REVISED DECEMBER 21, 2001 IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 00-51212 _____________________
SALOME FIERROS
Plaintiff - Appellant
v.
TEXAS DEPARTMENT OF HEALTH
Defendant - Appellee
_________________________________________________________________
Appeal from the United States District Court for the Western District of Texas, San Antonio _________________________________________________________________ November 21, 2001 Before KING, Chief Judge, and DUHÉ and BENAVIDES, Circuit Judges.
KING, Chief Judge:
Plaintiff-Appellant Salome Fierros appeals from the district
court’s summary judgment dismissing her Title VII retaliation
claim. For the following reasons, we REVERSE the district
court’s judgment and REMAND to that court for further
proceedings.
I. FACTUAL AND PROCEDURAL BACKGROUND
For over twenty-five years, Plaintiff-Appellant Salome
Fierros, a Hispanic female, worked as a laboratory technician for the Texas Center for Infectious Disease, a department of the
Texas Department of Health (“TDH”). In October 1996, Fierros
filed an internal complaint with TDH’s Office of Civil Rights
(“OCR”) against the Clinical Division Program Director, Douglas
Arnold, alleging that he had discriminated against her based on
her ethnicity and gender. Specifically, she claimed that Arnold
had discriminated against her by assigning her secretarial duties
that a Hispanic male and a white female who were also laboratory
technicians were not required to perform. Seven months later, in
May 1997, Arnold denied Fierros a merit pay increase of $57 per
month that had been recommended by her immediate supervisor,
Timothy Carter.
After confronting Arnold about his denial of the merit pay
increase, Fierros filed another internal complaint with the OCR
alleging that she had been denied the pay increase in retaliation
for filing the original OCR discrimination complaint against
Arnold. She then filed a charge with the Equal Employment
Opportunity Commission (“EEOC”) alleging gender and national
origin discrimination and retaliation in violation of 42 U.S.C.
§§ 2000e-2(a) and 2000e-3(a) (1994) (“Title VII”).
While her EEOC charge was pending, Fierros received two
disciplinary “counseling sessions,” one in September 1998
regarding purported abuse of the sick leave policy and another in
November 1998 regarding purported inappropriate sexual behavior
in the workplace. Fierros amended her EEOC charge to allege that
2 TDH also retaliated against her by subjecting her to these two
disciplinary actions. On June 4, 1999, the EEOC issued a
determination on Fierros’s charges, finding that “[b]ased upon
the totality of the evidence, there is reasonable cause to
believe that [TDH’s] employment decisions were [retaliatory] as
alleged with respect to [Fierros’s] being denied a merit increase
and subjected to written counselings because she complained of
discrimination.” However, the EEOC concluded that the evidence
did not support Fierros’s charge of gender and national origin
discrimination. Because it found that TDH had violated Title
VII, the EEOC recommended informal methods of conciliation.
The EEOC sent its determination of Fierros’s case to the
U.S. Department of Justice (“DOJ”) for review. On September 28,
1999, the Civil Rights Division of the DOJ sent Fierros a letter
giving her notice of her right to bring a Title VII action
against TDH within ninety days of receipt of the letter. On
December 16, 1999, Fierros timely filed suit against TDH in
federal district court, claiming that TDH had retaliated against
her in violation of 42 U.S.C. § 2000e-3(a). The district court
granted TDH’s motion for summary judgment on October 16, 2000,
dismissing Fierros’s retaliation claim. The district court
subsequently extended the deadline for filing a motion for
reconsideration of the summary judgment to November 10, 2000.
Fierros filed her motion for reconsideration three days late, and
the district court denied the motion.
3 On November 16, 2000, Fierros timely appealed the district
court’s summary judgment against her. On February 20, 2001, she
filed a motion with this court to supplement the record on appeal
with the exhibits that she had attached to her motion for
reconsideration of the district court’s summary judgment
decision. According to Fierros, those exhibits were “treated as
stricken” by the district court. This court denied her motion to
supplement the record on March 12, 2001.
II. SUMMARY JUDGMENT STANDARD OF REVIEW
We review a district court’s grant of summary judgment de
novo, applying the same Rule 56 standard as the district court.
Blow v. City of San Antonio, 236 F.3d 293, 296 (5th Cir. 2001)
(citing FED. R. CIV. P. 56). “Although summary judgment is not
favored in claims of employment discrimination, it is nonetheless
proper when ‘there is no genuine issue as to any material fact
and . . . the moving party is entitled to judgment as a matter of
law.’” Waggoner v. City of Garland, 987 F.2d 1160, 1164 (5th
Cir. 1993) (quoting FED. R. CIV. P. 56(c)). In making a summary
judgment determination, “[d]oubts are to be resolved in favor of
the nonmoving party, and any reasonable inferences are to be
drawn in favor of that party.” Evans v. City of Bishop, 238 F.3d
586, 589 (5th Cir. 2000). The Supreme Court recently emphasized
the paramount role that juries play in Title VII cases, stressing
that in evaluating summary judgment evidence, courts must refrain
from the making of “[c]redibility determinations, the weighing of
4 the evidence, and the drawing of legitimate inferences from the
facts,” which “are jury functions, not those of a judge.” Reeves
v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)
(quoting Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986)).
III. TITLE VII RETALIATION CLAIM
Under 42 U.S.C. § 2000e-3(a), it is
an unlawful employment practice for an employer to discriminate against any of his employees . . . because [the employee] has opposed any practice made an unlawful employment practice by this subchapter, or because [the employee] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.
42 U.S.C. § 2000e-3(a) (1994). In order to establish a prima
facie case of retaliation under § 2000e-3(a), a plaintiff must
demonstrate: “(1) that she engaged in activity protected by Title
VII, (2) that an adverse employment action occurred, and (3) that
a causal link existed between the protected activity and the
adverse employment action.” Evans v. City of Houston, 246 F.3d
344, 352 (5th Cir. 2001) (quoting Long v. Eastfield Coll., 88
F.3d 300, 304 (5th Cir. 1996)).
This court has determined that only “ultimate employment
decisions,” “such as hiring, granting leave, discharging,
promoting, and compensating” satisfy the “adverse employment
action” element of a prima facie case of retaliation. Dollis v.
Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995) (citation omitted).
“‘[I]nterlocutory or mediate’ decision[s] which can lead to an
5 ultimate decision” are insufficient to support a prima facie case
of retaliation. Mattern v. Eastman Kodak Co., 104 F.3d 702, 708
(5th Cir. 1997). Put differently, the “ultimate employment
decision” doctrine requires that actionable adverse employment
actions “have more than a ‘mere tangential effect on a possible
future ultimate employment decision.’” Mota v. Univ. of Tex.
Houston Health Sci. Ctr., 261 F.3d 512, 519 (5th Cir. 2001)
(quoting Walker v. Thompson, 214 F.3d 615, 629 (5th Cir. 2000)).
The allocation of the burden of proof in Title VII
retaliation cases depends on the nature of the plaintiff’s
evidence supporting the causation element. If the plaintiff
seeks to establish causation by circumstantial evidence, the
tripartite burden-shifting framework of McDonnell Douglas
applies. See Portis v. First Nat’l Bank, 34 F.3d 325, 328 (5th
Cir. 1994) (“Because direct evidence is rare, a plaintiff
ordinarily uses circumstantial evidence to meet the test set out
in McDonnell Douglas[, which] establishes a prima facie case by
inference.”). Under the McDonnell Douglas framework, the
plaintiff carries the initial burden of establishing a prima
facie case of retaliation. See McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973). At this threshold stage, the standard
for satisfying the causation element is “much less stringent”
than a “but for” causation standard. Long, 88 F.3d at 305 n.4.
A McDonnell Douglas prima facie showing establishes an
inference of retaliatory motive that the employer can rebut by
6 producing evidence of a legitimate, non-retaliatory reason for
the adverse action. Evans, 246 F.3d at 354. If the employer
produces such evidence, then the plaintiff has the burden of
proving that the Title VII protected activity “was a ‘but for’
cause of the adverse employment decision.” Long, F.3d at 305
n.4. “If the plaintiff presents evidence supporting the prima
facie case, plus evidence that the reasons given by the employer
for the adverse employment action were pretextual, a jury may
infer” the existence of this “but for” causation. Mota, 261 F.3d
at 519-20 (citing Reeves, 530 U.S. at 148).
If, on the other hand, the plaintiff presents direct
evidence that the employer’s motivation for the adverse action
was at least in part retaliatory, then the McDonnell Douglas
framework does not apply. See Moore v. U.S. Dep’t of Agric., 55
F.3d 991, 995 (5th Cir. 1995) (noting that because the plaintiffs
presented direct evidence of discriminatory animus, they “are
entitled to bypass the McDonnell Douglas burden-shifting
framework commonly applied in discrimination cases and proceed
directly to the question of liability”). In such “direct
evidence” cases, “the burden of proof shifts to the employer to
establish by a preponderance of the evidence that the same
decision would have been made regardless of the forbidden
factor.” Brown v. E. Miss. Elec. Power Ass’n, 989 F.2d 858, 861
(5th Cir. 1993).
7 The district court’s summary judgment in favor of TDH rested
on two grounds. First, the district court held that Fierros
failed to establish the “adverse employment action” element of a
retaliation claim because the district court determined that a
denial of a pay increase does not, as a matter of law, amount to
an “adverse employment action” under this court’s decision in
Mattern.1 Second, the district court found that Fierros
presented insufficient evidence of the causation element because
she demonstrated only “a subjective belief that TDH’s actions
were retaliatory in nature.” We conclude that both of these
determinations are erroneous and that Fierros has introduced
sufficient evidence to entitle her to present her retaliation
claim to a jury.
A. Whether the Denial of a Pay Increase Can Be an “Adverse Employment Decision”
TDH argues that the district court properly interpreted
Mattern as holding that pay increase denials are not “ultimate
employment decisions” as a matter of law, and thus cannot form
the basis of a Title VII claim. Fierros contends that this court
should repudiate its “ultimate employment decision” doctrine
because it is contrary to the Supreme Court’s decisions in
1 In the district court, Fierros claimed that TDH retaliated against her by subjecting her to unjustified disciplinary actions (i.e., the two “counseling sessions”) as well as by denying her the merit pay increase. On appeal, however, she bases her retaliation claim only on the pay increase denial. Accordingly, we do not address whether the disciplinary counseling sessions constitute adverse employment actions for Title VII purposes.
8 Robinson v. Shell Oil Co., 519 U.S. 337 (1997), Burlington
Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v.
City of Boca Raton, 524 U.S. 775 (1998). According to Fierros,
these three decisions indicate that this court’s “ultimate
employment decision” doctrine improperly narrows the scope of
Title VII by excluding employment actions such as pay increase
denials from the statute’s protection.2
2 In Robinson, Burlington Industries, and Faragher, the Supreme Court’s holdings expanded the category of “employment actions” that may provide the basis for liability under Title VII. In Robinson, the Court held that actions by former employers are included within the anti-retaliation provision of Title VII. 519 U.S. at 346. In Burlington Industries and Faragher, the Court held that an employer may be held vicariously liable for an employee’s sexual harassment claim in cases in which a “tangible employment action” did not occur. See Burlington Indus. 524 U.S. at 765-66; Faragher, 524 U.S. at 807. In addition to the generally expansive nature of these cases, Burlington Industries and Faragher are noteworthy in the context of this court’s “ultimate employment decision” doctrine because the Supreme Court sets out a relatively broad definition of “tangible employment action”: “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Burlington Indus., 524 U.S. at 761; see also Faragher, 524 U.S. at 790 (stating that tangible employment actions include “hiring, firing, promotion, compensation, and work assignment”). In pointing to Burlington Industries, Fierros undoubtedly relies on the Court’s conclusion that “[i]n the context of this case, a tangible employment action would have taken the form of a denial of a raise or a promotion.” 524 U.S. at 761 (emphasis added). This court has recognized that the definition of “tangible employment action” developed in the sexual harassment context in Burlington Industries may be the proper “adverse employment action” standard for Title VII retaliation claims, but has not yet decided the issue. See Watts v. Kroger Co., 170 F.3d 505, 510 n.4, 511 n.5 (5th Cir. 1999) (“We do not reach the question of whether ‘tangible employment action,’ as defined by [Burlington Industries], is identical to our definition of an ‘adverse employment action’ found in Mattern,” because “even if Burlington lowers the bar as to what qualifies as an adverse
9 Fierros paints with a broader stroke than is necessary to
decide this case. We need not evaluate whether the “ultimate
employment decision” doctrine is undermined by the Supreme
Court’s recent Title VII decisions because Mattern does not hold
that the denial of a pay increase can never be an “ultimate
employment decision.” Rather, Mattern establishes only that the
denial of the pay increase that occurred in that case was not an
“ultimate employment decision.” In reaching that conclusion, we
explained that the possibility of a pay increase was significant
to the plaintiff only because it was one of the necessary
conditions of passing a training program for a new position. The
plaintiff’s “conten[tion was] that . . . receiving poor
evaluations and a missed [pay] increase were ‘quickly leading to
the ultimate adverse employment action.’” Id. (emphasis in
original). In contrast, in the instant case, Arnold’s denial of
Fierros’s recommended pay increase is the employment action from
which Fierros sought relief in federal court.
The language of Title VII further supports our reading of
Mattern. Title VII’s anti-retaliation provision makes it
unlawful “for an employer to discriminate against any of his
employees” because the employee engaged in a protected activity.
42 U.S.C. § 2000e-3(a) (emphasis added). In Mattern we relied on
§ 2000e-2(a)(1) to ascertain the meaning of “discriminate” in
employment action, Watts cannot satisfy the definition of a tangible employment action as defined by Burlington.”) (citations omitted).
10 § 2000e-3(a). See Mattern, 104 F.3d at 708-09. Subsection
2000e-2(a)(1) provides: “It shall be an unlawful employment
practice for an employer . . . to fail or refuse to hire or to
discharge any individual, or otherwise to discriminate against
any individual with respect to his compensation, terms,
conditions, or privileges of employment.” § 2000e-2(a)(1)
(emphasis added). This language clearly contemplates that the
denial of a pay increase can be an act of “discrimination”
against an employee.
Moreover, in cases since Mattern, we have held that a denial
of a pay increase and similar actions are “ultimate employment
decisions.” In Rubinstein v. Administrators of the Tulane
Educational Fund, this court upheld a jury verdict that the
employer had unlawfully retaliated against the plaintiff in
denying him a pay raise. See 218 F.3d 392, 402 (5th Cir. 2000).
Similarly, in Mota, we reasoned that the employer’s
discontinuation of the plaintiff’s stipend qualified as an
“ultimate employment decision” because it was “a compensation
decision.” 261 F.3d at 521; see also id. (concluding that the
employer’s denial of paid leave was an “ultimate employment
decision” for purposes of the plaintiff’s Title VII retaliation
claim).
Conceding that our cases recognize that employment actions
affecting compensation are often “ultimate employment decisions,”
TDH argues that such actions are “ultimate employment decisions”
11 only if the employee’s current compensation is reduced.
According to TDH, the employment action at issue in the instant
case, i.e., a “simpl[e] fail[ure] to receive a modest increase in
pay,” does not rise to the level of an “ultimate employment
decision.” This distinction is untenable. If Fierros had
received the merit pay increase, she would be making a higher
salary. The merit pay increase is important to her not only as a
recognition of her contribution to TDH as a laboratory
technician, but also as a source of income. As Fierros points
out, in light of her annual salary of $20,924.97, the $57-per-
month pay increase is not, as TDH claims, “de minimis.” It is
illogical to construe Title VII as prohibiting discriminatory
decreases in pay, but permitting discriminatory denials of pay
increases.
We hold that in light of our reasoning in Mattern, the
language of Title VII, and our post-Mattern jurisprudence, the
denial of a pay increase can be an “ultimate employment decision”
actionable under Title VII’s anti-retaliation provision. We
further conclude that in the instant case, Arnold’s denial of
Fierros’s merit pay increase was an “ultimate employment
decision.” Fierros seeks Title VII relief from the denial of the
pay increase itself, and not from any employment action that the
pay increase denial might lead to. Thus, she has established the
second element of a prima facie case for retaliation.
12 Because Fierros’s filing of the internal discrimination
complaint against Arnold is a Title VII “protected activity,”
Fierros has also satisfied the first element of the prima facie
case for retaliation. See Dollis, 77 F.3d at 779, 781
(recognizing that the plaintiff’s use of her employer’s internal
administrative process to file an employment discrimination
complaint “is clearly protected activity” for purposes of a Title
VII retaliation claim). TDH does not attempt to argue otherwise.
Accordingly, Fierros is entitled to a jury trial if she presented
sufficient summary judgment evidence of the third element, i.e.,
that Arnold denied her the merit pay increase because she filed
the discrimination complaint against him.
B. Whether the Evidence of Causation Was Sufficient to Survive Summary Judgment
In addition to holding that Fierros failed to assert an
“ultimate employment decision,” the district court concluded that
Fierros failed to present any evidence other than her “subjective
belief” that Arnold had a retaliatory motive in denying her the
merit pay increase. Although TDH does not defend this second
ground of the district court’s summary judgment, TDH does insist
that we should not consider the evidence of retaliatory motive
that Fierros submitted with her motion for reconsideration of the
summary judgment. According to TDH, because Fierros did not file
that motion until after she filed her notice of appeal, and
because she does not attempt to argue in her brief that the
district court erred in denying that motion, she may not rely on
13 that evidence in urging this panel to reverse the summary
judgment against her.
We need not determine whether it would be appropriate to
consider the evidence that Fierros filed with her motion for
reconsideration. There is sufficient evidence in the record
relied upon by the district court to raise a genuine issue of
material fact regarding whether TDH retaliated against Fierros in
violation of Title VII. The summary judgment record includes an
affidavit in which Fierros states that Arnold told her that she
had been denied the pay increase because she filed a
discrimination complaint against him. Such an affidavit is
direct evidence that Arnold had a retaliatory motive because it
“is evidence which, if believed, proves the fact [of intentional
retaliation] without inference or presumption.” Brown, 989 F.2d
at 861.
Apparently, the district court concluded that the affidavit
evinced only Fierros’s “subjective belief” that a retaliatory
motive was behind Arnold’s decision to deny her the pay increase.
But Fierros does not attest to her belief that Arnold had a
retaliatory motive in her affidavit. She attests that Arnold
made a statement to her admitting that he had a retaliatory
motive. “In the context of Title VII, direct evidence includes
any statement or written document showing a discriminatory motive
on its face.” Portis, 34 F.3d at 329; cf. Rubinstein, 218 F.3d
at 402 (finding that a dean’s testimony that he denied a
14 professor a pay raise because the professor filed a
discrimination suit against the university “could be no more
direct on the issue of retaliation”). Further, in Portis, we
explicitly rejected the argument that the plaintiff’s testimony
regarding the employer’s discriminatory statements was merely
testimony “regarding [the plaintiff’s] subjective belief.” 34
F.3d at 329. We noted that in contrast to testimony regarding
subjective belief, testimony regarding the employer’s statements
is direct evidence because it “require[s] no additional inference
to conclude that [the plaintiff] was [discriminated against].”
Id.
Unlike a case in which the plaintiff has presented only
circumstantial evidence of retaliatory animus, we do not apply
the McDonnell Douglas burden-shifting framework to determine
whether Fierros’s direct evidence presents a factual issue for a
jury. See Trans World Airlines, Inc. v. Thurston, 469 U.S. 111,
121 (1985) (“[T]he McDonnell Douglas test is inapplicable where
the plaintiff presents direct evidence of discrimination.”);
Portis, 34 F.3d at 328 (same). Fierros’s affidavit by itself
precludes summary judgment because it presents a genuine issue of
material fact regarding whether “[retaliatory] animus in part
motivated or was a substantial factor in the contested employment
action.” Brown, 989 F.2d at 861; see also Vance v. Union
Planters Corp., 209 F.3d 438, 442 (5th Cir. 2000) (noting that
even if the Title VII plaintiff “were the only witness to testify
15 about the [employer’s discriminatory] statements[,] that would
not warrant taking the case out of the jury’s hands”); Portis, 34
F.3d at 329-30 n.10 (reversing the district court’s grant of the
employer’s post-verdict motion for judgment as a matter of law,
noting that “the plaintiff’s testimony on its own . . . is enough
to establish intentional discrimination”).
Our determination that Fierros has raised a jury question
about whether Arnold intended to retaliate against her when he
denied her the merit pay increase is further supported by
circumstantial evidence. See Vance, 209 F.3d at 443 (concluding
that while the testimony regarding the employer’s discriminatory
statements was sufficient direct evidence of discrimination to
support the jury’s verdict for the plaintiff, this direct
evidence was also supported by circumstantial evidence). First,
the person who was the subject of Fierros’s discrimination
complaint (Arnold) was the same person who denied her the pay
increase.
Second, the evidence that Fierros produced regarding the
two disciplinary “counseling sessions” that she received after
filing her EEOC charge further indicates the existence of a
retaliatory motive. Although we need not determine whether these
two disciplinary actions are “ultimate employment decisions,” see
supra note 1, even if the disciplinary actions do not amount to
ultimate employment decisions, they may still evince Arnold’s
retaliatory motive. The plaintiff in Thomas v. Texas Department
16 of Criminal Justice “presented evidence that after [she filed]
EEOC charges she was disciplined twice, and she had never
received any disciplinary actions in the 18 years prior to the
filing of her charges.” 220 F.3d 389, 394 (5th Cir. 2000).
Although this court held that the disciplinary actions taken
against the plaintiff were not “ultimate employment decisions,”
we noted that “[t]he jury could properly consider” the
disciplinary actions “as indications of [the employer’s
retaliatory] motives in . . . fail[ing] to promote or transfer
[the plaintiff],” i.e., the “ultimate employment decisions” at
issue. Id. at 394 & n.2.
Fierros’s evidence regarding the two counseling sessions is
similar to the evidence of disciplinary actions that this court
found persuasive in Thomas. Fierros was disciplined twice within
a two-month period after she filed a second internal
discrimination complaint with the OCR and her initial charge with
the EEOC. Fierros had been a highly-regarded employee at TDH for
over twenty years before she filed the discrimination charges.
It is undisputed that Carter recommended that Fierros receive the
merit pay increase because of her work performance, and Fierros
produced documentary evidence showing that she had maintained an
impressive performance record as a TDH employee. Further,
Fierros presented evidence that another employee who filed
discrimination charges against TDH was also given a counseling
session for abuse of the sick leave policy after she filed the
17 charges, and that an employee who had not filed any charges and
was otherwise similarly-situated to Fierros (i.e., who engaged in
the same conduct as that which formed the basis of the
disciplinary action taken against Fierros) was not given
counseling sessions.
Even assuming that Fierros had presented only circumstantial
evidence and thus that the McDonnell Douglas framework applied,
she would have raised a factual issue precluding summary
judgment. Fierros’s circumstantial evidence is certainly
sufficient under the initial “much less stringent than ‘but for’”
standard to establish a prima facie showing of causation. See
Long, 88 F.3d at 306 (concluding that in light of the evidence
that the employer knew about the protected activity and took the
adverse employment action thereafter, “we have no trouble finding
sufficient evidence, for prima facie case purposes, to establish
a causal link”). Because TDH has not offered a non-retaliatory
reason for denying Fierros the pay increase that would rebut the
inference of retaliatory animus raised by Fierros’s prima facie
case, Fierros need not establish more than a prima facie case of
retaliation to survive summary judgment.
IV. CONCLUSION
We conclude that (1) TDH’s denial of Fierros’s merit pay
increase is an “ultimate employment decision,” and (2) Fierros
presented sufficient direct evidence of causation to withstand
summary judgment. Thus, we REVERSE the district court’s judgment
18 in favor of TDH and REMAND to that court for further proceedings.
Costs shall be borne by TDH.