     Case: 14-51320    Document: 00513303428     Page: 1   Date Filed: 12/10/2015




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT
                                                                    United States Court of Appeals
                                                                             Fifth Circuit


                                  No. 14-51320                             FILED
                                                                    December 10, 2015
                                                                      Lyle W. Cayce
MARGIE BRANDON,                                                            Clerk

                                            Plaintiff - Appellant

v.

THE SAGE CORPORATION,

                                            Defendant - Appellee



                 Appeal from the United States District Court
                      for the Western District of Texas


Before JONES, SMITH, and SOUTHWICK, Circuit Judges.
EDITH H. JONES, Circuit Judge:
      Appellant Margie Brandon (“Brandon”) filed suit against the Sage
Corporation (“Sage”), alleging racial discrimination, wrongful termination, and
retaliation, in violation of Title VII as amended by the Civil Rights Act of 1991,
42 U.S.C. § 2000e-3(a) (“Title VII”) and 42 U.S.C. § 1981 (“§ 1981”) and the
comparable Texas Commission on Human Rights Act, and other state law
claims.   The district court granted Sage’s motion for summary judgment.
Brandon appeals the dismissal of her retaliation claims. We affirm, because
Brandon, who was a supervisor familiar with company employment policies,
has not created a genuine material fact issue that she suffered an adverse
employment action.
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                                 No. 14-51320
                              BACKGROUND
       Sage owns and operates truck driving schools, including a San Antonio
campus. Brandon was the Director of the San Antonio Campus. Barbara
Blake (“Blake”) was Brandon’s immediate supervisor, but Blake and Brandon
reported to Gregg Aversa (“Aversa”), Sage’s President. Carmella Campanian
(“Campanian”), was Sage’s National Project Director, Regional Director for the
Western United States, and School Director for the Billings, Montana site. In
2010, Brandon interviewed and hired Loretta Eure (“Eure”), a truck driver who
alleges that her “gender expression was traditionally masculine.”
       Also in 2010, one of the accounts that Campanian managed, Sanjel, Inc.,
expanded its contract with Sage. On March 29th, 2011, Campanian flew to
San Antonio, Texas, and spent three days implementing the driver training
component of the Sanjel expansion.        When Campanian arrived at Sage’s
campus, she saw Eure through a window and asked, “What is that and who
hired that?” Brandon responded that Eure was a qualified instructor. Id.
Campanian then explained that Sage did not hire “cross-gender” people and
that Brandon would be disciplined for hiring Eure. Brandon replied “Excuse
me?”    Campanian answered by repeating that Sage did not hire “cross-
genders.”
       Campanian also reduced Eure’s work hours and excluded Eure from the
Sanjel project. When Brandon questioned her decision, Campanian asked
Brandon if she was stupid and added that the Sanjel people would eat Eure
alive. Campanian also told Brandon that Sage was her company, that she was
a partner, and that the Sanjel account was for her to do with as she pleased.
Ultimately, Campanian informed Brandon that her pay would be reduced by
50 percent because she hired Eure.
       Campanian’s overbearing and offensive conduct led Brandon and Blake
to call Aversa. Aversa, however, was traveling at the time. Brandon did not
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wait to hear back from Aversa. On March 31st, Brandon sent a “resignation”
email alleging that she felt threatened by Campanian’s pay cut statement.
Brandon ended the email by stating that she was leaving Sage because she
could no longer take the abuse and humiliation from Campanian. Eure also
resigned.
       When Aversa returned on April 1st, he apologized for Campanian’s
behavior and communicated that Campanian had no authority to cut
Brandon’s pay or reduce Eure’s hours.
       Brandon filed an administrative complaint with the Equal Employment
Opportunity Commission (the “EEOC”), which found reasonable cause that
discrimination and retaliation had occurred. In addition to filing an EEOC
complaint, Brandon sued Sage. 1 The district court granted summary judgment
for Sage on all claims. On the retaliation claim, the district court found that
the threat to cut Brandon’s pay was not an adverse employment action.
      Brandon timely appeals her retaliation claim. Brandon asserts that the
district court erred in finding that Campanian’s pay cut threat was not an
adverse employment action.
                                    DISCUSSION
      This court reviews appeals of summary judgment de novo, applying the
same standard as the district court. Roberts v. City of Shreveport, 397 F.3d
287, 291 (5th Cir. 2005). Summary judgment is proper when “there is no



      1 Eure also filed an EEOC compliant and a lawsuit against Sage. In her lawsuit, Eure
brought claims of sex-based discrimination under Title VII and the Texas Commission of
Human Rights Act, wrongful termination and retaliation under Title VII and § 1981, and
negligent hiring, supervision, training, and retention, under Texas law. The district court
dismissed all of Eure’s claims at the summary judgment stage. Eure timely appealed her
sex-based discrimination claim. Her appeal was voluntarily dismissed in September 2015.
See Eure v. Sage Corp., No. 14-51311, Dkt. 83 (5th Cir. 2015).


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                                  No. 14-51320
genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a)). “A fact is material only if its
resolution would affect the outcome of the action, and an issue is genuine only
‘if the evidence is sufficient for a reasonable jury to return a verdict for the
nonmoving party.’” Bayle v. Allstate Ins. Co., 615 F.3d 350, 355 (5th Cir. 2010)
(quoting Hamilton v. Segue Software Inc., 232 F.3d 473, 477 (5th Cir.2000)).
      “When considering summary judgment evidence, we view all facts, and
the inferences to be drawn from them, in the light most favorable to the
nonmovant.” DIRECTV, INC. v. Budden, 420 F.3d 521, 529 (5th Cir. 2005).
The moving party “always bears the initial responsibility of informing the
district court of the basis for its motion[.]” Celotex Corp. v. Catrett, 477 U.S.
317, 323, 106 S. Ct. 2548, 2553 (1986). “Once a party meets the initial burden
of demonstrating that there exists no genuine issue of material fact for trial,
the burden shifts to the non-movant to produce evidence of the existence of
such an issue for trial.” Bayle, 615 F.3d at 355. The party opposing summary
judgment “must do more than simply show that there is some metaphysical
doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356 (1986). He “must go beyond the
pleadings and come forward with specific facts indicating a genuine issue for
trial to avoid summary judgment.” Piazza’s Seafood World, LLC v. Odom,
448 F.3d 744, 752 (5th Cir. 2006).
      The court “may affirm summary judgment on any legal ground raised
below, even if it was not the basis for the district court’s decision.” Performance
Autoplex, 322 F.3d at 853.
      To prevail on her retaliation claims, Brandon must first establish a
prima facie case. “There are three elements to a prima facie case of retaliation
[]: (1) that the plaintiff engaged in activity protected by Title VII, (2) that an
adverse employment action occurred, and (3) that a causal link existed between
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                                  No. 14-51320
the protected activity and the adverse action.” Raggs v. Miss. Power & Light
Co., 278 F.3d 463, 471 (5th Cir. 2002). Whether an employer’s actions are
retaliatory often presents a jury question. See Burlington N., 548 U.S. at 71–
73. “The significance of any given act of retaliation will often depend upon the
particular circumstances. Context matters.” Id. at 69.
      Concerning the first element, Title VII’s “opposition clause” protects
employees who “oppose any practice made an unlawful employment practice
by this subchapter[.]” 42 U.S.C. § 2000e-3(a). The plaintiff need not have been
the target of the alleged discrimination: “employee opposition to discriminatory
employment practices directed against a fellow employee may constitute
activity protected under” the opposition clause.       Jones v. Flagship Int’l,
793 F.2d 714, 727 (5th Cir. 1986). Whether the plaintiff was mistaken about
the alleged discrimination is not fatal to the claim. Id. (citing Berg v. LaCrosse
Cooler Co., 612 F.2d 1041 (7th Cir.1980)).
      In regard to the second element, to establish an adverse employment
action at the prima facie stage, “a plaintiff must show that a reasonable
employee would have found the challenged action materially adverse,
which . . . means it well might have dissuaded a reasonable worker from
making or supporting a charge of discrimination.” Burlington N. & Santa Fe
Ry. v. White, 548 U.S. 53, 68, 126 S. Ct. 2405, 2415 (2006) (quoting Rochon v.
Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006)) (quotation marks omitted).
      Finally, “Title VII retaliation claims must be proved according to
traditional principles of but-for causation, not the lessened [motivating factor]
causation test[.]” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533
(2013).
      Brandon’s case in the district court hinged on the second element of her
prima facie case—whether an adverse action occurred. Therefore, we will


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                                      No. 14-51320
assume arguendo that Brandon meets the first 2 and third elements and turn
to the second element, as the district court did.
                                            I.
       Though the record does not support that Brandon felt threatened 3 by
Campanian’s statement, the applicable test is whether a reasonable employee
would have been dissuaded from supporting a discrimination charge as a result
of Campanian’s threat. See Burlington N., 548 U.S. at 68. The reasonable
employee is the average person in similarly situated circumstances. See Long
v. Eastfield Coll., 88 F.3d 300, 310 (5th Cir. 1996) (DeMoss, J., concurring in
part and dissenting in part).
       Brandon asserts that the district court erred by characterizing the
alleged 50 percent pay cut as a mere threat and by concluding that a threat
alone can never constitute an adverse employment action.                    Brandon also
contends that the district court improperly relied on the stricter “ultimate
employment decision” test applicable to Title VII discrimination claims, when
it should have used the more expansive “might well be dissuaded” Burlington
Northern test applicable to retaliation claims. In response, Sage argues that
no adverse action occurred because, as the district court held, a salary
reduction threat is not a materially adverse employment action.
       We do not reject the possibility that a realistic, drastic pay cut threat
might deter someone from supporting a discrimination charge in certain
circumstances, 4 but no reasonable jury would find that to be the case here.



       Title VII in plain terms does not cover “sexual orientation.” We do not opine here
       2

whether Brandon correctly surmised that Eure may claim some protection under Title VII.

       3See infra Section II; see also Brandon’s deposition (stating that she did not believe
that Campanian could legally cut her salary for hiring a transgender individual).

       See Hernandez v. Crawford Bldg. Material Co., 321 F.3d 528, 531 (5th Cir. 2003); see
       4

also Cox v. Onondaga Cnty. Sheriff’s Dep’t, 760 F.3d 139, 148 (2d Cir. 2014) (employer’s
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                                         No. 14-51320
Brandon was the Director of the San Antonio school and did not report to
Campanian, but to the company’s President.                   A reasonable employee in
Brandon’s position would have been familiar with the company’s chain of
command, the company’s grievance process, and who had the last word on final
tangible employment decisions. Therefore, a reasonable high placed employee
would not have been dissuaded from engaging in protected activity as a result
of threats or actions by someone outside her chain of command and who she
knew had no final decision-making authority.
       At the very least, rather than giving immediate credence to Campanian’s
comments, a reasonable fellow supervisory employee would have waited to
receive confirmation on whether the threat was official or would have followed
the company’s grievance process.             Because we conclude that a reasonable
employee in a supervisory position would not have been dissuaded by
Campanian’s        statements,      no    adverse     employment         action    occurred. 5
Consequently, Brandon fails to create a fact issue as to the second element of



“threats of false report charges . . . would often—even usually—be a deterrent to reasonable
employees making or supporting discrimination claims”); Rivera v. Rochester Genesee Reg’l
Transp. Auth., 743 F.3d 11, 26 (2d Cir. 2012) (“A reasonable juror could find both that
[plaintiff’s supervisor] threatened [plaintiff] with the loss of his job, and that this threat
would dissuade a reasonable worker from making or supporting a charge of discrimination.”)
(internal quotation marks omitted).

       5  According to Brandon, the district court conceded that Brandon reasonably believed
that Campanian could cut Brandon’s pay. Blue Br. 34. Brandon’s assertion is a
mischaracterization of the record. First, the Court’s statement was made at the summary
judgment hearing and it concerned Brandon’s constructive discharge claim, not her
retaliation claim. Second, the court’s statement was predicated on the assumption that
Brandon’s version of the facts was true, as opposed to stating a finding of fact. Interestingly,
the district court dismissed Brandon’s constructive discharge claim because she failed to act
reasonably by immediately quitting rather than pursuing her inquiry to Aversa. See Aryain
v. Wal-Mart Stores Tex. LP, 534 F.3d 473, 481–82 (5th Cir. 2008) (“In the constructive
discharge context, we have recognized that ‘part of an employee’s obligation to be reasonable
is an obligation not to assume the worst, and not to jump to conclusions too fast.’” (citing
Dornhecker v. Malibu Grand Prix Corp., 828 F.2d 307, 310 (5th Cir. 1987)).

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her prima facie case—a failure fatal to her claim. Summary judgment on
Brandon’s claim was also justified for the independent reasons discussed
below.
                                            II.
          Brandon alternatively argues that the pay cut was not a threat, but a
fact. 6       Brandon urges the court to focus on the sequence of events and
Campanian’s alleged comments and threats.                    Brandon points out that
Campanian told her that “we’ll deal with you seriously” for hiring Eure. Then,
Campanian allegedly explained that she wanted to speak with Aversa and that
she would let Brandon know in a few minutes what her punishment would be.
Campanian next made some phone calls and informed Brandon that “my
decision -- our decision is to . . . cut your pay in half.” Id. Therefore, Brandon
asserts that Campanian was not threatening Brandon, but instead informing
her that the pay cut was a “done deal.”
          Brandon has not provided specific evidence suggesting that a decision to
reduce her salary was ever made.                  According to Brandon’s testimony,
Campanian’s         pay   cut   threat    was     always     conditioned      on   Aversa’s
authorization—an authorization that was never given.                    Brandon recalled
Campanian saying: “I haven’t made the decision yet. I have to talk with
Mr. Aversa. He’s still traveling and I can’t get a hold of him. . . . I’m still going
to talk about this further with Mr. Aversa.” And as the district court noted,
there is no evidence that the aforementioned discussion ever occurred, only
that Brandon assumed it did.



         Brandon’s retaliation claim on appeal is also based on her alleged exclusion from the
          6

Sanjel project. There is evidence suggesting that an additional director could be assigned to
support the Sanjel project in San Antonio. There is, however, no evidence that Brandon
would be excluded. Therefore, Brandon’s retaliation claim cannot advance based on her
alleged exclusion from the Sanjel project.

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                                       No. 14-51320
       Brandon also knew that Aversa had the final say at Sage because he had
told her to come directly to him if she encountered any issues that made her
want to leave Sage. In fact, after Campanian’s comments about her salary,
Brandon called Aversa. And as soon as Aversa returned to his office, he
condemned Campanian’s conduct.
       Moreover, in a letter written by Brandon, she stated that the pay cut
idea was something that Campanian was going to suggest to Aversa. And in
her hasty resignation email, Brandon never mentioned Campanian’s pay cut
threat as a reason for resigning. The reason she actually provided for leaving
was that she could not continue to take more abuse and humiliation from
Campanian. Id. at 619. Brandon confirmed this reason later in her deposition.
Id. at 518. The record does not create a genuine material fact issue as to
whether the salary reduction decision was ever finalized. 7                   Accordingly,
Brandon fails to support this theory concerning the adverse employment action
element of her prima facie case.
                                             III.
       Brandon also contends that as one of Sage’s founding partners, stock
owners, and Vice President, Campanian was a proxy for Sage and her actions
are attributable to Sage. Brandon additionally argues that Sage is liable under
common law agency principles. In response, Sage avers that it is not liable for
Campanian’s conduct because she did not have the authority to hire, fire, or




       7  See Williams v. Lovchik, 830 F. Supp. 2d 604, 617 (S.D. Ind. 2011) (‘[B]ecause the
proposed salary decrease never came to fruition, it cannot constitute an adverse employment
action’); Brock v. Positive Changes Hypnosis, LLC, 589 F. Supp. 2d 974, 983 (W.D. Tenn.
2008) (finding that threats to alter the terms of plaintiff’s compensation were not materially
adverse employment actions in the FLSA retaliation context because they were never carried
out); see also Mitchell v. Vanderbilt Univ., 389 F.3d 177, 182 (6th Cir. 2004) (finding that
proposals to reduce pay were not materially adverse employment actions in the ADEA
context because they were never implemented).
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alter Brandon’s employment conditions. The law favors Sage on the facts
before us.
      First, Brandon’s proxy liability argument is unpersuasive. The “proxy”
term derives from an interpretation of the Supreme Court’s discussion of
vicarious liability for sexual harassment in Ellerth and Faragher, which this
court adopted from the Seventh Circuit.         Ackel v. Nat’l Commc’ns, Inc.,
339 F.3d 376, 383 (5th Cir. 2003) (adopting the interpretation of Burlington
Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257 (1998) and Faragher v.
City of Boca Raton, 524 U.S. 775, 118 S. Ct. 2275 (1998) in Johnson v. West,
218 F.3d 725 (7th Cir. 2000)). In Ackel, this court held that the actions of a
proxy are attributable to the employer. Ackel, 339 F.3d at 383. A proxy may
include owners, proprietors, corporate officers, and others occupying a
sufficiently high management position that their actions speak for the
company. Id. at 383–84 (citation omitted).
      Ackel, however, is distinguishable from the present case. In Ackel, the
malfeasor was the president and general manager of the corporation. Id. at
384. Significantly, the defendant in Ackel did not deny that the company’s
President was in charge of all the aspects of the company. Id. This court
accordingly held that the president was in a sufficiently high position that his
sexual harassment was directly actionable the employer. Here, on the other
hand, the record evidence indicates that Campanian did not speak for the
company or have control over employee compensation, benefits, or primary
responsibilities.
      As additional support for her proxy liability argument, Brandon proffers
Campanian’s rogue conduct on a particular day when she reduced Eure’s work
hours and Campanian’s bragging about her position in the company. But these
facts do not support Campanian’s authority to speak for Sage in regard to


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Brandon. Brandon’s claim does not survive summary judgment. See Piazza’s
Seafood World, 448 F.3d at 752.
       Neither is Sage liable under basic agency principles. Title VII defines
“employer” to include “any agent” of the defendant company.                        42 U.S.C.
§ 2000e(b).     In Long, a Title VII retaliation case, this court held that an
employer is liable “for an employment decision made by supervisory employees,
where the supervisory employees were agents of the employer with regard to
the employment status of the plaintiff.” Long, 88 F.3d at 307–08; see also
Flanagan v. Aaron Cmty. Health Servs. Ctr., 876 F.2d 1231, 1234–35 (5th Cir.
1989) (finding Title VII liability under agency principles when the supervisory
employees were the administrators of the company and had unfettered control
over the company’s operations).             In the sufficiently analogous context of
harassment, the Supreme Court held that vicarious liability may exist “only
when the employer has empowered the employee to take tangible employment
actions against the victim . . . .” Vance v. Ball State Univ., 133 S. Ct. 2434,
2443 (2013). 8
       We conclude that Sage is not vicariously liable because the record does
not create a fact issue suggesting that Campanian was an agent with regard
to Brandon’s employment status. Campanian did not have the authority to
hire, fire, or alter Brandon’s conditions of employment. See Long, 88 F.3d at
307. Brandon’s above-cited testimony concedes that Campanian could not


       8 Canutillo Indep. Sch. Dist. v. Leija, 101 F.3d 393, 401–02 (5th Cir. 1996) is seemingly
in tension with Vance. Canutillo held that agency liability may exist when the supervisory
employee has significant input into the alleged discriminatory conduct. Canutillo, however,
is a Title IX case. Vance, a Title VII case, rejected the more open-ended approach tying
supervisory status “to the ability to exercise significant direction over another’s daily work.”
Vance, 133 S. Ct. at 2443 (citations omitted). Instead, the Court held that vicarious liability
exists only when the supervisor has the authority to significantly change the employee’s
employment status, such as hiring, firing, failing to promote, reassigning significant different
responsibilities, or making a decision that significantly changes the employee’s benefits. Id.

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make tangible employment decisions without Aversa’s authorization. Blake
was Brandon’s supervisor and Brandon did not report to Campanian in any
way. The evidence also indicates that Brandon ultimately answered to Aversa.
Had Aversa cut Brandon’s pay, she might have a claim against Sage because
Aversa was Sage’s President and had the authority to hire, fire, and change an
employee’s terms of employment. Therefore, Brandon’s claim on this basis
does not survive Sage’s Rule 56 challenge.
                              CONCLUSION
      For the foregoing reasons, Brandon has not made a sufficient showing on
her prima facie case required to move forward her retaliation claims. We
AFFIRM the district court’s judgment.




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