Brandon v. Sage Corp.

• Decision Date: 10 December 2015
• Docket Number: No. 14–51320.,14–51320.
• Citation: 808 F.3d 266
• Parties: Margie BRANDON, Plaintiff–Appellant v. The SAGE CORPORATION, Defendant–Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

808 F.3d 266

Margie BRANDON, Plaintiff–Appellant

v.The SAGE CORPORATION, Defendant–Appellee.

No. 14–51320.

United States Court of Appeals, Fifth Circuit.

Dec. 10, 2015.

Peter C. Renn, Lambda Legal Defense & Educational Fund, Incorporated, Los Angeles, CA, Demoya R. Gordon, Lambda Legal Defense & Education Fund, Incorporated, New York, N.Y., Glenn Deutsch Levy, Law Office of Glenn D. Levy, San Antonio, TX, Robert Thomas Smith (argued), Katten Muchen Rosenman, L.L.P., Washington, DC, Kenneth Dale Upton, Jr., Lambda Legal Defense & Education Fund, Incorporated, Dallas, TX, for Plaintiff–Appellant.

John Thomas Hawkins, Esq. (argued), Joe Anthony Rivera, Esq., Naman, Howell, Smith & Lee, P.L.L.C., Waco, TX, for Defendant–Appellee.

Anne Warren King (argued), U.S. Equal Employment Opportunity Commission Office of General Counsel/Appellate Services, Washington, DC, for Amicus Curiae.

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

Before JONES, SMITH, and SOUTHWICK, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Appellant Margie Brandon ("Brandon") filed suit against the Sage Corporation ("Sage"), alleging racial discrimination, wrongful termination, and retaliation, in violation of Title VII as amended by the Civil Rights Act of 1991, 42 U.S.C. § 2000e–3(a) ("Title VII") and 42 U.S.C. § 1981 (" § 1981") and the comparable Texas Commission on Human Rights Act, and other state law claims. The district court granted Sage's motion for summary judgment. Brandon appeals the dismissal of her retaliation claims. We affirm, because Brandon, who was a supervisor familiar with company employment policies, has not created a genuine material fact issue that she suffered an adverse employment action.

BACKGROUND

Sage owns and operates truck driving schools, including a San Antonio campus. Brandon was the Director of the San Antonio Campus. Barbara Blake ("Blake") was Brandon's immediate supervisor, but Blake and Brandon reported to Gregg Aversa ("Aversa"), Sage's President. Carmella Campanian ("Campanian"), was Sage's National Project Director, Regional Director for the Western United States, and School Director for the Billings, Montana site. In 2010, Brandon interviewed and hired Loretta Eure ("Eure"), a truck driver who alleges that her "gender expression was traditionally masculine."

Also in 2010, one of the accounts that Campanian managed, Sanjel, Inc., expanded its contract with Sage. On March 29th, 2011, Campanian flew to San Antonio, Texas, and spent three days implementing the driver training component of the Sanjel expansion. When Campanian arrived at Sage's campus, she saw Eure through a window and asked, "What is that and who hired that?" Brandon responded that Eure was a qualified instructor. Id. Campanian then explained that Sage did not hire "cross-gender" people and that Brandon would be disciplined for hiring Eure. Brandon replied "Excuse me?" Campanian answered by repeating that Sage did not hire "cross-genders."

Campanian also reduced Eure's work hours and excluded Eure from the Sanjel project. When Brandon questioned her decision, Campanian asked Brandon if she was stupid and added that the Sanjel people would eat Eure alive. Campanian also told Brandon that Sage was her company, that she was a partner, and that the Sanjel account was for her to do with as she pleased. Ultimately, Campanian informed Brandon that her pay would be reduced by 50 percent because she hired Eure.

Campanian's overbearing and offensive conduct led Brandon and Blake to call Aversa. Aversa, however, was traveling at the time. Brandon did not wait to hear back from Aversa. On March 31st, Brandon sent a "resignation" email alleging that she felt threatened by Campanian's pay cut statement. Brandon ended the email by stating that she was leaving Sage because she could no longer take the abuse and humiliation from Campanian. Eure also resigned.

When Aversa returned on April 1st, he apologized for Campanian's behavior and communicated that Campanian had no authority to cut Brandon's pay or reduce Eure's hours.

Brandon filed an administrative complaint with the Equal Employment Opportunity Commission (the "EEOC"), which found reasonable cause that discrimination and retaliation had occurred. In addition to filing an EEOC complaint, Brandon sued Sage.¹ The district court granted summary judgment for Sage on all claims. On the retaliation claim, the district court found that the threat to cut Brandon's pay was not an adverse employment action. Brandon timely appeals her retaliation claim. Brandon asserts that the district court erred in finding that Campanian's pay cut threat was not an adverse employment action.

DISCUSSION

This court reviews appeals of summary judgment de novo, applying the same standard as the district court. Roberts v. City of Shreveport, 397 F.3d 287, 291 (5th Cir.2005). Summary judgment is proper when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "A fact is material only if its resolution would affect the outcome of the action, and an issue is genuine only ‘if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party.’ " Bayle v. Allstate Ins. Co., 615 F.3d 350, 355 (5th Cir.2010) (quoting Hamilton v. Segue Software Inc., 232 F.3d 473, 477 (5th Cir.2000) ).

"When considering summary judgment evidence, we view all facts, and the inferences to be drawn from them, in the light most favorable to the nonmovant." DIRECTV, Inc. v. Budden, 420 F.3d 521, 529 (5th Cir.2005). The moving party "always bears the initial responsibility of informing the district court of the basis for its motion[.]" Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). "Once a party meets the initial burden of demonstrating that there exists no genuine issue of material fact for trial, the burden shifts to the non-movant to produce evidence of the existence of such an issue for trial." Bayle, 615 F.3d at 355. The party opposing summary judgment "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). He "must go beyond the pleadings and come forward with specific facts indicating a genuine issue for trial to avoid summary judgment." Piazza's Seafood World, LLC v. Odom, 448 F.3d 744, 752 (5th Cir.2006).

The court "may affirm summary judgment on any legal ground raised below, even if it was not the basis for the district court's decision." Performance Autoplex, 322 F.3d at 853.

To prevail on her retaliation claims, Brandon must first establish a prima facie case. "There are three elements to a prima facie case of retaliation [ ]: (1) that the plaintiff 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). Whether an employer's actions are retaliatory often presents a jury question. See Burlington N., 548 U.S. at 71–73, 126 S.Ct. 2405. "The significance of any given act of retaliation will often depend upon the particular circumstances. Context matters." Id. at 69, 126 S.Ct. 2405.

Concerning the first element, Title VII's "opposition clause" protects employees who "oppose any practice made an unlawful employment practice by this subchapter[.]" 42 U.S.C. § 2000e–3(a). The plaintiff need not have been the target of the alleged discrimination: "employee opposition to discriminatory employment practices directed against a fellow employee may constitute activity protected under" the opposition clause. Jones v. Flagship Int'l, 793 F.2d 714, 727 (5th Cir.1986). Whether the plaintiff was mistaken about the alleged discrimination is not fatal to the claim. Id. (citing Berg v. LaCrosse Cooler Co., 612 F.2d 1041 (7th Cir.1980) ).

In regard to the second element, to establish an adverse employment action at the prima facie stage, "a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which ... means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 2415, 165 L.Ed.2d 345 (2006) (quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C.Cir.2006) ) (quotation marks omitted).

Finally, "Title VII retaliation claims must be proved according to traditional principles of but-for causation, not the lessened [motivating factor] causation test[.]" Univ. of Tex. Sw. Med. Ctr. v. Nassar, –––U.S. ––––, 133 S.Ct. 2517, 2533, 186 L.Ed.2d 503 (2013).

Brandon's case in the district court hinged on the second element of her prima facie case—whether an adverse action occurred. Therefore, we will assume arguendo that Brandon meets the first² and third elements and turn to the second element, as the district court did.

I.

Though the record does not support that Brandon felt threatened³ by Campanian's statement, the applicable test is whether a reasonable employee would have been dissuaded from supporting a discrimination charge as a result of Campanian's threat. See Burlington N., 548 U.S. at 68, 126 S.Ct. 2405. The reasonable employee is the average person in similarly situated circumstances. See Long v. Eastfield Coll., 88 F.3d 300, 310 (5th Cir.1996) (DeMoss, J., concurring in part and dissenting in part).

Brandon asserts that the district court erred by characterizing the alleged 50 percent pay cut as a mere threat and by concluding that a threat alone can never constitute an adverse employment action. Brandon also contends that the district court improperly relied on the stricter "ultimate employment decision" test applicable to Title VII discrimination claims, when it should have used the more...