Case: 14-10761 Document: 00513091787 Page: 1 Date Filed: 06/24/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-10761
United States Court of Appeals
Fifth Circuit
FILED
DANIEL VALDERAZ, June 24, 2015
Lyle W. Cayce
Plaintiff - Appellant Clerk
v.
LUBBOCK COUNTY HOSPITAL DISTRICT D/B/A UNIVERSITY
MEDICAL CENTER,
Defendant - Appellee
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:13-CV-023
Before JOLLY and DENNIS, Circuit Judges, and REEVES*, District Judge.
PER CURIAM:**
Daniel Valderaz filed suit under Title VII of the Civil Rights Act of
1964 alleging that his employer, University Medical Center (UMC), operated
by Lubbock County Hospital District, retaliated against him in response to a
charge of sex-based harassment he reported to his supervisors. The district
* District Judge of the Southern District of Mississippi, sitting by designation.
** 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not be published and is not precedent except under the limited circumstances set forth in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.
Case: 14-10761 Document: 00513091787 Page: 2 Date Filed: 06/24/2015
No. 14-10761
court entered summary judgment in favor of UMC, and Valderaz now
appeals. For the reasons stated herein, we affirm.
FACTS AND PROCEDURAL HISTORY
Valderaz was first employed by UMC in June 2009 as a Registered
Nurse in the Surgical Intensive Care/Burn Unit (SICU). He transferred to
the Pediatric Intensive Care Unit (PICU) around November 2010. The PICU
consisted of two male nurses (including Valderaz) and seven female nurses.
From November 2010 to March 2011, Valderaz says female nurses
harassed him with offensive remarks that were sometimes sexual in nature.
He claims that his coworkers made frequent jokes about him having a
homosexual relationship with Fausto Montes, a male charge nurse in PICU.
For example, female coworkers would make remarks to Valderaz, a married
heterosexual, such as: “Where’s your boyfriend, Fausto?” and “Your man,
Fausto, just texted me.” Valderaz claims that even doctors and residents
joined in on the charade at times. He criticized them for antagonizing him
and asked them to stop, but it only increased the frequency of their behavior.
In addition, some female coworkers regularly made remarks of his inability to
be a good pediatric nurse because he is a man. In particular, they said that
“he could not provide as good of care to patients of the hospital as the female
nurses” because he “didn’t have the nurturing capabilities of a woman.”
On March 2, 2011, Valderaz reported the conduct to Nancy Leal,
Director of PICU. Leal addressed Valderaz’s coworkers and told them to stop
their inappropriate behavior. Valderaz claims that the mistreatment towards
him decreased, but it did not stop. In response to Leal’s directive, Valderez
contends that his coworkers began retaliating against him by giving him
little to no assistance with patient care, which made it difficult for him to
perform his duties effectively.
2
Case: 14-10761 Document: 00513091787 Page: 3 Date Filed: 06/24/2015
No. 14-10761
Around March 7, 2011, Leal told Valderaz that his coworkers filed
reports against him for inadequate job performance. Without giving him the
opportunity to defend against the reports, Leal required Valderaz to undergo
additional training. Valderaz asserts that the imposition of additional
training itself was an act of retaliation. He did not attend the training,
however, because it conflicted with certain events in his personal life: the
death of his wife’s grandmother, the death of his wife’s mother, and his
receipt of a court subpoena for a criminal trial.
On April 11, 2011, Valderaz met with Leal, Kanice Newton (UMC’s
Director of Human Resources), and others—including his wife—to discuss his
coworkers’ hostile behavior towards him. In this meeting, Valderaz alleges
that he expressed how he needed measures taken to relieve the tension in the
work environment caused by his coworkers, because it limited his ability to
effectively care for his patients. In response, Newton suggested that he
transfer to another department. According to Valderaz, he was told to find a
department with an opening for a nurse and UMC would make an exception
for him to transfer into it. 1 He claims Newton specifically stated, “We will
find you a place to go, that this is an exception, and we will transfer you.” 2 He
says he was directed to the recruiting department to seek an open position.
Because he believed that a position would be available for him in another
department, he agreed to transfer.
UMC disputes Valderaz’s account of what took place in that meeting.
Leal asserts that Valderaz initially expressed a desire to be transferred into
another department. She informed Valderaz that “another position was not
1 Under the employment handbook, UMC’s transfer policy requires three things:
that an employee must work one year in a department, an employee must interview with
management in the department to which the transfer is requested, and the employee must
compete with other applicants.
2 Valderaz’s wife submitted an affidavit corroborating his account of the meeting.
3
Case: 14-10761 Document: 00513091787 Page: 4 Date Filed: 06/24/2015
No. 14-10761
guaranteed and that he would have to interview for positions and receive an
offer . . . from department supervisors.” She also avers that Valderaz “was not
promised that a position would be available for transfer during the meeting
or at any other time . . . .” 3 After the April 11 meeting, Brenda Thomas,
UMC’s nurse recruiter, stated that she too discussed UMC’s transfer process
with Valderaz and explained to him that she “could not place him in a
position and . . . it was up to him to secure an offer from a department head.”
After the meeting, in search of a new position, Valderaz reported to the
nurse recruiting office. He was told that a position was not guaranteed and
that he had to compete with other nurses. Valderaz claims he was told that
he was terminated on April 11, 2011, but UMC says no one ever told him he
was terminated; he was merely classified as “on-call” in the PICU,
presumably while he searched for another position. Valderaz claims he never
knew about the “on-call” position until after being told that he was
terminated a second time.
The record is clear that Valderaz was not terminated as an employee on
April 11. It was not until April 25, in fact, that UMC formally altered his
employment status to “on-call.” UMC also allowed Valderaz to retain full-
time benefits until April 30, at which point full-time benefits would end if he
did not obtain another position.
Valderaz applied for two positions, a nursing position in the cath lab
and a nursing position in the operating room, on April 13, 2011. He did not
apply for any other positions after this date (even though there were others
available which paid more than what he was making in the PICU). Valderaz
was removed from payroll and officially terminated on June 24, 2011. The
reason for his termination, according to Newton, was because “Valderaz was
3 Newton corroborated these statements.
4
Case: 14-10761 Document: 00513091787 Page: 5 Date Filed: 06/24/2015
No. 14-10761
unable to find another position and had not worked the requisite number of
on-call shifts to remain on the payroll” as required by UMC’s employment
policy.
Eventually, Valderaz received an interview for a position with the
operating room, but he had already accepted other employment. The record
does not provide when this interview took place nor does it state the date
when Valderaz received employment at another hospital.
On February 6, 2013, Valderaz filed the instant action in the United
States District Court for the Northern District of Texas asserting claims of
hostile work environment based on sex harassment and retaliation pursuant
to Title VII, 42 U.S.C. §§ 2000e, et seq. On June 5, 2013, the district court
dismissed Valderaz’s hostile work environment claim. A year later, the court
granted UMC’s motion for summary judgment as to the retaliation claim.
Valderaz now timely appeals the latter decision.
STANDARD OF REVIEW
This court reviews the grant of summary judgment de novo, applying
the same standard as the district court. Condrey v. SunTrust Bank of Ga.,
429 F.3d 556, 562 (5th Cir. 2005). “Summary judgment is proper when the
evidence, viewed in the light most favorable to the non-movant, reflects no
genuine issues of material fact.” Rubinstein v. Administrators of Tulane
Educ. Fund, 218 F.3d 392, 399 (5th Cir. 2000). To defeat summary judgment,
the non-movant need only point to the existence of a genuine issue of
material fact. Mason v. United Air Lines, Inc., 274 F.3d 314, 316 (5th Cir.
2001).
ANALYSIS
In Title VII retaliation cases, the plaintiff must first make the following
prima facie showing: “(1) that the plaintiff engaged in activity protected by
Title VII, (2) that an adverse employment action occurred, and (3) that a
5
Case: 14-10761 Document: 00513091787 Page: 6 Date Filed: 06/24/2015
No. 14-10761
causal link existed between the protected activity and the adverse action.”
Raggs v. Miss. Power & Light Co., 278 F.3d 463, 471 (5th Cir. 2002) (citation
omitted). If the plaintiff presents a prima facie case, “the burden then shifts
to the defendant to demonstrate a legitimate nondiscriminatory purpose for
the employment action.” Aldrup v. Caldera, 274 F.3d 282, 286 (5th Cir. 2001)
(citation omitted). If the defendant does so, the burden returns to the plaintiff
to prove that the employer’s stated reason for the adverse action was merely
a pretext for the real, discriminatory purpose. Id. “The plaintiff must prove
pretext by the standard of but-for causation.” Roberts v. Lubrizol Corp., 582
F. App’x 455, 460 (5th Cir. 2014) (citing Univ. of Tex. Sw. Med. Ctr. v. Nassar,
––– U.S. ––––, 133 S. Ct. 2517, 2533 (2013)).
I. Prima Facie Case
A. Whether Valderaz Engaged in Protected Activity
Title VII forbids employment discrimination against any individual
based on that individual’s “race, color, religion, sex, or national origin.” 42
U.S.C. § 2000e-2(a)(1) (emphasis added). “When the workplace is permeated
with discriminatory intimidation, ridicule, and insult that is sufficiently
severe or pervasive to alter the conditions of the victim’s employment and
create an abusive working environment, Title VII is violated.” Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998) (citation omitted).
Title VII also protects employees for having “opposed any practice made
an unlawful employment practice by this subchapter.” 42 U.S.C. § 2000e-3(a).
An employee need not prove that the discriminatory practice he reported was
actually unlawful; he need only show a reasonable belief that such conduct
constituted an unlawful employment practice under Title VII. Turner v.
Baylor Richardson Med. Ctr., 476 F.3d 337, 348 (5th Cir. 2007) (citation
omitted).
6
Case: 14-10761 Document: 00513091787 Page: 7 Date Filed: 06/24/2015
No. 14-10761
Valderaz engaged in protected activity when he reported sex
harassment to his supervisor on March 2, 2011. UMC attempts to confuse the
arguments by focusing on whether Valderaz had a claim for sex harassment.
But that is not required under this prong. The district court properly
concluded that Valderaz made an internal report of perceived discrimination,
which is protected by Title VII. See Payne v. McLemore’s Wholesale & Retail
Stores, 654 F.2d 1130, 1140 (5th Cir. 1981).
B. Whether Valderaz Suffered a Materially Adverse Action
Valderaz points to numerous events he claims constitute materially
adverse actions: (1) Leal subjecting him to negative treatment by telling his
coworkers he had complained about them; (2) the lack of assistance in caring
for patients and false performance reports made by female coworkers; (3)
being required to attend trainings as a result of those reports; and (4) his
inability to be transferred to another department, which resulted in his
termination.
An adverse employment action is one that a reasonable employee
would have found . . . materially adverse, which in this context
means it well might have dissuaded a reasonable worker from
making or supporting a charge of discrimination. In determining
whether an adverse employment action occurred, we focus on the
final decisionmaker. The actions of ordinary employees are not
imputable to their employer unless they are conducted in
furtherance of the employer’s business. There must, however, be
a direct relationship between the allegedly discriminatory
conduct and the employer’s business.
Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 657 (5th Cir. 2012)
(quotation marks and citation omitted). “[P]etty slights, minor annoyances,
and simple lack of good manners” are not actionable retaliatory conduct.
Stewart v. Miss. Transp. Comm’n, 586 F.3d 321, 332 (5th Cir. 2009) (citation
omitted).
7
Case: 14-10761 Document: 00513091787 Page: 8 Date Filed: 06/24/2015
No. 14-10761
1. Leal’s meeting with female coworkers
Valderaz claims that after he reported his coworkers’ conduct to Leal,
she immediately held a meeting where she told Valderaz’s coworkers about
his complaints. He argues that this subjected him to additional negative
treatment, which made it more difficult to work at UMC.
“Whether a particular [action] is materially adverse depends upon the
circumstances of the particular case, and should be judged from the
perspective of a reasonable person in the plaintiff’s position, considering all
the circumstances.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53,
71 (2006) (quotation marks and citation omitted). Based on Valderaz’s
allegations, Leal’s attempt to resolve the situation by informing Valderaz’s
coworkers of his complaint was not actionable retaliatory conduct. Valderaz
has not given the Court any reason to conclude that Leal set that meeting
with any intentions other than to address the conflict. While there may be
circumstances which would counsel against a supervisor confronting
wayward employees about their treatment of a co-employee and disclosing
that co-employee’s complaint with specificity, this is not one of them.
2. Lack of assistance and false reports
Next, Valderaz advances that his female coworkers refused to give him
proper assistance and lodged false reports against him because he reported
their harassing conduct. These incidents do not qualify as materially adverse
because they were committed by ordinary employees and were not committed
in furtherance of UMC’s business. 4 See Hernandez, 670 F.3d at 657 (citing
4Valderaz refers to his female coworkers interchangeably as both his “coworkers”
and his “supervisors.” His assertion that their title as “charge nurses” makes them
supervisors is conclusory. There is no evidence in this record that they were supervisors.
See Long v. Eastfield Coll., 88 F.3d 300, 306 (5th Cir. 1996) (stating that supervisors have
power over employment status). In fact, as mentioned by the district court, this Court has
8
Case: 14-10761 Document: 00513091787 Page: 9 Date Filed: 06/24/2015
No. 14-10761
Long v. Eastfield Coll., 88 F.3d 300, 306 (5th Cir. 1996) (holding that
employers are not liable for conduct of ordinary employees, because an
ordinary employee’s conduct “will normally be so unrelated to the employer’s
business that it cannot be deemed ‘in furtherance’ thereof”)).
3. Requirement to attend training
Although not clearly articulated by Valderaz, he relies on the so-called
“cat’s paw” theory of liability to establish that he was subject to a materially
adverse action when he was forced to undergo training as a result of false
performance reports made by female coworkers. This theory allows the
coworkers’ alleged discriminatory animus to be imputed to Leal’s decision to
require Valderaz to attend training, if Leal “acted as a rubber stamp, or the
cat’s paw, for the [coworkers’] prejudice.” Ameen v. Merck & Co., 226 F. App’x
363, 376-77 (5th Cir. 2007) (quotation marks and citations omitted). To
invoke the cat’s paw analysis, Valderaz must submit evidence sufficient to
establish two conditions: (1) that his coworkers exhibited retaliatory animus,
and (2) that they possessed leverage, or exerted influence, over Leal. Id. at
377 (citation omitted).
Valderaz has provided sufficient evidence showing that his coworkers
had reason to retaliate once they learned that he complained of their illicit
behavior, but he has not put forth evidence that they had any undue
influence over Leal. Moreover, on this record, training in and of itself would
not dissuade a reasonable employee from making a discrimination claim.
Indeed, Valdarez admitted that he did not resent the fact that he was
required to go through training. 5
previously found that “charge nurses” are not considered supervisors in labor-relations
cases. See Entergy Gulf States, Inc. v. NLRB, 253 F.3d 203, 210 (5th Cir. 2001).
5 Ironically, because training usually benefits the employee, many employees base
their Title VII claims on a denial of training. See, e.g., Earle v. Aramark Corp., 247 F. App’x
9
Case: 14-10761 Document: 00513091787 Page: 10 Date Filed: 06/24/2015
No. 14-10761
4. Final Termination
Valderaz next argues that UMC advised him to transfer as a ploy to
ultimately terminate his employment. The parties do not dispute that
Valderaz’s loss of employment is an adverse employment action, as this Court
has always held that it is. See DeHart v. Baker Hughes Oilfield Operations,
Inc., 214 F. App’x 437, 442 (5th Cir. 2007) (citation omitted).
C. Whether There Was a Causal Link
Valderaz must next show that his termination on June 24, 2011 had a
causal nexus to the report he made about his female coworkers on March 2,
2011.
We have often looked to three factors when considering the causal link
prong: “(1) the employee’s past disciplinary record, (2) whether the employer
followed its typical policy and procedures in terminating the employee, and
(3) the temporal proximity between the employee’s conduct and termination.”
Id. at 442-43 (citation omitted). The record here supports only the third
prong, which Valderaz employs. While suspicious timing alone is rarely
sufficient to establish the requisite causal connection, see id., this Court
allows for a prima facie case to be made on temporal proximity alone if it is
“very close,” Washburn v. Harvey, 504 F.3d 505, 511 (5th Cir. 2007) (citation
omitted). For example, a time lapse of up to four months has been found to be
sufficient. See Evans v. City of Houston, 246 F.3d 344, 354 (5th Cir. 2001));
Hypolite v. City of Houst., Tex., 493 F. App’x 597, 606 (5th Cir. 2012). But see
Flanner v. Chase Inv. Servs. Corp., 600 F. App’x 914, 921-22 (5th Cir. 2015)
(noting that a four-month gap, or even a two-month gap, standing alone, is
insufficient to establish causation, and that Evans actually held that the five-
day gap in time was sufficient in that case.)
519, 523 (5th Cir. 2007); Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 354 (5th Cir.
2001); Wojciechowski v. Nat’l Oilwell Varco, L.P., 763 F. Supp. 2d 832, 856 (S.D. Tex. 2011).
10
Case: 14-10761 Document: 00513091787 Page: 11 Date Filed: 06/24/2015
No. 14-10761
Here, fewer than four months elapsed between the time that Valderaz
reported sex harassment to his supervisor and his termination. Therefore,
Valderaz has established his prima facie case for retaliation.
II. Legitimate, nonretaliatory reason for termination
The burden now shifts to UMC to articulate its legitimate,
nonretaliatory reason for the adverse action. See Aldrup, 274 F.3d at 286.
UMC proffers two legitimate, nondiscriminatory reasons for Valderaz’s
termination: that his final termination was due to his lack of diligence in
seeking available transfer positions and that he lacked the requisite number
of on-call shifts to remain on the payroll. This is sufficient to satisfy its
burden of production.
III. Evidence of Pretext
To prove pretext, Valderaz must bring forth “substantial evidence”
demonstrating that UMC’s proffered reasons are a pretext for retaliation.
Etienne v. Spanish Lake Truck & Casino Plaza, L.L.C., 547 F. App’x 484, 489
(5th Cir. 2013) (citation omitted). Valderaz argues that UMC misled him into
giving up his full-time position so that it could eventually terminate him. He
also asserts that misrepresentations were made to him during the April 11
meeting so that he would agree to a transfer. In short, the April 11 meeting
was a ruse in order for him to be terminated, says Valderaz.
The testimony of Valderaz and his wife, standing alone, does not create
a triable issue with respect to pretext. See id. at 490. It is his burden “to
prove that a retaliatory motive was the but-for cause of, not merely a
motivating factor behind, the decision to terminate h[im].” Id. (citing Nassar,
133 S. Ct. at 2533). There is no evidence to support Valdarez’s belief that he
11
Case: 14-10761 Document: 00513091787 Page: 12 Date Filed: 06/24/2015
No. 14-10761
was terminated immediately after the April 11 meeting. 6 The evidence shows
that UMC relaxed its policy so that Valderaz could continue to work in PICU
as an on-call employee, while seeking open positions in other departments.
On these facts, there is nothing other than Valderaz’s subjective belief that
UMC retaliated against him. That belief, no matter how genuine, is
insufficient to show pretext without further evidence. See Pennington v.
Texas Dep’t of Family & Protective Servs., 469 F. App’x 332, 339 (5th Cir.
2012) (citation omitted). The record irrefutably shows that he was terminated
weeks after having been placed as an on-call status employee.
The record evidence also supports UMC’s reason regarding lack of
diligence. UMC’s Director of Human Resources attempted to assist Valderaz
in finding another position, but he missed at least one appointment with
nursing recruitment that was set up to help him. Although there were other
positions available that provided a higher wage, Valderaz applied to only two
positions. When he received an interview for one of those positions, he had
already taken another job. This record, including Valderaz’s testimony, taken
in the light most favorable to Valderaz, does not provide the “substantial
evidence” needed to preclude summary judgment on Valderaz’s retaliation
claim.
6 In concluding that there is a genuine fact dispute, the dissent points to Valderaz’s
affidavit. That affidavit (along with his wife’s affidavit) was executed on April 11, 2014, the
same day that plaintiff filed his response to UMC’s motion for summary judgment. The
affidavit contrasts with Valderaz’s deposition testimony. At his deposition, Valderaz
acknowledges that his decision not to return to the PICU was not dependent upon any
promise that he be transferred to another job with the hospital. Valderaz testified that the
reason he did not go back was because of the perceived hostile work environment. That was
his testimony, and his later filed affidavit should not be relied upon to defeat summary
judgment. See Callahan v. Gulf Logistics, L.L.C., 456 F. App’x 385, 392 (5th Cir. 2011)
(citation omitted). The record does not provide a basis for a jury to find but-for causation
between Valderaz’s complaints about his co-workers and his termination.
12
Case: 14-10761 Document: 00513091787 Page: 13 Date Filed: 06/24/2015
No. 14-10761
CONCLUSION
For the forgoing reasons, we AFFIRM the district court’s grant of
summary judgment on Valderaz’s retaliation claim.
13
Case: 14-10761 Document: 00513091787 Page: 14 Date Filed: 06/24/2015
No. 14-10761
JAMES L. DENNIS, Circuit Judge, dissenting:
Because the majority affirms summary judgment for the defendant in
this case by erroneously construing some of the plaintiff’s evidence against
him and by expressly disregarding other of his evidence, I respectfully
dissent.
I.
Daniel Valderaz, a former hospital nurse, claims that his female
coworkers made a number of remarks to him that were sexual in nature. He
also says that they questioned his ability, as a man, to work as a pediatric
nurse and refused to cooperate in performing nursing services with him.
Believing these comments and actions to be sex discrimination that was
detrimental to his job performance and the safety of his patients, he reported
their conduct to hospital supervisors. On April 11, 2011, Valderaz met with
the hospital’s HR director, Kanice Newton, to discuss his discrimination
complaint. Also present at the meeting were several other hospital
representatives, and Valderaz’s wife came with him. This is what Valderaz
attests, in his affidavit, happened at the meeting (there is also an affidavit in
the record from Valderaz’s wife corroborating the account):
Ms. Newton, instead of stating that she would take
steps to correct the problems I was having, instead,
suggested that I transfer out of PICU [the Pediatric
Intensive Care Unit] into another department. In
doing so, she explicitly and clearly told me that there
were nursing positions available for me to transfer
out of the department and that all I needed to do was
to choose one and I would be transferred to that
department. I was specifically told by Ms. Newton
that I was transferring, not that I was resigning and
applying for a job in another department. In fact, she
stated that she was making an exception for me to do
that. I agreed to the transfer based upon the specific
14
Case: 14-10761 Document: 00513091787 Page: 15 Date Filed: 06/24/2015
No. 14-10761
statements made by Ms. Newton, the Human
Resources Director, that it was, in fact, a transfer. I
told her that I could not afford to lose my job because
of a number of reasons and she assured me that I was
not losing my job but was simply making a transfer
to an existing position. I did not misunderstand what
the Human Resources Director told me, and I relied
upon her representations in agreeing to transfer. She
then told me to report to the recruiting office to begin
the transfer process. When I arrived at the
recruiting office, it was closed. I went home and
called the recruiting office. At that time, I was told
there was not another position available and that my
employment had, in fact, been terminated. I believe
the transfer was a ruse to induce me to leave my
position in PICU.
In his deposition testimony, Valderaz clarifies what he means in saying
that his “employment was terminated.” Although he didn’t know it
immediately after the April 11 meeting, his employment at the hospital was
not terminated in whole. Rather, his employment as a full-time nurse ended,
and he was transferred to “on-call” status at the hospital. When he was a
full-time nurse, he had insurance and retirement benefits; as an on-call
employee, he did not. As an on-call employee, he did not work full-time, but
only as needed. If he wanted to return to his status as a full-time employee
with benefits, he would have had to apply for an open position and be
accepted, just as any outside applicant would, and he would not be
guaranteed a position. Valderaz says that there was no discussion of his on-
call status change during either the April 11 meeting or the subsequent
conversation with the recruiting office. He states that during the April 11
meeting he was promised a transfer to an equivalent position as a full-time
nurse, but that after the meeting he was told by the recruiting office that his
position was terminated. He states that he was not aware until sometime
15
Case: 14-10761 Document: 00513091787 Page: 16 Date Filed: 06/24/2015
No. 14-10761
later that the hospital had not fired him in whole, but had reclassified him as
an on-call nurse. 1
In short, Valderaz’s contention is that, in his meeting with HR to
discuss his complaint of sex discrimination, the hospital, in direct response to
his complaint, promised him a transfer to an equivalent job; then, for no
stated reason, the hospital reneged on its promise. 2 It did not transfer him to
an equivalent job, but it reclassified him to continue working on an “as-
needed” basis, without the full-time pay or benefits he formerly had, and told
him that if he wanted full-time work again, he would have to apply for it and
compete with all other applicants on an equal footing.
To support a prima facie claim of retaliation under Title VII, the
plaintiff must show that “(i) he engaged in a protected activity, (ii) an adverse
employment action occurred, and (iii) there was a causal link between the
protected activity and the adverse employment action.” Hernandez v. Yellow
Transp., Inc., 670 F.3d 644, 657 (5th Cir. 2012). In my view, those elements
are met here.
First, there is no question that Valderaz’s reports to hospital
supervisors of what he believed to be sex discrimination was protected
activity. I agree with the majority on this point. See ante, at 6-7.
Second, it is an uncontroversial conclusion that an adverse employment
action occurred. An adverse employment action is employer conduct that
“well might have dissuaded a reasonable worker from making or supporting a
charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548
1The record contains a hospital form reflecting Valderaz’s on-call status change on
April 25, 2011. Another hospital form in the record reflects the complete termination of
Valderaz’s employment on June 24, 2011.
2 The hospital does not deny that Newton, its HR director, had authority to act on its
behalf in personnel matters such as Valderaz’s.
16
Case: 14-10761 Document: 00513091787 Page: 17 Date Filed: 06/24/2015
No. 14-10761
U.S. 53, 68 (2006) (internal quotation marks and citation omitted). After
Valderaz complained about sex discrimination, he lost his status, salary, and
benefits as a full-time employee. Such a loss of status, salary, and benefits
would dissuade a reasonable worker from making a charge of discrimination.
Third, it is equally clear that Valderaz’s deposition and affidavit
testimony supports a causal link between his complaint of sex discrimination
and the adverse employment action. Valderaz testifies that the hospital
made its false promise of a transfer, on which it later reneged, when meeting
with him to discuss his discrimination complaint. The false promise of a
transfer and the corresponding diminishment of employment status, salary,
and benefits, in other words, was the hospital’s immediate and direct
response to Valderaz’s discrimination complaint. If such an immediate and
direct response to a discrimination complaint does not constitute a causal
link, then nothing does. 3
Because Valderaz’s evidence suffices for a prima facie case of
retaliation, the burden shifts to the hospital “to provide a legitimate, non-
3 The majority finds causation present here because fewer than four months elapsed
between when Valderaz first complained about sex discrimination to hospital supervisors
(March 2, 2011) and when his employment was terminated (which the majority concludes
was June 24, 2011, based on the hospital’s documentary evidence). Ante, at 10-11. This is
a puzzling and unnecessary analysis. There are some cases where the only evidence of a
causal link between the employee’s complaint of discrimination and some subsequent
adverse employment action is the circumstantial fact that only a short period of time
passed between the two events. But this is not such a case. Here, the employee and the
employer had a conversation about the employee’s claim that he was a victim of
discrimination, and, in that conversation and in direct response to the employee, the
employer committed part of the alleged adverse employment action—i.e., the false promise
of a transfer. Causation is present because the hospital’s conduct was unambiguously
responsive, and directly so, to Valderaz’s charge of discrimination. Cf., e.g., Loveless v.
John’s Ford, Inc., 232 F. App’x 229, 234 (4th Cir. 2007) (unpublished) (rejecting employer’s
argument as to an “insufficient nexus” when employer made derogatory comments in direct
response to the employee’s question of “why me?”). There is therefore no need in this case to
search for causation buried in circumstantial evidence.
17
Case: 14-10761 Document: 00513091787 Page: 18 Date Filed: 06/24/2015
No. 14-10761
retaliatory reason for the adverse employment action.” Hernandez, 670 F.3d
at 657 (internal quotation marks and citation omitted). The hospital has
satisfied that burden. Simply stated, its witnesses dispute Valderaz’s
testimony about the April 11 meeting. Valderaz was never promised any
other position, the hospital’s witnesses maintain. According to them,
Valderaz resigned from his full-time job of his own volition. There was
simply no retaliation, the hospital contends, but only a voluntary resignation.
Now, the question is whether Valderaz’s evidence creates a genuine
dispute as to whether the hospital terminated his full-time employment
against his will and as a result of his discrimination complaint. See
Hernandez, 670 F.3d at 657. I think that it does. This case comes down to
dueling testimony. Valderaz’s testimony, corroborated by his wife’s, is that
the hospital, in direct response to his discrimination complaint, made a false
promise to him that it did not keep and instead terminated his full-time
employment, leaving him with lesser status, salary, and benefits. The
hospital counters with testimony that no such thing happened. Therefore, it
falls to the jury to listen to the witnesses, believe whom it will, and rule
accordingly. See Harvill v. Westward Commc’ns, L.L.C., 433 F.3d 428, 436
(5th Cir. 2005) (the court cannot make credibility determinations or weigh
any evidence on a summary judgment motion). Valderaz is entitled to a trial,
and we should therefore reverse the district court’s summary judgment and
remand for such.
II.
Respectfully, the majority’s stated reasons for denying Valderaz’s
retaliation claim, which I will now address, are erroneous.
18
Case: 14-10761 Document: 00513091787 Page: 19 Date Filed: 06/24/2015
No. 14-10761
A.
First, the majority states in a footnote that it disregards Valderaz’s
affidavit (and apparently his wife’s corroborative affidavit, too) because the
affidavit “contrasts with” Valderaz’s prior deposition testimony. Ante, at 12
n.6. The majority explains:
At his deposition, Valderaz acknowledges that his
decision not to return to the PICU was not dependent
upon any promise that he be transferred to another
job with the hospital. Valderaz testified that the
reason he did not go back was because of the
perceived hostile work environment. That was his
testimony, and his later filed affidavit should not be
relied upon to defeat summary judgment.
Id. (emphasis in original). If Valderaz truly testified at his deposition that he
chose to leave his job irrespective of any promise of a transfer to another
position, then such testimony would indeed conflict (or at least be in tension)
with the affidavit. However, as I read Valderaz’s deposition, he did not so
testify. The deposition testimony shows the majority’s misunderstanding of
it:
Q. Did you ever make a determination that you
were not going back to work in the PICU?
A. I informed Mrs. Newton that the environment
was so hostile and so inappropriate and not
conducive to the care of critically ill pediatric
patients that it was an unsafe environment for
me to practice, that it would possibly cause an
adverse effect or event to a pediatric patient
which would then cause an adverse effect to my
licensure and career and employment, that I
was not receiving appropriate support for
pediatric patients for the care and the
requirements involved. That the most
comfortable way for me to go back to work is to
receive the tools, the equipment, the personnel,
19
Case: 14-10761 Document: 00513091787 Page: 20 Date Filed: 06/24/2015
No. 14-10761
the support and the education to effectively
care for pediatric intensively ill children.
Q. Okay. But my question was, did you make a
determination “I’m not going back there”?
A. Based on that criteria.
Q. And when did you make that determination?
A. With a meeting with Mrs. Newton.
Q. And I believe that was on April 11th . . . .
A. Yes, sir.
Q. . . . [T]hat determination was not based on
having an alternative place to go, it was a
determination made that “I’m not going back
there under any circumstances,” correct?
A. The determination was that it was an unsafe
environment to practice nursing.
Q. And you made that determination you were not
going back into that?
A. That unless the situation, that the unsafe
situation was resolved, in an effective manner
for me to practice in a safe environment, that is
correct.
Q. Okay. So your decision on April 11th not to go
back was not dependent upon any promise that
you be transferred someplace else, it was based
on your feeling that that was not a place that
you could thrive and not a place you could be
safe and not a place that you were going to take
the risk of going back to, correct?
A. Unless the situation was—the hostile work
environment situation was resolved.
Clearly, the hospital’s attorney repeatedly attempted to elicit testimony
from Valderaz that he wouldn’t continue working in his department under
any circumstances and that such decision was made irrespective of any
20
Case: 14-10761 Document: 00513091787 Page: 21 Date Filed: 06/24/2015
No. 14-10761
promise to transfer to another department, but Valderaz never gave such
testimony. The majority’s statement that Valderaz testified to leaving his
department based entirely on perceived hostility and irrespective of any
promise to transfer to another department is clear error. (Notably, the
majority doesn’t quote any actual deposition testimony to that effect. There
is none.) Instead, Valderaz testified that he would continue working in his
department if the hostile environment (what he perceived to be a hostile
environment, that is) were resolved. And that testimony is entirely
consistent with his affidavit attesting that he agreed to transfer to a different
department based upon the hospital’s promise that he would actually be
given such a transfer. In fact, immediately after this part of the deposition,
Valderaz proceeded to testify, consistent with the affidavit, that the hospital
promised him a transfer during the April 11 meeting, e.g.:
Q. You allege that you were promised that you
would be transferred?
A. Absolutely.
There is, in short, no conflict between Valderaz’s deposition testimony
and his affidavit. Both the deposition and the affidavit tell the same story,
viz.: Valderaz informed the hospital that he didn’t want to continue working
in his current department unless the environment in the department
changed, the hospital responded by promising to transfer him to another
department, and he agreed to the hospital’s offer of a transfer, but then the
hospital reneged on that offer, thus leaving him without a full-time job.
The rules of summary judgment require that we credit this evidence of
Valderaz, the nonmovant, as the Supreme Court has recently reminded us.
Tolan v. Cotton, 134 S. Ct. 1861 (2014) (per curiam), summarily rev’g 713
F.3d 299 (5th Cir. 2013). With due respect to the majority, its decision to
21
Case: 14-10761 Document: 00513091787 Page: 22 Date Filed: 06/24/2015
No. 14-10761
construe Valderaz’s deposition testimony against him, mistakenly perceiving
a conflict where there is none, and using that erroneous construction as a
basis for wholly excluding his affidavit—and apparently his wife’s affidavit,
also—from consideration is plain error. The Supreme Court told us in Tolan
that it intervened in that case because this court’s opinion reflected “a clear
misapprehension of summary judgment standards.” Id. at 1868. It is
unfortunate that the same can be said here.
B.
Second, there is no evidence, the majority says, that Valderaz “was
terminated immediately after the April 11 meeting.” Ante, at 11-12.
According to the majority, the evidence “irrefutably” shows that he was
terminated later, “weeks after having been placed as an on-call status
employee.” Id. at 12. Respectfully, the majority misconstrues Valderaz’s
claim and the relevant evidence. When Valderaz says that his employment
was “terminated” after the April 11 meeting, what he means is that his status
as a full-time employee was terminated after the meeting. See Valderaz’s Br.,
at 14 (“Valderaz was tricked into terminating his full time employment by
being told by [hospital] representatives that he was not resigning his job but
was, instead, simply transferring to a new department.”) (emphasis added). 4
4 See also the following excerpt from Valderaz’s deposition:
Q. Was there any discussion [during the April 11
meeting] about you remaining on call . . . ?
A. No, there was no discussion. I actually found
that out after the fact, and I was then terminated
a second time for not–
Q. You got terminated twice? You got terminated
even after you had been terminated?
A. I was terminated from UMC [University Medical
Center hospital] a [sic] full-time position. And I
did not know–that had benefits and had
retirement and had insurance. And then I was
22
Case: 14-10761 Document: 00513091787 Page: 23 Date Filed: 06/24/2015
No. 14-10761
And there is no dispute—the parties agree—that Valderaz’s full-time
employment ended after the April 11 meeting. The only dispute is whether it
ended as a result of Valderaz’s voluntary choice (as the hospital claims) or not
(as Valderaz claims). In short, Valderaz’s full-time employment ended after
the April 11 meeting, and his retaliation claim focuses on that undisputed
fact. The majority has ignored Valderaz’s actual claim and instead denied
another claim that is not asserted.
C.
Third, the majority discusses Valderaz’s attempts to find another job at
the hospital and his “lack of diligence” in doing so. Ante, at 12. Here, the
majority entirely misses the point. As I explained, Valderaz’s claim of
retaliation focuses on the loss of his status, salary, and benefits as a full-time
employee. His efforts toward finding another job after he lost full-time
employment are irrelevant.
***
In sum, the majority presents no valid reason for denying Valderaz his
day in court. Properly understood, his claim of retaliation is supported by
sufficient evidence, and he has the right to have a jury assess it. I
respectfully dissent from the majority’s denial of that right.
then told that I had a [part-time] position that
had no benefits, had no secure employment, was
just an as-needed position that–that was still
there. And I had no idea, nobody had told me.
This exchange makes clear that in Valderaz’s terminology, there were two so-called
“terminations.” The first “termination”—the one that is the focus of this case—was during
and after the April 11 meeting, when he was switched from full-time work to on-call status.
The second “termination” was weeks later when he was no longer employed by the hospital
in any manner.
23