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

                                                                                  FILED
                                      No. 13-50102                          March 28, 2014
                                                                             Lyle W. Cayce
                                                                                  Clerk
MONICA HAGUE,

                                                 Plaintiff - Appellant
v.

UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER
AT SAN ANTONIO,

                                                 Defendant - Appellee



                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:11-CV-1101



Before KING, BENAVIDES, and DENNIS, Circuit Judges.
FORTUNATO P. BENAVIDES, Circuit Judge: *
       Monica Hague appeals the district court’s grant of summary judgment
in favor of her former employer, the University of Texas Health Science Center
at San Antonio (“UTHSC”), on her sexual harassment, discrimination, and
retaliation claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
                                      No. 13-50102

§ 2000e, et seq. (“Title VII”). We AFFIRM the district court’s judgment with
respect to Hague’s claims of sex discrimination and sexual harassment and
VACATE and REMAND Hague’s claim of retaliation for further proceedings.
                                             I.
       Hague, a registered nurse, worked for UTHSC as a Civilian Training
Officer in the Emergency Health Services Department from December 15,
2008, through August 31, 2011. She was hired on a term basis and her contract
was renewed twice, each time for an additional one-year period.
       During     this   time,    Hague     filed   two    complaints      with    hospital
administration.       First, Hague complained of sexual harassment by her
colleague Dr. Manifold to the interim Associate Dean Dr. Wallace in September
of 2010. She alleged that Dr. Manifold, the Department Medical Director,
sexually harassed her by reading an explicit magazine article out loud during
a department meeting. Hague also alleged that Dr. Manifold gave a co-worker
a sexually explicit doll. In October, Hague followed with an official complaint
to Dr. Blankmeyer, the person responsible for civil rights compliance issues
pertaining to faculty members. 1             After the internal investigation, Dr.
Blankmeyer’s supervisor, Dr. Murphy, sent separate memoranda to Hague and
Dr. Manifold in December, explaining the result of the investigation and
admonishing Dr. Manifold’s prior behavior.          2




1
  Dr. Blankmeyer is responsible for civil rights compliance issues pertaining to faculty,
residents, students, and visitors.
2
  Although the investigation found that “the alleged event clearly does not rise to the level
of sexual harassment,” the memoranda concluded that Dr. Manifold’s actions did “meet
parts of the definition of sexual misconduct” and were “unprofessional and inappropriate for
the workplace or classroom.” Hague later testified that, subsequent to Dr. Manifold’s
reprimand, no further incidents of alleged sexual harassment occurred.
                                             2
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      Second, Hague filed a grievance with Dr. Wallace concerning Dr. Villers,
the head of the Emergency Health Services Department. 3 Hague’s grievance
alleged that Dr. Villers treated employees differently and fostered an
uninviting work environment. 4 An internal investigation cleared Dr. Villers of
Hague’s allegations, but Dr. Murphy nonetheless recommended that Dr.
Villers make certain improvements in communications within the department.
      Hague filed a formal Equal Employment Opportunity Commission
(“EEOC”) complaint on June 17, 2011. On June 20, 2011, UTHSC provided
Hague a letter advising that her contract would not be renewed and her
employment with UTHSC would not continue beyond August 31, 2011.
UTHSC did not receive notice of Hague’s formal EEOC complaint until June
21, 2011.
      Hague received a right-to-sue letter and subsequently filed this suit
alleging violations of Title VII. She alleges that UTHSC unlawfully retaliated
against her, that she was wrongfully discriminated against on account of her
gender, and that she was sexually harassed in the workplace. The district
court granted summary judgment in favor of UTHSC. Hague appeals, arguing
that she raised genuine issues of material fact on all claims.
                                           II.
      We review a grant of summary judgment de novo, applying the same
standards as the district court. Am. Home Assurance Co. v. United Space

3
  Wallace responded to the initial grievance, which Hague made in person on in September
of 2010, by requesting that Hague provide a more concise and clear statement of the
required elements for the grievance, in order to comply with internal policy. Hague then
filed her formal grievance in October.
4
  Dr. Murphy’s summary of the grievance indicates that Hague denied that the differential
treatment stemmed from gender discrimination.
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                                      No. 13-50102

Alliance, LLC, 378 F.3d 482, 486 (5th Cir. 2004). “A summary judgment
motion is properly granted only when, viewing the evidence in the light most
favorable to the nonmoving party, the record indicates that there is no genuine
issue as to any material fact, and that the moving party is entitled to judgment
as a matter of law.” Id.; see also FED. R. CIV. P. 56(a).
                                            III.
A.     Sex Discrimination
       Hague must “exhaust [her] administrative remedies before bringing suit
under Title VII.” Price v. Choctaw Glove & Safety Co., 459 F.3d 595, 598 (5th
Cir. 2006).     An employee may file a lawsuit “not only upon the specific
complaints made by the employee’s initial EEOC charge, but also upon any
kind of discrimination like or related to the charge’s allegations, limited only
by the scope of the EEOC investigation that could reasonably be expected to
grow out of the initial charges of discrimination.” Fellows v. Universal Rests.,
Inc., 701 F.2d 447, 451 (5th Cir. 1983).
       Hague failed to include a specific sex discrimination claim on her EEOC
intake sheet and consequently did not exhaust her administrative remedies on
that claim. Although Hague argues that she fulfilled the purpose of the court’s
exhaustion requirement because her EEOC complaint and her complaint in
this lawsuit put UTHSC on notice of a sex discrimination claim, the details
listed on her complaint concern only her allegations of harassment. 5 Thus,

5
  Hague did not allege any facts in her EEOC form that clearly set out a claim for disparate
treatment on the basis of her sex. See Clark v. Kraft Foods, Inc., 18 F.3d 1278, 1280 n.4
(5th Cir. 1994) (citing cases for the proposition that sexual harassment and disparate
treatment are distinct for exhaustion of EEOC administrative remedies). Moreover,
Hague’s intake sheet could not possibly have included such a grievance because the record
indicates that she had not yet received the letter notifying her that her contract would not
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Hague’s subsequent claim regarding sex discrimination not based upon
harassment falls outside “the scope of the EEOC investigation” and could not
reasonably be expected to grow out of her initial charge of sexual harassment.
B.    Sexual Harassment
      Hague also claims that Dr. Manifold’s conduct regarding the sexually
explicit doll and reading of the internet article amounted to sexual harassment.
She argues that the district court erred in failing to analyze her complaint as
a quid pro quo claim, because she alleges harassment by a supervisor resulting
in her non-renewal, a “tangible employment action.” See Casiano v. AT&T
Corp., 213 F.3d 278, 283 (5th Cir. 2000).
      However, Hague’s sexual harassment claim fails because Dr. Manifold
was not her supervisor. Dr. Manifold did not have the power to take tangible
employment actions against her. 6 See Vance v. Ball State Univ., 133 S. Ct.
2434, 2443 (2013) (holding that an “employer may be vicariously liable [under
Title VII] for an employee's unlawful harassment only when the employer has
empowered that employee to take tangible employment actions against the
victim”). The record reflects (and no competent evidence contradicts) that
Hague did not report to Dr. Manifold and that Dr. Manifold did not have the


be renewed. Therefore, she did not complain of gender bias in non-renewal of appointment,
or indicate that her replacement was by a male employee.
6
 The summary judgment record indicates that Hague was employed as a full-time instructor
in the Continuing Education Division. Her immediate supervisor was Joe Lindstrom, who
reported directly to the Department Chair, Dr. Villers. Lindstrom conducted Hague’s
performance evaluations, and gave hiring input to Dr. Villers. The Department
organizational chart indicates that Dr. Manifold, the Medical Director, did not have
supervisory power over Hague’s employment.


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authority to make employment decisions regarding Hague, including her
contract non-renewal. Further, Hague’s allegations of Dr. Manifold’s conduct
do not fit the definition of quid pro quo, in which “the grant or denial of
employment advancement, such as a promotion or raise, depends upon
whether an employee acquiesces to unwelcome sexual advances, requests for
sexual favors, or other verbal or physical conduct of a sexual nature.”
Donaldson v. CDB Inc., 335 F. App’x 494, 500 (5th Cir. 2009).
      Hague’s co-worker harassment claim is therefore properly analyzed
under the standards for hostile work environment.           See Woods v. Delta
Beverage Group, Inc., 274 F.3d 295, 298 (5th Cir. 2001).         A hostile work
environment claim consists of five elements: (1) membership in a protected
group; (2) unwelcome sexual harassment; (3) harassment complained of is
based on sex; (4) harassment complained of affected a term, condition, or
privilege of employment; and (5) the employer knew or should have known of
the harassment and failed to take prompt remedial action. Id. We agree with
the district court that Hague failed to raise an issue of material fact concerning
the fourth element—whether the harassment complained of affected a term,
condition, or privilege of employment.
      For harassment to affect a term, condition, or privilege of employment,
it must be both objectively and subjectively abusive. Harris v. Forklift Sys.,
Inc., 510 U.S. 17, 21–22 (1993). “‘[S]imple teasing,’ offhand comments, and
isolated incidents (unless extremely serious) will not amount to discriminatory
changes in the ‘terms and conditions’ of employment.’” Faragher v. City of Boca
Raton, 524 U.S. 775, 788 (1998) (citation omitted). To determine whether
conduct is objectively abusive, we look to the totality of the circumstances: the

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frequency of discriminatory conduct, its severity, whether it involves physical
threats or humiliation as opposed to mere offensive utterances, whether it
unreasonably interferes with an employee’s work performance, and whether
the complained-of conduct undermined the plaintiff’s workplace competence.
See Hockman v. Westward Commc’ns, L.L.C., 407 F.3d 317, 325–26 (5th Cir.
2004).
      Hague identifies only two instances of sexually harassing conduct—the
magazine article and the doll—only one of which was directed at her. No
physical or sexual advances were made to Hague, as is characteristic of many
hostile environment claims. See, e.g., Waltman v. Int’l Paper Co., 875 F.2d 468,
477-78 (5th Cir. 1989). Nor were offensive comments made frequently over a
period of time. See, e.g., Farpella-Crosby v. Horizon Health Care, 97 F.3d 803,
806 (5th Cir. 1996). The record lacks evidence on any other factor suggesting
that Dr. Manifold’s conduct affected a term, condition, or privilege of Hague’s
employment. We conclude that these incidents described by Hague, though
wholly inappropriate, do not evince sufficiently pervasive hostility toward her
as a matter of law, and therefore, the district court properly granted summary
judgment for UTHSC on Hague’s sexual harassment claim.
C.    Retaliation
      Finally, Hague appeals the district court’s grant of summary judgment
in favor of UTHSC on her retaliation claim. Title VII prohibits an employer
from taking an adverse employment action against an employee because she
has filed an employment discrimination charge. See 42 U.S.C. § 2000e-3(a);
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 62 (2006). Hague
contends that UTHSC unlawfully retaliated against her in response to her

                                       7
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discrimination and harassment claims, and argues that UTHSC’s decision not
to renew her contract is a self-evident showing of retaliation.
      To establish a prima facie case of retaliation under Title VII, a plaintiff
“must establish that: (1) he participated in an activity protected by Title VII;
(2) his employer took an adverse employment action against him; and (3) a
causal connection exists between the protected activity and the adverse
employment action.” McCoy v. City of Shreveport, 492 F.3d 551, 556–57 (5th
Cir. 2007). Pursuant to the framework set out in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973), “[i]f the employee establishes a prima facie
case, the burden shifts to the employer to state a legitimate, non-retaliatory
reason for its decision. After the employer states its reason, the burden shifts
back to the employee to demonstrate that the employer’s reason is actually a
pretext for retaliation.” LeMaire v. La. Dep’t of Transp. & Dev., 480 F.3d 383,
388–89 (5th Cir. 2007) (internal citation omitted).
      An employee establishes pretext by showing that the adverse action
would not have occurred “but for” the employer’s retaliatory reason for the
action. Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533–34 (2013).
In order to avoid summary judgment, the plaintiff must show “a conflict in
substantial evidence” on the question of whether the employer would not have
taken the action “but for” the protected activity. Long v. Eastfield Coll., 88
F.3d 300, 308 (5th Cir. 1996) (internal quotation marks omitted).
      Prima Facie Case
      UTHSC contends that the summary judgment should be affirmed as to
the retaliation claim, stating that Hague did not explicitly challenge the
district court’s ruling that she failed to establish her prima facie case. This

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Court has frequently cited to our rule that an Appellant must attack all the
bases for the judgment of the district court. See Brinkmann v. Dallas Cnty.
Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987) (explaining that the
Court “will not raise and discuss legal issues that [Appellant] has failed to
assert”). However, in this case, while the district court discussed the causal
connection element of her prima facie case, a careful reading of the opinion
reveals that the court did not make a determination as to whether Hague had
established a causal connection between her complaint and UTHSC’s decision
not to renew her contract. Instead, the court suggested that Hague may not
have shown a causal connection, focusing on precedent that held that the
temporal proximity between the protected activity and the adverse
employment action was insufficient to establish a causal connection. The
district court then stated that even if Hague had made a prima facie case, it
found she had failed to show pretext.
      In her brief, Hague expressly states that she “has elected to pursue this
case under the pretext alternative.”        We understand why Hague did not
specifically challenge the district court’s holding as to her prima facie case
because the district court did not definitively rule on her prima facie case.
Under these circumstances, we cannot fault Hague for not making this
challenge. Accordingly, in light of no holding on the issue of a prima facie case,
and as set forth infra, our conclusion that Hague has demonstrated pretext,
we think it best to vacate and remand the judgment with respect to the




                                        9
                                            No. 13-50102

retaliation claim to allow the district court to determine in the first instance
whether Hague established a prima facie case of retaliation. 7
        The dissent disagrees with our conclusion that on remand the district
court must definitively address in the first instance whether Hague
established a prima facie case. Instead, relying on United States Postal Serv.
Brd. Of Governors v. Aikens, 460 U.S. 711 (1983), the dissent would hold that
because UTHSC produced legitimate, non-retaliatory reasons for the adverse
employment action, it is irrelevant whether Hague actually established a
prima facie case. However, this Court has repeatedly interpreted Aikens to
apply only after a trial. In Arismendez v. Nightingale Home Health Care, Inc.,
the employer argued that the employee had failed to establish a prima facie
case of discrimination. 493 F.3d 602, 607 (5th Cir. 2007). This Court rejected
that argument, explaining that “[b]ecause this case was ‘fully tried on the
merits,’ the McDonnell Douglas burden-shifting framework ‘drops from the


7
 We note that, on remand, the district court’s analysis of whether Hague has shown a causal connection
between her complaint and UTHSC’s decision not to renew her contract should not be limited solely to
the temporal proximity between the two events. Indeed, this Court has explained that a district court
properly weighs temporal proximity as part of the “entire calculation of whether [the employee] had
shown a causal connection between the protected activity” and the adverse employment action. Shirley v.
Chrysler First, Inc., 970 F.2d 39, 44 (5th Cir. 1992). As discussed more fully in our pretext analysis, in
addition to temporal proximity, Hague has pointed to Dr. Villers’s deposition testimony in which Dr.
Villers testified that he declined to renew Hague’s contract, in part, because of “issues of trust.” Hague
has also pointed to the termination of two other female employees who had supported Hague’s complaint,
and UTHSC’s lack of contemporaneous explanation of the reasons for Hague’s non-renewal of her
contract. Cf. id. at 43–44 (holding that, despite a 14-month gap between the protected activity and
adverse employment action, a plaintiff had established a prima facie case of causation by pointing to
evidence that the employer frequently referenced and made disparaging comments about the plaintiff’s
EEOC complaint and by drawing a comparison between pre- and post-complaint work performance
evaluations). Accordingly, we leave for the district court to determine in the first instance whether
Hague’s evidence demonstrates a causal connection between her filing a grievance and UTHSC’s
decision not to renew her employment contract.

                                                   10
                                  No. 13-50102

case.’” Id. (quoting Aikens, 460 U.S. at 713–14, 715). This Court further
explained that “after trial, the sufficiency of the prima facie case as such is no
longer relevant.” Id. (emphasis added) (quoting Russell v. McKinney Hosp.
Venture, 235 F.3d 219, 224 n.5 (5th Cir. 2000) (quoting Aikens, 460 U.S. at 715)
(internal quotation marks omitted)). This Court’s opinions in Arismendez and
Russell clearly interpreted the rule in Aikens to apply to cases that have gone
to trial. Accord Barnes v. Yellow Freight Sys. Inc., 778 F.2d 1096, 1100 (5th
Cir. 1985); Avant v. S. Cen. Bell Tele. Co., 716 F.2d 1083, 1086–87 (5th Cir.
1983). Moreover, under McDonnell Douglas, at the summary judgment stage
the burden of producing a legitimate, nondiscriminatory reason only shifts to
the employer after the plaintiff has established a prima facie case. There is no
authority in this Circuit that would allow the employee’s burden of
establishing a prima facie case to be extinguished simply because an employer
exercises its right to challenge the prima facie case and also proffers a
legitimate, nondiscriminatory reason for its decision.
      Nevertheless, citing Walther v. Lone Star Gas Co., 952 F.2d 119, 122 (5th
Cir. 1992), the dissent states that this Court has “followed Aikens and found
that the plaintiff’s prima facie case becomes irrelevant once the defendant
meets his burden of production.” Dissenting opinion at 2. However, in that
case, this Court specifically explained that “when a case has been tried on the
merits, a reviewing appellate court need not address the sufficiency of
plaintiff’s prima facie case, and may instead proceed directly to the ultimate
question whether plaintiff has produced sufficient evidence for a jury to find
that discrimination has occurred.” Walther, 952 F.2d at 122–23. Because the
instant case was not tried on the merits, Aikens does not apply. Further, we

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                                            No. 13-50102

do not read the Fifth Circuit cases cited by the dissent as holding that, during
the summary judgment stage, a plaintiff’s prima facie case becomes immaterial
once an employer produces legitimate, non-retaliatory reasons for the adverse
employment action. In any event, to the extent the cases can be so construed,
we are bound by our earlier precedent, Walther, which applies Aikens to cases
that have been tried on the merits. See Rios v. City of Del Rio, Tex., 444 F.3d
417, 425 n.8 (5th Cir. 2006) (stating that “where two previous holdings or lines
of precedent conflict the earlier opinion controls”). Finally, we note that in two
unpublished opinions this Court has expressly declined to adopt the rule that
whether a plaintiff has established a prima facie case becomes irrelevant once
the defendant produces legitimate reasons for the adverse employment action
in a summary judgment case. See Stallworth v. Singing River Health System,
469 F. App’x 369, 372 (5th Cir. 2012); Atterberry v. City of Laurel, 401 F. App’x
869, 871 n.1 (5th Cir. 2010). Accordingly, until the Supreme Court or this
Court, sitting en banc, rules otherwise, we follow our precedent and hold that
the district court must address whether Hague established a prima facie case
of retaliation. 8




8
 We note that there is a circuit split with respect to whether the holding in Aikens applies at the summary
judgment stage or only applies once there is a trial on the merits. Compare Brady v. Office of Sergeant at
Arms, 520 F.3d 490, 493–94 (D.C. Cir. 2008) (applying Aikens at summary judgment); Riser v. Target
Corp., 458 F.3d 817, 820–21 (8th Cir. 2006) (same); Cline v. Catholic Diocese of Toledo, 206 F.3d 651,
661 (6th Cir. 2000) (same); Lindemann v. Mobil Oil Corp., 141 F.3d 290, 296 (7th Cir. 1998) (same),
with Pepper v. Precision Valve Corp., 526 F. App’x 335, 336 n.* (4th Cir. 2013) (declining to apply
Aikens at the summary judgment stage); Hinds v. Sprint/United Mgmt. Co., 523 F.3d 1187, 1202 n.12
(10th Cir. 2008) (declining to find that a prima facie case is immaterial at the summary judgment stage);
Collado v. United Parcel Serv., Co.,419 F.3d 1143, 1150 (11th Cir. 2005) (recognizing that after a trial on
the merits, a court should not revisit whether a plaintiff established a prima facie case).

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           Pretext
           Assuming that Hague has demonstrated a prima facie case, the burden
shifts to the employer to state a legitimate, non-retaliatory reason for its
decision. Before the district court, UTHSC relied upon Dr. Villers’s testimony
in which he had given numerous reasons for his decision not to renew Hague’s
contract.         We think it significant that, although Dr. Villers refused to give
Hague any reason when he notified her that her contract was not being
renewed, during the instant litigation Dr. Villers was able to supply a laundry
list of reasons. Further, Dr. Villers admitted during his deposition that he
never provided Hague anything in writing regarding her alleged infractions. 9
           In any event, once UTHSC satisfies the burden of producing its reasons,
Hague must demonstrate that the reasons are actually pretext for retaliation.
An employee establishes pretext by showing that the adverse action would not
have occurred “but for” the employer’s retaliatory reason for the action.
Nassar, 133 S. Ct. at 2533–34. In order to avoid summary judgment, Hague
must show “a conflict in substantial evidence” on the question of whether the
employer would not have taken the action “but for” the protected activity.
Long, 88 F.3d at 308 (internal quotation marks omitted). We note that the
Supreme Court has explained that evidence establishing the prima facie case
and any inferences drawn therefrom may also be considered when determining
whether pretext has been shown. Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 143 (2000); accord Edwards v. Wal-Mart Stores, Inc., 247 F.3d
241 (table), 2001 WL 43546, at*3 (5th Cir. 2001).



9
    Dr. Villers did testify that he verbally counseled her regarding his concerns.
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                                 No. 13-50102

      Here, the district court held that “even if Hague could establish a causal
connection based on temporal proximity—thereby making out a prima facie
case of retaliation—her claim fails because UTHSC has offered, and she has
not rebutted, legitimate, non-retaliatory reasons for its decision not to renew
Hague’s employment for another term.”         We disagree and conclude that
Hague’s evidence raises a substantial conflict regarding whether her employer
would have decided to renew her contract but for her reported complaints.
      The district court stated that the only summary judgment evidence
Hague offered to rebut UTHSC’s reasons was her performance evaluation.
However, in her response to UTHSC’s motion for summary judgment, Hague
also pointed out that UTHSC did not renew the contract of other female
employees who had supported Hague’s complaint during the investigation. As
such, the district court’s analysis overlooks Hague’s reliance on the
termination of two other female employees who supported Hague’s complaint
as evidence of pretext.    One of the employees, Esther Tarango, was an
administrative assistant at UTHSC. Dr. Manifold had given Tarango the
previously mentioned sexually explicit doll, and it was that incident that
prompted Hague to file a sexual harassment complaint against Dr. Manifold.
In Tarango’s deposition, she testified that she brought the doll to the attention
of her supervisor. Tarango also testified that Dr. Blankmeyer interviewed her
during the investigation of Hague’s complaint. During the interview, Tarango
showed the doll to Dr. Blankmeyer and told Dr. Blankmeyer that she found
the doll offensive.
      Additionally, the evidence shows a conflict regarding Dr. Villers’s stated
reasons for not renewing Tarango’s contract.         Nasti v. CIBA Specialty

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Chemicals Corp., 492 F.3d 589, 594 (5th Cir. 2007) (“A court may infer pretext
where a defendant has provided inconsistent or conflicting explanations for its
conduct.”). 10 According to Tarango’s testimony, when Dr. Villers notified her
that that her contract was not being renewed, he said “due to the budget cuts,
we’re going to have to let you go.” However, during his deposition, Dr. Villers
testified he did not renew Tarango’s contract because he “needed a staff
position of a higher category according to the HR for the school and that higher
category would include a higher level of experience or education background.” 11
          With respect to the timeline of these events, Tarango was terminated at
the beginning of July 2011, and Hague had been notified that her contract
would not be renewed on June 20, 2011. Thus, Tarango, who had supported
Hague’s complaint during the investigation, was terminated shortly after
Hague was given notice of her non-renewal.
          As for the other employee who supported Hague’s complaint, Hague
testified that her colleague, Lou Ann Mullins, complained to Dr. Juanita
Wallace about the doll incident during the same week that Hague did. Dr.
Villers notified Mullins that her contract was not being renewed at the same
meeting in which he notified Hague. Similar to his testimony regarding the
non-renewal of Hague’s contract, Dr. Villers testified that he did not renew
Mullins’s contract because he “had issues of trust with her as well.”



10
 Although this evidence shows pretext with respect to UTHSC’s reasons for Tarango’s loss of
employment, we find it relevant in light of the similarity of Tarango’s support of Hague’s complaint.
11
     By the time of her deposition, Tarango had secured employment in another department at UTHSC.


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        We now turn to Hague’s complaint regarding Dr. Villers.                                In her
grievance, Hague complained, among other things, that right after an incident
in which Dr. Villers raised his voice at her, she was walking through a doorway
and “Dr. Villers was entering and he physically bumped into me and neither
apologized for his actions nor acknowledged my presence.”                               During the
grievance proceedings at UTHSC, Dr. Villers denied any physical contact with
Hague during the incident. During his deposition, Dr. Villers testified that he
made the decision not to renew Hague’s contract because “it came down to
issues of trust.” When explaining what issues of trust he had with Hague, Dr.
Villers referenced, among other things, Hague’s report in which she claimed
he bumped into her. Dr. Villers testified that Hague “said that I had pushed
her or shoved her, brushed up against her and – I don’t recall the exact
wording, but something in my mind implied that she was saying that I
assaulted her and that was not – I couldn’t accept her either lying or
misrepresenting something that had occurred.” Accordingly, when asked to
explain the basis for his decision not to renew her contract, Dr. Villers
expressly referenced a grievance Hague had filed against him. 12 Although Dr.
Villers testified that “[i]t wasn’t the issue of the reporting,” his testimony raises
a fact issue as to whether the decision not to renew her contract was caused by
her filing the grievance.

12
  Indeed, Dr. Villers’s testimony arguably may be viewed as direct evidence of discrimination because a
jury could find that this testimony proves that retaliation was the reason for the non-renewal of the
contract without any inferences or presumptions. Cf. Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 958
(5th Cir. 1993) (“Direct evidence of discrimination is evidence which, if believed, would prove the
existence of a fact (i.e., unlawful discrimination) without any inferences or presumptions.”).



                                                  16
                                 No. 13-50102

      Hague also relied upon the deposition testimony of her direct supervisor,
Joe Lindstrom, to rebut UTHSC’s proffered reasons. For example, Lindstrom’s
testimony rebutted UTHSC’s reason that Hague improperly documented her
hours on the time sheets.     Lindstrom’s testimony also rebutted UTHSC’s
reason that Hague’s taking patient files home constituted a privacy violation.
With respect to Lindstrom’s allegation that Hague inaccurately portrayed her
faculty title as indicating she was employed by the San Antonio Fire
Department, Lindstrom testified that that issue was not specific to Hague;
instead, it was an issue pertaining to the entire staff.      As for UTHSC’s
allegation that Hague failed to attend a particular conference and notify her
supervisors, Lindstrom testified Hague did advise him regarding her inability
to attend. He further testified that he did not consider her absence at the
conference a disciplinary problem. UTHSC also had pointed to Hague’s failure
to pass a written examination on the new operating procedures that had been
implemented. Lindstrom testified that approximately four employees did not
pass the initial examination; however, all the employees, including Hague,
eventually passed the test.
      In conclusion, we have reviewed the record and are convinced that,
viewing the evidence in the light most favorable to Hague, she has raised a fact
issue as to whether UTHSC would have renewed her contract but for her
complaints.   Simply put, a reasonable jury could conclude that UTHSC’s
reasons for not renewing Hague’s contract were pretextual.
      For the above reasons, the district court’s judgment is AFFIRMED in
part, VACATED in part and REMANDED for further proceedings.


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KING, Circuit Judge, concurring in part and concurring in the judgment.
      I concur fully in Parts I, II, III.A, and III.B of the Judge Benavides’
opinion.
      I further agree that, whether correctly or not, this circuit’s precedent
requires the district court to determine, at the summary judgment stage,
whether the plaintiff has established a prima facie case under McDonnell
Douglas. Thus, I also concur in Judge Benavides’ decision to remand the
retaliation claim to the district court to decide whether the plaintiff has made
a prima facie showing of retaliation and, if so, for a trial on the merits.




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JAMES L. DENNIS, Circuit Judge, concurring in part and dissenting in part:
      Although I concur in parts I, II, III-A and III-B of the majority opinion, I
respectfully dissent from part III-C and the resolution of Hague’s retaliation
claim. I agree with the majority’s holding that the evidence presented to the
district court raises a substantial conflict regarding whether Hague’s employer
decided not to renew her contract in retaliation for her participation in
protected activity, and thus the summary judgment order must be vacated in
part. However, I dissent from the majority’s conclusion that on remand, the
district court must now reassess whether Hague has established a prima facie
case before she may proceed to trial on her retaliation claim. I would instead
conclude that under U.S. Postal Service Board of Governors v. Aikens, 460 U.S.
711 (1983), once a defendant-employer produces legitimate, non-retaliatory
justifications for its actions, the plaintiff’s prima facie case is rendered
immaterial, and a court’s inquiry should focus on the plaintiff’s ultimate
burden of proving that the employer’s purportedly legitimate justifications for
its employment actions were a pretext for retaliation. Here, because all panel
members agree that Hague demonstrated genuine issues of material fact from
which a reasonable fact-finder could conclude that UTHSC’s proffered
justifications for its employment decision were mere pretext and that UTHSC
would have renewed Hague’s contract but for her complaints, I would vacate
the summary judgment order with regard to Hague’s retaliation claim and
remand the case for trial.
      Requiring that a plaintiff-appellant articulate a prima facie case of
retaliation, even after a defendant-employer has produced what it contends are
legitimate, non-retaliatory justifications for its actions, results in an
unnecessarily hyper-technical reading of the McDonnell Douglas burden-




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shifting framework. 1 The Supreme Court has explained that, “[t]he prima
facie case method established in McDonnell Douglas was ‘never intended to be
rigid, mechanized, or ritualistic.’” Aikens, 460 U.S. at 715. Rather, it functions
in practice as a “means of arranging the presentation of evidence.” St. Mary’s
Honor Ctr. v. Hicks, 509 U.S. 502, 510 n. 3 (1993) (internal quotation marks
omitted). In Aikens the Court explained:
      [W]hen the defendant fails to persuade the district court to dismiss
      the action for lack of a prima facie case, and responds to the
      plaintiff’s proof by offering evidence of the reason for the plaintiff’s
      rejection, the fact finder must then decide whether the rejection
      was discriminatory within the meaning of Title VII. . . . Where the
      defendant has done everything that would be required of him if the
      plaintiff had properly made out a prima facie case, whether the
      plaintiff really did so is no longer relevant. The district court has
      before it all the evidence it needs to decide whether “the defendant
      intentionally discriminated against the plaintiff.”
460 U.S. at 714-15. This court, along with a majority of our sister circuits, have
followed Aikens and found that the plaintiff’s prima facie case becomes
irrelevant once the defendant meets his burden of production. Walther v. Lone
Star Gas Co. 952 F.2d 119, 122 (5th Cir. 1992) (quoting Aikens and reasoning
that because “the defendant has done everything that would be required of him
if the plaintiff had properly made out a prima facie case . . . a reviewing
appellate court need not address the sufficiency of plaintiff’s prima facie case,
and may instead proceed directly to the ultimate question”); see also Noble v.
Brinker Int’l., Inc., 391 F.3d 715, 720-21 (6th Cir. 2004) (finding that once the


      1   In McDonnell Douglas, the Court explained that:
      The complainant in a Title VII trial must carry the initial burden . . . of
      establishing a prima facie case of racial discrimination. . . . The burden then
      must shift to the employer to articulate some legitimate, nondiscriminatory
      reason for the employee’s rejection. . . . [B]ut the inquiry must not end
      here . . . [The plaintiff must] be afforded a fair opportunity to show that [the
      defendant’s] stated reason for [plaintiff’s] rejection was in fact pretext.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 805-807 (1973).
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                                 No. 13-50102

defendant produced purportedly non-discriminatory justifications for its
actions, “our duty, given Aikens, is simply to determine whether [the plaintiff]
produced sufficient evidence to support the jury’s finding of intentional
discrimination”); Nellis v. Brown Cnty., 722 F.2d 853, 857 (7th Cir. 1983)
(concluding that when the defendant “attempted to rebut a prima facie
case . . . according to Aikens, the issue of a prima facie case is no longer
relevant”); Holmes v. Bevilacqua, 794 F.2d 142, 148 (4th Cir. 1986) (“when the
judge acted upon the Rule 41(b) motion, the issue was no longer one of a prima
facie case, and the question was whether the defendant had intentionally
discriminated against the plaintiff”); Thompson v. Union Carbide Corp. 815
F.2d 706, *4 (6th Cir. 1987) (unpublished) (“[O]nce the defendant responds
with proof of nondiscriminatory reasons for its actions, whether the plaintiff
made out a prima facie case is no longer relevant” (citing Fields v. Bolger, 723
F.2d 1216, 1219 (6th Cir. 1984))); Thompson v. Rockwell Int’l. Corp., 811 F.2d
1345, 1349 n.3 (10th Cir. 1987). Accordingly, in this case, when UTHSC has
done everything that would be required of it had Hague properly made out a
prima facie case, whether she really did so is no longer relevant. The district
court had before it all the evidence it needed to decide whether Hague had
sufficiently demonstrated a genuine issue of material fact regarding whether
the defendant intentionally retaliated against her.
      Although the instant case involves a summary-judgment order, and
Aikens was decided on appeal from a jury verdict, that difference in procedural
posture is immaterial. I am unpersuaded by the majority’s insistence that
because we have applied Aikens to appeals from judgments following a full
trial, we are consequently precluded from applying the Aikens rule to an appeal
from summary judgment, when the defendant-employer has done everything
that would be required of him had the plaintiff established a prima facie case.
As Judge Hartz in the Tenth Circuit has explained:
                                      21
                                  No. 13-50102

      There is no reason to limit Aikens to review of judgments after
      trial. . . . After all, the test for summary judgment is whether the
      evidence would support a verdict at trial. . . . If it is inappropriate
      to concern ourselves with whether the plaintiff has proved a prima
      facie case when we review a judgment after a trial in which the
      employer introduced evidence of its reasons for adverse actions
      against the plaintiff, it should also be inappropriate to worry about
      the prima facie case when we review a summary-judgment
      proceeding in which the employer proffered such evidence.
Wells v. Colo. Dep’t of Transp., 325 F.3d 1205, 1227-28 (10th Cir. 2003) (Hartz,
J., writing separately).    Not one case cited by the majority dictates the
conclusion that our precedent limits the Aikens rule to appeals following trial.
Rather, the precedent the majority relies upon simply applies Aikens to appeals
following a full trial on the merits, without commenting on whether Aikens
should be equally applied to appeals following summary judgment. See, e.g.,
Arismendez v. Nightingale Home Health Care, Inc., 493 F.3d 602, 607 (5th Cir.
2007).   Moreover, we have repeatedly applied the Aikens holding to the
summary-judgment context. See Shackelford v. Deloitte & Touche, LLP, 190
F.3d 398, 407 (5th Cir. 1999) (explaining that once a “case reache[s] the pretext
stage, the only question on summary judgment is whether the evidence of
retaliation, in its totality, supports an inference of retaliation”) (emphasis
added); Walton v. Bisco Indus., Inc., 119 F.3d 368, 371 (5th Cir. 1997) (“Once
the defendant has presented evidence that, ‘if believed by the trier of fact, would
support a finding that unlawful discrimination was not the cause of the
employment action,’ the shifted burden of production becomes ‘irrelevant.’”);
Messer v. Meno, 130 F.3d 130, 137 (5th Cir. 1997) (reversing summary
judgment in part and explaining that “[i]f the employer meets this burden, the
scheme of shifting burdens and presumptions ‘simply drops out of the
picture’”). Many of our sister circuits have likewise found that Aikens applies
on appeal from summary judgment. See, e.g., George v. Leavitt, 407 F.3d 405,


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                                  No. 13-50102

411 (D.C. Cir. 2005) (“[A]s part of the parties’ cross-motions for summary
judgment, the Government articulated legitimate reasons for George’s
discharge . . . . Accordingly, heeding Aikens’ instruction, we need not address
the Government’s contentions that George failed to make out a prima facie
case.”); Riser v. Target Corp., 458 F.3d 817, 820-21 (8th Cir. 2006) (reasoning
that, in a Title VII case, on review of a district court’s grant of summary
judgment, an appellate court should focus on the ultimate question of
retaliation or employment discrimination rather than on the prima facie
burden so that the court may “see the forest through the trees”); Brady v.
Office of Sergeant at Arms, 520 F.3d 490, 493-94 (D.C. Cir. 2008) (“[B]y the
time the district court considers an employer’s motion for summary
judgment . . . the employer ordinarily will have asserted a legitimate, non-
discriminatory reason for the challenged decision . . . . [Therefore,] the question
whether the employee actually made out a prima facie case is no longer
relevant and thus disappear[s] and drops out of the picture”) (internal
quotation marks omitted); Cline v. Catholic Diocese of Toledo, 206 F.3d 651,
662-63 (6th Cir. 2000) (reversing summary judgment without consideration of
the prima facie case because “by producing evidence of its nondiscriminatory
reason, a defendant has moved the inquiry to the ultimate factual question,”
and thus to inquire into the prima facie case “would mistakenly apply[] legal
rules which were devised to govern the basic allocation of burdens and order of
presentation of proof in deciding this ultimate question”); Dunaway v. Int’l
Bhd. of Teamsters, 310 F.3d 758, 762-63 (D.C. Cir. 2002) (explaining that
because the defendant “presented its full defense to [Plaintiff’s] claims when it
moved for summary judgment . . . [a]s in Aikens, the proper question now is
whether the employer unlawfully discriminated against the plaintiff”); Wixson
v. Dowagiac Nursing Home, 87 F.3d 164, 170 (6th Cir. 1996); Lindemann v.


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Mobil Oil Corp., 141 F.3d 290, 296 (7th Cir. 1998); Morrison v. City of
Bainbridge, 432 F. App’x 877, 881 n. 2 (11th Cir. 2011) (unpublished).
      The majority ignores binding precedent when it acknowledges that
UTHSC met its burden of production and that Hague in response raised
disputed issues of fact from which a reasonable jury could find that UTHSC
intentionally retaliated against her yet nonetheless requires the district court
to reconsider the sufficiency of Hague’s prima facie case. As I read Aikens and
our circuit’s precedent applying Aikens to the summary-judgment context, I
am compelled to conclude that once a defendant-employer has produced
evidence of nondiscriminatory justifications for its employment decision, our
inquiry must be focused upon the plaintiff’s ultimate burden—to prove that
the proffered justifications were mere pretext for the employer’s retaliation.
Because UTHSC has met its burden of producing non-retaliatory reasons for
its action, Hague’s prima facie case is now irrelevant to the resolution of her
claim. I therefore dissent from the holding that on remand, the district court
must reconsider Hague’s prima facie case of retaliation before proceeding to
trial. Accordingly, I would vacate summary judgment on the retaliation claim
and remand for trial.




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