Glorioso v. MS Dept of Corr

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

____________________

No. 99-60147 Summary Calendar ____________________

DEIDRE GLORIOSO,

Plaintiff-Appellant,

v.

MISSISSIPPI DEPARTMENT OF CORRECTIONS; STEVE PUCKETT, Individually and as Commissioner of the Mississippi Department of Corrections; ALTON ELLIS, Individually and as Personnel Officer of the Mississippi Department of Corrections; NICKIE SIMMONS, Individually and as Satellite Director of the Harrison County Community Work Center; DON JOHNSON, Individually and as Head of Security at the Harrison County Community Work Center; JOHN DOES, 1-5,

Defendants-Appellees.

_________________________________________________________________

Appeal from the United States District Court for the Southern District of Mississippi (1:97-CV-3810-RG) _________________________________________________________________

August 20, 1999

Before KING, Chief Judge, HIGGINBOTHAM and STEWART, Circuit Judges.

PER CURIAM:*

Plaintiff-appellant Deidre Glorioso appeals the district

court’s grant of summary judgment on her Title VII retaliation

claim in favor of defendants-appellees the Mississippi Department

of Corrections, Steve Puckett, Alton Ellis, Nickie Simmons, Don

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Johnson, and John Does 1-5. We reverse and remand for further

proceedings consistent with this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

At the time of the events giving rise to this lawsuit,

plaintiff-appellant Deidre Glorioso was employed by defendant-

appellee the Mississippi Department of Corrections (MDOC) as a

clerk typist senior1 at the Harrison County Community Work Center

(the Center) in Gulfport, Mississippi. Glorioso began working at

the Center in December 1994. Shortly thereafter, defendant-

appellee Nickie Simmons, the Center’s director and Glorioso’s

immediate supervisor,2 attempted to procure a raise for her but

failed because Glorioso did not meet the MDOC’s requirements

therefor. In his March and June 1995 employee performance

reports, Simmons rated Glorioso “highly successful” and “fully

successful” in the areas in which he evaluated her work.

On October 19, 1995, Glorioso became involved in an

altercation with defendant-appellee Don Johnson, the Center’s

head of security. According to Glorioso,

I was in my office, and I don’t know if you’ve been out to the prison or not, but it’s quiet like it is right now. It was about 2:00 in the afternoon, I think. It was very unusually quiet. It’s usually turmoil. And I was sitting at my desk, and some new inmates had come in. And I had, I remember, four files just like this on my desk because I was taking information out of them to put on records for Nickie and the rest of them. I used to put things like their

1 It appears from the record that “clerk typist senior” was Glorioso’s official job title. 2 Simmons’s duties included making recommendations to hire and fire Center employees. In December 1994, he recommended that the MDOC hire Glorioso.

2 tatoos [sic], their date of birth, information Nickie had asked me to do. And when I was doing it I noticed one of them was like missing. So I said to myself very softly like I’m saying right now, I wonder what I did with that other file, which I often did. That’s all I said. And before you know it, Sergeant Johnson comes flying out of his office from this way and stands in front of me and starts screaming at me. He said, You will get that file when I’m good and ready to give it to you. And I looked at him like I’m looking at you right now in disbelief. And I said, What did you say. And he said it again. He said, God damn, you heard me. And I was like in shock. And I said, you know, I really don’t like the way you speak to me. He said, I don’t give a damn whether you like it or not. He said, You’re a bitch. And I went, Excuse me. He said, You’ve been bitching all the time. You’re always a bitch or--three times he said the bitch word in that sort of order, and he walked into his office.

Glorioso verbally reported these events to Simmons, telling him

that Bob Bellman, a Center case worker, and David Randle, an

inmate, might have heard Johnson call her a “bitch.”3 Simmons

questioned Johnson and Bellman, but not Randle, about the

incident. Johnson denied calling Glorioso a “bitch” but admitted

saying that she was always “bitching.” Bellman claimed that he

had not heard Johnson’s remarks. Simmons then told Glorioso “to

try to get along with Johnson.”

On October 31, 1995, however, Glorioso filed a written

grievance with Simmons. Specifically, Glorioso stated:

On October 19, 1995, Sgt. Don Johnson committed unwarranted abusive language to me. In anger and without hesitation he used the “bitch” term toward me several times. This loud abusive style was in the administration office, where in attendance were inmate David Randle, Case Manager, Bob Bellman and Captain Nickie Simmons all within hearing distance.

3 The parties disagree as to when Glorioso first told Simmons of the Johnson incident. Glorioso testified in her deposition that she reported it to Simmons on October 19, 1995, but Simmons claims that she did not do so until October 27, 1995.

3 The next day, November 1, 1995, Simmons dismissed Glorioso’s

grievance as invalid because she was a probationary employee. On

November 6, 1995, Simmons recommended in a written memorandum to

Ray Hinton, the MDOC’s regional director, that Glorioso be

terminated. Simmons stated that although Glorioso had “done an

excellent job performing her clerk typist duties,” she had

“jumped the chain of command” by calling the state personnel

office in December 1994 to ask why she did not qualify for a pay

raise. In addition, Simmons noted that “Mrs. Glorioso’s attitude

toward Sgt. Johnson has not been positive since her first day at

work.” He then described how she had complained both orally and

in writing that Johnson had “verbally abused her.” Finally,

Simmons asserted: “It is my belief that Mrs. Glorioso will never

make an attempt to get along with Sgt. Johnson if she remains

employed with the Mississippi Department of Corrections. I

respectfully request she be terminated immediately for her

actions since she is a probationary employee.” Hinton agreed

with Simmons’s recommendation and forwarded it to Christopher

Epps, the MDOC’s deputy commissioner, for his review. Epps also

recommended that Glorioso be terminated and forwarded Simmons’s

memorandum and his and Hinton’s recommendations to defendant-

appellee Steve Puckett, commissioner of the MDOC, for a final

decision. On November 14, 1995, Puckett notified Glorioso in

writing that her employment was terminated effective November 17,

1995.

4 Glorioso filed a charge with the Equal Employment

Opportunity Commission (EEOC) alleging that she had been

terminated in retaliation for filing a grievance against Johnson.

After receiving a right-to-sue letter, Glorioso filed suit in the

United States District Court for the Southern District of

Mississippi alleging claims under 42 U.S.C. §§ 2000e to 2000e-17

(“Title VII”), 42 U.S.C. § 1983, and 42 U.S.C. § 1985 against the

MDOC, Puckett, Alton Ellis, MDOC’s personnel officer, Simmons,

Johnson, and five John Does (collectively, the defendants). The

parties consented to trial by a magistrate judge. Following

discovery, the defendants filed a Motion to Dismiss or, in the

Alternative, for Summary Judgment, and the magistrate judge

granted summary judgment in their favor on all of Glorioso’s

claims. Glorioso appealed.

II. STANDARD OF REVIEW

We review a district court’s grant of summary judgment de

novo, applying the same standards as the district court. See

United States v. Johnson, 160 F.3d 1061, 1063 (5th Cir. 1998).

After consulting applicable law in order to ascertain the

material factual issues, we consider the evidence bearing on

those issues, viewing the facts and the inferences to be drawn

therefrom in the light most favorable to the non-movant. See Doe

v. Dallas Indep. Sch. Dist., 153 F.3d 211, 214-15 (5th Cir.

1998). Summary judgment is properly granted if “the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

5 genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law.” FED. R. CIV. P.

56(c).

III. DISCUSSION

On appeal, Glorioso challenges only the lower court’s grant

of summary judgment on her claim that, in violation of Title VII,

she was discharged in retaliation for protesting Johnson’s sex

discrimination and sexual harassment. The magistrate judge

concluded that Glorioso failed to establish a prima facie

retaliation case because she showed neither that she was engaged

in activity protected by Title VII nor that a causal link existed

between such activity and her termination. Moreover, the

magistrate judge found, “even assuming that Glorioso could

establish a prima facie case of unlawful retaliation, the

Defendants can rebut the prima facie case with a legitimate, non-

retaliatory reason for terminating her. . . . This Court cannot

conclude that but for Glorioso’s filing of the grievance, the

Defendants would not have terminated her. Therefore, the

Defendants’ Motion for Summary Judgment should be granted.”

We begin with first principles. A plaintiff establishes a

prima facie case for unlawful retaliation by proving (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.

See Grimes v. Texas Dep’t of Mental Health & Mental Retardation,

102 F.3d 137, 140 (5th Cir. 1996); Long v. Eastfield College, 88

6 F.3d 300, 304 (5th Cir. 1996). An employee has engaged in

activity protected by Title VII if she has either (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. 42 U.S.C. § 2000e-3(a); see Grimes, 102 F.3d at 140;

Long, 88 F.3d at 304. The opposition clause of § 2000e-3(a)

requires the employee to demonstrate that she had at least a good

faith, reasonable belief that the practices she opposed were

unlawful. See Wilson v. UT Health Ctr., 973 F.2d 1263, 1267 (5th

Cir. 1992); Payne v. McLemore’s Wholesale & Retail Stores, 654

F.2d 1130, 1140 (5th Cir. 1981).

We previously have held that the burden-shifting structure

applicable to Title VII disparate treatment cases, as set forth

in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973),

is also applicable to Title VII unlawful retaliation cases. See

Grimes, 102 F.3d at 140-41; Long, 88 F.3d at 304. Therefore,

once the plaintiff establishes a prima facie case, the burden of

production shifts to the defendant to articulate a legitimate,

nondiscriminatory reason for the adverse employment action. See

Grimes, 102 F.3d at 140; Long, 88 F.3d at 304-05. If the

defendant introduces evidence which, if believed, would permit

the conclusion that the challenged employment action was

nondiscriminatory, the inference of discrimination raised by the

plaintiff’s prima facie case disappears, and the focus shifts to

the ultimate question of whether the defendant unlawfully

7 retaliated against the plaintiff. See Grimes, 102 F.3d at 140;

Long, 88 F.3d at 305.4

With these principles in mind, we turn to the case at hand.

As we noted above, the first element of a prima facie case for

unlawful retaliation is that the plaintiff engage in activity

protected by Title VII. Glorioso contends that she filed a

grievance voicing her opposition to Johnson’s sex discrimination

and sexual harassment. The defendants respond that “[t]here is

no evidence that when Glorioso complained to Defendant Simmons

regarding her altercation with Johnson that she was complaining

of anything other than general harassment not based on gender.

Her written grievance makes no suggestion that Johnson’s actions

were sexual in nature, or that she considered the incident to be

sexual harassment.” The magistrate judge noted that Glorioso

testified in her deposition that she knew when Johnson called her

a “bitch” that she had been sexually harassed, but concluded that

“[t]he Court does not agree with Glorioso’s contention. In her

grievance, Glorioso did not claim that she had been sexually

4 We have noted that while, at first glance, the ultimate issue in an unlawful retaliation case--whether the defendant discriminated against the plaintiff because the plaintiff engaged in conduct protected by Title VII--seems identical to the third element of the plaintiff’s prima facie case--whether a causal link exists between the adverse employment action and the protected activity--the standards of proof applicable to these questions differ significantly. See Long, 88 F.3d at 305 n.4. Under Title VII, we explained, a plaintiff “need not prove that her protected activity was the sole factor motivating her employer’s challenged decision in order to establish the causal link element of a prima facie unlawful retaliation case,” but is required to show that the protected activity was a “but for” cause of the adverse employment action in order ultimately to prevail. Id. (internal quotation marks omitted).

8 harassed, or that Johnson’s conduct was in any way directed at

her because of her sex. For this reason, the Court is of the

opinion that Glorioso did not have a reasonable belief that

Johnson’s conduct was unlawful, and therefore, Glorioso cannot

prove the first element of her prima facie case.” This ruling

was error.

When deciding a motion for summary judgment, a court must

consider the evidence and all reasonable inferences to be drawn

therefrom in the light most favorable to the non-movant, in this

case Glorioso. See Doe, 153 F.3d at 214-15. Although Glorioso’s

written grievance made no explicit reference to sex

discrimination or sexual harassment, she stated unequivocally in

her deposition, “I knew the moment he called me a bitch that I

was sexually harassed.” In addition, she testified that she

“knew it was some sort of sexual harassment” and that she

believed that Johnson’s calling her a “bitch” was “[s]exual

discrimination maybe, but not discrimination from my job.”5 This

evidence is sufficient to raise a genuine issue of fact as to

whether Glorioso held a good faith, reasonable belief that the

practices she opposed were unlawful. See Wilson, 973 F.2d at

1267; Payne, 654 F.2d at 1140.6

5 Glorioso’s deposition testimony distinguishes her case from Watts v. Kroger Co., 170 F.3d 505, 511 (5th Cir. 1999), in which we held that the plaintiff’s complaint that her supervisor “was making comments about her personal life” was not protected activity under Title VII because the plaintiff herself admitted that she did not report any sexual harassment in that complaint. 6 We note that neither the magistrate judge nor the defendants appear to dispute Glorioso’s contention in her brief

9 Next, we turn to the magistrate judge’s conclusion that

“[e]ven assuming that Glorioso could meet the first element of

her prima facie case, she is unable to meet the third element,

which is that a causal link existed between the protected

activity and the adverse employment action.” The summary

judgment evidence establishes that Glorioso filed a grievance

with Simmons against Johnson and that Simmons recommended

Johnson’s termination within a week after he received the

grievance. In addition, Simmons explained in a memorandum

recommending Glorioso’s termination that Glorioso’s “attitude

toward Sgt. Johnson has not been positive since her first day of

work,” cited her October 1995 grievance as the only example of

this allegedly negative attitude, and requested that “she be

terminated immediately for her actions.” This evidence is

sufficient to raise a genuine issue of fact as to whether there

was a causal link between Glorioso’s grievance and Simmons’s

decision to recommend her termination. Cf. Long, 88 F.3d at 306

(“The summary judgment evidence establishes that Long and Reavis

filed complaints against Clark and Kelley, that Clark and Kelley

that her belief in the unlawfulness of the practices she opposed was objectively reasonable. Rather, the magistrate judge found that there is no genuine issue of fact as to whether Glorioso in fact believed that Johnson’s actions violated Title VII. While the defendants note that “the use of the word ‘bitch’ towards a female employee is not sexual harassment per se,” they ground their argument on the contention that Glorioso did not actually believe that Johnson’s behavior violated Title VII, not that such a belief would be objectively unreasonable. We therefore express no opinion as to whether a woman could reasonably believe that being called a “bitch” under the circumstances of this case was a practice unlawful under Title VII.

10 had knowledge of these complaints, and that Clark and Kelley

recommended that Long and Reavis be terminated after learning of

these complaints. Accordingly, we have no trouble finding

sufficient evidence, for prima facie case purposes, to establish

a causal link between Long and Reavis’s protected activities and

Clark and Kelley’s recommendations.”) (citation omitted).

As in Long, however, we must consider whether the fact that

Simmons did not himself terminate Glorioso but instead

recommended her termination to Hinton, who made the same

recommendation to Epps, who in turn recommended termination to

Puckett, who made the final decision to fire Glorioso, severs the

causal link between Simmons’s allegedly retaliatory

recommendation and Glorioso’s final termination. In Long, the

plaintiffs were fired by a college president on the

recommendations of their immediate supervisors. See id. at 306.

We held that if the college president based his decisions on his

own independent investigation, the causal link between the

supervisors’ allegedly retaliatory intent and the plaintiffs’

terminations would be broken. See id. at 307. If, on the other

hand, the president did not conduct his own investigation, and

instead merely “rubber stamped” the supervisors’ recommendations,

the causal link between the plaintiffs’ protected activities and

their subsequent terminations would remain intact. See id. The

degree to which Hinton’s and Epps’s recommendations and Puckett’s

ultimate decision were based on their own independent

investigations is, of course, a question of fact. See id.

11 Viewing the evidence in the light most favorable to Glorioso, we

must conclude that Hinton, Epps, and Puckett each merely “rubber

stamped” Simmons’s recommendation. Hinton testified at his

deposition that he had forwarded Simmons’s memorandum to Epps

“with a recommendation of termination based on Mr. Simmons’s

request.” Epps stated that he had never refused to approve a

recommendation for termination. Puckett averred that he

“probably would have asked” Epps about Simmons’s recommendation

that Glorioso be terminated but could not remember whether he in

fact had done so. None of the three officials who reviewed

Simmons’s recommendation testified that he had conducted an

independent investigation of Glorioso’s case. Accordingly, for

purposes of this appeal, we hold that Glorioso has presented

sufficient evidence to establish a causal link between her

protected activities and her termination.

Finally, we address the magistrate judge’s conclusion that

“even assuming that Glorioso could establish a prima facie case

of unlawful retaliation, the Defendants can rebut the prima facie

case with a legitimate, non-retaliatory reason for terminating

her.” The defendants offered the following explanations for

Glorioso’s termination: She was a probationary employee; she had

on one occasion jumped the chain of command; she sometimes

refused to type reports; and she did not get along with her

coworkers. These explanations, if believed, would support a

finding that the MDOC’s termination of Glorioso was non-

retaliatory. Because the defendants have satisfied their burden

12 to articulate a legitimate, non-retaliatory reason for Glorioso’s

termination, McDonnell Douglas’s burden-shifting framework drops

from the case. See Long, 88 F.3d at 308 (citing St. Mary’s Honor

Ctr. v. Hicks, 509 U.S. 502, 511 (1993)).

We are now left with the ultimate question: whether the

defendants unlawfully retaliated against Glorioso. As we noted

earlier, a plaintiff must show that the adverse employment action

would not have occurred “but for” the protected activity in order

to prove unlawful retaliation. See id. To defeat a motion for

summary judgment, a Title VII plaintiff, like plaintiffs in any

other civil case, must show that there is a “conflict in

substantial evidence” on this ultimate issue. Rhodes v.

Guiberson Oil Tools, 75 F.3d 989, 993 (5th Cir. 1996) (en banc)

(internal quotation marks omitted). Evidence is “substantial” if

it is “of such quality and weight that reasonable and fair-minded

men in the exercise of impartial judgment might reach different

conclusions.” Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir.

1969) (en banc). We must therefore determine whether reasonable

and fair-minded persons could conclude from the summary judgment

evidence that the MDOC would not have terminated Glorioso “but

for” her activity protected by Title VII.

In response to the defendants’ proffered explanations for

her termination, Glorioso presented evidence tending to show that

the but-for cause of her termination was retaliatory animus, not

the reasons the defendants gave. First, she showed that Simmons

rated her “fully successful” or “highly successful” in all

13 evaluation categories in March and June 1995. Neither evaluation

noted that Glorioso had any difficulty getting along with her

coworkers or refused to perform her duties as a clerk typist

senior. Second, she produced evidence that in response to

inquiries from the EEOC and the Mississippi Employment Security

Commission about Glorioso’s termination, the MDOC had explained,

not that she had jumped the chain of command, refused to carry

out assigned tasks, or had difficulty getting along with her

colleagues, but simply that she was a probationary employee

subject to termination without cause. Third, with respect to

Simmons’s claim that he recommended Glorioso’s termination in

part because she jumped the chain of command, Glorioso produced

evidence that the incident in question occurred within the first

six weeks of her MDOC employment and that it apparently did not

affect subsequent performance evaluations. Fourth, Simmons’s

memorandum to Hinton describes in detail Glorioso’s altercation

with Johnson, including her grievance, and then recommends that

“she be terminated immediately for her actions.” In addition,

Simmons admitted in his deposition that he told Glorioso that

there would be “problems” if she filed a grievance:

Q. [by counsel] Do you deny that it would caused some problems if she filed a grievance?

A. No. I don’t deny that. What I said was, I said, Dee, this is a very small office. We don’t have that many people here. I said, Are you sure this is what you want to do as far as filing a grievance. She said, Yes. I said, Okay.

Finally, Simmons stated that the “only reason” he mentioned

Johnson in the termination memorandum as an example of the

14 individuals with whom Glorioso did not get along was “because she

wanted to file a grievance.” We find that a reasonable

factfinder could conclude based on this evidence that Glorioso

would not have been terminated but for the fact that she engaged

in activity protected under Title VII. The district court erred

in granting summary judgment in favor of the defendants.

IV. CONCLUSION

For the foregoing reasons, we REVERSE and REMAND for further