     Case: 14-41414   Document: 00513283270     Page: 1   Date Filed: 11/23/2015




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                 No. 14-41414                  United States Court of Appeals
                                                                        Fifth Circuit

                                                                      FILED
EDILIO DEL BOSQUE,                                             November 23, 2015
                                                                 Lyle W. Cayce
             Plaintiff - Appellant                                    Clerk

v.

STARR COUNTY, TEXAS; RUBEN SAENZ, Starr County Commissioner, in
his Official and Individual Capacity,

             Defendants - Appellees

___________________________________________


VICTOR CANO; JOSE GERARDO GONZALEZ,

             Plaintiffs - Appellants

v.

STARR COUNTY, TEXAS; RUBEN SAENZ, Starr County Commissioner, in
his Official and Individual Capacity,

             Defendants - Appellees




                Appeal from the United States District Court
                     for the Southern District of Texas
                   USDC Nos. 7:14-CV-17, 7:13-CV-576
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                                      No. 14-41414
Before STEWART, Chief Judge, and BARKSDALE and PRADO, Circuit
Judges.
PER CURIAM:*
       This appeal arises from Starr County, Texas Commissioner Ruben
Saenz’s decision to terminate Starr County employees Edilio Del Bosque,
Victor Cano, and Jose Gerardo Gonzalez (collectively, the “Plaintiffs”).
Plaintiffs filed suit against Saenz and Starr County, Texas (collectively, the
“Defendants”), claiming that they were terminated in retaliation for reporting
misuse of County resources by Saenz. All three Plaintiffs argue that such
retaliation violates their free speech rights under the First Amendment. Del
Bosque also argues that the alleged retaliation violates the Texas
Whistleblower Act. Defendants filed motions for summary judgment, which
the district court granted. For the reasons stated herein, we REVERSE and
REMAND for further proceedings consistent with this opinion.
           I.     FACTUAL AND PROCEDURAL BACKGROUND
       The story of this case begins when Saenz was appointed Starr County
Commissioner for Precinct 4 in September 2011. At the time, Del Bosque
served as the Precinct 4 foreman, supervising 15–20 “roadhand” 1 employees
including Cano and Gonzalez. As the Starr County Commissioner, Saenz had
oversight authority over Del Bosque and his workers.
       Alleged Misuse of Starr County Resources
       Plaintiffs claim that, shortly after his appointment, Saenz began abusing
County resources. Two of the incidents involved using County resources for



       *  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 “Roadhands” are something akin to manual laborers. Their responsibilities include

tasks like picking up and dumping trash, driving tractors and trucks, and spreading caliche.
“Caliche” is a sedimentary rock that is often used for road construction.
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Saenz’s own benefit. First, in approximately January 2012, Saenz ordered
Gonzalez, Del Bosque, and other Starr County workers to cut mesquite
firewood and deliver it to his house. Second, in January or February 2012, a
supervisor in Precinct 4, David Morales (“Supervisor Morales”), ordered Cano
and others to drop off and spread caliche at Saenz’s private residence while he
and Saenz supervised the work.
       The remaining three incidents involved using County resources to dump
and spread caliche on private property for other individuals. In January 2012,
Saenz supervised the use of County resources to dump and spread caliche at
the parking lot of Lane’s Café in San Isdro, Texas (the “San Isdro Incident”).
Then, sometime in January or February 2012, Supervisor Morales ordered
Cano, Gonzalez, and others to drop off caliche at the private residences of Cuco
Alaniz and Irma Andrade. 2
       None of the Plaintiffs reported their allegations of misuse of Starr
County resources directly to Saenz. However, in approximately January or
February 2012, Plaintiffs disclosed their allegations to a number of other
individuals, including the local District Attorney and several of Saenz’s
advisors. For example, Cano told Del Bosque that he was ordered to spread
caliche at Saenz’s private property. In response, Del Bosque called Municipal
Judge Leo Lopez (“Judge Lopez”) to discuss Saenz’s misuse of Starr County
resources. Judge Lopez served as an advisor to Saenz when he took office as
Commissioner. Cano and Del Bosque also disclosed Saenz’s alleged misuse of
County resources to Starr County’s Human Resource Director and Elections
Administrator, Rafael Montalvo (“Montalvo”), and Saenz’s administrative
assistant, Anita Hammond (“Hammond”).                 Montalvo was involved in the



       2At his deposition, Saenz conceded that Cuco Alaniz and Irma Andrade are well-
respected in the community and that he would like to have their support in future elections.
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                                      No. 14-41414
termination process under consideration in this case, and Hammond
interacted with Saenz every day, including on budget issues. Finally, Del
Bosque and Gonzalez discussed the issue with Supervisor Morales; Morales
met with Saenz behind closed doors daily. 3
       Around the same time period as these reports, in February 2012, the
Starr County District Attorney’s Office (the “District Attorney”) began
investigating Saenz for “abuse of official capacity” in relation to the San Isdro
Incident.
       The Alleged Retaliation Against Plaintiffs
       When Saenz took office in late 2011, he decided to set up his own staff,
so he had all forty-four employees in his office reapply for their jobs. Of the
forty-four employees to reapply, eleven—including Plaintiffs—were not
rehired. 4   Plaintiffs’ at-will employment with Starr County was officially
terminated on March 19, 2012. Saenz consulted Judge Lopez regarding the
terminations and Montalvo signed Plaintiffs’ termination letters.
       Procedural History
       Del Bosque filed suit against the Defendants claiming that his
termination was the result of illegal retaliation under Texas Government Code
§§ 554.001–554.010 (the “Texas Whistleblower Act” or “Act”) and the First
Amendment. Similarly, Cano and Gonzalez filed suit against the Defendants
for retaliation in violation of the First Amendment. Defendants filed motions



       3  Cano also disclosed Saenz’s alleged misuse of County resources to other roadhands
some time prior to March 2012. He believes some of the workers reported him to Supervisor
Morales because, shortly after his disclosures, Supervisor Morales began treating him
differently.
        4 Thus, Plaintiffs were technically not “rehired,” although the parties often use the

term “terminated” interchangeably. Plaintiffs are skeptical that this “rehire” process
actually occurred; however, Del Bosque testified to going through the reapplication process.
Plaintiffs also obviously challenge the timing of and motivation behind Saenz’s decision not
to rehire them.
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for summary judgment in both actions. The cases were consolidated and the
district court granted Defendants’ motions for summary judgment.
                      II.    STANDARD OF REVIEW
      “We review a district court’s grant of summary judgment de novo,
applying the same standard as did the district court.” Fowler v. Smith, 68 F.3d
124, 126 (5th Cir. 1995). Summary judgment is proper “if the movant shows
that there is no 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 genuine
dispute about a material fact exists when the evidence presented on summary
judgment is such that a reasonable jury could find in favor of the non-moving
party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). For purposes
of this determination, “all fact questions are viewed in the light most favorable
to the non-movant.” Hassan v. Lubbock Indep. Sch. Dist., 55 F.3d 1075, 1079
(5th Cir. 1995).
                             III.    DISCUSSION
                                         A.
      Plaintiffs argue that their terminations were the result of improper
retaliation under the First Amendment.             To prove a First Amendment
employment retaliation claim, a plaintiff must show that (1) he suffered an
adverse employment decision; (2) his speech involved a matter of public
concern; (3) his interest in commenting on matters of public concern outweighs
the defendant’s interest in promoting efficiency; and (4) his speech motivated
the adverse employment decision (i.e., causation). Beattie v. Madison Cty. Sch.
Dist., 254 F.3d 595, 601 (5th Cir. 2001).
      The district court here concluded that Plaintiffs failed to raise a genuine
dispute of material fact as to the causation element. We evaluate causation in
this context using a three-step analysis. First, the plaintiff has the initial
burden of showing that his protected speech was a substantial or motivating
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                                  No. 14-41414
factor in the defendant’s adverse employment decision. Haverda v. Hays Cty.,
723 F.3d 586, 591 (5th Cir. 2013).      The defendant may rebut this initial
showing by demonstrating that it would have taken the same adverse
employment action even in the absence of the protected speech. Id. at 591–92.
The plaintiff may then refute that showing by presenting evidence that the
defendant’s non-retaliatory explanation is merely pretextual. Id. at 592.
      Plaintiffs withstand summary judgment under this analysis.
                                       1.
      Plaintiffs made a sufficient prima facie showing of causation to survive
summary judgment.        The district court granted Defendants’ motions for
summary judgment based solely on its finding that Plaintiffs had failed to
make a prima facie showing of causation between their protected speech (their
reports of Saenz’s alleged misuse of County resources) and their termination.
In doing so, the district court explained that “Plaintiffs essentially provide no
evidence of knowledge and only some vague testimony of temporal proximity”
and that Plaintiffs “cannot simply rely on evidence that the employer’s [non-
retaliatory explanation] is false.”
      As an initial matter, the district court erred in discounting Plaintiffs’
evidence of pretext. The district court found—and the Defendants argue—that
pretext evidence is only relevant at the third stage of the causation analysis
(i.e., to rebut the defendant’s showing that it would have taken the same
adverse employment action even in the absence of the protected speech).
Although this court has occasionally considered evidence in this neatly
separated manner, see, e.g., id. at 592–97, attempting to cabin pretext evidence
into the third prong is contrary to other precedent and commonsense. See, e.g.,
Jordan v. Ector Cty., 516 F.3d 290, 300–01 (5th Cir. 2008); Brady v. Fort Bend
Cty., 145 F.3d 691, 713–14 (5th Cir. 1998); Click v. Copeland, 970 F.2d 106,
113–14 (5th Cir. 1992). Given that this evidence is relevant to the inquiry, and
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presented at the summary judgment stage, the district court was required to
view it in the light most favorable to the Plaintiffs.
       Here, Plaintiffs present substantial and powerful evidence of pretext.
Perhaps most striking of this evidence is Saenz’s inconsistent statements
regarding his reasons for terminating Del Bosque. In a sworn interrogatory
response, Saenz stated that he chose Del Bosque for termination because he
had to reduce payroll and “had heard rumors that [Del Bosque] had assaulted
another employee during work hours.” However, during his later deposition,
Saenz stated that his interrogatory answer was not accurate and that the
alleged assault was not a factor in his decision. When pressed on his actual
reasons, Saenz stated that he chose Del Bosque for termination because of “job
performance.” However, Saenz was not able to point to any specific issues with
Del Bosque’s job performance and ultimately admitted that he did not know
why he chose to terminate Del Bosque in particular. Similarly, Saenz could
not provide any specific reason for why he chose to terminate Cano or
Gonzalez. 5
       Plaintiffs also offer affirmative evidence that at least partially
undermines Defendants’ budgetary explanation for the terminations (and
Defendants provide no other consistent independent explanation).                         For
example, Hammond, who assists Saenz with the budget, testified that the
budget did not clearly call for terminations. The County also hired three new




       5  Saenz’s testimony regarding other aspects of the case also indicate that there are
material disputes of fact. For example, Saenz testified that he never met with Supervisor
Morales in his office. However, Saenz’s assistant, Hammond, testified that the two met
behind closed doors daily, including about the San Isdro Incident. Saenz also provided
bizarre testimony regarding the caliche that was delivered to his house; Saenz admitted that
a load of caliche was delivered to his private residence, but claimed that he did not know who
delivered it or why they delivered it, and never asked anyone where it came from.
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roadhands within seven months of the terminations and still ran an overall
$30,000 budget surplus for the fiscal year.
       Plaintiffs meet the rest of their burden on causation by relying on
circumstantial evidence to form “a chronology of events from which retaliation
may plausibly be inferred”: (1) in January or February of 2012, Plaintiffs
began to notice Saenz’s misuse of County resources; (2) sometime between
January and March 19, 2012, Plaintiffs reported this misconduct to a number
of individuals who worked with Saenz on a regular basis, several of which also
advised Saenz on the termination process; 6 (3) around the same time, the
District Attorney was investigating Saenz for misuse of County resources—the
same issue that formed the basis of Plaintiffs’ reports—and Saenz was aware
of this investigation; and (4) Plaintiffs were then terminated shortly after their
reports, on March 19, 2012. 7 See Brady v. Houston Indep. Sch. Dist., 113 F.3d
1419, 1424 (5th Cir. 1997); Mooney v. Lafayette Cty. Sch. Dist., 538 F. App’x
447, 454 (5th Cir. 2013).
       One remaining issue is that Plaintiffs have no direct evidence that Saenz
was aware of their reports. Obviously, causation requires evidence that the
decision-maker have some predicate knowledge of a plaintiff’s protected



       6 At oral argument, counsel for Defendants acknowledged that there is contradictory
evidence regarding whether and to what extent Plaintiffs reported Saenz’s alleged
misconduct. This evidentiary conflict creates a genuine dispute of material fact that is not
appropriate for summary judgment adjudication. See Fed. R. Civ. P. 56(a); Hassan, 55 F.3d
at 1079.
       7 The district court highlighted some uncertainty in the Fifth Circuit regarding when

temporal proximity between a report and an adverse employment decision alone is sufficient
to make a prima facie showing of causation. Compare Strong v. Univ. Healthcare Sys., L.L.C.,
482 F.3d 802, 808 (5th Cir. 2007) (“[T]emporal proximity alone, when very close, can in some
instances establish a prima facie case of retaliation.”), with Evans v. City of Houston, 246
F.3d 344, 354 (5th Cir. 2001) (“[A] time lapse of up to four months has been found sufficient
to satisfy the causal connection for summary judgment purposes” in Title VII retaliation
cases). Regardless, Plaintiffs here are not relying solely on temporal proximity; it is one of
several factors Plaintiffs argue in support of their complaint.

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speech. See Cabrol v. Town of Youngsville, 106 F.3d 101, 108 (5th Cir. 1997).
However, we have consistently held that direct evidence of retaliatory motive
is not necessary to show causation. See Houston Indep. Sch., 113 F.3d at 1424.
Plaintiffs here provide circumstantial evidence that their reports were relayed
to Saenz: they reported to individuals who regularly met with and advised
Saenz. Most notably, Plaintiffs reported the misconduct to Judge Lopez, and
Judge Lopez later advised Saenz regarding the actual terminations at issue.
Viewed in the light most favorable to the Plaintiffs, this is sufficient evidence
of knowledge at the summary judgment phase. Accordingly, we hold that
Plaintiffs made a sufficient prima facie showing of causation to survive
summary judgment.
                                       2.
      We now turn to Defendants’ non-retaliatory explanation for terminating
Plaintiffs. “[A] public employee who is discharged or otherwise disciplined for
engaging in constitutionally protected conduct is not entitled to any relief if
the employer can prove that it would have taken the same action absent that
conduct.” Scott v. Flowers, 910 F.2d 201, 209 (5th Cir. 1990). Defendants put
forward a compelling budgetary explanation for the terminations. Several
witnesses testified that, faced with the relevant budgetary numbers, Saenz
decided to cut staff sometime between October and December 2011 (before any
of the alleged reports).   Notably, Defendants also terminated eight other
employees in the same termination process. Thus, Defendants put forward a
facially viable non-retaliatory explanation for the terminations.
                                       3.
      However, we conclude that Plaintiffs sufficiently refuted Defendants’
non-retaliatory explanation. “[I]f a plaintiff brings forth evidence of pretext,
the determination whether the employer’s stated reasons are pretextual is a
fact issue reserved for the jury.” Haverda, 723 F.3d at 595–96. As previously
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discussed, Plaintiffs (1) point to a number of examples in the record where
Saenz gave contradictory reasons for terminating Plaintiffs and (2) provide
affirmative evidence that at least partially undermines Defendants’ budgetary
explanation. This evidence is sufficient to create an issue of fact. See id. at
596–97.
      Accordingly, we hold that Plaintiffs raised a genuine dispute of material
fact on the causation element of their First Amendment retaliation claim.
                                           B.
      Del Bosque also claims that his termination was the result of improper
retaliation under the Texas Whistleblower Act. A governmental entity is liable
for damages under the Act if it discriminates against a public employee who in
good faith reports a violation of law to an appropriate law enforcement
authority. See Tex. Gov’t Code Ann. §§ 554.002–.003 (West 2012); City of Fort
Worth v. Zimlich, 29 S.W.3d 62, 67 (Tex. 2000). To state a claim, the employee
must show causation between his report and the employer’s discriminatory
conduct. Zimlich, 29 S.W.3d at 67. However, the employee need only prove
but-for causation; a plaintiff is not required to show that his report of illegal
activity was the sole reason for the employer’s adverse action. See Tex. Dep’t
of Human Servs. of State of Tex. v. Hinds, 904 S.W.2d 629, 634–36 (Tex. 1995).
      Here, Del Bosque argues that he was terminated in retaliation for
reporting Saenz’s misconduct to the District Attorney. The district court again
found that Del Bosque failed to raise a genuine dispute of material fact as to
causation, largely citing its analysis of Del Bosque’s First Amendment claim.
      We conclude, however, that Del Bosque did provide sufficient evidence
to survive summary judgment on his Texas Whistleblower Act claim. 8 Texas


      8  As a preliminary matter, Del Bosque is entitled to an initial presumption of
causation under the Act because he was terminated within 90 days of his report. See Tex.
Gov’t Code Ann. § 554.004 (West 2012). “However, the presumption does not shift the burden
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                                      No. 14-41414
courts have consistently held that “[c]ircumstantial evidence may be sufficient
to establish a ca[us]al link between the adverse employment action and the
reporting of illegal conduct.” Zimlich, 29 S.W.3d at 69; City of El Paso v.
Parsons, 353 S.W.3d 215, 226 (Tex. App.—El Paso 2011).                     Such evidence
includes the employer’s knowledge of the report of illegal conduct, evidence
that the stated reason for the adverse employment action was false, and
temporal proximity between the report and the adverse action. Zimlich, 29
S.W.3d at 69; Rogers v. City of Fort Worth, 89 S.W.3d 265, 281 (Tex. App.—
Fort Worth 2002).
       Here, Del Bosque identifies the same temporal proximity and pretext
evidence from his First Amendment claim. He also provided circumstantial
evidence that Saenz was aware of his report to the District Attorney—namely,
that (1) Del Bosque also told Saenz’s assistant, Hammond, about his report to
the District Attorney, and (2) Saenz admitted that he was aware of the District
Attorney’s investigation. Texas case law suggests that this circumstantial
evidence is sufficient to create a genuine dispute of material fact. See Parsons,
353 S.W.3d at 226–27 (plaintiff made sufficient showing of causation by relying
on (1) circumstantial evidence of the employer’s knowledge, (2) temporal
proximity between the report and the adverse employment action, and (3)
evidence that the employer’s non-retaliatory explanations were “pretextual
and false.”); see also Senior Living Props., L.L.C. v. Cole, No. 10-06-00227-CV,
2007 WL 2729567, at *3–7 (Tex. App.—Waco Sept. 19, 2007) (finding sufficient
evidence of but-for causation where employer denied knowledge of report and
plaintiff lacked direct evidence of employer’s knowledge, and noting that


of proof and stands only in the absence of contrary evidence.” City of Houston v. Levingston,
221 S.W.3d 204, 226 (Tex. App.—Houston [1st Dist.] 2006). Here, Defendants provided
affirmative evidence showing a non-retaliatory motive. Thus, the burden of proof falls back
on Del Bosque and the analysis proceeds “as if no presumption had ever existed.” Id.

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“[p]roof that the stated reasons for the discharge are false is sufficient to
establish that the employee was terminated in retaliation for engaging in
protected activity”).
      Therefore, we conclude that Del Bosque raised a genuine dispute of
material fact as to causation for his Texas Whistleblower Act claim.
                              IV.    CONCLUSION
      For the foregoing reasons, we REVERSE the district court’s grant of
summary judgment in favor of the Defendants and REMAND for further
proceedings consistent with this opinion.




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