     Case: 14-51349      Document: 00513278710         Page: 1    Date Filed: 11/19/2015




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

                                      No. 14-51349
                                                                                     Fifth Circuit

                                                                                   FILED
                                                                            November 19, 2015

FLORENCIO PUENTE SAUCEDA,                                                     Lyle W. Cayce
                                                                                   Clerk
              Plaintiff–Appellant,

v.

CITY OF PEARSALL, TEXAS,

              Defendant–Appellee.



                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:13-CV-784


Before PRADO, SOUTHWICK, and GRAVES, Circuit Judges.
PER CURIAM:*
       The district court granted summary judgment to Defendant–Appellee
City of Pearsall, Texas, (the “City”) and dismissed Plaintiff–Appellant
Florencio Puente Sauceda’s Title VII retaliation claim. Because we hold that
Sauceda failed to rebut the City’s legitimate, non-retaliatory reason for
suspending and ultimately terminating him, 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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       I.      FACTUAL AND PROCEDURAL BACKGROUND
      Sauceda was hired by the City of Pearsall as its City Manager on March
20, 2012. When Sauceda assumed this position, he entered a city government
with issues of harassment and inappropriate behavior. For instance, in June
2011, Rebecca Maldonado, a city employee, filed a complaint against City
Councilman Ronaldo Segovia alleging discrimination, harassment, retaliation,
and physical abuse. Another employee, Amy Diaz, also filed a complaint
regarding Segovia’s alleged harassment. In response, the City Council publicly
censured Segovia.
      According to Sauceda, shortly after he was hired, Segovia began
pressuring him to engage in illegal and improper conduct. Sauceda states that
Segovia “ordered me to terminate Ms. Rebecca Maldonado” because Segovia
was upset that Maldonado had made a complaint against him. Sauceda also
states that Segovia “ordered me not to hire certain females” and “ordered me
to terminate” another employee because he “was ‘too old.’” Sauceda alleges that
because he refused to comply with Segovia’s demands, he was targeted for
termination.
      Sauceda stated in his deposition that in the summer of 2012, four
members of the City Council, including Segovia, confronted him at his office in
City Hall and demanded that he resign and threatened to fire him. Sauceda
says that he believes the reason they demanded his resignation was because
he had failed to comply with Segovia’s commands that he fire certain
employees. When pressed further, however, Sauceda concedes that no
demands to fire anyone were made at that meeting and the City Council
members stated they were asking for his resignation because they “did not like
[his] management style” and “had lost confidence in [him].”
      Sauceda, however, was not immune from allegations of improper
conduct. Approximately a month after he was hired, two female employees filed
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complaints alleging that Sauceda had made inappropriate statements. These
complaints were later dismissed by the City’s Ethics Commission. In October
2012, several more female employees made complaints against Sauceda.
Rhonda Gonzalez stated that in July 2012, Sauceda inappropriately referred
to her as having “a gift” because she had a long tongue. To corroborate her
allegation, Gonzalez provided a July 6, 2012, email sent from Sauceda to
Gonzalez and four other employees in which Sauceda referred to Gonzalez as
“Ms. Gift.” Audry Jones alleged that Sauceda had made inappropriate
comments to her during her interview, stating that he had told her, “‘Your [sic]
really pretty, you look so exotic, you have pretty eyes.’” Delicia Hernandez
complained that Sauceda made lewd comments about her tongue ring,
commented on her looks, and inferred that she must be experienced at
intercourse because she had three children, repeatedly saying that “‘everyone
knows how to dance, you have 3 kids don’t you’ . . . like ‘dancing in bed.’”
Finally, Lupita Lopez complained that Sauceda “told her that she needed to
put on makeup” and wear high heels.
      These complaints were made to the City’s Director of Human Resources,
Cathleen Taylor. Taylor in turn reported the complaints to the City’s Special
Counsel, Robert J. Perez. According to the City Council members, Perez
delivered a report on his findings regarding the complaints against Sauceda.
Based on Perez’s report, the City Council unanimously voted to suspend
Sauceda without pay. 1
      According to the minutes from the November 12 City Council meeting,
prior to the meeting, the City received a letter from Sauceda’s attorney. This
letter stated that Sauceda had filed a Charge of Discrimination with the Equal



      1 The City’s Mayor, Albert Alvarez, was not present at this meeting. Accordingly,
Segovia acted as Mayor Pro Tem and did not participate in the vote.
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Employment Opportunity Commission (EEOC) against the the City and
Segovia and requested that the executive session be open to the public. 2
        On November 13, the day after the City Council voted to suspend him,
Sauceda’s attorney sent a letter to Perez alleging that Sauceda’s suspension
was unjustified and in violation of the Texas Whistleblower Act. According to
this letter, Sauceda alleged that his suspension was in retaliation for reporting
possible legal violations to the Frio County Attorney, Hector Lozano. The basis
for this claim was a November 9 email sent by Sauceda to Lozano in which
Sauceda alleged that City Council member Conrad Corassco “may have
received goods and services from a city employee . . . in violation of City policy,
ordinance, and/or state law.” Neither the letter from his attorney, nor
Sauceda’s email, mentioned the complaints made against him or challenged
their veracity. Sauceda was terminated as City Manager on November 27,
2012.
        Sauceda filed the instant suit in August 2013. Following the close of
discovery, the City moved for summary judgment in August 2014. In November
2014, the district court granted the City’s motion for summary judgment and
dismissed Sauceda’s suit. The district court found that while Sauceda had
made a prima facie case of retaliation, he had failed to show that the City’s
proffered non-retaliatory reason for suspending and terminating him—the
complaints of improper sexual conduct—was pretext. Namely, the district
court held that Sauceda had not rebutted the sworn declarations of the City
Council members who asserted that they decided to take action against
Sauceda based solely on the complaints that he had made inappropriate


        2 Sauceda’s EEOC complaint recites the allegations that Segovia had ordered him not
to hire females for certain positions and to fire several employees for allegedly illegal reasons.
It also states that “[b]ecause I have refused to carry out Mr. Segovia’s wishes, he has placed
me on the City Council’s agenda for termination.” The EEOC dismissed Sauceda’s complaint
in June 2013.
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comments of a sexual nature to a number of female employees. Accordingly,
the district court concluded that the City was entitled to judgment as a matter
of law.
           II.   JURISDICTION AND STANDARD OF REVIEW
      The district court had jurisdiction pursuant to 28 U.S.C. § 1331. The
district court entered judgment on October 21, 2014. Sauceda timely filed a
notice of appeal. This Court has jurisdiction under 28 U.S.C. § 1291.
      “We review a district court’s grant of summary judgment de novo.”
Morris v. Equifax Info. Servs., LLC, 457 F.3d 460, 464 (5th Cir. 2006). A court
should grant summary judgment if no genuine issue of material fact exists and
the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(a). A fact is material if it “might affect the outcome of the suit under the
governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). On
a motion for summary judgment, while “[t]he evidence of the non-movant is to
be believed, and all justifiable inferences are to be drawn in his favor,” id. at
255, to avoid summary judgment, “[t]he non-movant must go beyond the
pleadings and come forward with specific facts indicating a genuine issue for
trial,” Piazza’s Seafood World, LLC v. Odom, 448 F.3d 744, 752 (5th Cir. 2006).
                               III.   DISCUSSION
      Sauceda raises one issue on appeal: Whether the district court erred in
finding that he had failed to show that the City’s legitimate, non-retaliatory
reason for suspending and terminating him was pretext.
      Sauceda’s claim of retaliation in violation of Title VII is analyzed under
the McDonnell Douglas burden-shifting framework. Royal v. CCC & R Tres
Arboles, L.L.C., 736 F.3d 396, 400 (5th Cir. 2013) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 807 (1973)). Pursuant to this framework:
      (1) first, the employee must demonstrate a prima facie case of
      retaliation; (2) the burden then shifts to the employer, who must

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       state a legitimate non-retaliatory reason for the employment
       action; and (3) if that burden is satisfied, the burden then
       ultimately falls to the employee to establish that the employer’s
       stated reason is actually a pretext for unlawful retaliation.

Id.
       Here, the parties agree that Sauceda established a prima facie case of
retaliation and Sauceda does not challenge the district court’s conclusion that
the City met its burden of proffering a legitimate, non-retaliatory reason for
suspending and terminating him. Accordingly, the burden falls to Sauceda to
“demonstrate a material issue of disputed fact as to whether the [City’s]
proffered explanation was merely a pretext for retaliation.” Gee v. Principi, 289
F.3d 342, 347 (5th Cir. 2002). This requires more than showing a causal
connection between the protected activity and the adverse employment action.
See McMillan v. Ruse Coll., Inc., 710 F.2d 1112, 1116 (5th Cir. 1983). “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.” 3 Feist v. La., Dep’t of Justice, Office of
the Atty. Gen., 730 F.3d 450, 454 (5th Cir. 2013) (quoting Long v. Eastfield
Coll., 88 F.3d 300, 308 (5th Cir.1996)).
       The district court held that Sauceda had not met this burden because he
had failed to rebut the declarations of the City Council members or show the
existence of a conflict in the evidence. Sauceda contends that this was in error
because the district court focused too narrowly on the harassment complaints
while ignoring the broader context of his allegations. We disagree.


       3  “An employee has engaged in protected activity when [he or] she has (1) ‘opposed
any practice made an unlawful employment practice’ by Title VII or (2) ‘made a charge,
testified, assisted, or participated in any manner in an investigation, proceeding, or hearing’
under Title VII.” Douglas v. DynMcDermott Petroleum Operations Co., 144 F.3d 364, 372 (5th
Cir. 1998) (quoting 42 U.S.C. § 2000e-3(a)).

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                                        No. 14-51349
       Here, five of the City Council members who participated in the vote to
suspend and ultimately terminate Sauceda submitted declarations under
penalty of perjury testifying that they decided to take these actions based on
Special Counsel Perez’s investigation and report regarding the complaints that
Sauceda had made improper sexual comments to female employees. According
to these declarations, the City Council members were persuaded the
complaints had merit and warranted termination. Each of these City Council
members also declared that prior to voting, they were unaware of Sauceda’s
allegations that Segovia had pressured him to engage in allegedly unlawful
and discriminatory conduct or that Sauceda had purportedly refused to comply
with these demands.
       In response, Sauceda contends that a conflict in the evidence exists
because he testified in his deposition that Segovia had threatened to terminate
him numerous times if he didn’t fire certain female employees and that three
other City Council members took part in this threat in the summer of 2012
when they confronted Sauceda in his office. However, Segovia did not
participate in the vote to suspend or terminate Sauceda, 4 and five of the other
City Council members assert that they terminated Sauceda solely due to the
complaints of improper sexual conduct that had been made against him. These
declarations directly undermine Sauceda’s argument that his protected
activities were a “but for” cause of the adverse actions taken against him.
Because Sauceda failed to present evidence sufficient to rebut these




       4 In his appellate brief, Sauceda argues for the first time that Segovia’s alleged
retaliatory intent should be imputed to the other City Council members because he had
influence over, or control of, a majority of the City Council votes. Because this argument was
not properly raised before the district court we will not consider it here. See Keelan v. Majesco
Software, Inc., 407 F.3d 332, 339 (5th Cir. 2005) (“If a party fails to assert a legal reason why
summary judgment should not be granted, that ground is waived and cannot be considered
or raised on appeal.” (quoting Keenan v. Tejada, 290 F.3d 252, 262 (5th Cir. 2002))).
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declarations, he did not show a conflict in substantial evidence on the issue of
whether his protected activities were a but for cause of his suspension and
termination. Rather, the record shows that Sauceda was suspended and
terminated for an entirely independent reason—his alleged inappropriate
sexual conduct. Accordingly, Sauceda failed to raise a genuine issue of material
fact as to whether the City’s legitimate, non-retaliatory reason was pretext,
and judgment as a matter of law against him was appropriate.
                              IV.   CONCLUSION
      For the foregoing reasons, we AFFIRM the judgment of the district court
and DISMISS Sauceda’s appeal.




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