           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                    ___________________

                                       No. 13-60323
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                    ___________________                         FILED
                                                                          March 11, 2015
HALLIBURTON COMPANY,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                    Petitioner,

 v.

ADMINISTRATIVE REVIEW BOARD, UNITED STATES DEPARTMENT
OF LABOR,

                                                    Respondent.

                                 _______________________

                             Petition for Review of an Order
                       of the United States Department of Labor
                                _______________________

Before STEWART, Chief Judge, DENNIS, Circuit Judge, and GILSTRAP,
District Judge.*

ORDER:
      A member of the court in active service having requested a poll on the
reconsideration of this cause en banc, and a majority of the judges in active
service and not disqualified not having voted in favor (Fed. R. App. P. 35 and
5th Cir. R. 35), rehearing en banc is DENIED.
      In the en banc poll, seven judges voted in favor of rehearing (Judges
Jolly, Davis, Jones, Smith, Clement, Owen, and Elrod), and eight judges voted


      *   District Judge of the Eastern District of Texas, sitting by designation.
against (Chief Judge Stewart and Judges Dennis, Prado, Southwick, Haynes,
Graves, Higginson, and Costa).



ENTERED FOR THE COURT:

__/s/ James L. Dennis_____
United States Circuit Judge
                                         No. 13-60323

E. GRADY JOLLY, Circuit Judge, joined by JONES and SMITH, Circuit
Judges, dissenting from the denial of rehearing en banc:
       The panel’s decision in this appeal provides yet another gloss upon the
Supreme Court’s standard in Burlington Northern & Santa Fe Railway Co. v.
White, defining a “materially adverse” employment action in the context of a
retaliation claim. 548 U.S. 53, 68 (2006). Under the supposedly objective
standard in Burlington Northern, an employee suffers a materially adverse
action if the employer acts in a way that “well might have dissuaded a
reasonable worker from making or supporting a charge of discrimination.” 1 Id.
(internal quotation marks omitted). Although the Supreme Court crafted this
standard in “general terms,” this Court has grafted so many permutations, on
so many occasions, in so many cases that it has no contours of any kind. See
id. at 69. Because the panel’s decision provides yet another choice for any
panel of the Court to purport to apply Burlington Northern, I respectfully
dissent from the Court’s decision not to rehear the case en banc; we should give
some clear objective meaning to the Supreme Court’s “general terms.”
       The panel seems to admit to an ad hoc nature of its decision; it does not
hold that a disclosure of an employee’s identity as a complainant is necessarily
a materially adverse employment action under Burlington Northern.                      See
Halliburton, Inc. v. Admin. Review Bd., 771 F.3d 254, 261 (5th Cir. 2014)
(acknowledging that the relevant issue was whether the disclosure of the
complaining employee’s identity “in the surrounding circumstances amounted
to a ‘materially adverse’ action under Burlington” (emphasis added)).                    Of
course, disclosure of the identity of a complaining employee to his co-workers

       1Title VII’s anti-retaliation provision was before the Burlington Northern Court, and
thus the Court’s decision refers to charges of discrimination. The Burlington Northern
standard, however, applies to a wide range of anti-retaliation provisions, including the
Sarbanes-Oxley anti-retaliation provision at issue here. Allen v. Admin. Review Bd., 514
F.3d 468, 476 n.2 (5th Cir. 2008).

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                                          No. 13-60323

cannot, without more, be a materially adverse action, because such a disclosure
causes no inherent harm to an employee. It is unlike a discharge or significant
demotion, where the negative effect on the employee is clear. Indeed, a panel
of this Court has recognized, in an unpublished decision, the common-sense
principle that a disclosure of an employee as a complainant, standing alone, is
not a materially adverse retaliatory action. See Holloway v. Dep’t of Veterans
Affairs, 309 F. App’x 816, 819 (5th Cir. 2009).
       The panel holds that if the disclosure of the employee’s identity results
in ostracism, the disclosure may constitute an adverse employment action
under Burlington Northern. 2 Halliburton, Inc., 771 F.3d at 262. This position
cannot be reconciled with this Court’s precedent that ostracism or isolation by
co-workers is not a materially adverse action under Burlington Northern as a
matter of law. Stewart v. Miss. Transp. Comm’n, 586 F.3d 321, 332 (5th Cir.
2009); Aryain v. Wal-Mart Stores Tex. LP, 534 F.3d 473, 484–85 (5th Cir. 2008).
In Stewart, we considered five specific allegations of retaliation, including
ostracism, and we concluded as a matter of law that ostracism is a minor
annoyance in the workplace and not a materially adverse action. 586 F.3d at
332 (concluding that, “[a]s a matter of law, the latter three of these allegations
[including ostracism] do not rise to the level of material adversity but instead
fall into the category of ‘petty slights, minor annoyances, and simple lack of
good manners’ that the Supreme Court has recognized are not actionable
retaliatory conduct”). Similarly, we concluded in Aryain that allegations of
“rude treatment” by an employee’s supervisors are insufficient to constitute a
materially adverse employment action. 534 F.3d at 485. Under our precedents


       2 The panel also notes that collaboration was an important part of the employee’s job
to bolster its analysis of ostracism. Of course, collaboration is important in any job, as is
maintaining a positive rapport with co-workers, such that the panel’s emphasis that the
employer valued collaboration adds nothing to the panel’s analysis.

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                                     No. 13-60323

in Stewart and Aryain, it is established in this Circuit that ostracism or
isolation in the workplace does not rise to the level of material adversity. The
panel plainly erred by concluding otherwise.
      The panel does pose speculative consequences that may result from the
disclosure of an employee’s identity as a complainant. For example, the panel
suggests that a boss’s disclosure of an employee’s complaint “could” signal a
warning to other employees not to complain about the employer’s conduct.
Similarly, the panel speculates that Menendez could one day suffer from a
“potential deprivation” of future advancement opportunities as a result of any
ostracism by his coworkers.       Halliburton, Inc., 771 F.3d at 262.        This
speculation, I respectfully submit, is foreclosed by Burlington Northern, which
emphasizes that retaliation is only actionable if it “produces an injury or
harm.” 548 U.S. at 67 (emphasis added). The Burlington Northern Court did
not say that any action that has the potential to produce an injury is materially
adverse. Under such a standard, virtually any employment action could be
articulated as a material adverse action, contrary to the Court’s admonition
that an employee’s decision to file an employment-related complaint “cannot
immunize that employee from those petty slights or minor annoyances that
often take place at work and that all employees experience.” Id. at 68. Thus,
the panel’s speculation as to future harms is foreclosed by precedent.
      Readers of the panel’s opinion will certainly be confused by the absence
of controlling authority for the panel’s holding. Because Stewart and Aryain
predate the panel’s decision and remain cognizable law in this Circuit, we
remain bound by those decisions—not the panel’s errant decision in this case.
See Rios v. City of Del Rio, Tex., 444 F.3d 417, 425 n.8 (5th Cir. 2006) (“The
rule in this circuit is that where two previous holdings or lines of precedent
conflict the earlier opinion controls and is the binding precedent in this circuit


                                           5
                                      No. 13-60323

(absent an intervening holding to the contrary by the Supreme Court or this
court en banc).”).      Nevertheless,     our authority addressing adverse
consequences of employment decisions remains foggy. In my conscientious
view, the Court should have taken this case en banc to provide some contours
to the concept of an adverse employment action so that we mete out employee
rights on the same standard to all.
      For these reasons, I respectfully dissent.




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