Case: 19-20656 Document: 00516486225 Page: 1 Date Filed: 09/27/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
September 27, 2022
No. 19-20656 Lyle W. Cayce
Clerk
Equal Employment Opportunity Commission,
Plaintiff—Appellant,
Magali Villalobos,
Intervenor Plaintiff—Appellant,
versus
Ryan’s Pointe Houston, L.L.C.; Advantage Property
Management, L.L.C.,
Defendants—Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:15-CV-2782
Before Richman, Chief Judge, and Higginbotham and Willett,
Circuit Judges.
Priscilla Richman, Chief Judge:*
*
Pursuant to 5th Circuit 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opinion should not be published and is not precedent except under the limited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 5th Circuit Rule 47.5.4.
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The Equal Employment Opportunity Commission filed suit against
Ryan’s Pointe Houston, L.L.C. and Advantage Property Management,
L.L.C., alleging the companies had engaged in national origin and sex-based
discrimination. Magali Villalobos, the subject of the adverse employment
action at issue, intervened. The district court granted summary judgment in
favor of the defendants. We reverse and remand for further proceedings.
I
Magali Villalobos is a United States citizen originally from Mexico.
Villalobos previously served as a property manager for Ryan’s Pointe
Houston (Ryan’s Pointe), the owners of a 280-unit apartment complex
managed by Advantage Property Management (Advantage). She was fired
from that position on March 21, 2012. Villalobos subsequently alleged that
this adverse employment action was the result of national origin and sex-
based discrimination.
Villalobos was originally hired as a leasing agent at the complex in May
of 2011. Tawana Rowghani, who was then serving as the complex’s property
manager, interviewed Villalobos for that position. Rowghani had worked
with Villalobos previously and was excited at the prospect of the two working
together again. At the time Villalobos was hired, the complex was owned and
operated by CNC Management. Villalobos was subsequently promoted to
assistant manager.
During Villalobos’s tenure as assistant manager, Ryan’s Pointe took
ownership of the apartment complex. Ryan’s Pointe’s owners, including
Robert Hayman, Michael Treiman, and Julian Blum, had purchased the
property in order to renovate it and resell it for a profit. Initially, Blum
oversaw the day-to-day management of the property. Accordingly,
Villalobos reported to Rowghani who, in turn, reported to Blum.
2
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Rowghani’s role began to expand almost immediately after Ryan’s
Pointe took ownership of the complex. Specifically, Rowghani became a
regional director, responsible for overseeing several apartment complexes
owned by Ryan’s Pointe. To backfill her previous position, Rowghani
eventually decided to interview Villalobos for the property manager position.
Blum also interviewed Villalobos before she was hired as the complex’s
property manager on January 1, 2012.
Around the time Villalobos began serving as property manager, a
series of management changes occurred at Ryan’s Pointe. Hayman fired
Rowghani, and Blum ceased overseeing the day-to-day management of the
complex. A belief that the property was underperforming prompted both
personnel changes. Hayman and Treiman then formed Advantage in order
to manage the apartment complex. On February 9, 2012, Advantage hired
Bobbie Dusek to serve as regional supervisor. Dusek then began a thirty-day
review of each of her subordinates, one of whom was Villalobos.
As part of this review, Dusek immediately came to question
Villalobos’s job performance. According to her deposition testimony, Dusek
grew concerned with at least three aspects of Villalobos’s job performance.
First, Villalobos was allegedly failing to prepare vacant units for rental in a
timely manner. Second, Villalobos was allegedly failing to submit invoices in
a timely fashion. Lastly, Villalobos was supposedly doing a poor job of
managing the complex’s delinquencies—the outstanding receivables that
result when tenants fail to pay rent on time. The January and February
delinquency reports, for example, showed $11,567.63 and $7,128.40 in
delinquencies, respectively. According to Dusek, the complex’s
delinquencies should not have exceeded $2,000. In an effort to correct these
deficiencies, Dusek allegedly provided Villalobos with oral and written
warnings that her job performance fell below standards.
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On February 28, 2012, well within her thirty-day review period, Dusek
hired a headhunter to find a replacement for Villalobos. The headhunter was
instructed to keep the inquiry “super confidential.” Shortly thereafter,
Dusek interviewed Rebecca Johnson for the position. Johnson, who appears
white, was ultimately hired as the complex’s property manager on March 9th.
Dusek then fired Villalobos on March 21st. According to Dusek, her decision
was based entirely on Villalobos’s poor job performance.
Villalobos was immediately concerned that her firing had not, in fact,
been motivated by her performance as the property’s manager. She filed a
complaint with the Equal Employment Opportunity Commission (EEOC)
alleging she was fired because of her national origin and because she had
recently informed her employers that she was pregnant. The EEOC
subsequently filed suit against Ryan’s Pointe and Advantage under Title VII.
Villalobos intervened on behalf of the plaintiff.
Taken in the light most favorable to the EEOC, resulting discovery in
the case revealed a highly toxic work environment at Ryan’s Pointe and
Advantage. 1 According to deposition testimony, Hayman, Blum, and
Treiman expressed a desire to change “the demographics” of the complex,
a term several witnesses testified was often times synonymous in the industry
with the race of the tenants. Testimony also indicated that Hayman referred
to a tenant as “a trashy Mexican” and that Blum referred to a tenant as “a
dumb Mexican.” Some of the owners were likewise alleged to have made
improper comments about the racial makeup of the staff. Hayman, for
instance, expressed dismay at the fact that the office staff were “all
1
See Harville v. City of Houston, 945 F.3d 870, 874 (5th Cir. 2019) (citing
Alkhawaldeh v. Dow Chem. Co., 851 F.3d 422, 425-26 (5th Cir. 2017)) (noting that appellate
courts “review a district court’s grant of summary judgment de novo, viewing all facts and
drawing all inferences in a light most favorable to the non-moving party”).
4
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Mexicans.” Both Hayman and Treiman likewise expressed a desire to
“change the demographic[s]” of the staff.
Testimony also called into question Dusek’s contention that
Villalobos was fired entirely based on her poor job performance. According
to an affidavit Dusek provided to the EEOC, she was told by Hayman and
Treiman to begin “working toward” Villalobos’s termination when she
started work at Advantage. Importantly, Hayman had also told Dusek to hire
a “higher class of individual with the look of Ken and Barbie,” which Dusek
understood as a hiring preference for those who are “petite, attractive,
young[,] and Caucasian.” Indeed, Hayman’s preference for a “white” staff
was made known on multiple occasions. Evidence likewise seemingly
contradicts Dusek’s assertions that Villalobos received oral and written
warnings concerning her job performance. According to Villalobos, she was
never counseled on her allegedly poor job performance. Furthermore, the
written counseling Dusek allegedly provided Villalobos was never signed and
was provided while Villalobos was on vacation.
Finally, discovery produced evidence suggesting that Villalobos’s
pregnancy may have played a role in her firing. When Blum discovered in
January of 2012 that Villalobos was expecting a child, he became frustrated
and stated that he believed she would take her full Family and Medical Leave
Act (FMLA) entitlement because “all Mexicans do that.” Although Blum
was no longer involved with the day-to-day management of the complex at
the time Villalobos was fired, he remained an investor in the complex and
attended monthly conference calls with the other investors. Evidence
suggests Dusek too was aware of Villalobos’s pregnancy prior to Villalobos’s
termination. Upon learning of the pregnancy, Dusek allegedly told Villalobos
that she should consider getting an abortion because her “job was taking off.”
Dusek would also later tell Hayman and Treiman that Villalobos was
5
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pregnant and allegedly told Johnson that she was instructed to fire Villalobos
because Villalobos “was Hispanic, and [because] she was expecting.”
Following discovery, Ryan’s Pointe and Advantage moved for and
were granted summary judgment on both of the EEOC’s claims. The
district court concluded, inter alia, that Villalobos could not make out a prima
facie case of discrimination because she was not qualified to serve as the
complex’s manager in the first place. The court likewise concluded summary
judgment was appropriate because Villalobos had allegedly been fired
entirely based on her poor job performance. This appeal followed.
II
On appeal, the EEOC argues that the district court erred in granting
summary judgment on both the national origin discrimination claim and the
sex-based discrimination claim. Our court reviews “a district court’s grant
of summary judgment de novo, viewing all facts and drawing all inferences in
a light most favorable to the non-moving party.” 2 Granting “[s]ummary
judgment is appropriate only if, viewing the evidence in the light most
favorable to the non-moving party, the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” 3 Under these standards, we conclude that the district court
erred in granting summary judgment as to both claims.
A
We first consider the national origin discrimination claim. To prevail
under Title VII, “a plaintiff may present [his or her] case by direct or
2
Harville, 945 F.3d at 874 (emphasis omitted) (citing Alkhawaldeh, 851 F.3d at 425-
26 (5th Cir. 2017)).
3
Id. (internal quotation marks omitted) (quoting FED. R. CIV. P. 56(a)).
6
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circumstantial evidence, or both.” 4 On appeal, the EEOC argues that it
could produce both sufficient direct and circumstantial evidence of national
origin discrimination such that summary judgment was inappropriate.
Although direct evidence is “rare in discrimination cases,” 5 we agree that
the proffered direct evidence of discrimination was sufficient to survive
summary judgment. Therefore, we need not consider whether the EEOC
presented sufficient circumstantial evidence of national origin
discrimination. 6
In Title VII cases, our court distinguishes between direct evidence of
discrimination—those “statement[s] or written document[s] showing a
discriminatory motive on [their] face” 7—and “stray remarks”—which fall
short of demonstrating discriminatory animus on their face. 8 We consider
four factors in making this distinction: “whether the comments are
(1) related to the plaintiff’s protected characteristic; (2) proximate in time to
the challenged employment decision; (3) made by an individual with
authority over the challenged employment decision; and (4) related to the
4
Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 896 (5th Cir. 2002) (citing Russell
v. McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000)).
5
See Rutherford v. Harris Cty., Tex., 197 F.3d 173, 180 n.4 (5th Cir. 1999) (quoting
Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 993 (5th Cir. 1996) (en banc)).
6
Davis v. Chevron U.S.A., Inc., 14 F.3d 1082, 1085 (5th Cir. 1994) (per curiam)
(emphasis omitted) (“If there is direct evidence that an employer placed substantial
negative reliance on an illegitimate criterion in reaching an employment decision, . . . resort
to inferential methods of proof is unnecessary.”); see also Sandstad, 309 F.3d at 896
(emphasis added) (citing Russell, 235 F.3d at 222) (noting that “a plaintiff may present
[her] case by direct or circumstantial evidence, or both”).
7
Herster v. Bd. of Supervisors of La. State Univ., 887 F.3d 177, 185 (5th Cir. 2018)
(quoting Portis v. First Nat’l Bank of New Albany, 34 F.3d 325, 329 (5th Cir. 1994)).
8
Etienne v. Spanish Lake Truck & Casino Plaza, L.L.C., 778 F.3d 473, 476 (5th Cir.),
as revised (Feb. 3, 2015).
7
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challenged employment decision.” 9 In considering the proffered evidence,
“our ultimate focus” 10 remains whether the statements or documents
demonstrate “discriminatory animus without inference or presumption.” 11
In this case, viewing the evidence in the light most favorable to the
EEOC, the evidence demonstrates clear discriminatory motive on its face
without the need for inference. Hayman expressed dismay at the fact that
the office staff were “all Mexicans.” Both Hayman and Treiman similarly
expressed a desire to “change the demographic[s]” of the staff. Further,
Hayman made his preference for a “white” staff known on multiple
occasions. Hayman also told Dusek to hire a “higher class of individual with
the look of Ken and Barbie” to replace Villalobos, which Dusek understood
as a hiring preference for those who are “petite, attractive, young[,] and
Caucasian.” That Dusek later admitted to a co-worker that she was told to
fire Villalobos because Villalobos was Mexican lends credence to these
allegations, as do Hayman’s additional statements, described above, which
disparage people from Mexico more broadly.
These statements meet all four factors that distinguish direct evidence
of discrimination from “stray remarks.” First, the statements relate directly
to Villalobos’s national origin. Villalobos is from Mexico and the statements
show dismay at the “Mexican” staff and a desire to “change the
demographic[s]” of the staff to be more “white.” Second, these statements
were proximate in time to the adverse employment action, namely
Villalobos’s termination. Third, the statements were made by a person with
9
Id. (citing Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 222 (5th Cir. 2001)).
10
Id.
11
Sandstad, 309 F.3d at 897 (citing Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1217
(5th Cir. 1995)).
8
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authority over Villalobos’s termination. We have stated that “[i]f the
employee can demonstrate that others had influence or leverage over the
official decisionmaker . . . it is proper to impute their discriminatory attitudes
to the formal decisionmaker.” 12 Hayman and Treiman, as owners of Ryan’s
Pointe, were in a position to influence Villalobos’s termination. Further,
Dusek terminated Villalobos at the instruction of Hayman and Treiman.
Dusek believed she would “absolutely” lose her job if she did not terminate
Villalobos. Thus, Dusek merely “rubber stamped” the wishes of Hayman
and Treiman. 13 Fourth, the statements relate to Villalobos’s termination. As
described above, the comments show dismay that the staff was “Mexican”
and a preference for a “white” staff. Further, Hayman and Treiman wanted
to terminate Villalobos in order to “change the demographic[s]” of the staff”
and hire a “higher class of individual with the look of Ken and Barbie.”
Thus, all four factors are met in this case.
Furthermore, this evidence is similar to that which we held to be direct
evidence of discrimination in Jones v. Robinson Property Group, L.P.. 14 There,
the plaintiff alleged he was not hired as a poker dealer due to being African
American. 15 The plaintiff presented evidence that (1) the manager or the
manager’s assistant stated that “they hired who they wanted to hire and
there [sic] were not going to hire a black person unless there were extenuating
circumstances,” (2) the manager or the manager’s assistant stated that
“good old white boys don’t want blacks touching their cards in their face,”
and (3) the manager stated that “maybe I’ve been told not to hire too many
12
Russell v. McKinney Hosp. Venture, 235 F.3d 219, 226 (5th Cir. 2000).
13
See Russell, 235 F.3d at 226-27 (quoting Long v. Eastfield Coll., 88 F.3d 300, 307
(5th Cir. 1996)).
14
427 F.3d 987 (5th Cir. 2005).
15
Id. at 989-90.
9
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blacks in the poker room.” 16 We stated that, “viewing the evidence in the
light most favorable to [the plaintiff],” these statements showed that race was
“a factor in employment decisions, which is by definition direct evidence of
discrimination.” 17 Similarly, the evidence presented by the EEOC shows
that national origin was a factor in employment decisions at Ryan’s Pointe.
Because the EEOC has proffered sufficient direct evidence of
discrimination, “the burden of proof shifts to [Ryan’s Pointe and Advantage]
to establish by a preponderance of the evidence that the same decision would
have been made regardless of the forbidden factor.” 18 Thus, at summary
judgment, they “must show that any reasonable jury would conclude that it
would have made the same decision absent the discrimination.” 19
Ryan’s Pointe and Advantage argue that Villalobos was terminated
due to her poor job performance and that this is evident in the “excessive
rental delinquencies.” However, the record is replete with evidence
suggesting the proffered justification was pretextual. For instance, the
January and February delinquency reports—the only two delinquency
reports available before the adverse employment action occurred—actually
showed a sizable decrease in delinquencies over the course of the two
months. Evidence also suggests Villalobos was not in fact counseled on her
allegedly poor job performance. Finally, the fact that Villalobos was given
almost no time to correct her deficiencies likewise suggests the proffered
16
Id. at 993.
17
Id.
18
Hamilton v. Dallas Cnty., 42 F.4th 550, 554 (5th Cir. 2022) (quoting Etienne v.
Spanish Lake Truck & Casino Plaza, L.L.C., 778 F.3d 473, 475 (5th Cir.), as revised (Feb. 3,
2015)).
19
Etienne, 778 F.3d at 477.
10
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reason for her firing was mere pretext. This evidence is sufficient to survive
summary judgment.
B
We now turn our attention to the EEOC’s sex-based discrimination
claim. On appeal, the EEOC acknowledges that there is no direct evidence
to support this claim. The EEOC contends, however, that it proffered
sufficient circumstantial evidence of discrimination such that summary
judgment was inappropriate. We agree.
Our court applies the McDonnell Douglas 20 burden-shifting framework
when evaluating discrimination claims supported by circumstantial
evidence. 21 Under that framework, the plaintiff must first establish a prima
facie case of discrimination. That is, the plaintiff must show “that she (1) is
a member of a protected class, (2) was qualified for the position that she held,
(3) was subject to an adverse employment action, and (4) was replaced by
someone outside of her protected class.” 22 The prima facie case establishes
a “presumption of discrimination”; the defendants must thereafter
“articulate a legitimate, non-discriminatory reason for the adverse
employment action.” 23 If the defendant is able to do so, “the burden shifts
back to [the plaintiff] to demonstrate that the employer’s proffered reason is
20
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
21
See Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 219 (5th Cir. 2001); see generally
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
22
Harville v. City of Houston, 945 F.3d 870, 875 (5th Cir. 2019) (citing Alkhawaldeh
v. Dow Chem. Co., 851 F.3d 422, 426 (5th Cir. 2017)); see also Bauer v. Albemarle Corp., 169
F.3d 962, 967 (5th Cir. 1999) (citing Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 41 (5th
Cir. 1996)) (noting that “[o]nly a minimal showing is necessary to” establish a prima facie
case of discrimination).
23
Harville, 945 F.3d at 875 (citing Shackelford v. Deloitte & Touche, LLP, 190 F.3d
398, 404 (5th Cir. 1999)).
11
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a pretext for discrimination.” 24 Here, the EEOC can establish a prima facie
case of pregnancy discrimination and has likewise created a genuine issue of
material fact as to whether the proffered reason for Villalobos’s firing was
pretextual.
As to the EEOC’s prima facie case, the only significant dispute
between the parties concerns whether Villalobos was qualified to serve as
property manager. That is, Ryan’s Pointe and Advantage do not seriously
challenge that Villalobos was a member of a protected class, was subject to an
adverse employment action, and was replaced by an individual outside of her
protected class. Villalobos was pregnant when she was fired, and she was
replaced by a woman who was not pregnant at the time she was hired. Ryan’s
Pointe and Advantage contend, however, that Villalobos was never in fact
qualified to serve as the property’s manager.
According to our prior cases, “a plaintiff challenging [her]
termination . . . can ordinarily establish [that she was qualified] by showing
that [she] continued to possess the necessary qualifications for [her] job at the
time of the adverse action.” 25 That is, the plaintiff must ordinarily show that
she did “not suffer[ a] physical disability or loss of a necessary professional
license or some other occurrence that rendered [her] unfit for the position
24
Id. (internal quotation marks omitted) (quoting Alkhawaldeh, 851 F.3d at 426).
25
Bienkowski v. Am. Airlines, Inc., 851 F.2d 1503, 1506 (5th Cir. 1988) (emphasis
added) (applying this test in the ADEA context), abrogated on other grounds by Owens v.
Circassia Pharms., Inc., 33 F.4th 814, 829 n.15 (5th Cir. 2022); see also Bauer, 169 F.3d at
966 (citing Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 957 (5th Cir. 1993)) (indicating that
the qualification inquiry pursuant to the ADEA and Title VII in the wrongful discharge
context are “identical”).
12
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for which [she] was hired.” 26 Our inquiry typically focuses on “objective job
qualifications (e.g., training, experience, and physical capacity).” 27
Subsequent issues with an employee’s performance—although relevant to the
second and third phases of the McDonnell Douglas framework—are irrelevant
when addressing whether the employee was qualified for the position
originally. 28
Under these standards, the EEOC can make the “minimal
showing . . . necessary to” survive summary judgment. 29 In this case, it is
reasonable and appropriate to infer that Villalobos was qualified for her last
position from the fact that she was hired to fill that position less than three
months before being fired. 30 As our precedents make clear, the fact that an
employee was hired for a particular position does not automatically
demonstrate that he or she was qualified for that position. 31 But here, the
inference is more than appropriate. Villalobos was hired only a few months
before being fired. She was hired from within, indicating her employer knew
of both her qualifications and potential prior to her promotion. Finally, she
26
Bienkowski, 851 F.2d at 1506 n.3; see also Lewis v. Jefferson Par. Hosp. Serv. Dist.
No. 2, 562 F. App’x 209, 211 n.3 (5th Cir. 2014) (per curiam) (referencing this language
when addressing the plaintiff’s Title VII claim).
27
Wooten v. McDonald Transit Assocs., Inc., 788 F.3d 490, 499 n.7 (5th Cir. 2015).
28
See Bienkowski, 851 F.2d at 1506.
29
Bauer, 169 F.3d at 967 (citing Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 41
(5th Cir. 1996)).
30
See Outley v. Luke & Assocs., Inc., 840 F.3d 212, 216 (5th Cir. 2016) (noting our
“agree[ment in that case] with the district court’s inference that [the plaintiff’s] initial
hiring demonstrate[d] her qualification”); see also Taylor v. Peerless Indus. Inc., 322 F. App’x
355, 357 n.1 (5th Cir. 2009) (per curiam) (noting that the defendant’s “argument that [the
plaintiff] lacked the minimum qualifications for the position [was] belied by the fact that
[the defendant] hired [the plaintiff] in the first place”).
31
See Bienkowski, 851 F.2d at 1505-06.
13
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was interviewed by Blum—one of Ryan’s Pointe’s owners—prior to being
hired, suggesting upper-level management approved of her promotion. This
reasonable inference, coupled with the fact that the record fails to indicate an
“occurrence that [subsequently] rendered [her] unfit for the position for
which [she] was hired,” supports the conclusion that Villalobos was in fact
qualified to serve as property manager when her employment was
terminated. 32
Nor does the contrary evidence highlighted by Ryan’s Pointe and
Advantage entitle them to judgment as a matter of law. On appeal, they stress
throughout their brief their desire for a property manager with renovation
experience. But whether renovation experience constituted a necessary
employment qualification is a disputed question of fact. The “super
confidential” job posting, for example, although mentioning that the
property was undergoing a renovation, failed to indicate that renovation
experience constituted a “required skill[].” Moreover, even assuming
Villalobos lacked renovation experience, the fact that she was promoted from
within several months after Ryan’s Pointe became the owner of the complex
with the intention of renovating it suggests renovation experience did not in
fact constitute a necessary job qualification. The record—taken in the light
most favorable to the EEOC—suggests renovation experience was not a
necessary job qualification.
The remaining evidence proffered by Ryan’s Pointe and Advantage
does not fare any better. They direct our attention to Dusek’s assessment
that Villalobos “was promoted to a position that she was never qualified or
trained to do”; Johnson’s experience with properties undergoing
renovations and her comparatively greater experience in the industry; and
32
Bienkowski, 851 F.2d at 1506 n.3.
14
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the fact that Johnson was able to improve the property’s performance after
coming aboard. But Dusek’s subjective assessment of Villalobos’s
qualifications does not sufficiently demonstrate that Villalobos lacked an
objective qualification at the time of termination. 33 Similarly, Johnson’s
qualifications and subsequent performance as property manager do not speak
to whether Villalobos was qualified to serve in that capacity. Thus,
notwithstanding Ryan’s Pointe’s and Advantage’s arguments to the
contrary, the EEOC proffered sufficient evidence of Villalobos’s
qualifications to establish a prima facie case of discrimination.
Because the EEOC has sufficiently established a prima facie case of
discrimination, the burden shifts to Ryan’s Pointe and Advantage to
“articulate a legitimate, non-discriminatory reason for the adverse
employment action.” 34 Their proffered reason for Villalobos’s
termination—poor job performance, namely a failure to reduce
delinquencies—meets their burden. 35 Several witnesses, including
Villalobos, noted that the delinquencies for the complex were higher than
they should be. Further, Dusek noted that it was Villalobos’s supposedly
poor job performance that prompted her termination.
Nevertheless, because there are genuine issues of material fact as to
whether this proffered rationale was merely pretextual, summary judgment
33
See Lewis v. Jefferson Par. Hosp. Serv. Dist. No. 2, 562 F. App’x 209, 211-12 (5th
Cir. 2014) (per curiam) (collecting cases in which we have concluded plaintiffs were not
qualified because of their failure to meet objective qualifications for employment).
34
Harville v. City of Houston, 945 F.3d 870, 875 (5th Cir. 2019) (citing Shackelford
v. Deloitte & Touche, LLP, 190 F.3d 398, 404 (5th Cir. 1999)).
35
See Burton v. Freescale Semiconductor, Inc., 798 F.3d 222, 231 (5th Cir. 2015); see
also Allaudin v. Perry’s Rests., Ltd., 805 F. App’x 297, 298-300 (5th Cir. 2020) (per curiam).
15
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was inappropriate. 36 As described above, the record contains evidence
suggesting this justification was pretextual. This evidence includes a decline
in delinquencies over the two months of Villalobos’s tenure as property
manager, evidence that Villalobos was not counselled regarding her job
performance, and the limited time Villalobos was provided to correct her
alleged deficiencies.
The EEOC likewise produced the following evidence which directly
supports the conclusion that Villalobos’s pregnancy played a role in her
termination: testimony that Dusek suggested Villalobos should get an
abortion because her “job was taking off,” testimony that Blum was
frustrated when he found out Villalobos was pregnant because she would seek
to take her full FMLA entitlement; testimony that Hayman and Treiman
were aware of Villalobos’s pregnancy; and Johnson’s statement that Dusek
was allegedly told to fire Villalobos because she was pregnant. Collectively,
this evidence demonstrates that the leadership in both companies were
subjectively aware of Villalobos’s pregnancy and that Villalobos’s pregnancy
arguably played a role in the ultimate decision to terminate her employment.
Dusek’s testimony that she fired Villalobos entirely based on
Villalobos’s job performance is insufficient to defeat summary judgment.
Fully crediting Dusek’s post hoc conclusion that her actions were proper and
legal is inappropriate at this stage in the proceedings. A jury may ultimately
decide to credit Dusek’s assertions. But in the current posture, when we are
36
See Auguster v. Vermilion Par. Sch. Bd., 249 F.3d 400, 403 (5th Cir. 2001) (noting
that the third step of the McDonnell Douglas framework requires “the plaintiff [to] produce
substantial evidence of pretext”); see also id. (quoting Bauer v. Albemarle Corp., 169 F.3d
962, 967 (5th Cir. 1999)) (“Evidence that the proffered reason is unworthy of credence
must be enough to support a reasonable inference that the proffered reason is false; a mere
shadow of doubt is insufficient.” “[A]n employee’s ‘subjective belief of discrimination’
alone is not sufficient to warrant judicial relief.”).
16
Case: 19-20656 Document: 00516486225 Page: 17 Date Filed: 09/27/2022
No. 19-20656
required to take the evidence and all reasonable inferences therefrom in the
light most favorable to the nonmovant, there exists a genuine issue of material
fact as to whether the proffered reason for Villalobos’s firing was pretextual.
Accordingly, the district court erred in granting summary judgement as to
the EEOC’s sex-based discrimination claim.
* * *
The district court’s judgment is REVERSED and the case is
REMANDED for further proceedings.
17