5TH CIRCUIT REMANDS RETALIATION CLAIM BASED ON THOMPSON V. NORTH AMERICAN STAINLESS

by Art Gutman Ph.D., Professor, Florida Institute of Technology

The case is Zamora v. Houston [2011 U.S. App. LEXIS 9827], decided on May 12, 2011. The facts are that a Houston Police Department (HPD) lieutenant (Manuel Zamora) filed original race discrimination and retaliation charges against the HPD. Subsequently, his son (Christopher Zamora), an entry-level HPD officer, filed a retaliation claim on grounds that he was forced by superiors to transfer out of a prestigious Crime Reduction Unit to a less desirable patrol officer position after his father sued the HPD. The district court granted summary judgment to the HPD on all charges and the 5th Circuit upheld summary judgment with respect to the father. However, the 5th Circuit remanded the son’s claim based on Thompson v. North American Stainless, in which the Supreme Court held that an employee could bring a claim of retaliation based on protected activity by co-workers who is are close family members.

Generally, there are three prongs in a retaliation claim: (1) engaging in a protected activity and (2) experiencing a subsequent adverse action that is (3) causally connected to having engaged in the protected activity. Prior to the Thompson case, the 5th Circuit precedent was to disallow claims on prong 1 that were not based on the individual’s own engagement in protected activity. Therefore, based on the Thompson ruling, the 5th Circuit ruled that Christopher Zamora satisfied prong 1, and that the district court must decide on remand whether his transfer was an adverse action, and whether it was causally connected to his father’s claims against the HPD.

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