Gee v. Principi

• Citation: 289 F.3d 342
• Decision Date: 18 April 2002
• Docket Number: No. 01-50159.,01-50159.
• Parties: Sidna B. GEE, Plaintiff-Appellant, v. Anthony PRINCIPI, Secretary, Department Of Veterans Affairs, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

289 F.3d 342

Sidna B. GEE, Plaintiff-Appellant, v. Anthony PRINCIPI, Secretary, Department Of Veterans Affairs, Defendant-Appellee.

No. 01-50159.

United States Court of Appeals, Fifth Circuit.

April 18, 2002.

LaNelle Linnstaedter McNamara (argued), McNamara & McNamara, Waco, TX, for Plaintiff-Appellant.

R. Barry Robinson, Asst. U.S. Atty. (argued), Austin, TX, for Defendant-Appellee.

Appeal from the United States District Court for the Western District of Texas.

Before EMILIO M. GARZA, BENAVIDES and STEWART, Circuit Judges.

BENAVIDES, Circuit Judge:

After she was not selected for a new job opening, plaintiff filed this Title VII retaliation claim. The district court granted summary judgment for her employer. For the reasons that follow, we reverse and remand.

I.

Plaintiff Sidna B. Gee ("Gee") was originally employed by the Department of Veterans Affairs ("VA") as a Staff Pharmacist at the VA Medical Center in Waco, Texas. In 1993, she began serving as the Clinical Automatic Data Processing Coordinator, where she was responsible for implementing an electronic data processing system for entering and filling pharmacy orders throughout the medical center. Soon thereafter, she began experiencing problems with her supervisor, the acting Chief of Staff, Dr. John J. Bryan ("Dr.Bryan"). When Dr. Bryan passed Gee two inappropriate notes that expressed romantic overtures, she reported the problem to the Director of the Medical Center, Wallace Hopkins ("Hopkins"). Hopkins immediately removed Gee from Dr. Bryan's authority and placed her under his own direct supervision. In addition to this remedial step, Hopkins directed Dr. Bryan to take sexual harassment training and write Gee a note of apology. Gee accepted the apology and expressed her satisfaction with the outcome.

Gee continued to work for two years after the incident, but changes at the department eventually caused some of these tensions to reignite. Although Gee's position was technically a one-year assignment, it was renewable and she remained in it until 1995. During this time, her contact with Dr. Bryan left her with the impression that he was attempting to undermine her work. In February 1995, the title of her job was changed to OE/RR Coordinator. Although Gee did not support the name change, she wrote Hopkins an email stating that she would accept the decision because she was a "team player." Nevertheless, she alleged that "some personality issues" were involved, and charged that Dr. Bryan was trying to have her removed from her position.

In March, the Department of Veterans Affairs announced that the Waco center would become fully integrated with the other medical centers in the area. This change caused a reorganization in the management structure of the Waco center. The reorganization had a profound impact on Gee's position. Sometime prior to April 21, 1995, Hopkins called a meeting to discuss the possibility of moving Gee's OE/RR Coordinator position to the Information Resources Management Division ("IMR"), which oversees computer systems and applications. The attendees included Hopkins, Dr. Bryan, Rusty Solomon, Lee Gibbs ("Gibbs"), the IMR chief, and Dr. Gary Melvin ("Dr.Melvin"), the Chair of the Informatics Council, of which Gee was a member. At the meeting, each of the participants made statements about Gee. Dr. Melvin expressed support for Gee. Dr. Bryan complained about her inability to get along with others. Hopkins stated his concerns about her liberal use of sick leave. The general consensus at the end of the meeting was that something different needed to be done with the position. Shortly thereafter, Hopkins directed Gibbs to prepare a job description for the new position, which was announced on May 24, 1995. Two people applied for the position, Gee and Debbie Boyd ("Boyd"). Gibbs interviewed both of them and spoke to each candidate's supervisor. At the conclusion of the process, Gibbs announced that Boyd had been selected for the position. He explained his decision by stating that although Gee had proficient technical skills, he was concerned about her ability to work effectively with others.

After she was not awarded the job, Gee filed an EEOC complaint against the Waco VA Medical Center. Following an investigation and hearing, the Administrative Law Judge issued a recommended decision. Gee then filed suit against Anthony Principi, Secretary of the Department of Veterans Affairs ("the Secretary"), under Title VII. She claimed that her nonselection was the result of retaliation for her reporting of Dr. Bryan's sexual harassment. The district court granted the Secretary's motion for summary judgment, holding that Gee had failed to establish a prima facie case of retaliation. Moreover, it held that even if she could make such a showing, Gee was unable to raise a genuine issue of material fact concerning the falsity of her employer's proffered reason for not giving her the job. Gee timely filed a notice of appeal from this judgment.

II.

In Title VII retaliation cases, the plaintiff must first make the following prima facie showing: "(1) that [she] engaged in activity protected by Title VII, (2) that an adverse employment action occurred, and (3) that a causal link existed between the protected activity and the adverse action." Raggs v. Miss. Power & Light Co., 278 F.3d 463, 471 (5th Cir.2002). The causal link required by the third prong of the prima facie case does not rise to the level of a "but for" standard. Id. The plaintiff "need not prove that her protected activity was the sole factor motivating the employer's challenged decision in order to establish the `causal link' element of a prima facie case." Long v. Eastfield Coll., 88 F.3d 300, 305 n. 4 (5th Cir.1996) (citation omitted). "Assuming the plaintiff is able to establish [her] prima facie case, the burden then shifts to the defendant to demonstrate a legitimate nondiscriminatory purpose for the employment action." Aldrup v. Caldera, 274 F.3d 282, 286 (5th Cir.2001). If the defendant satisfies this burden, the plaintiff must prove that the employer's stated reason for the adverse action was merely a pretext for the real, discriminatory purpose. Id. At the summary judgment stage, the nonmovant need only point to the existence of a genuine issue of material fact. We review the grant of summary judgment de novo. Mason v. United Air Lines, Inc., 274 F.3d 314, 316 (5th Cir.2001).

A.

The parties agree that Gee has satisfied the first two elements of her prima facie case, i.e., that she engaged in a protected activity and suffered an adverse employment action. We must determine whether Gee is able to raise a fact issue regarding a causal connection between her complaint of sexual harassment and her nonselection for the new position. In granting summary judgment against Gee, the district court noted that the harassment occurred two years prior to her nonselection, and that Gee received a favorable performance review from Hopkins on April 21, 1995, after the meeting at which Gee claims that her fate was sealed. Moreover, it found no evidence to suggest that Dr. Bryan or Hopkins explicitly directed Gibbs not to select Gee. Finally, it dismissed testimony from Dr. Melvin that it was his impression that by the end of the March meeting, Gibbs had a negative opinion of Gee and the group had decided to look for someone else to fill the position.

Gee relies on Long v. Eastfield College in support of her argument that she produced sufficient evidence to meet her prima facie burden on the issue of causation.¹ In Long, we reaffirmed the longstanding principle that, in determining whether an adverse employment action was taken as a result of retaliation, our focus is on the final decisionmaker. 88 F.3d at 306-07. The statements and actions of ordinary employees are normally not imputable to the employer. Id. at 306; see also Price Waterhouse v. Hopkins, 490 U.S. 228, 277, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) (O'Connor, J., concurring in the judgment) ("[S]tatements by nondecisionmakers, or statements by decisionmakers unrelated to the decisional process itself [do not] suffice to satisfy the plaintiff's burden...."). Nevertheless, when the person conducting the final review serves as the "cat's paw" of those who were acting from retaliatory motives, the causal link between the protected activity and adverse employment action remains intact. See Long, 88 F.3d at 307 (quoting Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir.1990)). The ultimate question, therefore, is whether "`the employee can demonstrate that others had influence or leverage over the official decisionmaker.'" Rios v. Rossotti, 252 F.3d 375, 382 (5th Cir.2001) (quoting Russell v. McKinney Hosp. Venture, 235 F.3d 219, 226 (5th Cir. 2001)).² As Long instructs, "[t]he degree to which [the final decisionmaker's] decisions were based on his own independent investigation is a question of fact...." 88 F.3d at 307.

Drawing all reasonable inferences in favor of Gee, the nonmovant, we hold that the district court erred in concluding that she had not created a triable fact issue regarding whether Gibbs was influenced by Dr. Bryan or Hopkins.³ The parties do not dispute that at the crucial meeting, Dr. Bryan and Hopkins both made comments critical of Gee. Dr. Bryan, who had previously harassed Gee, stated to the group that Gee had a problem communicating and getting along well with others. Dr. Bryan's comments at the meeting were vehement enough that Dr. Melvin soon thereafter approached Gee to inquire whether Dr. Bryan had something against her. In addition to Dr. Bryan's derogatory comments, Hopkins, who knew of the harassment, questioned her use of leave time. Furthermore, Dr. Melvin testified that at the end of the meeting, it was his impression that the decision regarding Gee was already made, and that she would not be selected for the new position. The Secretary discounts this evidence of Dr. Melvin's impression,...