     Case: 17-41115      Document: 00514585207         Page: 1    Date Filed: 08/03/2018




                           REVISED August 3, 2018

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

                                                                                FILED
                                    No. 17-41115                            June 22, 2018
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
FRANCISCO JAVIER RODRIGUEZ,

                                                 Plaintiff-Appellant

v.

BROWNSVILLE INDEPENDENT SCHOOL DISTRICT,

                                                 Defendant-Appellee


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 1:16-CV-157


Before BENAVIDES, SOUTHWICK, and COSTA, Circuit Judges.
PER CURIAM: *
       Plaintiff-Appellant Francisco Javier Rodriguez (“Rodriguez”) appeals the
district court’s grant of summary judgment in favor of his employer,
Brownsville Independent School District (“BISD”), on his claims of sex and
disability discrimination, retaliation, and failure to promote.                  Finding no
reversible error, we AFFIRM.

       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 17-41115    Document: 00514585207       Page: 2   Date Filed: 08/03/2018


                                No. 17-41115

      I.    FACTUAL AND PROCEDURAL HISTORY
      In August of 2012, Rodriguez began working as a teacher at Rivera High
School in BISD. While filling out his employment papers, Rodriguez listed his
domestic partner as his emergency contact. Rodriguez states that he did not
tell BISD that he was gay until after he was hired.          In 2013, Rodriguez
disclosed that he was disabled and obtained leave benefits under the Family
and Medical Leave Act for his medical condition. Rodriguez explained that
during flare-ups of his condition, he needed to take intermittent leave for
treatments. BISD granted his request for accommodations—such as to be
placed near a restroom.
      On August 14, 2014, Rodriguez had a conversation with Christina
Garzoria (“Garzoria”), the school’s Career Placement Officer, in which he
inquired about teaching upper division classes. Rodriguez states that Garzoria
responded, asking “doesn’t your 504 (disability accommodation) require that
you be near a restroom?” Garzoria also informed Rodriguez that the position
in question had already been filled. Rodriguez admitted that he did not apply
for the position and that no one prevented him from applying for the position.
The next day, Rodriguez sent an email to a human resources officer
complaining that Garzoria’s statements constituted discrimination based on
his disability and denied him the opportunity to obtain the position. He states
that he never received a response to his email.
      Rodriguez had ongoing problems with two female colleagues, Garzoria
and a fellow teacher, Michael Ann Rivera (“Rivera”). Rodriguez received two
reprimands that stemmed from these personal clashes. On September 11,
2014, Rivera emailed a complaint about Rodriguez to the principal, Aimee
Garza-Limon (“Principal”). In that email, Rivera referenced the meeting that
she and Rodriguez had with the Principal at the end of the previous school year



                                      2
    Case: 17-41115     Document: 00514585207      Page: 3   Date Filed: 08/03/2018


                                   No. 17-41115

when they all agreed to “put anything in the past behind us and move forward
as a team within our Education and Training program.” Rivera stated that
although she had attempted to follow the directives, “Rodriguez is continuing
to personally attack me in front of students in an attempt to either humiliate
me or cause me harm.”      More specifically, she stated that a student told her
that Rodriguez had asked what work they were doing in Rivera’s class, and the
student showed Rodriguez the journal he was keeping for Rivera’s class.
Rodriguez “held up the journal and asked his class if that journal looked like
high school work. He then laughed at the work [Rivera] had been giving them
in front of the entire class.” Rivera stated that she was “furious that Mr.
Rodriguez continues to behave in such a manner towards [her].” She further
stated that she “no longer feel[s] safe as I have a number of students who were
his last year who are among my new students this year. [Her] concern is that
he will someone [sic] convince one of them to cause some kind of harm to me,
my family or my students.” In a separate communication with the Principal,
Rivera also reported that Rodriguez had transported a student in his personal
vehicle in violation of school policy.
      The Principal confirmed with the students and Rodriguez that Rodriguez
had made disparaging comments to the students about the work assigned in
Rivera’s class and that Rodriguez had given a student a ride in his personal
vehicle. However, Rodriguez claimed he had permission from the student’s
parents. The Principal gave Rodriguez a verbal warning and asked him to
“refrain from indirectly or directly sharing his opinion about other teachers’
instructional practices in front of the students to avoid conflict with faculty
members.” She reminded him that she had previously given notice to teachers
that they were not to transport students in their personal vehicles. She also
informed him that he would need proper documentation to be able to transport



                                         3
     Case: 17-41115      Document: 00514585207         Page: 4    Date Filed: 08/03/2018


                                      No. 17-41115

students. Later, during Rodriguez’s deposition, he testified that he did not
believe this reprimand was based on discrimination.
       Approximately two weeks later, on October 1, Rodriguez was involved in
a second incident, and this incident resulted in a written reprimand. Garzoria
was questioning students who were in the hall after the tardy bell rang.
Rodriguez “suddenly came out of [his] classroom and raised [his] voice at her
demanding that she stop talking to these students. Then, [he] positioned
[himself] in front of her, raised [his] hand at her and directed students to leave
the area.” The Principal confirmed these events with the hall monitor, who
witnessed the incident. The Principal wrote a reprimand because Rodriguez
had left his classroom unattended and had shown disrespect toward his
colleague. Subsequently, Rodriguez admitted during his deposition that the
Principal was justified in writing a reprimand based on this behavior.
       On December 22, Rodriguez filed a charge of discrimination with the
Equal Employment Opportunity Commission (“EEOC”) against BISD in which
he named Garzoria. Several months later in February of 2015, Rodriguez and
Garzoria were driving their cars and nearly collided on a road outside the
school.    They accused each other of attempting to cause a collision, and
Rodriguez filed a police report alleging that Garzoria had attempted to run him
off the road.
       At some point, the Principal learned that the Texas Department of
Family and Protective Services (“DFPS”) had begun investigating Rodriguez
based on allegations of abuse or neglect of students. Rodriguez believes that
Garzoria made the complaint to the DFPS. 1 Rodriguez does not allege that the

       1 During her deposition, the Principal testified that she did not know who filed the
report with DFPS. Rodriguez claims an email shows that the Principal knew Garzoria filed
the report, and thus, he asserts that she lied. Rodriguez does not provide a citation to the
record for the email. There is an email from the Principal in which she refers to the
investigation and stated that Garzoria’s name was included in the report. Although Garzoria


                                             4
    Case: 17-41115     Document: 00514585207      Page: 5    Date Filed: 08/03/2018


                                  No. 17-41115

Principal or Assistant Superintendent made these allegations to the DFPS.
Ultimately, DFPS concluded that the evidence did not show that the alleged
abuse occurred.
      The Principal sent an email to Assistant Superintendent Carlos Guerra
(“Assistant Superintendent”) requesting that Rodriguez be transferred or
placed on administrative leave because the situation had escalated such that
it had become a safety issue and was affecting the campus climate. The
Assistant Superintendent testified that he moved both Garzoria and Rodriguez
to different schools because there was a personality conflict. He further stated
he moved both of them to other schools within BISD because he did not want
to be perceived as “favoring anyone over the other.” The transfers occurred
without interruptions to their service or adjustment to their pay rate.
      On June 29, 2016, Rodriguez filed a complaint in federal district court
against BISD, alleging BISD discriminated against him based on his age, sex,
and disability by not promoting him and by transferring him to another school.
The complaint also alleged that BISD retaliated against him for filing
complaints. BISD filed a motion for summary judgment, which the district
court granted. Rodriguez now appeals.
      II.   STANDARD OF REVIEW
       We review a grant of summary judgment de novo, applying the same
standards as the district court. Am. Home Assurance Co. v. United Space
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




may have filed the report with DFPS, we do not read the email as indicating that the
Principal had actual knowledge that Garzoria filed the report.


                                         5
    Case: 17-41115     Document: 00514585207      Page: 6   Date Filed: 08/03/2018


                                  No. 17-41115

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.   ANALYSIS
             A. Retaliation Claims
      Rodriguez appeals the district court’s grant of summary judgment in
favor of BISD on his retaliation claims. Title VII prohibits an employer from
taking an adverse employment action against an employee because he 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). Rodriguez contends
that BISD unlawfully retaliated against him in response to his filing a
complaint, and argues that BISD’s decision to transfer him and deny him a
promotion shows 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, 570 U.S. 338, 362 (2013). In



                                        6
    Case: 17-41115       Document: 00514585207   Page: 7   Date Filed: 08/03/2018


                                  No. 17-41115

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).
      Rodriguez asserts that he participated in protected activity when he filed
internal complaints with BISD and an EEOC charge.              The district court
concluded that Rodriguez did not offer any evidence that BISD was aware of
the EEOC charge at the time of the alleged retaliatory acts. Rodriguez does
not point to any evidence on appeal showing that BISD was aware of the EEOC
charge at the relevant time. Thus, Rodriguez fails to establish a prima facie
case of retaliation with respect to the EEOC charge.
      With respect to the internal complaints, the evidence shows that the
decision makers at BISD were aware of those complaints. Rodriguez contends
that BISD’s failure to promote him to an upper level teaching position was an
adverse employment action. However, an employee’s failure to apply for a
promotion will bar a failure-to-promote claim unless there is a showing that
such an application would have been a futile gesture. Shackelford v. Deloitte
& Touche, LLP, 190 F.3d 398, 406 (5th Cir. 1999). To show applying would
have been futile “usually requires a showing that the applicant for the
promotion was deterred by a known and consistently enforced policy of
discrimination.”   Id.     Here, Rodriguez did not apply for the promotion.
Moreover, he has failed to show that BISD had a “known and consistently
enforced policy of discrimination” that would have deterred him from applying.
Id. Accordingly, he has failed to establish that the failure to promote him was
an adverse employment action. Thus, he has not established a prima facie case
of retaliation with respect to his failure to promote claim.




                                        7
    Case: 17-41115    Document: 00514585207     Page: 8     Date Filed: 08/03/2018


                                 No. 17-41115

      Rodriguez also argues that BISD retaliated against him by transferring
him to a different position. He contends that the transfer was an adverse
employment action because it was a less prestigious position, and the students
were more difficult at the new school. We will assume arguendo that Rodriguez
could establish a prima facie case of retaliation based on the transfer.
However, he has not shown a conflict in substantial evidence with respect to
whether BISD would not have transferred him but for his filing a complaint.
Long v. Eastfield Coll., 88 F.3d at 308. The undisputed evidence previously set
forth shows that Rodriguez had an extremely contentious relationship with
two of his coworkers, Rivera and Garzoria. The Principal issued a verbal
reprimand based on his disrespectful conduct toward Rivera and a written
reprimand based on his disrespectful conduct toward Garzoria. Rodriguez does
not dispute the validity of the two reprimands.           During his deposition,
Rodriguez admitted that the Principal was justified in issuing the written
reprimand and that he did not consider the verbal reprimand to be evidence of
discrimination.   Moreover, BISD also transferred Garzoria.          Under these
circumstances, Rodriguez has not shown a conflict in substantial evidence that
BISD would not have transferred him but for his filing a complaint.
            B. Discrimination Claims
               1. Disability Discrimination
      Rodriguez argues that BISD discriminated against him because of his
disability in violation of the Americans with Disabilities Act (“ADA”). To make
a prima facie showing of discrimination, a plaintiff must establish that: (1) he
is disabled; (2) he is qualified for the job; (3) he was subjected to an adverse
employment action because of his disability; and (4) he was replaced by a non-
disabled employee. McInnis v. Alamo Comm. Coll. Dist., 207 F.3d 276, 279-80
(5th Cir. 2000). “Once the plaintiff makes his prima facie showing, the burden



                                       8
     Case: 17-41115       Document: 00514585207          Page: 9     Date Filed: 08/03/2018


                                       No. 17-41115

then shifts to the defendant-employer to articulate a legitimate, non-
discriminatory reason for the adverse employment action.” Id. at 280. The
burden then “shifts back upon the plaintiff to establish by a preponderance of
the evidence that the articulated reason was merely a pretext for unlawful
discrimination.” Id.
       Rodriguez argues that he was not offered an upper level teaching
position because of his disability in violation of the ADA. This is the same
position discussed in the analysis of the retaliation claim. Rodriguez asserts
that when he called to inquire about the position, he was asked about whether
his disability accommodation required him to be near a restroom.                         It is
undisputed that Rodriguez is disabled.              However, as previously set forth,
Rodriguez admits that he never actually applied for the job. Indeed, at the
time that he inquired regarding the position, it had already been filled. Thus,
he has failed to show that he was subject to an adverse employment action,
and this claim fails.
                  2. Sex Discrimination
       Rodriguez next claims that BISD discriminated against him based on his
“gender non-conformity or because he was gay.” To establish a prima facie case
of sex discrimination, a plaintiff must show that he: (1) belongs to a protected
class; (2) was qualified for the position; (3) suffered an adverse employment
action; and (4) was replaced by a similarly qualified person who was not a
member of his protected group. McCoy v. City of Shreveport, 492 F.3d 551, 556
(5th Cir. 2007). We will assume arguendo for purposes of this appeal that
sexual orientation is a protected class for Title VII claims. 2 Nevertheless, this
claim fails because Rodriguez does not show that any decision-maker at BISD


       2 “Title VII in plain terms does not cover ‘sexual orientation.’” Brandon v. Sage Corp.,
808 F.3d 266, 270 n.2 (5th Cir. 2015). As in Brandon, we do not now decide whether sexual
orientation is a protected class. Id.


                                              9
    Case: 17-41115       Document: 00514585207          Page: 10     Date Filed: 08/03/2018


                                       No. 17-41115

discriminated against him based on his sexual orientation. The allegations he
makes about “anti-gay comments” and accusations that he had inappropriate
relationships with the students involve his co-workers—not the Principal, the
Assistant Superintendent, or the Superintendent. 3 The Principal and the
Assistant Superintendent recommended that Rodriguez be transferred, and
the Superintendent was the ultimate decision-maker. Rodriguez has failed to
show any discriminatory animus on the part of the decision makers. Rios v.
Rossotti, 252 F.3d 375, 382 (5th Cir. 2001) (explaining that statements by non-
decision-makers fail to satisfy a plaintiff’s burden of establishing a prima facie
case). This claim is without merit. 4
       IV.    CONCLUSION
       For the above reasons, the judgment of the district court is AFFIRMED.




       3  In the Statement of Facts section of his brief, Rodriguez claims that the Assistant
Superintendent testified that the accusations against him “raised a red flag” because there
have been instances of inappropriate relationships between students and teachers across the
state. We will assume arguendo that the substance of this testimony would be sufficient
evidence of discrimination. However, Rodriguez’s cite to the deposition in the record does not
reveal that testimony. Our precedent is clear that unsupported allegations are insufficient
to preclude a motion for summary judgment. Clark v. America’s Fav. Chicken Co., 110 F.3d
295, 297 (5th Cir. 1997). In other words, the lack of evidence does not create a material
question of fact to defeat summary judgment.
        4 Rodriguez does not adequately brief a claim of age discrimination, and therefore it

is forfeited. Yohey v. Collins, 985 F.2d 222, 224–225 (5th Cir. 1993) (citing FED.R.APP.P. 28).


                                             10
