                      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.

               ----------------------------------

      Appeals from the United States District Court for the
                  Eastern District of Louisiana

               ----------------------------------
                        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 rehearing

en banc is rescinded and this order is substituted in its place.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.
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 important and substantive issues identified in the

dissent filed by Judge Dennis.




ENDRECORD




                                   2
DENNIS, Circuit 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-Hicks1   framework    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. Shipman2 standard as required by our en banc

decision in Rhodes. The panel opinion also overrules or undermines

prior panel decisions in Doe v. A Corporation3, which held that

ethical rules cannot be asserted to preclude a lawyer’s access to


    1
      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
banc), overruled 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
courts for the adjudication of his personal rights and tenable

legal claims against his former employer, and Jones v. Flagship4,

which expressly recognized a lawyer’s right 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 attorney-

employee of DynMcDermott Petroleum Operations Company (DPO).   DPO

was a government contractor performing services for the Department

of Energy (DOE).


    4
      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
      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   DOE   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 privilege or attorney work product] shall be

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




       6
         In preparation for the appraisal, DOE requested DPO to
complete a questionnaire and turn over certain 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 “Organizational
charts by pay code, race, sex[.]”




                                    5
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 sent 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 should answer them.

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

DOE team honestly and correctly to 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 the DOE team’s

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

O’Neill asked her several questions touching on more substantive

EEO   matters,      however,    she   also       answered     them   truthfully   and

      7
       The statement to the contrary in DPO’s brief is incorrect:
“The controlling contract neither required DynMcDermott to waive
any rights of confidentiality or privilege, nor did it give DOE an
unlimited right to seek or obtain confidential or privileged
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
Petroleum Operations Co., 144 F.3d 364, 366 (5th Cir. 1998),
petition for cert. filed, 67 U.S.L.W. 3302 (Oct. 20, 1998) (No. 98-
673).




                                            6
accurately within her understanding.          Douglas testified that she

later learned that Poindexter, who sat by silently and impassively

during her interrogation, was disappointed 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 respects inconsistent with his

understanding of circumstances involving DPO’s EEO program that he

wished to present to the DOE team.8

      8
        These questions and answers, 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 that 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
           claim 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
          the 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
          that 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 interview, and that she was
          standing out in the hall, telling people about
          their problems.

     Poindexter recalled Douglas’s responses to the questions of
the DOE appraisal team somewhat differently.         According to
Poindexter:
          Well, they started asking her specific details
          about 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 brought 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 sites, 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 and I was aware of it.
          But when they asked her is when she gave 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 leaks 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 in time is when she went into her
          explanation of, “No, but I’ll tell you




                                8
     Significantly,     no     harm   whatsoever   to    DPO   resulted   from

Douglas’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, human resources

leaks, specific employees or specific employee complaints or cases.

Lansen Barrow, another DOE attorney on the audit 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 interviewed 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, Poindexter called Douglas into his office and

handed her her 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 in



            what.     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
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   “Judgment”   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

Satisfactory,” 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 she 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” on




                                        10
June   24,    1994,   complaining   of    alleged   unlawful   employment

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

executives, 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 problem 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
             Poindexter.   He told me that Carol Parrella
             did not want 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 vice-
             president 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 verify 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 interviewed Becky and looked at the
             documentation and wrote a response.          I




                                    11
                                    11
          specifically asked John Poindexter if I could
          speak to Eugene T. and Brian S. I was told No.
          I turned the letter over to him. I never heard
          a response.     In the performance evaluation
          meeting, he told me he spoke to Brian S.
          privately. This is an example of di[s]parate
          treatment.     Brian S. can get a private
          consultation    about   something    that   was
          documented, but, yet, I am asked to listen more
          and improve my interpersonal relationships with
          other employees in writing in a performance
          evaluation. . . .

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

response, he told her on June 24, 1994 that she had a whistle-

blower 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.”9




     9
       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.” Douglas, 144 F.3d at
373. The panel’s conclusion that Douglas’s response letter did not
constitute protected participation is thus based on a faulty
factual premise. 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 Act.”       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
       DPO terminated Douglas’s employment on July 7, 1994, before

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

gave 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 federal 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 rebutting the

plaintiff’s     prima     facie    case    by   offering      a    legitimate        non-

discriminatory 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.




                                          13
     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

punitive   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

because    of   her   opposition;       instead    it    automatically     and

conclusively    destroys     Title   VII’s   protection      against   employer

retaliation for the employee’s opposition activity; unlike all

other   employees,    an    attorney   is    deprived   of   the   opportunity

guaranteed by the McDonnell Douglas framework to demonstrate that




                                       14
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 production and an order for the presentation of

proof in Title VII discriminatory-treatment cases.” Id.; 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.   See 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.       Hicks, 509 U.S. at 255; Burdine, 450 U.S. at 254;

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

the burden of producing evidence that the challenged employment

action    was   taken   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 finding that

unlawful discrimination was not the cause of the employment action.




                                        15
Hicks, 509 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

production       (and   has      thus   rebutted      any    legal   presumption     of

intentional discrimination) can involve no credibility assessment.”

Hicks,     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 of fact remains for the trier of fact to

determine.”        Id. (italics in original).

      If     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 picture, and the trier of fact proceeds to decide the

ultimate question of whether the plaintiff has proved that the

defendant intentionally discriminated against her.                         Id. 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 the proffered reason was not

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

discrimination was.           Hicks, 509 U.S. at 507-08 (quoting Burdine,

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

requirement that the employer produce evidence clearly setting

forth its reasons for the challenged employment action gives the




                                           16
plaintiff a “full and fair” rebuttal opportunity.                      Hicks, 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    demonstrate    by            competent     evidence     that   the

presumptively valid reasons for his rejection were in fact a

coverup for a racially discriminatory decision.                        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   evidence          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 the 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’s




                                          17
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 duties 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 that conduct outside Title

VII’s   protection.”     Id.       Third,     “So   long     as   the   [attorney-

employee’s]    conduct   actually        constituted     a    violation    of   the

profession’s ethically imposed duties, the employer is insulated

from liability irrespective of whether it took adverse employment

action because the conduct constituted a breach or because the

conduct was in opposition to discriminatory employment practices.”

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   case,   if    the     plaintiff’s       opposition   conduct

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

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




                                         18
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 presentation 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].”      Id. at 253.     The panel opinion erects a barrier

across the McDonnell Douglas framework 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

perjury,” 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.”      Id. at 521; see also Doe v. A Corp., 709 F.2d

1043, 1050 (5th Cir. 1983).

     The     panel    opinion   seems    to    assume      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 a




                                        19
matter of law Title VII protection is unavailable to those who

engage    in   such   conduct   while   opposing     unlawful   employment

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 discriminatory adverse employment action

against the employee.      In McDonnell Douglas, the plaintiff had

pleaded guilty to the deliberately 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 unlawful 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 evidence that

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

reality [based on unlawful discrimination.]”            Id. 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 principles




                                   20
have been reiterated fully and firmly by the Supreme Court and this

court en banc as essential parts of the McDonnell Douglas-Burdine-

Hicks-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 insistence that the plaintiff be

accorded a full and fair opportunity 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 opposition to unlawful employment practices was,

the   panel   opinion   flatly   deprives    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    violation   of   the   profession’s

ethically imposed duties, the employer is insulated from liability

irrespective of whether it took adverse employment action because

the conduct constituted a breach or because the conduct was in




                                    21
opposition to discriminatory practices.”)(emphasis added) with

McDonnell Douglas, 411 U.S. at 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   [employer’s]        decision     was     in   reality

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

afforded    a    fair    opportunity     to    demonstrate     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 carry 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 for discrimination.”);

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

fair opportunity to demonstrate,’ through presentation of his own

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

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

employment 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.”).




                                          22
      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 breach 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 us 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 remedy 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.

      In Title VII intentional discrimination cases brought by

employees who happen also to be attorneys, the panel opinion

threatens the destruction of the McDonnell Douglas framework, which




                                     23
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 classes of cases, for


      10
         The panel opinion is directly 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 Payne 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 reason for its employment action.          The Payne
court continued 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    attributable    to     these
           transgressions, the Court is forced to
           conclude   that   his  termination    was    not
           pretextual, but rather was for valid non-
           discriminatory 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 employment 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
worthy but adjunctive purposes.       “Considerations of stare decisis

have special force in the area of statutory 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.”      Patterson 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-Burdine-

Hicks-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 Boeing, 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:




                                     25
          On motions for directed verdict and for
          judgment notwithstanding the verdict the Court
          should consider all of the evidence -- not
          just that evidence which supports the non-
          mover’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
          the 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.     Rhodes, 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.     Id. (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   of




                                     26
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.           Id. at 994.     The factfinder may rely

on all of the evidence in the record 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 issue 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 summary judgment if the
             evidence taken as a whole would not allow a
             jury to infer that the actual reason for the
             discharge was discriminatory.

Id.



      2. Departure From Boeing-RhodesSufficiency 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   banc




                                         27
decisions in Rhodes and Boeing, but instead applied the panel’s new

mandatory rules of law to facts found de novo by the 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 framework, 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 de 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 employment practices: (1)

The court “must first determine [from a de novo review of the

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

ethical duties.”      Douglas, 144 F.3d at 370; (2) Upon determining




                                      28
that the attorney-employee violated her ethical obligations, the

court must next decide “whether [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, the 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

interest 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.              Id. 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 Title VII

involves a violation of an applicable state legal professional

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

interest can never in any such case counter the weight of the

interests of the employer-client and the state legal profession;

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

four overlapping hard-and-fast rules of law: (i) An attorney-

employee’s opposition to an unlawful employment practice that




                                         29
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].”                Id. at 376; (iii) If the

attorney-employee’s opposition conduct involves a violation 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.”                Id. 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 of law dismissing the

employee’s case.      Id. at 376.

     Under the panel opinion’s new rules, the allocation of the

burden of production and order for the presentation of proof

established 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 attorney-

employee violated her state professional code as part of her




                                         30
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   employment         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 attorney-

employees may survive motions for summary judgment or judgment on

the merits or appeals, 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   which     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 practices was a

determinative reason for the termination of her employment.                     There




                                          31
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   responsible    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       DPO’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       reasonably     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

defense 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 with




                                          32
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, 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 privilege or attorney 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 product.”         Therefore,

Douglas’s June 24, 1994 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 employees




                                  33
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 could 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 district 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   to   DPO’s   allegations

concerning her representation:

           The crux of the defendants’ complaint is that
           the plaintiff disclosed confidential matters
           in her memorandum which should not have been
           disclosed to persons outside the company.
           These matters related to (1) bills from Bell
           South Mobility and (2) the manner in which
           other employees’ performances were evaluated
           compared to hers. With respect to Bell South,
           the plaintiff’s performance evaluation[, 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    minimal




                                     34
            disclosure 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 in her
            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    discharge    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 employment, 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     to   allege     facts   indicating

discrimination against her by the defendants, the lack of any

showing that DPO previously had genuinely considered such matters




                                      35
to be strictly confidential or had discharged employees for 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   and     the   finding   that

retaliatory discrimination 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 breaches of professional ethics during the

appraisal meeting, the jury reasonably 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

her 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.




                                      36
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 unlawful discrimination claims.               The opinion

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

immunity from liability for retaliation prohibited by Title VII

against an     attorney-employee    for    opposing   unlawful    employment




                                    37
practices, if the attorney-employee breached an ethics rule in her

opposition.      In addition to this new barrier to an attorney-

employee’s attempt to vindicate her personal claims, the panel

opinion further disadvantages every Louisiana attorney having a

dispute with any client by incorrectly interpreting Louisiana State

Bar Association Rule of Professional Conduct 1.6 to require that

the   attorney    must   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   substantially      related    to   matters   in   which   the   attorney

previously represented the adversary.         Doe, 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 her




                                         38
own   personal   rights   or   tenable   legal   claims.   Id.   at   1047.

Moreover, the court stated, a lawyer may reveal confidential

information 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 extent 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 utilize
           confidential information. Nor does the client
           gain the right to cheat the lawyer by
           imparting confidences to him. . . . There is
           no social interest in allowing the corporation
           to conceal wrongdoing, if in fact 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,




                                    39
although decided prior to Hicks and Rhodes, faithfully applied the

McDonnell Douglas-Burdine framework to ascertain that the attorney-

employee   had   been   afforded    a    full    opportunity     to   rebut   the

employer’s evidence that it had a legitimate, nondiscriminatory

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

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

this court affirmed, it first ascertained 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 protection 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.                 Id.

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.                 Id. 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, Flagship had met its burden of

production of evidence of a legitimate, nondiscriminatory basis for




                                        40
suspending and firing Jones.             Id. at 729.          In affirming the

district court’s judgment, this court held that, “although Jones

did establish a prima facie case of unlawful retaliation under

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

burdens and order of presentation of proof, Flagship sufficiently

rebutted Jones’ case by adducing evidence that it suspended and

fired Jones for nonretaliatory reasons[; and] that Jones did not

demonstrate that the reasons proffered by Flagship were pretexts

for discrimination.”      Id. at 729-30.



                                  C. Rule 1.6

       The   panel   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 administrative petition against the client,

incorrectly    interprets     the     rule   and    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 pleadings




                                        41
are filed because of them, and not the other way around.                       For

example, the Comment to Rule 1.6 of the 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.        See MODEL   RULES OF PROFESSIONAL CONDUCT   Rule 1.6

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

federal courts and administrative agencies require that a case or

controversy must preexist 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 attorney-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 Rule 1.6 to recognize that whenever a

serious controversy arises between a lawyer 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.




                                      42
     For all these reasons, I respectfully disagree with our

court’s decision not to rehear this case.11



ENDRECORD




     11
        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
E. 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 opinion.            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 Douglas precludes an attorney from

properly filing suit under Title VII;        nor does Douglas 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 does not violate her

profession’s ethical code.           Douglas, 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 Conduct, 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.      Douglas 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   the
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 Boeing 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 reasons, the court has properly rejected the call

for en banc in this case.




                                   45
