Fabela v. Socorro Independent School District

United States Court of Appeals
Fifth Circuit
F I L E D
REVISED APRIL 28, 2003
April 24, 2003
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
_________________

No. 02-50138

ALICIA FABELA,

Plaintiff - Appellant,

versus

SOCORRO INDEPENDENT SCHOOL DISTRICT,

Defendant-Appellee.

Appeal from the United States District Court
for the Western District of Texas

Before DAVIS, BENAVIDES, and DENNIS, Circuit Judges.

BENAVIDES, Circuit Judge:

This retaliation case presents a sufficiency of evidence

question. Plaintiff-Appellant Fabela was discharged from her

position as campus secretary by Defendant-Appellee Socorro

Independent School District(the District). Fabela contends that

the District terminated her employment, in part, because she had

filed a charge of sexual harassment with the Equal Employment

Opportunity Commission (EEOC)in 1991. Consequently, she contends

that she was discharged in violation of Title VII of the Civil

Rights Act of 1964, as amended, 42 U.S.C. 2000e-3 et seq. (Title
VII). Fabela initiated this action alleging a sole claim of

retaliation. The District moved for summary judgment on the

grounds that Appellant failed to rebut the nondiscriminatory

reason offered by the District for Fabela’s dismissal. The

district court granted summary judgment in favor of the District,

finding that Fabela had failed to present sufficient evidence

supporting a causal connection between her 1991 charge, and the

termination of her employment in 1997. We find otherwise.

I.

Alicia Fabela began her employment with the District in

1986. Initially, Fabela worked as a secretary for the District

itself, but in 1991 she became the campus secretary at Vista Del

Sol Elementary School (Vista). The principal at Vista was Mr.

Arturo Olivas. In February 1991, Olivas gave Fabela a poor work

evaluation and recommended that she be terminated as an employee

of the District. Shortly thereafter, Fabela filed a charge of

discrimination and sexual harassment with the EEOC. Fabela

alleged that Olivas had made unwelcome sexist and sexual remarks,

and that when Fabela complained to Olivas about his behavior, he

gave her a poor work evaluation in retaliation.

In a letter dated September 30, 1992, the EEOC informed

Fabela that the evidence gathered by the EEOC in its

investigation failed to establish a Title VII violation.

Specifically, the letter noted that the investigation concluded

that Fabela’s claims were unsubstantiated, that her assertion

2
that she had complained to Olivas about his behavior was

uncorroborated by witnesses, and that witnesses instead testified

that Fabela was having problems at work because Olivas was

displeased with her performance. In closing, the EEOC letter

informed Fabela that the Commission was dismissing her charge,

and that Fabela could pursue a civil remedy if she so chose. She

declined to do so.

However, despite the EEOC’s determination that Fabela’s

sexual harassment and retaliation charges against Olivas were

unsubstantiated, Fabela was not discharged as Olivas had

recommended. Instead, Assistant Superintendent Tom Marcee granted

Fabela’s request for an immediate transfer to another District

school. Thus began Fabela’s tenure at the Benito Martinez School.

The first five years that Fabela spent at Benito Martinez

were apparently uneventful. During that time, Fabela received

only positive evaluations from the principal, Ms. Mary Tucker.

However, in 1996, Principal Tucker was replaced by Ms. Jo

Reinhart. The record reflects that in contrast to Fabela’s

relationship with Tucker, the working relationship between Fabela

and Reinhart rapidly became inharmonious. Reinhart first

officially reviewed Fabela’s work in March 1997, at which time

she offered several critiques of Fabela’s performance as campus

secretary, and identified areas in which Fabela should improve.

On October 1, 1997 a significant incident occurred between

Fabela and Reinhart. Reinhart ordered Fabela to leave campus and

3
drive to a print shop to pick up report card forms which Reinhart

believed Fabela had failed to order in a timely fashion. Fabela

did not go to retrieve the forms as instructed, but instead

waited for them to be delivered the following day. Fabela

contends that she told Reinhart that she could not drive to

collect the forms because she had a migraine headache. Reinhart

contends that Fabela refused to get the forms in deference to a

slight headache and cross-town traffic. In any event, Fabela did

not pick up the report cards.

The following day Reinhart and Fabela met to discuss the

report card conflict and other issues. Both women agree that a

second disagreement erupted between them at the October 2

meeting, during which Fabela became upset and left the school

campus. Fabela avers that following the second incident with

Reinhart, she went home and called the District’s Director of

Personnel Services, Lois Ordaz. Fabela sought Ordaz’s advice

about securing a transfer to another District school. Ordaz

directed Fabela to report to Ordaz’s office the following Monday,

and to not return to work at Benito Martinez until after that

time.

On Monday October 6, Fabela was informed by Ordaz that

Reinhart had recommended her immediate discharge from the

District’s employ. Reinhart articulated her recommendation in a

letter directed to Assistant Superintendent Marcee. In the letter

Reinhart described the events of October 1 and 2 and outlined

4
several areas in which she was dissatisfied with Fabela’s

preformance as campus secretary, and ultimately recommended

Fabela’s immediate dismissal.1 Marcee concurred with Reinhart’s

decision to terminate Fabela, and Fabela’s offical notice of

dismissal was authored by Marcee.

Fabela appealed her termination, and on October 13, 1997,

pursuant to the District’s policy concerning at-will employees,

the District conducted a “review session” to evaluate Fabela’s

termination.2 The review session was conducted by Dr. Gary

Brooks, who was appointed by the District to review Fabela’s

dismissal and determine whether rehiring Fabela would be in the

District’s best interest.3 Fabela was present at the review

session, and was represented by her counsel, Tony Conners.

1
Reinhart’s letter pointed to a number of deficiencies in
Fabela’s performance, including a lack of leadership as campus
secretary; poor and ineffective organizational skills; an
inability to meet deadlines and carry through on routine
functions; a poor attitude and lack of initiative; and persistent
insubordination.
2
The District utilizes a multilayered complaint, grievance,
and review process to respond to varying degrees of employee
dissatisfaction. According to the deposition of Dr. Brooks,
Fabela received a review session as opposed to an arbitration
hearing because instead of filing an official complaint, Fabela
merely asked for a review of her termination. Dr. Brooks averred
that if an employee requests a review session, “the
superintendent or his designee shall determine whether or not the
dismissal is based on reasons that are arbitrary, capricious or
discriminatory, and/or whether reinstating employment will be in
the best interest of the school district.”
3
Dr. Brooks also designed the District’s review and
grievance process and served as the district arbitrator at the
time of Fabela’s termination.

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Assistant Superintendent Marcee, Lois Ordaz, and Principal

Reinhart all appeared to represent the position of the District.

During the session, Marcee “took the lead” in addressing the

questions which Dr. Brooks directed at the District, and in

particular it was Marcee who produced for Dr. Brooks documents

related to Fabela’s employment with the District. The documents

which Marcee produced included, inter alia, the EEOC

determination letter received by the District which described

Fabela’s 1991 sexual harassment charge as “unsubstantiated”.4

Fabela and her attorney Mr. Conners both aver that when Dr.

Brooks asked the District why it wished to terminate Fabela,

Marcee responded that Fabela was a “problem employee”, and cited

among other instances of “problem” behavior the fact that Fabela

had filed an unsubstantiated EEOC claim in 1991. According to

Appellant and her attorney, Lois Ordaz was then directed by

Marcee to read the EEOC determination letter aloud during the

review session, and then present the letter to Dr. Brooks.

On October 17, 1997, Dr. Brooks returned a finding in

support of the District’s decision to dismiss Fabela. In

particular, Dr. Brooks concluded that Reinhart had been unhappy

with Fabela’s job performance since December 1996, that

Reinhart’s expectations of Fabela were reasonable, and that it

4
In support of the District’s decision to terminate
Fabela’s employment, Marcee also produced past performance
reviews from Principals Olivas and Reinhart. Marcee did not offer
the five favorable reviews Fabela received from Principal Tucker.

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would not be in the best interest of the District to reinstate

Fabela.

In January 1998, Fabela filed a charge with the EEOC

alleging both age discrimination and retaliatory firing in

connection to her 1991 EEOC complaint. The EEOC found her age

discrimination complaint to be unsubstantiated, but did find that

the evidence showed there was reasonable cause to believe that

Fabela was retaliated against based on her 1991 charge of

discrimination. Upon the conclusion of the EEOC’s investigation

Fabela received notice of her right to sue, and she initiated

this action against the District asserting that she was

discharged in retaliation for filing the 1991 charge, which is a

violation of Title VII of the Civil Rights Act of 1964, as

amended, 42 U.S.C. 2000e-3(a)(2000). The district court granted

summary judgment in favor of the District, finding that Fabela

failed to provide evidence establishing a causal connection

between the 1991 charge and her 1997 dismissal. Appellant here

appeals that ruling.

II.

This Court reviews de novo the district court’s grant of

summary judgment, applying the same standard as the district

court. Blow v. City of San Antonio, 236 F.3d 293, 296 (5th Cir.

2001). Thus, here, to determine if summary judgment was properly

entered in favor of the District, we review the record in the

7
light most favorable to Fabela, and resolve all reasonable

inferences in her favor. Anderson v. Liberty Lobby, 477 U.S. 242

(1986). Moreover, we will affirm the district court’s judgment

only if we find that those facts which are material to Fabela’s

claims are undisputed by the parties, as it is well settled that

at the summary judgment stage of litigation the function of the

trial bench or reviewing court is not to step into the stead of

the jury and weigh the evidence in a search for truth, but is

instead to determine whether there exists a genuine issue for

trial.5 Caboni v. General Motors Corp., 278 F.3d 448, 451 (5th

Cir. 2002)(stating in deciding whether summary judgment was

properly granted “this court will not weigh the evidence or

evaluate the credibility of witnesses.”).

Title VII prohibits retaliation against employees who engage

in protected conduct, such as the filing of a charge of sexual

harassment. 42 U.S.C. § 2000e-3(a) (2000); Perez v. Region 20

Educ. Service Center, 307 F.3d 318, 325(5th Cir. 2002). To

5
For a fact to be material, it must be probative as to the
legally relevant questions at hand, and for the dispute to be
genuine, the disputing party must submit evidence which could
serve as a reasonable basis for finding in the disputing party’s
favor. Beck v. Somerset Technologies, 882 F.2d 993 (5th Cir.
1989). Thus, to find that a genuine triable issue exists, we
must find that a fact which may effect the disposition of the
claims before us is in dispute between the parties, and that the
evidence presented concerning that fact is such that a reasonable
jury could return a verdict in favor of the non-movant as to the
issue in contest. Wyatt v. Hunt Plywood Co., Inc., 297 F.3d 405,
408 (5th Cir. 2002).

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establish a claim of retaliation under Title VII, a plaintiff

must demonstrate that she:(1)she engaged in a protected activity;

(2)that an adverse employment action occurred; and (3)that a

causal link exists between the protected activity and the adverse

employment action. Evans v. City of Houston, 246 F.3d 344 (5th

Cir. 2001).

Here, it is undisputed that Fabela engaged in the protected

activity of filing a Title VII charge with the EEOC, and it is

also undisputed that Fabela was subsequently terminated from her

employment. Therefore, the sole issue in contest between the

parties is whether Fabela’s termination was causally linked with

the filing of her 1991 EEOC complaint. The district court found

that Fabela failed to present evidence supporting a causal link

between these two events such that a reasonable jury could

believe they were connected. We, however, disagree, finding

instead that Appellant established the elements of her claim

through the use of direct evidence, and that she adequately

supported her claim such as to create a genuine issue for trial.

A. Direct Evidence - the “Mixed Motive” Path

A plaintiff alleging Title VII retaliation may establish her

case for causation in one of two ways: she may either present

direct evidence of retaliation, which is also know as the “mixed-

9
motive” method of proving retalitory motivation; or she may

provide circumstantial evidence creating a rebuttable presumption

of retaliation. Fierros v. Texas Department of Heath, 274 F.3d

187, 192 (5th Cir. 2001); see Price Waterhouse v. Hopkins, 490

U.S. 228 (1988). Usually, in the context of a retaliation claim,

the employer refrains from expressly stating that an

impermissible criterion influenced his decision to expose the

plaintiff to an adverse employment action, and so direct evidence

of an employer’s allegedly retaliatory intent is rarely

available. As a result, we have long recognized the well-trod

path by which a plaintiff may demonstrate retaliatory intent

through the use of circumstantial evidence and the famed

McDonnell Douglas burden-shifting framework. Montemayor v. City

of San Antonio, 276 F.3d 687 (5th Cir. 2001); Portis v. First

Nat'l Bank, 34 F.3d 325, 328 (5th Cir. 1994); McDonnell- Douglass

Corp. v. Green, 411 U.S. 792 (1973). Because of the general lack

of availability of direct evidence of retaliatory intent,

plaintiffs alleging retaliation most often must travel the less

advantageous circumstantial evidentiary path.6 Portis, 34 F.3d at

6
Under the McDonnell Douglas burden-shifting framework, a
plaintiff bears the burden of establishing her prima facie case
through circumstantial evidence of a retaliatory motive. If the
plaintiff succeeds in offering circumstantial evidence in support
of each element of her claim, she creates a rebuttal presumption
of retaliation, and the burden shifts to the employer to
demonstrate a legitimate reason for the adverse employment
action. If the employer produces evidence of a legitimate reason
for the action, the burden shifts again to the plaintiff to rebut

10
328.

However, in the unusual instance where a plaintiff is able

to support the elements of her claim with direct evidence of a

retaliatory motive, the McDonnell Douglas framework does not

apply. Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121

(1984)(stating, “the McDonnell Douglas test is inapplicable where

the plaintiff presents direct evidence of discrimination.");

Fierros v. Texas Dept. of Health, 274 F.3d 187,192 (5th Cir.

2001)(finding that if a “plaintiff presents direct evidence that

the employer's motivation for the adverse action was at least in

part retaliatory, then the McDonnell Douglas framework does not

apply.”)citing Moore v. U.S. Dep't of Agric., 55 F.3d 991, 995

(5th Cir. 1995). Instead, in such "direct evidence" cases, once

the plaintiff has submitted evidence that retaliation was among

the motives which prompted the adverse action, the “burden of

proof shifts to the employer to establish by preponderance of

evidence that the same decision would have been made regardless

of the forbidden factor.” Id at 192 (quoting, Brown v. E. Miss.

Elec. Power Ass'n, 989 F.2d 858, 861 (5th Cir. 1993))(internal

quotation marks omitted).

The case at bar presents such a circumstance. This Court has

the employer’s non-retaliatory rationale. See Montemayor, 276
F.3d at 692.

11
defined “direct evidence” as evidence which, “if believed, proves

the fact [in question] without inference or presumption.” Portis,

34 F.3d at 328-29(quoting Brown, 989 F.2d at 861). In a Title VII

context, direct evidence includes any statement or document which

shows on its face that an improper criterion served as a basis -

not necessarily the sole basis, but a basis - for the adverse

employment action. Fierros, 274 F.3d at 192; see also Portis, 34

F.3d at 328-29.

Here, the fact in question is whether Marcee’s decision to

terminate Fabela’s employment was motivated, in part, by the fact

that Fabela had previously filed an EEOC complaint. In support of

her contention that an improper criterion served as a basis for

Marcee’s decision to dismiss her, Fabela presented evidence that

Marcee stated as much when asked by Dr. Brooks to justify his

decision to discharge Fabela at the October 13 review session.

Specifically, both Fabela and her attorney, Mr. Conners, aver

that during the review session Marcee described Fabela as a

“problem employee”, and that Marcee pointed to the fact that

Fabela had filed an “unsubstantiated” EEOC complaint in 1991 as

evidence of Fabela’s troublesomeness. Fabela and Conners also

aver that during the review session, to further underscore the

District’s “problem employee” rationale for discharging Fabela,

Marcee directed Lois Ordaz to read the 1992 determination letter.

The district court correctly identified this evidence as

12
direct evidence, but the district court nevertheless concluded

that this evidence, standing alone, was insufficient to allow a

reasonable jury to find a causal connection between the EEOC

charge, and Fabela’s dismissal. However, in drawing this

conclusion the district court erred by failing evaluate the

evidence in isolation. Instead, the district court evaluated

Fabela’s direct evidence for persuasiveness as compared to the

record as a whole. Specifically, the district court stated:

The [c]ourt concludes that the
aforementioned [direct] evidence, standing
alone, would not allow a reasonable jury to
believe that Plaintiff was the victim of
unlawful retaliation. In particular, the
Court cannot consider this issue without also
taking into account the undisputed facts as
revealed by the summary judgment record. For
instance, Plaintiff’s termination occurred
more than six and one-half years after
Plaintiff filed the 1991 Charge and more than
five years after the EEOC’s determination
pertaining to that charge....

Thus, in deciding whether Fabela had presented direct evidence

that was sufficient to allow her to bypass the McDonnell Douglas

framework, the district court weighed Fabela’s direct evidence

against other facts on record, and concluded that a reasonable

jury would not be persuaded by Fabela’s evidence in light of the

record as a whole.

However, whether a reasonable jury would be persuaded by

Fabela’s evidence in light of the record as a whole is not the

correct question to ask when determining whether Fabela has

13
succeeded in producing direct evidence sufficient to allow her to

avoid the McDonnell Douglas framework. In deciding whether Fabela

established the element of causation under the direct evidence

path, the district court must refrain from weighing the evidence

and preemptively determining whether and which inferences a

reasonable jury is likely to draw. Instead, in deciding which

evidentiary framework applies, the district court must ask

whether the direct evidence, truly standing alone, is sufficient

to support the conclusion that a nexus exists between the

protected activity and the adverse employment action. See Barrett

Computer Services, Inc. v. PDA, Inc. 884 F.2d 214, 218(5th Cir.

1989)(holding that, “[a]lthough more concrete evidence

[supporting an element of the nonmovant’s claim] would have been

preferable, the evidence presented suffices to establish the

existence of a genuine fact issue... After all, in summary

judgment proceedings, ‘[t]he judge's function is not himself to

weigh the evidence and determine the truth of the

matter...Rather, he or she only assesses whether there is a

‘genuine issue as to any material fact....’’.”)(quoting,

Anderson, 477 U.S. at 249, and Fed.R.Civ.P. 56(c))(internal

citations omitted). Thus, if the direct evidence alone is

sufficient to support a causal nexus, then the plaintiff has

established the element of causation, and the burden shifts to

the defendant to prove that he would have arrived at the same

14
decision even had he not considered the improper criterion.

Therefore, the question at hand is whether a reasonable jury

could believe that a causal connection existed between the EEOC

charge and Fabela’s dismissal, assuming the jury believes - as

here we must assume they would - that Marcee described Fabela as

a problem employee because she filed the unsubstantiated

complaint, and that Fabela was being terminated for being a

problem employee. We find that a reasonable jury, passing on this

evidence alone, could indeed conclude that Fabela was dismissed,

in part, because she filed the unsubstantiated sexual harassment

charge.7 We conclude, therefore, that Fabela has produced

sufficient direct evidence of a retaliatory motive to establish

directly the causation element of her claim. See Portis, 34 F.3d

at 331. Moreover, because Fabela has satisfactorily alleged and

supported - with direct evidence - the elements of her case, she

is permitted to bypass the McDonnell Douglas burden-shifting

framework. Id. Consequently, the burden is shifted to the

defendant to disprove her claim.

B. The District’s Burden

7
We emphasize also that to successfully establish the
element of causation in the direct evidence rubric, Fabela’s
evidence does not have to support the conclusion that retaliation
was the only motive or even that it was the determinative motive,
only that it was among the motivating factors which led to the
adverse action. Fierros, 274 F.3d at 192; See also, Price
Waterhouse v. Hopkins, 490 U.S. 228 (1989).

15
 Because Fabela has met her burden with direct evidence, the

onus falls to the District to prove that despite Marcee’s

inclusion of the improper criterion among the reasons proffered

for terminating Fabela, the District would have reached the same

employment decision had Fabela never filed the 1991 charge.8 To

meet its burden, the District must prove that it would have

terminated any employee who performed or behaved as Fabela had,

regardless of whether that employee had filed an EEOC charge.

Portis, 34 F.3d at 330.

Towards that end, we observe that the record reflects ample

evidence that the District was primarily motivated to terminate

Fabela because of Reinhart’s dissatisfaction with Fabela’s job

performance.9 However, providing unrebutted evidence of a

8
The district court did not analyze the summary judgment
evidence within the direct evidence framework, as the district
court erroneously concluded that Fabela was not entitled to avoid
the McDonnell Douglas framework.
9
We note here that the district court appears to have
afforded considerable weight to the passing of time between the
initial filing of the EEOC charge and Fabela’s ultimate
dismissal. However, while timing can sometimes be a relevant
factor in determining whether a causal connection exists where
the timing between a protected activity and an adverse employment
action is“suspicious[ly]”proximate, the contrapositive inference
does not necessarily follow. See e.g., Shackelford v. Deloitte &
Touche, LLP,190 F.3d 398, 409 (5th Cir. 1999). That is,
conclusions drawn from a lack of suspicious timing are less
compelling, and, of course, at this stage of litigation all
reasonable inferences are to be drawn in the favor of Fabela,
rather than against her. Moreover, we think it plain that if
Fabela’s evidence regarding Marcee’s statements at the review
session are to be believed, when Marcee listed the protected
activity as among the factors leading to his decision, whatever

16
legitimate reason for the adverse employment decision is not

sufficient to secure summary judgment under the direct evidence

calculus. Insofar as Marcee raised the specter of the improper

criterion as a motivating factor, it is up to the District either

to disprove that the improper criterion was a factor in the

employment decision, or that the same employment decision would

have been made nonetheless. Fierros, 274 F.3d at 192. Creating a

triable issue as to these questions, as here the District clearly

has, is not enough for the District to prevail on its dispositive

motion. See Fierros, 274 F.3d at 195 (holding that “Fierros's

affidavit by itself precludes summary judgment because it

presents a genuine issue of material fact regarding whether

‘[retaliatory] animus in part motivated or was a substantial

factor in the contested employment action;’” quoting, Brown, 989

F.2d at 861).

Instead, in the mixed motive context, the fact that the

District has supplied and supported a legitimate reason for

temporal distance lapsed between the time that Fabela had filed
the complaint and the time of the adverse action was rendered
irrelevant.
Similarly, the district court draws a negative inference
from the absence of particular evidence which the district court
would have found to be more indicative of a causal connection.
For example, the district court notes that Fabela fails to
contend that she was harassed or intimidated in the intervening
years between the charge and the dismissal. However, in ruling on
the District’s motion for summary judgment, it is obviously not
appropriate for the district court to draw against Fabela, the
nonmovant, a negative inference premised on the absence of
specific evidence.

17
discharging Fabela merely means that the District, too, has met

its requirement to show that judgment as a matter of law cannot

be rendered against it, and the issue is ripe for trial.

C. Rule 56(c)

Having found that Fabela has produced direct evidence

sufficient to sustain the three elements of her retaliation claim

such that a reasonable jury could return a verdict in her favor,

the path of her litigation is clear: we review the pleadings,

depositions, answers to interrogatories and admissions on file,

together with the affidavits to determine whether a genuine issue

of material fact remains in dispute. Fed.R.Civ.P. 56(c); Turner

v. Houma Mun. Fire & Police Civ. Serv. Bd., 229 F.3d 478, 482

(5th Cir. 2000). Here, it is plain that the parties at bar are in

dispute regarding two facts: first, whether Marcee’s decision to

discharge Fabela was motivated, in part, because she filed an

EEOC charge; and second, whether the District would have

discharged any employee who preformed as Fabela had, regardless

of whether that employee had filed a charge with the EEOC. The

resolution of these two issues is material to the District’s

liability under Title VII, and both Fabela and the District have

submitted sufficient evidence to render the dispute genuine.

Consequently, these questions fall soundly within the province of

18
the jury, and so we will leave it to the jury to answer them.

III.

We conclude that the district court erred in granting

summary judgment to the District. The judgment of the district

court is hereby REVERSED, and the case is REMANDED for

proceedings consistent with our holding herein.

19