                                                        United States Court of Appeals
                                                                 Fifth Circuit
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                FILED
                                                            May 17, 2007

                                                      Charles R. Fulbruge III
                             No. 05-30847                     Clerk


CHARLIE J CAMPBELL

                      Plaintiff - Appellee

     v.

GORDON R ENGLAND, Secretary, United States Department of the Navy

                      Defendant - Appellant



             Appeal from the United States District Court
          for the Eastern District of Louisiana, New Orleans
                         USDC No. 2:02-CV-3254


Before KING, DAVIS, and BARKSDALE, Circuit Judges.

PER CURIAM:*

     Defendant-appellant Gordon England, the Secretary of the

Navy, appeals the district court’s denial of his post-verdict

motion for judgment as a matter of law.      The Secretary contends

that plaintiff-appellee Charlie Campbell presented insufficient

evidence to support the jury’s verdict for Campbell on his Title

VII retaliation claim.    Specifically, the Secretary argues that



     *
          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this opinion should not be published and is not precedent except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.

                                   1
the evidence fails to establish a causal connection between

Campbell’s 1997 filing of an Equal Employment Opportunity

complaint and the Navy’s 2001 decision to require an engineering

degree for a position that Campbell sought, which excluded

Campbell from consideration.    We agree, and REVERSE and RENDER

judgment for the Secretary of the Navy.

                I.   Factual and Procedural Background

     Plaintiff-appellee Charlie Campbell, a civilian engineering

technician for the Navy Supervisor of Shipbuilding in Pascagoula,

Mississippi, applied in 1997 for a promotion to become manager of

the Quality Assurance Department.      Although the job had only been

available to engineers in prior years, the Navy decided to

advertise it as available to both engineers and engineering

technicians.    But despite being rated one of five “best

qualified” applicants, Campbell was ultimately not selected, and

an engineer, Ronald Glenn, was selected instead.     Campbell, an

African-American, filed an Equal Employment Opportunity (“EEO”)

complaint that year alleging that he was not selected because of

his race.

     Around 2000, the Navy merged the Quality Assurance

Department with the Production Controller Department, which was

also supervised by an engineer.    Glenn remained as manager of the

surviving department.1    Towards the end of the year, Commander


     1
         After the departments were combined in the merger, the

                                   2
Mary Logsdon came to the Pascagoula facility in a supervisory

role, and Campbell told her about his prior EEO complaint shortly

after she began working there.

     Approximately five or six months later, around February

2001, Glenn told Logsdon that he was retiring.    Logsdon knew that

both engineers and engineering technicians had been able to apply

for the position in 1997, but she decided to limit the

availability of the position to engineers after checking with a

Navy lawyer and supervisors to make sure that the

reclassification was allowed.    One effect of reclassifying the

job was that Campbell could not apply.    The job was advertised

nationally and was ultimately filled by Brian Johnston, an

engineer who worked in Campbell’s department.

     Believing that Logsdon reclassified the job in retaliation

for his 1997 EEO complaint, Campbell sued the Secretary of the

Navy in October 2002 alleging, inter alia, retaliatory

discrimination in violation of Title VII, 42 U.S.C. § 2000e-3(a).

After a three-day trial, the jury returned a verdict for Campbell

on this claim and awarded him $500,000 in compensatory damages.2



surviving department was apparently named the Waterfront

Operations Department, but the name was subsequently changed back

to Quality Assurance Department.
     2
         The jury found against Campbell on his Title VII claim

that the Navy discriminated against him based on his race when it

                                   3
The district court granted the Secretary’s motion to alter or

amend judgment, remitting the damages to $96,000, but denied the

Secretary’s motion for judgment as a matter of law.     The

Secretary timely appealed.

                            II.   DISCUSSION

     The Secretary contends that the district court erred in

denying his motion for judgment as a matter of law because

Campbell failed to offer any evidence showing a causal connection

between his 1997 EEO complaint and the 2001 reclassification of

the position he sought.   The district court denied the motion

because it believed that a fact-finder could infer retaliatory

intent from Logsdon’s knowledge of the 1997 job application and

EEO complaint, Logsdon’s understanding that the effect of the

reclassification would be to exclude Campbell from applying for

the job again, and the substantial overlap between the current

position and the one for which Campbell was deemed among the

“best qualified” in 1997.

     We review de novo the district court’s denial of the

Secretary’s motion for judgment as a matter of law, applying the

same standards as the district court.      Adams v. Groesbeck Indep.

Sch. Dist., 475 F.3d 688, 690 (5th Cir. 2007).     In this inquiry,

we “draw all reasonable inferences and resolve all credibility

determinations in the light most favorable to the nonmoving



failed to promote him to manager in 1997.

                                    4
party.”    Id. (internal quotation marks and citation omitted).

Moreover, the jury verdict is afforded great deference and must

be upheld unless “a reasonable jury would not have a legally

sufficient evidentiary basis to find for the” nonmovant.     FED. R.

CIV. P. 50(a)(1); Adams, 475 F.3d at 690.

     “Title VII prohibits retaliation against employees who

engage in protected conduct, such as the filing of a charge of”

race discrimination.    Fabela v. Socorro Indep. Sch. Dist., 329

F.3d 409, 414 (5th Cir. 2003); see also 42 U.S.C. § 2000e-3(a).

To establish a retaliation claim under Title VII, a plaintiff

must demonstrate (1) that he engaged in a protected activity, (2)

that an adverse employment action occurred, and (3) that a causal

link exists between the protected activity and the adverse

employment action.3    Fabela, 329 F.3d at 414.   Only the third


     3
         When analyzing Title VII retaliation cases that have not

reached a jury, courts apply the burden-shifting framework

detailed in McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973).    Once the case has been fully tried, this framework

becomes unimportant, and a court “need not . . . parse the

evidence into discrete segments corresponding to a prima facie

case, an articulation of a legitimate, [nonretaliatory] reason

for the employer’s decision, and a showing of pretext.”

Rubinstein v. Adm’rs of the Tulane Educ. Fund, 218 F.3d 392, 402

(5th Cir. 2000).    The question instead becomes “whether the

                                  5
element is at issue in this appeal.

     Causation can be established through direct or

circumstantial evidence.    Id. at 414-15; Septimus v. Univ. of

Houston, 399 F.3d 601, 607-08 (5th Cir. 2005).     If direct

evidence is used, the plaintiff need only establish that improper

retaliation was a motivating factor in the adverse employment

action.    Fabela, 329 F.3d at 415.   If circumstantial evidence is

used, this circuit has required that the plaintiff prove to a

jury “that the adverse employment action taken against the

plaintiff would not have occurred ‘but for’ [his] protected

conduct.”4    Septimus, 399 F.3d at 608.   The plaintiff may do so



record contains sufficient evidence to support the jury’s

ultimate findings.”    Bryant v. Compass Group USA Inc., 413 F.3d

471, 476 (5th Cir. 2005) (internal quotation marks and citation

omitted).
     4
         It is now established that in Title VII discrimination

cases, a plaintiff need only meet the “motivating factor”

standard even if the plaintiff is adducing only circumstantial

evidence.    See Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003);

Rachid v. Jack in the Box, Inc., 376 F.3d 305 (5th Cir. 2004).

This circuit has not yet considered whether the holdings of these

cases should be extended to Title VII retaliation cases.       See

Septimus, 399 F.3d at 607 n.7.    However, we do not address this

issue here, as neither party has raised it, and, in any event,

                                  6
by proving that the employer’s purported nonretaliatory reasons

for the employment action are pretextual and that retaliation was

the real reason.   See id. at 607; Mato v. Baldauf, 267 F.3d 444,

452 (5th Cir. 2001).   However, “[t]he plaintiff must rebut each

[nonretaliatory] reason articulated by the employer.”     Laxton v.

Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003).

     The record does not reflect that Campbell presented any

direct evidence of retaliation, which is defined as evidence that

“if believed, proves the fact [in question] without inference or

presumption.”   Fabela, 329 F.3d at 415 (internal quotation marks

and citation omitted).   The question, then, construing all

evidence in the light most favorable to Campbell, is whether

sufficient evidence existed for a reasonable jury to find that

the position Campbell sought would not have been reclassified but

for his earlier EEO complaint or whether sufficient evidence of

pretext existed to allow a reasonable jury to draw that



this case was tried as a pretext case and the jury was instructed

as to “but for” causation on the retaliation claim.     See id. at

607-08 (holding that the “but for” causation standard applied in

a Title VII retaliation case without considering the effect of

Desert Palace and Rachid because the case was litigated and tried

as a pretext case).    Although the jury was instructed as to the

“motivating factor” standard, that instruction related only to

Campbell’s unsuccessful race discrimination claim.

                                  7
inference.

     Logsdon, the undisputed decisionmaker who reclassified the

position, gave three related nonretaliatory reasons for limiting

the job to engineers.   She testified that after the Quality

Assurance Department and Production Controller Department merged,

the manager responsible for the surviving department had expanded

job duties placing a greater emphasis on the technical aspects of

the job.   Logsdon, who is a degreed engineer herself, also

testified that other areas of her job needed her focus and that

she was less able to give the newly combined department as much

oversight as it needed, so she felt that she needed a degreed

engineer in the position.   Finally, she testified that the

supervising aspects of the manager’s job require assigning work

to engineers and checking their work and that she did not think

that an engineering technician should be checking the work of a

degreed engineer.

     The crux of Campbell’s pretext argument in the district

court was that he was rated among the five “best qualified”

candidates for the manager position in 1997 and that the job that

opened in 2001 was essentially the same job, meaning that

Logsdon’s claim of needing someone with an engineering degree to

handle the expanded job duties in 2001 was untrue.   However, in

an analogous retaliation case in which an employee challenged her

employer’s requirement of a Ph.D. for a certain job, supported by

witnesses establishing that most of the job duties were ones that

                                 8
the plaintiff employee had been successfully performing for

years, this court emphatically stated that “anti-discrimination

laws are not vehicles for judicial second-guessing of business

decisions.”      Mato, 267 F.3d at 452 (internal quotation marks and

citation omitted).     The court held that the employee and her

witnesses had “done nothing more than register their disagreement

with [her boss’s] business plans,” which was insufficient to show

pretext.   Id.     Similarly, this court has deferred to an

employer’s chosen set of job qualifications unless “no reasonable

employer would have made the same decision.”      Rios v. Rossotti,

252 F.3d 375, 380 (5th Cir. 2001) (quoting Deines v. Texas Dep’t

of Protective & Regulatory Servs., 164 F.3d 277, 281 (5th Cir.

1999)).    Accepting as we must Campbell’s testimony that an

engineering degree is unnecessary to do the work of a manager,

the evidence remains insufficient to call into doubt Logsdon’s

belief that a degreed engineer was preferable or to show that no

reasonable employer would have preferred an engineering degree.

     Moreover, the evidence presented by Campbell at trial fails

to contradict Logsdon’s explanation as to why she preferred an

engineer for the role.     Campbell’s evidence mainly shows that a

non-engineer would be capable of doing the management job and

that he in particular is very capable of performing the job

duties.    For example, Campbell testified that Glenn, who got the

manager job in 1997, and Brian Johnston, who got the job in 2001,

were doing the same sorts of things that engineering technicians

                                    9
did and that they were not doing engineering work.   Further, a

coworker of Campbell’s testified that the managers did not

perform true engineering work like making calculations or

designs, but rather placed people on jobs and set priorities for

the department.   Additionally, the Navy’s 1997 job description of

the position for which Campbell was rated among the five “best

qualified” listed a variety of required technical skills and

Logsdon testified that the 2001 job description sought similar

skills, leading to the inference that Campbell was qualified to

perform the type of skills required for the job that opened in

2001.

     However, Logsdon testified that she sought an engineer in

2001 not because the basic skills needed for the management job

were different from those required for the 1997 job or those

possessed by engineering technicians, but rather because the

departmental merger placed a greater emphasis on the technical

aspects of the job.   In fact, Logsdon pointed to percentages that

were typed next to the different aspects of the 1997 job

description and said that they changed for the 2001 job.     Mere

disbelief of a witness’s testimony, without supporting evidence,

is insufficient to carry a plaintiff’s burden,   Mato, 267 F.3d at

451-52, and none of Campbell’s evidence calls into doubt

Logsdon’s belief that the merger brought more of a technical

focus to the management job, even if the fundamental skills

needed for the job were unchanged.   Nor does any evidence

                                10
challenge Logsdon’s testimony that she had less time available to

oversee the department herself and that she preferred relying on

a degreed engineer rather than a technician to run the

department.   Campbell may have proved that an engineering degree

was unnecessary and that he could have performed the job well

himself, but he failed to identify any evidence that shows that

Logsdon’s preference for a degreed engineer was phony and merely

a pretext for retaliation against Campbell.

     Campbell also argued to the district court that Logsdon

began looking into reclassifying the position only five or six

months after she found out about his 1997 EEO complaint,

establishing temporal proximity between the protected activity

and the reclassification from which causation can be inferred.

But while close timing between an employee’s protected activity

and an adverse employment action can establish a prima facie case

of retaliation, close timing alone is insufficient to establish

pretext.   See Strong v. Univ. HealthCare Sys., 482 F.3d 802, 808

(5th Cir. 2007); Swanson v. Gen. Servs. Admin., 110 F.3d 1180,

1188 (5th Cir. 1997).   Additionally, it is not clear that a five-

or six-month time lapse would be sufficient to draw such an

inference, as this circuit has only allowed lapses of up to four

months to go to the jury as evidence of pretext, Evans v. City of

Houston, 246 F.3d 344, 354 (5th Cir. 2001), and the Supreme Court

has cited with approval cases holding that three- and four-month

spans were too long to show pretext, Clark County Sch. Dist. v.

                                11
Breeden, 532 U.S. 268, 273 (2001).    And in this case it is

undisputed that Logsdon’s thoughts of reclassifying the job began

after the prior job occupant decided to retire, which Logsdon

only found out about five or six months after Campbell told her

of his 1997 complaint, making any inference of pretext from the

timing alone far less reasonable.

     Campbell further argued that Logsdon testified that she

discussed his EEO complaint with her supervisors in connection

with the reclassification decision, leading to the inference that

the acts were related.   As the trial transcript shows, however,

Logsdon explicitly denied that she did so, stating only that she

talked to a lawyer and her supervisors about whether limiting the

position to engineers was allowed.

     Finally, Campbell argued that Logsdon’s decision conflicts

with Navy personnel regulations.     At most, though, this indicates

that Logsdon incorrectly determined that she was allowed to limit

the job to engineers, not that she was motivated by retaliation

against Campbell because of his 1997 EEO complaint.    Logsdon

testified that she believed that the reclassification was allowed

and checked with a Navy lawyer and her supervisors to ensure that

it was, and Campbell identifies no evidence to the contrary.

     In sum, insufficient evidence existed for a reasonable jury

to determine that Logsdon’s reasons for reclassifying the

management position were pretextual or that but for Campbell’s

1997 EEO complaint, the job would have remained open in 2001 to

                                12
engineering technicians.

                           III.   Conclusion

     For the foregoing reasons, we REVERSE the district court’s

denial of the Secretary’s motion for judgment as a matter of law

and RENDER judgment in favor of the Secretary of the Navy.




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