Vandenberg v. Univ of St Thomas ( 2022 )

Case: 20-20620 Document: 00516348321 Page: 1 Date Filed: 06/08/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 8, 2022
No. 20-20620 Lyle W. Cayce
Summary Calendar Clerk
Kelly Vandenberg,
Plaintiff—Appellant,
versus
University of Saint Thomas, also known as University
of St. Thomas (Houston),
Defendant—Appellee.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:18-CV-379
Before Richman, Chief Judge, and Haynes and Duncan, Circuit
Judges.
Per Curiam:*
Dr. Kelly Vandenberg, a former employee of the University of Saint
Thomas School of Nursing, sued the University of Saint Thomas (St.
Thomas), asserting a claim of race discrimination under Title VII of the Civil
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 20-20620 Document: 00516348321 Page: 2 Date Filed: 06/08/2022
No. 20-20620
Rights Act of 1964 (Title VII) and 42 U.S.C. § 1981, and a claim of retaliation
under Title VII. The district court granted summary judgment to St.
Thomas on both claims and dismissed the suit. Vandenberg appeals
regarding the retaliation claim. We affirm.
I
Dr. Kelly Vandenberg began working as a faculty member in the St.
Thomas School of Nursing in May 2012 pursuant to a twelve-month, non-
tenure contract. In addition to teaching as an Assistant Professor,
Vandenberg served as the course coordinator for some of her courses. The
Associate Dean of the School of Nursing, Dr. Angelina Chambers, was
Vandenberg’s immediate supervisor. Chambers answered to the Dean of the
School of Nursing, Poldi Tschirch. As the Dean, Tschirch made all hiring
and firing decisions for the School of Nursing. Tschirch, and therefore St.
Thomas, renewed Vandenberg’s contract for the academic years from fall
2012 to spring 2016, but it declined to do so after that time.
As a new Assistant Professor, Vandenberg was rated as “In Good
Standing” for the 2012 to 2013 academic year. Following her initial review,
however, Vandenberg began to have performance issues. In spring 2014,
students voiced concerns about Vandenberg behaving unprofessionally.
They stated that she was belittling, intimidating, and degrading to students,
as well as that her class environment was not conducive to St. Thomas’s
“holistic learning” approach. In the spring and fall of 2014, Vandenberg
received the lowest course evaluation score of all faculty members. Although
Vandenberg was ranked “In Good Standing” for the 2013 to 2014 academic
year, she was informally counseled about her performance issues.
In March 2015, the School of Nursing established formal expectations
for all full-time faculty that were “aligned with the school’s holistic
philosophy and collaborative organizational model.” Tschirch individually
2
Case: 20-20620 Document: 00516348321 Page: 3 Date Filed: 06/08/2022
No. 20-20620
reviewed the performance expectations with Vandenberg that month. In
September 2015, the performance expectations were voted on and accepted
by all faculty members, including Vandenberg. Vandenberg agreed to abide
by them. Nevertheless, she continued to have performance issues. In
summer 2015, Vandenberg again received the lowest course evaluation score
of all faculty members, and Tschirch’s concerns about Vandenberg’s
performance continued to increase.
As a result, on November 23, 2015, Vandenberg was placed on a
Performance Improvement Plan (PIP). The PIP was prepared by Chambers
at the direction of Tschirch, and it was reviewed, edited, and finalized by
Tschirch. The PIP addressed Vandenberg’s performance issues dating back
to 2013, including: ineffective decision-making, failure to align with the
School of Nursing’s expectations, ineffective collaboration with other
faculty, ineffective communication with students, and inability to resolve
student conflicts. The PIP also included specific examples such as failing to
allot time for a clinical course; switching in-person lectures to online, which
Vandenberg concedes resulted in multiple student complaints; and planning
a study abroad trip without submitting a completed application or arranging
who would cover her courses. The PIP concluded that “[i]f no sustained
level of improved performance is noted[,] then further discussion will ensue
regarding [Vandenberg’s] future employment at [St. Thomas].”
Vandenberg immediately met with Chambers and the Associate Vice
President of Human Resources, Randy Graham, to review the PIP.
Vandenberg was removed from her position as a course coordinator, although
she continued teaching as an Assistant Professor.
Vandenberg believed that the PIP contained “false accusations by
Chambers that pre-dated [Vandenberg’s] good performance reviews,” and
she began “reflecting on the strange relationship between Chambers and [Dr.
Lucindra] Campbell-Law.” Campbell-Law joined the School of Nursing
3
Case: 20-20620 Document: 00516348321 Page: 4 Date Filed: 06/08/2022
No. 20-20620
faculty in June 2013, the year after Vandenberg started. Vandenberg believed
that “upon returning from a [school] trip to Haiti in 2015” with Campbell-
Law, Chambers’s opinion of Vandenberg “inexplicably changed.” As
Vandenberg describes it, Chambers and Campbell-Law “were joined at the
hip and allied against her.” Upon their return from Haiti, Vandenberg claims
that Campbell-Law and Chambers “began forwarding or blind copying”
their correspondence with Vandenberg to the other. Vandenberg interpreted
this as the two “working together on some kind of a campaign against
Vandenberg.” “From Vandenberg’s perspective, it appeared that Chambers
was giving favorable treatment to Campbell-Law [and they were working
together against Vandenberg] because of the one characteristic that
Chambers and Campbell-Law shared: race.” Campbell-Law, like Chambers,
is African-American, and during Vandenberg’s employment, Chambers and
Campbell-Law were the only two faculty members in the School of Nursing
of that race.
Accordingly, on December 21, 2015, Vandenberg wrote a letter to
Tschirch, Chambers, and Graham (the HR Complaint), alleging that the
allegations in the PIP were false and racially motivated. This was the first
Vandenberg complained of discrimination, and she admits that no one at St.
Thomas ever commented on her race. At the request of Graham, Chambers
responded to the complaint on January 13, 2016. Chambers wrote that
Vandenberg’s “allegations of racially biased behavior on [Chambers’s] part
towards [Vandenberg] are false and unsubstantiated” and that
“[Vandenberg’s] written comments are libelous and rise to the level of
defamation of character.”
Graham met with Vandenberg for the first time on January 22, 2016
to investigate the HR Complaint. That same day, Tschirch met with
Dominic Aquila, former Provost and Vice President for Academic Affairs,
and Chambers. Tschirch and Aquila both attest via sworn declaration that,
4
Case: 20-20620 Document: 00516348321 Page: 5 Date Filed: 06/08/2022
No. 20-20620
at that meeting, Tschirch informed Aquila of Tschirch’s decision not to
renew Vandenberg’s contract. They both attest that Tschirch documented
her decision in a memorandum (the January 22 Memorandum) that Tschirch
provided to Aquila in hard copy that day. They also both attest that, at that
time, Tschirch incorrectly dated the memorandum January 22, 2015, rather
than January 22, 2016.
Concerned that Graham’s investigation of the HR Complaint was
going “nowhere,” on February 23, 2016, Vandenberg filed a Charge of
Discrimination with the Equal Employment Opportunity Commission (the
EEOC Charge). She alleged that St. Thomas had discriminated against her
based on her race and retaliated against her for engaging in protected
activities while favoring Campbell-Law. Graham received the EEOC Charge
on March 3, 2016. On April 3, 2016, Vandenberg emailed an assistant in the
School of Nursing inquiring about her annual performance evaluation. The
next day, Chambers, rather than the assistant, responded that Vandenberg’s
performance evaluation was “on hold, pending final resolution of
[Vandenberg’s] current HR complaint.”
On April 25, 2016, Tschirch met with Graham. The next day,
Tschirch emailed Graham “Requested Documents,” including the School of
Nursing’s “Performance Expectations for a Collaborative Organization”
and the January 22 Memorandum. Metadata for the January 22
Memorandum indicates its “Best Creation Date” is April 26, not January 22.
Tschirch and Aquila both attest that because Tschirch revised the
memorandum on April 26 to fix the typographical error in the date year to
2016 from 2015—with no other revisions or modifications—and “re-saved
the memorandum with the correct date under a filename reflecting the
correct year of 2016,” the metadata changed to reflect the date the document
was re-saved rather than its original date of creation.
5
Case: 20-20620 Document: 00516348321 Page: 6 Date Filed: 06/08/2022
No. 20-20620
Vandenberg remained employed as an Assistant Professor until May
13, 2016, just before St. Thomas’s May 15 deadline to reissue annual
contracts for the upcoming academic year. Vandenberg’s “End of
Employment Form” indicated that Vandenberg’s employment was ending
because her “contract [was] not renewed.” On July 14, 2016, Vandenberg
updated the EEOC Charge to add allegations of discrimination and
retaliation based on the nonrenewal of her contract.
In February 2018, Vandenberg filed suit in federal district court,
alleging discrimination based on disparate treatment and a mixed-motive
theory under Title VII and § 1981, as well as retaliation under Title VII. St.
Thomas moved for summary judgment on all claims, and the district court
granted the motion and dismissed the suit. Vandenberg appealed to this
court, focusing solely on the retaliation claim.
II
Vandenberg contends that the district court improperly granted
summary judgment on her Title VII retaliation claim. We review a district
court’s grant of summary judgment de novo. 1 Summary judgment is
appropriate if, viewing all the facts and evidence in the light most favorable
to the nonmovant, “the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” 2
A genuine dispute of material fact exists when a fact “might affect the
outcome of the suit under the governing law” and “the evidence is such that
a reasonable jury could return a verdict for the nonmoving party.” 3
1
Clark v. Champion Nat’l Sec., Inc., 952 F.3d 570, 578 (5th Cir. 2020).
2
Id. at 578-79 (quoting Fed. R. Civ. P. 56(a)).
3
Id. at 578 (quoting Tagore v. United States, 735 F.3d 324, 328 (5th Cir. 2013)).
6
Case: 20-20620 Document: 00516348321 Page: 7 Date Filed: 06/08/2022
No. 20-20620
Vandenberg’s Title VII claim relies on circumstantial evidence and is
therefore subject to the burden-shifting framework set forth by the Supreme
Court in McDonnell Douglas Corp. v. Green. 4 Under that framework,
Vandenberg has the initial burden to establish a prima facie case of retaliation
under Title VII. 5 She must show that (1) she engaged in a Title VII protected
activity; (2) she was subject to an adverse employment action; and (3) “a
causal connection exists between the protected activity and the adverse
employment action.” 6 If Vandenberg establishes a prima facie case, she
creates a presumption of discrimination. 7 That shifts the burden to St.
Thomas to articulate “a legitimate, non-discriminatory reason for the
adverse employment action.” 8 If St. Thomas articulates such a reason, the
burden shifts back to Vandenberg to demonstrate that St. Thomas’s
proffered reason is a pretext for discrimination. 9
A
The first two elements of a prima facie case of retaliation are
undisputed: Vandenberg engaged in a protected activity when she filed the
HR Complaint (and later the EEOC Charge), and Vandenberg suffered a
materially adverse action—nonrenewal of her contract. As to the third, the
4
Brown v. Wal-Mart Stores E., L.P., 969 F.3d 571, 577 (5th Cir. 2020) (first citing
Byers v. Dall. Morning News, Inc., 209 F.3d 419, 425, 427 (5th Cir. 2000); and then citing
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)).
5
Id.6
Id. (quoting Byers, 209 F.3d at 427).
7
Harville v. City of Hous., 945 F.3d 870, 875 (5th Cir. 2019) (citing Shackelford v.
Deloitte & Touche, LLP, 190 F.3d 398, 404 (5th Cir. 1999)).
8
Brown, 969 F.3d at 577 (internal quotation marks omitted) (quoting Patrick v.
Ridge, 394 F.3d 311, 315 (5th Cir. 2004)).
9
Id. (citing Patrick, 394 F.3d at 315).
7
Case: 20-20620 Document: 00516348321 Page: 8 Date Filed: 06/08/2022
No. 20-20620
four-week gap between Vandenberg filing the HR Complaint and St.
Thomas’s staff deciding not to renew Vandenberg’s contract is evidence of
a causal connection at the prima facie stage. 10 Because Vandenberg
established a prima facie case of retaliation, the burden shifts to St. Thomas
to provide a legitimate, non-discriminatory reason for the nonrenewal of
Vandenberg’s contract.
B
An employer’s subjective reason for an adverse action will satisfy its
burden “only if the employer articulates a clear and reasonably specific basis
for its subjective assessment,” 11 so as to provide sufficient clarity to afford
the former employee a “full and fair opportunity to demonstrate pretext.” 12
“This does not mean that an employer may not rely on subjective reasons for
its personnel decisions.” 13 Rather, an “employer must articulate in some
detail a more specific reason than its own vague and conclusional feeling
about the employee.” 14 In Patrick v. Ridge, 15 an employer’s explanation that
10
Id. (holding that a plaintiff can meet her “burden of causation simply by showing
close enough timing between [her] protected activity and [her] adverse employment
action” (quoting Garcia v. Pro. Cont. Servs., Inc., 938 F.3d 236, 243 (5th Cir. 2019))); cf. id.
at 578 (holding that an “approximately six-to-seven-week gap” was sufficient to show a
causal connection “based on timing alone” at the prima facie stage); Cristain v. Hunter
Bldgs. & Mfg., L.P., 908 F.3d 962, 964 (5th Cir. 2018) (holding that a two-week gap
constituted “stark temporal proximity”).
11
Alvarado v. Tex. Rangers, 492 F.3d 605, 616 (5th Cir. 2007) (first citing Tex. Dep’t
of Cmty. Affs. v. Burdine, 450 U.S. 248, 258 (1981); and then citing Patrick, 394 F.3d at 316-
17).
12
Patrick, 394 F.3d at 319 n.34 (quoting Burdine, 450 U.S. at 256).
13
Id. at 317 (citing Medina v. Ramsey Steel Co., Inc., 238 F.3d 674, 681 (5th Cir.
2001)).
14
Id.15
394 F.3d 311.
8
Case: 20-20620 Document: 00516348321 Page: 9 Date Filed: 06/08/2022
No. 20-20620
the employee “was not ‘sufficiently suited’ for the position—even including
[the] belief that she would not ‘fit in’”—did not, as a matter of law, qualify
as a legitimate, nondiscriminatory reason because it was “at least as
consistent with discriminatory intent as it [was] with nondiscriminatory
intent.” 16 If the employer had included more detail, such as that the
employee was not sufficiently suited “because of her experience, credentials,
attitude, or some other such articulable characteristic,” the employer’s
reason “might have” been sufficient. 17
In its motion for summary judgment, St. Thomas argued that
Tschirch decided not to renew Vandenberg’s contract “because—despite
repeated feedback and counseling—Vandenberg had continuing problem
patterns and did not embrace the School of Nursing’s holistic and
collaborative approach.” The university cited specific examples, such as
Vandenberg’s “history of poor student interactions and students’ recurrent
complaints.” On appeal, St. Thomas adds that Vandenberg did not meet
“expectations as to communication, conflict engagement in terms of
addressing student concerns and resolving course issues, and decision
making.” In support, the university cites the transcripts of Tschirch’s and
Vandenberg’s depositions and the PIP—all included as exhibits to the
motion for summary judgment. They show issues with Vandenberg such as
“numerous students” complaining about her, Vandenberg receiving “the
lowest course evaluation scores among all faculty members in multiple
semesters,” and Vandenberg repeatedly failing to adhere to the School of
Nursing’s processes. This all constitutes sufficient detail under Patrick, and
thus St. Thomas’s explanation, as a matter of law, qualifies as a legitimate
16
Id. at 317.
17
Id.9
Case: 20-20620 Document: 00516348321 Page: 10 Date Filed: 06/08/2022
No. 20-20620
reason for not renewing Vandenberg’s contract. 18 The detailed reason is also
nondiscriminatory because it relates to performance issues and failure to
comply with established expectations. 19 Therefore, the burden shifts back to
Vandenberg to demonstrate that St. Thomas’s proffered reason is a pretext
for discrimination.
C
At the pretext stage, Vandenberg must show “but-for causation,
which requires more than mere temporal proximity.” 20 Ultimately, in order
to survive a motion for summary judgment, Vandenberg’s evidence of
pretext “must show a conflict in substantial evidence on the question of
whether [St. Thomas] would not have” failed to renew her contract but for
the HR Complaint or EEOC Charge. 21 “Evidence is substantial if it is of such
quality and weight that reasonable and fair-minded [people] in the exercise of
impartial judgment might reach different conclusions.” 22
Vandenberg contends that St. Thomas’s reason is pretextual because
the reason “shifted” between the HR Complaint, the EEOC Charge, and the
18
See id.19
Cf. Outley v. Luke & Assocs., Inc., 840 F.3d 212, 218 (5th Cir. 2016) (“Job
performance is a legitimate reason for termination.” (ellipses omitted) (quoting LeMaire v.
La. Dep’t of Transp. & Dev., 480 F.3d 383, 391 (5th Cir. 2007))).
20
Garcia v. Pro. Cont. Servs., Inc., 938 F.3d 236, 244 (5th Cir. 2019) (citing Strong
v. Univ. Healthcare Sys., L.L.C., 482 F.3d 802, 808 (5th Cir. 2007)).
21
Brown v. Wal-Mart Stores E., L.P., 969 F.3d 571, 577 (5th Cir. 2020) (internal
quotation marks omitted) (quoting Musser v. Paul Quinn Coll., 944 F.3d 557, 561 (5th Cir.
2019)).
22
Id. (quoting Musser, 944 F.3d at 561-62).
10
Case: 20-20620 Document: 00516348321 Page: 11 Date Filed: 06/08/2022
No. 20-20620
decision to not renew her contract. 23 Vandenberg cites Burton v. Freescale
Semiconductor, Inc. 24 in support. In Burton, after deciding to fire an employee,
the employer “acted to create an exculpatory paper trail” by “directly
solicit[ing the employee’s] supervisors to provide ‘documentation.’” 25 A
supervisor responded with an email that began with “Here is what I have on
Nicole Burton” and set forth “a laundry list of violations to justify the
predetermined decision to terminate Burton.” 26 It appeared that the
employee’s “only truly negative performance review was completed and
submitted just after the decision to fire her and was provided to [the
employer’s decisionmaker] after he requested documentation.” 27 We
concluded that a fair-minded juror could reasonably conclude there was
evidence of pretext. 28
Here, after the April 26, 2016 meeting, Tschirch emailed Graham to
provide the “Requested Documents”—the School of Nursing Performance
Expectations and the January 22 Memorandum. The metadata for the
January 22 Memorandum reflects a “Best Creation Date” of April 26, rather
than January 22 as Tschirch and Aquila attest. Viewing the metadata and
testimonial evidence in the light most favorable to Vandenberg, there is a
conflict in substantial evidence as to whether the January 22 Memorandum
23
See Nall v. BNSF Ry. Co., 917 F.3d 335, 347 (5th Cir. 2019) (“[I]t is well-accepted
in employment law—and the law more generally—that inconsistent explanations and
changing requirements undermine a party’s credibility.” (citations omitted)).
24
798 F.3d 222 (5th Cir. 2015).
25
Id. at 237.
26
Id. (brackets and internal quotation marks omitted) (citing Laxton v. Gap Inc.,
333 F.3d 572, 582 (5th Cir. 2003)).
27
Id. (emphasis omitted).
28
Id.11
Case: 20-20620 Document: 00516348321 Page: 12 Date Filed: 06/08/2022
No. 20-20620
was created on January 22 or April 26, and therefore whether Graham,
Tschirch, and Chambers were creating an exculpatory paper trail on April
26. Regardless, Vandenberg cannot establish that either the HR Complaint
or the EEOC Charge was the but-for cause of her contract nonrenewal.
Unlike in Burton, there is evidence of Vandenberg’s underperformance dated
before the December 21, 2015 HR Complaint and February 23, 2016 EEOC
Charge. 29 This includes the detailed PIP in November 23, 2015; testimony
of student complaints in spring 2014; and testimony that Vandenberg
received the lowest course and teacher mean scores out of all faculty
members in the spring 2014 semester.
Vandenberg also attempts to establish pretext under a “cat’s paw”
theory of liability. “Plaintiffs may use a cat’s paw theory to prove causation
when they cannot show the official decisionmaker had a retaliatory motive,
but can show that another individual influenced that decisionmaker.” 30 To
establish this theory of liability, Vandenberg “must show that [a] person with
retaliatory animus used the decisionmaker to bring about the intended
retaliatory action.” 31 Regardless of whether Chambers’s statements
constitute retaliatory animus, Vandenberg cannot establish a conflict in
substantial evidence regarding whether Chambers used Tschirch to bring
about the nonrenewal of Vandenberg’s contract.
Vandenberg contends that the cat’s paw theory applies because
“Tschirch’s communications and memos all reflect that Tschirch and
Chambers made the decision to fire Vandenberg together.” But for the cat’s
29
See id.30
E.E.O.C. v. EmCare, Inc., 857 F.3d 678, 684 n.3 (5th Cir. 2017) (citing Zamora v.
City of Hous., 798 F.3d 326, 331 (5th Cir. 2015)).
31
Zamora, 798 F.3d at 331.
12
Case: 20-20620 Document: 00516348321 Page: 13 Date Filed: 06/08/2022
No. 20-20620
paw theory to apply, Vandenberg must establish that Tschirch acted as a
mere “rubber stamp” for Chambers. 32 While Chambers was asked to
prepare the PIP, Tschirch reviewed, edited, and finalized it. Further,
Tschirch’s decision not to renew Vandenberg’s contract was based on her
own observations of Vandenberg’s performance patterns and evaluations of
course data. Thus, Tschirch acted as more than a mere rubber stamp for
Chambers, and the cat’s paw theory does not apply.
Accordingly, Vandenberg’s evidence of pretext does not show a
conflict in substantial evidence as to whether St. Thomas would have
renewed Vandenberg’s contract but for the HR Complaint or EEOC Charge.
* * *
For the foregoing reasons, we AFFIRM the district court’s grant of
summary judgment to St. Thomas.
32
Rios v. Rossotti, 252 F.3d 375, 382 (5th Cir. 2001) (quoting Russell v. McKinney
Hosp. Venture, 235 F.3d 219, 226-27 (5th Cir. 2001)).
13