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Update: Fifth Circuit Rejects En Banc Rehearing of Halliburton Decision

On March 11, 2015, the Fifth Circuit voted 8-7 against rehearing en banc the court’s November decision in Halliburton Co. v. Administrative Review Board. Three Fifth Circuit judges wrote a dissenting opinion, contending that the court should have heard the appeal en banc in order to provide greater clarification and guidance on what types of employment actions are “materially adverse” to state a claim for retaliation. The dissent also specifically disagreed with the November decision, noting that under existing Fifth Circuit law, the disclosure of a whistleblower’s name, alone, cannot be retaliatory and that ostracism of an employee has been rejected as an adverse employment action. This earlier case law, the dissent argues, is binding precedent in the Circuit, not the more recent “errant” decision in Halliburton. While the denial of en banc rehearing means that the decision of the three-judge panel stands, the dissent provides some basis for distinguishing it and indicates that the Fifth Circuit may provide specific guidance about the parameters of retaliatory employment actions in a future case.

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