The Fifth Circuit overturned summary judgment for the employer in Schroeder v. Greater New Orleans Federal Credit Union, No. 10-31169 (5th Cir. 12/19/11).  The employee was fired after she complained about violations of law and regulation at a credit union.  Mary Schroeder filed suit based on 12 U.S.C. §1790b and La.Rev.Stat.Ann. § 23:967(A).  Sec. 1790 is a whistleblower protection act for credit union employees.  The trial court granted the employer’s motion for summary judgment.  The plaintiff was fired Oct. 8, 2008 by the Louisiana credit union.  See Fifth Circuit opinion here

The appellate court overruled the summary judgment, finding that the lower court did not construe the available evidence in favor of the non-movant.  Sec. 1790b provides that a credit union employee may file suit if s/he is fired for reporting violation of law or regulation.   The three judge panel found that some evidence supported the employer, but some evidence supported the employee regarding the requirement to show causal connection between her reports of violations and her termination.  The court analogized by using the elements of proof for Title VII retaliation.  

One critical issue was whether Ms. Schroeder reported her concerns to the National Credit Union Association prior to her termination or after her termination.  There was some evidence that she made reports prior to her termination on Oct. 8, 2008.  Letters to the NCUA were dated Oct. 6, although the NCUA did not log them in until Oct. 21.  As the court noted, the trial judge should have construed that evidence in favor of the non-movant.  

Also, several co-workers knew Ms. Schroeder planned to go to the NCUA in June, 2008,  Phone records showed she made several calls to the NCUA in June, 2008.  She has a copy of her two Oct. 6 letters to the NCUA.  And, her attorney sent an email to the NCUA on Oct. 1, 2008.  As the court correctly noted, the lower court was required to view the evidence in light most favorable to the non-movant. So, the court concluded that Ms. Schroeder and her attorney submitted complaints in June and October, 2008 prior to her termination. 

Under Title VII and Sec. 1790b, the employee must show a causal connection between her opposition activity and her termination.  Regarding this causal connection, the court noted that Ms. Schroeder suffered no discipline until she was fired.  And, in fact, the employer praised her performance when she was demoted.  On the other hand, she was said to be "abrasive" to work with.  The court found overall that this evidence regarding her work performance was "neutral."  

Ms. Schroeder was demoted some two weeks prior to her first complaint to the NCUA.  But, her pay decrease came closely after her first calls to the NCUA.  And, her letters and her lawyer’s email came shortly before her termination.  The court noted the competing inferences available from this evidence.  But, again, the court must draw inferences in favor of the non-movant.  Refreshingly, the court reaffirmed that such fact issues should be decided by a jury not by the judge.  So, the court found a close temporal proximity between her reports and her termination. 

The court of appeals then reversed the trial judge and sent the matter back to the trial judge for a trial on the merits. 

It is refreshing to hear the Fifth Circuit affirm the right to a trial by jury on key factual issues.  Perhaps, jury trials are not completely gone from the Fifth Circuit.