IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________________
No. 00-51300
__________________________
JOSE A. SOLEDAD,
Plaintiff-Appellant,
versus
UNITED STATES DEPARTMENT OF TREASURY,
Robert E. Rubin, Secretary of the Department of Treasury
Defendant-Appellee.
___________________________________________________
Appeal from the United States District Court
For the Western District of Texas, El Paso Division
___________________________________________________
September 12, 2002
Before STEWART and CLEMENT, Circuit Judges*.
EDITH BROWN CLEMENT, Circuit Judge:
Jose Soledad appeals the grant of judgment as a matter of law
in favor of the United States Department of Treasury on his
Rehabilitation Act disability discrimination claim and hostile work
environment claim. The district court set aside a jury verdict in
favor of Soledad after it found that it improperly instructed the
jury that the Treasury Department was liable if it discriminated
“because of” Soledad’s disability, rather than “solely because of”
*
Judge Politz was a member of the panel that heard oral
arguments. However, due to his death on May 25, 2002, he did not
participate in this decision. This case is being decided by a
quorum pursuant to 28 U.S.C. § 46(d) (1996).
the disability. The “because of” form of the jury instruction was
proper under the Americans with Disabilities Act, (ADA), but the
district court held that it was improper for a Rehabilitation Act
claim. It further held that Soledad did not meet the required
highetened burden of causation and granted judgment as a matter of
law. Soledad challenges both whether the court applied the right
level of causation, and whether even if the “solely because of”
causation applied Soledad met that level of causation. Soledad
also appeals the district court’s earlier grant of summary judgment
in favor of the Treasury Department dismissing Soledad’s three
Title VII claims for retaliation for engaging in protected
activity. For the following reasons, we affirm in part and reverse
in part.
I. Facts and Proceedings
Soledad contends that Gurdit Dhillon (“Dhillon”), district
director of the El Paso ports of entry, retaliated against him
because he supported the claims of his coworker, Marjorie
Gutierrez, against Dhillon for sexual harassment.1 Dhillon
allegedly retaliated by starting a campaign to demote Soledad such
that he was transferred to passenger operations in March 1996 when
he had been performing B-35 reports. While Soledad describes this
action as a significant step down on the Customs Service ladder, it
did not involve a different level of pay.
1
Soledad agreed to testify in support of Gutierrez’s claim.
2
On June 4, 1996, Soledad and several customs inspectors filed
a class action claiming Title VII discrimination and retaliation by
Dhillon. When class certification was denied, Soledad indicated he
would continue to pursue his EEO claims. On March 4, 1998, he
filed a second complaint with the Department of Treasury’s EEO
office alleging national origin discrimination and retaliation, and
later added a claim of disability discrimination.
Soledad alleged that his health had deteriorated under the
stress of negative comments made daily by Dhillon. He filed a
worker’s compensation claim on April 4, 1997, and began seeing a
psychiatrist, Dr. Ben Passmore, in October 1997 because of the
severe emotional distress.2 Dr. Passmore diagnosed him as
suffering from major depression with Post-Traumatic Stress Syndrome
features. Dr. Feldman had already recommended that Soledad
restrict his work schedule to the day shift with no overtime work.
This alleged disability then set the stage for Soledad’s
Rehabilitation Act claim.
Soledad’s supervisor at the time, Frank Fuentes, told Soledad
that he did not believe Soledad was disabled. He made derogatory
comments to Soledad about his diagnosis and work recommendations
and told other workers that they would have to work more overtime
because of Soledad. Soledad claims that Fuentes made it difficult
2
Soledad had been seeing a psychologist, Dr. Gary Feldman,
since October 1996 due to the emotional distress he was
experiencing.
3
for him to attend therapy sessions and refused to schedule him for
holidays when Soledad would have received overtime pay. On
September 12, 1997, Fuentes sent Soledad a letter indicating he
would be terminated because the doctor’s orders were incompatible
with the requirements of the job. Soledad’s doctor then removed
his previous restrictions on work, and Soledad did not lose his
job. Soledad alleged that the above facts demonstrate that Fuentes
discriminated against him because of his depression.
II. Discussion
A. Standard of Review
We review whether the district court was correct in granting
the Rule 50 motion for judgment as a matter of law because it
improperly instructed the jury as to the causation standard for a
Rehabilitation Act claim. See Fed.R.Civ.P. 50. We review the
grant of a motion for judgment as a matter of law for the legal
sufficiency of the evidence3 and must consider “all the evidence
with all reasonable inferences in the light most favorable to the
party opposing the motion.” Robertson v. Bell Helicopter Textron,
Inc., 32 F.3d 948, 950 (5th Cir. 1994). The district court’s
decision to grant the Rule 50 motion should be sustained only “when
the facts and inferences point so strongly in favor of the movant
that a rational jury could not arrive at a contrary verdict.”
London v. MAC Corp. of Am., 44 F.3d 316, 318 (5th Cir. 1995). We
3
Hiltgen v. Sumrall, 47 F.3d 695, 699 (5th Cir. 1995).
4
must therefore uphold the jury verdict if, “based upon the record
. . . the challenged instruction could not have affected the
outcome of the case.” Bender v. Brumley, 1 F.3d 271, 276-77 (5th
Cir. 1993) (citations omitted). We may reverse based on a faulty
jury charge only where “the charge as a whole leaves us with
substantial and ineradicable doubt the jury has been properly
guided in its deliberations.” Hall v. State Farm Fire & Cas. Co.,
937 F.2d 210, 214 (5th Cir. 1991) (citations omitted). Finally, we
note that the primary question is one of statutory construction
which we review de novo. See Lara v. Cinemark USA, Inc., 207 F.3d
783, 786 (5th Cir. 2000).
B. Jury Charge
Soledad maintains that the district court properly instructed
the jury and erred by reversing itself in granting the Rule 50
motion. The jury instructions at issue included:
For the Plaintiff, Jose A. Soledad, to establish a claim
of intentional discrimination by the United States
Customs Service, the law requires that the Plaintiff
prove by a preponderance of the evidence that
. . .
THIRD: His disability was a motivating factor in
Defendant’s treatment of the plaintiff.
. . .
Question One
Did the Defendant, . . ., intentionally discriminate
against Jose Soledad because of his disability . . . ?
Question Two
Did the Defendants, . . ., subject Jose A. Soledad
to an unwelcome harassment because of his disability .
. . ?
In 1992 Congress amended the Rehabilitation Act and included
5
at § 794(d) a provision that explicitly incorporates the ADA’s
standards governing complaints alleging employment discrimination.4
Under the ADA, “discrimination need not be the sole reason for the
adverse employment decision, [but] must actually play a role in the
employer’s decision making process and have a determinative
influence on the outcome.” Ahrens v. Perot Sys. Corp., 205 F.3d
831, 835 (5th Cir. 2000) (quoting Woodhouse v. Magnolia Hosp., 92
F.3d 248, 253 (5th Cir. 1996)). The Rehabilitation Act, however,
at § 794(a) provides: “No otherwise qualified individual with a
disability in the United States, as defined in § 705(20) of this
title, shall, solely by reason of her or his disability, be
excluded from the participation in, be denied the benefits of, or
be subjected to discrimination . . . .” Title 29 U.S.C. § 794(a)
(emphasis added). It is clear that the jury charge stated above
was a proper ADA charge. See Giles v. GE, 245 F.3d 474, 483 (5th
Cir. 2001). Thus, the question is whether the 1992 amendments to
the Rehabilitation Act require the use of ADA standards for
causation, or the higher level of causation that § 794(a) seems to
require.
The plain language of § 794(a) clearly requires the use of a
4
“The standards used to determine whether this section has
been violated in a complaint alleging employment discrimination
under this section shall be the standards applied under Title I
of the Americans with Disabilities Act of 1990 . . . and the
provisions of sections 501 through 504, and 510 of the ADA of
1990 . . . as such sections relate to employment.” 29 U.S.C. §
794(d) (2000).
6
“solely because of” form of causation. In fact, before the 1992
amendments to the Rehabilitation Act, a panel of this court stated
that under § 504 of the Act, which uses language identical to that
of § 794(a), a “plaintiff must prove that he was discriminated
against ‘solely by reason of’ his handicap (or perceived
handicap).”5 Leckelt v. Bd. of Comm’rs of Hosp. Dist. No. 1, 909
F.2d 820, 825 (5th Cir. 1990) (emphasis in original). Further, in
two cases since the amendment, we have stated that one of the
elements of a Rehabilitation Act claim is that the discrimination
occurred “solely by reason of” the disability. See Hileman v.
City of Dallas, 115 F.3d 352, 353 (5th Cir. 1997); Chandler v. City
of Dallas, 2 F.3d 1385, 1390 (5th Cir.1993). Other circuits have
interpreted the statute similarly. See Harris v. Adams, 873 F.2d
929, 932 (6th Cir. 1989); Norcross v. Snead, 755 F.2d 113, 117 n.5
(8th Cir. 1985) (stating that: "[i]t is significant that the
section 504 plaintiff must show that handicap was the sole reason
for the decision, while the Title VII plaintiff pursuing a
disparate treatment claim need only show that a protected
classification was a factor influencing the decision." (emphasis
in original) (citations omitted); Doe v. New York Univ., 666 F.2d
761, 774-75 (2d Cir. 1981).
Soledad contends, however, that Congress intended its 1992
5
We note that prior to the amendments in 1992, the statute
referred to a “handicap” rather than a “disability” as is now the
case after the amendment.
7
amendments to make the Rehabilitation Act conform to the ADA’s
standard for causation. In the conference committee report,
Senator Harkin stated: “The conference report includes the Senate
provisions incorporating the standards applied under the employment
provisions of the Americans with Disabilities Act into the
employment sections of title V of the Rehabilitation Act.”6 138
Cong. Rec. S. 16608 (daily ed. Oct. 5, 1992). Soledad also points
to the statement of Senator Kennedy that the amendments would
“bring the Rehabilitation Act much closer to the philosophy of
empowerment and independence that is espoused in the Americans with
Disabilities Act.” 138 Cong. Rec. S. 16613.
Soledad asserts that in Burns v. City of Columbus, 91 F.3d 836
(6th Cir. 1996), the Sixth Circuit adopted the “because of”
causation of the ADA for Rehabilitation Act claims. Soledad
appears to rely on the following statement by that court: “[b]y
statute, the Americans with Disabilities Act standards apply in
Rehabilitation Act cases alleging employment discrimination.” Id.
at 842. However, the direct reference was to the relative burdens
of proof in a Rehabilitation Act case, and the Burns court
determined that the ADA standards applied because of § 794(d). In
fact, at the beginning of the paragraph containing the statement
relied upon by Soledad, the court stated: “in cases in which the
6
The report was unanimously adopted by the Senate and the
House.
8
grantee states that it made the decision because of the handicap,
the central factual dispute becomes whether the decision was made
solely because of the handicap.” Id. (emphasis in original). We
conclude that the proper question to be asked in a Rehabilitation
Act claim is whether the discrimination took place “solely because
of” the disability.
A provision must be considered in its context and the more
specific provision within a statute prevails. See In re Nobleman,
968 F.2d 483, 488 (5th Cir. 1992). The causation standard of §
794(a) requiring that the discrimination be “solely by reason of
her or his disability,” is clearly the more specific. Because
Congress chose not to repeal the “solely by reason of” language of
§ 794(a) when it amended the statute,7 we conclude that Congress
did not intend to adopt the ADA standard of causation with the §
794(d) amendment. We therefore find no error in the district
court’s holding that it improperly instructed the jury that it
could find liability if Soledad’s disability was simply a
“motivating factor.” The instruction to the jury was clearly an
error as a matter of law and very likely affected the outcome of
7
After careful debate, Congress specifically chose to not
use the term “solely” in drafting the ADA, an act that closely
models the Rehabilitation Act. See H.R.Rep. No. 485(II), 101st
Cong., 2nd Sess., at 85 (1990). The House Committee Report
discussing the adoption of Title II of the ADA, specifically
states: “The Committee recognizes that the phrasing of section
202 in this legislation differs from section 504 [of the
Rehabilitation Act] by virtue of the fact that the phrase ‘solely
by reason of his or her handicap’ has been deleted.” Id.
9
the case. Liability can only be found when the discrimination was
“solely by reason of her or his disability,” not when it is simply
a “motivating factor.” The district court thus properly recognized
its error.
C. Whether the District Court Properly Granted the Treasury
Department’s Motion for Judgment as a Matter of Law.
1. Rehabilitation Act
Soledad also appeals the district court’s post trial order
contending that he presented sufficient evidence to support the
jury’s verdict even under the “solely because of” causation
standard. Considering the evidence in a light most favorable to
Soledad, we cannot find that a reasonable jury could not conclude
that Soledad presented sufficient evidence to prove the Treasury
Department discriminated against him “solely by reason of” his
disability. As this Court has said, if there is “evidence of such
quality and weight that reasonable and fair-minded men in the
exercise of impartial judgment might reach different conclusions,
the motions should be denied, and the case submitted to the jury.”
Rutherford v. Harris County, Tex., 197 F.3d 173, 179 (5th Cir.
1999)(internal quotations omitted). The jury returned a verdict in
favor of Soledad concluding that he was discriminated against
“because of” his disability. The jury could also have made the
further conclusion that he was discriminated “solely because of”
his disability. While we question whether the evidence was
sufficient for a jury to conclude that Soledad was discriminated
10
against “solely because of” his disability, Appellees have not
persuaded us that there was an absolute absence of evidence
supporting the jury’s finding. We therefore reverse the district
court’s grant of the Treasury Department’s Rule 50 motion and
remand for further proceedings consistent with this opinion.
2. Hostile Work Environment
Soledad also appeals the district court’s grant of the
Treasury Department’s Rule 50 motion on his Rehabilitation Act
hostile work environment claim, which was also based on the actions
taken by Fuentes. The district court granted a Rule 50 motion
after the jury had returned a verdict in favor of Soledad on his
Rehabilitation Act hostile environment claim. The court stated
that, even if the Fifth Circuit recognized such a claim, Soledad
failed to show that Fuentes’ conduct was sufficiently pervasive or
severe to constitute a hostile work environment claim. This Court
in Flowers v. Southern Regional Physician Services, Inc., 247 F.3d
229 (5th Cir. 2001), recognized a right to a disabilities based
hostile work environment claim under the ADA. There we stated the
requirements for a hostile work environment claim under the ADA:
[T]o succeed on a claim of disability-based harassment,
the plaintiff must prove: (1) that she belongs to a
protected group; (2) that she was subjected to unwelcome
harassment; (3) that the harassment complained of was
based on her disability or disabilities; (4) that the
harassment complained of affected a term, condition, or
privilege of employment; and (5) that the employer knew
or should have known of the harassment and failed to
take prompt, remedial action.
Id. at 235.
11
While we believe that the elements of a Rehabilitation Act
hostile work environment claim would be similar,8 that issue was
not raised below and, thus we do not reach it here. The district
court correctly found that the acts complained of were not
sufficiently pervasive or severe. As we said in Flowers, “the
disability-based harassment must ‘be sufficiently pervasive or
severe to alter the conditions of employment and create an abusive
working environment.’” 247 F.3d at 236 (quoting McConathy v. Dr.
Pepper/Seven Up Corp., 131 F.3d 558, 563 (5th Cir. 1998)). The
record convinces us that the facts clearly demonstrate that
Fuentes’ acts were not sufficiently pervasive or severe.9 We
therefore find no error in the district court’s grant of judgment
as a matter of law on the Rehabilitation Act hostile work
environment claim.
D. Whether the District Court Properly Granted the Treasury
Department’s Motion for Summary Judgment.
8
While the Rehabilitation Act and the ADA are similar there
are some differences. As discussed above, the Rehabilitation Act
requires that the discrimination be “solely by reason of her or
his disability.” Therefore, we believe a proper hostile work
environment claim based on the Rehabilitation Act would
necessarily change the third element to read, “that the
harassment complained of was based solely on her disability or
disabilities.”
9
Cf. McConathy, 131 F.3d at 564 (stating “It is a simple
fact that in a workplace, some workers will not get along with
one another, and this Court will not elevate a few harsh words or
‘cold-shouldering’ to the level of an actionable offense.”);
DeAngelis v. El Paso Mun. Police Officers Ass’n , 51 F.3d 591,
594 (5th Cir. 1995) (ten offensive articles in police newspaper
insufficient to support a hostile work environment claim).
12
Finally, Soledad appeals the district court’s grant of summary
judgment in favor of the Treasury Department on his Title VII
retaliation claims. We review a motion for summary judgment de
novo, affirming only where no genuine issues of material fact
exist. Storebrand Ins. Co. U.K. v. Employers Ins. of Wausau, 139
F.3d 1052, 1055 (5th Cir. 1998).
The elements of a Title VII retaliation claim are: 1) the
plaintiff participated in statutorily protected activity; 2) he
received an adverse employment action; and 3) a causal connection
exists between the protected activity and the adverse action.
Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1092 (5th Cir.
1995). The district court held that Soledad failed to prove the
second and third elements.
Soledad asserts that he presented facts sufficient for the
second element. We find no error, however, in the district court’s
determination that the lateral transfer that Soledad complains of
with no change in pay is not the type of ultimate employment
action10 necessary for an adverse employment action in a retaliation
claim. See Burger v. Cent. Apartment Mgmt., Inc., 168 F.3d 875,
879 (5th Cir. 1999). See also Serna v. City of San Antonio, 244
F.3d 479, 483 (5th Cir. 2001) (insufficient to show that a
plaintiff has been transferred from a job that he likes to one he
10
See Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995)
(per curiam) (defining “ultimate employment actions”).
13
does not like).
Furthermore, we also find no error in the district court’s
determination that Soledad failed to present evidence sufficient to
create a question of material fact as to whether a causal
connection existed between the protected activity and the adverse
employment action. There was little evidence to show that Dhillon
was even aware of Soledad’s support of Gutierrez’s claims and even
less to show that he took certain actions because of Soledad’s
protected activity. Thus we find no error in the court’s granting
of summary judgment in favor of the Treasury Department on
Soledad’s Title VII retaliation claim.
III. Conclusion
For the reasons assigned, we AFFIRM the grant of judgment as
a matter of law on the hostile work environment claim and the grant
of summary judgment. We REVERSE the grant of judgment as a matter
of law on the sufficiency claim and remand for further proceedings
consistent with this opinion.
14
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