HNRK won a solid victory in the US Court of Appeals for the District of Columbia on April 9, 2010 in the case of Gaujacq v. EDF, Inc., affirming a District Court decision that granted summary judgment in favor of our clients Electricite de France, S.A. (EDF) and EDF, Inc. The case arose from the assignment by EDF, a major French utility company, of a nuclear engineer, Mme. Gaujacq, to head its Washington office. When her tour was ending, Mme. Gaujacq sought to remain in Washington; EDF at first accommodated her but then recalled her to France when she was unwilling to work with the new office head. She threatened to sue EDF for "discrimination" unless they let her stay in the US and structure a job for her as she wished. EDF wanted Gaujacq back in France and appointed her to a very important and prominent position there, managing the development of a new series of nuclear reactors. But she refused to return to France and refused to report for the job and was ultimately fired. The District Court dismissed Mme. Gaujacq’s claims under the Equal Pay Act as well as her sex discrimination and retaliation claims under Title VII and the DC Human Rights Act.

The DC Circuit's opinion affirming the summary judgment is notable on the law for its treatment of the retaliation claim, in which it applied the instruction of the US Supreme Court's recent decision in Burlington Northern & Santa Fe Ry. v. White (2006) that "[c]ontext matters" in analyzing whether an employer statement is a threat of retaliation, and held that, in the context of this case, a statement that might literally be read as words of threat could not be considered a threat of retaliation. The opinion by Senior Circuit Judge Harry Edwards is memorable for the Court’s incisive rejection of plaintiff's claim that summary judgment should be denied and the case should be tried to a jury on the claim of retaliation because of an alleged statement to her by the COO of EDF that “Your career is dead in EDF if you file a claim.”

Judge Edwards wrote: "A threatening verbal statement, standing alone, might well constitute a materially adverse action. However, in assessing such a claim, Burlington emphasizes that “[c]ontext matters” and that “the significance of any given act of retaliation will often depend on the particular circumstances.” [citation omitted] Therefore, a statement that literally appears to be threatening is not necessarily a materially adverse action.”

Judge Edwards went on to find: “In the context of this case, a reasonable worker in Gaujacq’s position would not have taken Creuzet’s brief, fleeting, and unadorned verbal statement as an act or threat of retaliation. Both before and after Creuzet’s statement, top EDF officials went out of their way to accommodate Gaujacq’s desire to stay in the United States, despite her increasing insubordination and refusal to consider any future employment decision that did not meet her precise demands.”

Courts frequently dismiss discrimination claims but uphold a plaintiff’s right to maintain a claim for retaliatory firing. This case shows that the retaliation claims will not always survive.