Pfau v. TX Dept Assistive , 211 F. App'x 271 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS December 5, 2006
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
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No. 05-51410
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MARIE PFAU
Plaintiff - Appellant
v.
JAMES GILGER
Defendant
TEXAS DEPARTMENT OF ASSISTIVE AND REHABILITATIVE SERVICES
Defendant - Appellee
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Appeal from the United States District Court
for the Western District of Texas, Austin
No. 1:04-CV-442
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Before KING, GARZA, and OWEN, Circuit Judges.
PER CURIAM:*
Plaintiff-appellant Marie Pfau appeals the summary judgment
granted by the district court in favor of defendant-appellee
Texas Department of Assistive and Rehabilitative Services
(“DARS”) on Pfau’s retaliation case under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq. We note as a
*
Pursuant to 5TH CIR. R. 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that this opinion should not be published and is not precedent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 CIR. R.
47.5.4.
preliminary matter that Pfau’s response to the portion of DARS’
motion for summary judgment relating to the retaliation claim
fails to discharge her burden of producing evidence of the
existence of a genuine issue for trial. In showing that there is
such an issue, the nonmovant must “go beyond the pleadings and
designate specific facts.” Little v. Liquid Air Corp., 37 F.3d
1069, 1075 (5th Cir. 1994) (en banc) (per curiam). That burden
cannot be met with conclusory statements, speculation, and
unsubstantiated assertions because these do not show a genuine
issue of material fact. Further, we can look only to the summary
judgment record before the trial court. Topalian v. Ehrman, 954
F.2d 1125, 1132 n.10 (5th Cir. 1992). The parties cannot
“advance new theories or raise new issues to secure reversal,”
nor can they “add exhibits, depositions, or affidavits to support
their positions on appeal.” Id. While Pfau’s appellate brief
cites to evidence and controlling case law, her response to the
motion for summary judgment, which totaled four pages, is a
different matter. Only one paragraph was devoted to the
retaliation claim, and it contained mostly speculative,
conclusory statements. Although she did attach 80 pages of
evidence, Pfau did not designate specific facts or pieces of
evidence showing a genuine issue for trial.
Pretermitting the problems with Pfau’s response to the
portion of DARS’ motion addressing Pfau’s prima facie case, we
turn to the next step in the McDonnell Douglas analysis. Once a
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plaintiff establishes a prima facie case there is an inference of
retaliation. The burden of production then shifts to the
defendant who must articulate a legitimate non-discriminatory
reason for the challenged action. DARS’ motion for summary
judgment asserts (and, from an evidentiary standpoint,
substantiates) that Arrell had a legitimate, non-discriminatory
reason for firing Pfau - that Pfau was discharged because Arrell
perceived that Pfau was unsuited for her position for the reason
that her failure to revise her project, as ordered, the day
before a board meeting constituted gross insubordination. Once
DARS produced evidence of a legitimate, non-discriminatory reason
for its decision, “the inference of discrimination introduced by
the plaintiff’s prima facie showing then drops from the case.”
Evans v. City of Houston, 246 F.3d 344, 354 (5th Cir. 2001).
Then the court must address the ultimate question, whether the
employer unlawfully retaliated against the employee. In this
case, the question is whether Pfau has shown that the adverse
employment decision “would not have occurred ‘but for’” her
participation in the allegedly protected activity, here the
investigation of the sexual harassment charge against Gilger.
Pfau cannot necessarily answer this question by merely disputing
DARS’ assessment of her work performance. The key question is
whether the employer’s perception of Pfau’s work performance,
“‘accurate or not, was the real reason for her termination.’” Id.3
at 355 (quoting Shackelford v. Deloitte & Touche, LLP, 190 F.3d
398, 408-09)(5th Cir. 1999)).
Pfau’s response to DARS’ motion for summary judgment does
not come close to establishing that retaliation was the ‘but for’
reason for the termination. The district court properly held
that “Pfau presents no evidence whatsoever that DARS proffered
reason for her termination is pretextual, and that her
involvement in the investigation was a ‘but-for’ cause of her
termination. Pfau only speculates that ‘it is unbelievable that
[she] would be discharged for a so-called refusal without any
conversation or any prior disciplinary action.’” Thus, the
district court properly granted DARS’ motion for summary
judgment.
The judgment of the district court is AFFIRMED.
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