Fierros v. Texas Department of Health, 0051212

• Decision Date: 21 December 2001
• Docket Number: 5,0051212
• Parties: SALOME FIERROS, Plaintiff - Appellant v. TEXAS DEPARTMENT OF HEALTH, Defendant - AppelleeUNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
• Court: U.S. Court of Appeals — Fifth Circuit

SALOME FIERROS, Plaintiff - Appellant v TEXAS DEPARTMENT OF HEALTH, Defendant - Appellee

No. 00-51212

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

November 21, 2001

REVISED DECEMBER 21, 2001

Appeal from the United States District Court for the Western District of Texas, San Antonio

Before KING, Chief Judge, and DUHE and BENAVIDES, Circuit Judges.

KING, Chief Judge:

Plaintiff-Appellant Salome Fierros appeals from the district court's summary judgment dismissing her Title VII retaliation claim. For the following reasons, we REVERSE the district court's judgment and REMAND to that court for further proceedings.

I. FACTUAL AND PROCEDURAL BACKGROUND

For over twenty-five years, Plaintiff-Appellant Salome Fierros, a Hispanic female, worked as a laboratory technician for the Texas Center for Infectious Disease, a department of the Texas Department of Health ("TDH"). In October 1996, Fierros filed an internal complaint with TDH's Office of Civil Rights ("OCR") against the Clinical Division Program Director, Douglas Arnold, alleging that he had discriminated against her based on her ethnicity and gender. Specifically, she claimed that Arnold had discriminated against her by assigning her secretarial duties that a Hispanic male and a white female who were also laboratory technicians were not required to perform. Seven months later, in May 1997, Arnold denied Fierros a merit pay increase of $57 per month that had been recommended by her immediate supervisor, Timothy Carter.

After confronting Arnold about his denial of the merit pay increase, Fierros filed another internal complaint with the OCR alleging that she had been denied the pay increase in retaliation for filing the original OCR discrimination complaint against Arnold. She then filed a charge with the Equal Employment Opportunity Commission ("EEOC") alleging gender and national origin discrimination and retaliation in violation of 42 U.S.C. §§ 2000e-2(a) and 2000e-3(a) (1994) ("Title VII").

While her EEOC charge was pending, Fierros received two disciplinary "counseling sessions," one in September 1998 regarding purported abuse of the sick leave policy and another in November 1998 regarding purported inappropriate sexual behavior in the workplace. Fierros amended her EEOC charge to allege that TDH also retaliated against her by subjecting her to these two disciplinary actions. On June 4, 1999, the EEOC issued a determination on Fierros's charges, finding that "[b]ased upon the totality of the evidence, there is reasonable cause to believe that [TDH's] employment decisions were [retaliatory] as alleged with respect to [Fierros's] being denied a merit increase and subjected to written counselings because she complained of discrimination." However, the EEOC concluded that the evidence did not support Fierros's charge of gender and national origin discrimination. Because it found that TDH had violated Title VII, the EEOC recommended informal methods of conciliation.

The EEOC sent its determination of Fierros's case to the U.S. Department of Justice ("DOJ") for review. On September 28, 1999, the Civil Rights Division of the DOJ sent Fierros a letter giving her notice of her right to bring a Title VII action against TDH within ninety days of receipt of the letter. On December 16, 1999, Fierros timely filed suit against TDH in federal district court, claiming that TDH had retaliated against her in violation of 42 U.S.C. § 2000e-3(a). The district court granted TDH's motion for summary judgment on October 16, 2000, dismissing Fierros's retaliation claim. The district court subsequently extended the deadline for filing a motion for reconsideration of the summary judgment to November 10, 2000. Fierros filed her motion for reconsideration three days late, and the district court denied the motion.

On November 16, 2000, Fierros timely appealed the district court's summary judgment against her. On February 20, 2001, she filed a motion with this court to supplement the record on appeal with the exhibits that she had attached to her motion for reconsideration of the district court's summary judgment decision. According to Fierros, those exhibits were "treated as stricken" by the district court. This court denied her motion to supplement the record on March 12, 2001.

II. SUMMARY JUDGMENT STANDARD OF REVIEW

We review a district court's grant of summary judgment de novo, applying the same Rule 56 standard as the district court. Blow v. City of San Antonio, 236 F.3d 293, 296 (5th Cir. 2001) (citing Fed. R. Civ. P. 56). "Although summary judgment is not favored in claims of employment discrimination, it is nonetheless proper when 'there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law.'" Waggoner v. City of Garland, 987 F.2d 1160, 1164 (5th Cir. 1993) (quoting Fed. R. Civ. P. 56(c)). In making a summary judgment determination, "[d]oubts are to be resolved in favor of the nonmoving party, and any reasonable inferences are to be drawn in favor of that party." Evans v. City of Bishop, 238 F.3d 586, 589 (5th Cir. 2000). The Supreme Court recently emphasized the paramount role that juries play in Title VII cases, stressing that in evaluating summary judgment evidence, courts must refrain from the making of "[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts," which "are jury functions, not those of a judge." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986)).

III. TITLE VII RETALIATION CLAIM Under 42 U.S.C. § 2000e-3(a), it is

an unlawful employment practice for an employer to discriminate against any of his employees . . . because [the employee] has opposed any practice made an unlawful employment practice by this subchapter, or because [the employee] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

42 U.S.C. § 2000e-3(a) (1994). In order to establish a prima facie case of retaliation under § 2000e-3(a), a plaintiff must demonstrate: "(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 employment action." Evans v. City of Houston, 246 F.3d 344, 352 (5th Cir. 2001) (quoting Long v. Eastfield Coll., 88 F.3d 300, 304 (5th Cir. 1996)).

This court has determined that only "ultimate employment decisions," "such as hiring, granting leave, discharging, promoting, and compensating" satisfy the "adverse employment action" element of a prima facie case of retaliation. Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995) (citation omitted). "'[I]nterlocutory or mediate' decision[s] which can lead to an ultimate decision" are insufficient to support a prima facie case of retaliation. Mattern v. Eastman Kodak Co., 104 F.3d 702, 708 (5th Cir. 1997). Put differently, the "ultimate employment decision" doctrine requires that actionable adverse employment actions "have more than a 'mere tangential effect on a possible future ultimate employment decision.'" Mota v. Univ. of Tex. Houston Health Sci. Ctr., 261 F.3d 512, 519 (5th Cir. 2001) (quoting Walker v. Thompson, 214 F.3d 615, 629 (5th Cir. 2000)).

The allocation of the burden of proof in Title VII retaliation cases depends on the nature of the plaintiff's evidence supporting the causation element. If the plaintiff seeks to establish causation by circumstantial evidence, the tripartite burden-shifting framework of McDonnell Douglas applies. See Portis v. First Nat'l Bank, 34 F.3d 325, 328 (5th Cir. 1994) ("Because direct evidence is rare, a plaintiff ordinarily uses circumstantial evidence to meet the test set out in McDonnell Douglas[, which] establishes a prima facie case by inference."). Under the McDonnell Douglas framework, the plaintiff carries the initial burden of establishing a prima facie case of retaliation. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). At this threshold stage, the standard for satisfying the causation element is "much less stringent" than a "but for" causation standard. Long, 88 F.3d at 305 n.4. A McDonnell Douglas prima facie showing establishes an inference of retaliatory motive that the employer can rebut by producing evidence of a legitimate, non-retaliatory reason for the adverse action. Evans, 246 F.3d at 354. If the employer produces such evidence, then the plaintiff has the burden of proving that the Title VII protected activity "was a 'but for' cause of the adverse employment decision." Long, F.3d at 305 n.4. "If the plaintiff presents evidence supporting the prima facie case, plus evidence that the reasons given by the employer for the adverse employment action were pretextual, a jury may infer" the existence of this "but for" causation. Mota, 261 F.3d at 519-20 (citing Reeves, 530 U.S. at 148).

If, on the other hand, the plaintiff presents direct evidence that the employer's motivation for the adverse action was at least in part retaliatory, then the McDonnell Douglas framework does not apply. See Moore v. U.S. Dep't of Agric., 55 F.3d 991, 995 (5th Cir. 1995) (noting that because the plaintiffs presented direct evidence of discriminatory animus, they "are entitled to bypass the McDonnell Douglas burden-shifting framework commonly applied in discrimination cases and proceed directly to the question of liability"). In such "direct evidence" cases, "the burden of proof shifts to the employer to establish by a preponderance of the evidence that the same decision would have been made regardless of the forbidden factor." Brown v. E. Miss. Elec. Power Ass'n, 989 F.2d 858, 861 (5th Cir. 1993).

The district court's summary judgment in favor of TDH rested on two grounds. First, the district court held that Fierros failed to establish the ...