Mato v. Baldauf

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 00-50522
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CHRISTINE MATO,

Plaintiff-Appellee-Cross-Appellant,

versus

JACK BALDAUF, DR.; ET AL.,

Defendants,

JACK BALDAUF, DR.; JEFF FOX, DR.;
TEXAS A&M UNIVERSITY SYSTEM;
TEXAS A&M UNIVERSITY;TEXAS A&M
UNIVERSITY OCEAN DRILLING PROGRAM,

Defendants-Appellants-Cross-Appellees.

_________________________________________________________________

Appeals from the United States District Court for the
Western District of Texas
_________________________________________________________________

October 9, 2001

Before GARWOOD, JOLLY, and DeMOSS, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

A jury found that Texas A&M University terminated Christine

Mato’s employment in retaliation for helping female employees file

sexual harassment complaints, and then awarded Mato approximately

$216,000 for lost wages and $250,000 for pain and suffering. The

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district court entered judgment and awarded Mato attorneys’ fees

and costs in the amount of $50,000, which was less than one-fourth

of what she had requested. Both parties have appealed. Texas A&M

contends that (1) Mato failed to provide sufficient evidence of a

causal connection between her protected Title VII activity and her

discharge from employment; and (2) Mato’s evidence regarding pain

and suffering cannot justify the size of the jury’s mental anguish

award. Mato has filed a cross-appeal, contending that the district

court abused its discretion by reducing her request for attorney’s

fees. We conclude that Mato has failed to present sufficient

evidence to support a causal connection between her protected

activity and her discharge. We therefore reverse and remand for

entry of a judgment dismissing the complaint.

I

Texas A&M University coordinates the science operations for

the Ocean Drilling Program (“ODP”). ODP is an international

research project whose drilling vessel sails around the world and

obtains core samples from the ocean floor.

Christine Mato was ODP’s “Supervisor of Curation and

Repositories” from 1984 to 1996. Mato’s primary responsibilities

were archiving ODP’s collection of core samples and reviewing

scientists’ requests to conduct research on certain samples.

According to the 1996 organizational chart, Mato was directly

responsible to Dr. Russ Merrill, the “Manager of Information

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Services and Curation.” It is generally agreed, however, that

Merrill focused on information services and delegated almost all

his curatorial duties to Mato.

Between 1990 and 1995, Mato helped five female co-workers

file internal sexual harassment complaints against certain members

of ODP staff. Although most of the allegations were relatively

non-serious (such as crude humor), one complaint against a drilling

superintendent on the ship led to a serious internal investigation

of sexual harassment at ODP.

Mato testified that Rick McPherson, a Texas A&M administrator

who supervised personnel functions at ODP, told her that the report

was an embarrassment to the program and that she would not receive

any pay raises in the future. (McPherson denies making these

statements, but we must assume the jury found otherwise.) Indeed,

Mato did not receive a raise between 1993 and 1996. Although she

had been informed that salaries were frozen, Mato testified that

some male employees at ODP had received pay raises during this

period.

In 1993, Mato complained that Jack Baldauf, the associate

director at ODP, was not responding in a timely manner to one of

the allegations of sexual harassment. Baldauf admitted at trial

that he was “frustrated” with Mato’s criticism because he believed

he was pursuing the matter expeditiously.

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 Mato contends that, as a result of her involvement in these

five incidents of sexual harassment between 1990 and 1995, her

employment was terminated when ODP was reorganized in December

1996.

The reorganization plan was developed by Jeff Fox, who became

the director of ODP in June 1995. The evidence is undisputed that

the international committee that oversees ODP believed the program

was operating inefficiently. Throughout late 1995 and early 1996,

Fox circulated memoranda to his managers and staff, warning them

that budget cuts were likely.

In June 1996, Fox decided to thoroughly reorganize ODP in

order to make the program more efficient and economical. Fox hired

a consulting firm, American Management Consultants (“AMC”), to

study ODP and to recommend changes. Fox placed Jack Baldauf in

charge of carrying out the reorganization process. At Fox’s

request, Baldauf was assisted by Jan Radle, an assistant to Rick

McPherson.

Baldauf testified that he worked closely with Fox on the

reorganization plan. According to Baldauf, Fox decided at the

outset that it was necessary to consolidate the curatorial

positions occupied by Mato and Dr. Merrill and to require the new

curator to have a Ph.D. Baldauf testified that Fox never sought

his advice regarding this decision; instead, Fox made the decision

himself at a very early stage in the process. Fox himself

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testified without contradiction, and without challenge, that the

decision to require a Ph.D. for the new curator position was his,

and his alone. He further testified without contradiction, and

without challenge, that he had no discussions with Baldauf or

McPherson about the Ph.D. requirement before making the decision.

James Allen, who headed the search committee for the new curator,

testified that Fox was responsible for the reorganization plan, and

that Baldauf was merely carrying out a plan that had already been

formulated.

As Baldauf’s assistant during the reorganization period, Jan

Radle helped develop Position Analysis Questionnaires (“PAQs”), or

job descriptions, for positions within ODP. Radle testified that

their initial description of the new curator position was virtually

identical to the job description for the “Supervisor of Curation

and Repositories” (Mato’s position), except that the new curator

would be required to have a Ph.D.

Radle was concerned that the new Ph.D. requirement could be

perceived as targeting Mato, who has only a bachelor’s degree and

some graduate study. When Radle voiced her concerns to Baldauf and

Fox, they told her directly that Mato would not become the new

curator. Radle also testified that McPherson wanted to be kept

abreast of the reorganization and that he was pleased when she told

him about the impending changes in the curatorial division.

After formulating the PAQ for the new curator position, Radle

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then forwarded the proposed PAQ to Karen Chavis at the Texas A&M

Human Resources department. Chavis testified that she wondered why

the ODP was creating a new curatorial position with duties very

similar to those performed by Mato, who apparently was going to be

laid off. Chavis then called a “risk assessment” meeting with Fox

and Baldauf.

Baldauf testified that during this interview with Human

Resources, Fox explained that he thought the Ph.D. requirement was

necessary in light of ODP’s focus on research and science

operations. Moreover, Fox pointed out that almost all curators at

similar repository programs hold a Ph.D., regardless of whether a

Ph.D. is specifically required in the job description.

Nevertheless, the Human Resources representatives advised Fox and

Baldauf to determine the job requirements for curators in similar

programs.

At Baldauf’s request, Radle and Dr. Merrill contacted the NASA

Moon Rocks program to determine whether NASA’s curators were

required to hold a Ph.D. Baldauf testified that Merrill told him

that a Ph.D. was required at NASA. Radle testified, however, that

a representative from NASA said that a Ph.D. was “preferred” but

not required because a strict Ph.D. requirement would have excluded

some of the people already serving as NASA curators. We must

assume the jury believed Radle’s version.

Radle also testified that after the risk assessment meeting,

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Baldauf “massaged” the job description to make the Ph.D.

requirement appear more justifiable. At some point, Baldauf added

several new duties (such as developing a long-range sample

distribution policy) that required “interacting with the science

community” and exercising “proper scientific oversight” over the

technical staff.

By the end of October 1996, Baldauf and Radle had prepared the

final PAQ for the new curator position, and the Human Resources

department approved the proposed Ph.D. requirement.

During this same period from June to October, the consultants

from AMC were preparing their recommendations. In a lengthy report

submitted on November 1, 1996, AMC suggested that the curation

services be more closely aligned with the Science Operations

division of ODP. The report noted that “Management of the curation

function must carefully balance providing the maximum science that

can be obtained from the [core samples] while preserving them for

decades until new scientific technology enables even more

information to be gleaned. The head of this function must combine

in-depth scientific knowledge with adroit management and people

skills to achieve this balance.” AMC’s first recommendation,

therefore, was to “Reassign Curation Services to Science Operations

with a scientist as the division head.” Although the consultants’

report does not mention a Ph.D. requirement, Fox interpreted AMC’s

recommendation for a “scientist” to require a Ph.D.-credentialed

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research scientist who had published extensively in peer-reviewed

journals. On cross-examination, Mato attempted to discredit the

consultants’ recommendation by gaining an admission from Fox that

he had met with the consultants regularly as they were conducting

their research and developing their report.

ODP’s reorganization plan was made public in December 1996.

The plan eliminated 14 positions, created 5 positions, modified 16

positions, and relocated 40 positions within the program. (To put

the scope of the reorganization in perspective, we note that ODP

had approximately 160 employees as of mid-1996.)

The plan eliminated the positions held by Merrill and Mato.

Dr. Merrill remained at the ODP to head the information services

division, while Mato was ineligible for the newly created position

of curator because she did not have a Ph.D. Several of Mato’s

witnesses -- such as Dr. Jamie Allan, the acting director of

science operations; and Dr. Phillip Rabinowitz, the former director

of ODP -- expressed the opinion that the Ph.D. requirement was

unnecessary because 80 to 90% of the new curator’s duties were

identical to those that Mato had performed.

The Ph.D. requirement notwithstanding, Mato applied for the

new curator position but was not considered for the job. The

following month, the ODP hired a research scientist with a Ph.D.,

Dr. John Firth, as its new curator.

II

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 In December 1998, Mato filed this employment discrimination

action against Jeff Fox, Jack Baldauf, Rick McPherson, the Texas

A&M University System, Texas A&M University, and the University’s

Ocean Drilling Program. The case went to trial in February 2000.

The district court entered judgment as a matter of law for the

defendants on Mato’s Equal Pay Act claim. By the time the case was

presented to the jury, only one defendant (Texas A&M University)

and two Title VII claims (sex discrimination and retaliation)

remained.

The jury found no discrimination based on sex, but it did find

that University officials discharged Mato in retaliation for

helping other female employees file sexual harassment claims. The

jury awarded Mato approximately $216,000 in compensatory damages

and $250,000 for pain and suffering.

The district court modified the judgment by adding prejudgment

interest to a back pay award and reducing the award slightly to

comply with Title VII statutory caps. The district court denied

Texas A&M’s motion for a new trial as well as its motion to reduce

the jury award. Mato then filed a motion seeking attorney’s fees

and costs in excess of $200,000, but the district court awarded

only $50,047.76. The University appeals the jury’s verdict on

retaliation and the damages award. Mato cross-appeals as to the

attorney’s fee award, but not as to the judgment as a matter of law

on her Equal Pay Act claim or as to the verdict on her sex

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discrimination claim.

III

We need only resolve the first issue presented on appeal,

whether Mato introduced sufficient evidence to allow a jury to find

a causal connection between her protected activities and her

discharge from employment.

A

Title VII makes it unlawful for an employer to retaliate

against an employee “because [that employee] has opposed any

practice made an unlawful employment practice by this subchapter .

. . .” 42 U.S.C. S 2000e-3(a). To prevail on her Title VII

retaliation claim, Mato had to prove, inter alia, that a causal

connection existed between the protected activity and the adverse

employment action. See Messer v. Meno, 130 F.3d 130, 140 (5th Cir.

1997), cert. denied, 525 U.S. 1067 (1999). We will therefore focus

on the protected activity that she proved: encouraging and

assisting other women to file sexual harassment complaints; and on

the retaliation she claims: requiring a Ph.D. for the curator’s

position and the consequential termination of her employment. Mato

had the burden, then, of proving she would not have been terminated

“but for” her helping other women file grievances based on sexual

harassment. See Seaman v. CSPH, Inc., 179 F.3d 297, 301 (5th Cir.

1999); Rubinstein v. Administrators of Tulane Educ. Fund, 218 F.3d

392, 402-03 (5th Cir. 2000)(“[E]ven if a plaintiff’s protected

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conduct is a substantial element in a defendant’s decision to

terminate an employee, no liability for unlawful retaliation arises

if the employee would have been terminated even in the absence of

the protected conduct.”), cert. denied, 121 S.Ct. 1393 (2001).

In establishing this causal connection, Mato must first

identify who made the decision that resulted in her termination.

For example, Long v. Eastfield College, 88 F.3d 300 (5th Cir.

1996), involved an executive officer, on the one hand, with the

final authority to fire employees but who had no retaliatory animus

toward the plaintiff; and, on the other hand, intermediate

supervisors who appeared to have had an improper retaliatory intent

and who recommended that an employee be fired. We explained that

the causal link between the protected conduct and termination is

broken where the official with final authority to fire employees

conducts an “independent investigation” in the course of reaching

his or her decision. Id. at 307. The causal link is not broken,

however, where the decision-maker “rubber-stamps” the firing

recommendation of subordinates; in such cases, we say that the

decision-maker acts as a conduit of the subordinates’ improper

motive. Id.; see also Russell v. McKinney Hospital Venture, 235

F.3d 219, 226-27 (5th Cir. 2000) (“If the [plaintiff] can

demonstrate that others had influence or leverage over the official

decisionmaker, . . . it is proper to impute their discriminatory

[or retaliatory] attitudes to the formal decisionmaker.”). Of

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course, the degree to which the executive’s decision was based on

his or her own independent evaluation is a question of fact. Long,

88 F.3d at 307.

Texas A&M contends that it is entitled to judgment as a matter

of law because Mato presented insufficient evidence of causation.

We will disturb a jury verdict, however, only if we conclude that,

after viewing the trial record in the light most favorable to the

verdict, there is no “‘legally sufficient evidentiary basis’ for a

reasonable jury to have found for the prevailing party.” Stokes v.

Emerson Elec. Co., 217 F.3d 353, 356 (5th Cir. 2000)(quoting Boeing

Co. v. Shipman, 411 F.2d 365 (5th Cir. 1969)(en banc)).

B

In the light of Long v. Eastfield College, the first step is

to determine whether Fox decided independently that the new curator

should be required to have a Ph.D., or whether Fox’s decision

regarding the Ph.D. requirement resulted from the influence of

Baldauf and McPherson, who, we shall assume, were motivated by

retaliatory animus.

According to the district court, “It was Mato’s theory that at

least two of these A&M representatives -- McPherson and Baldauf

(Fox’s right-hand man in planning the ODP reorganization) -- were

in fact ‘responsible for her discharge’ because they successfully

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prevailed upon Fox to terminate Mato.” Stated more precisely,

perhaps, Mato contends that they prevailed upon Fox to insist upon

the Ph.D. requirement to create a pretext for terminating Mato.

But from a review of the record, this does not appear to be the

case. We agree that Mato produced ample evidence that Baldauf and

McPherson were significantly responsible for developing and

implementing the decisions of Fox during the reorganization

process. But Mato has produced no evidence that would allow a jury

to conclude that either of them were responsible for the decision

to require the new curator to have a Ph.D.

Mato contends that she presented considerable evidence that

Baldauf and McPherson were indeed responsible for her discharge.

Mato relies exclusively on Jan Radle’s testimony that Baldauf was

“in charge of ODP’s reorganization activities”; that Baldauf helped

develop the PAQ for the new curator position and “massaged” the job

description after meeting with Human Resources; and that McPherson

appeared pleased with the results of the reorganization plan.

Radle’s testimony, however, does no more than merely confirm what

is essentially undisputed and we fully accept for the purposes of

our analysis: that Baldauf and (to a much lesser extent) McPherson

were involved in the reorganization process. But we may not

extrapolate simply from their involvement in the process that

Baldauf and McPherson were responsible for Mato’s termination.

Radle’s testimony, in other words, does not permit a jury to infer

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that Baldauf and McPherson exercised such influence over Fox that

he was only a conduit for their improper retaliatory motives.

In fact, Radle’s testimony on the question of who made the

relevant employment decision is consistent with the unequivocal

testimony of Baldauf and Fox -- that Fox made the decisions

regarding the curatorial positions quite early in the

reorganization process and that Fox never consulted with Baldauf

before deciding to require a Ph.D. for the new curator position.

Indeed, there is no evidence that contradicts the testimony that

the idea to require a Ph.D. for the position of curator originated

with Fox and Fox alone. The undisputed testimony simply

established that Fox placed Baldauf in charge of carrying out his

mandates, including the Ph.D. requirement. In this connection, it

was Baldauf’s responsibility to develop the necessary job

descriptions to accommodate Fox’s reorganization plans.

To be sure, the jury may have disbelieved much of the

testimony of Fox and Baldauf. It is settled, however, that

“disbelief of a witness’s testimony is not sufficient to carry a

plaintiff’s burden.” Travelhost, Inc. v. Blandford, 68 F.3d 958,

965 (5th Cir. 1995). As we have indicated, no witness testified,

nor has Mato seriously suggested, that the requirement for the

Ph.D. originated with anyone other than Fox. A reasonable fact

finder could draw only one inference from the evidence in this

record: Dr. Jeff Fox, ODP’s director, independently made the

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initial and basic decision that adversely affected Christine Mato

-- that is, to consolidate the curatorial positions and require

that the new curator hold a Ph.D.

C

The next question, then, is whether Mato presented sufficient

evidence that her protected activities had the necessary causal

connection to Fox’s ultimate decision to implement the Ph.D.

requirement, which resulted in Mato’s termination. Stated in terms

of the relevant case law, does the evidence permit a finding that

“but for” Mato’s protected activities, Fox would not have required

a Ph.D. for the curator’s position?

Mato presented no direct evidence of retaliatory animus on the

part of Fox. Mato contends, though, that a jury could have

inferred the fact of retaliation from the falsity of Texas A&M’s

proffered explanation for terminating Mato’s employment. This

court has held that the familiar McDonnell Douglas burden-shifting

framework applies in Title VII retaliation cases. See Rios v.

Rossotti, 252 F.3d 375, 380 (5th Cir. 2001); Rubinstein, 218 F.3d

at 401-02. As the Supreme Court explained in Reeves v. Sanderson

Plumbing Products, Inc., 530 U.S. 133, 148 (2000), a plaintiff must

present “sufficient evidence” for a jury to reasonably conclude

that the employer’s justification is unworthy of credence and is a

pretext for discrimination or retaliation. See Crawford v. Formosa

15
Plastics Corp., 234 F.3d 899, 902-03 (5th Cir. 2000).

Texas A&M’s asserted reason for terminating Mato’s employment

may be summarized as follows. Because of pressure to improve its

operations and cut its budget, ODP’s new director formulated a

comprehensive reorganization plan. The overriding theme of Fox’s

reorganization plan was its focus on science operations. Along

these lines, Fox decided that the two curatorial positions needed

to be consolidated and that the department should be headed by a

Ph.D.-credentialed research scientist. A consulting firm reached

virtually the same conclusion. Because Mato was not a research

scientist who had earned a Ph.D., she was not eligible for the new

curatorial position.

A review of the record makes plain that Mato failed to present

sufficient evidence that would allow a jury to conclude that this

reorganizational decision was phony and a pretext to retaliate

against Mato. Mato’s argument focuses on her belief that a Ph.D.

was not required because she had performed almost all of the same

duties for the previous twelve years. It is certainly true that

Mato’s witnesses established that 80 to 90% of the new curator’s

duties were identical to those performed by Mato and that, in their

opinion, the Ph.D. requirement was unnecessary. However, we have

repeatedly and emphatically stated that anti-discrimination laws

“are not vehicles for judicial second-guessing of business

decisions.” Deines v. Texas Dept. of Protective & Regulatory

16
Serv., 164 F.3d 277, 281 (5th Cir. 1999). In this case, Mato and

her witnesses have done nothing more than register their

disagreement with Fox’s business plans for ODP.

Moreover, Mato failed to present any evidence that Fox even

knew that Mato had helped female co-workers file sexual harassment

claims. The record indicates that all five incidents of sexual

harassment occurred between 1991 and early 1995 -- before Fox

became the director of ODP. Fox testified that neither Baldauf nor

McPherson had discussed Mato’s activities with him, and Mato failed

to show that Fox had learned about Mato’s activities from any other

source. Mato thus presented no evidence from which a jury could

reasonably infer that Fox knew about the sexual harassment

complaints that Mato had helped file.

A final consideration is the period of time that elapsed

between the last filing of a sexual harassment complaint and the

reorganization plan that led to Mato’s termination. The fact that

approximately a year and a half passed between the last sexual

harassment complaint and Mato’s termination does not support an

inference of retaliation. See, e.g., Grizzle v. Travelers Health

Network, Inc., 14 F.3d 261, 268 (5th Cir. 1994)(noting that a ten-

month lapse between the plaintiff’s complaint and her termination

from employment “suggests that a retaliatory motive was highly

unlikely”).

In sum, Mato has fallen short of presenting sufficient

17
evidence to permit a jury to reasonably infer that ODP’s

justification for the Ph.D. requirement is unworthy of credence,

that is, phony, and a pretext for retaliation. See Crawford, 234

F.3d at 903. The evidence does not support a finding that “but

for” Mato’s protected activities, Fox would not have consolidated

the curatorial positions and required the new curator to hold a

Ph.D.

IV

Having studied the full trial record, and viewing the evidence

in the light most favorable to the verdict, we conclude that Texas

A&M was entitled to judgment as a matter of law because Mato

presented insufficient evidence of a causal connection between her

protected Title VII activities and her termination from employment.

For the foregoing reasons, the judgment is REVERSED and the case is

REMANDED for entry of a judgment dismissing the complaint.

R E V E R S E D .

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