BENAVIDES, Circuit Judge:
This retaliation case presents a sufficiency of evidence question. Plaintiff-Appellant Fabela was discharged from her position as campus secretary by Defendant-Appellee Socorro Independent School District(the District). Fabela contends that the District terminated her employment, in part, because she had filed a charge of sexual harassment with the Equal Employment Opportunity Commission (EEOC) in 1991. Consequently, she contends that she was discharged in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-3 et seq. (Title VII). Fabela initiated this action alleging a sole claim of retaliation. The District moved for summary judgment on the grounds that Appellant failed to rebut the nondiscriminatory reason offered by the District for Fabela's dismissal. The district court granted summary judgment in favor of the District, finding that Fabela had failed to present sufficient evidence supporting a causal connection between her 1991 charge, and the termination of her employment in 1997. We find otherwise.
Alicia Fabela began her employment with the District in 1986. Initially, Fabela worked as a secretary for the District itself, but in 1991 she became the campus secretary at Vista Del Sol Elementary School (Vista). The principal at Vista was Mr. Arturo Olivas. In February 1991, Olivas gave Fabela a poor work evaluation and recommended that she be terminated as an employee of the District. Shortly thereafter, Fabela filed a charge of discrimination and sexual harassment with the EEOC. Fabela alleged that Olivas had made unwelcome sexist and sexual remarks, and that when Fabela complained to Olivas about his behavior, he gave her a poor work evaluation in retaliation.
However, despite the EEOC's determination that Fabela's sexual harassment and retaliation charges against Olivas were unsubstantiated, Fabela was not discharged as Olivas had recommended. Instead, Assistant Superintendent Tom Marcee granted Fabela's request for an immediate transfer to another District school. Thus began Fabela's tenure at the Benito Martinez School.
The first five years that Fabela spent at Benito Martinez were apparently uneventful. During that time, Fabela received only positive evaluations from the principal, Ms. Mary Tucker. However, in 1996, Principal Tucker was replaced by Ms. Jo Reinhart. The record reflects that in contrast to Fabela's relationship with Tucker, the working relationship between Fabela and Reinhart rapidly became inharmonious. Reinhart first officially reviewed Fabela's work in March 1997, at which time she offered several critiques of Fabela's performance as campus secretary, and identified areas in which Fabela should improve.
On October 1, 1997 a significant incident occurred between Fabela and Reinhart. Reinhart ordered Fabela to leave campus and drive to a print shop to pick up report card forms which Reinhart believed Fabela had failed to order in a timely fashion. Fabela did not go to retrieve the forms as instructed, but instead waited for them to be delivered the following day. Fabela contends that she told Reinhart that she could not drive to collect the forms because she had a migraine headache. Reinhart contends that Fabela refused to get the forms in deference to a slight headache and cross-town traffic. In any event, Fabela did not pick up the report cards.
The following day Reinhart and Fabela met to discuss the report card conflict and other issues. Both women agree that a second disagreement erupted between them at the October 2 meeting, during which Fabela became upset and left the school campus. Fabela avers that following the second incident with Reinhart, she went home and called the District's Director of Personnel Services, Lois Ordaz. Fabela sought Ordaz's advice about securing a transfer to another District school. Ordaz directed Fabela to report to Ordaz's office the following Monday, and to not return to work at Benito Martinez until after that time.
On Monday October 6, Fabela was informed by Ordaz that Reinhart had recommended her immediate discharge from the District's employ. Reinhart articulated her recommendation in a letter directed to Assistant Superintendent Marcee. In the letter Reinhart described the events of October 1 and 2 and outlined several areas in which she was dissatisfied with Fabela's performance as campus secretary, and ultimately recommended Fabela's immediate dismissal.
Fabela appealed her termination, and on October 13, 1997, pursuant to the District's policy concerning at-will employees, the District conducted a "review session" to evaluate Fabela's termination.
On October 17, 1997, Dr. Brooks returned a finding in support of the District's decision to dismiss Fabela. In particular, Dr. Brooks concluded that Reinhart had been unhappy with Fabela's job performance since December 1996, that Reinhart's expectations of Fabela were reasonable, and that it would not be in the best interest of the District to reinstate Fabela.
In January 1998, Fabela filed a charge with the EEOC alleging both age discrimination and retaliatory firing in connection to her 1991 EEOC complaint. The EEOC found her age discrimination complaint to be unsubstantiated, but did find that the evidence showed there was reasonable cause to believe that Fabela was retaliated against based on her 1991 charge of discrimination. Upon the conclusion of the EEOC's investigation Fabela received notice of her right to sue, and she initiated this action against the District asserting that she was discharged in retaliation for
This Court reviews de novo the district court's grant of summary judgment, applying the same standard as the district court. Blow v. City of San Antonio, 236 F.3d 293, 296 (5th Cir.2001). Thus, here, to determine if summary judgment was properly entered in favor of the District, we review the record in the light most favorable to Fabela, and resolve all reasonable inferences in her favor. Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Moreover, we will affirm the district court's judgment only if we find that those facts which are material to Fabela's claims are undisputed by the parties, as it is well settled that at the summary judgment stage of litigation the function of the trial bench or reviewing court is not to step into the stead of the jury and weigh the evidence in a search for truth, but is instead to determine whether there exists a genuine issue for trial.
Title VII prohibits retaliation against employees who engage in protected conduct, such as the filing of a charge of sexual harassment. 42 U.S.C. § 2000e-3(a) (2000); Perez v. Region 20 Educ. Service Center, 307 F.3d 318, 325 (5th Cir.2002). To establish a claim of retaliation under Title VII, a plaintiff must demonstrate that she: (1) engaged in a protected activity; (2)that an adverse employment action occurred; and (3)that a causal link exists between the protected activity and the adverse employment action. Evans v. City of Houston, 246 F.3d 344 (5th Cir.2001).
Here, it is undisputed that Fabela engaged in the protected activity of filing a Title VII charge with the EEOC, and it is also undisputed that Fabela was subsequently terminated from her employment. Therefore, the sole issue in contest between the parties is whether Fabela's termination was causally linked with the filing of her 1991 EEOC complaint. The district court found that Fabela failed to present evidence supporting a causal link between these two events such that a reasonable jury could believe they were connected. We, however, disagree, finding instead that Appellant established the elements of her claim through the use of direct evidence, and that she adequately supported her claim such as to create a genuine issue for trial.
A. Direct Evidence — the "Mixed Motive" Path
A plaintiff alleging Title VII retaliation may establish her case for causation
However, in the unusual instance where a plaintiff is able to support the elements of her claim with direct evidence of a retaliatory motive, the McDonnell Douglas framework does not apply. Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121, 105 S.Ct. 613, 83 L.Ed.2d 523 (1984)(stating, "the McDonnell Douglas test is inapplicable where the plaintiff presents direct evidence of discrimination."); Fierros v. Texas Dept. of Health, 274 F.3d 187, 192 (5th Cir.2001)(finding that if a "plaintiff presents direct evidence that the employer's motivation for the adverse action was at least in part retaliatory, then the McDonnell Douglas framework does not apply.") citing Moore v. U.S. Dep't of Agric., 55 F.3d 991, 995 (5th Cir.1995). Instead, in such "direct evidence" cases, once the plaintiff has submitted evidence that retaliation was among the motives which prompted the adverse action, the "burden of proof shifts to the employer to establish by preponderance of evidence that the same decision would have been made regardless of the forbidden factor." Id. at 192 (quoting, Brown v. E. Miss. Elec. Power Ass'n, 989 F.2d 858, 861 (5th Cir.1993))(internal quotation marks omitted).
The case at bar presents such a circumstance. This Court has defined "direct evidence" as evidence which, "if believed, proves the fact [in question] without inference or presumption." Portis, 34 F.3d at 328-29 (quoting Brown, 989 F.2d at 861). In a Title VII context, direct evidence includes any statement or document which shows on its face that an improper criterion served as a basis — not necessarily the sole basis, but a basis — for the adverse employment action. Fierros, 274 F.3d at 192; see also Portis, 34 F.3d at 328-29.
The district court correctly identified this evidence as direct evidence, but the district court nevertheless concluded that this evidence, standing alone, was insufficient to allow a reasonable jury to find a causal connection between the EEOC charge, and Fabela's dismissal. However, in drawing this conclusion the district court erred by failing to evaluate the evidence in isolation. Instead, the district court evaluated Fabela's direct evidence for persuasiveness as compared to the record as a whole. Specifically, the district court stated:
Thus, in deciding whether Fabela had presented direct evidence that was sufficient to allow her to bypass the McDonnell Douglas framework, the district court weighed Fabela's direct evidence against other facts on record, and concluded that a reasonable jury would not be persuaded by Fabela's evidence in light of the record as a whole.
However, whether a reasonable jury would be persuaded by Fabela's evidence in light of the record as a whole is not the correct question to ask when determining whether Fabela has succeeded in producing direct evidence sufficient to allow her to avoid the McDonnell Douglas framework. In deciding whether Fabela established the element of causation under the direct evidence path, the district court must refrain from weighing the evidence and preemptively determining whether and which inferences a reasonable jury is likely to draw. Instead, in deciding which evidentiary framework applies, the district court must ask whether the direct evidence, truly standing alone, is sufficient to support the conclusion that a nexus exists between the protected activity and the adverse employment action. See Barrett Computer Services, Inc. v. PDA, Inc. 884 F.2d 214, 218 (5th Cir.1989)(holding that, "[a]lthough more concrete evidence [supporting an element of the nonmovant's claim] would have been preferable, the evidence presented suffices to establish the existence of a genuine fact issue ... After all, in summary judgment proceedings, `[t]he judge's function is not himself to weigh the evidence and determine the truth of the matter ... Rather, he or she only assesses whether there is a "genuine
Therefore, the question at hand is whether a reasonable jury could believe that a causal connection existed between the EEOC charge and Fabela's dismissal, assuming the jury believes — as here we must assume they would — that Marcee described Fabela as a problem employee because she filed the unsubstantiated complaint, and that Fabela was being terminated for being a problem employee. We find that a reasonable jury, passing on this evidence alone, could indeed conclude that Fabela was dismissed, in part, because she filed the unsubstantiated sexual harassment charge.
B. The District's Burden
Because Fabela has met her burden with direct evidence, the onus falls to the District to prove that despite Marcee's inclusion of the improper criterion among the reasons proffered for terminating Fabela, the District would have reached the same employment decision had Fabela never filed the 1991 charge.
Towards that end, we observe that the record reflects ample evidence that the District was primarily motivated to terminate Fabela because of Reinhart's dissatisfaction with Fabela's job performance.
Instead, in the mixed motive context, the fact that the District has supplied and supported a legitimate reason for discharging Fabela merely means that the District, too, has met its requirement to show that judgment as a matter of law cannot be rendered against it, and the issue is ripe for trial.
C. Rule 56(c)
Having found that Fabela has produced direct evidence sufficient to sustain the three elements of her retaliation claim such that a reasonable jury could return a verdict in her favor, the path of her litigation is clear: we review the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits to determine whether a genuine issue of material fact remains in dispute. Fed.R.Civ.P. 56(c); Turner v. Houma Mun. Fire & Police Civ. Serv. Bd., 229 F.3d 478, 482 (5th Cir.2000). Here, it is plain that the parties at bar are in dispute regarding two facts: first, whether Marcee's decision to discharge Fabela was motivated, in part, because she filed an EEOC charge; and second, whether the District would have discharged any employee who performed as Fabela had, regardless of whether that employee had filed a charge with the EEOC. The resolution of these two issues is material to the District's liability under Title VII, and both Fabela and the District have submitted sufficient evidence to render the dispute genuine. Consequently, these questions fall soundly within the province of the jury, and so we will leave it to the jury to answer them.
We conclude that the district court erred in granting summary judgment to the District. The judgment of the district court is hereby REVERSED, and the case is REMANDED for proceedings consistent with our holding herein.
Similarly, the district court draws a negative inference from the absence of particular evidence which the district court would have found to be more indicative of a causal connection. For example, the district court notes that Fabela fails to contend that she was harassed or intimidated in the intervening years between the charge and the dismissal. However, in ruling on the District's motion for summary judgment, it is obviously not appropriate for the district court to draw against Fabela, the nonmovant, a negative inference premised on the absence of specific evidence.