Labor & Employment Law Daily Wrap Up, DISCRIMINATION—SEX—5th Cir.: Police officer who resigned after clashing with male colleagues partially revives claims, (Aug 4, 2026)

By Todd Harrison, J.D.

This case presented “a thicket of factual disputes,” and “while many events are undisputed, their meaning is not.”

Reversing a district court’s grant of summary judgment against the sex discrimination and retaliation claims asserted by a police officer for the City of Austin, the Fifth Circuit determined that those claims turned on contested facts, including whether her placement on a type of performance improvement plan was motivated by bias and whether her resignation was tantamount to a constructive discharge. On the sex discrimination claim, the appellate court found that the district court had sidestepped the direct-evidence theory of discrimination, had shortchanged the employee’s adverse-action allegations, and applied an unduly narrow understanding of Title VII injury. The court did, however, affirm the grant of summary judgment against a hostile work environment claim as that claim was not adequately briefed as a freestanding issue (Liedtke v. The City of Austin, No. 25-50717 (5th Cir. Aug. 3, 2026)).

All-male team. After graduating from the Austin Police Academy in 2020, earning an “Honor Cadet” award, the employee in the case was recruited to work with an all-male team, in part because the police department was seeking to improve diversity.

Sexist comments. According to the employee, this assignment quickly took a turn. Four of her colleagues were especially hostile, with some saying that female officers are “either a bitch or a slut.” One colleague wondered whether the employee’s use of birth control was impeding her muscle growth.

“Drop belts.” One evening, the employee messaged two male colleagues to prioritize incoming calls for help rather than hunting for an individual with an arrest warrant. The three later met to discuss what they viewed as the employee’s “disrespect,” a heated conversation that led one colleague to insist that the two of them should “drop belts,” meaning to fight. That colleague was reprimanded for threatening the employee.

No backup. Later that evening, the employee responded to an active shooter call and alleged that the two colleagues retaliated against her by refusing to provide on-scene backup.

Complaints. Before formally complaining about her colleagues’ hostility, the employee raised her concerns with a corporal, who led an informal mediation conference that the employee considered one-sided. The corporal took no further action because he was retiring in a couple of months and thought it best that his replacement, a female sergeant, resolve the workplace dispute.

When the sergeant assumed the supervisory role, the employee met with her to discuss her colleagues’ misconduct. The sergeant did not investigate those complaints because she believed the corporal’s mediation had resolved them.

Six days later, one of the colleagues told the sergeant that he and his male shiftmates were concerned the employee “would file an EEOC or [internal-affairs] complaint” against them. During that conversation he also asserted that the employee had caused “officer safety issues” on multiple occasions. The sergeant immediately summoned one of the male colleagues to describe the employee’s allegedly dangerous policing. After the meeting, the male colleague texted the sergeant outlining more allegations.

Employee Success Plan. The next day, the sergeant prepared an Employee Success Plan (ESP), which functions much like a performance improvement plan, for the employee. The sergeant acknowledged that in crafting the ESP, she “essentially copied and pasted” the allegations contained in the male colleague’s text messages. After the sergeant brought the colleagues’ concerns to a lieutenant, the lieutenant signed off on the ESP, but later testified that she would not have done so had she known that the male colleague effectively drafted most of it himself.

A police practices expert testified that the ESP was unusual because it covered several months’ worth of alleged misconduct, a viewpoint corroborated by the sergeant herself who had never before issued or heard of a vague “officer safety” ESP.

Lawsuit. Not long after receiving the ESP, the employee resigned. Subsequently, she filed this lawsuit asserting claims under Title VII for a hostile work environment, sex discrimination, and retaliation. The district court granted summary judgment to the city on the hostile work environment claim, finding the employee had not shown an effect on the “terms, conditions, or privileges of her employment.” The court also granted the motion for summary judgment against the retaliation and sex discrimination claims after concluding the employee did not suffer an adverse employment action. This appeal followed.

HWE. First, the appeals court addressed the employee’s hostile work environment claim, ultimately finding that she failed in several respects to preserve this claim. She did not identify the claim in her opening brief’s statement of issues or in her concise statement of the case. Nor did she address the district court’s analysis of her claim or support her contention with legal arguments or authorities. Because her opening brief referred to a hostile work environment claim only “in passing” without developing the point into a “contention,” the court determined that she had forfeited the issue on appeal, and the district court’s grant of summary judgment against this claim was affirmed.

Sex discrimination. Next, the court addressed the employee’s sex discrimination claim. As a preliminary matter, the city argued that this claim too was forfeited because the issue was not adequately briefed on appeal. The court here disagreed, pointing to a subsection in her opening brief subtitled “Under the Rule 56 Standard a Reasonable Jury Could Find for Plaintiff on Her Discrimination and Retaliation Claims.”

Within this subsection, the employee cited to the legal standards applicable in sex discrimination cases relying on direct or circumstantial evidence, and argued that the district court erred in exclusively applying the McDonnell Douglas framework when her discrimination claim also relied on direct evidence. Thus, the court determined it was proper to review this claim.

A “thicket of factual disputes.” As to the claim itself, the court noted that it did not present one clean legal question. Rather, it presented “a thicket of factual disputes. And while many events are undisputed, their meaning is not.”

It was undisputed that a male colleague commented about the employee’s contraception practices, that another colleague stated the two should “drop belts,” and that the employee reported this conduct to the corporal, who declined to investigate because he thought his replacement should address the conflict. So too was the sergeant’s decision not to investigate the employee’s claims. Further, after a male colleague warned that the employee might file an EEOC or internal-affairs complaint, the sergeant issued an ESP within a day, adopting the men’s accusations against the employee.

“The sequence matters,” observed the court. First came the employee’s complaint, then came her colleagues’ fear of an EEOC or internal-affairs complaint, then came the ESP, which had features a jury could find unusual, such as the fact that the sergeant had never heard of an ESP being issued for “officer safety issues” and the fact that it largely consisted of copied and pasted text messages.

Direct evidence. If the employee presents direct evidence of intentional sex discrimination, she can survive summary judgment unless the city proves that it would have made the same employment decision anyway, explained the court. In this instance, the evidence is disputed and summary judgment prevented the court from weighing its credibility or force.

For example, some of the sexist comments were contested. If a factfinder determines those disputed remarks are true, they could indicate sex discrimination. Further, were those alleged comments merely “stray remarks” or did they evince intentional discrimination? Were they proximate to an adverse employment action? Was the officer constructively discharged? Was the ESP an adverse employment action? Did the officer’s colleagues influence the sergeant—the ultimate decisionmaker—to prepare the ESP?

“Each question is wrapped in fact disputes that preclude summary judgment,” said the appellate court, finding that the district court had sidestepped the direct-evidence theory of discrimination, shortchanged the employee’s adverse-action allegations, and had applied an unduly narrow understanding of Title VII injury. Accordingly, the grant of summary judgment against this claim was reversed and the matter was remanded for further proceedings.

Retaliation. Finally, the court directed its attention to the employee’s retaliation claim. The district court had rejected this claim for the same reason it rejected the sex discrimination claim—no adverse employment action. The appellate court found that this reasoning could not carry the day with regard to this claim either, ultimately reversing the grant of summary judgment against this claim.

Circumstantial evidence. With regard to the employee’s evidence of retaliation, the court explained that she overstated her allegations of direct evidence of retaliation. She had identified two pieces of evidence she labeled as direct: (1) her colleague’s complaint to the sergeant about her policing; and (2) the sergeant’s statement to the lieutenant that the employee’s shiftmates feared a possible EEOC or internal-affairs complaint. Neither is direct evidence, explained the court, as both require an inferential step.

For the colleague’s complaint to show retaliation, one must infer that his complaint about the employee’s policing was pretextual and that it caused the stated adverse employment actions, observed the court. Thus, this arguably pretextual complaint about the employee was, at most, circumstantial evidence.

So too was the sergeant’s statement to the lieutenant. It showed that the employee’s shiftmates feared a possible EEOC or internal-affairs complaint, but did not, on its face, show that the sergeant issued the ESP—or helped secure its approval—because of protected activity. “At most, it helps explain how the ESP moved forward,” said the court.

Prima facie case. Regardless, the court found the circumstantial evidence sufficient to reach a jury. The employee raised a genuine issue of material fact as to the existence of a prima facie case. She engaged in protected activity by filing an internal complaint of discrimination, explained the court. She raised a genuine dispute that the ESP affected the conditions of her employment by diminishing her standing among coworkers and restricting her ability to patrol alone. Finally, she received the ESP just one day after complaining of her shiftmates’ behavior and resigned just a few weeks later.

The city proffered a legitimate reason for its decision—the employee’s purported underperformance. However, the court found the evidence of pretext was disputed and a jury could credit the employee’s account. Accordingly, the grant of summary judgment against this claim was also reversed and remanded for further proceedings.

The case is No. 25-50717.

Judge: Willett, D.

Attorneys: Holt M. Lackey (Valli Kane & Vagnini) for Samantha Liedtke. Christine Elaine Reinhard (Fennemore Craig) for City of Austin.

Companies: City of Austin

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