EMILIO M. GARZA, Circuit Judge:
Plaintiffs Fayette Long and Jeanell Reavis appeal the district court's order granting Defendant Eastfield College's motions for summary judgment. We affirm in part, reverse in part, and remand.
Plaintiff Reavis was employed by Eastfield College as an assistant in the Human Resources Office. Reavis misplaced a file room key belonging to her immediate supervisor, Kathy Sawa. Reavis had previously complained to college officials about the racially discriminatory conduct of the Director of the Human Resources Office, Kate Kelley.
Long was employed by Eastfield College as a secretary in the Facility Services Division. Long had previously complained to college officials about the sexually discriminatory conduct of her immediate supervisor, George Clark.
We review a district court's grant of summary judgment de novo. Armstrong v. City of Dallas, 997 F.2d 62, 65 (5th Cir. 1993). Summary judgment is appropriate in cases in which there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. FED. R.CIV.P. 56(c). In an employment discrimination case, we focus on whether a genuine issue exists as to whether the defendant intentionally discriminated against the plaintiff. Armstrong, 997 F.2d at 65-66.
Long and Reavis first assert that the district court erred in granting summary judgment in favor of Eastfield College on their Title VII claims for unlawful retaliation. A plaintiff establishes a prima facie case for unlawful retaliation by proving (1) that she engaged in activity protected by Title VII, (2) that an adverse employment action occurred, and (3) that a causal link existed between the protected activity and the adverse employment action. McMillan v. Rust College, Inc., 710 F.2d 1112, 1116 (5th Cir.1983). An employee has engaged in activity protected by Title VII if she has either (1) "opposed any practice made an unlawful employment practice" by Title VII or (2) "made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing" under Title VII. 42 U.S.C. § 2000e-3(a). The opposition clause of § 2000e-3(a) requires the employee to demonstrate that she had at least a "reasonable belief" that the practices she opposed were unlawful. Payne v. McLemore's Wholesale & Retail Stores, 654 F.2d 1130, 1140 (5th Cir.1981).
We have previously held that the burden-shifting structure applicable to Title VII disparate treatment cases, as set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973), is also applicable to Title VII unlawful retaliation cases. McMillan, 710 F.2d at 1116. Therefore, once the plaintiff
We must first determine whether Long and Reavis have established prima facie cases for unlawful retaliation. The summary judgment evidence establishes that Long complained to college officials about a sexually explicit joke told by Clark in Long's presence. Long's affidavit asserts that, after learning of Long's complaint, Clark required Long to provide a report that he had never required previously. Long also testifies that Clark belittled her in front of male co-workers and interfered with her attempt to file criminal charges with campus police against a male co-worker. In response to these incidents, Long again complained to college officials, alleging that Clark's actions created a hostile work environment and that Clark treated her differently from other employees because of her gender. After Clark learned about this complaint, he downgraded Long's performance rating from "exceeds" to "satisfactory." Long complained to college officials a third time, alleging that Clark downgraded her performance rating in retaliation for her complaints. Viewing this evidence in the light most favorable to Long, we find that Long has presented sufficient evidence to create a fact issue as to her "reasonable belief" that Clark's conduct violated Title VII.
The summary judgment evidence also establishes that Reavis repeatedly complained to college officials about Kelley, alleging that Kelley's actions created a hostile work environment and that Kelley treated her differently because of her Hispanic heritage. Reavis's affidavit asserts that Kelley constantly subjected her to racial slurs; Reavis testifies that Kelley berated her because she did not speak Spanish, brought her a book on how to speak Spanish, and forced her to communicate with Kelley in Spanish in person and through electronic mail. Reavis's affidavit also claims that Kelley told her that she intended to retaliate against Reavis for filing complaints, and that on one occasion thereafter Kelley threatened to discharge her unless Reavis climbed into a dumpster to look for certain papers. Viewing this evidence in the light most favorable to Reavis, we find that Reavis has presented sufficient evidence to create a fact issue as to her "reasonable belief" that Kelley's conduct violated Title VII.
Employers are liable under Title VII, in accordance with common law agency principles, for the acts of employees committed in the furtherance of the employer's business. Moham v. Steego Corp., 3 F.3d 873, 876 (5th Cir.1993), cert. denied, ___ U.S. ___, 114 S.Ct. 1307, 127 L.Ed.2d 658 (1994). However, we do not hold employers liable under Title VII for every discriminatory act committed by employees in the workplace. As observed by the Seventh Circuit, the "in furtherance of the employer's business" aspect of the doctrine of respondent superior suggests that liability requires a direct relationship between the allegedly discriminatory conduct and the employer's business. Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir.1990). In accordance with this observation, two distinct lines of case law have developed addressing employer liability for wrongful termination decisions based on the complaints or recommendations of other employees.
The first line of cases involves employer liability for the actions, complaints, and recommendations of ordinary employees. We have previously held an employer not liable under Title VII for an employment decision based on the false complaint of an ordinary employee, where the employer reasonably believed the allegation and acted on it in good faith. Waggoner v. City of Garland, Tex., 987 F.2d 1160, 1165-66 (5th Cir. 1993). Because ordinary employees do not have control over the employment status of co-employees, one employee's recommendation that another employee be terminated will normally be so unrelated to the employer's business that it cannot be deemed "in furtherance" thereof. See Shager, 913 F.2d at 405 ("If one low-level employee makes sexual advances to another, his conduct is so unrelated to the employer's business that the employer will ordinarily be excused from liability under the doctrine of respondeat superior."). In such cases, any wrongful intent on the part of the ordinary employee is not properly imputable to the employer.
The second line of cases involves employer liability for the actions, complaints, and recommendations of supervisory employees. We have previously held an employer liable under Title VII for an employment decision made by supervisory employees, where the supervisory employees were agents of the
The Title VII claims for unlawful retaliation filed by Long and Reavis against Eastfield College do not fit neatly into either of these lines of analysis. The summary judgment evidence establishes that Aguero, as President of Eastfield College, had the final authority to hire and fire employees. Clark and Kelley, as supervisors in their respective departments, had the authority to make recommendations concerning the employment status of their subordinate employees. In this case, Clark recommended that Long be terminated, and Kelley recommended that Reavis be terminated. Aguero then made the final decisions to terminate Long and Reavis. If Aguero based his decisions on his own independent investigation, the causal link between Clark and Kelley's allegedly retaliatory intent and Long and Reavis's terminations would be broken. See Shager, 913 F.2d at 405 ("Lehnst did not fire Shager; the Career Path Committee did. If it did so for reasons untainted by any prejudice of Lehnst's against older workers, the causal link between that prejudice and Shager's discharge is severed...."). If, on the other hand, Aguero did not conduct his own independent investigation, and instead merely "rubber stamped" the recommendations of Clark and Kelley, the causal link between Long and Reavis's protected activities and their subsequent terminations would remain intact.
The burden of production now shifts to Eastfield College to articulate a legitimate, non-retaliatory reason for terminating Long and Reavis. Clark's letter to Aguero, included in the summary judgment record, recommends that Long be terminated because she violated key replacement procedures, because she did not inform Clark about the lost key request, and because of past "performance-related problems." Kelley's letter to Aguero, also included in the summary judgment record, recommends that Reavis be terminated because she violated key replacement procedures and because she failed to admit that the key was a replacement key when questioned by Kelley and Sawa. We find that these reasons, if believed, would permit the trier of fact to conclude that the terminations were non-retaliatory. Because Eastfield College has satisfied its burden to articulate a legitimate, non-retaliatory reason for Long and Reavis's terminations, the burden-shifting framework of McDonnell Douglas drops from the case. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742, 2749, 125 L.Ed.2d 407 (1993) ("If ... the defendant has succeeded in carrying its burden of production, the McDonnell Douglas framework — with its presumptions and burdens — is no longer relevant.").
We are now left with the ultimate question — whether Eastfield College unlawfully retaliated against Long and Reavis. As we noted earlier, a plaintiff must show that the adverse employment action would not have occurred "but for" the protected activity in order to prove unlawful retaliation. McMillan, 710 F.2d at 1116. To defeat a motion for summary judgment or a motion for judgment as a matter of law, a Title VII plaintiff, like plaintiffs in any other civil case, must show that there is a "`conflict in substantial evidence'" on this ultimate issue. Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 993 (5th Cir.1996) (en banc) (quoting Boeing Co. v. Shipman, 411 F.2d 365, 375 (5th Cir. 1969) (en banc)). Evidence is "substantial" if it is "of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions." Boeing Co., 411 F.2d at 374. We must thus determine whether reasonable and fair-minded persons could conclude from the summary judgment evidence that Eastfield College would not have terminated Long and Reavis "but for" their activities protected by Title VII.
Long and Reavis, in response to Eastfield College's proffered reasons for their terminations, present evidence, through affidavit and deposition testimony, that the key replacement procedure for Eastfield College varies according to the situation. Evidence in the summary judgment record suggests that the Human Resources Office in particular does not follow key replacement procedure, as illustrated by the incomplete and inaccurate key records on file for both Kelley and Sawa. Further, Long and Reavis both testify that no Eastfield College employee had previously been terminated for violation of key replacement procedure. Long, with regard to the other reason given for her termination, presents undisputed testimony that her past performance evaluations never fell below "exceeds" until after her complaint to college officials about Clark, when her performance was downgraded to "satisfactory." With regard to the other reason given for Reavis's termination, Reavis testifies that Sawa did not ask her whether the key was a replacement key and that she responded truthfully to all of the questions that Kelley and Sawa asked her. Viewing the summary judgment evidence in the light most favorable to Long and Reavis, we find that reasonable and fair-minded persons could conclude that the reasons proffered by Eastfield College were pretexts for unlawful retaliation, and thus that Long and Reavis would not have been terminated "but for" their previous complaints against Clark and Kelley. See Shirley v. Chrysler First, Inc., 970 F.2d 39, 42-43 (5th Cir.1992) (affirming district court judgment for plaintiff on Title VII retaliation claim where plaintiff's performance evaluations were excellent prior to
Long next asserts that the district court erred by granting Eastfield College's motion for summary judgment on her hostile work environment claim.
Long's sole basis for her hostile work environment claim is an offensive joke concerning condoms which Clark told in her presence. The Supreme Court has previously contrasted physically threatening or humiliating conduct, which will support a claim for hostile work environment, from a "mere offensive utterance," which will not. Id. We find that the alleged joke in this case is exactly the type of mere offensive utterance which should not, by itself, support a claim for hostile work environment. See DeAngelis v. El Paso Mun. Police Officers Ass'n, 51 F.3d 591, 595 (5th Cir.) (finding ten offensive articles in a police newspaper insufficient to support a hostile work environment claim), cert. denied, ___ U.S. ___, 116 S.Ct. 473, 133 L.Ed.2d 403 (1995). Accordingly, we hold that the district court did not err in granting summary judgment for Eastfield College on Long's Title VII hostile work environment claim.
Based on the foregoing, we AFFIRM the district court's order insofar as the district court grants summary judgment for Eastfield College on Long and Reavis's Title VII hostile work environment claims. We REVERSE the district court's order insofar as the district court grants summary judgment for Eastfield College on Long and Reavis's Title VII unlawful retaliation claims. We REMAND to the district court for further proceedings consistent with this opinion.
I concur in Part II.B. of the panel opinion wherein in the majority affirms the district court's grant of summary judgment in favor of Eastfield College on the hostile work environment claims of both Long and Reavis. I respectfully dissent, however, from Part II.A. of the panel opinion which reverses the grant of summary judgment by the district court in favor of Eastfield College on the "unlawful retaliation" claims of Long and Reavis.
I write to express my utter amazement at the conundrum which the panel opinion creates: On the one hand, the panel concludes (I think correctly) that no reasonable jury could conclude that the facts and circumstances alleged by Long and Reavis could constitute a hostile work environment based on sex or race. But on the other hand, the panel concludes (I think incorrectly) that the same reasonable jury could conclude that Long and Reavis had a "reasonable belief" that the alleged actions constituted discrimination based on race or sex sufficient to support a retaliation claim against their employer.
There is nothing in the text of 42 U.S.C. § 2000e-3(a) which could possibly suggest that the subjective "reasonable belief" of an employee can suffice as the basis for that employee's opposition or protest as to an unlawful employment practice. The statutory text is clear and unambiguous: "because he has opposed any practice made an unlawful employment practice by this chapter." The statute says "made." It does not say "because he has opposed any practice which he reasonably thinks or believes is an unlawful employment practice." This is one of those classic cases where the courts (including regrettably our own Fifth Circuit) have, in my view, read into a statutory provision a circumstance that is not there in the language of the statute itself.
Furthermore, I have great difficulty in seeing that the "opposition" clause of § 2000e-3(a) was intended to give the employee victim another ground of recovery. Obviously, the employee who thinks he is the victim of racial or sexual discrimination would quite normally have a feeling of "opposition" to the practices that he feels are discriminatory. Rather, I would say the "opposition" clause is intended to protect third party employees who are not themselves the victim of the "unlawful employment practice" but who "oppose" that practice by speaking out against it or writing reports against it or by orally reporting to a superior the circumstances constituting an "unlawful employment practice." The opposition clause is in effect a form of "whistle blower" relief.
Finally, if we are going to work with the "reasonable belief" element, we should make clear that the test is not whether Long and Reavis subjectively entertained a reasonable belief, but rather whether the average person similarly situated in the circumstances asserted by Long and Reavis would reasonably believe that an unlawful employment practice existed. Given (1) the limited nature of the references to race or sex in this case; (2) the infrequency in time of the incidents in this case; (3) the lack of specificity in the claims of Long and Reavis; (4) the period of time which elapsed between the events which Long and Reavis asserted to be unlawful and the registering of their complaints and between the registering of their complaints and their final termination; and (5) that the summary judgment evidence showed that the decision to terminate them was made by Dr. Aguero and there is nothing in that summary judgment evidence to indicate that Dr. Aguero was aware of any of the alleged complaints by Long and Reavis of hostile environment based on race or sex, I would hold that no rational juror could conclude that a reasonable employee in the same circumstances could reasonably believe that they were discharged for opposing unlawful employment practice. I would affirm the district court's grant of summary judgment in favor of Eastfield College on the retaliation claims.
The 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. McDaniel v. Temple Indep. Sch. Dist., 770 F.2d 1340, 1346 (5th Cir. 1985). In other words, even if a plaintiff's protected 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. Jack v. Texaco Research Ctr., 743 F.2d 1129, 1131 (5th Cir. 1984).
The standard for establishing the "causal link" element of the plaintiff's prima facie case is much less stringent. See McMillan, 710 F.2d at 1116-17 (holding plaintiff's evidence sufficient to meet causation element of prima facie case but insufficient to prove ultimate question of "but for" causation). The Eleventh Circuit has recognized this distinction explicitly, holding that a plaintiff may satisfy the "causal link" element of his prima facie case by showing that the protected activity and the adverse employment action "were not wholly unrelated." Simmons v. Camden County Bd. of Educ., 757 F.2d 1187, 1189 (11th Cir.), cert. denied, 474 U.S. 981, 106 S.Ct. 385, 88 L.Ed.2d 338 (1995). Though we need not today adopt the Eleventh Circuit's approach, we do note that a plaintiff need not prove that her protected activity was the sole factor motivating the employer's challenged decision in order to establish the "causal link" element of a prima facie case. De Anda v. St. Joseph Hosp., 671 F.2d 850, 857 n. 12 (5th Cir.1982).