Plumbar v. South Texas College Of Law

Filing 36

MEMORANDUM AND OPINION granting 28 First MOTION for Summary Judgment. Final judgment is entered by separate order. (Signed by Chief Judge Lee H Rosenthal) Parties notified. (wbostic, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

JOSEPH KELLY PLUMBAR,
Plaintiff,

July 03, 2017
David J. Bradley, Clerk

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§

VS.

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SOUTH TEXAS COLLEGE OF LAW,

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CIVIL ACTION NO. H-16-129

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Defendant.

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MEMORANDUM AND OPINION
Joseph Plumbar started working as an Acquisition and Reference Librarian for the South
Texas College of Law in December 2012. In 2014, Plumbar complained to his supervisors that he
thought he was being paid less than his white coworkers and asked for an increase. His request was
denied. That same year, Plumbar asked that his full-time position be converted to part-time. That
request was granted. His part-time duties were primarily to staff a reference desk in the law school's
library. In December of that year, his position was terminated. Plumbar sued, alleging that he was
paid less than his coworkers because of his race and that his position was terminated based on race
and retaliation for his complaint about pay, in violation of Title VII and 42 U.S.C. § 1981. South
Texas College of Law responded that it eliminated Plumbar's position based on an anticipated
budget shortfall that required cost savings. South Texas asserted that it cut Plumbar's position after
examining the demand for reference-desk services during the day and evening hours and learning
that the demand was low during the Thursday evening and Saturday hours Plumbar worked.
After discovery, South Texas College of Law moved for summary judgment, Plumbar
responded, and South Texas replied. (Docket Entry Nos. 28, 32, 34). Based on a careful review of

the motion, response, and reply; the record; and the relevant law, the court grants South Texas
College of Law's summary judgment motion. (Docket Entry No. 28). The reasons for the rulings
are set out below, and final judgment is separately entered.
I.

Background 1

South Texas College of Law hired Joseph Plumbar in December 2012 to work as an
Acquisition and Reference Librarian in the Fred Parks Library. (Docket Entry No. 32, Ex. A at~ 1).
Plumbar worked full-time until the summer of2014. (!d.

at~

3). His job duties included staffing

the library's reference desk, ordering new materials for the library, and maintaining the materials
budget. (!d.

at~

4;Docket Entry No. 28, Ex. 1A).

Sometime in 2014, 2 Plumbar complained about what he perceived as his racially disparate
pay. He complained to his direct supervisor, Mary Lippold, Vice President and Director ofLibrary

1

The summary judgment record evidence includes affidavits from Stephen Alderman, Vice
President of Human Resources and General Counsel for South Texas College of Law (Docket Entry No. 28,
Ex. I); Mary Lippold, Associate Director of Administrative Services for the Fred Parks Law Library at South
Texas College ofLaw (ld., Ex. 2); Miles Bradshaw, counsel for South Texas College ofLaw in this suit(/d.,
Ex. 3); and Joseph Plumbar, the plaintiff (Docket Entry No. 32, Ex. A). The record evidence also includes
deposition excerpts from the plaintiff, Joseph Plumbar (Docket Entry No. 28, Ex. 3A; Docket Entry No. 32,
Ex. B); Mary Lippold (Docket Entry No. 28, Ex. 3B; Docket Entry No. 32, Ex. C); and Steve Alderman
(Docket Entry No. 28, Ex. 3C). The record evidence also includes an email exchange between Mary Lippold
and Steve Alderman (Docket Entry No. 32, Ex. D), and the pay-grade chart for the South Texas College of
Law (/d., Ex. E).
2

Plum bar stated that he first complained about what he perceived as racially disparate compensation
in June 2014. (Docket Entry No. 32, Ex. A at~ 7). Stephen Alderman, Vice President ofHuman Resources
and General Counsel for the school, stated that Cowan informed him ofPlumbar's complaints that he was
paid Jess than his peers "sometime before June 2014," but that Cowan did not inform Alderman until
"sometime in 2014" after Alderman met with Plumbar that Plumbar thought that the disparate pay was
because of his race. (Docket Entry No. 28, Ex. 1 at~~ 4, 6). This factual dispute does not preclude granting
the summary judgment motion.

2

Services. 3 (Docket Entry No. 32, Ex. A at ~ 7). Lippold told Plumbar to take his complaint to
David Cowan, Director of the library at the time. (!d.). Cowan told Plumbar that his pay was set
using the American Association of Law Libraries Survey standards, and that his pay was proper
considering his job description and responsibilities and his experience as a professional librarian.

(!d.). Plumbar asked to meet with Stephen Alderman, Vice President of Human Resources and
General Counsel for South Texas College of Law. (!d.; Docket Entry No. 28, Ex. 1 at~ 5). During
that meeting, Plumbar argued that the American Association of Law Libraries Survey supported an
increase in his pay. (Docket Entry No. 28, Ex. 1

at~

5). Alderman disagreed, explaining that

Plumbar's position corresponded to several different job categories on the Survey and that his pay
was properly set based on those categories. (!d.). Alderman and Plum bar dispute whether Plumbar
complained about race discrimination in his pay during this meeting. (Compare id. with Docket
Entry No. 32, Ex. A

at~

7). Alderman does not dispute that he knew Plumbar had told Cowan of

his belief that his salary-increase request was denied because of his race. (Docket Entry No. 28, Ex.
1 at~ 6).
In June 2014, Plumbar asked to reduce his full-time position to part-time so he could
concentrate on his private law practice. (Docket Entry No. 28, Ex. 1 at

~

7). His request was

approved, and Plumbar became a part-time employee in July 2014. (!d.). Plumbar's part-time
schedule included staffing the reference desk on Thursday evenings and Saturday during the day.

(!d., Ex. 2 at ~ 8).

3

Lippold stated that Plumbar complained that "other people were making more than he was," but
that she was unaware of any racial discrimination claims with respect to his compensation. (Docket Entry
No. 32, Ex. Cat 62-63; Docket Entry No. 28, Ex. 2 at~ 9). This factual dispute does not preclude granting
the summary judgment motion.

3

In the summer of 2014, Cowan retired as Director of Library Services. (Id.

at~

6). Mary

Lippold, Associate Director of Administrator Services, and Monica Ortale, Associate Director of
Public Services, were made co-directors ofthe library until a new director was found. (Jd.). In the
fall of2014, South Texas faced a budget shortfall in the coming fiscal year. ((Docket Entry No. 28,
Ex. 1 at~ 8). Lippold and Ortale were directed to "be conscious of cost savings in every aspect of
the library." (Id.; Ex. 1A; Ex. 2 at

~

7). After reviewing the trends in the demand for library

reference services at different times, Lippold and Ortale decided to cut Plumbar's hours from the
reference desk because low demand made it unnecessary to provide reference services during those
times. (Id., Ex. 2 at~ 8). Lippold told Alderman that because of the low demand for the reference
librarian's services on Thursday evenings and weekends, she recommended terminating Plumbar.

(Id., Ex. 1 at

~

8). Alderman approved the decision. (Id.). Plum bar was notified on December 5,

2014 that his position was terminated. (Id. at ~ 9).
On June 4, 2015, Plumbar filed a discrimination charge with the EEOC, alleging race
discrimination and retaliation in violation of Title VII. The EEOC issued a right-to-sue letter on
October 16,2015. On January 15,2016, Plumbar filed this suit. He alleges that he was paid less
based on race discrimination and that he was terminated based on both race discrimination and
retaliation for complaining about his disparate pay, in violation of Title VII and 42 U.S.C. § 1981.
(Docket Entry Nos. 1, 23). South Texas moves for summary judgment on the basis that Plumbar's
position was terminated based on budget cuts, a legitimate nondiscriminatory and nonretaliatory
reason. 4 The parties' arguments and the record evidence are analyzed under the applicable legal

4

South Texas also moves for summary judgment on the ground that the amount Plumbar was paid
was based on legitimate, nondiscriminatory criteria. Although Plum bar alleges that he was paid less because

4

standards.

II.

The Summary Judgment Standard
"Summary judgment is required when 'the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter oflaw. '" Trent v. Wade, 776
F.3d 368, 376 (5th Cir. 2015) (quoting FED. R. CIV. P. 56(a)). "A genuine dispute of material fact
exists when the 'evidence is such that a reasonable jury could return a verdict for the nonmoving
party."' Nola Spice Designs, LLCv. Haydel Enters., Inc.,783 F.3d 527,536 (5th Cir. 2015) (quoting

Anderson v. Liberty Lobby, 4 77 U.S. 242, 248 (1986)). "The moving party 'bears the initial
responsibility of informing the district court of the basis for its motion, and identifying those portions
of [the record] which it believes demonstrate the absence of a genuine issue of material fact."' !d.
(quoting EEOC v. LHC Grp., Inc., 773 F.3d 688, 694 (5th Cir. 2014)); see also Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986).
"Where the non-movant bears the burden of proof at trial, the movant may merely point to
the absence of evidence and thereby shift to the non-movant the burden of demonstrating by
competent summary judgment proof that there is an issue of material fact warranting trial." !d.
(quotation marks omitted); see also Celotex, 477 U.S. at 325. Although the party moving for
summary judgment must demonstrate the absence of a genuine issue of material fact, it does not need
to negate the elements of the nonmovant's case. Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540
(5th Cir. 2005). "A fact is 'material' if its resolution in favor of one party might affect the outcome

of his race in his complaint, he did not assert a stand alone disparate-pay claim. Plum bar made it clear in his
response to the summary judgment motion that the gravamen of his disparate-treatment claim was his
allegedly unlawful termination, not the disparate pay. He relies on his disparate-pay allegations as evidence
supporting his discriminatory and retaliatory termination claims.

5

I

ofthe lawsuit under governing law." Sossamon v. Lone Star State ofTexas, 560 F.3d 316,326 (5th
Cir. 2009) (quotation omitted). "If the moving party fails to meet [its] initial burden, the motion [for
summary judgment] must be denied, regardless of the nonmovant's response." United States v.

$92,203.00 in US. Currency, 537 F.3d 504,507 (5th Cir. 2008) (quoting Little v. Liquid Air Corp.,
37 F.3d 1069, 1075 (5th Cir. 1994) (en bane)).
"Once the moving party [meets its initial burden], the non-moving party must 'go beyond the
pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions
on file, designate specific facts showing that there is a genuine issue fortrial. "' Nola Spice, 783 F.3d
at 536 (quoting EEOC, 773 F.3d at 694). The nonmovant must identify specific evidence in the
record and articulate how that evidence supports that party's claim. Baranowski v. Hart, 486 F.3d
112, 119 (5th Cir. 2007). "This burden will not be satisfied by 'some metaphysical doubt as to the
material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of
evidence."' Boudreaux, 402 F.3d at 540 (quoting Little, 37 F.3d at 1075). In deciding a summaryjudgment motion, the court draws all reasonable inferences in the light most favorable to the
nonmoving party. Connors v. Graves, 538 F.3d 373, 376 (5th Cir. 2008); see also Nola Spice, 783
F.3d at 536.

III.

Analysis
A.

Employment Discrimination
1.

The Legal Standard

Claims of racial discrimination under 42 U.S.C. § 1981 are analyzed under the same
evidentiary framework as claims of employment discrimination under Title VII. Finley v. Florida

6

Par. Juvenile Det. Ctr., 574 F. App'x 402,404 (5th Cir. 2014) (citing LaPierre v. Benson Nissan,
Inc., 86 F.3d 444, 448 n. 2 (5th Cir.l996)). Employment discrimination in violation of Title VII can
be proved by either direct or circumstantial evidence. Russell v. McKinney Hasp. Venture, 235 F.3d
219, 222 (5th Cir. 2000). Evidence is direct if it would prove the fact in question without inference
or presumption. Fabela v. Socorro Indep. Sch. Dist., 329 F.3d 409,415 (5th Cir. 2003) (citations
omitted). If no direct evidence exists, the court uses the familiar burden-shifting framework in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), to determine whether summary
judgment is appropriate. See Davis v. Dallas Area Rapid Transit, 383 F.3d 309,316 (5th Cir. 2004).
The legal standard is well settled:
To survive summary judgment under McDonnell Douglas, the
plaintiff must first present evidence of a prima facie case of
discrimination. If the plaintiff presents a prima facie case,
discrimination is presumed, and the burden shifts to the employer to
articulate a legitimate, nondiscriminatory reason for the underlying
employment action. If the employer is able to state a legitimate
rationale for its employment action, the inference of discrimination
disappears and the plaintiff must present evidence that the employer's
proffered reason was mere pretext for racial discrimination.
Davis, 383 F.3d at 317 (citations omitted).
The elements of a prima facie showing of discrimination are that the plaintiff: ( 1) is a
member of a protected class; (2) was qualified for the position; (3) was subject to an adverse
employment action; and (4) was replaced by someone outside the protected class or, in the case of
disparate treatment, was treated more harshly than others who were similarly situated. Okoye v.
Univ. ofTex. Hous. Health Sci. Ctr., 245 F.3d 507, 512-13 (5th Cir. 2001).
The defendant's burden of articulating a legitimate, nondiscriminatory reason for its adverse
employment action is a burden of production, not persuasion. See St. Mary's Honor Ctr. v. Hicks,

7

509 U.S. 502, 506-07 (5th Cir. 1993). The "ultimate burden of persuading the trier of fact that the
defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff."

!d. at 507 (internal citations and quotation marks omitted). The defendant must produce "admissible
evidence, . . . which, if believed by the trier of fact, would support a finding that unlawful
discrimination was not the cause of the employment action." Id. at 507.
If the employer meets its burden, the prima facie case dissolves, and the burden shifts back
to the plaintiff to raise a fact dispute material to determining either: (1) that the employer's proffered
reason is not true but is instead a pretext for discrimination; or (2) that the employer's reason, while
true, is not the only reason for its conduct, and another "motivating factor" is the plaintiffs protected
characteristic. Vaughn, 665 F.3d at 636 (quoting Rachidv. Jack in the Box, Inc., 376 F.3d 305,312
(5th Cir. 2004)); see also Price v. Fed. Express Corp., 283 F.3d 715, 720 (5th Cir. 2002) ("On
summary judgment ... the plaintiff must substantiate his claim of pretext through evidence
demonstrating that discrimination lay at the heart ofthe employer's decision."). "Once a Title VII
case reaches the pretext stage, the only question on summary judgment is whether there is a conflict
in substantial evidence to create a jury question regarding discrimination." Shackelford, 190 F.3d
at 404.
When evaluating pretext, the focus is on the employer's motivation for the adverse
employment action, not whether the employer acted wisely or based its decision on an accurate
understanding of the facts. Title VII does not require objectively fair-minded or well-reasoned
business decisions. It does require that employers refrain from making business decisions on a
prohibited basis, including race discrimination or retaliation for protected conduct. LeMaire v.

8

Louisiana Dep't ofTransp. & Dev., 480 F.3d 383, 391 (5th Cir. 2007). It is not enough for a
plaintiffto show a material factual dispute as to whether the company's decision to take an adverse
employment action against her was good business, or to show that the employer was wrong about
the underlying facts. The question is whether the employer had a good-faith belief that the facts that
motivated the adverse action were true and warranted the action. Jackson v. Cal-W Packaging

Corp., 602 F.3d 374, 379 (5th Cir. 2010).
2.

Discussion

Plumbar has shown three of the four elements of a prima facie case of discrimination: he is
a member of a protected class; he had the minimum qualifications for his position; and he suffered
an adverse employment action when he was terminated in December 2014. (Docket Entry No. 28
at 9). South Texas contends that Plumbar cannot show the fourth element of a prima facie case
because his position was eliminated and never filled, and therefore he was not replaced by someone
outside the protected class. Plumbar contends that because his position was the only one eliminated
and his job duties were assigned to non-African American librarians, he has made a prima facie
showing of discrimination.
Plumbar relies on Howard v. United Parcel Serv., Inc., 447 F. App'x 626 (5th Cir. 2011),
to support his argument. In that case, the plaintiffs position was eliminated, he was demoted, and
all ofhisjob duties were absorbed. !d. at 627-28. His job duties were absorbed by a white manager.

!d. at 628. The defendant employer argued that because the plaintiffs position was eliminated and
no one was hired to replace him, the plaintiff could not make a prima facie showing of
discrimination. !d. at 629 n.2. The court rejected that argument because the plaintiffs position was

9

the only one eliminated and all of his job duties were assumed by someone outside the protected
class. !d.
Plumber has neither presented nor pointed to evidence that all of his job duties were assumed
by a single employee outside the protected class. The email between Lippold and Alderman that
Plumbar presents in support of his argument weighs against it. In that email, Lippold wrote that
because the library intended to end reference desk services after 6:00p.m. on weeknights and not
provide services Saturday-most of the hours Plumbar worked-there would be no need for Plumbar
or anyone else. (Docket Entry No. 32, Ex. D). Plumbar did work on Friday afternoons, and the
reference desk would remain open then. Other librarians would be rotated in to cover the desk on
Friday afternoons, but this was a small percentage of the hours Plumbar had worked in his part-time
position. (!d.). Most of his reference-desk hours were eliminated, and the few hours he worked that
remained were assigned to several other librarians.
This case is similar to Griffin v. Kennard Indep. Sch. Dist., 567 F. App'x 293, 294-95 (5th
Cir. 2014). In Griffin, the plaintiffs worked as custodians for the defendant school district and
performed bus-driving duties before and after school. !d. at 293. Budget cuts led to changes in the
custodial schedules that eliminated the plaintiffs' bus-driving duties. !d. at 293-94. Those duties
were reassigned among the other bus drivers. !d. at 294. The Fifth Circuit found that the plaintiffs
were not "replaced" by someone outside their protected class. !d. at 294-295. "We have held that
an employee has not been 'replaced' ... when his former duties are distributed among other
co-workers." !d. So too here. Plumbar cannot show that he was "replaced" by someone outside the
protected class when the fraction of his duties that remained were distributed among several

10

coworkers.
Plumbar alternatively argues that he satisfies the fourth element of the prima facie showing
because other similarly situated employees were treated more favorably than he was. Plumbar points
to two employee, Barbara Szalkowski and Heather Kushnerik, whose positions survived the fall
2014 budget cuts. Neither is similarly situated to Plumbar. Both Szalkowski and Kushnerik were
full-time employees; Plumbar was part-time. Szalkowski and Kushnerik had substantially different
job duties than Plumbar. (Docket Entry No. 32, Ex. Bat 29-31). Szalkowski was a Senior Catalog
Librarian, and Kushnerik was a Special Collections Librarian. (!d.). Both could step in to staffthe
reference desk if needed, but staffing the reference desk on Thursday evenings and Saturdays during
the day was Plumbar's primary job responsibility. In Morris v. Town of Indep., 827 F.3d 396 (5th
Cir. 20 16), the court found that the plaintiff's proffered comparator was not similarly situated
because the plaintiff was part-time and the comparator was full-time, they had different job
responsibilities, and the plaintiff had been the subject of verbal complaints about her performance,
but the comparator had not. !d. at 40 1-402; see also id. at 401 n.17 (citing Johnson v. Univ. ofIowa,
431 F.3d 325, 330 (8th Cir. 2005) ("Generally, part-time employees are not similarly situated to
full-time employees."); Ilhardt v. Sara Lee Corp., 118 F .3d 1151, 1155 (7th Cir.l997) ("[F]ull-time
employees are simply not similarly situated to part-time employees.")). Because neither Szalkowski
nor Kushnerik is similarly situated to Plumbar, he has not made a prima facie showing of race
discrimination in his termination.
Even assuming that Plum bar had made a prima facie showing, South Texas has proffered a
legitimate, nondiscriminatory reason for terminating Plumbar. South Texas presents competent

11

summary judgment evidence that it faced a 2015 fiscal year budget shortfall and in the fall of2014
made institution-wide cuts to decrease costs. (Docket Entry No. 28, Ex. 1 at ,-r 8). Lippold and
Ortale, the interim co-directors of the library, were instructed to be "conscious" of cost savings in
the library. (!d., Ex. 2 at ,-r 7). In response to the anticipated budget shortfall and the directive to be
conscious of cost savings, Lippold and Ortale examined the patterns of demand for reference-desk
services and found that it was low on Thursday evenings and Saturdays. (!d. at ,-r,-r 7-8). At those
times, the library was used primarily as a place to study for tests and finals rather than for research.
(Id.). Lippold and Ortale concluded that there was no need to staff the library reference desk on

Thursday evenings or Saturdays. (Id.). These were the bulk of Plumbar' s work hours. (Id. at ,-r 8).
There was such a reduced need for his position that it could easily be eliminated, and it was. (Id. at
,-r,-r 7-8; I d., Ex. 1 at ,-r 8). Budgetary constraints are a well-recognized legitimate nondiscriminatory
reason for eliminating a position. See Cooper v. Dall. Police Ass 'n, 278 F. App'x 318, 320 (5th Cir.
2008) (cost cuts were as a legitimate, nonretaliatory reason for the adverse employment action);
Fierros v. Tex. Dep 't of Health, 247 F. App'x 478,479 (5th Cir. 2007) (a budget shortfall satisfied

the defendant's burden of presenting a legitimate nondiscriminatory reason for the adverse
employment action).
Plumbar argues that the anticpated budget shortfall and resulting cost-consciousness were
a pretext for discrimination because he was the only library employee whose position was terminated
during this time, and because the library was "fully funded" until August 2015. South Texas does
not dispute these facts, but they do not support an inference that Plumbar' s termination was a pretext
for race discrimination or that discrimination was a motivating factor in the termination decision.

12

Plumbar does not dispute that the law school anticipated a budget shortfall or that the administration
instructed the library directors to be conscious of cost savings, but he denies that there a "true budget
crisis." (Docket Entry No. 32, Ex. Bat 40-41 ). The record evidence Plumbar cites does not support
his argument. The documents he cites state that while there was a budget in place for the coming
fiscal year, Lippold was instructed to "watch spending," (!d., Ex. C at 46-4 7), and to be "conscious
of cost savings in every aspect of the library." 5 (Docket Entry No. 28, Ex. 2 at~ 7). And although
Plumbar was the only library employee whose position was eliminated at that time, three other
employees at South Texas College of Law had their jobs eliminated and were terminated during the
fall of2014. (/d., Ex. 3C at 19-21). Plumbar cites no cases, and the court has found none, stating
that an employer must have implemented a formal reduction-in-force or be on the verge of financial
collapse to terminate positions and employees to cut costs in order to avoid or lessen a budget
shortfall.
The cases Plumbar does cite presented far more evidence than he identifies here that the
employer's legitimate nondiscriminatory reason was a pretext or motivating factor for a
discriminatory employment action. See Mercer v. Arbor E & T, LLC, No. 11-CV-3600, 2013 WL
164107, at

*12 (S.D.

Tex. Jan. 15, 2013) (the employer's accounts of the plaintiffs demotion

inconsistently included demoting her because ofher choice, because the employer wanted to replace

5

Plumbar also argues that Lippold lacked the budgetary knowledge to implement cost-saving
measures. This argument is a non-starter and a mischaracterization of the record evidence. Reading
Lippold's statements in context shows that when she stated that she only had control over a small part of the
budget was in her prior role when Cowan was still the director and were not made about her role as interim
co-director. (Docket Entry No. 32, Ex. C at 20-23, 27, 45). In her affidavit, and other parts of her
deposition, Lippold makes clear that as interim co-director she was tasked with managing the library budget
as a whole. (Docket Entry No. 28, Ex. 2 at~~ 6-9).

13

her with a more qualified employee, and as a disciplinary measure; the employer failed to follow its
own demotion procedures in her case; and the evidence of the circumstances inconsistently included
a budget shortfall, a lack of need for the plaintiffs position, and that the plaintiff did not actually
perform the job duties that the employer stated were taken away to "accommodate" her); Gerdin v.
CEVA Freight, L.L.C., 908 F. Supp. 2d 821, 831 (S.D. Tex. 2012) (the evidence of pretext was
sufficient when the employer stated that the plaintiff was terminated during a reduction-in-force
when she was fired months before the reduction-in-force occurred, she was fired three weeks after
returning from maternity leave, the employer stated she was fired to outsource her job duties, but that
never occurred; the employer failed to follow its internal procedures in firing her; no one else was
fired when she was; and the plaintiffs supervisor stated that he "hop[ed] that having kids [was] not
going to interfere with [her] ability to work full time").
The thrust ofPlumbar's pretext arguments are to second-guess the measures South Texas
used to cut costs. (See Docket Entry No. 32 at 16 n.5) (listing the salaries of other employees who
retired and "free[ d] up" funds in the library budget). The Fifth Circuit has "stated many times
before" that courts should "not engage in second-guessing of an employer's business decisions."
Goree v. Comm'n Lincoln Par. Det. Ctr., 437 F. App'x 329, 333 (5th Cir. 2011).
Plumbar also argues that because he did not complain about low usage at the reference desk,
and other white librarians who did complain were not terminated, he was treated differently.
Plumbar' s primary job responsibility as a part-time employee was staffing the reference desk. Other
full-time employees who staffed the desk had other primary job responsibilities. Plumbar has not
pointed to a similarly situated employee treated differently than he was. Plumbar's argument that

14

because he did not complain about slow hours during his assigned times at the reference desk, he
should not have been terminated, is not persuasive. He does not dispute Lippold's statement that she
and Ortale undertook their own review to determine what hours at the reference desk saw the least
demand. (Docket Entry No. 28

at~~

6-8).

Even if Plum bar had made a prima facie showing of race discrimination, he has not raised
a factual dispute as to whether the South Texas College of Law's proffered explanation was
pretextual or a motivating factor for discrimination. The College's summary judgment motion on
Plumbar' s race-discrimination claim is granted.

B.

Retaliation
1.

The Legal Standard

Title VII prohibits retaliation when an employee "has opposed any practice made an unlawful
employment practice by [Title VII]." 42 U.S.C. §2000e-3. The elements of a primafacie showing
of retaliation are that: ( 1) the plaintiff engaged in an activity protected by Title VII; (2) an adverse
action occurred; and (3) a causal link existed between the protected activity and the adverse action.
Zamora v. City Of Houston, 798 F.3d 326,331 (5th Cir. 2015).

In Univ. ofTexas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517,2534 (2013), the Supreme Court
held that a Title VII retaliation claim requires the plaintiff to show that the protected activity was a
but-for cause of the employer's adverse action. There is some disagreement among the circuits as
to whether this requires a plaintiff to show but-for causation as part of her prima facie case of
retaliation, or to show but-for causation only at the third step of the McDonnell-Douglas framework
to rebut the proffered legitimate nonretaliatory reason for the adverse employment action. Smith v.

15

Bd a/Supervisors o[S. Univ., 656 F. App'x 30,33 n.4 (5th Cir. 2016)(citing Youngv. Cityo[Phila.
Police Dep 't, 651 F. App'x. 90, 97 & n.12 (3d Cir. June 3, 2016) (noting the split and resolving it

by noting that "[a]pplying the 'but-for' standard at the prima facie stage would effectively eliminate
the need to use the McDonnell-Douglas burden shifting framework because plaintiffs who can prove
'but-for' causation at the prima facie stage would essentially 'be able to satisfy their ultimate burden
of persuasion without proceeding through the pretext analysis'" (citations omitted)); Foster v. Univ.
of Md-E. Shore, 787 F.3d 243, 250-51 (4th Cir. 2015) (noting circuit split as to whether Nassar

applies to the causation prong of the prima facie case of retaliation)). The Fifth Circuit has twice
declined to decide which way to resolve this circuit split. Id; Hernandez v. Metro. Transit Auth. of
Harris Cty., 673 F. App'x 414, 419 n.6 (5th Cir. 2016). This court need not do so because

Plumbar' s retaliation claim fails whether he is required to show but-for causation at the prima facie
stage or at step three of the McDonnell-Douglas framework. See Smith, 656 F. App'x at 33 n.4 (even
assuming the plaintiff was not required to show but-for causation until the third step of the
McDonnell-Douglas framework-the "most favorable" standard to the plaintiff-she could not meet

her burden); see also Montgomery-Smith v. Louisiana Dep 't ofHealth & Hasps., No. CV 15-6369,
2017 WL 2256801, at *5 (E.D. La. May 22, 2017).

2.

Discussion

Even assuming that Plumbar made a prima facie showing of retaliation, 6 his claim does not

6

Although Plum bar has shown that he made a protected complaint and that he was terminated, there
is a factual dispute as to a causal connection between Plumbar's complaints and his termination. Plumbar
argues that the close timing between his complaints and his termination satisfies this element. The Fifth
Circuit has found that a "four-month gap in time, standing alone, is insufficient to establish prima facie
evidence of causation." Barkley v. Singing River Elec. Power Ass 'n, 433 F.App'x. 254,260 (5th Cir. 2011).
And the Supreme Court has approvingly acknowledged other circuit court decisions that found three and

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survive summary judgment. South Texas College of Law identified the reason for eliminating
Plumbar's job and terminating his employment-the lack of demand for reference-desk services
during the hours he worked-as the type of cost-saving measure the library was directed to identify
and implement in the face of an anticipated budget shortfall. That shifted the burden to Plumbar to
show that his termination would not have occurred "but for [the employer's] retaliatory motive."
Outley v. Luke & Assocs., Inc., 840 F.3d 212,219 (5th Cir. 2016)(citing Nassar, 133 S. Ct. at 2533).

Plumbar argues that he does not have to show but-for causation, but he cites inapplicable pre-Nassar
cases. (Docket Entry No. 32 at 19). This is simply not the current law. Plumbar's arguments
supporting an inference of retaliation are otherwise the same arguments he made to show
discrimination. The arguments lack support in the record and in the case law, and are not a basis to
deny summary judgment.
Even assuming Plumbar had made aprimafacie showing of retaliation, he has not raised a
factual dispute material to showing that his termination would not have occurred but for South Texas
College of Law's retaliatory motive. South Texas College ofLaw's summary judgment motion on

fourth month periods too long to allow for an inference of causation. Alkhawaldeh v. Dow Chern. Co., 851
F.3d 422, 428 n.23 (5th Cir. 2017) (citing Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001)).
Cowan informed Alderman "sometime in 2014" that Plumbar had complained to him that he believed his
salary request was denied because of his race. (Docket Entry No. 28, Ex. I at ~ 6). Plumbar states that this
occurred in "late 20 14," but there is no record evidence to support this timeline. (Docket Entry No. 32 at 19).
In fact, the record evidence indicates that Cowan retired in summer 2014, so the reasonable inference would
be that this information was passed along before his retirement-outside the threshold of temporal proximity
sufficient to support an inference of retaliation, absent other evidence. In his affidavit, Plum bar states that
he also complained to Lippold in September 2014-three months before he was terminated. (Docket Entry
No. 32, Ex. 1 at~ 8). Lippold's sworn testimony contradicts this statement. Lippold stated that Plumbar
complained that "other people were making more than he was," but that she was unaware of any racial
discrimination claims with respect to his compensation. (!d., Ex. Cat 62-63; Docket Entry No. 28, Ex. 2
at~ 9). Because the court can resolve this motion at a different step of the McDonnell-Douglas framework,
this factual dispute does not defeat summary judgment.

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Plumbar's retaliation claim is granted.
IV.

Conclusion

South Texas College of Law's summary judgment motion is granted as to all Plumbar's
claims. (Docket Entry No. 28). Final judgment is entered by separate order.
SIGNED on July 3, 2017, at Houston, Texas.

~?Lt., ::;£) Lee~enthal
Chief United States District Judge

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