Russell v. University of Texas ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS June 28, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
)))))))))))))))))))))))))) Clerk
No. 06-50102
))))))))))))))))))))))))))
SUZAN RUSSELL,
Plaintiff-Appellant,
versus
UNIVERSITY OF TEXAS OF THE PERMIAN BASIN,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Texas
No. MO-04-CV-131
Before KING, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Dr. Suzan Russell (“Dr. Russell”) sued her
former employer, the University of Texas of th e Permian Basin
(“UTPB”), under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e et seq., alleging gender discrimination, sexual harassment,
and retaliation. The district court denied UTPB’s motion for
summary judgment as to gender discrimination, but granted its motion
regarding the sexual harassment and retaliation claims. Dr.
*
Pursuant to 5TH 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that this opinion should not be published and is not precedent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 5TH CIRCUIT RULE
47.5.4.
Russell’s gender discrimination claim proceeded to trial, and the
jury returned a verdict in favor of UTPB. Dr. Russell now appeals
the district court’s order with respect to the sexual harassment and
retaliation claims. Additionally, Dr. Russell appeals the district
court’s denial of her proposed jury instruction on spoliation.
I. FACTUAL AND PROCEDURAL HISTORY
UTPB hired Dr. Russell in July 2002 to fill a one-year, non-
tenure track position as a Visiting Assistant Professor in English
in the Department of Humanities and Fine Arts (“the Department”).
In October 2002, Dr. Russell also accepted a non-tenure track, one-
year appointment as the Faculty Advisor to The Mesa Journal, UTPB’s
campus newspaper.
Dr. Russell alleges that, beginning in September 2002 and
continuing through May 2003, Dr. Sarah Shawn Watson (“Dr. Watson”),
her supervisor and Chair of the Department at that time, sexually
harassed her. The alleged harassment consisted of both suggestive
remarks and provocative touching. Specifically, Dr. Russell alleges
that Dr. Watson: (1) “provocatively rubbed the side” of her hand;
(2) called her “honey” and “babe” on numerous occasions from
September 2002 through May 2003; (3) said to her “I wouldn’t mind
watching the movie in bed with you”; (4) once rubbed Dr. Russell’s
thigh with her hand while in Dr. Russell’s office; and (5) sat next
to her and said “I want to move to NYC,” which Dr. Russell
understood as implying that Dr. Watson wanted to live with her.
2
Meanwhile, in November 2002, Dr. Russell applied for an open
tenure-track position in Nineteenth Century American Literature.
A committee composed of six UTPB professors was chosen to select a
candidate to fill the open position. Dr. Watson chaired the
committee, and Drs. Sophia Andres, Mark Wildermuth, Joanna
Hadjicostandi, Ken Sherwood, and Richard Spence comprised the
remainder of the committee. UTPB received between seventy and
eighty applications for the position. The committee reviewed the
applications, and decided to interview approximately eighteen
candidates at the Modern Language Association Convention (“the
Convention”) in December 2002. Drs. Watson, Sherwood, and
Wildermuth interviewed the candidates at the Convention and selected
three finalists from that group. Though Dr. Russell was unable to
attend the Convention, Drs. Watson, Sherwood, and Wildermuth gave
her a Convention-style interview on-campus in February 2003. After
interviewing Dr. Russell, the full committee considered the
applications of the three finalists plus Dr. Russell.
The full committee decided to invite two finalists, Dr. Todd
Richardson and Caroline Miles, for on-campus interviews. At this
point, Dr. Russell was out of the running. The full committee
unanimously recommended Dr. Richardson for the open tenure-track
position. The committee did not, however, have the ultimate
authority to hire Dr. Richardson. The committee’s recommendation
had to be accepted by Dr. Olsen, the Dean of the College of Fine
Arts and Sciences. After accepting the committee’s recommendation,
3
Dr. Olsen had to pass the recommendation to Dr. Fannin, the Vice
President of Academic Affairs, for final approval. UTPB offered the
tenure-track position to Dr. Richardson after Drs. Olson and Fannin
concurred in the committee’s recommendation.
In March 2003, Dr. Watson informed Dr. Russell that she had not
been selected for the position, and she attributed Dr. Russell’s
failed candidacy to her lack of publication.1 Though Dr. Russell
was not selected for the tenure-track position, in June 2003, UTPB
offered to extend her appointments as the Faculty Advisor to The
Mesa Journal and as a Visiting Assistant Professor of English for
the 2003-2004 academic year. Dr. Russell accepted the extension.
Though Dr. Russell agreed to renew her appointments for another
year in June 2003, she alleges that Dr. Watson began to treat her
unfavorably after she rejected Dr. Watson’s sexual advances. Dr.
Russell contends that Dr. Watson excluded her from departmental
meetings, cancelled some of her classes, and refused to give her
desired class assignments. These incidents prompted Dr. Russell to
file an informal grievance against Dr. Watson in October 2003.2
In April 2004, UTPB informed Dr. Russell that it would not
1
Dr. Russell alleges that, at this meeting, Dr. Watson asked
her what she was going to do now that she was not getting the
tenure-track position. Dr. Russell replied that was going back to
New York City, to which Dr. Watson allegedly responded “I will be
two steps behind you when you go.” Dr. Russell asked Dr. Watson
what she meant by this and, according to Dr. Russell, Dr. Watson
nervously got up and walked out.
2
Dr. Russell had filed a sexual harassment grievance against
Dr. Patricio Jaramillo in April 2003.
4
renew her contract as a Visiting Assistant Professor. UTPB did,
however, invite Dr. Russell to apply for a new non-tenure track
position as Director of The Mesa Journal. Dr. Russell had
previously expressed an interest in the position as a means of
remaining at UTPB. She alleges that the appointment had been
originally represented to her as an “open rank position,” which,
according to Dr. Russell, meant that the position could eventually
result in a tenured professorship. In her complaint, Dr. Russell
explains that she rejected the offer because the position, as
defined in the invitation, was a non-tenure track, lecturer position
with a master’s degree as the minimum qualification. The position
was unsuitable, she believed, for someone of her professional
status.3
On September 27, 2004, Dr. Russell sued UTPB under Title VII,
alleging gender discrimination and retaliation. Dr. Russell alleges
that her rejection of Dr. Watson’s unwelcome sexual advances led to
the rejection of her application for the tenure-track position,
denial of requested class assignments, attempts to remove her from
the Department, and exclusion from faculty meetings. Dr. Russell
filed an amended complaint on January 4, 2005, adding a sexual
harassment claim. UTPB filed a motion for summary judgment on all
claims. The district court denied the motion with respect to the
gender discrimination claim, but granted it on the sexual harassment
3
Dr. Russell has a Ph.D. from New York University and had
experience teaching at a number of colleges and universities.
5
and retaliation claims.
Dr. Russell’s gender discrimination claim went to trial on
December 8, 2005. At the conclusion of evidence, Dr. Russell
requested that the district court include an instruction on
spoliation of evidence in its jury charge. The district court
denied the request. The jury returned a unanimous verdict in favor
of UTPB. The district court entered final judgment on the jury’s
verdict on December 16, 2005.
Dr. Russell now appeals the district court’s order granting
UTPB’s motion for summary judgment on the sexual harassment and
retaliation claims and the district court’s denial of her proposed
jury instruction on spoliation.
II. JURISDICTION AND STANDARD OF REVIEW
Dr. Russell appeals a final judgment of the district court, so
this court has jurisdiction over the appeal under 28 U.S.C. § 1291.
We review a summary judgment de novo. Dallas County Hosp.
Dist. v. Assocs. Health & Welfare Plan, 293 F.3d 282, 285 (5th Cir.
2002). Summary judgment is proper when the pleadings, discovery
responses, and affidavits show that there is no genuine issue of
material fact and that the moving party is entitled to a judgment as
a matter of law. FED. R. CIV. P. 56(c). A dispute about a material
fact is genuine if the evidence is such that a reasonable jury could
return a verdict for the non-moving party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). When deciding whether there
is a genuine issue of material fact, this court must view all
6
evidence in the light most favorable to the non-moving party.
Daniels v. City of Arlington, 246 F.3d 500, 502 (5th Cir. 2001).
III. DISCUSSION
A. Sexual Harassment
In Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75(1998), the Supreme Court held that Title VII prohibits same-sex
sexual harassment. The Supreme Court stressed, however, that, like
all plaintiffs alleging sexual harassment, the employee claiming
same-sex harassment must “prove that the conduct at issue was not
merely tinged with offensive sexual connotations, but actually
constituted discrimination because of sex.” Id. at 81 (internal
quotation marks and alterations omitted).
This circuit has established a two-step process for evaluating
same-sex sexual harassment cases. See, e.g., La Day v. Catalyst
Tech., Inc., 302 F.3d 474 (5th Cir. 2002). Per Oncale, in La Day,
we determined that the employee must first demonstrate that the
sexual harassment was “discrimination because of sex.” Id. at 478.
The employee may make this showing by: (1) establishing that the
harasser made “explicit or implicit proposals of sexual activity and
providing credible evidence that the harasser was homosexual;” (2)
demonstrating that the harasser was “motivated by general hostility
to the presence of members of the same sex in the workplace;” or (3)
offering “direct, comparative evidence about how the alleged
harasser treated members of both sexes in a mixed-sex workplace.”
7
Id. In this case, Dr. Russell has created a fact issue that the
sexual harassment was discrimination because of sex since Dr.
Russell put on evidence that Dr. Watson made sexual advances to her
and it is undisputed that both Dr. Russell and Dr. Watson are
lesbians.
If the employee establishes that the same-sex sexual harassment
was discrimination because of sex, then the court must decide
whether the alleged conduct meets the applicable standards for
either a quid pro quo or hostile work environment claim. La Day,
302 F.3d at 478.4 Whether the employee suffered a tangible
employment action determines whether we analyze the claim as a quid
pro quo sexual harassment claim or as a hostile work environment
claim. Casiano v. AT&T Corp., 213 F.3d 278, 283 (5th Cir. 2000).
A tangible employment action constitutes “a significant change in
employment status such as hiring, firing, failing to promote,
reassignment with significantly different responsibilities, or a
decision causing a significant change in benefits.” Burlington
Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998). If the employee
experienced a tangible employment action, then the case moves
forward as a quid pro quo claim; if not, then it proceeds as a
hostile work environment claim. Casiano, 213 F.3d at 283. Here,
there was a tangible employment action because UTPB failed to
promote Dr. Russell to the tenure-track position in American
4
At this point, the court uses the same analysis for all types
of sexual harassment cases, including same-sex sexual harassment.
8
Literature.
1. Quid Pro Quo Claim
For Dr. Russell to succeed on a quid pro quo harassment claim,
she must show that (1) she suffered a tangible employment action and
(2) the tangible employment action resulted from her acceptance or
rejection of her supervisor’s alleged sexual advances. La Day, 302
F.3d at 481 (citing Casiano, 213 F.3d at 283). In other words, in
order to survive summary judgment, Dr. Russell must demonstrate a
genuine issue of material fact regarding whether Dr. Watson, her
alleged harasser, took a tangible employment action against her
because she rejected Dr. Watson’s sexual advances. See Casiano, 213
F.3d at 284-85 (finding no tangible employment action when an
employee was denied access to a training program because another
manager, not the harassing supervisor, was responsible for the
decision); see also Durkin v. City of Chi., 341 F.3d 606, 611 (7th
Cir. 2003) (“When a supervisor engages in sexual harassment, the
employer is liable for the harassment only if the harasser took a
tangible employment action as part of his harassment.”) (citing
Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998)). If the
employee proves that the tangible employment action resulted from
her acceptance or rejection of her supervisor’s sexual advances,
then the employer is vicariously liable, and may not assert the
Ellerth/Faragher affirmative defense.5 Casiano, 213 F.3d at 284.
5
The affirmative defense consists of two prongs, both of which
the employer must fulfill: “(a) that the employer exercised
9
In this case, the district court rejected Dr. Russell’s quid pro
claim because it concluded that Dr. Russell “failed to establish
that the tangible employment action resulted from [her] rejection of
Dr. Watson’s alleged advances.” We agree.
Needless to say, Dr. Russell contends that she demonstrated
that her failure to receive the tenure-track position resulted from
her rejection of Dr. Watson’s unwanted sexual advances. As proof of
causation, Dr. Russell submits that she established a “close
temporal proximity” between her rejection of the advances and her
failure to gain the promotion. The fact that Dr. Watson
participated in the hiring decision, Dr. Russell argues, helps to
create a genuine issue of material fact as to causation. Finally,
Dr. Russell maintains that numerous instances of post-rejection
animus such as depriving her of desired class assignments
demonstrate causation. According to Dr. Russell, the combination of
temporal proximity, Dr. Watson’s participation in the tenure
decision, and the post-rejection animus provides sufficient evidence
of causation to survive UTPB’s summary judgment motion.
Though we have often held that evidence of close temporal
proximity can serve as proof of causation for retaliation claims,
see, e.g., Evans v. City of Houston, 246 F.3d 344, 354 (5th Cir.
reasonable care to prevent and correct promptly any sexually
harassing behavior, and (b) that the plaintiff employee
unreasonably failed to take advantage of any preventive or
corrective opportunities provided by the employer or to avoid harm
otherwise.” Ellerth, 524 U.S. at 765.
10
2001), we have never used such evidence as proof of causation for
quid pro quo claims. Some of our sister circuits have accepted
temporal proximity as proof of causation in quid pro quo cases, but
we need not reach this issue in this instance. See Cotton v.
Cracker Barrel Old Country Store, Inc., 434 F.3d 1227, 1232 (11th
Cir. 2006) (stating “temporal proximity between the harassment and
the tangible employment action can give rise to a genuine issue of
fact as to causation”); Farrell v. Planters Lifesavers Co., 206 F.3d
271, 285 (3d Cir. 2000) (holding that the timing of appellant’s
termination was suggestive of causation for both the retaliation and
the quid pro quo claims). Irrespective of whether there was close
temporal proximity between Dr. Russell’s rejection of Dr. Watson’s
sexual advances and Dr. Russell’s failure to attain the tenure-track
position, we hold that there was no causation because Dr. Russell
has not shown that her alleged harasser, Dr. Watson, made the
decision not to promote her.
Dr. Russell’s quid pro quo sexual harassment claim cannot
withstand UTPB’s motion for summary judgment because she has failed
to demonstrate that Dr. Watson caused the tangible employment
action. In other words, she has presented no competent summary
judgment evidence that her alleged harasser was responsible for the
decision not to hire her for the tenure-track position. See
Casiano, 213 F.3d at 284-85 (finding no tangible employment action
where an employee was denied access to a training program because
another manager, not the harassing supervisor, was responsible for
11
the decision); Cf. Long v. Eastfield Coll., 88 F.3d 300, 307 (5th
Cir. 1996) (stating that the “causal link” between retaliatory
intent and adverse employment action is broken if those with the
retaliatory intent are not responsible for the adverse employment
action). The search committee, and not Dr. Watson, made the initial
recommendation to hire Dr. Richardson, and that recommendation did
not become final until Drs. Olson and Fannin approved it. We have,
however, held that “if the employee can demonstrate that [those with
discriminatory intent] had influence or leverage over the official
decisionmaker . . . it is proper to impute their discriminatory
attitudes to the formal decisionmaker.” Russell v. McKinney Hosp.
Venture, 235 F.3d 219, 226 (5th Cir. 2000). In addition to cases of
influence or leverage, the Russell court recognized that the
ultimate decisionmaker could inherit the taint of discriminatory
intent if he “merely acted as a rubber stamp, or the ‘cat’s paw,’
for a subordinate employee’s prejudice, even if the manager lacked
discriminatory intent.” Id. at 227.
In Laxton v. Gap Inc., 333 F.3d 572 (5th Cir. 2003), a
Pregnancy Discrimination Act case, we held that Laxton had presented
sufficient evidence of causation even though the supervisor with the
discriminatory animus, Karen Jones, was not directly responsible for
her termination. Mary Carr and Carla Dotto fired Laxton for various
violations of company policy. Id. at 584-85. Carr testified that
she relied on Jones for the facts underlying the violations. Carr’s
reliance on Jones provided sufficient evidence of Jones’s influence
12
over the ultimate decisionmakers to demonstrate causation.
We reached a similar conclusion in Gee v. Principi, 289 F.3d
342 (5th Cir. 2002), a sexual harassment case brought under Title
VII. Sinda Gee, an employee at the Veteran Affairs Medical Center
in Waco, Texas, reported to Wallace Hopkins, the director of the
center, that she had been sexually harassed by Dr. John Bryan. Id.
at 344. Gee applied for a new job within the medical center, but
Lee Gibbs, the Information Resources Management chief, hired someone
else for the position. Id. at 344-45. Prior to denying Gee the
position, Gibbs was present at a meeting attended by, among others,
Dr. Bryan, Hopkins, Wallace, and Dr. Gary Melvin. Dr. Melvin
testified that Gee’s fate was sealed at the meeting when Dr. Bryan,
the alleged harasser, and Hopkins, who knew about the harassment,
made derogatory comments about Gee. Id. at 347. We held that Gee
provided sufficient evidence that Gibbs was improperly influenced by
Dr. Bryan and Hopkins when he made the decision not to hire Gee.
This influence created a fact issue regarding causation.
Unlike the appellants in Laxton and Gee, Dr. Russell has
presented no competent summary judgment evidence that Dr. Watson
exercised influence over any of the other decisionmakers in this
case, namely, the other committee members, Dr. Olson, and Dr.
Fannin. The six-person search committee unanimously selected Dr.
Richardson as their choice to fill the tenure-track position. Dr.
Richardson was therefore the search committee’s choice, and not the
personal choice of Dr. Watson. Without any evidence that Dr. Watson
13
influenced the committee, we cannot impute Dr. Watson’s allegedly
discriminatory animus to the committee’s selection. Cf. Russell,
235 F.3d at 226. Though Dr. Watson was the chair of the committee,
Dr. Russell has introduced no evidence that being chair entitled Dr.
Watson to a greater voice in the proceedings than other members of
the committee. Furthermore, the record does not reflect that any
other members of the committee knew about the alleged sexual
harassment at the time of the hiring decision.6
Admittedly, the record does contain some indication that Dr.
Watson might have influenced the committee’s decision, but it is not
competent summary judgment evidence. At her deposition, Dr. Russell
testified that Dr. W. David Watts, the president of UTPB, told her
that he could not give her a tenure-track job because Dr. Watson did
not believe she was qualified. This evidence does not create a fact
issue concerning the tenure-track job in Nineteenth Century American
Literature because Dr. Watts played no role in filling that
position. The search committee recommended Dr. Richardson and Drs.
Olson and Fannin approved the recommendation. Dr. Russell also
testified that Dr. Andres, a member of the search committee, told
her that Dr. Watson said “some really nasty things” about Dr.
6
Dr. Russell testified at her deposition that she told Dr.
Andres about Dr. Watson’s alleged sexual harassment in March 2003
and that she informed Dr. Olson in October 2003. Though both Drs.
Andres and Olson participated in the hiring process, it is clear
from Dr. Russell’s deposition that they did not learn of Dr.
Watson’s allegedly harassing conduct until after the hiring
decision had been made.
14
Russell during the search process and that Dr. Watson “did [Dr.
Russell] in” during the committee meetings. This testimony is, of
course, inadmissible hearsay, and is therefore not competent summary
judgment evidence. See Warfield v. Byron, 436 F.3d 551, 559 (5th
Cir. 2006) (noting that hearsay evidence is inadmissible for summary
judgment purposes under Federal Rule of Civil Procedure 56).
Even if we were to assume that the committee’s choice was
imbued with Dr. Watson’s allegedly discriminatory animus, Dr.
Russell would have to surmount additional hurdles by demonstrating
that Dr. Watson either influenced Drs. Olson and Fannin or that they
merely rubber stamped the committee’s recommendation without an
independent review. Cf. Russell, 235 F.3d at 226-27; but see Long,
88 F.3d at 307 (holding that the degree to which the ultimate
decisionmaker based his decision on an independent investigation is
a question of fact reserved for the jury). She has not done so.
For the reasons stated above, we hold that Dr. Russell’s sexual
harassment claim cannot survive summary judgment under a quid pro
quo theory because she has not provided sufficient evidence to show
that she suffered a tangible employment action that resulted from
her rejection of Dr. Watson’s alleged sexual advances.
2. Hostile Work Environment Claim
Though Dr. Russell cannot demonstrate that UTPB is liable for
sexual harassment under a quid pro quo theory, her sexual harassment
claim might defeat summary judgment if she could create a fact issue
regarding whether Dr. Watson’s alleged harassment created a hostile
15
work environment. See La Day, 302 F.3d at 482. In order to prevail
on a hostile work environment claim, Dr. Russell would have to
demonstrate that: (1) she belongs to a protected group; (2) she was
subjected to unwelcome sexual harassment; (3) the harassment
complained of was based on sex; and (4) it affected a term,
condition, or privilege of employment. Watts v. Kroger Co., 170
F.3d 505, 509 (5th Cir. 1999) (setting out the elements of a hostile
work environment claim when the alleged harasser is a supervisor).
UTPB is liable for Dr. Watson’s harassment if Dr. Russell can prove
that the harassment created a hostile work environment, but, in the
absence of a tangible employment action, UTPB may assert the
Ellerth/Faragher affirmative defense. Id. 509-10. Only the fourth
element is disputed.
Sexual harassment affects a term, condition, or privilege of
employment when it is “severe or pervasive.” La Day, 302 F.3d at
482. Furthermore, “[i]n order to be actionable under Title VII, a
sexually objectionable environment must be both objectively and
subjectively offensive, one that a reasonable person would find
hostile or abusive, and one that the victim in fact did perceive to
be so.” Id. Whether a work environment meets this standard
“depends on ‘all the circumstances,’ including the frequency of the
discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee’s work
performance.” Id.16
The district court did not err in granting summary judgment on
Dr. Russell’s sexual harassment claim because, viewed in light of
all circumstances, Dr. Watson’s alleged conduct was neither severe
nor pervasive. Dr. Russell alleges that, on one occasion each, Dr.
Watson rubbed the side of her hand and her thigh; that Dr. Watson
twice intimated that she wanted to move to New York City with Dr.
Russell; that Dr. Watson once stated that she would not mind
watching a movie in bed with Dr. Russell; and that Dr. Watson called
her “honey” or “babe” on numerous occasions. These actions are no
more severe than those in previous cases where this court has held
that the employee did not demonstrate a hostile work environment.
For example, in Hockman v. Westward Communications, LP, 407 F.3d
317, 327-28 (5th Cir. 2004), we held that, as a matter of law, the
appellant could not establish a hostile work environment based on
the facts that the alleged harasser, among other things, commented
about another employee’s body, slapped her on the behind with a
newspaper, grabbed or brushed against her breast and behind, and
once attempted to kiss her. At best, Dr. Russell’s allegations are
on the same plane as those we found insufficient to establish
“severe or pervasive” harassment in Hockman. We therefore hold that
Dr. Watson’s allegedly harassing behavior did not create a hostile
work environment.
B. Retaliation
In addition to her sexual harassment claim, Dr. Russell
contends that UTPB violated the law by retaliating against her after
17
she engaged in activities protected by Title VII. To establish a
prima facie case of retaliation, Dr. Russell must demonstrate that:
(1) she engaged in a statutorily protected activity, (2) she
suffered an adverse employment action, and (3) there was a causal
link between the protected activity and the adverse employment
action. Webb v. Cardiothoracic Surgery Assoc., 139 F.3d 532, 540
(5th Cir. 1998). The causal link need not rise to the level of “but
for” causation at the prima facie stage. Gee v. Principi, 289 F.3d
342, 345 (5th Cir. 2002). Once the employee has established a prima
facie case, the burden then shifts to the employer to demonstrate a
legitimate, non-retaliatory reason for the adverse employment
action. Id. If the employer satisfies this burden, then the
employee must demonstrate that the employer’s non-retaliatory
purpose is “merely a pretext for the real, [retaliatory] purpose.”
Id.The district court found that Dr. Russell satisfied the first
two elements. Dr. Russell engaged in a protected activity on three
occasions, namely, when she filed a sexual harassment grievance
against Dr. Jaramillo in April 2003, when she began an informal
grievance against Dr. Watson in October 2003, and when she filed an
EEOC complaint on May 11, 2004. The district court determined that
an adverse employment action occurred when UTPB refused to renew Dr.
Russell’s contract in April 2004. Dr. Russell, according to the
district court, could not establish a prima facie case of
retaliation because she could not show a causal connection between
18
the protected activities and the adverse employment action. The
district court explained that Dr. Russell presented no direct
evidence of a causal link and that too much time had elapsed between
her protected activities (April 2003 and October 2003) and the
adverse employment action (April 2004) to infer a causal link solely
from temporal proximity.
The district court ruled on the summary judgment motion before
the Supreme Court decided Burlington Northern & Santa Fe Railway Co.
v. White, 126 S. Ct. 2405 (2006), which rejected the approach taken
by several circuits, including this one, for determining adverse
employment actions in retaliation cases. Prior to Burlington
Northern, this circuit had held that only an “ultimate employment
decision” such as “hiring, granting leave, discharging, promoting or
compensating” constituted an adverse employment action. See, e.g.,
Ackel v. Nat’l Commc’ns, Inc., 339 F.3d 376, 385 (5th Cir. 2003).
Instead of the “ultimate employment decision” standard, the Supreme
Court in Burlington Northern held that an employee suffers an
adverse employment action if “a reasonable employee would have found
the challenged action materially adverse, which in this context
means it well might have dissuaded a reasonable worker from making
or supporting a charge of discrimination.” 126 S. Ct. at 2415(internal quotation marks omitted).
Though the district court held that the non-renewal of Dr.
Russell’s contract constituted an adverse employment action under
this circuit’s more stringent pre-Burlington Northern standard, we
19
decline to decide whether non-renewal of a contract amounted to an
adverse employment action in this instance.7 Nevertheless, we affirm
the district court’s ruling because Dr. Russell has failed to
establish a causal connection between her grievance and the non-
renewal of her contract. Dr. Russell argues that she has presented
temporal proximity evidence which creates an inference of causation.
We disagree. Numerous courts have held that temporal proximity
evidence alone cannot support an inference of causation when there
is a four-month gap between the protected activity and the adverse
employment action. See Clark County Sch. Dist. v. Breeden, 532 U.S.
268, 273-74 (2001) (surveying temporal proximity cases and noting
cases have found a lapse of up to three or four months too large to
support causation); but see Evans v. City of Houston, 246 F.3d 344,
354 (5th Cir. 2001) (noting that a district court has found a four-
month gap sufficient to establish causation). We cannot infer
causation in this case because the temporal proximity evidence shows
a six-month gap between Dr. Russell’s filing of the grievance
(October 2003) and the non-renewal of the contract (April 2004).
Admittedly, in Shirley v. Chrysler First, Inc., 970 F.2d 39(5th Cir. 1992), we held that a causal nexus existed between the
protected activity and the adverse employment action after a passage
7
UTPB has asserted, and Dr. Russell does not deny, that her
visiting assistant professor contract could not be extended beyond
a second year. Furthermore, Dr. Russell has presented no evidence
that UTPB has violated its official policy by occasionally
extending visiting professorships beyond two years.
20
of fourteen months. In that case, however, the appellant did not
rest on temporal proximity alone. The appellant presented evidence
that her boss complained to her about the EEOC complaint and that
criticisms of her work performance only arose after she filed the
complaint. Id. at 43. Here, Dr. Russell does not allege that Dr.
Watson harangued her about the grievance, and the record shows that
many of the problems between the two--such as Dr. Russell’s failure
to get desired course assignments and the cancellation of her
classes--began before Dr. Russell filed her October 2003 grievance.
For example, Dr. Watson had learned by September 2003, at the
latest, that she would not get her desired course assignments for
the fall 2003 semester.
Though we affirm the district court’s holding that Dr. Russell
has not presented sufficient evidence to create a fact issue
regarding whether her grievances caused UTPB not to renew her
contract, our inquiry into her retaliation claim does not end here.
In Dr. Russell’s complaint and in her opposition to UTPB’s motion
for summary judgment, she alleged that UTPB unlawfully retaliated
against her by downgrading the Director of The Mesa Journal position
in April 2004. The district court did not address this allegation,
and instead focused its analysis exclusively on the non-renewal of
Dr. Russell’s contract. Dr. Russell cannot establish a prima facie
case of retaliation concerning the downgrading of The Mesa Journal
position for the same reason that she failed to establish a prima
facie case for the non-renewal of her contract: too much time
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elapsed between her protected activities (April 2003 and October
2003) and the alleged adverse employment action (April 2004) to
support an inference of causation. Put differently, evidence of
temporal proximity alone cannot sustain an inference of causation
when there is a six-month gap between the protected activity and the
alleged adverse employment action.
C. Spoliation
Unlike Dr. Russell’s sexual harassment and retaliation claims,
her gender discrimination claim proceeded to trial. UTPB used a
ranking system, the Likert scale, to rank candidates for the tenure-
track position in Nineteenth Century American Literature. The
documents containing each committee member’s scoring of the
candidates were destroyed. Based on the destruction of the Likert
scale documents, Dr. Russell requested a jury instruction on
spoliation of the evidence by UTPB. A spoliation instruction
entitles the jury to draw an inference that a party who
intentionally destroys important documents did so because the
contents of those documents were unfavorable to that party. See
Vick v. Tex. Employment Comm’n, 514 F.2d 734, 737 (5th Cir. 1975).
The district court denied the requested jury instruction and Dr.
Russell now appeals that ruling.
We review a district court’s refusal to give a requested jury
instruction for abuse of discretion. United States v. Cain, 440
F.3d 672, 674 (5th Cir. 2006). The district court retains
“substantial latitude in formulating its jury charge,” and we may
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reverse “only if the requested instruction is substantially correct;
was not substantially covered in the charge as a whole; and if the
omission of the requested instruction seriously impaired the
defendant’s ability to present a given defense.” Id.Furthermore, a plaintiff is entitled to a jury instruction on
spoliation only if the plaintiff can show that the defendant acted
in “bad faith.” Condrey v. Suntrust Bank of Ga., 431 F.3d 191, 203
(5th Cir. 2003). “[M]ere negligence is not enough” to warrant an
instruction on spoliation. Vick, 514 F.2d at 737.
The district court did not abuse its discretion in denying Dr.
Russell’s requested jury charge on spoliation because she has not
shown that UTPB destroyed the records in bad faith. Typically, we
do not draw an inference of bad faith when documents are destroyed
under a routine policy. See Vick, 514 F.2d at 737; see also Coates
v. Johnson & Johnson, 756 F.2d 524, 551 (7th Cir. 1985) (declining
to make inference of bad faith when documents were destroyed
according to routine procedures). Here, the uncontroverted trial
testimony from Drs. Watson and Andres establishes that UTPB has a
policy of destroying the Likert documents after an open position has
been filled. At trial, Dr. Watson’s testimony suggested that the
Likert documents are typically destroyed two years after a position
has been filled. If the documents were destroyed according to this
procedure, that would place their destruction in March 2005, well
after Dr. Russell filed her EEOC complaint (May 11, 2004) and the
present lawsuit (September 27, 2004). Dr. Watson later testified,
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however, that she did not know whether Dr. Russell’s documents were
destroyed with the other unsuccessful candidates’ files or at the
end of the committee meeting.
The district court stated that it would not give the spoliation
instruction because there was no evidence that UTPB destroyed the
Likert documents after it knew of Dr. Russell’s claims. Though we
do not automatically draw an inference of bad faith simply because
documents are destroyed after the initiation of litigation, see
Vick, 514 F.2d at 737, Dr. Russell would have had a stronger
argument for spoliation had she been able to prove that the
documents were destroyed after UTPB had notice of their relevance to
her claim, see Nation-Wide Check Corp. v. Forest Hills Distributors,
Inc., 692 F.2d 214, 218 (1st Cir. 1982). The evidence produced at
trial did not establish when the documents were destroyed, for they
could have been destroyed either two years after the hiring decision
or at the conclusion of the committee meeting. We cannot conclude,
based on this inconclusive evidence, that the district court abused
its discretion in denying the spoliation charge.
Assuming for the sake of argument that UTPB did act in bad
faith when it destroyed the Likert documents, we may not upset the
district court’s ruling unless the omission of the requested
instruction seriously impaired Dr. Russell’s ability to present her
case. Cf. Cain, 440 F.3d at 674. The fact that the jury did not
hear the spoliation instruction did not seriously impair Dr.
Russell’s ability to present her case because the jury heard
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testimony that the documents were important and that they were
destroyed. The jury was free to weigh this information as it saw
fit. Furthermore, counsel for Dr. Russell had the opportunity to
question members of the search committee regarding how they ranked
the candidates for the tenure-track position. Given these facts,
the district court did not abuse its discretion in denying Dr.
Russell’s proposed jury instruction on spoliation.
IV. CONCLUSION
For the reasons stated above, we AFFIRM the decision of the
district court.
AFFIRMED.
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