Douglas v. DynMcDermott Petroleum Operations Co. , 144 F.3d 364 ( 1998 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 96-30883
_____________________
KORDICE M. DOUGLAS,
Plaintiff - Appellee-Cross-Appellant,
versus
DYNMcDERMOTT PETROLEUM OPERATIONS
COMPANY; JOHN POINDEXTER,
Defendants - Appellants-Cross-Appellees.
_________________________________________________________________
Appeals from the United States District Court for the
Eastern District of Louisiana
_________________________________________________________________
June 18, 1998
Before JOLLY, DAVIS, and BARKSDALE, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
This case presents the question whether an in-house counsel’s
disclosing informally to third parties information relating to
interoffice complaints of discrimination against her constitutes a
breach of her professional ethical duties of confidentiality and
loyalty, and if so, whether such conduct is protected under Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and
42 U.S.C. § 1981. We hold that, although an attorney’s unethical
disclosures may constitute opposition to practices made unlawful by
Title VII, such conduct is nevertheless unprotected under Title VII
(and § 1981) as a matter of law. Accordingly, we reverse the
verdict and judgment of the district court.
2
I
DynMcDermott Petroleum Operations (“DynMcDermott”) is a
private corporation that employs over 900 individuals and manages
the Department of Energy’s (the “DOE”) Strategic Petroleum Reserve
facilities. Kordice Douglas is a black female attorney. She was
hired by DynMcDermott to review procurement contracts, oversee
ongoing litigation, and assist DynMcDermott’s human resources
department with legal issues. As in-house counsel, she was privy
to all of her employer’s legal files and confidential information
concerning employee disputes.
Before signing on with DynMcDermott, Douglas worked as
in-house counsel for Boeing Petroleum Services, Inc. (“BPS”), the
company that previously had managed the petroleum reserve
facilities. DynMcDermott successfully bid on the management
contract for the facilities and took over its administration in
1993. More than 90% of BPS employees made the transition to
employment with DynMcDermott, including Douglas who initially began
work with DynMcDermott on April 1, 1993, without a temporal gap
between employment. Douglas’s job responsibilities and salary
remained the same except that she also was assigned to serve as the
primary legal contact for the human resources department of
DynMcDermott.
3
The relationship between DynMcDermott and the DOE was purely
contractual and at arm’s length. Under the contract, DynMcDermott
simply agreed to perform certain managerial and administrative
services for the DOE. The contract required that DynMcDermott
operate free from discriminatory practices, but DynMcDermott
neither implicitly nor explicitly waived any of its rights of
confidentiality or privilege with respect to its in-house counsel.
In connection with the antidiscrimination provision, DOE officials
met with DynMcDermott employees at various times to assure that
DynMcDermott was complying with this aspect of the contract (“EEO
audits”). Just such a meeting occurred on June 6, 1994, between
John Poindexter--DynMcDermott’s general counsel and Douglas’s
supervisor--and three DOE employees.
Poindexter requested that Douglas attend the June 6 meeting
because she was familiar with the DOE’s particular areas of inquiry
regarding DynMcDermott’s employment practices. DynMcDermott was
unhappy with Douglas’s professional conduct at this meeting.
Specifically, the DOE auditors asked if Douglas were aware of any
equal pay claims of women at the different sites. Douglas
indicated that she was not, but further responded, “Maybe I’ll get
my money now.”1 When informed by the DOE of a large number of
1
This remark arose in the context of demonstrating Douglas’s
alleged dissatisfaction with her salary. Douglas submits that she
previously had discussed her dissatisfaction with her salary with
4
complaints that it had received from DynMcDermott employees,
Douglas also voluntarily offered her opinion that it was a
dangerous situation--”a class action waiting to happen.” She
further informed the auditors of one particular employee’s (Becky
Roussell’s) discrimination complaint that had not been resolved to
the employee’s satisfaction. The day after the meeting, Douglas
disclosed to the DOE attorney, who had initiated the audit,
additional information--allegedly confidential--regarding her
investigation into Ms. Roussell’s claim.2
Two weeks after the meeting with the DOE auditors, Poindexter
met with Douglas to discuss her written performance evaluation.
One of the comments in the evaluation indicated that Douglas had
failed to exercise good judgment during the June 6 meeting with the
DOE officials. Douglas objected to several critical comments in
her evaluation, including one concerning her alleged lack of
discretion during the DOE meeting. Poindexter upwardly adjusted
several specific ratings, but maintained her overall evaluation of
“fully satisfactory.”
Poindexter, that he had failed to take any action on her behalf,
and that her remark at the audit was a protest of her allegedly
unequal pay.
2
The day after the audit, Douglas told the DOE attorney that
she had prepared a report of the “Becky incident,” but that she
thought DynMcDermott’s Human Resources Department manager had
changed the report.
5
Douglas was still dissatisfied with her performance
evaluation. Thus, a few days later, she composed a five-page
response (hereinafter “Response Letter” or “Response” or “Letter”)
to her evaluation in which she complained that she had been
subjected to racial and sexual discrimination. She also further
discussed events surrounding Becky Roussell’s complaint and a
separate business matter that she had handled for DynMcDermott
involving BellSouth Mobility. Douglas presented her Response
Letter not only to Poindexter, but also to three other DynMcDermott
employees, and to Richard O’Neill, a whistle-blower officer with
the DOE. Upon inquiry from O’Neill, however, Douglas confirmed
that the DOE was not to treat the Response as a whistle-blower
complaint.
When DynMcDermott learned that Douglas had furnished her
Response Letter to an individual outside the confines of the
company, it convened a “termination board” to discuss the
consequences of Douglas’s actions. The board members included the
president, the director of human resources, the deputy project
manager, and Poindexter, the company’s general counsel. After
meeting several times and conducting research into Douglas’s
attorney-client duties of loyalty and confidentiality and the
company’s duties under the antidiscrimination statutes, the board
6
unanimously agreed to terminate Douglas’s employment. DynMcDermott
informed Douglas of the decision on July 7, 1994.
After her termination, Douglas forwarded her Response Letter
to several other individuals outside DynMcDermott, including the
local head of the NAACP, Congressman William Jefferson, and Hazel
O’Leary, the Secretary of the DOE. In addition to the Letter,
Douglas also furnished O’Leary with a package of DynMcDermott’s
private documents gathered from the company’s legal files before
she was discharged. She later filed a claim of discrimination with
the EEOC alleging as the sole basis of liability that DynMcDermott
retaliated against her when she “opposed practices made unlawful
under Title VII.” The EEOC issued her a right-to-sue letter and
she timely filed an action in federal district court.
II
Douglas filed suit in the Eastern District of Louisiana
against John Poindexter, DynMcDermott, and other corporations
connected to DynMcDermott alleging (1) retaliation under Title VII,
(2) retaliation under 42 U.S.C. § 1981, (3) conspiracy under 42
U.S.C. § 1985, (4) race discrimination under § 1981 regarding her
right to enter into future employment contracts as an attorney, (5)
race and sex discrimination under Title VII, and (6) state law
claims for defamation, intentional infliction of emotional
distress, and gender discrimination. She sought back pay,
7
compensatory and punitive damages, injunctive relief, and
reinstatement with DynMcDermott or front pay. Ruling on the
defendants’ motion to dismiss, the court dismissed Douglas’s § 1981
retaliation claim and her § 1985 conspiracy claim, but otherwise
allowed her action to proceed to trial.
The jury returned its verdict finding that Douglas was not
terminated because of her race or sex, but that she was discharged
in retaliation for engaging in activity protected under Title VII.
The jury refused to award front pay, but allowed $7,830 in back
pay, $238,840 in compensatory damages, and $375,000 in punitive
damages.3
3
The two verdict forms provide in relevant part:
VERDICT FORM
1. Do you find by a preponderance of the evidence that
plaintiff’s race was a determining factor in DynMcDermott’s
decision to discharge her?
Yes No X
PROCEED TO QUESTION NO. 2.
2. Do you find by a preponderance of the evidence that
plaintiff’s sex was a determining factor in DynMcDermott’s decision
to discharge her?
Yes No X
PROCEED TO QUESTION NO. 3.
3. Do you find by a preponderance of the evidence that a
determinative factor in the plaintiff’s discharge was that she
engaged in an activity protected by Title VII?
8
Yes X No
PROCEED TO QUESTION NO. 4.
4. a) Do you find by a preponderance of the evidence that
defendant John Poindexter made a defamatory statement about the
plaintiff to a third person?
Yes No X
IF YOU ANSWERED “NO” TO PART “a,” PROCEED TO QUESTION NO. 5. IF
YOU ANSWERED “YES” TO PART “a,” PROCEED TO PART “b.”
b) Do you find that the statement was privileged, that is made
by the defendant in good faith with an interest or duty to a party
with a corresponding interest or duty?
Yes No
PROCEED TO QUESTION NO. 5.
5. a) Has plaintiff proven by a preponderance of the evidence
that the conduct of defendant John Poindexter was extreme and
outrageous?
Yes No X
IF YOU ANSWERED “NO” TO PART “a,” PLEASE SIGN AND DATE THIS FORM
BELOW AND ANSWER NO FURTHER QUESTIONS. IF YOU ANSWERED “YES” TO
PART “a,” PROCEED TO PART “b.”
b) Has plaintiff proven by a preponderance of the evidence
that defendant John Poindexter desired to inflict severe emotional
distress or knew that severe emotional distress would be certain or
substantially certain to result from this conduct?
Yes No
[Signed and dated by the jury foreperson]
VERDICT FORM
* * *
9
The district court entered judgment for Douglas for $621,670
against DynMcDermott and Poindexter, dismissed all claims against
the remaining defendants, and denied front pay and reinstatement
after finding that Douglas would have been legitimately terminated
for her unethical conduct of gathering internal legal documents
before her discharge. The court subsequently amended the judgment
to comport with the statutory cap on compensatory and punitive
damages under Title VII, which reduced Douglas’s final award to
$307,830, and memorialized that Douglas prevailed only on her Title
VII claim of retaliation against DynMcDermott and Poindexter. All
parties appealed.
4. a) Do you find that the defendants would have legitimately
terminated the plaintiff based on statements made by the plaintiff
to Lansing Barrow the day after the audit interview with the
plaintiff?
Yes No X
PROCEED TO PART “b.”
b) Do you find that the defendants would have legitimately
terminated the plaintiff for collecting records that belonged to
DynMcDermott’s legal department prior to her termination on July 7,
1994?
[”Yes” written in]
* * *
[Signed and dated by the jury foreperson]
10
III
DynMcDermott4 argues, in sum, that Douglas disclosed client
confidences in her Response Letter, that her actions thus cannot be
classified as “protected activity” under Title VII’s opposition
clause, and that she was terminated because of her unethical
disclosures and not because of her participation in any protected
activity. Douglas counters that the evidence adduced at trial
supports the jury’s verdict that she engaged in protected
activities and that those activities prompted DynMcDermott to
retaliate against her by terminating her employment. Further, in
making her own appeal Douglas argues that the district court erred
in dismissing her retaliation claim under § 1981 and that we should
reinstate the jury’s total award of damages because § 1981 has no
statutory damages cap.
We need not reach the latter issues because we hold that
Douglas’s conduct constituted a breach of her duties of
confidentiality and loyalty to DynMcDermott, that, accordingly, the
conduct was not protected activity as a matter of law, and that
DynMcDermott therefore did not unlawfully retaliate against her
when it terminated her employment because of that conduct.
IV
4
For convenience, we will refer to both DynMcDermott and
Poindexter as DynMcDermott, unless specifically addressing an issue
relevant only to Poindexter.
11
We employ a deferential standard of review when examining a
jury’s verdict for sufficiency of the evidence. Ham Marine, Inc.
v. Dresser Indus., Inc., 72 F.3d 454, 459 (5th Cir. 1995). “Unless
the evidence is of such quality and weight that reasonable and
impartial jurors could not arrive at such a verdict, the findings
of the jury must be upheld.” Ham Marine, 72 F.3d at 459. We may
not reweigh the evidence, re-evaluate the credibility of the
witnesses, nor substitute our reasonable factual inferences for the
jury’s reasonable inferences. Hiltgen v. Sumrall, 47 F.3d 695,
699-700 (5th Cir. 1995). We must view the evidence in the light
most favorable to upholding the jury’s verdict and may only reverse
if the evidence points “so strongly and overwhelmingly in favor of
one party that the court believes that reasonable men could not
arrive at a contrary conclusion.” Hiltgen, 47 F.3d at 700; Pagan
v. Shoney’s, Inc., 931 F.2d 334, 337 (5th Cir. 1991). Questions of
law, of course, we review de novo. United States v. O’Keefe, 128
F.3d 885, 893 (5th Cir. 1997), cert. denied, U.S. ,
S.Ct. , L.Ed.2d , 1998 WL 130816 (1998); Munn v. Algee,
924 F.2d 568, 575 (5th Cir. 1991).
V
A
Douglas is a member of the Louisiana Bar and is thus governed
by the Louisiana Rules of Professional Conduct. She is duty-bound,
12
as are all lawyers, not to disclose her client’s confidences
without authorization and loyally to serve the interests of her
client. Rule 1.6 provides in toto:
(a) A lawyer shall not reveal information relating to
representation of a client unless the client consents
after consultation, except for disclosures that are
impliedly authorized in order to carry out the
representation, and except as stated in Paragraph (b).
(b) A lawyer may reveal such information to the extent
the lawyer reasonably believes necessary:
(1) To prevent the client from committing a criminal
act that the lawyer believes is likely to result in
imminent death or substantial bodily harm; or
(2) To establish a claim or defense on behalf of the
lawyer in a controversy between the lawyer and the
client, to establish a defense to a criminal charge or
civil claim against the lawyer based upon conduct in
which the client was involved, or to respond to
allegations in any proceeding concerning the lawyer’s
representation of the client.
Louisiana State Bar Articles of Incorporation, Rules of
Professional Conduct, Rule 1.6, La. Rev. Stat. Ann. § 37:219
Ch.4-App., Art. 16 (hereinafter “Ethical Rule” 1.6).5 Thus, except
under specified limited circumstances, an attorney may not divulge
her client’s confidences. See United States v. Cavin, 39 F.3d
1229, 1308 (5th Cir. 1994); Abell v. Potomac Ins. Co., 858 F.2d
5The ethical rules provide us with guidance in evaluating an
attorney’s conduct appearing before us as they set out the
profession’s own articulation of its ethical standards. Brennan’s,
Inc. v. Brennan’s Restaurants, Inc., 590 F.2d 168, 172 n.5 (5th
Cir. 1979).
13
1104, 1124 (5th Cir. 1988) (noting that disclosing material facts
to third persons may breach duty to keep confidences as required by
good ethics), vacated on other grounds sub nom. Fryar v. Abell, 492
U.S. 914, 109 S.Ct. 3236, 106 L.Ed.2d 584 (1989). A “confidence”
in this context means exactly what the rule says--any “information
relating to representation of a client.” Ethical Rule 1.6(a); see
also Brennan’s, Inc. v. Brennan’s Restaurants, Inc., 590 F.2d 168,
172 (5th Cir. 1979) (noting ethical duty of confidentiality is
broader than evidentiary privilege; confidentiality involves all
“information” gained in representation, as opposed to “confidence”
or “secret”).
In addition to the duty of confidentiality, Ethical Rule 1.7
provides that “[l]oyalty is an essential element in the lawyer’s
relationship to a client.” The duty of loyalty to the client, with
which the duty of confidentiality is inherently intertwined, is one
of the basic tenets of the legal profession. Cavin, 39 F.3d at
1308. The obligations of this profession are not “merely hortatory
appeals to [one’s] conscience,” but enforceable strictures of a
lawyer’s conduct. Id.; McCuin v. Texas Power & Light Co., 714 F.2d
1255, 1264-65 (5th Cir. 1983) (“An ethical code is not a garment
that lawyers may don and doff at pleasure.”). Violation of one’s
ethical duties can lead to sanctions as severe as disbarment.
14
These duties--confidentiality and loyalty--serve to fortify
the client’s trust placed with the attorney and to ensure the
public’s confidence in the legal system as a reliable and
trustworthy means of adjudicating controversies. See In re
American Airlines, Inc., 972 F.2d 605, 618-20 (5th Cir. 1992) (“The
trust a lawyer’s duty of loyalty inspires in clients encourages
them freely to confide in the lawyer and freely to rely on the
advice provided by the lawyer.”) (citing E.F. Hutton & Co. v.
Brown, 305 F.Supp. 371, 395 (S.D. Tex. 1969); Duncan v. Merrill
Lynch, 646 F.2d 1020, 1027 (5th Cir. 1981) (“[T]he integrity of the
judicial system would be sullied if courts tolerated . . . [the
unethical disclosure of confidential information] by those who
profess and owe undivided loyalty to their clients.”)); McCuin, 714
F.2d at 1265 (“The purpose . . . [of ethical precepts] is to
preserve public confidence in the bar and in the legal process.”).6
B
(1)
6
For a contrary view as to the necessity of the duty of
confidentiality, see Daniel R. Fischel, Lawyers and
Confidentiality, 65 U. Chi. L. Rev. 1 (Winter 1998) (submitting
that the duty of confidentiality is used as an economic incentive
that benefits the legal profession more than the client or the
public).
15
Against the backdrop of these declarations demonstrating the
obligations of confidentiality and loyalty in a lawyer’s
relationship with her client, we must first determine whether
Douglas breached her professional ethical duties. We therefore
turn to the specifics of the information that Douglas disclosed to
persons outside DynMcDermott.7 In her Response Letter, Douglas
wrote:
I wish to deal with one instance specifically. The
complaint of Becky R. regarding Brian S. I interviewed
Becky and looked at the documentation and wrote a
response. I specifically asked John Poindexter if I
could speak to Eugene T. and Brian S. I was told No. I
turned the letter over to him. I never heard a response.
In the performance evaluation meeting, he told me he
spoke to Brian S. privately. This is an example of
disparate treatment. Brian S. can get a private
consultation about something that was documented, but,
yet, I am asked to listen more and improve my
interpersonal relationships with other employees in
writing in a performance evaluation.
She also discussed in some detail her handling of a business matter
with BellSouth Mobility on behalf of DynMcDermott. She included in
7
In her brief, Douglas notes that the evidence would not
support a finding that DynMcDermott terminated her employment
because of the disclosures she made during the EEO audit or in the
conversation she had with a DOE officer a day after the meeting.
We agree that the evidence is clear that these disclosures were not
the basis for DynMcDermott’s decision to discharge her. Therefore,
like the parties, we restrict our discussion to the information
revealed in Douglas’s Response Letter that she disseminated to
outside parties.
16
her Response Letter her employer’s wishes with respect to the
matter and the steps she took in dealing with the file.8
The disclosed matters clearly include information that Douglas
gained through her representation of her client, DynMcDermott, and
is “information relating to representation of [that] client.”
Ethical Rule 1.6(a) (emphasis added). As we have noted before, the
“use of the word ‘information’ . . . is particularly revealing of
the drafters’ intent to protect all knowledge acquired from a
client. . . . This is true without regard to whether someone else
may be privy to it.” Brennan’s, Inc., 590 F.2d at 172. The
disclosed matters thus, pursuant to Ethical Rule 1.6 (a),
constitute confidences and Douglas divulged them to the DOE. The
next question to be considered is whether Douglas’s indiscretions
amounted to a breach of her duties of confidentiality and loyalty.
(2)
Douglas first contends that her disclosures were justified
because she reasonably understood the DOE to be her client along
8
For instance, Douglas noted that when a BellSouth Mobility
matter became a problem, DynMcDermott turned the file over to her.
She set out in her Response Letter what actions she took with
respect to the matter, such as contacting BellSouth Mobility and
all of the involved employees and drafting a payment agreement.
She also stated that Carol Parrella, presumably employed as part of
DynMcDemott’s upper management, did not want DynMcDermott’s
employees to sign the payment agreement and that she drafted a
second agreement. All of these disclosures were “information
relating to representation of a client” under Rule 1.6 and thus
constituted confidential information.
17
with DynMcDermott. This argument is patently implausible.
DynMcDermott alone hired her, directed her, and paid her salary.
Douglas completely understood that DynMcDermott was her sole
employer. There is no evidence that the DOE ever retained or
relied on her services as an attorney or that DynMcDermott
consented to any dual representation by her. See Ethical Rules
1.7; 1.13 (setting out prerequisites before attorney may consent to
dual representation; noting duties specific to corporate counsel).
Douglas had been engaged in the practice of law for almost
fifteen years when DynMcDermott hired her. If she is serious in
her contention that she considered the DOE to be her client in
conjunction with the corporation she was specifically employed to
represent, she has a distorted understanding of her professional
duty. DynMcDermott was her client; it hired her and paid her. The
DOE was not her client; indeed, the DOE was a potential adversary
to her client. DynMcDermott therefore reasonably expected her
loyally to represent it--which obviously encompassed the
expectation that she would not disclose its confidences to third
parties.
In the alternative, Douglas argues that because she was
instructed as in-house counsel for her former employer, BPS, to
treat the DOE as her client, it was reasonable for her to assume
that DynMcDermott also desired that she maintain a similar
18
relationship with the DOE when DynMcDermott took over management of
the petroleum reserve facilities. From this assumption, Douglas
extrapolates that DynMcDermott consented to the disclosures under
Ethical Rule 1.6(a). That Douglas’s former employer may have so
consented is irrelevant. DynMcDermott--her one and only client
during the time at issue--did not expressly or impliedly consent to
any such arrangement or to the disclosures here involved. See
Ethical Rule 1.6(a). In sum, Douglas cannot ethically justify her
disclosure of client confidences to the DOE under Ethical Rule
1.6(a) because (1) DynMcDermott was her sole client and (2)
DynMcDermott did not consent to the disclosures.
(3)
Because she revealed to third parties information relating to
her representation of DynMcDermott--i.e., the company’s handling of
an internal complaint and her dealings with the BellSouth Mobility
matter--Douglas breached the duty of confidentiality unless the
disclosures fall within one of the limited exceptions in Ethical
Rule 1.6(b). Douglas maintains that she ethically revealed the
confidential information because she reasonably believed that the
matter she publicized to the DOE was necessary to establish her
claims of discrimination in the workplace.9 In her Response
9
A second exception allowing disclosure occurs when an
attorney reasonably believes it necessary “to respond to
allegations in any proceeding concerning the lawyer’s
19
Letter, she cited an example of alleged disparate treatment in the
company’s procedures for handling internal complaints: She received
a written report that would be placed in her employment file while
“Brian S.”--a white male--was only privately reprimanded.10
Although we have doubts as to whether Douglas’s disclosures of
confidential information reasonably were necessary to establish a
claim of discrimination, we need not address this issue because she
simply was not attempting to establish a “claim or defense” on her
behalf in a controversy with DynMcDermott when she provided the DOE
officer with a copy of her Response Letter containing client
representation of the client.” Ethical Rule 1.6(b)(2). Here,
however, when Douglas made the disclosures, no “proceeding” was
ongoing between DynMcDermott and Douglas.
Because Douglas represented an organizational client, an
additional exception may theoretically be available under Ethical
Rule 1.13 (“[I]f a lawyer for an organization knows that an
officer, employee or other person associated with the organization
is engaged in action . . . in a matter related to the
representation that is a violation . . . of law which reasonably
might be imputed to the organization, . . . the lawyer shall
proceed as is reasonably necessary in the best interest of the
organization.” Ethical Rule 1.13. Douglas has not urged this
section as a basis for her actions in this appeal, however, and we
generally do not consider arguments that have not been raised by
the parties. United States ex rel. Thompson v. Columbia/HCA
Healthcare Corp., 125 F.3d 899, 903 n.3 (5th Cir. 1998).
10
Demonstrating that similarly situated employees were not
subjected to adverse employment actions for engaging in conduct
identical to that in which the plaintiff engaged may be
illustrative of discrimination. Nieto v. L&H Packing Co., 108 F.3d
621, 623 & n.5 (5th Cir. 1997); Barnes v. Yellow Freight Sys.,
Inc.,778 F.2d 1096, 1101 (5th Cir. 1985). We note, however, that
Douglas proffered no meritorious argument justifying her
revelations with respect to the BellSouth Mobility matter.
20
confidences. When the DOE officer asked whether he should treat
the Letter as a whistle-blower complaint, Douglas responded that he
should not do so at that time. This negative answer leads
ineluctably to the conclusion that Douglas’s disclosures do not
fall within the narrow exception contained in Ethical Rule
1.6(b)(2). We thus conclude that the evidence establishes as a
matter of law that Douglas breached her duty of confidentiality,
and thereby her duty of loyalty, to DynMcDermott.
C
(1)
We must next determine, in the light of our conclusion that
Douglas violated her ethical obligations, whether Douglas
demonstrated that DynMcDermott unlawfully retaliated against her
when it terminated her employment. Title VII imposes liability for
unlawful retaliation where (1) the employee engaged in activity
protected by Title VII, (2) the employer took adverse employment
action against the employee, and (3) a causal connection exists
between that protected activity and the adverse employment action.
Mattern v. Eastman Kodak Co., 104 F.3d 702, 705 (5th Cir.), cert.
denied, U.S. , 118 S.Ct. 336, 139 L.Ed.2d 260 (1997);
Shirley v. Chrysler First, Inc., 970 F.2d 39, 42 (5th Cir. 1992).
The ultimate determination is whether, “but for” the protected
conduct, the employer would not have engaged in the adverse
21
employment action. Long v. Eastfield College, 88 F.3d 300, 305 n.4
(5th Cir. 1996); Johnston v. Harris County Flood Control Dist., 869
F.2d 1565, 1571 (5th Cir. 1989) (noting employee must prove
causation-in-fact); McDaniel v. Temple Indep. Sch. Dist., 770 F.2d
1340, 1346 (5th Cir. 1985) (same).
Activities protected under Title VII fall into two broad
categories--opposition and participation. An employee has engaged
in protected activity when she has (1) “opposed any practice made
an unlawful employment practice” by Title VII or (2) “made a
charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing” under Title VII. 42 U.S.C.
§ 2000e-3(a); Grimes v. Texas Dep’t of Mental Health & Mental
Retardation, 102 F.3d 137, 140 (5th Cir. 1996). Douglas claims
protection under both prongs.
(2)
(a)
Douglas first contends that she engaged in protected
participation when she responded to the DOE officers’ questions at
the EEO audit and when she disseminated her Response Letter to
O’Neill. As we have suggested supra in footnote 7, no evidence
indicates that DynMcDermott was motivated to terminate Douglas
22
because of her comments during the EEO audit.11 Although clearly
unhappy with her remarks at the audit, the evidence shows that
DynMcDermott was satisfied to address that matter in its
performance review. Douglas’s conduct during the EEO audit is
relevant to her discharge only as part of the background to her
subsequent response to her performance rating. We thus focus only
on the repercussions associated with Douglas’s Response Letter.
(b)
Douglas maintains that her Response Letter also constitutes
protected participation because it “should have been forwarded [by
the DOE] to the EEOC.” The participation clause affords protection
under Title VII by prohibiting retaliation for assistance and
participation in any manner “in an investigation, proceeding, or
hearing” under the statute. 42 U.S.C. § 2000e-3(a); Merritt v.
11
Although the evidence will not support a finding that
DynMcDermott was motivated to fire her because of her conduct in
the EEO audit, Douglas maintains that sufficient evidence supports
a finding that the comments she made in the EEO audit resulted in
the “low” rating she received on her evaluation and that her rating
is thus evidence of retaliation, albeit not of retaliatory
discharge. This contention is meritless. In the first instance,
DynMcDermott rated her performance as “fully satisfactory.” We
find it difficult to ascribe as low a “fully satisfactory” rating.
Second, even were we to allow that the rating Douglas received was
“low,” the evidence is insufficient to demonstrate that the
evaluation itself constitutes an adverse employment action
actionable under Title VII. See Mattern, 104 F.3d at 707; Dollis
v. Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995); Landgraf v. USI Film
Prods., 968 F.2d 427, 431 (5th Cir.), aff’d, 511 U.S. 244, 114
S.Ct. 1483, 128 L.Ed.2d 229 (1994).
23
Dillard Paper Co., 120 F.3d 1181, 1186 (5th Cir. 1997); Pettway v.
American Cast Iron Pipe Co., 411 F.2d 998, 1006 n.18 (5th Cir.
1969). Douglas, however, specifically instructed O’Neill not to
treat the Letter as a whistle-blower complaint. She thus did not
participate in an “investigation, proceeding, or hearing” within
Title VII’s parameters and her five-page Response Letter,
informally given to third parties, does not fall within that class
of activities protected under the participation clause.
(3)
(a)
Our determination that Douglas’s conduct does not qualify for
protection under the participation clause does not end our inquiry,
however, because we must also consider whether we may fairly
characterize the Response Letter as an opposition activity.
Douglas’s response purports to complain of racism, sexism, and
retaliation--all of which Title VII deems unlawful employment
practices. As such, the Letter appears to meet the litmus test for
activity constituting opposition under Title VII. We thus assume,
for the purposes of this opinion, that Douglas’s Response qualifies
as opposition activity.
Not all activities taken in opposition to an employer’s
perceived discriminatory practices, however, remain insulated from
reprisal under Title VII’s shield. Smith v. Texas Dep’t of Water
24
Resources, 818 F.2d 363, 365-66 (5th Cir. 1987); Jones v. Flagship
Int’l, 793 F.2d 714, 727 (5th Cir. 1986). We have recognized that
some conduct, even though engaged in with the most sincere of
intentions, may be so inappropriate as to justify the curtailment
of statutorily-afforded safeguards. Jones, 793 F.2d at 727.
Our precedents have employed a balancing test to determine
whether Title VII’s protections may be denied to an employee’s
activities that adversely affect his effective performance of job
duties. Jones, 793 F.2d at 727. “‘[T]he employer’s right to run
his business must be balanced against the rights of the employee to
express his grievances and promote his own welfare.’” Jefferies v.
Harris County Community Action Ass’n, 615 F.2d 1025, 1036 (5th Cir.
1980) (quoting Hochstadt v. Worcester Foundation for Experimental
Biology, 545 F.2d 222, 230-34 (1st Cir. 1976)). The yardstick
against which the employee’s conduct must be measured is the
flexible and protean doctrine of “reasonableness in [the] light of
the circumstances.” Jefferies, 615 F.2d at 1036.
For instance, in Rosser v. Laborers’ Int’l Union of North
America, Local No. 438, we held that the plaintiff’s form of
opposition was unprotected as a matter of law. 616 F.2d 221, 224
(5th Cir. 1980). The plaintiff in that case had been employed as
the dues-posting clerk for the secretary-treasurer of the union.
After being approached by black union members who felt the union
25
was discriminating against them, Rosser decided to run against her
boss for his elected position. She eventually was disqualified
from the race and was discharged from her employment with the union
after her boss was re-elected. Rosser contended that she was fired
in retaliation for her engagement in opposition activity. We
agreed that she was fired because of her opposition activity, but
we ruled in favor of the defendant on the basis that Rosser’s form
of opposition--seeking her boss’s job--placed her loyalty and
cooperation in serious doubt and accordingly fatally diminished her
effectiveness as a dues-posting clerk. Rosser, 616 F.2d at 224.
We held that her conduct was thus unprotected under Title VII as a
matter of law and that her employer therefore had a legitimate non-
discriminatory reason for discharging her. Id.We have since reaffirmed Rosser’s analysis, noting that
“[t]here may arise instances where the employee’s conduct in
protest of an unlawful employment practice so interferes with the
performance of his job that it renders him ineffective in the
position for which he was employed. In such a case, his conduct,
or form of opposition, is not covered by § 704(a).” Jones, 793
F.2d at 727 (quoting Rosser, 616 F.2d at 223).
In Jefferies, this court faced a situation that bears some
similarity to the conduct found in this case. The plaintiff was a
black female who, while employed by the defendant, copied and
26
disseminated confidential employment records that tended to
document her belief that she was a victim of discrimination. After
her termination, Jefferies sued for unlawful retaliation, arguing
that her conduct was protected because she had been attempting to
bring attention to an employment practice that allegedly
discriminated against her. Jefferies, 615 F.2d at 1036. After
weighing “the employer’s right to run his business” against
Jefferies’s right “to express [her] grievances and promote [her]
own welfare,” we determined that the plaintiff’s form of opposition
was unprotected. Id. We noted that Jefferies’s conduct was
clearly unreasonable in the light of the circumstances and her
employer legitimately discharged her because of it. Id.Jones is yet another of our precedents that have found
employee conduct unprotected under Title VII. Just as the conduct
in Jefferies is similar to that of Douglas’s--publishing
confidential information--, the plaintiff’s position of trust in
Jones is approximate to that enjoyed by Douglas before her
termination. Like Douglas, Jones was a licensed attorney hired by
Flagship to handle charges of discrimination lodged against it and
to represent it before state and federal administrative agencies,
including the EEOC. Jones, 793 F.2d at 716. Flagship fired Jones
after learning that she had filed a charge of discrimination with
the EEOC, had solicited others to join in her suit, and intended to
27
serve as the named representative of a class action against her
employer. We determined that her conduct was unprotected under
Title VII because it rendered her ineffective for the position for
which she was retained. Id. at 728.
(b)
These precedents bring us to the immediate case we consider
today. They serve to illustrate that employee conduct, although
fairly characterized as protest of or opposition to practices made
unlawful by Title VII, may nevertheless be so detrimental to the
position of responsibility held by the employee that the conduct is
unprotected. Douglas’s behavior fits into this general category.
Furthermore, Douglas’s conduct not only undermined her
effectiveness as an employee, but her actions also violated the
ethical rules of the legal profession. Here, while employed as
in-house counsel for DynMcDermott, Douglas breached her
professional duties of confidentiality and of loyalty when she
revealed to a third party information relating to the
representation of her client. She took no precautions12 to preserve
12
Even when revealing confidences falls within an exception to
the ethical rules, there are appropriate means for revealing
confidences that limit the dissemination of information disclosed.
They include requesting in camera review, requesting that the court
seal the record in any proceeding, and obtaining permission to
prosecute the action without revealing the true name of either
party. See, e.g., Doe v. A Corp., 709 F.2d 1043, 1045 n.1 (5th
Cir. 1983); United States v. Scott, 909 F.2d 488, 494 n.10 (11th
Cir. 1990) (noting different protective measures attorneys may take
28
the attorney-client relationship and instead acted with thoughtless
indiscretion, demonstrating little regard for the ethical
obligations inherent in the legal profession. This dereliction of
professional duties meant that DynMcDermott could no longer place
full trust in her to keep confidences that she may acquire as its
attorney. In short, the trust undergirding the attorney-client
relationship was broken and Douglas could no longer function in her
role as in-house counsel. See Rosser, 616 F.2d at 223 (noting that
employee’s conduct can so malign the relationship that continued
employment is impossible). Her conduct, on the whole, also
reflected poorly on the legal profession and its obligation to
maintain standards of trust and loyalty.
We therefore turn to the weighing process that our precedents
have employed in other similar contexts. We first weigh the
importance of the employer’s reasonable expectation that its
in-house counsel abide by the profession’s ethically imposed duties
of confidentiality and loyalty. Corporations hire in-house counsel
specifically with the expectation that the attorney’s loyalty may
be fully relied upon. A corporate lawyer is expected to defend her
employer-client when adversary proceedings arise and may not, with
very limited and specified exceptions, act detrimentally to the
to protect client confidences when they suspect a client of
intending to commit perjury).
29
employer-client’s interests. In fact, by accepting employment, a
lawyer chooses to place his loyalties with his employer-client and
agrees to act as its confidant and advocate. An in-house attorney
enjoys a unique position of special trust, and her employer-client
necessarily occupies a concomitant position of vulnerability with
respect to its relationship with its counsel. The ethical precepts
of confidentiality and loyalty serve to assure that that trust is
not misplaced and to shield the employer-client from an abuse of
the power that the attorney has acquired as a result of her unique
position of confidence. The employer-client’s reasonable
expectation that its attorney will abide by the profession’s
ethical edicts is thus entitled to great weight.
In addition to weighing the interests of the employer in
determining whether unethical conduct should be protected under
Title VII, we, as a court, must also consider the interests of the
legal profession, whose members’ ethical conduct is critical to the
integrity and reputation of the courts and their processes. It is
axiomatic that the legal profession has a vital interest in
promoting the ethical conduct of its members, and as strong an
interest in discouraging unethical conduct. These interests would
be struck a damaging blow if the law afforded some safe harbor for
unethical conduct. To forgive a breach by allowing the legal
protections sought in this case obviously would have repercussions
30
beyond this one case because such a ruling would carve out a class
of individual rights that trump professional ethical
considerations--and, by extrapolation, could lead to further
tolerances with unanticipated consequences to the profession, and
thus become yet another bissagiatt.13 The particular duties at
stake here--confidentiality and loyalty--are of indisputable
importance to the attorney-client relationship itself, as this
opinion has repeatedly pointed out. Furthermore, they instill a
faith in the system necessary for the public to trust our legal
system in the resolution of its disputes--again, as we have made
abundantly clear in this opinion.
Furthermore, when an attorney is granted the privilege of
joining the ranks of this profession, she agrees to abide by the
ethical rules of the profession. These obligations are fully
understood by the attorney and, thus, the profession’s expectation
that its members will obey its internal canons is also reasonable.
Finally, the ethical rule that Douglas breached, with its noted
exceptions, is a reasonable rule to require of in-house counsel as
well as of the profession generally.
We next weigh an attorney’s right under Title VII to oppose
allegedly discriminatory practices by her employer. It is an
13
William Raspberry, Defining Deficiency Down, The Washington
Post, May 29, 1998, at A27 (coining the acronym “bissagiatt” from
the phrase “But It Seemed Such a Good Idea at the Time”).
31
extremely important right that we do not gainsay in the least. But
in engaging in the balancing exercise here, we must be more
specific. The specific right asserted by Douglas is the right to
oppose the allegedly unlawful practices of her employer-client, and
to do so in such a manner that violates the ethical duties of the
legal profession. As we have noted, when Douglas became an
attorney, she became bound to abide by the ethical rules of the
profession. When she was hired as an attorney by DynMcDermott, she
became its defender and advocate. Although she surely did not
surrender her Title VII rights when she signed on with DynMcDermott
as its in-house counsel--and no one is suggesting that she did--
she did in fact assume professional responsibilities that
constrained her exercise of those rights.
Requiring adherence to the profession’s ethical precepts does
not strip an attorney of all Title VII protections. Indeed,
Ethical Rule 1.6 specifically provides for disclosure once
disclosure becomes necessary in a dispute with the employer-client.
Rule 1.6 surely does not bar Douglas’s opposition and protest in
her conversations, dialogue, and remonstrations with her employer-
client.
In sum, although the right to oppose unlawful practices under
Title VII is a right that, independently, is entitled to great
weight in the balancing test, the exercise of that right in
32
violation of the profession’s ethical duties of confidentiality and
loyalty simply will not counter the weight of the employer-client’s
rights and the duty owed to the legal profession.
We therefore conclude that when an attorney’s Title VII right
to oppose her employer-client’s allegedly discriminatory practices
by disclosing confidential information contrary to the ethical
obligations of the profession is balanced against her employer-
client’s right to ethical representation and the profession’s
interest in assuring the ethical conduct of its members, the
employer’s and the profession’s interests must prevail. Given the
obligations to which an attorney agrees when she joins the
profession and when she accepts employment, and the importance of
the duties of confidentiality and loyalty to the employer-client
and to the integrity of the profession, we hold as a matter of law
that conduct that breaches the ethical duties of the legal
profession is unprotected under Title VII.14
14
Douglas also maintains that the district court erred when it
dismissed her § 1981 claim for retaliatory discharge on the basis
that such a claim was not cognizable. See Patterson v. McLean
Credit Union, 491 U.S. 164, 179-80, 109 S.Ct. 2363, 2374, 105
L.Ed.2d 132 (1989); Carter v. South Central Bell, 912 F.2d 832, 840
(5th Cir. 1990) (holding that § 1981 does not encompass retaliatory
discharge claims). She contends that the Civil Rights Act of 1991
superseded Patterson and Carter and now allows such a claim. We
need not reach this issue because, even were employees now able to
bring retaliatory discharge claims pursuant to § 1981, we hold as
a matter of law that DynMcDermott did not engage in unlawful
retaliation when it terminated Douglas’s employment because of her
conduct that constituted ethical violations of her professional
33
In reaching this holding, we are aware that the trial court
determined that there was “minimal disclosure of any substantive
information” and, therefore, that any indiscretion on Douglas’s
part did not warrant much consideration. This conclusion was error
because, as we hold today, any betrayal of a client’s confidences
that breaches the ethical duties of the attorney places that
conduct outside Title VII’s protection.15 The employer-client need
not tolerate baby steps of unethical conduct while anxiously
wondering when and if the giant step will occur, and with what
consequences. Once the trust between attorney and client is
breached in violation of professionally sanctioned duties, Title
VII provides no shield from retaliation.16
duties.
15
Conduct that does not constitute a breach of the legal
profession’s ethically imposed obligations, but that nevertheless
adversely impacts the employment relationship between an in-house
counsel and her employer-client, remains subject to the balancing
test set out in Jefferies and Jones before it may be determined to
be unprotected conduct under Title VII.
16
As is obvious from our opinion, we do not address violations
of Title VII against an attorney that, although arising from the
same factual scenario, occur independent of the ethical breach. We
only make it clear that an attorney who violates her profession’s
ethical rules is not entitled to any damages flowing from
retaliation taken by her employer-client because of her violative
conduct. So long as the conduct actually constituted a violation
of the profession’s ethically imposed duties, the employer is
insulated from liability irrespective of whether it took adverse
employment action because the conduct constituted a breach or
because the conduct was in opposition to discriminatory employment
practices. See Rosser, 616 F.2d at 224 (holding opposition
34
VI
For the reasons stated in this opinion, the judgment of the
district court is REVERSED and this case is REMANDED to the
district court for entry of a judgment of dismissal.
REVERSED and REMANDED for entry of a judgment of dismissal.
activity unprotected even though motive for discharge remained
disputed).
35