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.
289 F.3d 342
On this point, it is worth noting that Coggin was not entirely without remedy in this case. Specifically, he could have filed suit against the Commissionеr and the TEA in state court for declaratory or injunctive relief at the time the Commissioner refused to appoint a hearing examiner. See, e.g.,
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 thе 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.” Neverthеless, 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 Geе. 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.
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 reсommended 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 rаise 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 сausal 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 nоndiscriminatory 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 fаcie 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
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 (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 ovеr 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
B.
Gee having satisfied her prima facie burden, the Secretary must demonstrate a legitimate nondiscriminatory purpose for Gee‘s nonselection. The Secretary has satisfied this burden by offering Gibbs’ explanation that he seleсted Boyd because he believed that she would be able to get along well with the physicians, and that he had received some negative feedback on Gee from several of her coworkers. In order to survive summary judgment, therefore, Gee must demonstrate a material issue of disputed fact as to whether the Secretary‘s proffered explanation was merely a pretext for retaliation.
Gee contends that Gibbs’ explanation for her nonselection has been disingenuous and inconsistent. She points to discrepancies between Gibbs’ affidavit given during the investigation and his testimony at the administrative hearing. Specifically, she notes that although he initially denied that he participated in a meeting relating to Gee‘s position, Gibbs later admitted that
In addition to the discrepancies in Gibbs’ own testimony, Gee points to the conflict between Dr. Melvin‘s recollection that a consensus against Gee was formеd at the meeting and the testimony of Dr. Bryan, Hopkins, and Gibbs, who downplayed the significance of the meeting. Furthermore, Gee contends that when she first sought an explanation from Gibbs regarding her nonselection, he was evasive and failed to provide any specific reasons. Finally, she notes that Gibbs’ conclusion that she had some problems in communicating and working well with others is contradicted by the glowing review she received in April, when her “excellent communication skills” and flexibility in acсommodating others were praised.
The district court acknowledged that Gee‘s evidence “cast doubt” on the Secretary‘s proffered reason for Gee‘s nonselection. It held that summary judgment was appropriate, however, because in addition to proving the falsity of the proffered reason, Gee was required to establish that she was the victim of retaliation.5 We agree that “[t]he ultimate burden of persuading the trier of fact that the defendant [retaliated] against the plaintiff remains at all times with the plaintiff.” Raggs, 278 F.3d at 468. We take note, however, of the Supreme Court‘s explanation that a factfinder may infer the ultimate fact of retaliation from the falsity of the explanation. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 146-48 (2000). In such cases, a plaintiff may withstand a motion for summary judgment without adducing additional, independent evidence of retaliation. This case provides a straightforward application of this standard. The Secretary has offered a plausible nonretaliatory explanation for Gee‘s nonselection. Gee, however, has provided sufficient evidence to cast doubt on this explanation, thereby enabling a reasonable factfinder to conclude that it was false and that the decision not to hire her was already made by the end of the key meeting. Resolution of this dispute is properly within the province of the trier of fact, and therefore summary judgment was inappropriate.
III.
For the foregoing reasons, we REVERSE the district сourt‘s order granting summary judgment in favor of the Secretary, and REMAND the case for further proceedings.
EMILIO M. GARZA, Circuit Judge, dissenting:
This Title VII retaliation case requires us to determine if the appellant, Sidna Gee, has made the requisite prima facie showing of causation in order to survive Anthony Principi‘s motion for summary judgment. Specifically, we must discern whether Gee has established a causal link between her protected conduct in filing a harassment claim against Dr. John Bryan
In contrast to the majority, I believe that although Gibbs, the ultimate decisionmaker, may have received information allegedly tainted by impermissible retaliatory motives, his subsequent independent investigation severed the connection between Bryan‘s and Hopkins’ retaliatory animus and his ultimate decision not to appoint Gee to the new position. I agree with the district court‘s conclusion that a reasonable jury could not have found that Gibbs was merely Bryan‘s or Hopkins’ “cat‘s paw,” or that the reviеw process was a sham or conduit for their alleged retaliatory motives. Instead, the evidence establishes that Gibbs conducted a full and thorough review before reaching his decision not to appoint Gee to the new position.
As the majority points out, we have previously considered retaliation cases in which the person with the retaliatory motive is distinct from the person making the adverse employment decision. Long v. Eastfield College, 88 F.3d 300 (5th Cir. 1996). In Long, two supervisors, who had previously had sexual discrimination charges filed against them, recommended that two of their female employees, who had filed the complaints, be terminated for illegally duplicating several keys. The supervisors submitted their recommendations to the president of the college, who made the final termination decision. We held that, in order to survive summary judgment, the plaintiffs had to create a genuine issue of material fact as to whether the ultimate decision maker exercised independent judgment in reaching his decision. We stated: “If [the president] based his decision on his own independent investigation, the causal link between [the supervisors‘] allegedly retaliatory intent and [the employees‘] terminations would be broken.” Id. at 307. We went on to say, however, that “[i]f, on the other hand, [the president] did not conduct his own independent investigation, and instead merely ‘rubber stamped’ the recommendations of [the supervisors], the causal link between [the employees‘] protected aсtivities and their subsequent terminations would remain intact.” Id.
The facts of this case are analogous to those in Long. As in Long, Gibbs was not motivated by impermissible retaliatory motives. Gee presented evidence, however, that both Bryan and Hopkins allegedly recommended that Gibbs not appoint Gee to the new position.1 Given these facts, the majority, without any further analysis, simply concludes that Gee has established a causal link between Bryan‘s and Hopkins’ alleged retaliatory actions and Gee‘s non-selection.
The majority‘s conclusion conflicts with our decision in Long. Long stands for the proposition that a decision maker who is
Here, even though Gibbs may have received negative recommendations from Bryan and Hopkins, Gibb‘s independent investigation severed the causal nexus between the statements and Gee‘s non-selеction for the position. Gee acknowledges and the majority concedes that Gibbs consulted with the candidates’ supervisors. Gibbs also spoke with several employees within his own department and who had worked closely with Gee. Gibbs also interviewed both Gee and Linda Boyd, the candidate who ultimately obtained the position. Based on this information, Gibbs concluded that Gee was a good employee, but often absent for a variety of reasons. Thus, he decided that Gee wаs not the most qualified candidate for a position which apparently placed a premium on daily interaction with other employees. Gibbs further testified that although he took into account the recommendations made by all of the people he spoke with, the decision to hire Boyd was his own. Given this uncontested evidence, no reasonable jury could find that Gibbs merely “rubber stamped” the recommendations of Hopkins and Bryan. As such, Gee has failed to establish her prima facie case.
For the foregoing reasons, I would AFFIRM the judgment of the district court.
Roberto S. VASQUEZ; et al., Plaintiffs, Jesus De La O, Plaintiff-Appellant, v. HOUSING AUTHORITY OF THE CITY OF EL PASO, Defendant-Appellee.
No. 00-50702.
United States Court of Appeals, Fifth Circuit.
April 19, 2002.
Fernando J. Chacon, Maria Irene Hernandez, El Paso, TX, for Plaintiff-Appellant.
Edward W. Dunbar, El Paso, TX, for Defendant-Appellee.
ON PETITION FOR REHEARING EN BANC
Before KING, Chief Judge, and JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES, STEWART, PARKER, DENNIS and CLEMENT, Circuit Judges.
BY THE COURT:
A member of the Court in active service having requested a poll on the petition for rehearing en banc and a majority of the judges in active service having voted in favor of granting a rehearing en banc,
IT IS ORDERED that this cause shall be reheard by the court en banc with oral