Block v. Kelly Services Inc

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
September 7, 2006
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
No. 05-20978
Summary Calendar
BETTY JEAN BLOCK,
Plaintiff-Appellant,
versus
KELLY SERVICES, INC.; Et Al;
Defendants,
KELLY SERVICES, INC.,
Defendant-Appellee.
Appeal from the United States District Court for the Southern
District of Texas
(4:04-CV-2326)
Before DAVIS, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Betty Jean Block appeals the summary judgment awarded Kelly
Services, Inc. Block claims Kelly Services violated Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e, by taking adverse
employment actions against her in retaliation for assisting a Tecom
employee with a sexual harassment claim when Block and the Tecom
employee were placed at Exxon Mobil. AFFIRMED.

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I.
Block began working for Kelly Services, a temporary staffing
agency, in 1997 and was assigned to work at an ExxonMobil refinery.
From March 2001 through July 2003, she worked as administrative
assistant to Charles McClosky, Exxon’s Manager of the
Training/Maintenance Department. While Block did so, Tecom, an
onsite maintenance contractor, supplied ten of its employees to
work at Exxon. Block, who never worked for Tecom or Exxon, had no
authority over the Tecom employees; she was, however, responsible
for reporting to McClosky any problems she saw or that were brought
to her attention by Tecom employees.
Several Tecom employees individually told Block they were
being harassed by Anthony Taft, another Tecom employee. Block
stated McClosky encouraged her to bring forward such complaints and
that no adverse employment action was taken when she did so. In
April 2003, Keri Joseph, another Tecom employee, complained to
Block she was being harassed by Taft. (Joseph was the fourth Tecom
employee to do so.)
As she did for the previous three complaints, Block forwarded
Joseph’s complaint to McClosky. He told Block to inform Joseph
(whose identity McClosky did not yet know) that she could talk to
him about the issue. Block also twice emailed Tecom’s human
resources representative about Joseph’s allegation; that
representative informed Block she would handle the incident going
forward. In addition, McClosky: updated Block regarding steps he

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had taken to handle the situation; and told Block not to have
further contact with Tecom employees regarding the Joseph incident.
Block then had two more conversations with Joseph about the
incident. During the first conversation, Joseph told Block no one
from Tecom had contacted her, which Block reported to McClosky.
McClosky told Block Tecom had assured him the company investigated
the matter but could not substantiate Joseph’s allegation. He also
told Block a Tecom employee had filed a complaint with Exxon,
alleging Block was spreading rumors about Taft. She was again told
not to discuss the Joseph matter.
The next day, Block first contacted Kelly Services about the
matter, reporting both Joseph’s harassment claim and Taft’s claim
about Block. Block then met with the Kelly Services area manager
and its Exxon on-site representative. They told her: she should
have reported the incident to them sooner; and it was not
appropriate to contact another company’s human resources
department. Block was told not to discuss the Joseph matter with
anyone and not to contact the Tecom human resources department
again.
Sometime after that meeting, Joseph informed Block she was
seeking legal advice. Block then looked up the name of a lawyer in
the telephone directory and provided it to Joseph. After admitting
to Kelly Services supervisors she had given Joseph the name of an
attorney, Block was removed from her assignment at Exxon for
unprofessional conduct.

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In June 2004, Block filed this action against Exxon and Kelly
Services. Kelly Services moved for summary judgment in June 2005.
In September 2005, Block settled with Exxon. Kelly Services was
granted summary judgment in October 2005.
II.
A summary judgment is reviewed de novo under Federal Rule of
Civil Procedure 56, using the same standard as the district court.
See, e.g., Baton Rouge Oil & Chem. Workers Union v. ExxonMobil
Corp., 289 F.3d 373, 376 (5th Cir. 2002). Such judgment is proper
“if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law”. FED.
R. CIV. P. 56(c). Evidence is viewed in the light most favorable
to the non-movant. E.g., Kee v. City of Rowlett, 247 F.3d 206, 210
(5th Cir.), cert. denied, 534 U.S. 892 (2001). If a plaintiff
fails to prove an essential element of his claim, summary judgment
must be granted. E.g., Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986). The non-movant may not rest on the pleadings, but
rather must provide specific facts showing the existence of a
genuine issue for trial. E.g., Ragas v. Tenn. Gas Pipeline Co.,
136 F.3d 455, 458 (5th Cir. 1998).
To establish a Title VII retaliation claim, Block must first
establish a prima facie case, showing that: (1) she engaged in

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protected activity; and (2) her employer took adverse employment
action against her (3) because of that activity. See Burger v.
Cent. Apt. Mgmt., Inc., 168 F.3d 875, 878 (5th Cir. 1999). As it
did in district court, Kelly Services concedes Block could
establish a prima facie case.
Therefore, Kelly Services must demonstrate a legitimate, non-
discriminatory reason for Block’s termination. Shackelford v.
DeLoitte & Touche, LLP, 190 F.3d 398, 404 (5th Cir. 1999). If it
meets its burden, the burden returns to Block to prove the
proffered reason was a pretext, or, although not pretext, was only
one of the reasons she was fired, another being her protected
activity. Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312 (5th
Cir. 2004).
Obviously, insubordination can serve as a legitimate reason
for an employer to take an adverse employment action against an
employee. E.g., Aldrup v. Caldera, 274 F.3d 282, 286 (5th Cir.
2001). And, for summary-judgment purposes, the evidence
establishes such action was taken against Block for failing to
follow orders to stop discussing the Joseph allegation because it
was being investigated by others. As the district court noted, an
employer would, of course, violate Title VII if it ordered its
employees not to raise Title VII violations and then took an
adverse employment action against those who disobeyed that order.

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Here, however, Kelly Services is not seeking to avoid
liability for Title VII by simply ignoring violations and ordering
its employees to do the same. As the district court also noted,
when it was within Block’s job responsibilities, she reported
multiple harassment complaints without adverse consequences to her
(including first reporting Joseph’s complaint). It was only after
ignoring directives that she no longer discuss the Joseph situation
because it was being handled by others that Kelly Services, as a
contractor seeking to avoid interfering with other contractors,
removed Block from her position at Exxon.
It was unreasonable for Block to pursue the Joseph allegations
after she was: (1) informed others were handling the investigation;
and (2) directed not to talk about the matter. See Douglas v.
DynMcDermott Petroleum Operations Co., 144 F.3d 364, 373 (5th Cir.
1998), cert. denied, 525 U.S. 1068 (1999) (balancing Title VII
interests with those of employer and holding conduct unprotected
where plaintiff-attorney’s otherwise protected conduct involved
breach of professional duties as attorney). Kelly Services has
therefore demonstrated a legitimate, non-discriminatory reason for
removing Block from her assignment at Exxon.
Accordingly, the burden shifts to Block to demonstrate that
reason was pretextual or part of a mixed-motive for Kelly Services’
decision. In the light of the summary-judgment record, Block fails
to do so.

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III.
For the foregoing reasons, the judgment is
AFFIRMED.

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