' it did not follow, according to the Court, that management had the right to unilaterally decide which jobs required such skills in the first place.The mere fact that an employer filed a counterclaim in a Title VII discrimination suit against the terminated plaintiff himself did not support a claim for retaliation under the statute, the Fifth Circuit has held. Hernandez v. Crawford Building Material Co., WL (5th Cir. Feb. 21).

Plaintiff Juan Hernandez, a Mexican immigrant, began working in Crawford Building Material Co.'s lumberyard in 1975. Later, Hernandez was moved to Crawford's carpet warehouse into a position with increased responsibilities and pay. Subsequently, Hernandez committed a mistake in cutting a role of carpet, failed to report the mistake, and was consequently fired in June 1999. Hernandez sued in federal district court. After he filed suit, the company learned from a witness that Hernandez had been engaging in the theft and resale of building materials. In selling the materials, Hernandez claimed to one prospective buyer that Crawford paid him in building materials. However, the witness reported theft that was supposed to have occurred nearly 6 years earlier, so the company lacked the ability to investigate the reports. When the company answered Hernandez's complaint, it asserted a counterclaim for theft. Hernandez then amended his complaint to include a claim of retaliation based on the company's counterclaim. At trial, the company prevailed on Hernandez's underlying discrimination claim, but the jury found for Hernandez on his retaliation claim and awarded him $20,000 in compensatory damages and $55,000 in punitive damages. Before the jury's deliberation, the trial court had instructed the jury that Crawford's theft counterclaim against the plaintiff could not support a retaliation claim. Crawford appealed.

On appeal, the Fifth Circuit reversed the trial court judge, holding that the judge's jury instruction as to retaliation was plain error. The court noted, citing the well-established prima facie case of retaliation, that Hernandez must show that he was engaged in activity protected under Title VII, that Crawford took an unlawful employment action against Hernandez, and that there was a causal connection between the protected activity and the adverse employment action. The Fifth Circuit, the court went on, has applied a more restrictive interpretation of 'adverse employment action,' requiring some adverse action as to 'ultimate employment decisions' such as hiring or firing. Acknowledging that some other federal courts of appeals have held that the filing of a lawsuit could be a form of adverse employment action sufficient to support a retaliation claim, the Fifth Circuit has previously taken a 'more skeptical view.' According to the Fifth Circuit, it was not obvious that a counterclaim could amount to an adverse employment action because companies and individuals 'have a constitutional right to file lawsuits, tempered by the requirement that the suits have an arguable basis.' Accordingly, Hernandez could not ground a retaliation claim based on Crawford's counterclaim.

This month's National Litigation Hotline, and Recent Developments from Around the States were both written by Mark A. Konkel, an associate with Winston & Strawn, New York, and Associate Editor of this publication.