REVISED, December 16, 1998

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 96-30883

_____________________

KORDICE M. DOUGLAS,

Plaintiff - Appellee-Cross-Appellant,

versus

DYN McDERMOTT PETROLEUM OPERATIONS

COMPANY; JOHN POINDEXTER,

Defendants - Appellants-Cross-Appellees.

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Appeals from the United States District Court for the

Eastern District of Louisiana

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December 15, 1998

ON PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC

144 F.3d 364 (5th Cir. June 18, 1998)

Before JOLLY, DAVIS, and BARKSDALE, Circuit Judges.

PER CURIAM:

The order of July 23, 1998, denying rehearing and rehea ring

en banc is rescinded and this order is substituted in its place.

The petition for rehearing is DENIED and the court having been

polled at the request of one of the members of the court and a

majority of the judges who are in regular active service not having

voted in favor, the suggestion for rehearing en banc is also

DENIED.2

BENAVIDES, Circuit Judge, with whom POLITZ, Chief Judge and

STEWART, Circuit Judge, join, dissenting:

I would grant rehearing en banc to allow the en banc court to

address the impor tant and substantive issues identified in the

dissent filed by Judge Dennis.

ENDRECORD1 McDonnell Douglas v. Green, 411 U.S. 792 (1973); Texas Dept.

of Community Affairs v. Burdine, 450 U.S. 248 (1981); St. Mary’s

Honor Ctr. v. Hicks, 509 U.S. 502 (1993).

2 Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir. 1969) (en

ban c), o verruled in part on other grounds, Gautreaux v. Scurlock

Marine, Inc., 107 F.3d 331 (5th Cir. 1997) (en banc).

3 Doe v. A Corp., 709 F.2d 1043 (5th Cir. 1983).

3 DENNIS, Circu it Judge, with whom PARKER, Circuit Judge, joins,

dissenting.

I dissent from the refusal to rehear this case en banc.

The panel opinion clashes with the Supreme Court’s McDonnell

Douglas-Burdine-Hicks 1 framewo rk for the trial of Title VII

intentional discrimination cases, as well as our en banc adoption

and explanation of the framework in Rhodes v. Guiberson Oil Tools,

75 F.3d 989 ( 5th Cir. 1996) (en banc). Instead of following

controlling precedents, the panel opinion uses a free-wheeling,

legislative-like balancing process to fashion a mandatory rule of

law, viz.

, any employee who is a lawyer loses Title VII protection

when she reveals any employment-related information while opposing

an unlawful employment practice; and proceeds to apply this rule to

facts found by the panel itself directly from the record, in

complete disregard of the panel’s duty to test the jury verdict

under our Boeing v. S hipman 2 standard as required by our en banc

decision in Rhodes. The panel opinion also overrules or undermines

pr ior panel decisions in D oe v. A Corporation 3

, which held that

ethical rules cannot be asserted to preclude a lawyer’s access to4 Jones v. Flagship Int’l

, 793 F.2d 714 (5th Cir. 1986), cert.

denied, 479 U.S. 1065 (1987).

5 The panel opinion also incorrectly interprets Louisiana

State Bar Association Rule of Professional Conduct 1.6 to require

the filing of a formal complaint by a lawyer in an administrative

or judicial tribunal against her client in order for there to be a recognizable controversy with the client that would allow the

lawyer to reveal confidential information when it is necessary to

do so to enforce or defend her own personal rights or to defend

herself against an accusation of wrongful conduct.

4 courts for the adjudication of his personal rights and tenable

legal claims again st his former employer, and Jones v. Flagship 4

,

which expressly recognized a lawyer’s ri ght to pursue her own

personal Title VII claim against her employer and to have a full

and fair opportunity under the McDonnell Douglas-Burdine framework

to demonstrate that the employer’s proffered reasons for adverse

employment actions were a pretext for unlawful discrimination

. 5

I will set forth my understanding of the case and the reasons

that I believe a correct application of the statute and the

doctrine of stare decisis should not result in setting aside the

jury’s verdict for the plaintiff or a reversal and remand for entry

of a judgment of dismissal.

I. STATEMENT OF THE CASE

Kordice Douglas, a black woman, was an in-house attorneyemployee of DynMcDermott Petroleum Operations Company (DPO). DPO

was a government contractor performing services for the Department

of Energy (DOE).6 In preparation for the appraisal, DOE requested DPO t o

complete a questionnaire and turn over certai n of its documents.

Among the documents requested were: “List of EEO-related

complaints and disposition actions(s) taken since contract

inception (including those actions pending after taking over from

Boeing Petroleum Services, Inc.)”; “Job group summary by race and

sex as of October, 1993 and March, 1994”; and “Organiza tional

charts by pay code, race, sex[.]”

5 Between April 13 and July 18, 1994, the DOE conducted an

appraisal of DPO’s Equal Employment Opportunity /Affirmative Action

program to assure that DPO was complying with Federal EEO laws.

The D OE appraisal was authorized by the DOE-DPO government

contract; Executive Order No. 11246, as amended, reprinted as

amended in 42 U.S.C. § 2000(e) note; 41 C.F.R. § 60-1 et seq. ; FAR

52.222-26; DOE Order No. 3220.2A. The appraisal consisted of a

review of DPO documents and interviews with a randomly selected

group of DPO employees. 6

The government’s contract between the DOE and DPO provided

that “[a]ll records acquired or generated by the contractor [DPO]

under this contract in the possession of the contractor, including

[performance appraisals, reviews, and associated documents, equal

employment opportunity and affirmative action claims and records,

files and records concerning ethics and security investigations,

and attorney-client p rivilege or attorney work product] shall be

subject to inspection, copying and audit by the government at all7 The statement to the contrary in DPO’s brief is incorrect:

“The controlling contract neither req uired DynMcDermott to waive

any rights of confidentiality or privilege, nor did it give DOE an

unlimited right to seek or obtain confidential or pri vileged

information from DynMcDermott.” The related statement in the panel

opinion is misleading: “DynMcDermott neither implicitly nor

explicitly waived any of its rights of confidentiality or privilege

with respect to its in-house counsel.” Douglas v. DynMcDermott

Pet roleum Operations Co., 1 44 F.3d 364, 366 (5th Cir. 1998),

petition for cert. filed, 67 U.S.L.W. 3302 (Oct. 20, 1998) (No. 98-

673).

6 reasonable times[.]” Therefore, DPO expressly waived its rights of

confidentiality and privilege with respect to these documents. 7

On June 8, 1994, during the appraisal, the DOE appraisal team

met with John Poindexter, who was DPO’s general counsel and

Douglas’s supervisor. Douglas was not scheduled or prepared to

attend the meeting. After the meeting was underway, however,

Poindexter se nt for Douglas and instructed her to answer some

questions for the DOE team. Poindexter did not apprise Douglas of

the questions she would be asked or how she sho uld answer them.

According to Douglas, she responded to all of the questions by the

DOE team honestly and correctly t o the best of her knowledge and

understanding. DOE auditors O’Neill, Barrow and Rochon also

testified at trial that Douglas’s answers were responsive to their

questions. Unbeknownst to Douglas, Poindexter had called her into

the meeting because he could not answer some of t he DOE team’s

questions about his own office’s procedures. When team member Dick

O’Neill asked her several questions touching on more subs tantive

EEO matters, however, she also a nswered them truthfully and8 These questions and answer s, Douglas testified, were as

follows:

[O’Neill] said, “Kordice, we’re conducting the

audit. We’ve received a lot of complaints at

DOE and that’s why we’re conducting the

audit.” He said, “Were you aware of all these

complaints?” So I said, “No, I’m not aware of

all the complaints. What complaints are you

talking about?” So he said, “We’ve had a

number of people to complain.” I said,

“Well,” I said, “If you have all those people

complaining, it’s just a class action

wait[sic] to happen.” And I said, “No,

I’m[sic] wasn’t aware tha t you had that many

employees complaining.”

These statements were repeated without change in substance during

her testimony.

[O’Neill] said, “ Were you aware of the women

at the sites with the equal pay claim?” So I

said, “No, I’m not aware of any equal pay

c laim with the women at the sites,” but, I

said, “I’m well aware of the equal pay

situation.” And I said, “Maybe I’ll get my

money now,” something jokingly, and they just

smiled and went on to the next question.

* * *

They also asked me was I aware of the leaks in

7 accurately within her understanding. Douglas testified that she

later learned that Poindexter, who sat by silently and impassively

during her interrogation, was disappoint e d and embarrassed by

several of her responses. It may be fairly inferred that

Poindexter, who was already embarrassed by his inability to answer

procedural questions, was further upset because Douglas’s

unrehearsed answers were in some res pects inconsistent with his

understanding of circumstances involving DPO’s EEO program that he

wished to present to the DOE team. 8the human resources department. They had many

complaints from employees about leaks in the

human resources department, and I took up for

the human resources department. I told them

tha t it was unfair to criticize the human

resources department, when employees were going back to their desks discussing the

problem. And I specifically mentioned an

employee, Becky S., even though I didn’t call

her name in the inter view, and that she was

standing out in the hall, telling people about

their problems.

Poindexter recalled Dougla s’s responses to the questions of

the DOE appraisal team somewhat different ly. According to

Poindexter:

Well, they started asking her specific details

abo ut certain situations. . . . We had a

situation where some women employees at one of

the sites, who were performing exactly the

same task as the men, were being paid less,

and that was br ought to our attention. . . .

DynMcDermott had resolved it. We, in fact,

increased the salary of the women because it

was a legitimate complaint. So she started

explaining that issue -- I mean, they were

asking her what she knew about an equal pay

situation at the s ites, and she said, well,

she really didn’t know. And they looked at me

and they said, “Do you know about that?” And

I said, “Yes.” Mr. Turner had talked to me

about the situation a nd I was aware of it.

But when they asked her is when she g ave the

statement, “No, I don’t know about it, but

maybe I’ll get my money now.”

***

There was a another problem with regard

to leak s in the HR department, and she

responded to the leaks in the HR

department. Then the issue that came up

was

- -- I don’t really remember how it

came up, but the subject was does she

think the employees were satisfied with

resolution of EEOC complaints. At that

point i n time is when she went into her

explanation of, “No, but I’ll tell you

8what. We have these plaintiffs’

attorneys coming into contact with our

employees, who are getting information

from our employees, and they’re just a class-action lawsuit waiting to happen.”

9 Significantly, no harm whatsoever to DP O resulted from

D ouglas’s statements. O’Neill and JoAnn Rochon, two DOE team

members who testified at the trial, could not even recall that

Douglas had said anything about a class action, hum an resources

leaks, specific employees or specific employee complaints or cases.

Lansen Barrow, another DOE attorney on the au dit team, testified

that he could not recall Douglas commenting on specific employees

or cases. According to O’Neill, the DOE team told Douglas that

some of the female employees they had interview ed believed that

they were not paid on an equal basis with men, although they had

not filed any claims, and asked if she had any knowledge of that.

Although he could not recall exactly what she said, he stated that

Douglas’s “response indicated to me that it either was a personal

issue or a real -- something she was quite interested in.”

On June 22, 1994, after two weeks’ silence and without

previous notice, Poindext er called Douglas into his office and

handed her he r first written performance evaluation as a DPO

employee. According to Douglas, Poindexter said, “Kordice, I know

you’re going to think I’m being hard on you and I probably was, but

during the audit you made me look stupid and got the company in10

trouble.” The evaluation was critical of Douglas’s judgment during

the DOE’s EEO appraisal. Poindexter gave Douglas a rating of

“Improvement Needed” under the “Jud gment” category of the

performance evaluation, and at Douglas’s request, Poindexter agreed

to add the handwritten notation “EEO Audit” next to the poor

rating. Poindexter also commented in the written evaluation that

Douglas needed to “focus on issues when dealing in audits and

interviews.” Poindexter also gave Douglas an “Improvement Needed”

rating under the category “Perceptual and Analytical,” and at

Douglas’s request, added the handwritten notation “Bell South” next

to the poor rating. Douglas testified that during her evaluation

Poindexter told her that he and Jocelyn Guarisco, DOE chief

counsel, had discussed Douglas’s statements during the meeting with

the DOE team. According to Douglas, Poindexter also said that he

and Guarisco had decided that she had committed a breach of

professional ethics but would not explain the exact nature of the

violation. The evaluation resulted in an overall rating of “Fully

Sa tisfactory,” which Douglas perceived to be a severely harmful

downgrading because it was only one grade above the lowest rating

and two grades below the top grade of “Excellent,” which she

thought sh e deserved and needed to maintain as a professional

employee.

Because Douglas perceived the performance evaluation rating to

be the result of sexual, racial and retaliatory discrimination, she

filed a written “Response To Retaliatory Performance Evaluation” on11

June 2 4, 1994, complaining of alleged unlawful employment

practices. She sent the written response to Poindexter, other DPO

e xecutives, and O’Neill who was DOE’s EEO whistle-blower officer

designated to receive EEO complaints from DPO employees and forward

those complaints to the EEOC. In the response she made two

statements that DPO contends were disclosures of the confidences of

her employer-client, DPO, to a third person, viz.

, Dick O’Neill, as

follows:

I was given a negative rating on Perceptual

and Analytical. The only instance that was

pointed out to me was the Bell South Mobility

issue [-- concerning the problem of the

personal use of DPO cellular phones by DPO and

DOE employees]. Randy [another DPO in-house

attorney] and John worked this project. After

it became a pro blem the file was turned over

to me. I contacted Bell South Mobility and

all of the employees involved. I drafted a

payment agreement and showed it to John

Poin dexter. He told me that Carol Parrella

did not wan t the DM [DPO] employees to sign

this agreement because the DOE employees could

not be forced to sign the agreement.

. . . Finally, he called Chuck Herring [DPO vicepresident and deputy project manager] and they

discussed the matter. No follow up was given

to me.

. . . I drafted a new agreement,

followed up with Bell South Mobility. I have

records of the phone calls. I even noticed a

mathematical error on the bill and pointed it

out to John Poindexter and Bell South

Mobility. The employees I spoke to and Bell

South Mobility can ver i fy that I spoke to

them. Therefore, I cannot understand this low

score. . . .

* * *

I wish to deal with one instance specifically.

The complaint of Becky R. regarding Brian S.

I interv i ewed Becky and looked at the

document a tion and wrote a response. I9 The panel opinion incorrectly and improperly finds de novo

that “Douglas

. . . specifically instructed O’Neill not to treat

the Letter as a whistle-blower complaint.” D ouglas, 144 F.3d at

373. The panel’s conclusion that Douglas’s response letter did not

constitute protected pa rticipation is thus based on a faulty

factual premi se. More important, the panel overlooks that “the

focus is not on whether the employee intends to follow through with

filing the charge, but rather on whether the employer’s decision to

discharge was motivated by an improper desire to retaliate against

an employee for pursuing rights granted by the Ac t.” Polk v.

Yellow Freight Syst., Inc., 801 F.2d 190, 200 (6th Cir. 1981) (an

employee’s visit to a Civil Rights Commission to inquire about

rights under the Act is a protected activity); see also Gifford v.

Atchison, Topeka & Santa Fe Ry., 685 F.2d 1149, 1156 n.3 (9th Cir.

1982) (“no legal distinction

. . . between

. . . filing of a charge

. . . and threatening to file a charge.”).

12 specifically a s ked 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 Br i an S.

privately. This is an example of di[s]parate

treatment. Brian S. can get a private

consul tation 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 perfor m ance

evaluation. . . .

Douglas testified that, after O’Neill received his copy of her

response, he told h er on June 24, 1994 that she had a whistleblower complaint and asked whether she was making such a complaint.

She testified that she said, “I have to talk to my attorney first

and I will get back to you. I don’t know what I want to do at this

point. I have to talk to my attorney first, but I want you to have

a copy because you were one of the auditors and I will get back

with you later after I talk to my attorney.” 913

DPO terminated Douglas’s employment on July 7, 1994, before

Douglas could confer with her attorney, who was on vacation. DPO

g ave Douglas no explanation for her termination, but offered her

“transition funds” if she would sign a release waiving her right to

sue DPO. On or about July 11, 1994 Douglas filed a claim with the

EEOC alleging that DPO had retaliated against her for her

opposition to practices made unlawful under Title VII. The EEOC

issued a right-to-sue letter and she timely filed an action against

DPO in the federa l district court. After a jury trial, the

district court correctly instructed the jury on the law, including

the elements that a plaintiff must prove to establish a prima facie

case of retaliation, the defendant’s burden of rebutt ing the

plaintiff’s prima facie case by off ering a legitimate nondiscriminatory reason for termination, and the plaintiff’s burden

to prove that any non-discriminatory reason for termination offered

by the defendant was a pretext, cloak or cover for retaliation.

The court also instructed the jury on the Louisiana Rules of

Professional Conduct, one of which prohibits a lawyer from

revealing information relating to representation of a client except

to the extent the lawyer reasonably believes it necessary to

establish a claim or defense in behalf of the lawyer in a

controversy between the lawyer and the client or to respond to

allegations in any proceeding concerning the lawyer’s

representation of the client.14

The jury rendered a verdict in favor of Douglas, finding that

a determinative factor in her discharge was that she engaged in an

activity protected by Title VII, and awarding her compensatory and

punit ive damages and back pay. The district court reduced

Douglas’s award to $307,830 in accordance with the statutory cap

and denied DPO’s motion for a judgment as a matter of law or

remittitur and denial of punitive damages with written reasons.

II. DISCUSSION

A. Departure From McDonnell Douglas Framework

The panel opinion overrules, in part, the Supreme Court’s

McDonnell Douglas-Burdine-Hicks framework for production and proof

in Title VII cases (and our en banc decision in Rhodes v. Guiberson

adopting and explaining the framework) by creating an anomalous new

mandatory rule of law, viz.

, that the employer’s production of

evidence that an attorney-employee, in her opposition activity,

revealed any confidential employment-related information, does not

merely dispel the presumption created by the employee’s prima facie

case that the employer discriminated against the attorney-employee

bec ause of her opposition; instead it automatically and

conclusively destroys Title VII’s protection against employer

retal iation for the employee’s opposition activity; unlike all

o ther employees, an attorney is deprived of the opportunity

guaranteed by the McDonnell Douglas framework to demonstrate that15

the employer’s proffered reason for adverse employment action was

a pretext or coverup for retaliation.

1. The McDonnell Douglas-Burdine-Hicks-Rhodes Framework

With the goal of “progressively sharpen[ing] the inquiry into

the elusive factual question of intentional discrimination,” St.

Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993) (quoting Texas

Dept. of Community Affairs v. Burdine , 450 U.S. 248, 255 (1981)),

the Supreme Court in McDonnell Douglas “established an allocation

of the burden of producti on and an order for the presentation of

proof in Title VII discriminatory-treatment cases.” I d. ; Rhodes v.

Guiberson Oil Tools

, 75 F.3d 989, 992 (5th Cir. 1996) (en banc)

.

The plaintiff first must establish, by a preponderance of the

evidence, a “prima facie” case of discrimination. S ee Hicks, 509

U.S. at 255 (citing Burdine, 450 U.S. at 252-53); Rhodes, 75 F.3d

at 992. Establishment of such a prima facie case creates a

presumption that the employer unlawfully discriminated against the

employee. H i cks, 509 U.S. at 255; B urdine

, 450 U.S. at 254;

Rhodes, 75 F.3d at 992. This presumption places on the defendant

the burden of producing evidence that t he challenged employment

action was ta ken for a legitimate, nondiscriminatory reason.

Hicks, 509 U.S. at 507; Burdine, 450 U.S. at 254; Rhodes, 75 F.3d

at 992-93. The defendant must clearly set forth, through the

introduction of admissible evidence, reasons for its actions which,

” if believed by the trier of fact,” would support a f inding that

unlawful discrimination was not the cause of the employment action.16

Hic ks, 5 09 U.S. at 507; Burdine, 450 U.S. at 254-55; Rhodes

, 75

F.3d at 993.

“[T]he determination that a defendant has met its burden of

produ ction (and has thus rebutted any legal presumption of

intentional discrimination) can involve no credibility assessment.”

H icks, 509 U.S. at 509. “For the burden-of-production

determination necessarily precedes the credibility-assessment

stage. At the close of the defendant’s case, the court is asked to

decide whether an issue o f fact remains for the trier of fact to

determine.” Id. (italics in original).

I f the defendant succeeds in carrying its burden of

production, the presumption, having fulfilled its role of forcing

the defendant to come forward with some response, simply drops out

of the pictur e, and the trier of fact proceeds to decide the

ultimate question of whether the plaintiff has proved that the

defendant intentionally discriminated against her. I d

. at 511;

Burdine, 450 U.S. at 253; Rhodes

, 75 F.3d at 993. The plaintiff

now must have “‘the full and fair opportunity to demonstrate,’

through presentation of his own case and through cross-examination

of the defendant’s witnesses, ‘that t he proffered reason was not

the true reason for the employment decision,” and that unlawful

discrimination was. H icks

, 509 U.S. at 507-0 8 (quoting B urdine,

450 U.S. at 256); see Rhodes, 75 F.3d at 993. Thus, the

requirement that th e employer produce evidence clearly setting

forth its reasons for the challenged employment action gives the17

plaintiff a “full and fair” rebuttal opportunity. H icks, 509 U.S.

at 516 (quoting McDonnell Douglas Corp. v. Green

, 411 U.S. 792, 805

(1973) (“[O]n the retrial respondent must be given a full and fair

opportunity to demons trate by competent evidence that the

presumptively valid reasons for his rejection were in fact a

coverup for a racially discriminatory decisio n. We . . . insist

that respondent

. . . must be given a full and fair opportunity to

demonstrate by competent evidence that whatever the stated reasons

for his rejection, the decision was in reality racially

premised.”)); Burdine, 450 U.S. at 255; see Rhodes

, 75 F.3d at 993.

In summary, (1) the plaintiff has the burden of proving by the

preponderance of the ev idence a prima facie case that the

employer’s employment action constituted unlawful discrimination;

(2) the prima facie case creates a presumption of discrimination in

favor of the plaintiff; (3) if the plaintiff succeeds in proving

the prima facie case, the burden shifts to the defendant to produce

evidence which, if believed by the trier of fact, would support a

finding that th e employer had a legitimate, nondiscriminatory

reason for the employment action; (4) if the defendant succeeds in

producing such evidence, the presumption of discrimination

disappears; (5) the plaintiff now must be afforded the opportunity

to prevail without the benefit of the presumption, however, by

proving by a preponderance of the evidence that the employer’s

proffered reason for the employment action was not its real reason,

but a pretext or coverup, and that in reality the employer’s18

challenged employment action was intentional unlawful

discrimination against the plaintiff.

2. The Panel Opinion’s New Rules of Law Override and

Attempt to Amend, in Legislative Fashion, the McDonnell

Douglas-Burdine-Hicks-Rhodes Line of Decisions

The panel opinion announces several broad mandatory rules of

law. First, it “hold[s] as a matter of law that conduct that

breaches the ethical duti es of [her state’s] legal profession is

unprotected under Title VII.” Douglas , 144 F.3d at 376. Second,

“[A]ny betrayal of a client’s confidences that breaches the [state]

ethical duties of the attorney[, including a “minimal disclosure of

any substantive information,”] places tha t conduct outside Title

VII’s protection.” I d. Third, “So long as the [attorneyemployee’s] conduct actuall y constituted a violation of the

profession’s ethicall y imposed duties, t he 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 .”

Id. at 377 n.16. (underscoring added). Fourth, the defendant is

entitled to the entry of a judgment as a matter of law dismissing

the plaintiff’s cas e, if the plaintiff’s opposition conduct

involved a breach of her state’s ethical rule. I d. at 376. It is

self-evident, however, that none of the panel’s new rules of law19

can be reconciled with the Supreme Court’s McDonnell Douglas line

of cases or our en banc decision in Rhodes.

The holdings and underlying rationale of the panel opinion are

at odds with the McDonnell Douglas “basic allocation of burdens and

order of pres entation of proof in a Title VII case. . . [,]”

Burdine

, 450 U.S. at 252, “[that] serves to bring the litigants and

the court expeditiously and fairly to th[e] ultimate question [of

whether the defendant intentionally discriminated against the

plaintiff].” I d. at 253. The panel opinion erects a barrier

across the McDonnell Douglas fram ework for employees who are

attorneys , which unfairly truncates the order of proof and

presentation and permits their cases to be disposed of on issues of

legal ethics rather than on the ultimate Title VII question of

whether the employer’s action was a product of unlawful

discrimination. Nothing in law permits a court to create such a

legal barrier or to make such a substitution of the ultimate issue

under the statute. Just as “Title VII is not a cause of action for

p erjury,” Hicks, 509 U.S. at 514-15, 521, it is not a lawyer

disciplinary proceeding either; “we have other civil and criminal

remedies for that.” I d. at 521; see also Doe v. A Corp., 709 F.2d

1043, 1050 (5th Cir. 1983).

The panel opinion seems to ass ume that its judicial

inventiveness is justified because particular kinds of employee

conduct are so reprehensible that Courts of Appeals may simply

abandon the McDonnell Douglas framework and declare that as a20

matter of law Title VII protection is unavailable to those who

engage in such conduct while opposing unlawful em ployment

practices. From the beginning, however, the Supreme Court in

McDonnell Douglas made it clear that employee conduct during a

protest of unlawful employment practices, even unlawful and

potentially harmful conduct, cannot be used by the employer as a

pretext or coverup for discriminator y adverse employment action

against the employee. In M cDonnell Douglas, the plaintiff had

pleaded guilty to the del iberately unlawful and potentially very

harmful activity of taking part in a carefully planned “stall-in”

designed to block access and egress at the defendant’s plant during

a peak traffic hour to protest allegedly discriminatory employment

conditions. The Supreme Court held that while “[n]othing in Title

VII compels an employer to absolve and rehire one who has engaged

in such deliberate, unlawful activity against it[ ,]. . . neither

does it permit [the employer] to use [the employee or applicant’s]

conduct as a pretext” for un lawful discrimination prohibited by

Title VII. McDonnell Douglas , 411 U.S. at 803-04. Moreover, the

Court insisted, “[the employee or applicant] must be given a full

and fair opportunity to demonstrate by competent evid ence that

whatever the stated reasons for his rejection, the decision was in

reality [based on unlawful discrimination.]” I d. at 804, 807

(“[R]espondent must be afforded a fair opportunity to demonstrate

that petitioner’s assigned reason for refusing to re-employ was a

pretext or discriminatory in its application.”). These principles21

have been reiterated fully and firmly by the Supreme Court and this

court en banc as essential parts of the McDonnell Douglas-BurdineHicks-Rhodes framework.

Consequently, the rules of law announced by the panel opinion

to the effect that an attorney-employee’s unethical conduct, per se

and as a matter of law, places the employee’s opposition to

unlawful employment practices outside the protection of Title VII

are manifestly contrary to the Supreme Court decisions and our own

en banc decision. The third and fourth rules of the panel opinion,

in particular, are diametrically opposed to the plain statements

and holdings of the Supreme Court and this court en banc. Instead

of heeding the Supreme Court’s i nsistence that the plaintiff be

accorded a full and fair opportun ity to demonstrate that the

defendant’s proffered reason for the challenged employment action

was not its real reason, but that the defendant’s discriminatory

retaliation for oppos ition to unlawful employment practices was,

the panel opinion flatly depr ives the plaintiff of such an

opportunity by holding that the employer’s true reason, even if it

was unlawful discrimination, is irrelevant so long as the

employee’s conduct actually violated a rule of professional ethics.

Compare Douglas

, 144 F.3d at 377 n.16 (“So long as the [employee’s]

conduct actually constituted a vi olation 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 in22

opposition to discriminatory practices .”)(emphasis added) with

McDonnell Douglas

, 411 U.S. a t 805 n.18 (“We do. . . insist that

[the plaintiff]. . . must be given a full and fair opportunity to

demonstrate by competent evidence that whatever the stated reasons

for his rejection, the [employ er’s] decision was in reality

[discrimination].”). S ee also id. at 807 (“[The plaintiff] must be

afforded a fair opportunity to de monstrate that petitioner’s

assigned reasons for refusing to re-employ was a pretext or

discriminatory in its application. If the District Judge so finds,

he must order a prompt and appropriate remedy.”); Burdine

, 450 U.S.

at 253 (“[S]hould the defendant c arry this burden, the plaintiff

must then have an opportunity to prove by a preponderance of the

evidence that the legitimate reasons offered by the defendant were

not its true reasons, but were a pretext fo r discrimination.”);

Hicks

, 509 U.S. at 507-08 (“The plaintiff then ha s ‘the full and

fair opportunity to demonstrate,’ through presentation of his own

case and through cross-examination of the defendant’s wit nesses,

‘that the proffered reason was not the true reason for the

e mployment decision,’ and that [discrimination] was. He retains

that ‘ultimate burden of persuading the [trier of fact] that [he]

has been the victim of intentional discrimination.’”) (citations

omitted); Rhodes

, 75 F.3d at 993 (“[T]he plaintiff is accorded the

opportunity to demonstrate that the defendant’s articulated

rationale was merely a pretext for discrimination.”).23

When an appropriate factfinder determines, according to proper

procedures, that the employer has unlawfully discriminated, this

court has no authority to declare that employer immune from

liability as a matter of law for the sole reason that the employee

committed a b reach of ethics in opposing unlawful employment

practices. The Supreme Court has recognized that even it cannot

engraft such substantive rules upon the statute:

We may, according to traditional practice,

establish certain modes and orders of proof,

including an initial rebuttable presumption of

the sort we described earlier in this opinion,

which we believe McDonnell Douglas represents.

But nothing in law would permit u s to

substitute for the required finding that the

employer’s action was the product of unlawful

discrimination, the much different (and much

lesser) finding that the employer’s

explanation of its action was not believable.

Hicks

, 509 U.S. at 514. By the same token, nothing in the law

permits this court to substitute, for the Congressional requirement

of a prompt and appropriate remed y for a proven victim of an

employer’s unlawful discrimination under Title VII, this court’s

own rule of absolute immunity for employers in every case in which

an attorney-employee violates an ethical rule while opposing

unlawful employment practices.

I n Title VII intentional discrimination cases brought by

employees who happen also to be a ttorneys, the panel opinion

threatens the destruction of the McDonnell Douglas framework, which1 0 The panel opinion is di rectly contrary to this court’s

proper application of the McDonnell Douglas framework in Payne v.

McLemore’s Wholesale & Retail Stores, 654 F.2d 1130 (5th Cir. Unit

A Sept. 1981), cert. denied, 455 U.S. 1000 (1982). The P ayne court

stated “[i]f the defendant took adverse employment action against

the plaintiff because of opposition conduct by the plaintiff that

was outside the protection of the statute, then the defendant may

have had a legitimate, nondiscriminatory reason to justify its

actions.” Id. at 1142 (emphasis added). The emphasized language

is important; it clearly indicates that the analysis does not end

when the employer produces evidence of a legitimate

nondiscriminatory reaso n for its employment action. The P ayne

court continu ed and acknowledged the necessary final step of the

McDonnell Douglas framework that the panel in Douglas disregarded:

Since the court further found that plaintiff

failed to establish that defendant’s proffered

justification was in fact pretextual, the

court concluded that ‘(b)ecause plaintiff

exceeded the limits of reasonable opposition

activity on a continuing basis and his

dismissal is at tributable to these

transgressions, the Court is forced to

conclude that his termination was not

pretextual, but rather was for valid nondiscriminatory reasons.’

Id. at 1143 (quoting Gonzalez v. Bolger, 486 F. Supp. 595, 601-02

(D.D.C. 1980), aff’d, 656 F.2d 899 (D.C. Cir. 1981) (table case)).

Under this proper analysis, if the employer produces evidence that

its adverse employm ent action was because of the employee’s

unreasonable conduct, and if the employee fails to establish that

the employer’s proffered reason for its adverse employment action

was a pretext for unlawful discrimination, then and only then is

the employer entitled to judgment that the employee has failed to

prove an unlawful employment practice under § 704(a).

24 has been carefully crafted in precedents as old as 25 years. 10 The

handling of litigation based on federal statutes in an orderly and

sensible manner heavily depends upon the structures, modes of proof

and orders of presentation established by the Supreme Court in such

cases as McDonnell Douglas

. We ought not casually abandon these

structures and precedents, even in special cl asses of cases, for25

worthy but adjunctive purposes. “Considerations of stare decisis

have special force in the area of statut ory interpretation, for

here, unlike in the context of constitutional interpretation, the

legislative power is implicated, and Congress remains free to alter

what we have done.” P att erson v. McLean Credit Union , 491 U.S.

164, 172-73 (1989). Congress has taken no action to indicate that

amendments creating exceptions to the McDonnell Douglas-BurdineHicks-Rhodes framework, of the kind that will be effected by the

panel opinion’s rules of law, are necessary or desirable.

B. Departure From The Boeing Jury Verdict Review Standard

1. Rhodes v. Guiberson Oil Tools Requires That

Title VII Jury Verdicts Be Tested Under

the Boeing Co. v. Shipman Standard

In Rhodes v. Guiberson Oil Tools , 75 F.3d 989, 993 (5th Cir.

1996)(en banc), this court held that a jury verdict in a McDonnell

Douglas-Burdine case must be tested for sufficiency of the evidence

under the standard of Boeing Company v. Shipman

, 411 F.2d 365 (5th

Cir. 1969)(en banc), overruled in part on other grounds, Gautreaux

v. Scurlock Marine, Incorporated, 107 F.3d 331 (5th Cir. 1997) (en

banc). In B oeing

, the court adopted, as “a proper standard in

federal court to test the sufficiency of the evidence for

submission of a case to the jury, in connection with motions for a

directed verdict and for judgment notwithstanding the verdict,” id.

at 367, the following standard:26 On motions for directed verdict and for

judgment notwithstanding the verdict the Court

should consider all of th e evidence -- not

just that evidence which supports the nonmover’s case -- but in the light and with all

reasonable inferences most favorable to the

party opposed to the motion. If the facts and

inferences point so strongly and

overwhelmingly in favor of one party that the

Court believes that reasonable men could not

arrive at a contrary verdict, granting of the

motions is proper. On the other hand, if

there is substantial evidence opposed to the

motions, that is, evidence of such quality and

weight that reasonable and fair-minded men in

the exercise of impartial judgment might reach

different conclusions, the motions should be

denied, and the case submitted to the jury.

The motions for directed verdict and judgment

n.o.v. should not be decided by which side has

t he better of the case, nor should they be

granted only when there is a complete absence

of probative facts to support a jury verdict.

There must be a conflict in substantial

evidence to create a jury question. However,

it is the function of the jury as the

traditional finder of the facts, and not the

Court, to weigh conflicting evidence and

inferences, and determine the credibility of

witnesses.

Id. at 374-75 (footnote omitted).

The Boeing standard applies to circumstantial as well as

direct evidence. R hodes, 75 F.3d at 993. Because direct evidence

of discrimination is rare, a plaintiff in a discrimination case

must ordinarily use circumstantial evidence to satisfy her burden

of persuasion. I d. (citing Davis v. Chevron U.S.A., Inc., 14 F.3d

1082, 1085 (5th Cir. 1994)). Consequently, a plaintiff need not

provide direct evidence to sustain a jury finding of27

discrimination. Id. (citing, e.g., Burns v. Texas City Refining,

Inc., 890 F.2d 747, 751 (5th Cir. 1989)).

To sustain a finding of discrimination, circumstantial

evidence must be such as to allow a rational factfinder to make a

reasonable inference that discrimination was a determinative reason

for the employment decision. I d. at 994. The factfinder may rely

on all of the evidence in the rec ord to draw an inference of

discrimination. Id. In Rhodes , this court stated:

In tandem with a prima facie case, the

evidence allowing rejection of the employer’s

proffered reasons will often, perhaps usually,

permit a finding of discrimination without

additional evidence. Thus, a jury issue will

be presented and a plaintiff can avoid summary judgment and judgment as a matter of law if

the evidence taken as a whole (1) creates a

fact issu e as to whether each of the

employer’s stated reasons was what actually

motivated the employer and (2) creates a

reasonable inference that [discrimination] was

a determinative factor in the actions of which

plaintiff complains. The employer, of course,

will be entitled to summa ry judgment if the

evidence taken as a whole would not allow a

jury to infer that the ac tual reason for the

discharge was discriminatory.

Id.

2. Departure From Boeing-Rhodes Sufficiency of the Evidence

Standards

The panel opinion did not test the sufficiency of the evidence

for submission of this McDonnell Douglas-Burdine-Hicks case to the

jury under the proper standards as required by our en banc28

decisions in Rhodes and Boeing

, but instead applied the panel’s new

mandatory rules of law to facts found de novo by th e panel and

concluded that as a matter of law that the employer was entitled to

a judgment as a matter of law dismissing the employee’s case.

The panel opinion turned its back on stare decisis and decided

the case according to its own freestanding rules of law. The panel

was duty bound in this McDonnell Douglas-Burdine-Hicks case by our

en banc opinion in Rhodes to test the jury verdict for sufficiency

of the evidence under our en banc Boeing standard, as elaborated on

in Rhodes

. The panel breached that duty by disregarding the

McDonnell Douglas fra mework, refusing to determine whether the

correctly instructed jury reasonably could have found for the

plaintiff based on the evidence it saw and heard. The panel found

the facts of the case d e novo

, and applied its own new mandatory

rules of law to those facts.

The rationale of the panel decision is as follows: In a Title

VII intentional discrimination case, in reviewing a defendant

employer’s appeal from a judgment for an attorney-employee

plaintiff, based on a jury verdict in the plaintiff’s favor, when

the defendant argues on appeal that it terminated the plaintiff

because of her unethical disclosures and not because of her

opposition to the defendant’s unlawful employ ment practices: (1)

The court “must first deter mine [from a d e novo review of the

record] whether [the attorney-employee] breached her professional

ethical duties.” D ouglas, 144 F.3d at 370; (2) Upon determining29

that the attorney-employee violated her ethical obligatio ns, the

court must next decide “wheth er [the employee] demonstrated that

[the employer] unlawfully retaliated against her when it terminated

her employment.” Id. at 372; (3) If the court determines (or

assumes) that the plaintiff employee demonstrated that the employer

terminated her because of her opposition to unlawful employment

practices, th e court engages in a balancing test to determine

whether the opposition is entitled to protection under Title VII,

in this particular case, by weighing both the employer’s interest

as a client in having the attorney-employee abide by state

professional ethical rules and the state legal profession’s

inter est in promoting ethical conduct and discouraging unethical

conduct against the attorney-employee’s individual federal

statutorily protected interest under Title VII to oppose allegedly

discriminatory practices by her employer. I d. at 375-76; (4) Upon

the panel’s first application of this new test in the present case,

it concluded that if the individual attorney-employee’s opposition

to the employer’s alleged unlawful practices under Ti tle VII

involves a viol ation of an applicable state legal professional

ethical rule, the employee’s federal right or statutorily protected

interest c an never in any such case counter the weight of the

interests of the employer-client and the stat e legal profession;

(5) Consequently, the panel transformed the balancing test into

four overlapping hard-and-fast rules of law: (i) An attorneyemployee’s opposition to an unlawful employm e nt practice that30

involves a breach of a state ethical rule imposing a duty for the

benefit of a client is unprotected under Title VII; (ii) The

magnitude of the attorney’s transgression and the risk of harm

created are not relevant: “any betrayal of a client’s confidences

that breaches the ethical duties of the attorney places that

conduct outside Title VII’s protection [against retaliatory

discrimination by the employer].” I d. at 376; (iii) If the

attorney-employee’s opposition conduct involves a vio lation of a

professional ethical rule, “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.” I d. at 377

n.16; (iv) Consequently, the employer in such a case is entitled as

a matter of law to a judgment as a matter o f law dismissing the

employee’s case. Id. at 376.

Under the panel opinion’s new rules, the allo cation of the

burden of pro duction and order for the presentation of proof

es tablished for Title VII discriminatory-treatment cases by the

Supreme Court, i.e., the McDonnell Douglas-Burdine-Hicks framework,

as well as the Boeing-Rhodes standards for testing jury verdicts,

will be virtually obsolete in a case involving an alleged ethical

violation by an attorney-employee while opposing an unlawful

employment practice. The panel opinion indicates, although it does

not explicitly hold, that the question of whether an attorneyemployee violated her state profe ssional code as part of her31

opposition to an unlawful employment practice is a question of law

for the court that cannot be submitted to the jury. Thus, once the

court at the trial or appellate level decides that such a violation

occurred as part of the attorney- employee’s opposition to an

unlawful empl oyment practice, the entirety of the employee’s

opposition conduct becomes completely unprotected under Title VII.

The panel opinion expressly holds, in diametric opposition to

McDonnell Douglas, Burdine, Hicks and Rhodes

, that the plaintiff in

such a case cannot prevail by proving that the ethics breach was a

pretext and not the true reason for the challenged adverse

employment action, but that the real reason was the employer’s

intentional discrimination against the employee. Consequently, few

Title VII intentional discrimination suits brought by attorneyemployees may survive motions for summary judgment or judgment on

the merits or app eals, even though the employees may be able to

demonstrate that the employers’ actions were motivated by unlawful

discrimination rather than a legitimate, nondiscriminatory reason.

C. Adherence To McDonnell Douglas, Burdine, Hicks, Rhodes and

Boeing Requires That the Plaintiff’s Jury Verdict Be Upheld

In the present case, there definitely was sufficient evidence

from wh ich the jury reasonably could have found that DPO’s

proffered reasons for the discharge were false and pretextual and

that Douglas’s opposition to unlawful employment prac tices was a

determinative reason for the termination of her employment. There32

was a close and suspicious temporal proximity between Douglas’s

opposition and her discharge. Upon receipt of Douglas’s response

letter complaining of EEO violations, which showed that a copy had

been sent to the DOE whistle-blower officer resp onsible for

receiving EEO complaints from DPO employees, DPO immediately

convened a “termination board” and decided to terminate Douglas’s

employment. Based on the evidence introduced at trial, the jury

reasonably could have found that DP O’s “ethical” reason for

terminating Douglas’s employment was in fact a pretext because: (1)

The statements in Douglas’s June 24, 1994 response that DPO

proffered as its reason for discharging Douglas were not in fact

disclosures to DOE because DOE already had the information and it

was insignificant anyway; the jury reason ably could have

disbelieved DPO because of this alone; or (2) if Douglas revealed

any confidential information, her revelation was authorized by Rule

1.6(b), as an exception to Rule 1.6(a), because she reasonably

believed the revelation to be necessary to establish a claim or

de fense on her behalf in a controversy with her client, DPO, or

necessary to respond to allegations concerning her representation

of DPO; or (3) from the record as a whole, it is evident that DPO’s

discharge of Douglas was motivated by Douglas’s opposition to

unlawful employment practices and not by any breach of a

professional ethical rule she allegedly may have committed.

Under the government contract between DPO and DOE, DPO, the

contractor, waived its rights of confidentiality and privilege with33

respect to Douglas’s June 24, 1994 response letter when it agreed

that “[a]ll records acquired or generated by the contractor under

this contract in the possession of the contractor, in cluding

[ performance appraisals, reviews, and associated documents , equal

employment opportunity and affirmative action claims and records,

files and records concerning ethics and secur ity investigations,

and attorney-clie nt privilege or a ttorney work product ] shall be

subject to inspection, copying, and audit by the government at all

reasonable times[.]” (emphasis added).

Douglas’s response to her performance appraisal was an

“associated document.” Poindexter testified that Douglas was

terminated because the information contained in her statements in

the response letter with regard to Bell South Mobility and Becky R.

and Brian S. was Douglas’s “attorney work p roduct.” Therefore,

Douglas’s June 24, 1 994 response letter and her attorney work

product concerning the Bell South Mobility and the Becky R. and

Brian S. matters were subject to inspection, copying, and audit by

the government at all reasonable times pursuant to the government

contract between DOE and DPO.

Also, from the beginning of the appraisal, DPO was required to

disclose to the DOE team a list of EEO-related complaints and

disposition actions taken since contract inception. Becky R. had

submitted a complaint against Brian S. to DPO’s human resources

department. Douglas had been required to confer with DOE employees34

about their using DPO cellular phones for personal calls in an

effort to resolve that problem with Bell South Mobility.

For all of these reasons, the jury reasonably cou ld have

concluded that Douglas’s June 24, 1994 response letter did not in

reality disclose any new information to DOE, or that DPO had

expressly waived its rights of confidentiality and privilege with

respect to this letter, and that the Becky R. and Bell South

Mobility statements in Douglas’s response were not the true reasons

for Douglas’s discharge.

As indicated by the distr ict court’s reasons for rejecting

DPO’s motion for judgment as a matter of law, the jury also

reasonably could have found that Douglas had not made a prohibited

revelation under Rule 1.6 because she reasonably believed her

statements were necessary to establish a claim or defense by her in

a controversy with DPO or to respond t o DPO’s allegations

concerning her representation:

The crux of the defendants’ complaint is that

the plaintiff disclosed confide ntial matters

in her memorandum which should not ha ve been

disclosed to persons outside the company.

These matters related to (1) bills from Bell

South Mobil ity and (2) the manner in which

other employees’ performances were evaluated

compared to hers. With respect to Bell South,

the plaintiff’s performance evaluat ion[, a

recorded company document prepared by

Poindexter, Douglas’s supervisor,]

specifically referenced her handling of that

matter as a reason for a negative rating. The

plaintiff’s response referencing it was

therefore not unreasonable. Most of her

explanation dealt with generic steps she took

in handling the matter, with minimal35 disclosur e of any substantive information.

Likewise, her discussion of “Becky R.” and

“Brian S.” did not disclose any substantive

in-house information. It also related

directly to the plaintiff’s complaint that she

was the victim of disparate treatment i n h er

performance evaluation. For those reasons,

the Court finds there was a “legally

sufficient evidentiary basis for a reasonable

jury to find for that party on that issue.”

(Emphasis and internal quotations in original)

Finally, even if the jury did not immediately disbelieve DPO’s

proffered reason for disch arge because she did not actually

disclose any new information to the DOE, or information to which

DOE was not otherwise contractually entitled, in her June 24, 1994

response statement, the jury reasonably could have found from the

evidence as a whole that DPO discharged Douglas because in her June

24, 1994 response she opposed unlawful employment practices under

§ 704(a) of Title VII, and not because of the information disclosed

in her statements about the Becky R . complaint or the Bell South

Mobility business matter. The evidence taken as a whole, including

Douglas’s opposition, DPO’s termination of her empl oyment, the

suspicious temporal proximity between them, the fact that the

statements were not truly disclosures and that no potential or

actual harm resulted, DPO’s contractual obligation to disclose such

information during a DOE audit, the necessity for Douglas’s minimal

references to these matters t o allege facts indicating

discrimination a gainst her by the defendants, the lack of any

showing that DPO previously had genuinely considered such matters36

to be strictly confidential or had discharged employees f or such

disclosures, and Poindexter’s pre-existing animosity towards

Douglas, fully support the jury’s rejection of the reasons for

discharge offered by the defendants a nd the finding that

retaliatory discriminatio n was the determinative reason for the

adverse employment decision. Moreover, because Poindexter, during

his performance evaluation interview with her, told Douglas that he

and Jocelyn Guarisco, DOE chief counsel, decided that Douglas had

committed unspecified bre aches of professional ethics during the

appraisal meeting, the jury reaso nably could have found that

Poindexter’s failure to discharge her, but rating her “Fully

Satisfactory” at that time, indicated that he and DPO did not

consider her breaches so serious as to warrant her discharge, and

that her later opposition to unlawful employment practices in her

response letter was probably what motivated DPO to discharge her.

The jury was correctly instructed that, in order to return a

verdict for Douglas, it must find by a preponderance of the

evidence, “that defendants’ offered reasons [for discharging

Douglas] are pretextual, that is, they are not the true reasons for

h er discharge. In other words, Ms. Douglas must prove by a

preponderance of the evidence that the reasons stated by the

defendants were only a cover or a cloak for retaliation.” Because

we must presume that the jury followed the trial court’s

instructions, United States v. Brito, 136 F.3d 397, 413 (5th Cir.),

cert. denied, 118 S. Ct. 1817, cert. denied, 118 S. Ct. 2389, cert.37

denied, 119 S. Ct. 159 (1998), we must necessarily conclude that

the jury, in specifically finding that Douglas was discharged

because of her protected opposition, found that DPO’s offered

reason for the termination of Douglas’s employment was pretextual,

false and only a cover for its unlawful retaliation. Moreover, the

jury in making the requisite factual determination for imposing

punitive damages explicitly found that “defendants acted wilfully

and maliciously, or in reckless disregard of plaintiff’s federally

protected rights in the discharge of plaintiff in retaliation for

her participation in a protected activity.”

III. THE PANEL OPINION OVERRULES JONES V. FLAGSHIP,

DOE V. A CORPORATION AND MISINTERPRETS RULE 1.6

Doe v. A Corporation.

, 709 F.2d 1043 (5th Cir. 1983); and

Jones v. Flagship International

, 793 F.2d 714 (5th Cir. 1986),

cert. denied, 479 U.S. 1065 (1987), held that lawyers’ ethics rules

cannot be asserted to bar a lawyer’s access to court to adjudicate

her own personal rights against her client (as opposed to

representing other persons against her client). The panel opinion

overrules Doe and Jones by allowing an employer-client to assert an

ethics rule to bar attorney-employees’ enforcement of their own

personal Title VII unlaw ful discrimination claims. The opinion

creates a mandatory rule of law granting a client-employer absolute

immunity from liability for retalia tion prohibited by Title VII

against an attorney-employee for opposing unlawful employment38

practices, if the attorney-employee breached an ethics rule in her

opposition. In addition to this new barrier to an attorneyemployee’s attempt to vindi cate her personal claims, the panel

opinion further disadvantages every Louisiana attor ney having a

dispute with any client by incorrectly interpreting Louisiana State

Bar Association Rule of Professional Conduct 1.6 to require that

the attorney mu st file a formal administrative or judicial

complaint before there can be a “controversy” with the client that

would allow the lawyer to reveal confidential information necessary

to the enforcement or defense of the lawyer’s own personal rights.

A. Doe v. A Corporation

In Doe , this court held that a former in-house counsel could

prosecute an action in his own behalf against his former employer

with respect to claims arising under ERISA, despite his having

advised the employer corporation on matters related to his lawsuit,

but that he was ethically barred from prosecuting such litigation

either as an attorney for or as the class representative for other

employees. The court pointed out that adherence to Canon 4

requires that a lawyer be disqualified from representing a party to

litigation if the adversary party can show that matters in the suit

are sub stantially related to matters in which the attorney

previously represented the adversary. D oe, 709 F.2d at 1046. But,

the court held that lawyers’ ethical rules cannot be asserted to

prevent a lawyer from having access to the courts to vindicate her39

own personal rights or tenable legal claims. I d. at 1047.

Moreover, the court stated, a lawyer may reveal confidential

i nformation and secrets when it is necessary for her to do so to

prevent the client from committing a crime, to collect a fee, or to

defend herself against an accusation of wrongful conduct. Id. at

1048.

The rationale for the last of these exceptions

is: “It would be a manifest injustice to allow

the client to take advantage of the rule of

exclusion as to professional confidence to the

prejudice of his attorney, or that it should

be carried to the ex t ent of depriving the

attorney of the means of obtaining or defending his own rights.” ABA Opinion 250

(1943).

Id. at 1048-49 (footnote citing authorities omitted).

In its own words, the Doe court concluded:

A lawyer, however, does not forfeit his rights

simply because to prove them he must ut ilize

confidential information. Nor does the client

gain the right to cheat the lawyer by

imparting con fidences to him. . . . There is

no social interest in allowing the corporation

to conceal wrongdoing, if in fac t any has

occurred. Nor is there any social interest in

allowing it to deny Doe pension rights or

insurance benefits if they are legally due

him. But that would be the effect of our

refusing to allow Doe to prosecute his

individual lawsuit.

Id. at 1050.

B. Jones v. Flagship

Jones v. Flagship also recognized an attorney’s right to

pursue her own personal claim against her client-employer and,40

although decided prior to Hicks and Rhodes

, faithfully applied the

McDonnell Douglas-Burdine framework to ascertain that the attorneyemployee had been aff orded a full opportunity to rebut the

employer’s evidence that it had a legitimate, nondi scriminatory

reason for suspending and firing her. In J ones, the district court

entered a judgment for the employer after a bench trial. Although

this court affirmed, it first ascert ained that the employee had

been given the opportunity to demonstrate that the employer’s

proffered reasons for her suspension and termination were not the

true reasons for the employment decision. Jones, 793 F.2d at 725

n.11 (citing McDonnell Douglas and Burdine ). This court recognized

that Jones, although an attorney and Flagship’s manager of EEO

programs, had a right to be free of discriminatory practices under

the protectio n of § 704(a); and that, in filing a charge against

Flagship on the ground that the company had discriminated against

her in terms of pay and sexual harassment, Jones was exercising a

protected right under Title VII, as the district court found. I d.

at 726. However, Flagship produced evidence that, in addition to

filing her own Title VII claims, Jones also solicited other

employees to join in a class action suit against Flagship. I d. at

728. This court concluded that because these additional activities

involving other persons’ claims were unnecessary to Jones’s pursuit

of her own claim and were critically harmful to Flagship in all

discrimination suits against it, Fl agship had met its burden of

production of evidence of a legitimate, nondiscriminatory basis for41

suspending and firing Jones. I d. at 729. In affirming the

district court’s judgment, th is court held that, “although Jones

did establish a prima facie case of unlawful retaliation under

§704(a) of Title VII, under the McDonnell-Burdine a llocation of

burdens and order of presentation of proof, Flagship sufficiently

rebutted Jones’ case by adducing evidence that it suspended and

fired Jones for n onretaliatory reasons[; and] that Jones did not

demonstrate that the reasons proffered by Flagship we re pretexts

for discrimination.” Id. at 729-30.

C. Rule 1.6

The p anel opinion, by holding that Louisiana State Bar

Association Rule of Professional Conduct 1.6 provides that a

lawyer-employee cannot have a controversy with, or claim or defense

against, her client, which would allow the attorney to reveal

confidential information to the extent necessary to enforce or

defend the attorney’s own personal rights, until the lawyer files

a formal judicial or administ rative petition against the client,

incorrectly interprets the rule a nd further undermines every

attorney’s access to courts for the vindication of personal rights

and claims. The panel opinion cites no authority and provides no

reason for its eccentric reading of the rule. When the words of

the rule are taken in their ordinary and usual sense it is evident

that the drafters of the rule were aware that in reality

controversies, claims and defenses usually arise before pleadings42

are filed because of them, and not the other way around. For

example, the Comment to Rule 1.6 of t h e ABA Model Rules of

Professional Conduct states that an attorney’s right to respond to

charges of misconduct involving representation of the client arises

when an assertion has been made, and that paragraph (b) (2) of Rule

1.6 does not require the attorney to await the commencement of an

action or proceeding. S ee M ODEL RULES OF PROFESSIONAL CONDUCT R ule 1.6

cmt. 18 (1983). The jurisdictional tenets of both Louisiana and

federal courts and administrative agencies require that a case or

controversy must pree xist the commencement of proceedings. The

panel opinion’s interpretation of the rule unnecessarily adds an

additional technical snare to discourage the enforcement of an

attorney’s valid personal claim. In Title VII discrimination

cases, the panel’s misreading of the rule will have an uncalled for

chilling effect upon the enforcement of an attorn ey-employee’s

federal constitutional and statutory rights. Judicial efficiency,

as well as the purposes of Title VII, would be better served by a

straightforward reading of Ru le 1.6 to recognize that whenever a

serious controversy arises between a la wyer and her client, the

attorney, as well as the client, prior to filing a formal

complaint , may disclose information necessary to the evaluation,

protection and enforcement of legal rights, including the seeking

of legal and other expert advice, the gathering of evidence, and

the identification and evaluation of potential witnesses.1 1 Contrary to Judge Jolly’s opinion that a majority of this

court approves of his opinion, I do not believe that all of the

judges who voted not to hear this case en banc did so for that

reason. This court’s case load approaches 8,000 appeals per year.

We can only bring the entire court together to rehear a minuscule

portion of the cases. Many of the judges who voted “no” probably

did so because they thought we have already overfilled our en banc

dockets or that there were more important cases that should be

heard en banc. I, of course, respectfully disagree but recognize

that that is the prerogative of each judge.

43 For all these reasons, I res pectfully disagree with our

court’s decision not to rehear this case. 11

ENDRECORDE. GRADY JOLLY, Circuit Judge, Response To Dissent From The Denial

of Rehearing En Banc:

With all due respect, the dissent is unnecessarily overwrought

by the captioned opinio n. Contrary to the dissent’s ominous

outlook, Douglas v. DynMcDermott Petroleum

, 144 F.3d 364 (5th Cir.

1998) does not sound the death knell for the legal profession’s

Title VII rights. Nothing in D ouglas precludes an attorney from

properly filing suit under Title VII; nor does D ouglas abrogate an

attorney ’s right to seek redress for retaliatory discharge.

Douglas merely holds that when an attorney pursues claims under

Title VII, she must do so in a manner that do es not violate her

profession’s ethical code. D ouglas

, 144 F.3d at 376. Because

Douglas neither reaches the result the dissent alleges, nor engages

in the de novo review the dissent asserts, such lamentation over

its result is unwarranted.

It should be noted that Douglas indeed recognizes as a valid

means of revealing confidential information, the exceptions under

Rule 1.6 of the Louisiana State Bar Articles of Incorporation,

Rules of Professional Cond uct, La.Rev.Stat.Ann. § 37:219 Ch.4--

App ., Art. 16, which permits the disclosure, once disclosure

becomes necessary in a legal dispute with the employer-client.

Douglas

, 144 F.3d at 376. D ouglas further notes that Rule 1.6 does

not bar opposition and protest in an attorney’s conversations,

dialogue, and remonstrations with the employer-client. Id.

Notwithstanding the overstated contentions running

repetitively throughout the dissent, a clear majority of our court

properly has concluded that Douglas neither transgresses the45

McDonnell Douglas framework, nor deviates from the standards

articulated in Rhodes v. Guiberson Oil Tools

, 75 F.3d 989 (5th Cir.

1996) (en banc ) or B oeing Company v. Shipman

, 411 F.2d 365 (5th

Cir. 1969) (en banc), overruled in part on other grounds, Gautreaux

v. Scurlock Marine, Inc. , 107 F.3d 331 (5th Cir. 1997) (en banc).

For these re asons, the court has properly rejected the call

for en banc in this case.