Winchester v. Galveston Yacht Basi

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT
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No. 96-41258
Summary Calendar
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REBECCA DUKE WINCHESTER,

Plaintiff-Appellant,

VERSUS

GALVESTON YACHT BASIN,

Defendant-Appellee.

_________________________

Appeal from the United States District Court
for the Southern District of Texas
(G-95-CV-677)
_________________________

June 10, 1997
Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

Rebecca Winchester appeals a summary judgment in her retalia-

tory discharge claims against Galveston Yacht Basin (“GYB”) brought

pursuant to 42 U.S.C. § 2000e-3(a) (West 1994). Finding no error,

we affirm.

*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited circumstances
set forth in 5TH CIR. R. 47.5.4.
 I.

Winchester was employed by GYB in various managerial capaci-

ties from 1991 to 1995. Beginning in 1993, Robert Murray was her

immediate supervisor. After conflicts ensued between Winchester

and Lori Fye, the GYB office secretary under Winchester’s supervi-

sion, Murray issued Winchester a written reprimand in March 1994,

advising her that “one of your primary responsibilities here is to

create and maintain a harmonious and efficient atmosphere while

supervising and instructing the office staff, and in that respect

you were not doing your job.” Murray noted further that “[y]our

continued employment is dependent on your willingness and ability

to defuse the tension and resentment in our office and return the

operation to the higher standard of professionalism that I feel you

are capable of. I will expect immediate and progressive improve-

ment.”

Although Fye terminated her employment with GYB in September

1994 and was replaced by Amy Collingsworth, tensions continued to

run high. Collingsworth complained to Murray about Winchester’s

abusive treatment of her, which complaints prompted another

reprimand from Murray. Collingsworth was later terminated within

a few weeks of Winchester’s termination because of her inability to

perform the required work satisfactorily.

In the meantime, Rhonda Stevens, a GYB security guard under

Winchester’s supervision, complained in February 1994 that she had

been sexually harassed by a fellow employee, Troy Lindahl.

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Winchester attended a subsequent meeting with Lindahl and Murray,

at which meeting Lindahl was reprimanded for his conduct and

instructed not to discuss the incident with other GYB employees.

Winchester later learned that Lindahl in fact had been discussing

the Stevens incident with others and reported this to Murray.

Stevens was terminated in June 1994.2

During Winchester’s employ with GYB, she was on the same

organizational level as four other GYB managers, all male. Her

salary in relation to these other managers was a source of

continuing interest to her, and she received in 1993, after

threatening to resign, a substantial bonus that caused her to

become the second highest paid of these managers. Winchester

alleges that she was promised orally in 1993 that her salary would

continue to be at least equal to Lindahl’s.

When Winchester learned that in January 1995 Lindahl had

received a pay increase (which increase moved Lindahl ahead of

Winchester and into second place among the managers), she con-

fronted Murray and was told that she would not be receiving an

increase, as her pay was “suitable for the work that she did.”

Murray testified in his deposition that Winchester “was mad as hell

because she was not offered a raise” and “had somewhat of a temper

tantrum” in his office. This outburst prompted another letter of

2
Murray testified during his deposition that, per GYB policy, Stevens was
not given a reason for her termination. He indicated, however, that she was
fired for insubordination, upon recommendation by the office staff.

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reprimand, in which Murray wrote, “Another display of temper and

insubordination as occurred in my office on Friday morning and any

indication I get of anything less than full respect, support and

cooperation from you, will result in the termination of your

employment.” Winchester was terminated a few weeks later because,

according to Murray, “[we] were unable to communicate on a calm and

reasoned basis and I felt like that I had done all I could to

preserve her in that job.”

Winchester filed the instant action in October 1995, alleging

that she was discharged in retaliation for asserting her right to

equal pay and for assisting Stevens with her sexual harassment

claims. Winchester also claimed that she had been compensated at

a lower pay rate because of her sex. The district court granted

GYB summary judgment on all of Winchester’s claims.

II.

Winchester has abandoned her unequal pay claim on appeal but

continues to assert that her termination constitutes impermissible

retaliation. The district court concluded that this latter claim

failed because Winchester had not produced sufficient evidence

demonstrating that, but for her engagement in title VII protected

activitiesSSprotesting her right to equal pay and assisting Stevens

with her harassment claimsSSshe would not have been discharged. We

agree.

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 We review a grant of summary judgment de novo. See Hanks v.

Transcontinental Gas Pipe Line Corp., 953 F.2d 996, 997 (5th Cir.

1992). Summary judgment is appropriate “if the pleadings,

depositions, answers to interrogatories, and admissions on file,

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

To establish a prima facie case of retaliation, a plaintiff

must demonstrate (1) that he engaged in an activity protected by

Title VII; (2) that an adverse employment action followed; and

(3) that there was some causal connection between the activity and

the adverse action. See Shirley v. Chrysler First, Inc., 970 F.2d

39, 42 (5th Cir. 1992). With respect to the third element, the

plaintiff need not establish that his protected activity was the

sole factor motivating the adverse action, but he retains the

burden to demonstrate that, but for the protected activity, he

would not have been subject to the action. See Collins v. Baptist

Mem’l Geriatric Ctr., 937 F.2d 190, 193 (5th Cir. 1991).

If the plaintiff makes out the prima facie case satisfacto-

rily, the burden shifts to the defendant to proffer some non-

discriminatory reason for the action. The plaintiff then assumes

the burden of showing that the reason given by the defendant is a

pretext for retaliation. See Shirley, 970 F.2d at 42.

Because GYB does not contest whether Winchester has satisfied

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the first two elements, we assume arguendo that such is the case.

With respect to the third element, Winchester asserts first that

her assistance of Stevens “in pursuit of a harassment free

environment” was “met by a wall of discriminatory opposition.”

According to Winchester, “[c]learly, the summary judgment proof

demonstrates [GYB’s] decisions to rid itself of liabilities and

females who make trouble while keeping males who perpetrated the

sexual harassment incidents.”

Yet, Winchester offers no summary judgment proof, other than

her conclusionary allegations, evincing that her assistance of

Stevens in February and April 1994 was the but for cause of her

termination of employment in January 1995. At best, her allega-

tions of the handling of Stevens’s harassment complaint, if true,

demonstrate that GYB could have dealt with Stevens’s complaint more

appropriately and expeditiously, but, in any event, they have no

bearing on the instant action. Winchester’s attempts in the

instant action to vindicate any rights that Stevens may have in

relation to the harassment complaints do not further Winchester’s

efforts to demonstrate that her participation in the matter was a

but for cause of her termination.

Winchester next contends that her complaints about her alleged

pay inequity with the other managers were a “major reason” for her

termination. Other than the proximity in time (two weeks) between

her early January meeting with Murray, in which she had a “temper

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tantrum” over Lindahl’s pay increase, and her termination of

employment, Winchester offers no summary judgment evidence to

demonstrate that her efforts to ensure pay equity between males and

females were a but for cause of her termination. We have noted

previously that the lapse of time between the protected activity

and the adverse employment action is one of the elements in the

entire calculation of demonstrating a causal connection, but it is

not in itself conclusive. See Shirley, 970 F.2d at 43-44 (declin-

ing to hold that the passage of fourteen months is legally

conclusive proof against retaliation).3

Even assuming arguendo that Winchester’s allegations make out

a prima facie case, she has failed to offer evidence sufficient to

call into question GYB’s proffered non-discriminatory reason for

her termination. As Murray noted in his deposition, Winchester was

terminated for her repeated (and documented) difficulties in

managing others and for the insubordination she displayed toward

Murray in regard to the pay dispute. Winchester was put on written

notice in March 1994 that she had failed to fulfill one of her

primary responsibilities of creating and maintaining “a harmonious

and efficient atmosphere” and that her “continued employment by

Galveston Yacht Basin is dependent on your willingness and ability

3
Although Shirley dealt with inverse factsSSthe defendant employer’s
seeking to use a relatively long lapse of time as conclusive proof of no
retaliationSSwe do not veer from Shirley’s instruction that the lapse of time,
even if urged by the plaintiff, is but one of the elements to be weighed in the
causal connection calculus.

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to defuse the tension and resentment in our office.” She continued

to have difficulties managing Collingsworth and ultimately

conducted herself inappropriately with a “display of temper and

insubordination” aimed at Murray in reference to her failure to

obtain a pay increase for 1995.

As the district court noted, the reprimand letter that

Winchester received in reference to her pay disparity complaint

indicates that it was not the complaint itself that gave rise to

her reprimand, but rather the manner of complaint. The summary

judgment evidence demonstrates that Winchester’s angry outburst and

insubordinate behavior, not her complaints about alleged gender

discrimination in compensation, triggered the letter and led to her

discharge. Furthermore, even assuming arguendo that it was her

complaint itself that caused Murray to terminate her employment,

Winchester was not protesting that GYB was discriminating against

her in pay on the basis of her sexSSa protected activity under

title VIISSbut rather that she allegedly had been promised in 1993

that she would continue to receive the same pay as Lindahl. Her

efforts to vindicate whatever contract rights existed under an

alleged oral agreement are not sex-based and thus are not a

protected activity under title VII.

That Winchester believes that others (namely, a jury) may view

her insubordination and disruptive behaviorSSthe actions that GYB

offers as an explanation for her terminationSSas appropriate

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activities of a manager performing her duties does not satisfy her

summary judgment burden. She simply has put forth no summary

judgment evidence to create a genuine issue of material fact as to

whether she was retaliated against for engaging in protected title

VII activity.

AFFIRMED.

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