IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-20463
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MARY ANN PATTON,
Plaintiff-Appellee,
versus
SCHLUMBERGER TECHNOLOGY CORPORATION,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court for the
Southern District of Texas
(CA-H-93-641)
_________________________________________________________________
August 9, 1996
Before POLITZ, Chief Judge, and JOLLY and BARKSDALE, Circuit
Judges.
E. GRADY JOLLY, Circuit Judge:*
In this retaliation case, Schlumberger Technology Corporation
appeals a judgment entered in favor of Mary Ann Patton. The jury
found that Schlumberger had retaliated against Patton by firing her
almost two years after she filed--and more than fourteen months
after she dropped--an EEOC claim alleging sex and age
discrimination. The jury found $500,000 in damages, but the
*
Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
district court reduced the award to $333,552.08, including
$33,552.08 in stipulated backpay, and $300,000 in compensatory
damages, the maximum amount allowed under 42 U.S.C. § 1981a(b)(3).
We hold that the evidence is insufficient to support the jury's
verdict, and therefore reverse and render.
I
Patton began working for Schlumberger in February 1975 as a
purchasing clerk. In 1986, Schlumberger laid off Patton, allegedly
as part of a larger reduction in force. Patton filed an age
discrimination charge with the EEOC claiming she had more seniority
than another person in her office, and consequently should not have
been terminated. Two weeks later, Patton was re-instated at a
different location. She subsequently dropped the EEOC charge.
In 1989, Patton requested and was granted a transfer to the
Houston Computing Center as a data services clerk. Jim Plato was
the manager of the center and was Patton's supervisor. In March
1990, Patton's annual performance appraisal by Plato stated that
Patton needed to improve the distribution of products to customers.
On July 24, after finding seven unmailed products near Patton's
desk, Plato prepared a memo placing Patton on probation until
September 30. On July 31, Bobby Foret, Plato's supervisor and the
Data Services Regional Manager, came to Houston to meet with Patton
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about her probation. Both Plato and Foret promised to remove the
probation memo from Patton's file if her performance improved.
On August 10, Patton sent a letter to Rick Ingalls, a
Schlumberger personnel manager, to rebut the probation memo. On
that same day, she filed an EEOC charge complaining that her
probation violated Title VII and the ADEA. Both Foret and Plato
testified that after receiving a copy of her letter to Ingalls,
they decided they must keep the probation memo in her file even if
her performance improved, to document what had led to Patton's
probation. They concluded that her letter to Ingalls, standing
alone in her file, would not have made sense. Patton, however,
testified that Plato, upon receiving a copy of the letter to
Ingalls, commented that he would have to "build a case" against
Patton. In any event, Patton's performance improved and she was
taken off probation, but the probation memo was never removed from
her file.
In February 1991, Pat Parno replaced Plato as manager of
Houston Computing Center. Patton's annual performance appraisal in
March 1991 indicated "some friction with co-workers" and "some
problems [with distribution of products] earlier in the year,
significant improvement in second half." A few weeks after her
annual review, Patton received a merit raise. In May 1991, Patton
withdrew her EEOC charge because of her favorable impression of
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Parno as a manager, including his frequent use of thank-you notes
to encourage Patton. In the months immediately following the
withdrawal of her charge, she received thank-you notes for her
cost-cutting efforts (July), her "last minute efforts" on monthly
activity call-in results (August), and the improving quality of her
invoices (September).
The noted improvements appear to have been short-lived,
however. In October, a mid-year performance review indicated
problems with her attitude, her organizational skills (and,
consequently, her ability to do her job quickly), her level of
initiative, and her ability to keep up on job knowledge.1 In April
1992, in Patton's annual performance review, Parno rated her below
standard in quantity of work and cooperation. It was around this
time that Patton had a confrontation with Karel Grubbs, a log
analyst who was Patton's acting supervisor in Parno's absence.
Patton testified that when she complained of her inability to take
vacations when she wanted because of a change in her schedule,
Grubbs said, "That's the idea bitch. You're as good as gone. My
objective from Pat Parno is to get rid of you, and consider
yourself as good as gone." It is uncontested, however, that Grubbs
1
Patton nevertheless received another thank-you note from
Parno in March 1992 for advising Parno of upcoming vacation dates.
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did not refer to the EEOC charge, and that Grubbs had no authority
to terminate Patton.
In May 1992, Parno sent her another note thanking her for
advising him of a delay in some reports. In July 1992, Parno
learned of pending lay-offs in the data services area. Company
policy provided that employees with unsatisfactory performance
reviews and no significant improvement would be discharged prior to
any lay-offs. Thus, on July 27, 1992, Schlumberger discharged
Patton.
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II
Patton brought this suit in March 1993, claiming that she was
terminated because of her age and sex, and in retaliation for
filing an EEOC charge, in violation of the ADEA and Title VII.
Patton withdrew her Title VII sex discrimination claim prior to
trial. The jury returned a verdict for Schlumberger on Patton's
ADEA claim, but for Patton on her retaliatory discharge claim. The
jury found $500,000 in damages. Because the Civil Rights Act of
1991 limits compensatory damage awards for emotional pain,
suffering, and mental anguish to $300,000, 42 U.S.C. § 1981a(b)(3)
(1994), Patton's motion for entry of final judgment sought a damage
award totaling $333,552.08 in damages, including $33,552.08 in
stipulated backpay and $300,000 in compensatory damages. The
district court entered final judgment awarding the $333,552.08 to
Patton, and $50,000 in attorneys' fees. After Schlumberger's
motion for judgment as a matter of law and alternative motions for
new trial or remittitur were denied, it filed a timely notice of
appeal.2
2
We review a jury verdict for sufficiency of the evidence
under the Boeing v. Shipman, 411 F.2d 365 (5th Cir. 1969) (en banc)
standard, Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 993 (5th Cir.
1996) (en banc), viewing the evidence and all reasonable inferences
in the light most favorable to the verdict. Rideai v. Parkem
Indus. Services, Inc., 917 F.2d 892, 897 (5th Cir. 1990).
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III
Both Title VII and the ADEA prohibit an employer from
retaliating against an employee for filing an EEOC claim. See 42
U.S.C. § 2000e-3(a); 29 U.S.C. § 623(d). This circuit has
previously held that the McDonnell Douglas burden-shifting
structure applies to retaliation claims. Long v. Eastfield
College, No. 96-10526, 1996 WL 366004 at *2 (5th Cir. July 1, 1996)
(citation omitted). A plaintiff establishes a prima facie case of
retaliation by showing that: (1) she engaged in activity protected
by Title VII or the ADEA; (2) an adverse employment action
occurred; and (3) there was a causal connection between the
protected activity and the adverse action. Grizzle v. Travelers
Health Network, Inc., 14 F.3d 261, 267 (5th Cir. 1994) (citations
omitted). Once the plaintiff establishes a prima facie case of
retaliation, the burden of production shifts to the defendant to
proffer a non-discriminatory reason for its action. Id. (citation
omitted). If the defendant meets this burden, the plaintiff must
demonstrate that the defendant's articulated rationale was a
pretext for retaliation. Id. (citation omitted). Once a
discrimination case has been fully tried on the merits, "the
ultimate issue is whether the [sic] there was sufficient evidence
for a reasonable trier of fact to conclude that the official reason
for [the] discharge was `pretextual', and that the true reason
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therefor was retaliation for her complaints of age discrimination."
Id.
In order for us to uphold a finding of retaliation the
evidence must be sufficient to "demonstrate that `but for' the
protected activity, she would not have been discharged." Id.
(citing Shirley v. Chrysler First, Inc., 970 F.2d 39, 43 (5th Cir.
1992) (citing Jack v. Texaco Research Ctr., 743 F.2d 1129, 1131
(5th Cir. 1984)). According to Jack, "Whether or not there were
other reasons for the employer's action, the employee will prevail
only by proving that `but for' the protected activity she would not
have been subjected to the action of which she claims." Jack, 743
F.2d at 1131. In other words, even if a plaintiff's protected
conduct is a substantial element in a defendant's decision to
terminate an employee, no liability for unlawful retaliation arises
if the employee would have been terminated in the absence of the
protected conduct. Id. at 1131.
IV
Schlumberger argues that the jury verdict was based on
speculation and surmise because there was no evidence of any
"causal nexus" between Patton's EEOC charge in August 1990 and her
dismissal in July 1992. We agree. First, although not
determinative standing alone, the nearly two-year time period
between Patton's filing of her EEOC charge and her dismissal--and
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the fourteen-month time period between the dropping of the charge
and the dismissal--creates a strong presumption against
retaliation.3 Among previous discrimination cases in this circuit
alleging retaliation for the filing of an EEOC charge, the longest
interval between filing and termination has been fourteen months.
Shirley, 970 F.2d at 41. In Shirley, however, the employee's
supervisor made disparaging references to her concerning her EEOC
charge at least twice a week, and alleged performance problems
appeared only after she filed the charge. Id. at 43. These
incriminating facts were critical evidence tying the discharge to
protected activity, evidence totally lacking in Patton's case. In
sum, we find Patton's claim of temporal proximity, without more
evidence supporting causation, is insufficient to prove
retaliation.
Although Patton points to other evidence, that evidence does
nothing to bridge the time gap so as to establish a causal
connection between her discharge and her protected activity.
Parno, for example (the supervisor responsible for Patton's
dismissal), never mentioned the EEOC charge, was not her supervisor
when she filed the charge, and was not aware that the charge had
been withdrawn. Indeed, Patton admitted that Parno initially
3
Patton's dismissal occurred almost six years after she filed
her first EEOC charge in 1986.
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treated her fairly and wrote her thank-you notes and comments of
encouragement. She also admitted on cross-examination that she
could not say that Parno's treatment of her changed when she
withdrew the EEOC charge, as she had claimed on direct examination.
Furthermore, the record reveals no evidence that Plato, Patton's
former supervisor, was hostile or negative toward her following the
filing of the charge. Patton only connected Plato's "build a case"
comment as responsive to Patton's own rebuttal memo to Ingalls, not
to the EEOC charge.
Finally, our review of the record convinces us that Patton did
not seriously dispute the company's proffered reason for her
discharge--i.e., she did not demonstrate that the defendant's
articulated rationale was without merit and therefore was merely a
pretext for retaliation. Patton's performance problems were well
documented before she filed an EEOC charge. She did not
successfully challenge the factual basis for her unsatisfactory
performance rating leading to her dismissal concerning the quantity
of her work and her lack of cooperation, nor did she offer evidence
that disputed the objective facts underlying her poor performance
appraisals. Furthermore, she did not show any disparate treatment
in the application of the company's policy of dismissing poor
performers in advance of a layoff. In short, Patton completely
failed to adduce evidence, as was her burden, that her termination
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would not have occurred but for her having engaged in protected
activity.
V
The judgment of the district court is REVERSED and judgment is
RENDERED for Schlumberger Technology Corporation.
REVERSED and RENDERED.
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