Susan Pennington v. Texas Health & Human Service

Filing

REVISED UNPUBLISHED OPINION FILED. [7050803-2] [11-50003]

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REVISED
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

FILED
No. 11-50003

March 29, 2012
Lyle W. Cayce
Clerk

SUSAN PENNINGTON,
Plaintiff-Appellant
v.
THE TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES,
Defendant-Appellee

Appeal from the United States District Court for the
Western District of Texas
USDC No. 1:09-cv-00287

Before BENAVIDES, STEWART, and GRAVES, Circuit Judges.
Benavides, Circuit Judge:*
Plaintiff-Appellant Susan Pennington (“Pennington”) brings suit against
the Texas Department of Family and Protective Services (“DFPS”), alleging that
she was subject to a hostile work environment, and that she was forced to resign
in retaliation for opposing race and sex discrimination, all in violation of Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The district court

*

Pursuant to FIFTH 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should not be published and is not precedent except under the limited circumstances set forth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 FIFTH CIRCUIT RULE 47.5.4.

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granted summary judgment in favor of the DFPS on all claims. Pennington now
appeals the district court’s ruling as to her retaliation claim.
I. FACTUAL AND PROCEDURAL BACKGROUND
Pennington was hired as a Division Manager at DFPS on February 26,
2007. Heather Shiels (“Shiels”), the Director of the Residential Contract Unit
at DFPS, hired Pennington and was also her immediate supervisor. Shiels, in
turn, reported to Jeannie Coale (“Coale”), the Assistant Commissioner of
Purchased Client Services. Pennington supervised fifteen residential contract
managers located across Texas. As a new hire, Pennington had to serve a 12month probationary period, during which time DFPS could dismiss her without
advance notice or cause.
Soon after Pennington joined the DFPS, in March 2007, Shiels asked her
to hire a new residential contract manager for the San Antonio DFPS office.
Shiels told Pennington that the San Antonio office had suffered a high turnover
and needed stability. Pennington interviewed four candidates for the position,
and ranked Donna Rash (“Rash”) as the top candidate.

Pennington had

supervised Rash at another agency, and thought she was the best fit for the job.
Rash was pregnant at the time of the interview, which Pennington knew. She
also knew that Rash lived in Taylor, Texas, east of Austin, and thus would have
a considerable commute to the DFPS office in San Antonio.
On March 28, 2007, Pennington told Shiels that she had chosen Rash for
the San Antonio position. From this point forward, the parties tell very different
versions of what happened over the next few months. Pennington claims that
Shiels said she had heard Rash was pregnant, and angrily confronted
Pennington, saying “What are you thinking? A pregnant woman cannot handle
the workload, you know what our workload is like. A pregnant woman can’t do
this job.” Pennington says that she responded by praising Rash’s experience and
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competence, noting that she had worked with Rash before and felt she was the
best candidate for the job. At this time, Pennington did not make any comments
to Shiels about discrimination, because she did not want to anger Shiels further.
Shiels claims, however, that she did not know Rash was pregnant, and that she
was only concerned about the distance Rash lived from San Antonio. Because
she was dissatisfied with Pennington’s choice, Shiels called to check the
references for the next candidate on the list, but the references were not positive.
Over the next week, Pennington alleges that she discussed hiring Rash
several more times with Shiels, and that on at least one occasion, she told Shiels
“words to the effect that ‘we can’t not hire Donna because she’s pregnant, it’s a
civil rights issue,’ or ‘it’s blatant discrimination.’” On April 6, 2007, a week after
Pennington had selected Rash as a residential contract manager in San Antonio,
Shiels approved the hire.
At the same time that Rash was being interviewed and hired, Shiels voiced
concerns with Pennington’s job performance, including her failure to complete
assignments on-time and to communicate with Shiels regarding the status of
assignments. On March 29, 2007, Shiels had a conference with Pennington
regarding her job performance and workplace attitude. Then on April 4, 2007,
Shiels sent an email to John Adamo (“Adamo”), legal counsel for DFPS, to
discuss her concerns about Pennington and inquire about her options for
disciplinary action. Shiels and Adamo met on the following day and after their
meeting, Shiels began to document Pennington’s performance problems. Shiels
also requested feedback from another employee regarding Pennington’s
performance, and the feedback was at times negative.
In late April or early May of 2007, DFPS internally posted a position for
an opening in the Austin field office, and Rash asked Pennington if she could
apply. As a new hire, DFPS policy required that Rash serve a probationary
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period of one year, during which time she could not apply and compete for
internal open positions unless the new position would result in an increase in
pay or the Commissioner approved a waiver of the policy as being in the best
interest of the agency. The Austin position would not have meant an increase
in pay for Rash, and would have been essentially a lateral transfer. Rash had
not framed the request to Pennington as an accommodation for her pregnancy,
but simply as desirable because it was closer to her home. Therefore, when
Pennington approached Shiels regarding Rash’s request, she did not relate the
transfer to Rash’s pregnancy.

Pennington alleges that Shiels responded,

“absolutely not,” and told Pennington that Rash was her hire and she would
“have to pick up [Rash’s] slack.”
Later in May 2007, Rash again approached Pennington about transferring
to the Austin office.

This time, Rash said that her obstetrician had

recommended that she travel less in her last trimester of pregnancy.
Pennington was nervous about approaching Shiels again regarding Rash’s
request, and she researched the DFPS policies before bringing the matter to
Shiels’s attention. According to Pennington, Shiels got very angry and allegedly
“said words to the effect of ‘I told you she couldn’t do the job. A pregnant – a
pregnant woman can’t be a Contract Manager.’” Pennington states that she
“knew this was discrimination but . . . did not argue with [Shiels],” and instead
“tried to be positive.”
Pennington followed up on her conversation with Shiels by sending her an
email requesting a management-directed transfer for Rash as a reasonable
accommodation for her pregnancy complications.

She says that she also

provided Shiels with a note from Rash’s doctor recommending that Rash reduce
her driving and stay close to Austin. Rash testified that she gave the doctor’s
note to Pennington, but Shiels testified that she did not receive a note until the
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end of June. DFPS produced a copy of the June note, but neither party produced
the note from May.
Shiels responded to Pennington in an email dated May 23, 2007, in which
she said that Rash could not transfer to Austin until her probationary period
was over. Shiels did not mention that Rash was seeking the transfer as a
reasonable accommodation, and testifies that the request was not framed as an
accommodation for pregnancy-related medical complications and was not
accompanied by any medical documentation. Shiels also emphasized the need
for the San Antonio office to have stability. Pennington was frustrated by this
response, and she met with Shiels again regarding accommodating Rash.
Pennington states that she believed Shiels was discriminating against Rash
because of her pregnancy, and says that she told Shiels it was a “civil rights
issue.” Shiels allegedly became angry again, and would not discuss the matter
further.

Pennington tried to approach Coale about Rash’s request for an

accommodation, but Coale refused to discuss it.
Pennington states that Shiels increased her scrutiny of both Pennington
and Rash after the May request for an accommodation, including accusing
Pennington of allowing Rash to work from home and a local office, and requiring
Rash to submit an accounting of all of her work hours, assignments, and
locations. Pennington testifies that she never allowed Rash to work from home
or a local office, while DFPS has produced a document written by another
employee stating that she heard that Rash had been working from home or in
an Austin-area DFPS office at times.
After doing further research regarding DFPS policies, Pennington located
a Reasonable Accommodation Request form online and forwarded it to Rash to
fill out. Pennington also discussed the proper procedures for making a request
with Orlando Smith (“Smith”) in the Health and Human Services Commission
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(“HHSC”) Office of Civil Rights, then added her information and signature to
Rash’s Reasonable Accommodation Request and forwarded it with a second
doctor’s note to Shiels on June 29, 2007. This email appears in the record. On
the same day, Pennington tried to discuss the matter with Coales, as Shiels was
out of the office and Pennington feared the request would cause controversy
when Shiels returned. Again, Coale stopped Pennington, told her it was Shiels’s
decision, and would not discuss the request.
On Thursday, July 5, 2007, Pennington had not received a response from
either Shiels or Coale regarding Rash’s accommodation request, so she
forwarded it to Smith in the Office of Civil Rights. The following day, Shiels met
with Pennington and told her: “I’ve had enough of you going to my supervisor
about me.” Shiels gave Pennington the choice of voluntarily resigning or being
terminated. Shiels said she would put in writing that Pennington was resigning
“for the good of the unit,” and agreed to pay her for all of her accrued
compensatory time if she voluntarily resigned. Pennington chose to resign, and
remained a DFPS employee through August 1, 2007. Shiels testified that she
did not know that Pennington had submitted the Reasonable Accommodation
Request to the Office of Civil Rights until after her resignation.
In addition to alleging that DFPS retaliated against her for opposing
pregnancy discrimination against Rash, Pennington alleges that the retaliation
was in response to her opposition to race discrimination. In early June 2007,
Pennington came across a budget spreadsheet that she felt showed that AfricanAmerican employees in the division made significantly less money that nonminority employees. She asked the team lead and another employee if there
were legitimate reasons they were paid less, such as length of employment or job
performance. Shortly after speaking with them, Pennington alleges that Shiels
came into her office “in a rage,” slammed the door, knocked things off her desk,
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and yelled “words to the effect of ‘what are you doing and why are you asking
questions about these employees?’” Pennington testifies that she replied that
the spreadsheet seemed to show compensation discrimination, and that “Ms.
Shiels shouted or screamed words to the effect that they . . . were lazy and
acceptant of their salaries and if they wanted more, they could apply for a job
somewhere else.” Shiels denied being hostile, and testified that she was not
upset that Pennington was complaining about inequitable compensation, but
because she was sharing salary information with peers, which Shiels felt was
inappropriate.
Pennington filed suit against HHSC and DFPS on April 15, 2009. Her
claims against HHSC were dismissed without prejudice and Pennington filed an
amended complaint against DFPS, alleging that DFPS subjected her to a hostile
work environment and terminated her in retaliation for her opposition to
discrimination, in violation of Title VII. DFPS filed a motion for summary
judgment, and on November 23, 2010, the district court granted the motion. The
court found that Pennington had failed to make out a prima facie case of
retaliation, and that even if she had made out a prima facie case, she had failed
to show that DFPS’s proffered reason for its action was pretext. The district
court also held that Pennington had failed to present evidence sufficient to
establish that she was subjected to a hostile work environment. Pennington
timely appealed, challenging only the district court’s grant of summary judgment
on her retaliation claim.
II. STANDARD OF REVIEW
We review a district court’s grant of summary judgment de novo and apply
the same standard as the district court. Holt v. State Farm Fire & Cas. Co., 627
F.3d 188, 191 (5th Cir. 2010). Under that standard, summary judgment is
appropriate when “there is no genuine dispute as to any material fact and the
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movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). When
reviewing a motion for summary judgment, we construe all the evidence and
reasonable inferences in the light most favorable to the nonmoving party.
Amazing Spaces, Inc. v. Metro Mini Storage, 608 F.3d 225, 234 (5th Cir. 2010)
(quoting Xtreme Lashes, LLC v. Xtended Beauty, Inc., 576 F.3d 221, 226 (5th Cir.
2009)).
III. ANALYSIS
When a plaintiff alleges retaliation in violation of Title VII, a court applies
the McDonnell Douglas burden-shifting framework. McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973); LeMaire v. La. Dept. of Transp. and Dev., 480 F.3d
383, 388 (5th Cir. 2007); Byers v. Dallas Morning News, Inc., 209 F.3d 419, 427
(5th Cir. 2000). Under that framework, the plaintiff must first make out a prima
facie case of retaliation, which requires showing that (1) she engaged in a
protected activity; (2) she suffered an adverse employment action; and (3) a
causal link exists between her activity and the employment action. McCoy v.
City of Shreveport, 492 F.3d 551, 556-57 (5th Cir. 2007). Once the plaintiff
makes a prima facie showing, the burden shifts to the employer to articulate a
legitimate, nonretaliatory reason for the adverse employment action. Id. at 557.
If the employer meets this burden of production, then the burden shifts back to
the plaintiff to show that the employer’s proffered explanation is a pretext for
retaliation. Byers, 209 F.3d at 427. At this stage, “a plaintiff must show that the
adverse employment action would not have occurred ‘but for’ the protected
activity in order to prove unlawful retaliation.” Long v. Eastfield Coll., 88 F.3d
300, 308 (5th Cir. 1996) (citation omitted).
Here, Pennington argues that she presented sufficient evidence to
establish both a prima facie case of retaliation, and to raise a material issue of

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fact as to whether DFPS’s proffered reasons for her constructive discharge were
a pretext for discrimination. DFPS responds that the district court properly
granted summary judgment because Pennington failed to show that she engaged
in protected activity, or that a causal nexus exists between any alleged protected
activity and her discharge. Furthermore, DFPS agrees with the district court
that Pennington failed to demonstrate that its reasons for constructively
discharging her were pretextual.
As previously stated, the district court found that Pennington had failed
to make out a prima facie case of retaliation, but went on to hold that even if she
had successfully presented a prima facie case, she did not show that DFPS’s
proffered reasons for her constructive discharge were pretext for retaliation.
Since our disposition on pretext is determinative on appeal, we express no
opinions with respect to the district court’s findings as to Pennington’s prima
facie case.
The district court held that “Pennington has made no showing that she
would not have been constructively discharged but for her assisting Rash in
filing her accommodation request or her opposition to discriminatory practices.”
The court found that Pennington’s subjective belief that she was asked to resign
in retaliation for her opposition to discrimination was insufficient to survive
summary judgment. The court also found that Pennington admitted that she
often felt overwhelmed by the amount of work she was expected to perform, and
that she had trouble meeting deadlines set by Shiels, such that she “concede[d]
she could not meet her supervisor’s performance expectations.” Finally, the
district court held that Pennington had offered no additional evidence beyond
the temporal proximity between her protected activity and her constructive
discharge to support a finding of pretext, such that her claim could not survive
summary judgment.
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At the pretext stage, “the only question . . . is whether the evidence of
retaliation, in its totality, supports an inference of retaliation.” Shackelford v.
Deloitte & Touche, LLP, 190 F.3d 398, 407 (5th Cir. 1999). As stated earlier, the
plaintiff must show that the employer’s adverse action would not have occurred
“but for” her protected activities. Evans v. City of Hous., 246 F.3d 344, 354 (5th
Cir. 2001); Shackelford, 190 F.3d at 409; Long, 88 F.3d at 308. One way a
plaintiff shows but-for causation is by providing “[p]roof that the defendant’s
explanation is unworthy of credence.” Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 147 (2000). “Thus, a plaintiff’s prima facie case, combined
with sufficient evidence to find that the employer’s asserted justification is false,
may permit the trier of fact to conclude that the employer unlawfully
[retaliated].” Id. at 148; see also St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,
511 (1993).
We agree with the district court that Pennington has produced insufficient
evidence to show pretext, and to therefore permit an inference of retaliation. As
the district court found, Pennington admitted that she often had difficulty
meeting deadlines set by Shiels, and that she at times felt overwhelmed. While
Pennington also testified that she felt that she performed “[e]xtremely well” in
her position, Pennington’s personal belief regarding her job performance is
insufficient to raise a fact issue regarding DFPS’s proffered reasons for its
action. See Mire v. Texas Plumbing Supply Co., Inc., 286 F. App’x 138, 144 (5th
Cir. 2008) (per curiam).
As part of its justification for constructively discharging Pennington, DFPS
presented multiple examples of Pennington’s performance deficiencies during
her employment, including: Pennington mishandled the processing of a contract
and the enactment of a contract suspension on April 3, 2007, and May 31, 2007;

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Pennington failed to notify staff of a conference call; Pennington failed to timely
send out a contract to committee members; on multiple occasions, Pennington
did not adequately review contracts before forwarding them to Shiels; on July
3, 2007, Pennington instigated a confrontation between two contract managers
under her supervision; and, Pennington attempted to discuss work-related issues
with Coale, rather than going to Shiels first. Pennington fails to deny the
majority of these deficiencies, instead providing excuses. For instance, on April
9, 2007, Shiels ordered Pennington to send out a draft contract to committee
members before Pennington left town, which Pennington agreed to do.
Pennington admits that she did not send out the contract, but says that she did
so because members of the committee requested more time to review the
contract. Similarly, Pennington admits that she may have sent contracts to
Shiels with errors in them, but she states that, “[g]iven the large number of
contracts, emergency or rush situations, the number of staff involved and the
nature of the process, it was simply an unavoidable possibility that Shiels caught
an occasional error.” The only DFPS allegation that Pennington denies is that
she failed to inform staff members of the planned conference call; otherwise, she
offers no evidence to dispute DFPS’s criticisms of her job performance.
In her attempt to show pretext, Pennington relies on temporal proximity
and Shiels’s comments to Pennington when Pennington was forced to resign.
Pennington points out that DFPS terminated her three days after she sent a
copy of Rash’s formal reasonable accommodation request to Shiels, and that her
termination also occurred close in time to other protected activity in which she
engaged. This Court has held, however, that timing alone cannot establish
pretext, once an employer has furnished a legitimate, nonretaliatory reason for
its actions. See Hernandez v. Yellow Transp., Inc., 670 F.3d 644, ___ (5th Cir.
2012); Roberson v. Alltel Infor. Serv., 373 F.3d 647, 656 (5th Cir. 2004).
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According to Pennington, Shiels’s alleged statement, “I’ve had enough of you
going to my supervisor about me,” serves as further evidence of pretext.
Pennington sought to speak with Coale two times, and on both occasions she
attempted to discuss Rash’s request for an accommodation. Thus, Pennington
alleges that despite DFPS’s assertion that her various missteps on the job were
the reasons for her constructive discharge, the only reason allegedly given by
Shiels at the time of the discharge was an action related to Pennington’s
protected activity. However, Shiels’s statement is consistent with previous
warnings she gave Pennington to bring problems she had with the unit directly
to Shiels, instead of going over Shiels’s head to Coale. It is also consistent with
DFPS’s proffered reasons for constructively discharging Pennington. Rather
than provide “[p]roof that the defendant’s explanation is unworthy of credence,”
Shiels’s statement bolsters DFPS’s defense. Reeves, 530 U.S. at 147. We
therefore find that Pennington has failed to offer “other significant evidence of
pretext.” Shackelford, 190 F.3d at 409.
Likewise, Pennington has failed to overcome her burden of showing
pretext, and has failed to show that her opposition to race discrimination was
the real reason for her constructive discharge.

She voiced her concerns

regarding minority employee pay differentials in June 2007, and was
constructively discharged the following month. Beyond temporal proximity, she
has produced no evidence that suggests that her opposition to race
discrimination was the “but-for” cause for her constructive discharge. “Temporal
proximity, standing alone, is not enough” to create a material issue of fact
regarding the reason for DFPS’s adverse employment action. Hernandez, 670
F.3d at ___.
“[T]he ultimate issue on summary judgment is whether [Pennington]
produced evidence which could support a finding that she would not have been
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fired in the absence of her having engaged in protected conduct.” Shackelford,
190 F.3d at 409. Pennington’s subjective belief that she was the victim of
retaliation, even if that belief is genuine, is insufficient to carry her case without
further evidence of pretext. Sherrod v. Sears, Roebuck & Co., 785 F.2d 1312,
1316 (5th Cir. 1986); Elliott v. Group Medical & Surgical Service, 714 F.2d 556,
567 (5th Cir. 1983). Furthermore, it is not this Court’s place to determine
whether DFPS’s expectations of Pennington were reasonable, and we will not
“second-guess the business decisions of an employer, so long as those decisions
are not the result of discrimination.” Jackson v. Watkins, 619 F.3d 463, 468 n.5
(5th Cir. 2010) (per curiam). Accordingly, summary judgment in favor of DFPS
was appropriate.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the district court.
Carl E. Stewart, Circuit Judge, concurs in the judgment only.

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