     Case: 15-51111      Document: 00513615537         Page: 1    Date Filed: 07/29/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-51111                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                            July 29, 2016
GEORGE CHAVEZ,                                                             Lyle W. Cayce
                                                                                Clerk
              Plaintiff – Appellant,

v.

CITY OF SAN ANTONIO,

              Defendant – Appellee.




                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 5:14-CV-84


Before HIGGINBOTHAM, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       George Chavez, a police officer for the City of San Antonio, alleges that
he was subjected to harassment after he began dating his supervisor’s ex-wife,
and to retaliation after he complained about the harassment, including most
significantly his transfer out of the police academy. Chavez appeals the district
court’s summary judgment in favor of the City, arguing that the district court



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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applied an overly stringent but-for causation requirement to his Title VII
retaliation claim. Because the district court applied the correct standard and
Chavez has not raised a genuine issue of material fact as to pretext, we
AFFIRM.
      We review a grant of summary judgment de novo, viewing all evidence
in the light most favorable to the nonmoving party and drawing all reasonable
inferences in that party’s favor. Kariuki v. Tarango, 709 F.3d 495, 501 (5th
Cir. 2013). Summary judgment is proper if the evidence shows that there is no
genuine issue as to any material fact and that the moving party is entitled to
a judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986).
      To establish actionable retaliation under Title VII, a plaintiff must first
make a prima facie showing that he engaged in a protected activity, that an
adverse employment action occurred, and that a causal link existed between
the protected activity and the adverse action. Hernandez v. Yellow Transp.,
Inc., 670 F.3d 644, 657 (5th Cir. 2012). The burden then shifts to the employer
to demonstrate a legitimate non-discriminatory purpose for the employment
action. Id. If the employer does so, the plaintiff in order to survive summary
judgment must raise a genuine issue of material fact as to whether the
employer’s stated reason for the adverse action was merely a pretext for the
real, discriminatory purpose. Gee v. Principi, 289 F.3d 342, 345 (5th Cir.
2002)).
      The district court, adopting the magistrate judge’s report and
recommendation, found that Chavez had established a prima facie case but
had not raised a fact issue as to whether the City’s proffered reasons for its
actions were pretext for retaliation. The crux of Chavez’s appeal is that the
district court erred in determining that to establish pretext, Chavez had to
produce evidence that retaliation was more than a motivating factor for the
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                                      No. 15-51111
adverse employment action. We assume for the sake of argument that Chavez
established a prima facie case of retaliation based on his transfer out of the
police academy after he filed a complaint with the EEOC. 1
       The Supreme Court has recently explained that “Title VII retaliation
claims must be proved according to traditional principles of but-for causation,”
which “requires proof that the unlawful retaliation would not have occurred in
the absence of the alleged wrongful action or actions of the employer.” Univ.
of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013). The Court
expressly rejected application of the less stringent “motivating factor” test used
for discrimination claims under Title VII. Id. Chavez argues that the Court’s
subsequent decision in Burrage v. United States, 134 S. Ct. 881 (2014),
modified this standard, but Burrage, which quoted Nassar in its discussion of
the causation requirement in the Controlled Substances Act, neither altered
Nassar’s but-for causation requirement nor involved Title VII. Because Nassar
is directly on point and controls, the district court did not err in requiring
Chavez to produce evidence that retaliation was more than merely a
motivating factor for his transfer.
       As the district court correctly found, the City produced evidence that the
most important reason for Chavez’s transfer was that he was “apparently
incapable or unwilling to control his emotions, anger, and speech, especially
when considering the cadets,” despite having been repeatedly counseled and
warned about his profane and abusive language over the course of more than




       1  Chavez alleges a series of harassing or retaliatory events, many of which are time-
barred or do not relate to activities or characteristics protected by Title VII. On appeal,
Chavez fails to clearly identify the particular adverse employment actions for which he
argues he has raised a genuine issue of material fact as to pretext, nor does his argument
cite to the evidence that purportedly raises a fact issue. Although the City disputes that
Chavez was subjected to any adverse employment action, we need not decide this issue in
light of Chavez’s failure to establish a fact issue on pretext.
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two years.     Chavez admitted using profane language.                Despite making
conclusory arguments that there is abundant evidence of pretext, he cites to no
evidence suggesting that his EEOC complaint was even a motivating factor in
his transfer, much less that he would not have been transferred but for his
filing of the complaint.      In fact, the uncontroverted evidence is that the
ultimate decisionmaker, Chief William McManus, was unaware that Chavez
had filed an EEOC complaint when he approved the transfer. 2
      Accordingly, we AFFIRM the district court’s summary judgment in favor
of the City of San Antonio.




      2   Assuming, arguendo, that any of Chavez’s internal complaints were protected
conduct under Title VII, he likewise has not presented evidence suggesting that they were
but-for causes of his transfer.
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