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In Alkhawaldeh v. Dow Chem. Co., 851 F.3d 422 (5th Cir. 2017), the Fifth Circuit affirmed a summary judgment ruling against the plaintiff in a retaliation case, despite the fact that the EEOC had previously found that the employer had retaliated against him.

In October 2009, Alkhawaldeh, a Muslim employee of Dow Chemical Company, was given a 1 rating (out of 5) and placed on a PIP. In November 2009, he reported alleged anti-Arab discrimination to HR. In April 2010, he filed an EEOC Charge. In July 2010, he was transferred to a new supervisor. On October 30, 2010, he was fired for alleged poor performance, insubordination, and general incompetence. He sued for retaliation under Title VII. He relied in part on the fact that the EEOC had issued a Letter of Determination (“LOD”) that Dow had retaliated against him.

The district court granted summary judgment for Dow, and the Fifth Circuit affirmed. It found that, unlike an EEOC investigative report, which a district court must consider, an EEOC LOD could be “freely ignored.”

It also concluded that the pre-November 2009 poor rating and PIP substantially undercut Alkhawaldeh’s retaliation claim. In addition, the court found it compelling that Alkhawaldeh’s performance was viewed as poor by two separate supervisors and a committee Dow convened to evaluate his performance. Finally, the Court emphasized the “high burden” of the “but for” causation standard in Title VII retaliation cases, and found that Alkhawaldeh had not met it.

This case demonstrates that just because the EEOC issues a favorable LOD to the employee, does not mean the employee’s claims will hold up in court.