Keckley v. Univ of Texas ( 1996 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-50491
Summary Calendar
_____________________
MARY KECKLEY
Plaintiff - Appellant
v.
THE UNIVERSITY OF TEXAS AT EL PASO
Defendant - Appellee
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
(EP-94-CV-148)
_________________________________________________________________
June 21, 1996
Before KING, GARWOOD, and DENNIS, Circuit Judges.
PER CURIAM:*
Mary Keckley brought suit under Title VII against the
University of Texas at El Paso. She appeals the district court’s
granting of UTEP’s motion for judgment as a matter of law. We
*
Pursuant to Local 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that this opinion should not be published and is not precedent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 Local Rule
47.5.4.
1
affirm.
I. BACKGROUND
Keckley was employed by UTEP as an Associate University
Librarian. She was dismissed from her position in 1993. UTEP
maintains that Keckley was dismissed because of her attitude and
job performance. Keckley claims that she was dismissed because
she protested an order by UTEP administrators to implement an
improper hiring practice.
Dr. John Bruhn, UTEP’s Vice President for Academic Affairs,
testified that in October 1991 he became aware of employee
dissatisfaction in the library. In a memo to Dr. Roberto
Villarreal, Associate Vice President for Academic Affairs, dated
June 23, 1992, Bruhn stated that he felt that Keckley might be
causing problems in the library and he asked Villarreal to
investigate the situation. In this memo, Bruhn also introduced
the idea of hiring an Hispanic to fill a vacant library
administrative position and he asked Villarreal to mention this
to University Librarian Robert Seal.1
1
Bruhn’s hand-written note read as follows:
6/23
Roberto Villarreal
(1) At the Directors meeting yesterday there was a
great deal of discussion about the library’s lack of a
Hispanic in their higher administration. At present
Bob Seal has a[n] ad out to fill a higher level vacancy
-- it was the expressed feeling of the group that if he
2
Keckley was a member of the search committee appointed to
evaluate applicants for the vacant position. On June 24, 1992,
Villarreal sent a memo to Seal--Keckley’s immediate supervisor--
informing him that the vacant library administrative position
should be filled by an Hispanic. When Keckley was told that the
committee could not consider anyone who was not of Hispanic
origin, she objected to this directive and told Seal that she
believed it to be unlawful. Keckley testified that she
complained to Seal about the directive between six and twelve
times. After that, however, she did not bring up the subject
again. Rather, she participated in the hiring process as it
proceeded in accordance with the directive. Keckley did not
complain to anyone other than Seal about the directive and she
did not complain in writing or make use of the university’s
grievance process.
During Villarreal’s investigation of the library, he spoke
with sixteen library employees. The job assignments of the
cannot find a Hispanic he should not fill the position
-- would you call him and discuss this concern --
(2) Sunday, when I was at the library, Juan Sandoval,
pulled me aside to discuss his dissatisfaction with
“how things are going at the library” -- apparently
with Bob Seal’s not feeling well, Mary Keckley has
assumed more control in running the library -- she does
not have good people skills and I guess is causing
problems -- could you do some detective work (and maybe
visit with Juan Sandoval and others as you see fit) --
we need to get to the bottom of what the problem is and
what we can do about it -- Thanks
John
3
people he spoke with ranged from upper-level administration to
non-professional positions. Villarreal received certain negative
comments about Keckley and other library administrators.2 In a
report to Bruhn dated August 17, 1992, Villarreal stated, inter
alia: “It seems embarrassingly clear that Mary Keckley is unfit
to lead. . . . No member of the library has a kind word to say
about her administrative skills. . . . [T]o the contrary,
Keckley has (perhaps unintentionally) greatly contributed to an
environment of fear and horror.” Villarreal also was critical of
Seal and two other top library administrators, Gary Ives and Mary
Kelley.3
After reviewing Villarreal’s report, Bruhn sent a memo to
Seal summarizing his concerns. On October 1, 1992, Seal
submitted a detailed plan for rectifying the problems in the
2
The notes taken by Villarreal during his investigation
reflected that some employees felt Keckley was “too
authoritarian” and that she created an “ambiance of distrust” and
“suspicion.” Other comments recorded in the notes indicated that
some of the employees believed that Keckley was the “biggest
problem” and that she “created a climate of stress.”
3
Villarreal found that the library had “poor,
insensitive and sometimes heavy-handed” leadership at the top, a
“constant turnover of personnel,” and a “lack of Hispanic
representation.” Villarreal evaluated Ives, in particular, as
one who is “highly feared and disliked” and “seems not to fit
into a leadership position.”
4
library and Bruhn approved it.4 As part of his plan, Seal
visited with and interviewed more than thirty members of the
library staff, including Keckley and Ives.
Keckley was Ives’s primary supervisor and Seal turned to her
for assistance in dealing with Ives. Ives had not only been the
subject of criticism by staffers who spoke with Villarreal, but
in August 1992 a complaint against him was filed with UTEP’s
equal opportunity office.5 Keckley testified that she knew that
Ives was being counseled by Seal and that they were unhappy with
each other. She told Seal that she did not agree with the way he
was handling Ives.
On November 23, 1992, Sebastian Diaz, an Hispanic, was
selected to fill the vacant administrative position in the
library. In December 1992, Seal concluded the staff interviews
he had undertaken as part of his plan to rectify problems in the
4
At trial, Bruhn testified that among the eight
strategies outlined by Seal were the following:
1 was to meet with library administrators, Keckley and
Kelley, to plan a strategy for changing staff
perceptions that administration is sometimes autocratic
and insensitive. . . . Strategy 3, meet with the
entire staff individually to candidly ask what’s right
and what’s wrong with the library and ask for their
suggestions. Strategy 4, meet with department and
section heads and stress the importance of listening to
staff and seeking their input on issues.
5
Library employee Armando Dominguez charged Ives with
discriminating against Hispanics. Rebecca Salcido, director of
UTEP’s equal opportunity office, investigated the complaint.
Although she determined that a number of employees were unhappy
with Ives and Keckley, she found no evidence of discrimination.
5
library. On January 6, 1993, Seal notified Keckley in a letter
that her employment would not be renewed in August 1993. Seal
testified that the decision not to renew Keckley’s employment was
made by him alone. He justified his decision by explaining that
he and Keckley were “no longer an adequate working team.” Seal
informed Bruhn that Keckley was not a team player and that she
was in part responsible for problems in the library. He wrote to
Dr. Diana Natalicio, UTEP’s president, that Keckley should not be
renewed because of her “negativity” and lack of “interpersonal”
skills.
On May 12, 1994, Keckley filed an original complaint against
UTEP in the United States District Court for the Western District
of Texas.6 Asserting that her employment with UTEP had been
terminated in retaliation for her “advocacy of rights of
protected racial groups,” Keckley sought declaratory relief and
money damages pursuant to 42 U.S.C. §§ 1981, and 2000d & 2000e
(Titles VI and VII).
UTEP moved for summary judgment arguing, inter alia, that
Keckley had established no causal connection between her
participation in a protected activity and UTEP’s decision not to
renew her employment. The district court granted in part and
denied in part UTEP’s motion for summary judgment. The court
6
Keckley amended her complaint to add President
Natalicio as a defendant but later agreed to dismiss Natalicio
from the suit. Keckley also did not restate previously asserted
state law claims in her amended complaint.
6
dismissed Keckley’s Title VI claim, but allowed her Title VII
retaliation claim to proceed to trial.
The case went to trial before a jury on June 5, 1995. The
next day, after Keckley had closed her case in chief, UTEP moved
for judgment as a matter of law and the district court granted
the motion. On June 7, 1995, the district court entered judgment
denying Keckley’s claim. Keckley timely filed a notice of
appeal.
II. ANALYSIS
We review the district court's ruling on a motion for
judgment as a matter of law de novo, applying the same legal
standard as did the trial court. Conkling v. Turner, 18 F.3d
1285, 1300 (5th Cir. 1994); Omnitech Int'l, Inc. v. Clorox Co.,
11 F.3d 1316, 1322-23 (5th Cir.), cert. denied, 115 S. Ct. 71
(1994). Judgment as a matter of law is proper after "a party has
been fully heard on an issue and there is no legally sufficient
evidentiary basis for a reasonable jury to have found for that
party with respect to that issue." Fed. R. Civ. P. 50(a). In
evaluating such a motion, we view the entire trial record in the
light most favorable to the non-movant and draw all inferences in
its favor. Conkling, 18 F.3d at 1300; Omnitech, 11 F.3d at 1322-
23. "The decision to grant a directed verdict is not a matter of
discretion, but a conclusion of law based upon a finding that
7
there is insufficient evidence to create a fact question for the
jury." Conkling, 18 F.3d at 1300; Omnitech, 11 F.3d at 1322-23
(citations, ellipsis, and internal quotation marks omitted).
The Supreme Court set forth the basic order of proof in
discrimination cases brought under Title VII of the Civil Rights
Act of 1964 in McDonnell Douglas Corp. V. Green, 411 U.S. 792
(1973). In a Title VII retaliation case, as in any other action
in which the plaintiff seeks to enforce rights under a statute,
the plaintiff is required to carry the initial burden of
establishing facts sufficient to warrant recovery. Armstrong v.
City of Dallas, 997 F.2d 62, 65 (5th Cir. 1993). A plaintiff
establishes a prima facie case by demonstrating that: (1) she
participated in a statutorily protected activity; (2) she was the
object of an adverse employment action; and (3) there was a
causal connection between the protected activity and the adverse
action. Id.
Once the prima facie case is established, a rebuttable
presumption, or inference, of discrimination arises. Id. (“More
recently the [Supreme] Court has described this as an
inference.”). At this point, under the burden-shifting framework
established in McDonnell, the defendant bears the burden of
articulating a legitimate, nondiscriminatory business reason for
the challenged action. Mayberry v. Vought Aircraft Co., 55 F.3d
1086, 1089 (5th Cir. 1995). If the defendant demonstrates such a
reason, the burden shifts back to the plaintiff to prove by a
8
preponderance of the evidence that the defendant’s proffered
reasons were a pretext for retaliation. Texas Dep’t of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981); Grizzle v.
Travelers Health Network, Inc., 14 F.3d 261, 267 (5th Cir. 1994).
In the instant case, the parties agree that Keckley met the
first two elements of a prima facie case under Title VII. A
directive to exclude all job applicants except Hispanics from
consideration for the vacant library administrative position
would be improper. Keckley’s objection to such a hiring policy
satisfied the first element--that she participated in a
statutorily protected activity. The decision not to renew
Keckley’s employment met the second element--that Keckley was the
object of an adverse employment action. UTEP contends, however,
and the district court agreed, that Keckley failed to satisfy the
third element of the prima facie case: She failed to show a
causal connection between her objection to the hiring directive
and UTEP’s decision not to renew her employment. Keckley argues
on appeal that the circumstantial evidence presented at trial
established the necessary causal connection for a prima facie
case.
We need not address this issue, however, because we find
that Keckley ultimately failed to present evidence sufficient to
convince a reasonable finder of fact that UTEP’s proffered
reasons for Keckley’s dismissal were pretextual. Assuming that
Keckley established a prima facie case, UTEP had ”the burden of
9
producing evidence that the adverse employment actions were taken
for a legitimate, nondiscriminatory reason.” St. Mary’s, 113 S.
Ct. at 2747 (citation and internal quotation marks omitted).
UTEP met their burden of production by offering a legitimate
reason for the decision not to renew Keckley’s employment: UTEP
maintained that Keckley was discharged because she did not
support Seal in his efforts to remedy the morale problems in the
library and, in particular, because she opposed his handling of
Ives.7
“[W]here, as here, the employer offers a legitimate,
nondiscriminatory explanation for the adverse action, the burden
is on the employee to show that the explanation is merely a
pretext for discrimination.” Armstrong, 997 F.2d at 67. To show
that the proffered explanation was pretextual Keckley was
required to show that “but for” her objection to the improper
hiring directive she would not have been discharged. Ray v.
Tandem Computers, Inc., 63 F.3d 429, 435 (5th Cir. 1995).
Keckley was required to show that her protected activity was a
“significant factor” in UTEP’s decision not to renew her.
7
UTEP satisfied its burden of production,
notwithstanding the fact that the district court granted UTEP’s
motion for judgment as a matter of law after the close of
Keckley’s case in chief and before the presentation of UTEP’s
case in chief. See McDaniel v. Temple Indep. Sch. Dist., 770
F.2d 1340, 1346-47 n.3 (5th Cir. 1985) (“The defendant can
produce its legitimate [nondiscriminatory] reason during the
plaintiff’s case either through adverse witnesses, express
statements by the plaintiff, or documentary evidence.”).
10
Walsdorf v. Board of Comm’rs, 857 F.2d 1047, 1052 (5th Cir. 1988)
(citations omitted). The ultimate issue is whether there was
sufficient evidence for a reasonable finder of fact to conclude
that Keckley’s opposition to Seal and the ill will she had
engendered among many of the library staffers were pretexts, and
that the true reason for her dismissal was retaliation for her
complaints to Seal about the hiring directive. Grizzle, 14 F.3d
at 267.
A review of the entire record convinces us that no
reasonable factfinder could find that the reasons offered by UTEP
were pretexts for discrimination. Keckley testified that she
voiced her opposition to the hiring directive only to Seal, that
Seal agreed with her concerns, and that after her initial
opposition she participated in the hiring process without further
complaint.8 Moreover, Keckley’s complaints about the hiring
directive were predated by Bruhn’s June 23, 1992 memo to
Villarreal noting employee dissatisfaction with Keckley: “Mary
Keckley . . . does not have good people skills and I guess is
8
Keckley testified that she did not complain in writing
or avail herself of UTEP’s established grievance process. She
did not make her concerns known to Bruhn, Villarreal, Salcido, or
President Natalicio.
Furthermore, by the time Keckley was notified that her
employment would not be renewed, the hiring decision had been
moot for six weeks and neither Seal or anyone else at UTEP had
any reason to fear that Keckley would interfere with the hiring
process: On November 23, 1992, Diaz was selected by the search
committee to fill the vacant administrative library position;
Keckley was notified in January 1993 that her employment would
not be renewed.
11
causing problems.” In a letter to President Natalicio explaining
his reasons for not renewing Keckley’s employment, Seal stated:
“Her [Keckley’s] negativity and interpersonal skills have created
a great deal of ill will among the library staff.”9 Considerable
evidence adduced at trial indicated that Keckley was disliked by
a number of library staffers.10 Furthermore, Keckley testified
9
Seal testified that he decided not to renew Keckley’s
employment because she did not support him, he felt she was not
happy, third parties had complained about her, and he was not
getting along with her personally.
10
Salcido, director of UTEP’s equal opportunity office,
testified that she received comments from administrative
employees of the library about the “heavy handedness” of Keckley.
Admitted into evidence was Bruhn’s note to Villarreal dated
June 24, 1992, including the passage about Juan Sandoval’s
dissatisfaction with the way Keckley was running the library in
Seal’s absence. Additionally, Bruhn testified that Salcido sent
him a copy of her report expressing “great concerns about the
problems in the library that related to the management of the
library.”
Notes taken during Villarreal’s interviews with sixteen
library staffers were admitted at trial. As read by Villarreal
during his testimony, the notes reflected that: Esperanza Morena
described Keckley’s management style as “[a]uthoritarian,
creating an ambience of distrust, suspicion.” Jim Crouch felt,
“[t]hat she got threatened easily. . . . That she was
indecisive.” Tony Rodarte noted in Keckley an “[u]nwillingness
to change. . . . Wants her way only . . . . Hard to approach.”
According to John Wayne Smith, “She never admitted fault. Her
errors were passed to others.” Mary Genesk felt that Keckley
“was conceded, ugly, unchristian. Very picky. Makes people feel
nervous.” B. J. Albert noted that “[s]he carried grudges. Once
you make a mistake, she never forgets. She has everyone in
fear.” Juan Gonzales felt that “[Keckley] was the biggest
problem [in the library]. . . . There is no way to turn to her
for solutions to problems. . . . People were afraid of her.”
Armando Dominguez said “[t]hat Ms. Keckley made their lives
miserable.”
Villarreal’s report to Bruhn dated August 17, 1992, admitted
into evidence at trial, included the following findings regarding
Keckley:
12
that she was not supportive of Seal in his attempts to work out
problems with Ives.
We have stated that judgment as a matter of law “is
appropriate in the employment retaliation context when the jury
could improperly draw inferences that are mere speculation.”
Grizzle, 14 F.3d at 268-69 (affirming judgment notwithstanding
the verdict in favor of employer where employee failed to
establish that her discharge was in retaliation for her alleged
complaints of illegal discrimination). The instant case is an
example of such a situation.11 We find insufficient evidence
that but for Keckley’s opposition to the hiring directive, UTEP
It seems embarrassingly clear that Ms. Keckley is unfit
to lead. Her approach with dealing with personal
problems has proven disastrous, and it seems that she
operates in a state of fear and suspicion. It is
unfortunate, but no member of the library has a kind
word to say about her administrative skills. To the
contrary, Keckley has (perhaps unintentionally) greatly
contributed to an environment of fear and horror.
Certainly the creation of a “reign of terror” lies with
Seal and her.
11
We agree with the following determination of the
district court:
It’s [Keckley’s] burden by a preponderance of the
evidence to prove that, but for what she describes as
her protest or complaint about an illegal employment
policy or practice, that she would have had her
contract renewed. And there is basically no evidence
of that in my view, or if there is any, it’s so
insufficient it’s not enough to even go to the jury.
Even though it is unusual and somewhat extraordinary to
grant a motion for judgment as a matter of law without
letting the jury deliberate, this is one of those rare
cases where it should be done.
13
would have renewed her employment. We conclude, therefore, that
Keckley cannot prevail on her Title VII claim because she failed
to demonstrate that UTEP’s articulated reasons for discharging
her were pretextual.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the
district court.
14