Hernandez v. Muns

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

___________________

No. 96-40087
Summary Calendar

ANITA HERNANDEZ,
Plaintiff-Appellant,

versus

JAMES N. MUNS, in his capacity as
Mayor of the City of Plano;
CITY OF PLANO,
Defendants-Appellees.

________________________________________________

Appeal from the United States District Court for the
Eastern District of Texas
(4:94-CV-17)
________________________________________________

October 21, 1996
Before GARWOOD, JOLLY and DENNIS, Circuit Judges.*

GARWOOD, Circuit Judge:

Plaintiff-appellant Anita Hernandez (Hernandez) appeals the

judgment dismissing her employment discrimination claims against

her former employer, defendant-appellee the City of Plano (City).1

*
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this opinion should not be published and is not precedent except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.
1
Hernandez also sued James N. Muns (Muns) in his official
capacity as Mayor of the City, and the district court’s judgment
likewise dismissed all claims against Muns. As Muns is sued only
in his official capacity, the entire suit is properly treated as a
suit against the City only, and Hernandez does not contend
Hernandez brought this suit against the City for alleged national

origin discrimination and retaliatory discharge under Title VII of

the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1994)

(Title VII). At the close of Hernandez’s case-in-chief, the

district court granted the City’s motion for judgment as a matter

of law, pursuant to Fed. R. Civ. P. 50, concluding that Hernandez

failed to prove a prima facie case of discrimination and unlawful

retaliation under Title VII. For the reasons that follow, we

affirm.

Facts and Proceedings Below

Anita Hernandez, an Hispanic female, began her employment with

the City in May 1988, first as a secretary with the Capital

Projects Department, and later as a secretary with the Budget and

Research Department. During her years with these departments,

Hernandez’s job performance was satisfactory.

In March 1991, Hernandez responded to an internal posting of

a job vacancy with the Municipal Courts Department. The job

posting was for a Secretary III position, and indicated, among

other things, that the ability to speak Spanish was a strong

“plus.” Although she is not fluent in Spanish, Hernandez wanted to

increase her chances of obtaining the job, and thus indicated in a

cover letter attached to her application that “I am a volunteer as

an interpreter or translator for all City departments that do not

otherwise.

2
understand the Spanish language. My demonstrated ability to meet

the demands and responsibilities of this field would prove to be an

asset to your department.”

Hernandez was granted an interview for the job. She was

interviewed by Vicki Sherman (Sherman), a Caucasian female, for a

position to serve as her secretary with the municipal courts.

Sherman was the Clerk of the City’s municipal court. At the end of

the interview, Sherman hired Hernandez on the spot, and appeared

“excited” when Hernandez accepted the job.

Shortly after she began her new job with the Municipal Courts

Department, Hernandez was asked by Sherman to perform Spanish

translations for citizens who could not speak English and had

business with the municipal courts. Hernandez had difficulty

performing the translations. Sherman confronted Hernandez about

her translation skills and alleged that Hernandez had falsely

exaggerated her ability to speak Spanish in order to secure the

position. In response to these allegations, Hernandez told Sherman

that she had never claimed she was fluent in Spanish.

Approximately one month after this incident, in June 1991,

Hernandez reported Sherman’s criticism of her translation skills to

Joe Francis (Francis), the City’s Director of Human Resources.

Hernandez told Francis she believed Sherman was discriminating

against her because of her Hispanic national origin. Francis told

Hernandez that it was not discrimination and that she was

experiencing a personality conflict with Sherman.

3
 The following month, Sherman placed Hernandez on a performance

improvement plan (PIP), a plan designed to assist employees improve

their job performance over a period of time. During this time,

Sherman told Hernandez to start looking for another job. In

October 1991, Sherman released Hernandez from the PIP.

During the fall of 1992, Hernandez started making notes in her

desk calendar of various incidents she believed evidenced

discriminatory treatment by Sherman.2 In September 1992, when

Sherman confronted Hernandez regarding the notes, Hernandez

responded that she was keeping notes because she believed she was

being discriminated against. In October 1992, Hernandez complained

to Jim Forte, Director of Finance and Sherman’s immediate

supervisor, about the alleged discrimination. Forte told Hernandez

that he was going to speak with Sherman.3

Sherman placed Hernandez on a second PIP in November 1992.

While she was on the PIP, two citizen complaints were made with the

City regarding Hernandez. Subsequently, in December 1992, Sherman

fired Hernandez.

Immediately thereafter, in accordance with City procedure,

Hernandez completed a disciplinary appeal form with a short

statement in support of her appeal. This form was forwarded to Jim

2
Hernandez offered no evidence to demonstrate what these
alleged discriminatory acts were or what the calendar notes
contained.
3
It is unclear from the record whether Forte actually talked
with Sherman about Hernandez’s complaint.

4
Forte, who upheld the dismissal. Hernandez then filed her second

appeal with Elvenn Richardson, the Assistant City Manager, who

after two meetings with Hernandez, also upheld the dismissal.

Hernandez filed her third and final appeal with Thomas Muehlenbeck,

the City Manager. After meeting with Hernandez, Muehlenbeck

likewise upheld the dismissal.

Sometime during or after her third appeal with the City,

Hernandez filed a charge of discrimination with the Equal

Employment Opportunity Commission (EEOC), alleging that she was

terminated as a result of her national origin. After an

investigation of her claims, the EEOC determined that Hernandez was

discharged for poor performance and was not discriminated against

by the City.4 Upon receiving the EEOC’s right-to-sue letter,

4
As shown by the trial evidence, the official determination of
the EEOC was as follows:

“The evidence shows that Charging Party was
counseled on several occasions regarding her job
performance. The Charging Party was reprimanded for
refusing to comply with the instructions of the
supervisor. The Charging Party was placed on a
performance improvement program for failure to meet
acceptable levels of performance. The evidence also
shows that the Charging Party was discharged for failure
to improve her performance and specifically because of
complaints from citizens regarding her rudeness.

The investigation shows that four non-Hispanics were
placed on performance improvement programs and discharged
for similar reasons as the Charging Party.

I have determined that the evidence obtained during
the investigation does not establish a violation of the
statute.”

5
Hernandez filed this action against the City.

At the close of Hernandez’s case-in-chief, the district court

granted the City’s motion for judgment as a matter of law pursuant

to Fed. R. Civ. P. 50. Hernandez timely filed this appeal.

Discussion

Hernandez argues on appeal that the district court erred in

granting the City’s motion for judgment as a matter of law on her

Title VII claims.5 We review the district court’s decision de

novo, applying the same legal standard used by the court below.

Seven-Up Co. v. Coca-Cola Co., 86 F.3d 1379, 1387 (5th Cir. 1996).

Judgment as a matter of law is properly granted when the facts and

inferences point so strongly in favor of the movant that a rational

jury could not arrive at a contrary verdict. London v. Mac Corp.

of America, 44 F.3d 316, 318 (5th Cir.), cert. denied, 116 S.Ct. 99

(1995). As stated in our Boeing v. Shipman decision,

“On motions for [judgment as a matter of law], the Court
should consider all of the evidence——not just that
evidence which supports the non-mover’s case——but in the
light and with all reasonable inferences most favorable
to the party opposed to the motion. If the facts and
inferences point so strongly and overwhelmingly in favor
of one party that the Court believes that reasonable men

5
In addition to the Title VII charges of discrimination and
retaliatory discharge, Hernandez originally brought other causes of
action against the City, including claims of substantive and
procedural due process violations. The district court granted the
City’s motion for summary judgment on all claims except Hernandez’s
Title VII claims. On appeal, she challenges only the district
court’s decision to grant the City’s motion for judgment as a
matter of law on her Title VII charges. Thus, the court’s summary
judgment order is not before this Court.

6
 could not arrive at a contrary verdict, granting of the
motion is proper. On the other hand, if there is
substantial evidence of such quality and weight that
reasonable and fair-minded men in the exercise of
impartial judgment might reach different conclusions, the
motion[] should be denied, and the case submitted to the
jury. A mere scintilla of evidence is insufficient to
present a question for the jury.”

411 F.2d 365, 374 (5th Cir. 1969) (en banc); see also Normand v.

Research Institute of America, Inc., 927 F.2d 857, 859 (5th Cir.

1991) (applying Boeing standard).

I. National Origin Discrimination Claim

Hernandez claims that the City unlawfully discriminated

against her on the basis of her Hispanic national origin.

Specifically, Hernandez alleges the City treated her differently,

as evidenced by requiring her to do Spanish translation work

without receiving any “credit” and without requiring similar

translation work from the secretary who previously had held

Hernandez’s position.6

6
The City argues that, because Hernandez’s intentional
discrimination claim stems from allegedly unlawful acts committed
by Sherman——the same person who hired Hernandez——we should apply
the “same actor” inference in this case. Under the same actor
inference, “where the hirer and the firer are the same individual
and the termination of employment occurs within a relatively short
time span following the hiring, a strong inference exists that
discrimination was not a determining factor for the adverse action
taken by the employer.” Proud v. Stone, 945 F.2d 796, 797 (4th
Cir. 1991). Many courts, including this Court, have recently
adopted the same actor inference. See Brown v. CSC Logic, Inc., 82
F.3d 651, 658 (5th Cir. 1996) (ADEA case); see also E.E.O.C. v. Our
Lady of Resurrection Medical Ctr., 77 F.3d 145, 152 (7th Cir. 1996)
(Title VII race discrimination case); Buhrmaster v. Overnite
Transportation Co., 61 F.3d 461, 464 (6th Cir. 1995) (Title VII sex
discrimination case), cert. denied, 116 S.Ct. 785 (1996); Tyndall

7
 Title VII of the Civil Rights Act of 1964 makes it illegal for

an employer to discriminate against any individual with respect to

compensation, terms, conditions, or privileges of employment,

because of an individual’s race, color, religion, sex, or national

origin.7 See 42 U.S.C. § 2000e-2 et seq. In a claim of “disparate

treatment” under Title VII, a plaintiff alleges that an employer

intentionally treats “some people less favorably than others

because of their race, color, religion, sex, or national origin.”

International Bhd. of Teamsters v. United States, 431 U.S. 324, 335

v. National Educ. Ctrs., Inc. of California, 31 F.3d 209, 215 (4th
Cir. 1994) (ADA case); LeBlanc v. Great American Ins. Co., 6 F.3d
836, 847 (1st Cir. 1993) (ADEA case), cert. denied, 114 S.Ct. 1398
(1994); Lowe v. J.B. Hunt Transport, Inc., 963 F.2d 173, 174-75
(8th Cir. 1992) (ADEA case). Cf. Haun v. Ideal Industries, Inc.,
81 F.3d 541, 546 (5th Cir. 1996) (stating that although same actor
evidence “is relevant in determining whether discrimination
occurred, we decline to establish a rule that no inference of
discrimination could arise under such circumstances”). Depending
on the factual setting, the same actor inference may be considered
in determining whether a purported prima facie case, resting
entirely on circumstantial evidence, has been sufficiently made
out, although more usually the same actor inference will have its
primary relevance at a later stage of the case.
7
42 U.S.C. § 2000e-2(a) provides as follows:

“(a) It shall be an unlawful employment practice for an
employer——(1) 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, because of such
individual’s race, color, religion, sex, or national
origin; or (2) to limit, segregate, or classify his
employees or applicants for employment in any way which
would deprive or tend to deprive any individual of
employment opportunities or otherwise adversely affect
his status as an employee, because of such individual’s
race, color, religion, sex, or national origin.”

8
n.15, 97 S.Ct. 1843, 1854-55, n.15 (1977); Frazier v. Garrison

I.S.D., 980 F.2d 1514, 1523 (5th Cir. 1993).

To prove intentional discrimination, a plaintiff may use

either direct or circumstantial evidence. Portis v. First Nat.

Bank of New Albany, Miss., 34 F.3d 325, 328 (5th Cir. 1994). Under

Title VII, direct evidence includes any statement or written

document showing a discriminatory motive on its face. Id. at 329.

“When a plaintiff presents credible direct evidence that

discriminatory animus in part motivated or was a substantial factor

in the contested employment action, 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. East Miss. Elec. Power Ass’n, 989 F.2d 858, 861

(5th Cir. 1993). If believed, direct evidence proves intentional

discrimination without inference or presumption. Id.

In the absence of direct evidence, illegal motive can be

established through circumstantial evidence that invokes a three

step model of proof. First, the plaintiff must demonstrate a prima

facie case of discrimination. A Title VII plaintiff carries “the

initial burden of offering evidence adequate to create an inference

that an employment decision was based on a discriminatory criterion

illegal under the Act.” International Bhd. of Teamsters, 431 U.S.

at 358, 97 S.Ct. at 1866. Generally, the plaintiff’s prima facie

case includes the following elements: (1) the plaintiff is a member

9
of a protected class; (2) the plaintiff was qualified for the

position at issue; (3) the defendant made an adverse employment

decision despite the plaintiff’s qualifications; and (4) the

plaintiff’s position remained open and the employer continued to

seek applicants from persons of plaintiff’s qualifications or hired

a person who was not a member of a protected group. See McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824

(1973); see also Frazier, 980 F.2d at 1526. However, this is not

the only means of demonstrating a prima facie case, as McDonnell

Douglas “did not purport to create an inflexible formulation.”

International Bhd. of Teamsters, 431 U.S. at 358, 97 S.Ct. at 1866.

“The facts necessarily will vary in Title VII cases, and the

specification above of the prima facie proof required from

[plaintiff] is not necessarily applicable in every respect to

differing factual situations.” McDonnell Douglas Corp., 411 U.S.

at 802 n.13, 93 S.Ct. at 1824 n.13.

If a plaintiff establishes a prima facie case of

discrimination, the defendant bears the burden to see to it that

some evidence of a nondiscriminatory basis for the adverse

employment decision is presented. Texas Dept. of Community Affairs

v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 1094 (1981). If

evidence is presented of a reason that is nondiscriminatory, “the

McDonnell Douglas framework——with its presumptions and burdens——is

no longer relevant.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,

10
510, 113 S.Ct. 2742, 2749 (1993). According to the Court:

”The presumption [raised by the plaintiff’s prima facie
case], having fulfilled its role of forcing the defendant
to come forward with some response, simply drops out of
the picture . . . . The defendant’s ‘production’
(whatever its persuasive effect) having been made, the
trier of fact proceeds to decide the ultimate question:
whether [the] plaintiff has proven ‘that the defendant
intentionally discriminated against [him]’ because of his
race . . . . The factfinder’s disbelief of the reasons
put forward by the defendant (particularly if disbelief
is accompanied by a suspicion of mendacity) may, together
with the elements of the prima facie case, suffice to
show intentional discrimination.”

Id. at 2749 (citations omitted).

Based on the record before us, we conclude that Hernandez has

failed to demonstrate discrimination either by direct evidence or

by articulating a prima facie case of disparate treatment.

Hernandez presents no direct evidence of intentional

discrimination, as, for example, there is no evidence that Sherman

or anybody else made reference to her Hispanic heritage at any time

during her employment with the City. Indeed, nothing indicates

that Sherman treated Hernandez differently because of her national

origin. Rather, the evidence shows only that Sherman expected

Hernandez to use whatever skills she brought to her job to the best

of her abilities, which in Hernandez’s situation included Spanish

translation skills which Hernandez represented she possessed.

Hernandez’s translation duties did not require her to do any

extra work. She was asked to do Spanish translations during her

normal working hours as part of her job duties and her translation

11
responsibilities did not cause her to work extra hours without

compensation. Thus, Hernandez was not discriminated against simply

because she was denied extra “credit” for her translation work.

See, e.g., Cota v. Tucson Police Dept., 783 F.Supp. 458, 468

(D.Ariz. 1992) (holding that plaintiffs failed to prove prima facie

case of discrimination under Title VII where police department

required Spanish-speaking employees to use their Spanish-speaking

skills on the job without additional compensation).

Moreover, the fact that the secretary who previously had held

Hernandez’s position was Caucasian and was not required to perform

translation work does not constitute any evidence of

discrimination. The secretary who came before Hernandez was not

asked to do Spanish translations because, as Hernandez’s own

testimony reveals, she could not speak Spanish. Also, nothing in

the record indicates that the previous secretary claimed she could

perform translation work.

Finally, Hernandez has failed to demonstrate discrimination by

the City through the McDonnell Douglas circumstantial model of

proof. Importantly, Hernandez does not show, as part of her prima

facie case, that she was performing well in her job at the time of

her termination. See O’Connor v. Consolidated Coin Caterers Corp.,

84 F.3d 718, 719 (4th Cir. 1996); Hong v. Children’s Memorial

Hosp., 993 F.2d 1257, 1262 (7th Cir. 1993), cert. denied, 114 S.Ct.

1372 (1994); McDonald v. Union Camp Corp., 898 F.2d 1155, 1160 (6th

12
Cir. 1990). “[W]hether one is qualified may change from time to

time. The fact that an individual may have been qualified in the

past does not mean that he is qualified at a later time.” Weihaupt

v. American Medical Ass’n, 874 F.2d 419, 427 (7th Cir. 1989)

(quoting Grohs v. Gold Bond Bldg. Products, 859 F.2d 1283, 1287

(7th Cir. 1988)). Hernandez failed to present any admissible

evidence that would indicate that her performance was satisfactory

when she was fired. At trial, the court sustained defense

counsel’s objections to Hernandez’s testimony regarding her work

performance.8 Although allowed to do so, Hernandez did not offer

into evidence any performance evaluations. Indeed, the only

evidence of the quality of her work performance prior to her

dismissal was her own testimony that Sherman told her in April 1992

that she was doing a “good job” and showed improvement. This

evidence——standing, as it does, essentially alone——does not support

Hernandez’s contention that her performance was satisfactory when

she was terminated in December 1992. The short of the matter is

that Hernandez has failed to raise an inference of unlawful

discrimination and, therefore, failed to articulate prima facie

proof of discrimination.

II. Unlawful Retaliation Claim

In addition to appealing her national origin discrimination

8
Hernandez does not assert on appeal any claim of error in
respect to this ruling.

13
claim, Hernandez also argues on appeal that the district court

erred in granting the City’s motion for judgment as a matter of law

on her unlawful retaliation claim. Hernandez alleges that, in

retaliation for her complaints to Joe Francis and Jim Forte of

discrimination, Sherman placed her on the PIPs in July 1991 and

November 1992, and ultimately fired her in December 1992.

A plaintiff establishes a prima facie case of unlawful

retaliation by proving by a preponderance of the evidence that (1)

she engaged in activity protected by Title VII; (2) an adverse

employment action occurred; and (3) a causal link existed between

the protected activity and the adverse employment action. Long v.

Eastfield College, 88 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). “The opposition

clause of § 2000e-3(a) requires the employee to demonstrate that

she had at least a ‘reasonable belief’ that the practices she

opposed were unlawful.” Long, 88 F.3d at 304 (citation omitted).

The burden-shifting structure applicable to Title VII disparate

treatment cases, as set forth in McDonnell Douglas, is also

applicable to Title VII unlawful retaliation cases. McMillan v.

Rust College, Inc., 710 F.2d 1112, 1116 (5th Cir. 1983). In other

14
words, once the plaintiff satisfies the elements of her prima facie

case, the burden of production shifts to the employer to articulate

a legitimate, nonretaliatory reason for the adverse employment

action. Long, 88 F.3d at 304-05. If the defendant presents a

legitimate, nonretaliatory reason for the action, the analysis then

focuses on the ultimate question of whether the employer unlawfully

retaliated against the plaintiff. Id. at 305 & n.4.

We must first determine whether Hernandez has established her

prima facie case for unlawful retaliation. Hernandez asserts that

she had a “reasonable belief” that the practices she opposed were

unlawful. We disagree.

On two separate occasions, Hernandez complained that she felt

Sherman was discriminating against her because of her Hispanic

heritage. Her first complaint was made to Joe Francis in June

1991, one month after Sherman accused her of misrepresenting her

Spanish translation skills. Sherman’s accusation, however, cannot

reasonably be construed as conduct that violates Title VII. When

applying for the position as Secretary III, Hernandez knew that the

ability to speak Spanish was “a plus.” In fact, Hernandez

testified that the reason she specifically mentioned in her

application cover letter that she had translation experience was

because she believed it would better her chances of obtaining the

job. Hernandez could not reasonably believe she was discriminated

against by Sherman’s expressed disappointment in her inability to

15
perform a task that Hernandez knew was likely part of the job and

as to which she had touted her skills in her application.9

Hernandez made her second complaint of discrimination to Jim

Forte, Sherman’s supervisor, one month after Sherman’s and

Hernandez’s discussion regarding the notes written on Hernandez’s

calendar. Again, Hernandez complained to Forte of what she

perceived as discrimination by Sherman. However, nothing in the

record supports her claim that her belief was reasonable. While it

may be true that Sherman told Hernandez that she did not want

Hernandez as her secretary and to start looking for another job,

these statements alone cannot reasonably be interpreted as

discrimination. Sherman’s statements to Hernandez were no

different from statements any supervisor would make to an employee

whose work was unacceptable. Indeed, the only evidence Hernandez

presented at trial that she claims supports her reasonable belief

of discrimination is her own testimony that she told Sherman, when

confronted about the notes on her calendar, that she wrote the

notes because she believed she was being discriminated against.10

9
The parties agree that the Secretary III position once held by
Hernandez did not expressly require Spanish translation duties.
However, the Secretary III job description stated that the listed
responsibilities and qualifications “are intended to describe the
general nature and level of work being performed and are not
intended to be an exhaustive list of all responsibilities, duties
and skills which may be required.” (Emphasis added).
10
Although Hernandez asserts on appeal that Sherman subjected
her to “hostile stares and abusive language” and that Sherman was
more tolerant of and more helpful to Hernandez’s non-Hispanic
coworkers, the portions of the record cited to support these

16
While Hernandez might have held a good-faith belief that she

suffered discrimination, she offers no admissible evidence that

even remotely suggests her belief was reasonable. Payne v.

McLemore’s Wholesale & Retail Stores, 654 F.2d 1130, 1140-41 n.11

(5th Cir. 1981), cert. denied, 455 U.S. 1000, 102 S.Ct. 1630

(1982); see also De Anda v. St. Joseph Hosp., 671 F.2d 850, 852 n.2

(5th Cir. 1982).

Even if we assume, arguendo, that Hernandez had a reasonable

belief that Sherman’s conduct violated Title VII, the PIPs she was

placed on do not constitute adverse employment actions. Sherman’s

placement of Hernandez on the PIPs did not cause her to lose job

duties, hours, wages, benefits, or in any way adversely affect

other terms or conditions of her employment. See, e.g., Yates v.

Avco Corp., 819 F.2d 630, 638 (6th Cir. 1987) (holding no adverse

action where plaintiff’s demotion was temporary and did not result

in a reduction in salary or loss of benefits). To the contrary,

the PIPs were designed to assist Hernandez in recognizing areas

which needed improvement.

“Title VII was designed to address ultimate employment

decisions, not to address every decision made by employers that

arguably might have some tangential effect upon those ultimate

decisions.” Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995).

assertions do not in fact support them. The evidence does not show
a reasonable basis for believing Hernandez was discriminated
against in this respect.

17
Here, the placement of Hernandez on the PIPs does not rise to the

level of an ultimate employment decision of the character that

Title VII was intended to address. But see Ray v. Tandem

Computers, Inc., 63 F.3d 429, 435-36 (5th Cir. 1995) (sustaining

summary judgment for defendant although finding a prima facie case

of retaliation made where employee put on PIP; no discussion of

whether placement on PIP constitutes adverse employment action).

Of course, Hernandez’s discharge constitutes an ultimate and

adverse employment action. Long, 88 F.3d at 305. However,

Hernandez fails to meet the third requirement of her prima facie

case, that is, she fails to demonstrate a causal link between her

termination and the alleged protected activity. Assuming arguendo,

as before, that Hernandez reasonably believed Sherman discriminated

against her, Hernandez cannot point to any evidence that supports

her argument that she would not have been terminated absent her

complaints of discrimination. 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)); McCray v. DPC Industries,

Inc., No. 2-94 CV 45, 1996 WL 426810 at *8 (E.D. Tex. April 12,

1996); Suttles v. United States Postal Service, 927 F.Supp. 990,

1008 (S.D. Tex. 1996).11

11
Hernandez need not, however, show that retaliation was the
sole factor in the termination decision. See Long, 88 F.3d at 305
n.4.

18
 Hernandez asserts in her brief that “[t]he causal connection

is found by Sherman’s departure from established practice in

placing Anita Hernandez on a PIP and on the close proximity in time

between the opposition practice and the adverse PIP and dismissal.”

However, Hernandez failed to present any evidence as to what the

“established procedures” are or how Sherman deviated from such

procedures when she placed Hernandez on the PIPs. Hernandez’s

subjective belief of a causal link, without more, is simply not

enough. See generally Suttles, 927 F.Supp. at 1010, and cases

cited therein.

Moreover, Hernandez’s emphasis on the length of time between

the protected activity and her discharge is misplaced. Hernandez

complained of discrimination to Francis in July 1991 and Forte in

October 1992, and was terminated in December 1992, approximately

two months after her complaint to Forte. Although the timing of

the adverse employment action can be significant, it is not

necessarily a determinative factor. Mayberry v. Bought Aircraft

Co., 55 F.3d 1086, 1092 (5th Cir. 1995). The lapse of time should

be weighed “as one of the elements in the entire calculation of

whether [plaintiff] had shown a causal connection between the

protected activity and the subsequent firing.” Shirley, 970 F.2d

at 42-45. The evidence presented by Hernandez does not support the

conclusion that her termination was causally connected to her

complaints. Instead, what the evidence shows is that Hernandez was

19
placed on two PIPs prior to her termination, she was terminated

while on her second PIP, and the decision to terminate Hernandez

was rendered after citizen complaints about her rude behavior when

helping them. Hernandez has failed to produce evidence that, but

for her complaints, she would not have been terminated.

In any event, even if we assume, arguendo, that the placement

of Hernandez on the PIPs or her termination somehow satisfy the

requirements of her prima facie case, Hernandez has produced no

evidence that the nondiscriminatory reasons for the adverse

action——that Hernandez could not adequately perform her translation

duties and citizens complained of her rude attitude——were

pretextual.

In sum, we hold that Hernandez failed to demonstrate that she

engaged in an activity protected by Title VII. Assuming, arguendo,

that Hernandez satisfies the first step of her prima facie case, we

conclude she has not shown that Sherman’s decision to place her on

the PIPs was an adverse employment decision or that it was done for

a discriminatory reason; nor has Hernandez shown that the

termination decision was causally linked to her alleged protected

activity.

Conclusion

Based on the foregoing, we AFFIRM the district court’s order

granting the City’s motion for judgment as a matter of law.

20