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Click here for the full text of this decision FACTS:David Christian was elected a justice of the peace in 1991. That year, he hired Kyle Knight as one of his five clerks. Knight resigned in November 1996 and filed a complaint with the EEOC that month; the complaint was amended to state a claim under GERA. The complaint was referred by the Equal Employment Opportunity Commission to an administrative law judge, who understood the complaint as presenting two claims. Knight alleged: Christian had created a hostile work environment through conduct constituting sexual harassment; and, after she complained about that conduct to Christian and to a county official, Christian retaliated against her. There were five predicates for the retaliation claim. At issue here are two bases, ostracism and a December 1996 letter from Christian to the sheriff about Knight’s husband. The ALJ ruled in favor of the county on all claims. Knight appealed to the EEOC, which affirmed the ALJ’s findings of no sexual harassment and no retaliation due to either constructive discharge, failure to promote or probation. The EEOC partly reversed the ALJ on the retaliation claim, however, ruling that Christian had retaliated against Knight in ostracizing her and in writing the letter. The final decision awarded Knight $20,500 in compensatory damages; $18,952.50 in attorney’s fees; and $2759.73 in costs. The county petitioned for review and Knight cross-petitioned. HOLDING:The county’s petition is granted; Knight’s cross-petition is dismissed . The court finds that the Government Employee Rights Act makes retaliation, within the meaning of Title VII, unlawful. “A retaliation claim has three elements: (1) the employee engaged in activity protected by Title VII; (2) the employer took adverse employment action against the employee; and (3) a causal connection exists between that protected activity and the adverse employment action.” Mattern v. Eastman Kodak Co., 104 F.3d 702 (5th Cir.), cert. denied , 522 U.S. 932 (1997). The adverse employment action for the second step must be an ultimate employment decision. “‘Ultimate employment decisions’ include acts”such as hiring, granting leave, discharging, promoting, and compensating’.” Mattern. Because GERA creates a retaliation claim by a process of incorporating Title VII provisions, this “ultimate employment decision” applies in GERA cases. For the claimed ostracism, the retaliatory activities did nothing more than affect conditions in the workplace. None of the events listed by the EEOC are akin to the “hiring, granting leave, discharging, promoting, and compensating” examples listed in Mattern. The court notes parenthetically, that even courts that do not apply an “ultimate employment decision” standard have rejected retaliation on the basis of ostracism. The same applies to the letter. Coming after Knight’s resignation, and not directed to making (or even influencing) any employment decision, including post-resignation, regarding Knight, the letter is not an “ultimate employment decision”. OPINION:Barksdale, J.; Barksdale, Pickering and Lynn, JJ.

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