Davis v. Dallas Area Rapid Transit

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
August 27, 2004
FOR THE FIFTH CIRCUIT
_______________________
Charles R. Fulbruge III
Clerk
No. 03-10753
_______________________

CEDRIC DAVIS and RUFUS JOHNSON,

Plaintiffs – Appellants,

v.

DALLAS AREA RAPID TRANSIT and JUAN RODRIGUEZ,

Defendants – Appellees.

_______________________

Appeal from the United States District Court
for the Northern District of Texas
_______________________

Before JOLLY, JONES, and PRADO, Circuit Judges.

EDWARD C. PRADO, Circuit Judge.

Cedric Davis and Rufus Johnson appeal from the district court’s entry of summary

judgment in favor of defendants, Dallas Area Rapid Transit and Dallas Area Rapid Transit Chief

of Police Juan Rodriguez, in a suit alleging race discrimination, retaliation, and hostile work

environment under Title VII of 42 U.S.C. § 2003e et seq. (“Title VII”), 42 U.S.C. § 1981(a), 42

U.S.C. § 1983, and 42 U.S.C. § 1988. The district court held that Appellants failed to raise a fact

question on their claims regarding their nonselection for promotions to lieutenant, and that their

remaining claims were barred by res judicata. For the reasons stated below, we AFFIRM the

judgment of the district court.

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 BACKGROUND

Cedric Davis and Rufus Johnson (“Appellants”), African-American males, first collectively

filed suit against their employer, Dallas Area Rapid Transit (“DART”), and DART Chief of Police

Juan Rodriguez (“Chief Rodriguez”), on November 16, 2001 (“Davis I”).1 In Davis I, Appellants

alleged race discrimination and retaliation under Title VII and violations of the First and

Fourteenth Amendments under 42 U.S.C. § 1983. The claims in Davis I were based on alleged

conduct by DART and Chief Rodriguez occurring between November 1998 and February 2001,

during Appellants’ employment at DART as police officers.2 In February 2002, the district court

dismissed the claims in Davis I with prejudice.3

On June 26, 2002, Appellants filed the current lawsuit against DART (“Davis II”),

alleging race discrimination, retaliation, and hostile work environment in violation of Title VII and

42 U.S.C. § 1981(a). Appellants amended their complaint in Davis II on January 28, 2003 to

include parallel claims against Chief Rodriguez under 42 U.S.C. § 1983 and 42 U.S.C. § 19884 for

violations of the First and Fourteenth Amendments. The claims in Davis II were predicated on

various alleged incidents of discrimination and retaliation occurring between March 2001 and

1
Davis I (Davis & Johnson v. DART & Rodriguez, No. 3:01-CV-2595-M) was filed in
state court and then removed to the United States District Court for the Northern District of
Texas. Prior to filing Davis I, Appellants had also filed individual lawsuits against DART: Davis
had sued DART in state court on February 1, 2001; Johnson had sued DART in state court on
March 12, 2001, and the case was removed to federal court.
2
Johnson is still employed with DART as a corporal. Davis voluntarily resigned from
DART in January 2003.
3
Johnson’s claims were dismissed February 1, 2002, and Davis’s claims were dismissed
February 21, 2002.
4
42 U.S.C. § 1988 is an attorney’s fee provision.

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April 2002, including complaints that Appellants had been wrongly excluded from the lieutenant

promotion process between December 2001 and April 2002.

On June 24, 2003, the district court entered summary judgment in favor of DART and

Chief Rodriguez in Davis II. The court held that Appellants failed to present a genuine issue of

material fact about whether their nonselection for lieutenant promotions was based on either race

discrimination or retaliation. The court concluded that Appellants’ remaining claims, predating

and unrelated to the lieutenant promotion process at DART, were precluded as res judicata by

the judgment in Davis I. Appellants timely appealed the district court’s judgment in Davis II.

ANALYSIS

Res Judicata

The doctrine of res judicata, or claim preclusion, forecloses relitigation of claims that

were or could have been raised in a prior action. Allen v. McCurry, 449 U.S. 90, 94 (1980).

Four elements must be met for a claim to be barred by res judicata:

(1) the parties in both the prior suit and current suit must be identical;
(2) a court of competent jurisdiction must have rendered the prior judgment;
(3) the prior judgment must have been final and on the merits; and
(4) the plaintiff must raise the same cause of action in both suits.

Howe v. Vaughn, 913 F.2d 1138, 1143-44 (5th Cir. 1990).

In the district court, the first three factors of the res judicata analysis were not disputed.

Only the fourth factor — whether the causes of action were the same in both suits — was at

issue. The district court concluded that the claims in Davis II, which were based on alleged

conduct predating the DART lieutenant promotion process, were part of the same cause of action

as the claims in Davis I and could have been litigated in Davis I. Therefore, the district court held

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that res judicata precluded relitigation of those claims (“barred claims”).

In our review of the district court’s res judicata ruling, we must determine (1) whether the

barred claims were part of the same cause of action as the claims in Davis I, and (2) whether the

barred claims could have been advanced in Davis I. The res judicata effect of a prior judgment is

a question of law that we review de novo. See Proctor & Gamble Co. v. Amway Corp., 242 F.3d

539, 546 (5th Cir. 2001).

To determine whether the prior and current suits involve the same cause of action, we

apply the “transactional” test. Nilsen v. City of Moss Point, 701 F.2d 556, 560 (5th Cir. 1983).

Under the transactional test, a prior judgment’s preclusive effect extends to all rights of the

plaintiff “with respect to all or any part of the transaction, or series of connected transactions, out

of which the [original] action arose.” Petro-Hunt, L.L.C. v. United States, 365 F.3d 385, 395-96

(5th Cir. 2004) (quoting the RESTATEMENT (SECOND) OF JUDGMENTS § 24(1) (1982)). What

grouping of facts constitutes a “transaction” or a “series of transactions” must “be determined

pragmatically, giving weight to such considerations as whether the facts are related in time, space,

origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a

unit conforms to the parties’ expectations or business understanding or usage.” Id. (quoting the

RESTATEMENT (SECOND) OF JUDGMENTS § 24(2) (1982)). The critical issue under the

transactional test is whether the two actions are based on the “same nucleus of operative facts.”

Id. at 396 (quoting In re Southmark Corp., 163 F.3d 925, 934 (5th Cir. 1999)). Thus, we must

review the facts contained in each complaint to determine whether they are part of the same

transaction or series of transactions, which arise from the same nucleus of operative facts.

Appellants filed Davis I on November 16, 2001. The complaint accused DART and Chief

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Rodriguez of discrimination and retaliation based on alleged conduct that occurred between

November 1998 and February 2001. Davis I alleged, among other things, that Johnson was

wrongly refused medical leave and that Appellants were denied promotions to the position of

sergeant in February 2001. The complaint alleged that the wrongful conduct toward the

Appellants was motivated by racial discrimination and was retaliation for previous Equal

Employment Opportunity Commission (‘EEOC”) charges the Appellants had filed. Appellants

complained that they were subjected to retaliation and discrimination at DART because they

“continue to publicly speak out against race discrimination.” Davis I was dismissed with

prejudice in February 2002.

On June 26, 2002, Appellants filed Davis II. The complaint in Davis II also alleges

discrimination and retaliation by DART and Chief Rodriguez. The barred claims allege conduct

occurring between March and November 2001, including: an unwarranted Internal Affairs

investigation in July 2001; and a baseless order by Chief Rodriguez to take a polygraph test in

August 2001, which DART Executive Vice President Victor Burke later rescinded as retaliatory.

The Davis II complaint maintains that the alleged wrongful conduct was motivated by race

discrimination, by the Appellants’ public criticism of DART and Chief Rodriguez at a DART

board meeting, and by prior complaints to the EEOC.

Appellants assert that the barred claims in Davis II cannot be considered part of the same

series of transactions as those in Davis I, because the conduct alleged in Davis II (spanning March

2001 to April 2002) was different from that alleged in Davis I (spanning November 1998 to

February 2001). We have held that “subsequent wrongs” by a defendant constitute new causes of

action, see Blair v. City of Greenville, 649 F.2d 365, 368 (5th Cir. 1981), and that “[a] Title VII

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plaintiff is free to bring successive actions, claiming in each that his employer has taken retaliatory

actions against him more recent than the prior lawsuit,” Dawkins v. Nabisco, Inc., 549 F.2d 396,

397 (5th Cir. 1977). However, Appellants are not aided by these principles — the “subsequent

wrongs” we previously considered occurred either after the plaintiffs had filed their prior lawsuit

or after the district court had entered judgment in the prior lawsuit. Here, the conduct they

alleged in Davis II occurred before Davis I was filed.

Under the transactional test’s pragmatic considerations, the barred claims in Davis II and

the wrongs alleged in Davis I constitute a series of connected transactions and are the same claim.

While factual allegations articulated in the two complaints differ, all of the claims in question

originate from the same continuing course of allegedly discriminatory conduct by DART and

Chief Rodriguez. Additionally, both lawsuits cite the same motivation for the alleged

discrimination — that Appellants “continue to publicly speak out against race discrimination [at

DART].” This statement, from the Davis I complaint in November 2001, presumably refers, in

part, to Appellants’ public complaints of discrimination at the May 2001 DART board meeting

and their prior EEOC charges. In Davis II, Appellants also claim, explicitly and implicitly, that

these charges against DART and Chief Rodriguez motivated the alleged retaliatory conduct.

In addition, the claims precluded in Davis II were so connected in time and space with the

claims in Davis I, that they could have, and should have, been brought in the first action to create

a single, convenient trial unit. Res judicata “bars all claims that were or could have been

advanced in support of the cause of action on the occasion of its former adjudication[.]” Nilsen,

701 F.2d at 560 (emphasis in original). The barred claims were predicated on conduct that

allegedly occurred before Appellants filed Davis I in November 2001. Hence, Appellants could

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have included these claims in the earlier suit.

Appellants argue, however, that they properly excluded these claims from Davis I because

they did not receive EEOC right-to-sue letters on the underlying allegations until April 1, 2002.

A right-to-sue letter is a condition precedent to filing a Title VII claim. See 42 U.S.C. §2000e-

5(f)(1); Pinkard v. Pullman-Standard, 678 F.2d 1211, 1215 (5th Cir. 1982). In July 2001, before

filing Davis I, Appellants filed charges against DART and Chief Rodriguez with the EEOC.5 The

charges alleged that the July 2001 Internal Affairs investigation constituted harassment and

retaliation for Appellants’ prior criticism of DART and Chief Rodriguez. By the time Appellants

received the right-to-sue letters on April 1, 2002, judgment had been entered in Davis I for over a

month. Hence, Appellants maintain that even if some of the allegations in Davis I and Davis II

were part of the same cause of action and overlapped temporally, the Davis II claims should not

be barred because Appellants were not able to bring them in Davis I. The district court disagreed,

noting that:

[w]hile Title VII requires exhaustion of administrative remedies before a federal
claim may be brought, there were options available to Plaintiffs other than simply
choosing between their claims. Plaintiffs could have filed the 2595 suit and
requested a stay pending the conclusion of the administrative proceedings on the
two EEOC complaints at issue in this discussion, or Plaintiffs could have delayed
filing the first suit until the administrative proceedings were completed.

This circuit has never directly addressed whether a Title VII claim may be barred by res

judicata if, at the time of the earlier suit, the plaintiffs have not yet received a right-to-sue letter.

However, several of our sister circuits have answered this question in the affirmative.

5
Appellants also filed a complaint with DART’s internal Equal Employment Office
regarding the same matters described in the July 2001 EEOC Charges. In August 2001, they
received a finding that Chief Rodriguez had retaliated against them.

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 The district court in this case relied on Woods v. Dunlop Tire Corp., 972 F.2d 36 (2d Cir.

1992), in which the Second Circuit held that a plaintiff’s Title VII claims were barred by res

judicata even though she had not received a right-to-sue letter at the time she filed her lawsuit. In

Woods, the plaintiff’s Title VII claims arose out of the same transaction as a previously filed

Labor Management Relations Act (“LMRA”) claim. Id. at 38. Although the plaintiff did not

have a right-to-sue letter from the EEOC when she initiated the LMRA action, the court reasoned

that to avoid the sting of res judicata, the plaintiff could have filed her LMRA claim, sought a

stay in the district court pending the outcome of her EEOC proceedings, and then joined her Title

VII claims once she received her right-to-sue letter. Id. at 41. In reaching this conclusion, the

Second Circuit noted that “the language and policy of Title VII do not undercut the application of

res judicata, and we see no reason militating against application of well-settled claim preclusion

principles.” Id. at 39.

Several other circuits have similarly held that Title VII claims were barred where plaintiffs

failed to take measures to avoid preclusion under res judicata while they pursued the requisite

Title VII remedies. See Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 714-15 (9th

Cir. 2001) (Title VII claims were not exempt from claim preclusion where plaintiffs failed to seek

a stay of proceedings or to amend their complaint); Herrmann v. Cencom Cable Assocs., Inc.,

999 F.2d 223, 225-26 (7th Cir. 1993) (“Parties to Title VII actions enjoy no immunity from res

judicata[.]”); cf. Boateng v. InterAmerican Univ., Inc., 210 F.3d 56, 63 (1st Cir. 2000) (Title VII

claim subject to res judicata where plaintiff received right-to-sue letter during pendency of prior

action); Jang v. United Techs. Corp., 206 F.3d 1147, 1149 (11th Cir. 2000) (ADA claim was not

exempt from res judicata where plaintiff failed to obtain right-to-sue letter during pendency of

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previous litigation); Churchill v. Star Enters., 183 F.3d 184, 193-94 (3d Cir. 1999) (same);

Rivers v. Barberton Bd. of Educ., 143 F.3d 1029, 1032-33 (6th Cir. 1998) (plaintiff’s claims were

barred by res judicata where she could have obtained a right-to-sue letter and perfected her claim

during the two-year pendency of prior action).

We agree with the Second Circuit’s reasoning in Woods that a plaintiff who brings a Title

VII action and files administrative claims with the EEOC must still comply “with general rules

governing federal litigation respecting other potentially viable claims.” 972 F.2d at 39-40.

Because the barred claims arose from the same nucleus of operative fact as the claims in Davis I

and they predate that action, Appellants were on notice to include those claims in Davis I. To

prevent their claims from being precluded, Appellants could have requested a stay in Davis I until

they received their letters. Accordingly, we affirm the district court’s determination that

Appellants’ claims predating and unrelated to the lieutenant promotion process were barred by res

judicata.

Claims Related to Lieutenant Promotion Process

Appellants’ remaining claims allege that their exclusion from the lieutenant promotion

process at DART, which occurred between December 2001 and April 2002, was motivated by

race discrimination and was retaliatory. Appellants claim they each initially met the minimum

requirements for the position, that the requirements were then purposely changed in order to

exclude them from qualifying, and that they were consequently wrongly denied both the

opportunity for promotion and the promotion itself. On appeal, Appellants maintain that they

presented triable fact issues on each of these claims, and, therefore, entry of summary judgment in

favor of DART and Chief Rodriguez was improper.

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 Summary judgment is proper when there is no genuine issue of material fact and the

movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett,

477 U.S. 317, 322 (1986). “A dispute about a material fact is ‘genuine’ if the evidence is such

that a reasonable jury could return a verdict for the non-moving party.” Hanchey v. Energas Co.,

925 F.2d 96, 97 (5th Cir. 1990). In evaluating a summary judgment motion, the district court

must draw all reasonable inferences in favor of the non-moving party. Duplantis v. Shell

Offshore, Inc., 948 F.2d 187, 189 (5th Cir. 1991). We review a district court’s grant of summary

judgment de novo. Tolson v. Avondale Indus., Inc., 141 F.3d 604, 608 (5th Cir. 1998).

Race Discrimination Claims

Appellants asserted claims of race discrimination against DART under Title VII and 42

U.S.C. § 1981, and against Chief Rodriguez under 42 U.S.C. § 1983. The summary judgment

analysis is the same for claims of race discrimination under Title VII, § 1981, and § 1983. Pratt v.

City of Houston, 247 F.3d 601, 605 n.1 (5th Cir. 2001); Patel v. Midland Mem’l Hosp. & Med.

Ctr., 298 F.3d 333, 342 (5th Cir. 2002).

Cases of discrimination based on circumstantial evidence are subject to the McDonnell

Douglas burden-shifting analysis. See Meinecke v. H & R Block of Houston, 66 F.3d 77, 83 (5th

Cir. 1995) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). To survive

summary judgment under McDonnell Douglas, the plaintiff must first present evidence of a prima

facie case of discrimination. Patel, 298 F.3d at 342. If the plaintiff presents a prima facie case,

discrimination is presumed, and the burden shifts to the employer to articulate a legitimate,

nondiscriminatory reason for the underlying employment action. See id. If the employer is able to

state a legitimate rationale for its employment action, the inference of discrimination disappears

10
and the plaintiff must present evidence that the employer’s proffered reason was mere pretext for

racial discrimination. See id.; Byers v. Dallas Morning News, Inc., 209 F.3d 419, 425 (5th Cir.

2000). Here, the district court held that, even assuming that Appellants established a prima facie

case, they failed to raise a fact question about whether the defendants’ proffered

nondiscriminatory reason — that Appellants were not qualified to be lieutenants — was

pretextual.

We first evaluate whether Appellants succeeded in presenting a prima facie case of race

discrimination against DART and Chief Rodriguez. An employee presents a prima facie case of

discrimination in a failure to promote case by demonstrating four elements: (1) that the employee

is a member of the protected class; (2) that he sought and was qualified for the position; (3) that

he was rejected for the position; and (4) that the employer continued to seek or promoted

applicants with the plaintiff's qualifications. See Celestine v. Petroleos de Venezuella SA, 266

F.3d 343, 354-55 (5th Cir. 2001) (citing Haynes v. Pennzoil Co., 207 F.3d 296, 300 (5th Cir.

2000)). That Appellants meet the first, third, and fourth factors is not disputed: they are African-

American, they were not promoted, and DART promoted two qualified officers. The only

disputed issue is whether Appellants raised a question of fact about whether they were qualified

for the lieutenant position.

Between December 2001 and April 2002, DART actively sought officers to fill open

lieutenant positions at DART. The first notice for the lieutenant openings was posted in

December 2001. The initial posting required, among other qualifications, a bachelor’s degree and

seven years peace officer experience, including a minimum of one year as a sergeant. In February

2002, Chief Rodriguez announced in a memo that a revised posting would be circulated. The

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memo stated the following:

The new, revised posting will still require candidates to have at least seven years
experience as a full-time Texas peace officer, including one year supervision.
However, the one year of supervisory experience at the rank of Sergeant or above
can be in civilian or police work or in any equivalent capacity in the military. We
want to take advantage of either civilian or military leadership experience since our
internal applicants could possess either or both. For military supervisory
experience, candidates must have held at least the pay grade of E-6 or higher.

The subsequent postings included requirements as stated in Chief Rodriguez’s memo.

Those interested in the lieutenant position were to submit applications to DART human

resources. Applicants possessing the minimum qualifications for the position would continue to

the next phase of the promotion process, which included a mandatory civil service exam. DART

would select the new lieutenants from those candidates who passed the exam.

Appellants submitted their applications for the lieutenant positions in January 2002, before

the revised notices were posted. DART determined that Appellants did not meet the minimum

qualifications to become lieutenants under either the initial or revised posting because they did not

possess the requisite supervisory experience. Pursuant to that determination, DART informed

Appellants that they would be prohibited from taking the civil service exam or advancing any

further in the promotion process.

Appellants challenge DART’s determination that they were unqualified and claim they

were denied access to the promotion process because of their race. In support of their argument,

they submit their purported qualifications for the lieutenant position. At the time of their

applications, each Appellant held a bachelor’s degree and possessed the total amount of education

and peace officer experience mandated under the job postings. Both Appellants had served in a

supervisory capacity in the military: Davis had been a level E-4 Sergeant, and Johnson had been a

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level E-5 Sergeant. However, Appellants possessed neither peace officer experience at the rank

of sergeant (as required by the initial posting), nor military experience at the rank of sergeant E-6

or higher (as permitted by the subsequent postings). Hence, their qualifications were facially

insufficient to satisfy the minimum criteria under either of the postings for the lieutenant positions.

Nonetheless, Appellants argue that, had Chief Rodriguez not altered the job criteria, their

military supervisory experience would have qualified them under the first posting. The first

posting included a general requirement of peace officer experience at the rank of sergeant —

military experience, at any level, was not mentioned. Appellants specifically assert that their

military supervisory positions were functionally equivalent to a Texas peace officer at the level of

sergeant, and that persons in DART administration intimated that they were qualified to be

lieutenants. Yet Appellants submitted no evidence that their military experience was

commensurate with that of sergeant in law enforcement. DART, on the other hand, offered the

sworn affidavit of Lynda J. Jackson, DART’s Vice-President of Human Resources, indicating just

the opposite — that DART had never considered military experience for any police officer

position in the past. Thus, Appellants fail to present a genuine issue of material fact that they

were qualified to be lieutenants, and therefore fail to establish a prima facie case of race

discrimination.

We also note that, even if we were to assume that Appellants presented a prima facie case

of discrimination, they did not offer any evidence that their disqualification from the lieutenant

promotion process was a pretext for race discrimination. Appellants suggest that after

discovering that Appellants hoped to use their military supervisory experience to qualify them for

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the lieutenant positions, DART and Chief Rodriguez deliberately set the standard at a level just

above their experience to purposely exclude them from candidacy. However, even if proven, this

evidence would not demonstrate racial discrimination. While the two candidates ultimately

selected to be lieutenants were white, the record shows that there were other African-Americans

who met the required qualifications under both postings. As there was no evidence that DART

has ever considered military experience in the past, the evidence suggests that the revision of the

job notice was intended to be more inclusive rather than exclusive. Accordingly, we affirm the

district court’s entry of summary judgment on Appellants’ claims of race discrimination.

Retaliation Claims

Title VII and § 1981 Retaliation Claims Against DART

Appellants also challenge entry of summary judgment on their claims of retaliation. To

present a prima facie case of retaliation under either Title VII or § 1981, a plaintiff must show

that: (1) he engaged in an activity protected by Title VII; (2) he was subjected to an adverse

employment action; and (3) a causal link exists between the protected activity and the adverse

employment action. See Banks v. E. Baton Rouge Parish Sch. Bd., 320 F.3d 570, 575 (5th Cir.

2003); see also Foley v. Univ. of Houston Sys., 324 F.3d 310, 316 (5th Cir. 2003) (the elements

for establishing a prima face case of retaliation under § 1981 are identical to those that must be

established under Title VII). To demonstrate the occurrence of an adverse employment action, a

plaintiff must show that he suffered an “ultimate employment decision.” See Dollis v. Rubin, 77

F.3d 777, 781-82 (5th Cir. 1995). Ultimate employment decisions include actions affecting job

duties, compensation, or benefits, such as hiring, granting leave, discharging, promoting, and

compensating. See Banks, 320 F.3d at 575.

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 If a plaintiff succeeds in making a prima facie case, the burden then shifts to the defendant

to proffer a legitimate rationale for the underlying the employment action. Aldrup v. Caldera,

274 F.3d 282, 286 (5th Cir. 2001). If the defendant makes this showing, the burden shifts back to

the plaintiff to demonstrate that the employer’s articulated reason for the employment action was

a pretext for retaliation. Id.

The district court found that Appellants failed to present a prima facie case of retaliation.

The court held that although Appellants engaged in a protected activity in filing their EEOC

complaints and speaking out against DART and Chief Rodriguez, Appellants failed to allege the

necessary adverse employment action. Further, the court found that, even assuming an adverse

employment action was presented, no causal link to the protected activity was shown.

Appellants assert that DART’s refusal to promote them to lieutenant constituted an

adverse employment action. In particular, Appellants argue that DART’s revision of the

lieutenant job criteria after the initial posting was intended to prevent them from proceeding

through the promotion process and from taking the civil service exam. They contend that these

acts amounted to an ultimate employment decision by effectively denying them a promotion.

The district court rejected this argument, reasoning that denial of access to the exam and

study materials was not the denial of a promotion, but was rather the denial of an opportunity for

promotion. Thus, the district court found no adverse employment action. In support of this

finding, the trial judge cited our holding in Banks v. E. Baton Rouge Parish School Board, that

the implementation of a reading test requirement for promotion was not an ultimate employment

decision. 320 F.3d 570, 575, 577-78 (5th Cir. 2003).

However, Banks is distinguishable from the instant case. In Banks, we noted that the

15
plaintiffs did not allege the reading test was unfairly rigged to prevent them from passing. Id. In

contrast, Appellants allege that the requirements to take the test were unfairly manipulated to

prevent them from being promoted. Banks also differs from the present case because the plaintiffs

in Banks complained about the implementation of the test requirement, not the denial of the

promotion itself. Id. Appellants complain not only that the institution of revised criteria and

denial of access to the exam was retaliatory, but also that denial of the promotion itself was

retaliatory. Thus, Appellants have alleged they were denied a promotion. Because the denial of a

promotion is an ultimate employment decision, Appellants have raised a fact question on the

second element of their prima facie case of retaliation.

Having shown a protected activity and an adverse employment action, Appellants still had

to raise a fact issue about whether there was a causal link between the two. To demonstrate the

causal prong of a retaliation claim on summary judgment, a plaintiff must at least raise a question

about whether the person who denied him a promotion was aware of the protected activity. See

Manning v. Chevron Chem. Co., 332 F.3d 874, 883 (5th Cir. 2003).

The district court concluded that Appellants failed to show a causal link because Yolanda

Ross, DART’s human resources representative who determined which candidates were qualified

to take the exam, was unaware of Appellants’ EEOC complaints against DART and Chief

Rodriguez. Appellants argue, however, that Ms. Ross merely applied retaliatory employment

criteria set in place by DART, and that those persons who implemented the criteria were aware of

Appellants’ EEOC complaints. By linking the denial of the promotion to the requirement that

military experience be at level E-6 or above, Appellants may have raised a fact question as to a

causal link between their prior EEOC complaints and their failure to be promoted. Consequently,

16
we will assume, arguendo, that they presented a prima facie case of retaliation.

Assuming, without deciding, that Appellants made a prima facie case of retaliation, the

burden then shifted to DART to proffer a legitimate reason for denying Appellants the

promotions. See Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). DART

met this burden by asserting that Appellants were not promoted because they were not qualified

under either standard. Thus, the burden shifted back to Appellants to raise a fact question

regarding pretext. See Aldrup, 274 F.3d at 286.

Appellants point to no evidence suggesting that DART’s stated reason for denying them

the promotion — that they were unqualified under both the initial and the revised standards —

was pretextual. In support of pretext, Appellants proffer evidence that the revision in

qualifications was “controversial” and was intended to narrow the criteria, thereby eliminating

Appellants from consideration. Because the uncontroverted evidence establishes that Appellants

were not qualified under either the initial or the revised posted requirements, their argument that

the changes in the qualifications were retaliatory fails. Therefore, summary judgment was

appropriate as to Appellants’ retaliation claims against DART.

§ 1983 Retaliation Claim Against Chief Rodriguez

To establish a First Amendment retaliation claim under § 1983 against Chief Rodriguez,

Appellants were required to show that: (1) they suffered an adverse employment action; (2) their

speech involved a matter of public concern; (3) their interest in commenting on the matter of

public concern outweighed Chief Rodriguez’s interest in promoting efficiency; and (4) the adverse

employment action was motivated by their protected speech. See Lukan v. N. Forest Indep. Sch.

Dist., 183 F.3d 342, 346 (5th Cir. 1999). Because the district court found that Appellants failed

17
to show an adverse employment action under the first element, it entered summary judgment in

favor of Chief Rodriguez.

We need not determine whether Appellants presented a fact question on the first, second,

and third factors because, even if those elements were satisfied, Appellants fail to establish the

fourth factor — that the alleged adverse employment action was motivated by their protected

speech. Appellants point to no evidence suggesting that their public criticism of Chief Rodriguez

and of DART prompted Chief Rodriguez to revise the lieutenant employment criteria or to

disqualify Appellants from consideration. In fact, Chief Rodriguez presented uncontradicted

evidence that the DART police department revised the criteria not to retaliate against Appellants,

but to be more inclusive in the hiring process. Accordingly, Appellants do not present a triable

fact question as to retaliation under § 1983, and, therefore, summary judgment was proper.

Conclusion

Based on the foregoing analysis, we AFFIRM the district court’s entry of summary

judgment.

AFFIRMED.

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