     Case: 16-51152      Document: 00514027328         Page: 1    Date Filed: 06/09/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals

                                      No. 16-51152
                                                                                  Fifth Circuit

                                                                                FILED
                                                                             June 9, 2017

DANA TALIAFERRO,                                                           Lyle W. Cayce
                                                                                Clerk
              Plaintiff – Appellant,

v.

LONE STAR IMPLEMENTATION & ELECTRIC CORPORATION,

              Defendant – Appellee.




                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 7:16-CV-46


Before JONES, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM:*
       Dana Taliaferro appeals the dismissal of her Title VII retaliation claim.
Taliaferro argues that the district court erred by failing to consider the “zero
tolerance” policy in Lone Star’s Employee Handbook when determining
whether Taliaferro sufficiently pleaded a reasonable belief that she was subject
to unlawful employment practices. Even taking the Employee Handbook into
account, Taliaferro has failed to state a claim. We AFFIRM.


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 16-51152         Document: 00514027328          Page: 2   Date Filed: 06/09/2017



                                        No. 16-51152
                                               I.
      Taliaferro worked as the Controller of Lone Star Instrumentation &
Electronic Corporation for approximately one year. During the evening hours
of May 13, 2015, Lone Star’s owner and President, Ronnie Hobbs, sent
Taliaferro a text-message asking where her children were. Taliaferro
responded that they were both at home and asked why he wanted to know.
Hobbs replied: “Just came by in the Vette 1 looking for a hot date! Oh ya! You
are going to be in trouble when he finds out!”
      Taliaferro was flummoxed by the messages as she did not have a
personal relationship with Hobbs. She showed the messages to her husband,
who reacted with “vitriolic fury.” He concluded from the messages that Hobbs
was making sexual overtures to his wife and that the two were having an
affair. These messages caused severe strain on Taliaferro’s marriage.
      Taliaferro was upset when she came to work the next day. She explained
to Hobbs that she needed and wanted to keep her job. Hobbs expressed regret
about his actions and told her that she would have a job at Lone Star for as
long as she desired. The following day, Taliaferro complained again to Hobbs
about the severe personal aftermath caused by his text-messages. Taliaferro
requested time off to deal with these issues, and Hobbs agreed. Later that same
evening, two days after his initial message, Hobbs terminated Taliaferro with
the following text-message:
      Dana, I have been thinking for the past couple of days and
      unfortunately I think it best if you no longer work for Lone Star. It
      has made everyone including myself very awkward and I can’t
      afford to have someone running my company who’s [sic] husband
      and best friend want to see Lone Star fail and who threaten me.



      1   “Vette” appears to refer to a Chevrolet Corvette.
                                               2
    Case: 16-51152    Document: 00514027328     Page: 3   Date Filed: 06/09/2017



                                 No. 16-51152
      Taliaferro further alleges that it took her approximately ten weeks to
find new employment and that she suffers significant and ongoing emotional
distress as a result of Hobbs’s messages.
      Taliaferro filed a complaint with the Equal Employment Opportunity
Commission, received a right-to-sue letter from the Commission, and sued
Lone Star. She alleged that her termination by Lone Star constituted
retaliation, in violation of Title VII and in breach of a contractual obligation
created by the company’s Employee Handbook. The district court dismissed
her Title VII claim under Federal Rule of Civil Procedure 12(b)(6) on the
ground that she did not adequately plead facts showing she reasonably
believed a single text-message conversation constituted an unlawful
employment practice. Having dismissed Taliaferro’s federal claim, the district
court declined to exercise supplemental jurisdiction over her state breach-of-
contract claim. Accordingly, it entered a final judgment dismissing the Title
VII claim with prejudice and dismissing the contract claim without prejudice.
      Taliaferro appeals the dismissal of her Title VII claim on the ground that
the district court failed to consider how the “zero tolerance” policy articulated
in the company’s Employee Handbook affected the reasonableness of her belief
that the text-messages constituted an unlawful employment practice. She does
not challenge the dismissal of her contract claim.
                                       II.
      We review a Rule 12(b)(6) dismissal de novo. Chhim v. Univ. of Tex. at
Austin, 836 F.3d 467, 469 (5th Cir. 2016). “We accept all well-pleaded facts as
true, viewing them in the light most favorable to the plaintiff.” New Orleans
v. Ambac Assurance Corp., 815 F.3d 196, 199–200 (5th Cir. 2016). To avoid
12(b)(6) dismissal, the complaint must contain “enough facts to state a claim


                                       3
     Case: 16-51152      Document: 00514027328         Page: 4    Date Filed: 06/09/2017



                                      No. 16-51152
to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007).
       To establish a prima facie case of retaliation, an aggrieved employee
must establish the following elements: “(1) she participated in an activity
protected by Title VII; (2) her employer took an adverse employment action
against her; and (3) a causal connection exists between the protected activity
and the materially adverse action.” Aryain v. Wal-Mart Stores Tex. LP, 534
F.3d 473, 484 (5th Cir. 2008). As to the first element, “[a]n 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.” Douglas v. DynMcDermott Petroleum Operations Co.,
144 F.3d 364, 372–73 (5th Cir. 1998) (quoting 42 U.S.C. § 2000e-3(a)). “The
first of these is known as the ‘opposition clause;’ the second as the ‘participation
clause.’ ” E.E.O.C. v. Rite Way Serv., Inc., 819 F.3d 235, 239 (5th Cir. 2016).
       This case involves the opposition clause. 2 “[T]he opposition clause does
not require opposition alone; it requires opposition of a practice made unlawful
by Title VII.” Id. at 240 (citing 42 U.S.C. § 2000e-3(a)). Taliaferro need not
prove that the conduct she opposed rose to the level of a Title VII violation, but
she “must at least show a reasonable belief that it did.” Id. at 237. In
determining what constitutes a reasonable belief that a Title VII violation has
occurred, we have emphasized the importance of the “severity” and “frequency”
of the alleged conduct. Satterwhite v. City of Hous., 602 F. App’x 585, 588 (5th


       2 The “participation clause” is inapplicable here because Taliaferro did not file her
EEOC charge until June 22, 2015, more than one month after Lone Star terminated her
employment. Thus, the purported retaliatory action took place before Taliaferro participated
in an investigation, proceeding, or hearing under Title VII.

                                             4
       Case: 16-51152     Document: 00514027328         Page: 5    Date Filed: 06/09/2017



                                      No. 16-51152
Cir. 2015). 3 We also consider the “context in which [the employee] opposed her
employer’s conduct.” Rite Way, 819 F.3d at 242.
        For example, in Clark County School District v. Breeden, 532 U.S. 268
(2001), the Supreme Court affirmed a district court’s grant of summary
judgment. A female employee complained that two male co-workers had
laughed when reading a job application file, which noted that the applicant
had once told a co-worker, “I hear making love to you is like making love to the
Grand Canyon.” Id. at 269. One of the men looked at the plaintiff and said, “I
don’t know what that means.” Id. The other employee then said, “Well, I’ll tell
you later,” and both men laughed. Id. The Supreme Court held that summary
judgment was appropriate because “[n]o reasonable person could have believed
that the single incident recounted above violated Title VII’s standard.” Id. at
271.
        In Satterwhite, we affirmed summary judgment for similar reasons.
There, the plaintiff claimed he suffered retaliation after he reported a co-
worker to their human resources department for allegedly saying “Heil Hitler”
at work. Satterwhite, 602 F. App’x at 586. Because the plaintiff complained of
a single and isolated comment that was not directed at a specific employee, we
held that “he could not have reasonably believed that this incident was
actionable under Title VII.” Id. at 589.
        By contrast, in Rite Way, we reversed a grant of summary judgment
because we determined that there was a fact issue concerning whether the
plaintiff reasonably believed that the reported conduct violated Title VII. Rite
Way, 819 F.3d at 244. The plaintiff witnessed two troubling interactions


        Although these are important factors, we recognize that they are not dispositive. See
        3

Rite Way, 819 F.3d at 243 (“Opposition clause claims grounded in isolated comments are not
always doomed to summary judgment.”).
                                             5
     Case: 16-51152      Document: 00514027328        Page: 6    Date Filed: 06/09/2017



                                     No. 16-51152
between her newly assigned supervisor and another co-worker. Id. at 238. In
the first, the supervisor pretended to slap the plaintiff’s co-worker on the
bottom and exclaimed “ooh wee.” Id. A few days later, the plaintiff witnessed
the supervisor reference a cellphone in the same co-worker’s back pocket and
say that her pants were too tight. Id. When the co-worker took offense, the
supervisor said, “I’m a man, I’m gonna look.” Id. During a subsequent
investigation of this incident, Rite Way’s Project Manager tried to talk the
plaintiff out of reporting what she had seen, telling her, “you know what they
do to people who do stuff like this.” Id. In determining that the plaintiff could
have reasonably believed an unlawful employment practice occurred, we
considered that she witnessed two incidents and that the Project Manager
discouraged her from corroborating her co-worker’s allegations. Id. at 243–44.
We also considered a pamphlet outlining the company’s sexual harassment
policy as a relevant circumstance. Id. at 244.
      In this case, the district court dismissed Taliaferro’s claim on the ground
that her complaint failed to adequately allege grounds for a reasonable belief
that Hobbs’s text-messages constituted an unlawful practice under Title VII.
The court noted that Hobbs’s conduct, “while insensitive, inappropriate, and
unbecoming, was neither sexually explicit nor was it pervasive.” Taliaferro v.
Lone Star Instrumentation & Elec. Corp., 212 F. Supp. 3d 714, 718 (W.D. Tex.
2016). On appeal, Taliaferro claims that the district court did not consider
what effect the strict “zero tolerance” policy in Lone Star’s Employee Handbook
has in evaluating what constitutes a reasonable belief that an unlawful
employment practice occurred. 4



      4The district court did not expressly address the Employee Handbook but did base its
determination on “the circumstances asserted by Plaintiff.” Id. at 718.
                                            6
    Case: 16-51152     Document: 00514027328     Page: 7   Date Filed: 06/09/2017



                                  No. 16-51152
      Taliaferro points to the Committee Notes section of the Fifth Circuit’s
Pattern Jury Instructions, which stipulate that the employee’s belief must be
objectively reasonable “in light of the circumstances.” Fifth Circuit Pattern
Jury Instructions (Civil Cases) § 11.5a at 153 n.4 (2014). Taliaferro asserts that
the Employee Handbook is among the circumstances that contributed to her
belief that the text-messages she received from Hobbs amounted to an
unlawful employment practice. She argues that when considering her belief in
light of the Employee Handbook, a jury could conclude that her belief was
reasonable.
      Taliaferro is correct that all relevant circumstances should be considered
when evaluating whether an employee has adequately pleaded a reasonable
belief that an unlawful employment practice has occurred. Id. Lone Star’s
Employee Handbook may be considered as one of the relevant circumstances.
See Rite Way, 819 F.3d at 244 (treating an employment policy as one of several
relevant circumstances but not as dispositive). In particular, Taliaferro points
to section 90 of the Employee Handbook, which states that Lone Star has a
“zero tolerance” policy for “sexual propositions, innuendo, suggestive
comments, [and] sexually-oriented jokes or teasing[.]” However, a reasonable
employee would not believe, based on the Employee Handbook, that telling a
single sexually-oriented joke was unlawful. Rather, a reasonable employee
would understand that the company was being proactive in curtailing conduct
before it arose to unlawful discrimination. Moreover, employee handbooks, like
the one at issue here, commonly proscribe a range of lawful conduct so as to
address misconduct before it becomes a legal problem. Thus, Taliaferro’s
complaint, which relies on a single text-message exchange and the Employee
Handbook language, is insufficient to state a claim for retaliation under Title
VII. Simply put, the Employee Handbook may be considered along with all
                                        7
    Case: 16-51152     Document: 00514027328   Page: 8   Date Filed: 06/09/2017



                                No. 16-51152
other relevant circumstances, but the “zero tolerance” policy in the Employee
Handbook alone does not give rise to a claim where one otherwise does not
exist.
         For the foregoing reasons, the judgment of the district court is
AFFIRMED.




                                      8
