UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 00-50681
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GINA MARIE MONTEMAYOR,
Plaintiff - Appellant - Cross-Appellee
VERSUS
CITY OF SAN ANTONIO, ET AL,
Defendants
CITY OF SAN ANTONIO,
Defendant - Appellee - Cross-Appellant
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Appeals from the United States District Court
For the Western District of Texas
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December 19, 2001
Before JOLLY and PARKER, Circuit Judges, and MILLS1, District
Judge.
ROBERT M. PARKER, Circuit Judge:
Gina Marie Montemayor (“Montemayor”) and the City of San
Antonio (“City”) appeal the district court’s decision to grant in
1
District Judge of the Central District of Illinois, sitting
by designation.
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part, and deny in part, the City’s Rule 50 motion for judgment as
a matter of law (“JMOL”). The critical issue is whether Montemayor
proved that her termination from the San Antonio Fire Department
(“Department”) would not have occurred “but for” her discrimination
complaint. In our view, a reasonable jury could not conclude that
her termination would not have occurred “but for” her protected
conduct. Therefore, we AFFIRM the district court’s JMOL ruling in
all respects.
I. BACKGROUND
Montemayor submitted an application to the Department for a
firefighter position on May 20, 1996. Subsequently, she passed
three tests, a physical exam, an agility test, and a written
examination, all of which were prerequisites to being considered
for admittance into the Department’s Cadet Training Program
(“Academy”). As part of the application process, a Fire Department
Review Board consisting of three senior Department employees
interviewed Montemayor on January 24, 1997.
During the interview, Montemayor was asked several
inappropriate sexual questions. For example, the Review Board
asked what her reaction would be to pornographic films being shown
in the firehouse, how she would react to unwanted sexual advances
by her superior officers, and if she would be offended by acts of
indecent exposure which might occur in the firehouse. Montemayor
responded by stating that she would follow established Department
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procedures. The Fire Review Board determined that she failed the
interview.
Montemayor complained to a District Fire Chief about the
sexually inappropriate questions and their impact on her interview.
The District Fire Chief forwarded Montemayor’s complaint to City
Fire Chief Robert Ojeda. Chief Ojeda ordered another interview be
conducted by a new Review Board. Montemayor passed her second
interview, but was not recommended for admission. Because
Montemayor had not failed her second interview, Chief Ojeda
reviewed her application for a final determination as to admittance
to the Academy. He rejected Montemayor’s application on the basis
that she lacked “good moral character.”
On April 14, 1997, Montemayor filed a discrimination charge
with the EEOC. The charge alleged that the Department had denied
her admission to the Academy because of her race, her sex, and
because she had complained of the discriminatory action in the
First Review Board examination. She also filed suit in state court
alleging the Department’s hiring process violated state civil
service law and the Department had discriminated against her based
on gender.
The state court issued an injunction which ordered that
Montemayor be allowed to enter the Academy with her original class.
Pursuant to the state court order, Montemayor was admitted to the
Academy. On January 16, 1998, the state court granted final
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judgment in favor of the City. The state court ruled that Chief
Ojeda had the exclusive right to terminate Montemayor from the
Academy. On that day, Chief Ojeda terminated Montemayor’s
employment as a probationary trainee of the Department for
“substandard” performance as a cadet.2
II. Procedural History
On July 10, 1998, Montemayor filed suit in federal district
court against the City and Local 624 of the International
Association of Firefighters.3 She alleged illegal gender
discrimination, retaliation, and violations of her statutory rights
as a member of a labor union. The City moved for summary judgment
on all claims. The district court denied summary judgment on
Montemayor’s Title VII gender discrimination claim and her
retaliation claims, and the case proceeded to trial.
The jury verdict made three specific findings. First,
Montemayor’s gender was a motivating factor in the City’s decision
not to admit her to the Academy. Second, she was not admitted to
the Academy in retaliation for her complaints and/or opposition to
2
During her tenure at the training academy, Montemayor failed
three written examinations. She also experienced difficulties in
completing several performance exercises. For example, Montemayor
failed the performance part of the pump operations course, had
trouble climbing a ladder, and had difficulties turning on a power
saw.
3
The district court dismissed Local 624 from this lawsuit.
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the City’s alleged discriminatory hiring practices.4 Finally, she
was terminated from the Fire Department in retaliation for her
complaints and/or opposition to the City’s alleged discriminatory
hiring practices.5
After trial, the City filed a Rule 50 motion for judgment as
a matter of law which the district court denied in part, and
granted in part. The district court determined that the evidence
supported the jury’s finding that Chief Ojeda rejected Montemayor’s
application for admission to the training academy in retaliation
for her complaints about the initial interview experience.
Accordingly, the court upheld the $23,000 damages award. However,
the court determined that there was not sufficient evidence from
which a reasonable jury could find that the Department terminated
Montemayor from the Academy for any reason other than her
deficiencies as a cadet. Therefore, the court vacated the jury’s
retaliation finding and the accompanying $877,000 damages award.
Montemayor filed a motion for reconsideration and an amended
motion for reconsideration of the district court’s JMOL ruling in
light of the Supreme Court’s decision in Reeves v. Sanderson
Plumbing Prods. The district court analyzed its JMOL ruling under
the Reeves standard and denied the motions. Montemayor timely
4
The jury awarded $23,000 to Montemayor for these Title VII
violations.
5
The jury awarded $877,000 to Montemayor for this Title VII
violation.
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appealed the Amended Final Judgment.
III. STANDARD OF REVIEW
We review de novo a district court's grant of a motion for
judgment as a matter of law, applying the same standard as the
district court. Russell v. McKinney Hosp. Venture, 235 F.3d 219,
222 (5th Cir. 2000). Judgment as a matter of law is appropriate if
“there is no legally sufficient evidentiary basis for a reasonable
jury to find for that party on that issue.” Fed. R. Civ. P. 50(a).
Reviewing all of the evidence in the record, we “must draw all
reasonable inferences in favor of the nonmoving party, and [we] may
not make credibility determinations or weigh the evidence.” Reeves
v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S.Ct. 2097,
2110, 147 L.Ed.2d 105 (2000). In so doing, we “must disregard all
evidence favorable to the moving party that the jury is not
required to believe.” Reeves, 120 S.Ct. at 2110. The jury is
required to believe “evidence supporting the moving party that is
uncontradicted and unimpeached, at least to the extent that that
evidence comes from disinterested witnesses.” Id.
IV. ANALYSIS
A. Rejection of Montemayor’s Academy application
The district court upheld the jury’s determination that Chief
Ojeda rejected Montemayor’s application for admission to the
Academy because she had complained about her initial interview
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experience. We concur with the district court’s ruling that
Montemayor presented sufficient evidence of pretext from which a
reasonable jury could conclude that Montemayor was not admitted to
the Academy because of her protected conduct.
The City contends that Montemayor’s application was rejected
because she had several blemishes on her record. These included
(1) using an expired driver’s license for identification purposes;
(2) driving without insurance in 1993 and 1994; (3) suspension of
her driver’s license for driving without insurance; (4) a bad work
history; (5) a poor attendance record in high school; (6) a poor
academic record in high school; (7) a low grade point average in
college; and (8) perceived dishonesty in answering whether she had
been terminated from a job. Chief Ojeda deemed these offenses to
constitute “bad moral character” and therefore found her to be
unqualified to enter the training academy.
However, as the district court’s well-reasoned order details,
Montemayor introduced substantial evidence that other candidates
with even worse backgrounds than Montemayor were allowed into the
training academy. Furthermore, Chief Ojeda reiterated at trial
that the deficiencies in Montemayor’s application demonstrated that
she did not know right from wrong. In sum, there was sufficient
evidence from which a reasonable jury could find that the Chief
harbored animus against Montemayor for her complaints, and this
animus was the real reason for his decision not to admit her to the
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training academy. Therefore, we AFFIRM the district court’s ruling
denying judgment as a matter of law on this claim.6 The $23,000
damages award is also upheld. See Migis v. Pearle Vision, Inc.,
135 F.3d 1041, 1046 (5th Cir. 1998).
B. Termination from the Fire Department
1. Evidentiary Framework
The well-known McDonnell Douglass framework applies to Title
VII retaliation cases in which a plaintiff has presented only
circumstantial evidence of retaliatory animus. Portis v. First
Nat’l Bank, 34 F.3d 325, 328 (5th Cir. 1994). Here, there is no
direct evidence that Chief Ojeda terminated Montemayor from the
Department for retaliatory reasons. Therefore, we apply the
McDonnell Douglas framework to this case.
To prove a prima facie case of retaliation under Title VII,
Montemayor must demonstrate: (1) that she engaged in a protected
activity; (2) experienced an adverse employment action following
the protected activity; and (3) a causal link existed between the
protected activity and the adverse employment action. Mota v.
University of Texas Houston Health Science Center, 261 F.3d 512,
6
The district court determined that there was no evidence to
support the jury’s determination of gender discrimination in the
Department’s initial determination to reject Montemayor’s
application to the training academy. We need not consider this
issue in light of our determination that Montemayor proved a Title
VII retaliation violation with respect to her initial application
to get into the Academy.
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519 (5th Cir. 2001). Because the causation showing at the prima
facie stage is much less stringent than a “but for” standard,
Montemayor arguably made out a prima facie case.
The City subsequently satisfied its burden of production by
contending that Montemayor was terminated because she was a
“substandard” cadet. At that point, any inference of
discrimination disappeared and Montemayor had the burden of proving
that her termination from the Fire Department would not have
occurred “but for” her protected conduct. See Evans v. City of
Houston, 246 F.3d 344, 354 (5th Cir. 2001); Long v. Eastfield
College, 88 F.3d 300, 305 n.4 (5th Cir. 1996)(“[t]he ultimate
determination in an unlawful retaliation case is whether the
conduct protected by Title VII was a ‘but for’ cause of the adverse
employment decision”).
2. Employer’s Proof of Termination for a Non-Discriminatory
Reason
The evidence in support of the City’s non-discriminatory
reason is overwhelming. The Department had a policy whereby a
cadet who failed three written examinations was terminated from the
Academy unless Chief Ojeda, in his discretion, deemed otherwise.
The City introduced as evidence (1) the written policy, (2) Chief
Ojeda’s testimony that the “three strikes rule” was the policy, and
(3) other firefighter personnel testimony that this was their
understanding of the policy.
The written policy itself stated:
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In courses where there is a written
examination and a performance objective, both
must be completed with satisfactory
performance for the trainee to be evaluated as
satisfactory performance for the course.
Makeup of Substandard Performance
In those cases where a written examination is
given, a makeup examination similar to the
original examination will be given . . . In no
instance shall a trainee be allowed to make up
more than two courses of the curriculum.
Should the trainee be evaluated as substandard
in a third course, the trainee shall be
evaluated as substandard without the benefit
of a makeup.
In cases involving substandard performance,
the Training Director shall notify the Fire
Chief in writing, of the alleged substandard
performance with a recommendation to the Fire
Chief. The Fire Chief shall make the final
decision in all cases involving termination.
We interpret the policy as providing a cadet with the
opportunity to makeup two substandard performances on written
examinations. Thus, if a cadet passes the makeup test(s), she can
still receive a satisfactory grade for the course. However, if a
third failure on a written examination occurs, no further make-up
tests are allowed and the cadet is adjudged “substandard.”
It is undisputed that Montemayor failed three written
examinations.7 She was allowed to makeup the first two exams and
passed. However, after she failed the third exam, the Department
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70 was a passing score on the written examinations.
Montemayor made a 60% on the Emergency Communications Written
Examination, a 67% on the Fire Safety Written Examination, and a
64% on the Pump Operations Written Examination.
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deemed her to be “substandard.” In accordance with Department
policy, the Training Director recommended to Chief Ojeda that
Montemayor be terminated. Chief Ojeda accepted the recommendation
and fired her. The fact that Montemayor was adjudged a
“substandard” cadet under the objective terms of the policy would
tend to negate any possible inference of retaliation.
3. Absence of Pretext Proof
To carry her burden, Montemayor attempts to show that the
legitimate, nonretaliatory justification offered by the City for
Montemayor’s termination was pretextual. First, she contends that
the Department has misinterpreted its own policy. Second, she
contends that retaliation can be inferred because Chief Ojeda, a
person with prior animus against her, had the final decision as to
whether she should be fired. Each of these arguments are
unavailing due to lack of evidentiary support.
a. Policy Interpretation
Montemayor claims that, under the terms of the policy, her
satisfactory performance on the two makeup tests allows her to
makeup her failure on the third written examination. In other
words, the policy permits her to fail five written examinations
before being adjudged “substandard.” However, nothing in the
written policy or the trial testimony mandates this interpretation.
The policy terms indicate that Montemayor should have been adjudged
“substandard” and should not have been allowed to makeup the third
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written examination.
b. Chief Ojeda’s discretion
Chief Ojeda’s testimony indicated that under no circumstances
would he exercise his discretion to not terminate a cadet who
failed three written exams. Moreover, the evidence indicates that
Chief Ojeda consistently followed the termination recommendations
of his Training Chief, and therefore would not exercise his
discretion in a contrary manner. Despite this evidence, however,
Montemayor contends that the jury was permitted to find Chief
Ojeda’s testimony and other firefighter personnel’s testimony to be
untruthful because it was self-serving, and therefore could
properly infer that Chief Ojeda exercised his discretion in a
retaliatory manner.
Reeves warns us not to make credibility determinations and
weigh the evidence when ruling on Rule 50 motions. However, Reeves
does not require us to reject the plainly obvious, i.e, the
uncontroverted evidence that Montemayor was a “substandard” cadet.
To be sure, Chief Ojeda could not exercise his discretion in a
retaliatory manner. But there is no evidence to suggest that Chief
Ojeda should have exercised his discretion in her favor.8
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There is a marked evidentiary difference between Montemayor’s
“initial interview” retaliation claim and her “termination”
retaliation claim. With respect to the former, Montemayor produced
substantial evidence that other applicants with far worse records
than hers were allowed into the Academy. In contrast, in the
latter situation, she failed to produce any evidence of other
similarly situated cadets performing as poorly as she had, but
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The evidence demonstrates that Montemayor failed performance
tests as well as the three written examinations. In a particularly
important training test (the nighttime pump operation), she was
unable to establish the water supply for her training team because
she could not connect hoses and open a hydrant. Her poor
performance during this exercise was, even by her own admission, a
serious deficiency that would have been dangerous had it happened
at a real fire. Finally, the record indicates that, at various
times, Montemayor had difficulties turning on a power saw and was
unable to open discharge valves on a pumper truck.
In response to the evidence that she performed poorly on
skills tests, Montemayor makes two points. First, she argues that
the nighttime pump operations test was “rigged” to make her fail.
Nothing in the record supports this argument. Montemayor was given
the same opportunity to pass the test as her fellow cadets. She
simply failed.
Second, she claims that she could not start the power saw
during the performance exercise because it was flooded, or out of
gas, and she was stressed and overheated. However, her own
testimony demonstrated that the power saw became flooded because
she could not start it. Moreover, she admits that she could not
start the power saw during her practice exercises. In sum, none of
still being promoted to the firefighter position. Indeed, the only
person in the Department’s history to have failed three written
examinations was also terminated.
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her contentions detract from the fact that she performed poorly
during performance tests.
In light of the overwhelming, uncontradicted evidence that
Montemayor was a “substandard” cadet who failed written
examinations and performance tests, a reasonable jury could not
conclude that she would not have been terminated “but for” her
protected conduct. Therefore, the district court’s JMOL ruling on
this point is also AFFIRMED.
V. CONCLUSION
The Supreme Court has advised us that, “[w]hether judgment as
a matter of law is appropriate in any particular case will depend
on a number of factors. Those include the strength of the
plaintiff’s prima facie case, the probative value of the proof that
the employer’s explanation is false, and any other [appropriate]
evidence that supports the employer’s case.” Reeves, 120 S.Ct. at
2109. In the instant case, there is abundant, uncontroverted
evidence to support the City’s legitimate non-discriminatory reason
for Montemayor’s termination from the Department, and little
evidence of probative value to prove the falsity of the
explanation. As a consequence, under the Reeves standard, judgment
as a matter of law on the second retaliation claim is appropriate.
AFFIRMED in all respects.
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