Campbell v. England , 234 F. App'x 183 ( 2007 )

United States Court of Appeals
Fifth Circuit
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT FILED
May 17, 2007
Charles R. Fulbruge III
No. 05-30847 Clerk
CHARLIE J CAMPBELL
Plaintiff - Appellee
v.
GORDON R ENGLAND, Secretary, United States Department of the Navy
Defendant - Appellant
Appeal from the United States District Court
for the Eastern District of Louisiana, New Orleans
USDC No. 2:02-CV-3254
Before KING, DAVIS, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Defendant-appellant Gordon England, the Secretary of the
Navy, appeals the district court’s denial of his post-verdict
motion for judgment as a matter of law. The Secretary contends
that plaintiff-appellee Charlie Campbell presented insufficient
evidence to support the jury’s verdict for Campbell on his Title
VII retaliation claim. Specifically, the Secretary argues that
*
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this opinion should not be published and is not precedent except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.
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the evidence fails to establish a causal connection between
Campbell’s 1997 filing of an Equal Employment Opportunity
complaint and the Navy’s 2001 decision to require an engineering
degree for a position that Campbell sought, which excluded
Campbell from consideration. We agree, and REVERSE and RENDER
judgment for the Secretary of the Navy.
I. Factual and Procedural Background
Plaintiff-appellee Charlie Campbell, a civilian engineering
technician for the Navy Supervisor of Shipbuilding in Pascagoula,
Mississippi, applied in 1997 for a promotion to become manager of
the Quality Assurance Department. Although the job had only been
available to engineers in prior years, the Navy decided to
advertise it as available to both engineers and engineering
technicians. But despite being rated one of five “best
qualified” applicants, Campbell was ultimately not selected, and
an engineer, Ronald Glenn, was selected instead. Campbell, an
African-American, filed an Equal Employment Opportunity (“EEO”)
complaint that year alleging that he was not selected because of
his race.
Around 2000, the Navy merged the Quality Assurance
Department with the Production Controller Department, which was
also supervised by an engineer. Glenn remained as manager of the
surviving department.1 Towards the end of the year, Commander
1
After the departments were combined in the merger, the
2
Mary Logsdon came to the Pascagoula facility in a supervisory
role, and Campbell told her about his prior EEO complaint shortly
after she began working there.
Approximately five or six months later, around February
2001, Glenn told Logsdon that he was retiring. Logsdon knew that
both engineers and engineering technicians had been able to apply
for the position in 1997, but she decided to limit the
availability of the position to engineers after checking with a
Navy lawyer and supervisors to make sure that the
reclassification was allowed. One effect of reclassifying the
job was that Campbell could not apply. The job was advertised
nationally and was ultimately filled by Brian Johnston, an
engineer who worked in Campbell’s department.
Believing that Logsdon reclassified the job in retaliation
for his 1997 EEO complaint, Campbell sued the Secretary of the
Navy in October 2002 alleging, inter alia, retaliatory
discrimination in violation of Title VII, 42 U.S.C. § 2000e-3(a).
After a three-day trial, the jury returned a verdict for Campbell
on this claim and awarded him $500,000 in compensatory damages.2
surviving department was apparently named the Waterfront
Operations Department, but the name was subsequently changed back
to Quality Assurance Department.
2
The jury found against Campbell on his Title VII claim
that the Navy discriminated against him based on his race when it
3
The district court granted the Secretary’s motion to alter or
amend judgment, remitting the damages to $96,000, but denied the
Secretary’s motion for judgment as a matter of law. The
Secretary timely appealed.
II. DISCUSSION
The Secretary contends that the district court erred in
denying his motion for judgment as a matter of law because
Campbell failed to offer any evidence showing a causal connection
between his 1997 EEO complaint and the 2001 reclassification of
the position he sought. The district court denied the motion
because it believed that a fact-finder could infer retaliatory
intent from Logsdon’s knowledge of the 1997 job application and
EEO complaint, Logsdon’s understanding that the effect of the
reclassification would be to exclude Campbell from applying for
the job again, and the substantial overlap between the current
position and the one for which Campbell was deemed among the
“best qualified” in 1997.
We review de novo the district court’s denial of the
Secretary’s motion for judgment as a matter of law, applying the
same standards as the district court. Adams v. Groesbeck Indep.
Sch. Dist., 475 F.3d 688, 690 (5th Cir. 2007). In this inquiry,
we “draw all reasonable inferences and resolve all credibility
determinations in the light most favorable to the nonmoving
failed to promote him to manager in 1997.
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party.” Id. (internal quotation marks and citation omitted).
Moreover, the jury verdict is afforded great deference and must
be upheld unless “a reasonable jury would not have a legally
sufficient evidentiary basis to find for the” nonmovant. FED. R.
CIV. P. 50(a)(1); Adams, 475 F.3d at 690.
“Title VII prohibits retaliation against employees who
engage in protected conduct, such as the filing of a charge of”
race discrimination. Fabela v. Socorro Indep. Sch. Dist., 329
F.3d 409, 414 (5th Cir. 2003); see also 42 U.S.C. § 2000e-3(a).
To establish a retaliation claim under Title VII, a plaintiff
must demonstrate (1) that he 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.3 Fabela, 329 F.3d at 414. Only the third
3
When analyzing Title VII retaliation cases that have not
reached a jury, courts apply the burden-shifting framework
detailed in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Once the case has been fully tried, this framework
becomes unimportant, and a court “need not . . . parse the
evidence into discrete segments corresponding to a prima facie
case, an articulation of a legitimate, [nonretaliatory] reason
for the employer’s decision, and a showing of pretext.”
Rubinstein v. Adm’rs of the Tulane Educ. Fund, 218 F.3d 392, 402
(5th Cir. 2000). The question instead becomes “whether the
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element is at issue in this appeal.
Causation can be established through direct or
circumstantial evidence. Id. at 414-15; Septimus v. Univ. of
Houston, 399 F.3d 601, 607-08 (5th Cir. 2005). If direct
evidence is used, the plaintiff need only establish that improper
retaliation was a motivating factor in the adverse employment
action. Fabela, 329 F.3d at 415. If circumstantial evidence is
used, this circuit has required that the plaintiff prove to a
jury “that the adverse employment action taken against the
plaintiff would not have occurred ‘but for’ [his] protected
conduct.”4 Septimus, 399 F.3d at 608. The plaintiff may do so
record contains sufficient evidence to support the jury’s
ultimate findings.” Bryant v. Compass Group USA Inc., 413 F.3d
471, 476 (5th Cir. 2005) (internal quotation marks and citation
omitted).
4
It is now established that in Title VII discrimination
cases, a plaintiff need only meet the “motivating factor”
standard even if the plaintiff is adducing only circumstantial
evidence. See Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003);
Rachid v. Jack in the Box, Inc., 376 F.3d 305 (5th Cir. 2004).
This circuit has not yet considered whether the holdings of these
cases should be extended to Title VII retaliation cases. See
Septimus, 399 F.3d at 607 n.7. However, we do not address this
issue here, as neither party has raised it, and, in any event,
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by proving that the employer’s purported nonretaliatory reasons
for the employment action are pretextual and that retaliation was
the real reason. See id. at 607; Mato v. Baldauf, 267 F.3d 444,
452 (5th Cir. 2001). However, “[t]he plaintiff must rebut each
[nonretaliatory] reason articulated by the employer.” Laxton v.
Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003).
The record does not reflect that Campbell presented any
direct evidence of retaliation, which is defined as evidence that
“if believed, proves the fact [in question] without inference or
presumption.” Fabela, 329 F.3d at 415 (internal quotation marks
and citation omitted). The question, then, construing all
evidence in the light most favorable to Campbell, is whether
sufficient evidence existed for a reasonable jury to find that
the position Campbell sought would not have been reclassified but
for his earlier EEO complaint or whether sufficient evidence of
pretext existed to allow a reasonable jury to draw that
this case was tried as a pretext case and the jury was instructed
as to “but for” causation on the retaliation claim. See id. at
607-08 (holding that the “but for” causation standard applied in
a Title VII retaliation case without considering the effect of
Desert Palace and Rachid because the case was litigated and tried
as a pretext case). Although the jury was instructed as to the
“motivating factor” standard, that instruction related only to
Campbell’s unsuccessful race discrimination claim.
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inference.
Logsdon, the undisputed decisionmaker who reclassified the
position, gave three related nonretaliatory reasons for limiting
the job to engineers. She testified that after the Quality
Assurance Department and Production Controller Department merged,
the manager responsible for the surviving department had expanded
job duties placing a greater emphasis on the technical aspects of
the job. Logsdon, who is a degreed engineer herself, also
testified that other areas of her job needed her focus and that
she was less able to give the newly combined department as much
oversight as it needed, so she felt that she needed a degreed
engineer in the position. Finally, she testified that the
supervising aspects of the manager’s job require assigning work
to engineers and checking their work and that she did not think
that an engineering technician should be checking the work of a
degreed engineer.
The crux of Campbell’s pretext argument in the district
court was that he was rated among the five “best qualified”
candidates for the manager position in 1997 and that the job that
opened in 2001 was essentially the same job, meaning that
Logsdon’s claim of needing someone with an engineering degree to
handle the expanded job duties in 2001 was untrue. However, in
an analogous retaliation case in which an employee challenged her
employer’s requirement of a Ph.D. for a certain job, supported by
witnesses establishing that most of the job duties were ones that
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the plaintiff employee had been successfully performing for
years, this court emphatically stated that “anti-discrimination
laws are not vehicles for judicial second-guessing of business
decisions.” Mato, 267 F.3d at 452 (internal quotation marks and
citation omitted). The court held that the employee and her
witnesses had “done nothing more than register their disagreement
with [her boss’s] business plans,” which was insufficient to show
pretext. Id. Similarly, this court has deferred to an
employer’s chosen set of job qualifications unless “no reasonable
employer would have made the same decision.” Rios v. Rossotti,
252 F.3d 375, 380 (5th Cir. 2001) (quoting Deines v. Texas Dep’t
of Protective & Regulatory Servs., 164 F.3d 277, 281 (5th Cir.
1999)). Accepting as we must Campbell’s testimony that an
engineering degree is unnecessary to do the work of a manager,
the evidence remains insufficient to call into doubt Logsdon’s
belief that a degreed engineer was preferable or to show that no
reasonable employer would have preferred an engineering degree.
Moreover, the evidence presented by Campbell at trial fails
to contradict Logsdon’s explanation as to why she preferred an
engineer for the role. Campbell’s evidence mainly shows that a
non-engineer would be capable of doing the management job and
that he in particular is very capable of performing the job
duties. For example, Campbell testified that Glenn, who got the
manager job in 1997, and Brian Johnston, who got the job in 2001,
were doing the same sorts of things that engineering technicians
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did and that they were not doing engineering work. Further, a
coworker of Campbell’s testified that the managers did not
perform true engineering work like making calculations or
designs, but rather placed people on jobs and set priorities for
the department. Additionally, the Navy’s 1997 job description of
the position for which Campbell was rated among the five “best
qualified” listed a variety of required technical skills and
Logsdon testified that the 2001 job description sought similar
skills, leading to the inference that Campbell was qualified to
perform the type of skills required for the job that opened in
2001.
However, Logsdon testified that she sought an engineer in
2001 not because the basic skills needed for the management job
were different from those required for the 1997 job or those
possessed by engineering technicians, but rather because the
departmental merger placed a greater emphasis on the technical
aspects of the job. In fact, Logsdon pointed to percentages that
were typed next to the different aspects of the 1997 job
description and said that they changed for the 2001 job. Mere
disbelief of a witness’s testimony, without supporting evidence,
is insufficient to carry a plaintiff’s burden, Mato, 267 F.3d at
451-52, and none of Campbell’s evidence calls into doubt
Logsdon’s belief that the merger brought more of a technical
focus to the management job, even if the fundamental skills
needed for the job were unchanged. Nor does any evidence
10
challenge Logsdon’s testimony that she had less time available to
oversee the department herself and that she preferred relying on
a degreed engineer rather than a technician to run the
department. Campbell may have proved that an engineering degree
was unnecessary and that he could have performed the job well
himself, but he failed to identify any evidence that shows that
Logsdon’s preference for a degreed engineer was phony and merely
a pretext for retaliation against Campbell.
Campbell also argued to the district court that Logsdon
began looking into reclassifying the position only five or six
months after she found out about his 1997 EEO complaint,
establishing temporal proximity between the protected activity
and the reclassification from which causation can be inferred.
But while close timing between an employee’s protected activity
and an adverse employment action can establish a prima facie case
of retaliation, close timing alone is insufficient to establish
pretext. See Strong v. Univ. HealthCare Sys., 482 F.3d 802, 808
(5th Cir. 2007); Swanson v. Gen. Servs. Admin., 110 F.3d 1180,
1188 (5th Cir. 1997). Additionally, it is not clear that a five-
or six-month time lapse would be sufficient to draw such an
inference, as this circuit has only allowed lapses of up to four
months to go to the jury as evidence of pretext, Evans v. City of
Houston, 246 F.3d 344, 354 (5th Cir. 2001), and the Supreme Court
has cited with approval cases holding that three- and four-month
spans were too long to show pretext, Clark County Sch. Dist. v.
11
Breeden, 532 U.S. 268, 273 (2001). And in this case it is
undisputed that Logsdon’s thoughts of reclassifying the job began
after the prior job occupant decided to retire, which Logsdon
only found out about five or six months after Campbell told her
of his 1997 complaint, making any inference of pretext from the
timing alone far less reasonable.
Campbell further argued that Logsdon testified that she
discussed his EEO complaint with her supervisors in connection
with the reclassification decision, leading to the inference that
the acts were related. As the trial transcript shows, however,
Logsdon explicitly denied that she did so, stating only that she
talked to a lawyer and her supervisors about whether limiting the
position to engineers was allowed.
Finally, Campbell argued that Logsdon’s decision conflicts
with Navy personnel regulations. At most, though, this indicates
that Logsdon incorrectly determined that she was allowed to limit
the job to engineers, not that she was motivated by retaliation
against Campbell because of his 1997 EEO complaint. Logsdon
testified that she believed that the reclassification was allowed
and checked with a Navy lawyer and her supervisors to ensure that
it was, and Campbell identifies no evidence to the contrary.
In sum, insufficient evidence existed for a reasonable jury
to determine that Logsdon’s reasons for reclassifying the
management position were pretextual or that but for Campbell’s
1997 EEO complaint, the job would have remained open in 2001 to
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engineering technicians.
III. Conclusion
For the foregoing reasons, we REVERSE the district court’s
denial of the Secretary’s motion for judgment as a matter of law
and RENDER judgment in favor of the Secretary of the Navy.
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