*4 GARWOOD, Before EMILIO M. GARZA DEMOSS, Judges. Circuit GARZA, Judge: M. Circuit EMILIO Fayette Long Plaintiffs and Jeanell Reavis granting appeal district court’s order De- College’s motions for sum- fendant Eastfield mary judgment. part, affirm in reverse We part, in and remand.
I employed by Eastfield
Plaintiff Reavis was in Human Re- College as an assistant misplaced a file room sources Office. Reavis supervisor, key belonging to her immediate Kathy previously com- Sawa. Reavis had racially college officials about the plained to discriminatory conduct of the Director of the Office, Kelley.1 Kate Be- Human Resources yell at feared that would cause Reavis Reavis, heritage, speak Spanish, Hispanic did not and thwarted her a woman of asserts she woman, Kelley, re complaints an African-American attempts to file harassment slurs, peatedly subjected her to racial forced her co-workers. tasks, perform demeaning berated because Dallas, City Cir. key, F.2d lost Reavis about the learned if she 1993). Summary judgment appropriate other key was in her told Sawa genuine as to is no issue which there cases in contacted Plaintiff then purse. entitled fact and the movant is key. material duplicate obtaining about matter of law. Fed. judgment as a by Eastfield employed Long was 56(c). employment discrimi In an R.Cxv.P. Facility Divi- Services secretary in the aas case, genuine focus on whether nation we previously complained Long had sion. in the defendant exists as to whether issue sexually discrimi- about college officials plaintiff. tentionally discriminated supervisor, immediate of her natory conduct at Armstrong, 997 F.2d 65-66. receiving re- Reavis’s Upon George Clark.2 key, without Long, duplicate quest for a A key codes knowledge, obtained Clark’s assert that the Long and Reavis first employee Lenny King, necessary for granting Division, erred in district court to cut the Building Maintenance Collеge on gave favor key and it duplicate key. King cut retaliation. Title VII claims unlawful who then it to Long, took who prima facie ease plaintiff A establishes that she Reavis told Sawa gave toit Sawa. *5 (1) by proving that she unlawful retaliation key purse. The next in her found the had (2) VII, by activity protected Title King engaged in Clark, and upon information from day, occurred, employment action Tommy that an adverse supervisor, Galle- King’s immediate (3) link between the that a causal existed key. and duplicate Clark gos, learned about activity employ and the adverse protected report of thе incident a written submitted Inc., College, v. action. McMillan Rust Robert ment College President Dr. Eastfield Cir.1983). (5th An em 1116 710 F.2d recommending Long’s termination. Agüero, by activity protected engaged Agüero, ployee has in report to Kelley a similar submitted (1) “opposed any if Title VII she has either After recommending Reavis’s termination. employment prac unlawful practice made an and state- reports written reviewing these (2) charge, Sawa, “made a King, Title VII or and tice” Long, ments from testified, assisted, in participated Long and Reav- Gallegos, Agüero terminated proceeding, or investigation, in an against East- mаimer suit Long and Reavis filed is. 42 Title VII. U.S.C. hearing” under Long Title VII College. asserted field 2000e-3(a). of discrimination, opposition clause § The based on gender claims for 2000e-3(a) employee to dem requires § and hostile retaliation of theories unlawful at a “reasonable onstrate that she had least Title Reavis asserted work environment. practices opposed were that the she and na- belief’ gender discrimination claims for VII Payne Wholesale discrimination, v. McLemore’s based on unlawful. also origin tional Stores, 1130, 1140 654 F.2d retaliatory discharge hostile & Retail and theories of Cir.1981). of Upon thе motions work environment.3 granted College, the district court previously have held We dismissing Long and summary judgment burden-shifting applicable to Title structure Long claims. Reavis’s Title VII eases, as set forth disparate treatment VII appeal. timely of filed notices Green, 411 Douglas Corp. U.S. McDonnell 1824-25, 802-04, 93 S.Ct. II (1973), applicable to Title is also L.Ed.2d McMillan, retaliation grant VII unlawful cases. a court’s review district We Therefore, plain- once the at 1116. Armstrong novo. of de charges joke, thwarting criminal her efforts file Long 2. that Clark told offensive asserts Gallegos. Tommy condoms, co-worker Long involving presence. fur- in her disаpproval, her ther asserts after she voiced her, increasingly other federal hostile towards Reavis filed Clark became Both co-workers, relevant to the presence claims which are not belittling of state her in the law appeal. rating, downgrading performance instant her ease, time, prima alleging a the burden ciáis a third tiff establishes facie down- Clark production shifts the defendant to artic- graded performance her rating in retaliation non-retaliatory legitimate, ulate a reason complaints. Viewing for her this evidence in action. Id. If the adverse light Long, most favоrable to we find that true, which, evidence if defendant introduces presented has sufficient evidence to permit would conclusion adverse a fact create issue as to her “reasonable nondiseriminatory, employment action was belief’ that conduct Clark’s violated Title question the focus to the ultimate shifts VII. unlawfully whether the retaliated defendant plaintiff. Id.4 summary judgment evidence also repeatedly establishes that Reavis com plained to college Kelley, officials about al We must first determine whether leging Kelley’s actions created hostile prima fa- and Reаvis have established Kelley work environment and that treated cie cases for retaliation. The sum unlawful differently her Hispanic because her heri mary judgment evidence establishes that tage. Kelley Reavis’s affidavit asserts that Long complained college officials about constantly subjected slurs; her to racial sexually joke Long’s explicit told Clark in Kelley Reavis testifies that her berated be that, Long’s presence. affidavit asserts after speak Spanish, brought cause she did not learning Long’s complaint, required Clark speak Spanish, a book on how to and forced provide report that he had never Kelley Spanish to communicate with required previously. Long also testifies that person through electronic mail. Reavis’s Clark her in front male belittled co-work affidavit also claims that told her that attempt ers and interfered with her to file *6 against she intended to retaliate Reavis for charges campus police against with criminal filing complaints, and that on one occasion response male In to a co-worker. these inci Kelley thereafter discharge threatened to dents, Long again complained college to offi dumpster her unless Reavis climbed into a cials, alleging that actions Clark’s created papers. look for certain Viewing this evi hostile work environment and that Clark Reavis, light dence in the most favorable differently employees treated her from other presented we find that has sufficient gender. because of After Clark her learned evidence to fact complaint, create a issue as to her downgraded Long’s about this he performance rating Kelley’s from “reasonable belief’ that “exceeds” to “satis conduct vio factory.” Long complained college Title VII. offi- lated glanсe, establishing At the first ultimate issue in an standard unlaw- The for the “causal link” ful the dis- retaliation case—whether defendant prima plaintiff's element facie case is against plaintiff plain- criminated the because the McMillan, stringent. See much less 710 F.2d at engaged by protected tiff conduct in Title VII— (holding plaintiff's 1116-17 evidence sufficient to plain- seems to the third of identical element the prima causation of meet element facie case but prima tiff's facie case—whether a causal link prove question ultimate insufficient “but employment the exists between adverse action causation). recog for” has The Eleventh Circuit However, protected activity. and the the stan- explicitly, holding nized this that distinction proof applicable questions dards of to these differ may plaintiff satisfy the "causal link” element of significantly. prima showing protect by facie his case The ultimate determination an unlawful re activity employment ed and the adverse action protected taliation case whether the conduct wholly not v. "were unrelated.” Simmons Cam by Title a “but VII was for” cause of the adverse Educ., 1187, County den Bd. 757 F.2d 1189 employment Temple decision. McDaniel v. In Cir.), denied, 981, (11th cert. 474 106 S.Ct. U.S. Dist., 1340, (5th dep. Sch. 770 F.2d 1346 Cir. 385, (1995). Though 88 L.Ed.2d we need 338 1985). words, plaintiff's pro In if a other even today adopt approach, not the Eleventh Circuit's tected conduct is element de substantial in a prove plaintiff note we do that a need not that employee, fendant's decision to terminate an no protected activity her the motivat was sole factor liability for unlawful retaliation arises if die em ing employer’s challenged the decision in order ployee would the have been terminated even in prima to establish the "causal link" element of a protected absence of the Jack conduct. v. Texaco Ctr., 1129, (5th Joseph Hosp., case. De St. Research 743 facie Anda v. F.2d 1131 Cir. 1984). (5th Cir.1982). n. 12 857 by workplace. Long employees committed
Accordingly, we find that both Circuit, by “in they As engaged that observed the Seventh established Reavis have employer’s as by Long and furtherance business” activity Title VIL5 protected respondeat superior by pect subsequently terminated doctrine of Reavis were liability they suggests requires that a direct rela College; thus have established allegedly discriminatory employment tionship between the of an adverse the occurrence determine, Shag employer’s and the business. with re- conduct must now action. We (7th Co., Upjohn F.2d er v. Long whether a spect to both Cir.1990). In with this observa protected accordance exists between causal link tion, distinct lines of case law have devel two Long al- their terminations. activities and addressing liability oped employer for Clark, supervisor, her retaliated leges that wrongful termination decisions based on recommending her against termi- her complaints or recommendations of other em Kelley, alleges su- her nation. Reavis ployees. recom- pervisor, retaliated mending The termination. first eases em line оf involves establishes evidence actions, liability ployer complaints, for the complaints Clark and Reavis filed ordinary employees. and recommendations of Kelley, Kelley knowledge had that Clark previously employer not We have held complaints, that Clark and Kel- of these an employment under Title liable VII ley and Reavis be recommended complaint based on the false of an decision learning of after these com- terminated ordinary employee, employer rea where Accordingly, have no trouble plaints. we sonably allegation believed the and acted evidence, prima finding facie sufficient City good Waggoner it in faith. Gar a causal link purposes, to establish be- case Tex., land, Cir. F.2d 1165-66 protected activities tween and Reavis’s 1993). ordinary employees Because do Kelley’s recommendations.6 and Clark and control over status of have However, alleges nor neither co-employees, employee’s one recommenda Agüero, of Eastfield Col- the President employee tion that another be terminated lege, the final termination deci- who made normally employ be will so unrelated sions, to retaliate discriminate intended be “in er’s that it cannot deemed business *7 any way. thus against them We must Shager, See 913 F.2d furtherance” thereof. Aguero’s actions severed determine whether (“If employee at one low-level makes 405 allegedly retalia- the causal link between the another, advances his conduct is so sexual to Kelley tory of Clark and recommendations employer’s to the unrelated business Long the terminations of and Reav- and final ordinarily lia employer will be excused from inquiry overlap of is- is. This involves the respondeat supe bility under the doctrine agency. sues of and causation rior.”). cases, any wrongful In such intent ordinary employee part on the of the is VII, are under Employers liable Title imputable employer. the properly agency prin law with common accordance employer line employees committed The second of cases involves ciples, the acts for actions, liability complaints, employer’s busi for the and rec- in the furtherance the 873, supervisory employees. Corp., 3 ommendations of Steego ness. Moham v. F.3d — (5th denied, Cir.1993), an previously employer We have held liable 876 cert. U.S. (1994). -, employment Title decision L.Ed.2d 658 under VII fоr 114 S.Ct. 127 by supervisory employees, However, employers where the we do not hold liable made discriminatory supervisory employees agents were of the every act under Title VII See, (discussing supra 6. note the difference be- e.g., v. Found. Ex See 4 Hochstadt Worcester Inc., perimental Biology, F.Supp. prima 324 425 causal element of facie tween the link the " (D.C.Mass.) (noting practice ‘opposed question of for” cau- and the ultimate “but case sation). employment practice’ made an unlawful is broad enough using employer’s ... inter to include the 'd, mechanisms”), grievance 222 nal aff (1st Cir.1976).
307
rеgard
with
employer
allegedly
the
retaliatory intent
Long
and
and
plaintiff. Flanagan
status of the
v. A.E. Reavis’s terminations would be broken. See
Ctr.,
Henry Community Health Servs.
(“Lehnst
Shager, 913
at
F.2d
did not fire
Cir.1989).
F.2d
1234-36
Because Shager;
the Career Path Committee did. If
supervisory employees often have the author
it did so for reasons
by any
untainted
preju-
ity
hire,
to make the decisions to discipline,
dice
workers,
Lehnst’s
older
employees,
and fire subordinate
superviso
causal link
prejudice
between that
Shag-
and
ry employee’s
decision
will
terminate
often
discharge
severed_”).
er’s
If,
is
on the
be made in
employer’s
furthеrance of the
hand, Agüero
other
did not conduct his own
(“[A]
Shager,
business. See
unlawfulretaliation.
it i~ "of such
that reason
able and fair-minded men in the exercise of
impartial judgment might
reach different
Boeing Co.,
conclusions."
309
complaint,
plaintiff
EEOC
and where
degree
testi-
the
to which the conduct unreason-
supervisor
fied that her
increasingly
ably
became
interferes with an employee’s
per-
work
complaint).
abusive after
According-
EEOC
-,
formance.
Id. at
fact remains as to College whether Eastfield Long’s sole basis for her hostile unlawfully against Long retaliated work Reav- environment claim is joke an offensive by terminating employment. is concerning The condoms which Clark told in her court erred granting presence. district Eastfield Col- Supreme previous Court has lege’s summary motions for judgment ly on contrasted physically threatening or hu Long and Reavis’s miliating conduct, claims for unlawful retali- which support will a claim ation. for hostile environment, work from a “mere utterance,” offensive which will not. Id. We
B find that alleged joke the in this ease is exactly type the of mere offensive utterance Long next asserts that the dis not, itself, which should support a clаim trict court by granting erred Eastfield Col for hostile work DeAngel environment. See lege’s motion for on is v. El Ass’n, Paso Mun. Police 51 hostile work environment claim.9 To state a Officers (5th Cir.) F.3d 595 (finding ten offensive claim for relief Title VII for gender under police articles newspaper insufficient to theory discrimination on a based of hostile support a hostile claim), work environment environment, (1) plaintiff work prove must — denied, U.S. -, cert. 473, 133 116 S.Ct. (2) belongs protected class, that she to a (1995). L.Ed.2d 403 Accordingly, we hold subject harassment, she was to unwelcome that the district court did err in (3) granting (4) sex, that the harassment was based on summary judgment fоr College Eastfield on term, that the harassment affected a condi Long’s Title VII hostile work environment (5) or privilege employment, tion claim.10 employer knew or should have known about the harassment and failed to take prompt remedial action. Nash v. Electros Ill Inc., Sys., (5th
pace Cir. 1993). In actionable, order to be the chal Based foregoing, on the we AFFIRM the lenged conduct must create an environment district court’s order insofar as the district that a person reasonable would find grants hostile court summary judgment for East- Inc., or abusive. Sys., Harris v. College field and Reavis’s Title VII Forklift 17, -, 367, 370, 126 U.S. 114 S.Ct. L.Ed.2d hostile work environment claims. We RE- (1993). Whether environment hos is VERSE the district court’s order insofar as depends tile abusive totality on a cir grants district court summary judgment cumstances, focusing on factors such as the for on Long and Reavis’s frequency conduct, severity of the Title VII unlawful retaliation claims. We conduct, degree to which the conduct is REMAND to the district court for further physically threatening or humiliating, and proceedings consistent with opinion. this 9. Reavis’s brief seeks reversal of complaints college district supra with officials. See Part grant summary judgment court's on her "Title Payne II.A.1. In v. McLemore’sWholesale & Re reprisal origin VII and national discrimination Stores, explicitly rejected tail we position only claims.” Her brief addresses her claim proof practice of an actual unlawful unlawful retaliation. Because she does not ar necessary to state a claim unlawful retalia gue her hostile work environment claim in her Further, tion. F.2d at scope 1137-41. brief, she appeal. has waived that claim on Unit finding conduct Long's relevant to our Maldonado, ed States v. 42 F.3d 910 n. 7 "reasonable belief” is much than broader Clark’s 1995). Cir. joke. condom joke, In addition to condom Long complained college officials that finding not, 10. Our Clark joke that Clark's condom will itself, differently treated support gender based on her Title VII hostile work environ- *10 ment claim is that not Clark retaliated downgrading inconsistent with our earlier finding Long reasonably that performance rating believed that Clark's after he learned of her conduct violated Title VII complaints. when she filed her Rather, “op- say the discriminatory. I would in concurring DeMOSS, Judge, Circuit third protect is intended position” clause part. in dissenting part and the are not themselves employees who party opinion panel II.B. of the in Part I concur practice” employment “unlawful of the victim the district majority affirms in the
wherein by speaking practice “oppose” that who but judgment in favor summary grant of court’s against it or writing reports or out it envi- work College on the hostile Eastfield of superior the circum- to a by orally reporting Reavis. I and of both claims ronment employ- constituting an “unlawful stances however, dissent, Part II.A. from respectfully in clause is opposition practice.” ment grant the opinion which reverses panel relief. blower” a form of “whistle effect court in district judgment the summary of “unlawful the favor of the work with Finally, going are if we Long and Reavis. of claims retaliation” element, make we should “reasonable belief’ my amazement at express utter I write Long and is not whether that the test clear opinion cre- panel the which conundrum the a reasonable subjectively entertained (I hand, panel concludes the one ates: On the belief, average person rather whether the but jury could no correctly) think that reasonable as- in the circumstances similarly situated facts and circumstances the that conclude reasonably by Long and Reavis would serted could constitute by Long and Reavis alleged practice employment that unlawful believe an on sex or based environment a hostile work (1) nature of the the limited existed. Given hand, panel the the other But on race. (2) case; the this sex in to race or references (I incorrectly) that the same think concludes in this the incidents infrequency in time of that jury could conclude reasonable (3) in the claims case; specificity lack the that belief’ the a “reasonable Reavis had (4) Reavis; period of time the discrimination alleged actions constituted which events elapsed between the which support or sex sufficient on race based unlawful and to be asserted and Reavis employer. against their claim retaliation complaints and be- registering of their the in text of U.S.C. nothing the is There complaints and registering of their tween 2000e-3(a) suggest possibly could which § (5) termination; that the sum- final belief’ subjective “reasonable that that showed mary evidence the basis that suffice employee can as by Dr. made them was decision to terminate protest as to an or opposition employee’s nothing in Agüero and is there practice. The statuto- employment unlawful Agüe- Dr. to indicate judgment evidence unambiguous: “because ry is text cleаr alleged complaints any of the ro was aware an unlaw- any practice made opposed he has environment by Long Reavis of hostile chapter.” by this practice employment ful sex, no I hold that or would on race based say says “made.” It does The statute that a reason- juror could conclude rational any practice which opposed he has “because circumstances employee in the same able is an unlaw- reasonably thinks believes he they dis- reasonably were believe that could This is one of practice.” employment ful opposing unlawful charged for (includ- courts cases where the those classic district court’s affirm practice. I would Circuit) have, regrettably our own Fifth ing favor of East- summary judgment in grant of statutory view, provision my read into claims. College on the retaliation field lan- is not there circumstance itself. guage of the statute
Furthermore, difficulty great I have clause “opposition” seeing 2000e-3(a) give the em- § was intended recovery. ground of another ployee victim employee thinks he Obviously, who discrimination or sexual victim of racial “oppo- feeling of normally have a quite would he feels are practices that sition” to the