     Case: 14-50943       Document: 00513113384        Page: 1    Date Filed: 07/13/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-50943
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
MARIA TEJADA,                                                               July 13, 2015
                                                                           Lyle W. Cayce
               Plaintiff–Appellant,                                             Clerk

v.

THE TRAVIS ASSOCIATION FOR THE BLIND,

               Defendant–Appellee.




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:12-CV-997


Before REAVLEY, OWEN, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Maria     Tejada     brought     retaliatory-hostile-work-environment                   and
constructive-discharge claims under Title VII against her former employer, the
Travis Association for the Blind (TAB). The district court granted summary
judgment in favor of TAB. We affirm.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-50943
                                      I
        TAB is a nonprofit organization in Austin, Texas, “with a mission of
employing, training, educating and empowering blind and visually impaired
individuals to gain work skills and job experiences.” Tejada, a legally blind
woman with partial vision in one eye, began employment at TAB in December
2006.
        Tejada worked in the binders department under the supervision of Sal
Guzman. Guzman made comments about how he liked Tejada’s breasts and
buttocks. On several occasions, Tejada observed Guzman kissing another TAB
employee, Clara Benavides.      Before Tejada complained about Guzman’s
behavior, there was animosity between Tejada and Benavides. Tejada believes
that Benavides treated her poorly because Guzman said that Tejada was
beautiful. Benavides called Tejada names, made vulgar insults, and on one
occasion, threatened Tejada with a knife.
        In September 2007, Guzman told Tejada that if she smoked marijuana,
she would have enough energy to have sex with Guzman and another
employee. Tejada reported Guzman’s behavior to TAB’s Executive Director,
Jerry Mayfield, and TAB’s Human Resources Manager, Renee Penz. TAB
suspended Guzman immediately, and after Tejada’s account of the incidents
was corroborated, Guzman’s employment was terminated.
        After Guzman’s 2007 termination, Tejada alleges that TAB management
and employees, including Benavides, subjected her to a hostile work
environment because she complained about Guzman and caused his
termination. We discuss Tejada’s various allegations in detail below.
        Tejada filed a charge of discrimination with the Equal Employment
Opportunity Commission (EEOC) on October 12, 2010, in which she stated
“[o]n or about August 23, 2010, I was told that management had received
complaints from my coworkers that I was harassing them. A management
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                                     No. 14-50943
official told me what happened to Sal Guzman could happen to me.” Tejada
stated that she believed TAB was retaliating against her because of her 2007
complaint against Guzman. Neither the parties nor the record indicate the
disposition of Tejada’s 2010 EEOC charge.
      On June 2, 2011, Tejada could no longer “take the stress and pressure
that [she] was forced to work under” and resigned.
      Tejada filed her second charge with the EEOC on March 1, 2012. She
alleged that TAB harassed and retaliated against her for filing a complaint
against Guzman. After receiving her right-to-sue letter, Tejada filed suit in
federal district court alleging a retaliatory hostile work environment and
constructive discharge in violation of Title VII. Tejada alleged that because
she filed an EEOC charge in 2010 and lodged a complaint against Guzman in
2007, TAB retaliated against and harassed her through disparate treatment
and isolation, threatening to suspend her without pay, and the various
confrontations and allegations involving other TAB employees.
      TAB moved for summary judgment. The magistrate judge recommended
granting the motion because the evidence did not support a prima facie case
on either of Tejada’s claims and because her constructive-discharge claim was
untimely. The district court agreed and granted TAB’s motion for summary
judgment. Tejada appeals.
                                           II
      We review the district court’s grant of summary judgment de novo. 1
Summary judgment is appropriate when “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment




      1  Etienne v. Spanish Lake Truck & Casino Plaza, L.L.C., 778 F.3d 473, 475 (5th Cir.
2015) (citing Ford Motor Co v. Tex. Dep’t of Transp., 264 F.3d 493, 498 (5th Cir. 2001)).
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                                         No. 14-50943
as a matter of law.” 2 “If the record, taken as a whole, could not lead a rational
trier of fact to find for the nonmoving party, then there is no genuine issue for
trial.” 3 The evidence should be viewed in the light most favorable to the
nonmovant, in this case, Tejada. 4
                                               III
       Tejada complains that (1) in retaliation for reporting Guzman’s
inappropriate comments leading to Guzman’s termination in 2007 and for
filing an EEOC charge in 2010, she was subject to a hostile work environment,
and (2) the harassment against her rose to such an intolerable level that she
was constructively discharged in 2011. We address each claim in turn.
                                                A
       This court has yet to determine whether a Title VII retaliation claim
based on a hostile work environment is cognizable. 5 Because Tejada failed to
establish a prima facie case of a retaliatory hostile work environment, we need
not decide this issue. 6
       To establish a prima face case of Title VII retaliation, a plaintiff must
show that “(1) he engaged in an activity protected by Title VII; (2) he was
subjected to an adverse employment action; and (3) a causal link exists
between the protected activity and the adverse employment action.” 7 “[T]he



       2   FED. R. CIV. P. 56(a).
       3Dediol v. Best Chevrolet, Inc., 655 F.3d 435, 439 (5th Cir. 2011) (citing Steadman v.
Tex. Rangers, 179 F.3d 360, 366 (5th Cir. 1999)).
       4   Etienne, 778 F.3d at 475 (citing Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014)).
       5See Fallon v. Potter, 277 F. App’x 422, 424 & n.3 (5th Cir. 2008) (per curiam); Bryan
v. Chertoff, 217 F. App’x 289, 293 (5th Cir. 2007) (per curiam).
       6   See Fallon, 277 F. App’x at 424 n.3; Bryan, 217 F. App’x at 293.
       7 Willis v. Cleco Corp., 749 F.3d 314, 317 (5th Cir. 2014) (quoting Davis v. Dall. Area
Rapid Transit, 383 F.3d 309, 319 (5th Cir. 2004)); see also, e.g., Clegg v. Ark. Dep’t of Corr.,
496 F.3d 922, 928-29 (8th Cir. 2007) (applying the standard for a prima facie case of Title VII
retaliation in the context of a retaliation claim based on hostile work environment); Noviello
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                                            No. 14-50943
plaintiff must show that the protected activity was the ‘but for’ cause of the
retaliation.” 8 Because “[e]mployers rarely leave concrete evidence of their
retaliatory purposes and motives,” 9 we may consider certain factors when
determining causation: the employee’s disciplinary record; whether the
employer followed its typical policy and procedures when managing the
employee; and the temporal connection between the employee’s conduct and
the alleged retaliation. 10            The parties do not dispute that Tejada’s 2007
complaint against Guzman for sexual harassment and 2010 EEOC charge
constitute protected activities.
          Tejada describes numerous events that she alleges amount to a
retaliatory hostile work environment. The first incident occurred two months
after Tejada’s September 2007 complaint against Guzman.                             At this time,
Tejada was working in TAB’s trouser-belts department.                                After being
temporarily reassigned to the binders department due to an equipment
malfunction, Tejada left work without permission and without providing an
explanation.             Corinne Randall, TAB’s Production Manager, subsequently
warned Tejada that if she walked off the job again, she would be subject to a
three-day suspension. Tejada did not explain to Randall why she left. Tejada
now asserts that she refused to work in binders because Benavides worked in
binders, and Tejada worried that Benavides would harass her. Tejada also
states the binders department reminded her of Benavides’s and Guzman’s




v. City of Boston, 398 F.3d 76, 88-90 (1st Cir. 2005) (same); Ray v. Henderson, 217 F.3d 1234,
1240, 1244-45 (9th Cir. 2000) (same).
          8   Willis, 749 F.3d at 318 (citing Long v. Eastfield Coll., 88 F.3d 300, 305 n.4 (5th Cir.
1996)).
          9   Nowlin v. Resolution Trust Corp., 33 F.3d 498, 508 (5th Cir. 1994).
          10   See id.
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                               No. 14-50943
harassment. There is no record evidence linking Randall’s warning to Tejada’s
complaint against Guzman.
     The second incident occurred in May 2009, nearly two years after
Tejada’s complaint against Guzman. Benavides and Tejada were involved in
a confrontation during which Benavides told Tejada to “clock out and step
outside” and blamed Tejada for Guzman’s termination. Benavides also said
that she would beat up Tejada if she saw Tejada “around town.” However, even
before Tejada complained of Guzman’s inappropriate behavior, Benavides had
engaged in similar behavior by calling Tejada names and threatening Tejada
with a knife. Furthermore, after a supervisor informed Tim Gates, the Senior
Production Manager, of the issue, Gates responded by speaking separately
with Tejada and a witness to understand the situation and then met with
Benavides in his office to inform her that such behavior was not acceptable.
Benavides said that she would no longer threaten employees. Tejada states
that Benavides’s subsequent promotion to assistant supervisor contributed to
the hostile work environment; however, the incidents of which Tejada
complains did not occur while Benavides was the assistant supervisor over
Tejada.
     The next incident occurred on April 28, 2010, when George Adams, a
TAB employee, complained that Tejada had been speaking poorly about him to
coworkers.   Randall interviewed another employee who corroborated the
information that Adams had given.        When Randall discussed Adams’s
complaint with Tejada, she denied any wrongdoing, but Randall warned
Tejada that the complained-of behavior was unacceptable and could result in
a three-day suspension if it continued. Tejada was upset by her conversation
with Randall and decided to place herself on three-day suspension. Randall
reiterated to Tejada that she had not been suspended, but Tejada left work
determined to “prove” that she had not harassed her coworkers. When Tejada
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                                No. 14-50943
returned to work, Penz, the Human Resources Manager, suspended her for
three days for suspending herself in contravention of TAB policy. There is no
record evidence linking Randall’s warning or Penz’s suspension of Tejada to
Tejada’s complaint against Guzman.
     On August 19, 2010, approximately three years after Guzman’s
termination, Tejada overheard Benavides calling Tejada a “bruja,” the word
for “witch” in Spanish, and laughing. Tejada informed her supervisor, Irene
Pineda. Pineda documented the allegation and notified Penz, who decided the
allegation did not warrant further action because it was speculation on
Tejada’s part that Benavides was talking about Tejada.        The same day,
Benavides filed a complaint against Tejada alleging that Tejada made
disparaging comments about Benavides’s family and Mexican immigrants.
      A few days later, Mayfield met with Tejada and Penz to discuss
Benavides’s complaint. Using Guzman as an example, Mayfield told Tejada
that harassment is not tolerated and can result in termination. Mayfield
advised Tejada “that she is not to laugh at, mimic, or make negative comments
to or about anyone.” Tejada inquired if Mayfield investigated her complaints
about Benavides, and Mayfield said that he had no complaints from Tejada
and that the purpose of the meeting was to discuss the complaints against her.
Again, there is evidence that the sour relationship between Tejada and
Benavides predated Tejada’s complaint about Guzman, and Mayfield’s
warning regarding termination was in the context of addressing the allegations
made by Benavides.     To the extent Tejada complains that TAB failed to
investigate her complaint against Benavides in violation of TAB policy, there
is no indication that this failure was because of Tejada’s complaint against
Guzman. There is also a significant gap in time between Tejada’s complaint
about Guzman in September 2007 and the events in August 2010.


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                                  No. 14-50943
        Tejada asserts that TAB management, including Penz and Mayfield, told
her coworkers to stay away from Tejada because she was “trouble” and that
she was forced to work in isolation. The record does not include dates for these
incidents, and there is no evidence linking these actions to Tejada’s protected
activities.
        Tejada filed her EEOC charge in October 2010. The events postdating
the charge are as follows.     On May 16, 2011, TAB employee Jose Garza
complained that Tejada would curse at him both verbally and in sign language.
Randall told Garza “to just ignore Ms. Tejada.” Human Resources concluded
because there were no witnesses to the complained-of behavior, no further
action could be taken. That same month, Ricardo Piedra, Tejada’s friend and
coworker, was called to Mayfield’s office over the loudspeaker. Tejada alleges
that “[a]t that time, [Piedra] was one of only a very few of the employees left at
TAB that would still communicate with [Tejada].” But after Piedra was called
to Mayfield’s office, “Piedra stopped speaking to [Tejada] and would simply not
respond when [she] would speak to him.” During that month, Tejada was also
issued a written warning and placed on probation for sixty days for attendance
issues. On June 1, 2011, another employee, Andy Mireles, complained that
Tejada shoved her out of his way because he accidentally hit her foot with his
cane.    Tejada maintains that all of the various allegations made by her
coworkers about her conduct are false. Tejada also alleges she continued to be
isolated from “the majority of [her] co-workers and supervisors” and assigned
to work alone.
        Regarding Garza’s complaint, after TAB’s Human Resources department
determined that there were no witnesses to the alleged behavior, no further
action was taken, an outcome favorable to Tejada. Garza’s and Mireles’s
complaints make no mention of the EEOC charge or Tejada’s complaint against
Guzman. Additionally, Tejada conceded that she had attendance problems
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                                No. 14-50943
leading up to her probation. Lastly, there is no evidence in the record that
Mayfield told Piedra to ignore Tejada, and even if he did, there is no evidence
linking this instruction to Tejada’s complaint against Guzman or Tejada’s
EEOC charge.
      Mayfield had a second “follow-up” meeting with Tejada; the parties
dispute whether this meeting occurred in September 2010 or May 2011. Either
way, it is temporally removed from both Tejada’s complaint about Guzman in
2007 and the October 2010 EEOC charge.         Tejada alleges that when she
entered Mayfield’s office, Mayfield asked her how long it had been since
Guzman had been fired.      He stated that it had been about three years.
According to Tejada, Mayfield then said that if Tejada did not stop harassing
her coworkers, she would be fired like Guzman was. Tejada again inquired
about her complaints against Benavides, and Mayfield reiterated that he had
received no such complaints and that the purpose of the meeting was to discuss
the complaints against Tejada. Like the first meeting, this meeting was part
of Mayfield’s response to the allegations that Tejada had harassed coworkers,
and there is no record evidence indicating that Tejada’s complaint against
Guzman or the EEOC charge was the but-for cause of Mayfield’s warning
regarding termination.
      For these reasons, Tejada has failed to raise a genuine factual dispute
regarding the requisite causal link between the protected activities and the
alleged retaliation.
                                      B
      Tejada also argues that the hostile work environment rose to such an
intolerable level that she was constructively discharged.




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                                       No. 14-50943
       Title VII proscribes an employer from discharging an employee “because
of” his or her “race, color, religion, sex, or national origin.” 11 “An employer ‘is
responsible for a constructive discharge in the same manner that it is
responsible for the outright discriminatory discharge of a charging party.’” 12
To establish a constructive discharge under Title VII, “a plaintiff must first
establish a prima facie case of discrimination by demonstrating that she: (1) is
a member of a protected class; (2) was discharged; (3) was qualified for the
position from which she was discharged; and (4) was replaced by a member of
an unprotected class.” 13        Tejada does not argue that she was subject to
constructive discharge “because of” her “race, color, religion, sex, or national
origin”; rather, she claims she was subject to a hostile work environment in
retaliation for her protected activities that rose to such a high level that she
was constructively discharged.               Accordingly, Tejada cannot establish
constructive discharge under Title VII’s substantive provisions. 14
       To the extent Tejada argues that she was constructively discharged in
retaliation for her protected activities, she must establish the same prima facie
case as is required for a retaliation claim. 15 Tejada’s claim relies on the same


       11 42 U.S.C. § 2000e-2(a)(1); accord Faruki v. Parsons S.I.P., Inc., 123 F.3d 315, 318
(5th Cir. 1997).
        Penn. State Police v. Suders, 542 U.S. 129, 142 (2004) (quoting 2 EEOC Compliance
       12

Manual § 612.9(a) (2002)).
       13 Faruki, 123 F.3d at 318 (citing Meinecke v. H & R Block of Hous., 66 F.3d 77, 83
(5th Cir. 1995) (per curiam) and Vaughn v. Edel, 918 F.2d 517, 521 (5th Cir. 1990)); accord
Frank v. Xerox Corp., 347 F.3d 130, 137 (5th Cir. 2003) (citing Bauer v. Albemarle Corp., 169
F.3d 962, 966 (5th Cir. 1999)).
       14  See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 63 (2006) (“The
substantive provision seeks to prevent injury to individuals based on who they are, i.e., their
status. The antiretaliation provision seeks to prevent harm to individuals based on what
they do, i.e., their conduct.”); see also Faruki, 123 F.3d at 318-19.
       15 See Harvill v. Westward Commc’ns, L.L.C., 433 F.3d 428, 439-40 (5th Cir. 2005)
(outlining the requirements for a prima facie case of retaliation based on constructive
discharge).
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                                      No. 14-50943
set of facts as her retaliatory-hostile-work-environment claim, and thus, it fails
for the reasons already stated.
                                  *        *         *
      The judgment of the district court is AFFIRMED.




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