                   IN THE UNITED STATES COURT OF APPEALS

                           FOR THE FIFTH CIRCUIT

                           _____________________

                                No. 95-20463
                           _____________________



MARY ANN PATTON,

                                                    Plaintiff-Appellee,

                                   versus

SCHLUMBERGER TECHNOLOGY CORPORATION,

                                             Defendant-Appellant.
_________________________________________________________________

      Appeal from the United States District Court for the
                    Southern District of Texas
                           (CA-H-93-641)
_________________________________________________________________
                          August 9, 1996

Before POLITZ, Chief Judge, and JOLLY and BARKSDALE, Circuit
Judges.

E. GRADY JOLLY, Circuit Judge:*

     In this retaliation case, Schlumberger Technology Corporation

appeals a judgment entered in favor of Mary Ann Patton.          The jury

found that Schlumberger had retaliated against Patton by firing her

almost two years after she filed--and more than fourteen months

after       she   dropped--an   EEOC   claim   alleging    sex   and   age

discrimination.        The jury found $500,000 in damages, but the


        *
      Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
district   court   reduced   the   award   to   $333,552.08,   including

$33,552.08 in stipulated backpay, and $300,000 in compensatory

damages, the maximum amount allowed under 42 U.S.C. § 1981a(b)(3).

We hold that the evidence is insufficient to support the jury's

verdict, and therefore reverse and render.

                                    I

     Patton began working for Schlumberger in February 1975 as a

purchasing clerk. In 1986, Schlumberger laid off Patton, allegedly

as part of a larger reduction in force.           Patton filed an age

discrimination charge with the EEOC claiming she had more seniority

than another person in her office, and consequently should not have

been terminated.    Two weeks later, Patton was re-instated at a

different location.   She subsequently dropped the EEOC charge.

     In 1989, Patton requested and was granted a transfer to the

Houston Computing Center as a data services clerk.       Jim Plato was

the manager of the center and was Patton's supervisor.         In March

1990, Patton's annual performance appraisal by Plato stated that

Patton needed to improve the distribution of products to customers.

On July 24, after finding seven unmailed products near Patton's

desk, Plato prepared a memo placing Patton on probation until

September 30.   On July 31, Bobby Foret, Plato's supervisor and the

Data Services Regional Manager, came to Houston to meet with Patton




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about her probation.     Both Plato and Foret promised to remove the

probation memo from Patton's file if her performance improved.

     On   August   10,   Patton   sent    a   letter   to   Rick   Ingalls,   a

Schlumberger personnel manager, to rebut the probation memo.                  On

that same day, she filed an EEOC charge complaining that her

probation violated Title VII and the ADEA.             Both Foret and Plato

testified that after receiving a copy of her letter to Ingalls,

they decided they must keep the probation memo in her file even if

her performance improved, to document what had led to Patton's

probation.     They concluded that her letter to Ingalls, standing

alone in her file, would not have made sense.               Patton, however,

testified that Plato, upon receiving a copy of the letter to

Ingalls, commented that he would have to "build a case" against

Patton.     In any event, Patton's performance improved and she was

taken off probation, but the probation memo was never removed from

her file.

     In February 1991, Pat Parno replaced Plato as manager of

Houston Computing Center. Patton's annual performance appraisal in

March 1991 indicated "some friction with co-workers" and "some

problems [with distribution of products] earlier in the year,

significant improvement in second half."            A few weeks after her

annual review, Patton received a merit raise.           In May 1991, Patton

withdrew her EEOC charge because of her favorable impression of




                                    -3-
Parno as a manager, including his frequent use of thank-you notes

to encourage Patton.        In the months immediately following the

withdrawal of her charge, she received thank-you notes for her

cost-cutting efforts (July), her "last minute efforts" on monthly

activity call-in results (August), and the improving quality of her

invoices (September).

     The   noted   improvements      appear    to   have   been   short-lived,

however.    In October, a mid-year performance review indicated

problems   with    her   attitude,    her     organizational      skills   (and,

consequently, her ability to do her job quickly), her level of

initiative, and her ability to keep up on job knowledge.1             In April

1992, in Patton's annual performance review, Parno rated her below

standard in quantity of work and cooperation.              It was around this

time that Patton had a confrontation with Karel Grubbs, a log

analyst who was Patton's acting supervisor in Parno's absence.

Patton testified that when she complained of her inability to take

vacations when she wanted because of a change in her schedule,

Grubbs said, "That's the idea bitch.           You're as good as gone.        My

objective from Pat Parno is to get rid of you, and consider

yourself as good as gone." It is uncontested, however, that Grubbs




      1
       Patton nevertheless received another thank-you note from
Parno in March 1992 for advising Parno of upcoming vacation dates.




                                     -4-
did not refer to the EEOC charge, and that Grubbs had no authority

to terminate Patton.

     In May 1992, Parno sent her another note thanking her for

advising him of a delay in some reports.      In July 1992, Parno

learned of pending lay-offs in the data services area.     Company

policy provided that employees with unsatisfactory performance

reviews and no significant improvement would be discharged prior to

any lay-offs.   Thus, on July 27, 1992, Schlumberger discharged

Patton.




                               -5-
                                    II

       Patton brought this suit in March 1993, claiming that she was

terminated because of her age and sex, and in retaliation for

filing an EEOC charge, in violation of the ADEA and Title VII.

Patton withdrew her Title VII sex discrimination claim prior to

trial.       The jury returned a verdict for Schlumberger on Patton's

ADEA claim, but for Patton on her retaliatory discharge claim. The

jury found $500,000 in damages.       Because the Civil Rights Act of

1991    limits    compensatory   damage   awards   for   emotional   pain,

suffering, and mental anguish to $300,000, 42 U.S.C. § 1981a(b)(3)

(1994), Patton's motion for entry of final judgment sought a damage

award totaling $333,552.08 in damages, including $33,552.08 in

stipulated backpay and $300,000 in compensatory damages.              The

district court entered final judgment awarding the $333,552.08 to

Patton, and $50,000 in attorneys' fees.            After Schlumberger's

motion for judgment as a matter of law and alternative motions for

new trial or remittitur were denied, it filed a timely notice of

appeal.2



         2
       We review a jury verdict for sufficiency of the evidence
under the Boeing v. Shipman, 411 F.2d 365 (5th Cir. 1969) (en banc)
standard, Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 993 (5th Cir.
1996) (en banc), viewing the evidence and all reasonable inferences
in the light most favorable to the verdict.       Rideai v. Parkem
Indus. Services, Inc., 917 F.2d 892, 897 (5th Cir. 1990).




                                    -6-
                                              III

      Both    Title       VII    and   the      ADEA     prohibit     an    employer    from

retaliating against an employee for filing an EEOC claim.                            See 42

U.S.C.    §   2000e-3(a);         29   U.S.C.       §    623(d).      This    circuit    has

previously      held       that    the       McDonnell       Douglas       burden-shifting

structure     applies       to    retaliation           claims.     Long     v.   Eastfield

College, No. 96-10526, 1996 WL 366004 at *2 (5th Cir. July 1, 1996)

(citation omitted).             A plaintiff establishes a prima facie case of

retaliation by showing that: (1) she engaged in activity protected

by   Title    VII    or    the    ADEA;      (2)    an    adverse     employment     action

occurred;     and    (3)    there      was    a     causal   connection       between    the

protected activity and the adverse action.                         Grizzle v. Travelers

Health Network, Inc., 14 F.3d 261, 267 (5th Cir. 1994) (citations

omitted).     Once the plaintiff establishes a prima facie case of

retaliation, the burden of production shifts to the defendant to

proffer a non-discriminatory reason for its action. Id. (citation

omitted).     If the defendant meets this burden, the plaintiff must

demonstrate     that       the    defendant's           articulated    rationale       was   a

pretext   for       retaliation.          Id.        (citation      omitted).       Once     a

discrimination case has been fully tried on the merits, "the

ultimate issue is whether the [sic] there was sufficient evidence

for a reasonable trier of fact to conclude that the official reason

for [the] discharge was `pretextual', and that the true reason




                                              -7-
therefor was retaliation for her complaints of age discrimination."

Id.

      In order for us to uphold a finding of retaliation the

evidence must be sufficient to "demonstrate that `but for' the

protected activity, she would not have been discharged."                      Id.

(citing Shirley v. Chrysler First, Inc., 970 F.2d 39, 43 (5th Cir.

1992) (citing Jack v. Texaco Research Ctr., 743 F.2d 1129, 1131

(5th Cir. 1984)).       According to Jack, "Whether or not there were

other reasons for the employer's action, the employee will prevail

only by proving that `but for' the protected activity she would not

have been subjected to the action of which she claims."               Jack, 743

F.2d at 1131. In other words, even if a plaintiff's protected

conduct is a substantial element in a defendant's decision to

terminate an employee, no liability for unlawful retaliation arises

if the employee would have been terminated in the absence of the

protected conduct.      Id. at 1131.

                                        IV

      Schlumberger   argues      that    the   jury   verdict   was   based   on

speculation and surmise because there was no evidence of any

"causal nexus" between Patton's EEOC charge in August 1990 and her

dismissal   in   July    1992.      We       agree.    First,   although      not

determinative standing alone, the nearly two-year time period

between Patton's filing of her EEOC charge and her dismissal--and




                                        -8-
the fourteen-month time period between the dropping of the charge

and       the     dismissal--creates     a     strong       presumption        against

retaliation.3        Among previous discrimination cases in this circuit

alleging retaliation for the filing of an EEOC charge, the longest

interval between filing and termination has been fourteen months.

Shirley, 970 F.2d at 41.              In Shirley, however, the employee's

supervisor made disparaging references to her concerning her EEOC

charge at least twice a week, and alleged performance problems

appeared only after she filed the charge.                      Id. at 43. These

incriminating facts were critical evidence tying the discharge to

protected activity, evidence totally lacking in Patton's case.                     In

sum, we find Patton's claim of temporal proximity, without more

evidence        supporting     causation,      is     insufficient        to    prove

retaliation.

      Although Patton points to other evidence, that evidence does

nothing to bridge the time gap so as to establish a causal

connection        between    her   discharge   and    her   protected     activity.

Parno,      for    example    (the   supervisor      responsible   for     Patton's

dismissal), never mentioned the EEOC charge, was not her supervisor

when she filed the charge, and was not aware that the charge had

been withdrawn.          Indeed, Patton admitted that Parno initially


      3
     Patton's dismissal occurred almost six years after she filed
her first EEOC charge in 1986.




                                        -9-
treated her fairly and wrote her thank-you notes and comments of

encouragement.    She also admitted on cross-examination that she

could not say that Parno's treatment of her changed when she

withdrew the EEOC charge, as she had claimed on direct examination.

Furthermore, the record reveals no evidence that Plato, Patton's

former supervisor, was hostile or negative toward her following the

filing of the charge. Patton only connected Plato's "build a case"

comment as responsive to Patton's own rebuttal memo to Ingalls, not

to the EEOC charge.

     Finally, our review of the record convinces us that Patton did

not seriously dispute the company's proffered reason for her

discharge--i.e., she did not demonstrate that the defendant's

articulated rationale was without merit and therefore was merely a

pretext for retaliation.      Patton's performance problems were well

documented    before   she   filed    an    EEOC   charge.   She   did   not

successfully challenge the factual basis for her unsatisfactory

performance rating leading to her dismissal concerning the quantity

of her work and her lack of cooperation, nor did she offer evidence

that disputed the objective facts underlying her poor performance

appraisals.   Furthermore, she did not show any disparate treatment

in the application of the company's policy of dismissing poor

performers in advance of a layoff.           In short, Patton completely

failed to adduce evidence, as was her burden, that her termination




                                     -10-
would not have occurred but for her having engaged in protected

activity.

                                V

     The judgment of the district court is REVERSED and judgment is

RENDERED for Schlumberger Technology Corporation.

                                            REVERSED and RENDERED.




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