Reasonable Accommodation vs. Adverse Action under Title VII: Spencer v. Shell Exploration

Introduction

Spencer v. Shell Exploration & Production Co. is a Fifth Circuit decision issued on March 19, 2025, concerning the interplay between an employer’s vaccination policy, an employee’s religious objections, and the requirements for pleading discrimination and retaliation claims under Title VII of the Civil Rights Act of 1964. Tim Spencer, an offshore worker for Shell since 2008, sought a religious exemption from Shell’s mandatory COVID-19 vaccination policy. After his exemption request was denied, Shell gave him until July 16, 2022 to find another position or face termination. Spencer sued, alleging (1) religious discrimination and (2) retaliation. The district court granted Shell’s Rule 12(b)(6) motion to dismiss, and the Fifth Circuit affirmed.

Summary of the Judgment

The Fifth Circuit affirmed dismissal of both Spencer’s religious discrimination and retaliation claims. The court held:

Spencer failed to request leave to amend his complaint and thus could not expand allegations or attach new documents in his opposition brief.
For his religious discrimination claim, Spencer did not allege an actual adverse employment action—he was never terminated, nor did he resign or suffer any materially adverse effect because of refusing vaccination.
For his retaliation claim, (a) the performance improvement plan (PIP) and warnings were not materially adverse because Shell had colorable grounds for discipline, and (b) the termination warning predated Spencer’s EEOC charge and thus was not causally linked to any protected activity.

The court therefore found that Spencer had not pleaded facts sufficient to make his Title VII claims plausible and affirmed the dismissal.

Analysis

Precedents Cited

Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007): established the “plausibility” pleading standard under Rule 8(a)(2).
Bustos v. Martini Club, Inc., 599 F.3d 458 (5th Cir. 2010) and True v. Robles, 571 F.3d 412 (5th Cir. 2009): reiterated de novo review of Rule 12(b)(6) dismissals, accepting all well-pleaded facts in the plaintiff’s favor.
Tagore v. United States, 735 F.3d 324 (5th Cir. 2013): spelled out the elements of a prima facie Title VII religious discrimination claim and the employer’s duty to accommodate unless it causes undue hardship.
McClaine v. Boeing Co., 544 F. App’x 474 (5th Cir. 2013): held that a plaintiff must expressly request leave to amend; courts need not sua sponte grant amendment.
Jackson v. Honeywell Int’l, Inc., 601 F. App’x 280 (5th Cir. 2015): held that warnings or unfavorable reviews are not adverse employment actions where there are colorable grounds for them.
Davis v. Fort Bend County, 765 F.3d 480 (5th Cir. 2014): outlined the elements of a Title VII retaliation claim.
Leal v. McHugh, 731 F.3d 405 (5th Cir. 2013) (quoting McCoy v. City of Shreveport, 492 F.3d 551 (5th Cir. 2007)): set forth the tripartite test for retaliation—protected activity, adverse action, and causation.
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006): defined a “materially adverse employment action” for retaliation purposes as one that would dissuade a reasonable worker from making a discrimination charge.

Legal Reasoning

The court’s reasoning proceeds in three core steps:

Opportunity to Amend: Under Fifth Circuit precedent, a district court need not grant leave to amend if a plaintiff never requests it. Spencer conceded he “never asked for leave to amend,” so the court refused to consider the extra facts and documents he offered in his opposition brief.
Religious Discrimination: To plead discrimination, a Title VII plaintiff must allege a “bona fide religious belief,” conflict with an employment requirement, employer awareness, and an adverse employment action. Spencer’s complaint alleged only a threat of termination unless he found a new position. He did not claim actual termination, resignation, or economic harm traceable to Shell’s rejection of his religious exemption. Under Iqbal/Twombly, a bare request for “lost wages” without factual support cannot show a plausible claim.
Retaliation: Spencer alleged two allegedly retaliatory actions: (a) the PIP and (b) the May 3 warning. Under Jackson, a PIP with colorable grounds is not materially adverse, and Spencer did not plead that the PIP was pretextual. And because the warning merely reiterated Shell’s pre-existing directive (given months before Spencer’s EEOC charge), there was no causal connection to protected activity. Moreover, providing additional time to transfer cannot dissuade a reasonable worker from pursuing a charge.

Potential Impact

Spencer v. Shell Exploration reinforces several important points in employment discrimination litigation:

Pleading Discipline: Employees challenging workplace discipline must allege facts showing the discipline was both adverse and pretextual. Simply stating “I lost wages” or received negative reviews without factual support will not survive a motion to dismiss.
Adverse Action Defined Narrowly: Warnings or performance plans based on legitimate business needs—and continuing to offer pay or accommodation—are unlikely to qualify as adverse actions under Title VII.
Timing for Retaliation: Employers’ prior written warnings or policies cannot be repurposed as retaliation when they precede protected activity.
Amendment Practice: Plaintiffs must affirmatively seek leave to amend if they wish to expand or augment the complaint; failure to do so forfeits those facts in a Rule 12(b)(6) context.

Future litigants will need to carefully document both the adverse employment action and its causal link to protected activity, as well as timely move to amend when additional facts arise.

Complex Concepts Simplified

“Adverse Employment Action”: Under Title VII, this is any action that materially affects an employee’s terms, conditions, or privileges of employment. Mere criticisms, warnings, or performance plans—when based on legitimate grounds—are generally not enough.
“Plausibility” Pleading Standard: Derived from Twombly/Iqbal, a complaint must contain enough factual detail to allow the court to infer that the defendant acted unlawfully. Conclusory allegations or bare legal conclusions are insufficient.
“Reasonable Accommodation”: Employers must modify workplace rules or practices to accommodate an employee’s sincerely held religious beliefs, unless providing the accommodation would impose an “undue hardship” on business operations.
“Protected Activity”: Under Title VII, this includes opposing or complaining about discrimination (for example, filing an EEOC charge) or participating in an EEOC investigation or lawsuit.

Conclusion

Spencer v. Shell Exploration crystallizes the obligation of Title VII plaintiffs to: (1) plead clear adverse employment actions, (2) establish a causal link in retaliation claims, and (3) proactively seek leave to amend when additional facts or documents become available. It also underscores the judiciary’s careful delineation between genuine hardship-based policies (such as vaccine mandates) and unlawful refusal to accommodate. As a precedent, it will guide both practitioners and employers in evaluating the sufficiency of discrimination and retaliation pleadings and in defining the outer bounds of “adverse action” and “reasonable accommodation” under federal employment law.