     Case: 12-11070      Document: 00512601681         Page: 1    Date Filed: 04/18/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit
                                      No. 12-11070                                 FILED
                                                                               April 18, 2014
                                                                              Lyle W. Cayce
                                                                                   Clerk
DR. KAREN LOPEZ AUSTEN,

                                                 Plaintiff–Appellant,

versus

WEATHERFORD COLLEGE,
of the Parker County Junior College District,

                                                 Defendant–Appellee.




                   Appeal from the United States District Court
                        for the Northern District of Texas
                                 No. 4:11-CV-536




Before SMITH, DeMOSS, and HIGGINSON, Circuit Judges.
PER CURIAM:*


       Karen Austen appeals a summary judgment in favor of Weatherford



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                No. 12-11070
College on her various retaliation and discrimination claims. We affirm.


                                      I.
      This workplace dispute began as soon as Weatherford College hired Aus-
ten as a professor and Department Chair of Kinesiology in 2007. Immediately
at the beginning of the school year, Austen came into conflict with several of
her colleagues. The assistant men’s basketball coach alleged in a formal inter-
nal complaint (an “REC,” or Resolution of Employee Concern) that Austen had
made improper comments to him regarding his physique, initiated confronta-
tions with him, and often secretly took photographs of him as he was working
out. A secretary in the Kinesiology Department filed a police report alleging
that Austen had acted inappropriately with her daughter by inviting her to her
office, showing her inappropriate photos, and asking to measure her with a
measuring tape. The secretary also filed an REC alleging that Austen had
belittled her, threatened her, stalked her, and created “an unrelenting hostile
work environment on a daily basis.”
      The following summer and year, the athletic director reported concerns
regarding Austen’s aggressive and confrontational treatment of another
departmental secretary. Austen’s supervisor, a dean, shortly thereafter sent
an email reprimanding Austen for her failure to follow the college’s purchasing
policy. A few days later, a college senior vice president reprimanded Austen
for unprofessional behavior, noting that she had stormed out of his office and
interrupted an ongoing meeting. The senior vice president also began an inves-
tigation into a student’s allegation that Austen had come to her dorm room to
ask her to assert a complaint against the departmental secretary. Austen was
subsequently reprimanded for making contact with the student after having
been ordered not to, allegedly asking the student to make a false report.
Austen continued to receive reprimands or complaints for her alleged
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                                  No. 12-11070
unwillingness to participate in administration meetings and for other unpro-
fessional behavior. She was eventually demoted as department chair.
      Throughout this period, Austen filed her own RECs and complaints
against the individuals with whom she had disputes. Those grievances alleged
sex discrimination and sexual harassment among other complaints variously
lodged against the athletic director, the assistant men’s basketball coach, one
of the department secretaries, and the administration generally. In December
2008, after her demotion, Austen filed a complaint with the EEOC alleging sex
discrimination and retaliation for filing her grievances related to sexual dis-
crimination and harassment. The EEOC dismissed the case.
      In 2009, the college, without admitting liability, entered into a settle-
ment with Austen whereby she agreed to release all claims in return for the
college’s agreement, among other things, to cease all current investigations
and to remove five performance notices and disciplinary warnings from her
personnel file. The following year, however, the complaints against Austen
continued to roll in from old and new fronts. One coach complained that Aus-
ten had made false accusations about him and forced his students off of tread-
mills during class time; another adjunct faculty member asserted that Austen
had yelled at her, shut a door in her face, made inappropriate comments, and
made her feel harassed when signing payroll notifications. Another depart-
ment secretary complained that Austen had forced her to do an assignment
that would require her leaving her desk even though her boss had instructed
her to stay to answer an important phone call.
      Students complained as well. One reported that Austen had made an
inappropriate sexual comment to her when she was using an abductor
machine, stating, “Let’s see if she is loose. Let’s see if she is a virgin.” Other
students complained that Austen had threatened to count them absent and to
fail them if they did not stay after class. Finally, several witnesses complained
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to the college about an incident at the college bookstore. Multiple witnesses
reported that Austen had told an African-American student, “You’ll have to go
to another register because she [the cashier] doesn’t wait on black people,” told
an Hispanic student, “They [the bookstore] charge Hispanics 20 percent more,”
and told an overweight student, “I can tell you where the lo-cal snacks are.”
Austen also answered the bookstore phone and responded to the student’s
question by saying, “First you have to tell me if you are black or white because
it is different times for different people.”
      In May 2010 Austen received notice that the president was recommend-
ing nonrenewal of her annual contract based on six incidents of unprofessional
behavior that had occurred in the previous semester. Those incidents include
the bookstore comments, those that involved the department secretary, the
athletic director, the coach, and the adjunct faculty member and finally the
student complaint about the sexual comment while on the abductor machine.
Austen presented rebuttal evidence and was represented by counsel at the non-
renewal hearing. The Board of Trustees voted not to renew the contract.
      Austen filed a second charge with the EEOC, which was dismissed, then
filed the present suit.    She appeals the summary judgment grant on her
Title VII and the Texas Commission on Human Rights Act (“TCHRA”) retali-
ation claim, her Title VII and TCHRA sex and race discrimination claims, and
her First Amendment retaliation claim. She also appeals the dismissal of her
claim that the college violated the settlement agreement.


                                         II.
      We review a summary judgment de novo and apply the same criteria
used by the district court. Gowesky v. Singing River Hosp. Sys., 321 F.3d 503,
507 (5th Cir. 2003). Summary judgment is appropriate where the evidence
shows that there is “no genuine dispute as to any material fact” and that the
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moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a).
In Title VII cases, summary judgment is based on various burden-shifting
frameworks. If the plaintiff makes a prima facie case but the defendant prof-
fers legitimate reasons for the adverse action, the plaintiff must present some
evidence of pretext. McCoy v. City of Shreveport, 492 F.3d 551, 557 (5th Cir.
2007) (retaliation claims); Patel v. Midland Mem’l Hosp. & Med. Ctr., 298 F.3d
333, 342 (5th Cir. 2002) (sex and race discrimination claims).


                                       III.
      We begin with the Title VII retaliation and discrimination claims (and
the state equivalents) and apply the traditional burden-shifting frameworks
for summary judgment. Austen has not established a prima facie case for
either retaliation or discrimination, and even if, arguendo, she has done so, she
has failed to rebut the legitimate reasons for termination offered by the college.
      To establish a prima facie case of retaliation under either Title VII or
TCHRA, Austen must establish that she engaged in a protected activity, that
she was subjected to an adverse employment action, and that there is a causal
link between the two. McCoy, 492 F.3d at 557. The only evidence of a causal
link was that the Chairman of the Board of Trustees said that the first EEOC
complaint “was part of the overall evidence we looked at.” Austen also pre-
sented her own belief that a jury could find the reasons for nonrenewal to be
pretextual because she disputes the accounts of the underlying complainants.
      What matters is not the truth of the underlying complaints and reports,
however, but rather whether the college could legitimately have relied on them
in deciding to terminate Austen. The college could do so. In light of the over-
whelming number of documented, legitimate reasons for termination, Austen
has failed to show either a causal connection or pretext sufficient to defeat
summary judgment.
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      For Austen to prevail on her sex and race discrimination claims, she
must establish a prima facie case by showing that (1) she is a member of a
protected class; (2) she was qualified for her position; (3) she was subject to an
adverse employment action; and (4) she was replaced by someone outside her
protected class or received less favorable treatment than did a similarly situ-
ated individual not in the protected class. Okoye v. Univ. of Tex. Hous. Health
Sci. Ctr., 245 F.3d 507, 513−14 (5th Cir. 2001). Austen contests her non-
renewal and not her demotion, which was covered by the settlement agree-
ment. She provides no evidence that she was replaced by someone outside her
protected class, so she fails to make a prima facie case. Further, she offers no
competent summary-judgment evidence other than her own assertions that the
stated reasons for termination were pretextual. As with the retaliation claims,
given the overwhelming number of documented, legitimate reasons for termin-
ation, Austen has not met her burden to prove either a prima facie case or
pretext.
      We dispose of her First Amendment claims on similar grounds. Assum-
ing arguendo that Austen’s complaints about alleged sexual harassment and
sex discrimination constituted speech on a matter of public concern, she offers
no summary-judgment evidence to rebut the legitimate reasons for non-
renewal. She thus fails to provide sufficient evidence of a disputed issue as to
whether the nonrenewal was motivated by her speech. Cf. Teague v. City of
Flower Mound, 179 F.3d 377, 380 (5th Cir. 1999).


                                       IV.
      Austen claims that the college breached the settlement agreement by
removing documents about prior incidents for the purpose of using them at the
nonrenewal hearing. She maintains that the intent of the settlement was that
such documents would not be used against her in the future, an intent that the

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                               No. 12-11070
college disputes. We need not decide, however, whether the agreement con-
templated use of those retained documents because they played a minimal if
any role in her subsequent nonrenewal. The six serious, documented instances
of misconduct from the semester after the settlement agreement were the pri-
mary reasons for termination. Therefore, Austen cannot show any harm even
if the settlement agreement has been breached.
     The summary judgment is AFFIRMED.




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