Martinez v. University of Texas ( 2023 )

Case: 23-50036 Document: 00516921601 Page: 1 Date Filed: 10/05/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________
FILED
October 5, 2023
No. 23-50036
____________ Lyle W. Cayce
Clerk
Alberto Martinez,
Plaintiff—Appellant,
versus
University of Texas at Austin,
Defendant—Appellee.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:20-CV-1175
______________________________
Before Stewart, Dennis, and Wilson, Circuit Judges.
Per Curiam:*
The district court found that Alberto Martinez failed to establish a
prima facie case of retaliation and granted summary judgment in favor of
University of Texas at Austin (UT). Because Martinez adequately alleged a
causal link between his protected activity and UT’s adverse actions, we
reverse and remand for further proceedings.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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I.
Martinez, who is Hispanic, is a tenured professor in UT’s History
Department. In spring 2018, he informed the History Department by e-mail
that there was “discrimination” and “marginalization” of Hispanic
employees within the Department. In response, the department chair,
Jacqueline Jones, appointed Martinez to head a newly created “Equity
Committee.” The committee was tasked with creating “a plan of action to
help fix inequities” and “review[ing] equity broadly to include not just
Hispanics, but other minorities, gender, and any colleagues who fe[lt]
disenfranchised.”
As part of his work on the committee, Martinez created a salary report
in October 2018 (the October report). Though the report generally dealt with
the issue of “pay compression,”1 it expressly noted that in certain instances
minority professors were not compensated the same as other professors.
Specifically, the report stated that “no minorities . . . have served in the
categories of service compensated by the [History] Department,” and that
several minority professors were being paid less than their co-workers, even
though those minority professors had more scholarly publications. He
circulated the report among his colleagues and supervisors. According to
Martinez, “some white administrators became angered or very annoyed by
[his] report,” including Jones.
Martinez alleges Jones thereafter subjected him to several retaliatory
acts: (1) on October 19, 2018, Jones told another faculty member that she
was going to disband the Equity Committee (though she never did);
(2) between November 2018 and January 2019 Jones created new
subcommittees for the Equity Committee, unilaterally appointed members to
_____________________
1
The report defines pay compression as “inequities in salaries.”
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those subcommittees, and delegated many of Martinez’s responsibilities to
those subcommittees; (3) in January 2019, Jones filed a report with the Office
of Inclusion and Equity against Martinez alleging that he engaged in an
inappropriate relationship with a graduate student; (4) in March 2019, Jones
told the Title IX liaison about the alleged inappropriate relationship, which
caused the liaison to open an investigation; (5) later in March, Jones accused
Martinez of making “disparaging” and “denigrating” statements about
female co-workers; (6) in April 2019, Jones filed another report against
Martinez alleging that he made anti-Semitic remarks; (7) in May 2019, Jones
chose not to renew Martinez’s research fellowship; (8) in September 2019,
Jones removed Martinez from the Equity Committee; and (9) in October
2019, Martinez did not receive a teaching award because of rumors about the
inappropriate relationship and anti-Semitic remarks.
Martinez filed an EEOC charge on December 9, 2019. The charge
discussed each of the retaliatory actions above except the loss of Martinez’s
research fellowship and the Title IX investigation. The EEOC issued
Martinez a right-to-sue letter on August 27, 2020, and he filed his lawsuit in
November 2020. In his second-amended complaint, Martinez alleged a
single Title VII retaliation claim.2
After discovery, UT moved for summary judgment, which the district
court granted. First, the court found that Martinez failed to exhaust his
administrative remedies as to Jones’s alleged retaliatory actions except for
her accusation that Martinez made “disparaging” remarks about female co-
workers, her reporting of Martinez’s alleged anti-Semitic remarks, and her
removal of Martinez from the Equity Committee.
_____________________
2
Martinez asserted a Title VII discrimination claim in his original complaint, but
he did not pursue that claim in his second-amended complaint or on appeal.
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The court then analyzed Martinez’s prima facie case for retaliation
based on those three actions. It determined that Martinez’s e-mails in spring
2018 constituted a protected act, but that his creation of the October report
did not. Next, it concluded that Jones’s reporting of Martinez’s alleged anti-
Semitic remarks and removal of Martinez from the Equity Committee were
materially adverse acts, but Jones’s accusation that Martinez made
“disparaging” remarks about female co-workers was not. Regardless, in the
end, the court found that Martinez’s claim failed because he established no
causal link between the spring 2018 e-mails and Jones’s adverse acts. It
therefore granted summary judgment without addressing UT’s proffered
non-retaliatory reasons for Jones’s actions or the question of pretext.
II.
We review a summary judgment de novo, applying the same legal
standards as the district court. Certain Underwriters at Lloyd’s, London v.
Axon Pressure Prod. Inc., 951 F.3d 248, 255 (5th Cir. 2020). Summary
judgment is appropriate 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 of law.” Fed. R. Civ. P. 56(a). “A genuine dispute of material
fact exists ‘if the evidence is sufficient for a reasonable jury to return a verdict
for the nonmoving party.’” Ahders v. SEI Priv. Tr. Co., 982 F.3d 312, 315
(5th Cir. 2020) (quoting Hamilton v. Segue Software Inc., 232 F.3d 473, 477
(5th Cir. 2000) (per curiam)). “We construe all facts and inferences in the
light most favorable to the nonmov[ant] . . . .” Murray v. Earle, 405 F.3d 278,
284 (5th Cir. 2005).
We first address the exhaustion issue and then discuss Martinez’s
prima facie case.
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A.
Before filing suit under Title VII, a plaintiff must exhaust
administrative remedies by filing a charge of discrimination with the EEOC.
Jennings v. Towers Watson, 11 F.4th 335, 342 (5th Cir. 2021). We “interpret[]
what is properly embraced in a review of a Title[] VII claim somewhat
broadly, not solely by the scope of the administrative charge itself, but by the
scope of the EEOC investigation which can reasonably be expected to grow
out of the charge of [retaliation].” Id. (quoting Sanchez v. Standard Brands,
Inc., 431 F.2d 455, 467 (5th Cir. 1970)). A plaintiff must file his charge
“within three hundred days after the alleged unlawful employment practice
occurred.” 42 U.S.C. § 2000e-5(e)(1).3
The district court calculated the exhaustion period based on
Martinez’s EEOC complaint filed on December 9, 2019. Accordingly, it
found that it could only consider acts of retaliation that occurred after
February 12, 2019. Martinez counters that he filed a complaint with the
Texas Workforce Commission Civil Rights Division and the EEOC on
September 27, 2019, such that we should consider acts of retaliation that
occurred after November 30, 2018. But the September 27 complaint is not
in the record,4 and the district court did not consider it. We therefore do not
consider Martinez’s argument on appeal. See Fed. R. App. P. 10(b)(2)
(“If the appellant intends to urge on appeal that a finding or conclusion is
unsupported by the evidence . . . the appellant must include in the record a
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3
The three-hundred-day time frame applies because Martinez filed charges of
discrimination with both the Austin Equal Employment/Fair Housing Office and the
EEOC on December 9, 2019. See 42 U.S.C. § 2000e-5(e)(1) (explaining that the time
period is three hundred days from when “the person aggrieved has initially instituted
proceedings with a State or local agency”).
4
Martinez filed a motion to supplement the record pursuant to Federal Rule of
Appellate Procedure 10(e)(2), which this court denied.
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transcript of all evidence relevant to that finding or conclusion.”). The
district court did not err by only considering materially adverse acts that
occurred after February 12, 2019.
The district court also determined that Martinez did not exhaust his
administrative remedies as to the loss of his fellowship, the loss of the
teaching award, and the Title IX investigation. We agree. Martinez did not
mention the loss of the teaching fellowship and the loss of the teaching award
in his EEOC charge, and an investigation into those acts could not
“reasonably be expected to grow” out of what he included in the charge.
Jennings, 11 F.4th at 342. Martinez similarly did not mention the Title IX
investigation in his EEOC charge or his district court complaint. And “[a]
claim which is not raised in the complaint but, rather, is raised only in
response to a motion for summary judgment is not properly before the
court.” Cutrera v. Bd. of Supervisors of La. State Univ., 429 F.3d 108, 113 (5th
Cir. 2005).
In sum, the only retaliatory acts we consider as support for Martinez’s
prima facie case are (1) Jones’s accusation that Martinez made
“disparaging” and “denigrating” statements about female co-workers;
(2) Jones’s filing of the report against Martinez alleging that he made anti-
Semitic remarks; and (3) Jones’s removal of Martinez from the Equity
Committee.
B.
A Title VII retaliation claim based on circumstantial evidence is
analyzed under the McDonnell Douglas burden-shifting framework. Saketkoo
v. Adm’rs of Tulane Educ. Fund, 31 F.4th 990, 1000 (5th Cir. 2020). Under
that framework, the plaintiff “carries the initial burden of establishing a
prima facie case of retaliation.” Id. (quoting Ackel v. Nat’l Commc’ns, Inc.,
339 F.3d 376, 385 (5th Cir. 2003)). “If the plaintiff establishes a prima facie
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case, then the employer has the burden of production to provide ‘a
legitimate, non-[retaliatory] reason’ for the adverse employment action.” Id.(quoting Brown v. Wal-Mart Stores E., L.P., 969 F.3d 571, 577 (5th Cir.
2020)). “If the employer meets this burden, then the plaintiff has the burden
to prove that the proffered reason is pretextual.” Id. (quoting Brown, 969
F.3d at 577).
As the district court decided the case at McDonnell Douglas step one,
Martinez’s prima facie burden, we likewise focus our attention there. To
establish a prima facie retaliation claim, “a plaintiff must show that ‘(1) he
engaged in conduct protected by Title VII; (2) he suffered a materially
adverse action; and (3) a causal connection exists between the protected
activity and the adverse action.’” Cabral v. Brennan, 853 F.3d 763, 766–67
(5th Cir. 2017) (quoting Jenkins v. City of San Antonio Fire Dep’t, 784 F.3d
263, 269 (5th Cir. 2015)).
1.
The district court found that Martinez engaged in protected activity
when he complained of discrimination in the spring 2018 e-mails, but he did
not when he published the salary report. We agree with the former finding,
but not the latter.
Protected activity under Title VII’s anti-retaliation provision “can
consist of either: (1) ‘oppos[ing] any practice made an unlawful employment
practice by this subchapter’ or (2) ‘mak[ing] a charge, testif[ying],
assist[ing], or participat[ing] in any manner in an investigation, proceeding,
or hearing under this subchapter.’” E.E.O.C. v. Rite Way Serv., Inc., 819 F.3d
235, 239 (5th Cir. 2016) (quoting 42 U.S.C. § 2000e-3(a)). The first is known
as the “opposition clause,” and the second is known as the “participation
clause.” Id. The district court rightly found that Martinez’s creation of the
salary report was not a protected activity under the participation clause
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because it was an internal investigation. See id. at 239 n.2 (noting “every
Court of Appeals . . . squarely has held that participation in an internal
employer investigation not connected with a formal EEOC proceeding does
not qualify as protected activity under the participation clause”).
But the district court erred in failing to consider whether that action
was a protected activity under the opposition clause. In Rite Way, we held
that “solicited complaints . . . constitute ‘opposition’” under Title VII’s
anti-retaliation provision. Id. at 240 (citing Crawford v. Metro. Gov’t of
Nashville & Davidson Cnty., 555 U.S. 271, 276–80 (2009)). Here UT’s
creation of the Equity Committee was akin to soliciting complaints, as in Rite
Way and Crawford. When Jones, as History Department chair, put Martinez
in charge of the committee, she tasked him with creating “a plan of action to
help fix inequities” and “review[ing] equity broadly . . . .” Plainly, Martinez
developed the October report within that context, as the notes on the report
indicate that its purpose was to substantiate inequities in minority faculty
compensation. Cf. Wallace v. Performance Contractors, Inc., 57 F.4th 209, 224
(5th Cir. 2023) (“[S]tating one’s belief that discrimination has occurred
virtually always constitutes opposition.”). Unless Jones’s creation of the
Equity Committee was intended to be empty window dressing, a natural
outgrowth of empaneling the committee was its identifying perceived
discrimination and proposing solutions. See Crawford, 555 U.S. at 279. If the
committee’s activities were not protected, “prudent employees would have
a good reason to keep quiet about Title VII offenses against themselves or
against others.” Id. (noting the “primary objective” of Title VII is “avoiding
harm to employees”).
UT counters that the October report “did not oppose an unlawful
employment practice” because it “merely focused on ‘pay compression,’ an
issue that impacted all UT Austin faculty and is not specific to minorities.”
But UT’s argument is undermined by two things. First, the salary report was
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created in the context of the Equity Committee, whose express purpose was
to “identify inequities” and “review equity broadly to include not just
Hispanics, but other minorities, gender, and any colleagues who fe[lt]
disenfranchised.” Second, the report expressly noted that “no
minorities . . . have served in the categories of service compensated by the
[History] Department,” and that several minority professors were being paid
less than their co-workers, even though those minority professors had more
scholarly publications. Those statements are enough to constitute opposition
under Title VII’s anti-retaliation provision. See Wallace, 57 F.4th at 224.
Thus, a reasonable jury could find that Martinez’s creation of the October
report was a protected activity.
2.
Now, to assess the three alleged retaliatory acts that were properly
exhausted. The district court found that Jones’s accusation that Martinez
made disparaging remarks about female co-workers was not a materially
adverse action, but it found the allegations of anti-Semitic remarks and
Martinez’s removal from the Equity Committee were. We agree.
A materially adverse action is one that “might have dissuaded a
reasonable worker from making or supporting a charge of discrimination.”
Hudson v. Lincare, Inc., 58 F.4th 222, 231 (5th Cir. 2023) (quoting Burlington
N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)). “[A]n employment
decision tends to be ‘materially adverse’ when it changes ‘job title, grade,
hours, salary, or benefits’ or effects a ‘diminution in prestige or change in
standing among . . . co-workers.’” Id. (quoting Stewart v. Miss. Transp.
Comm’n, 586 F.3d 321, 332 (5th Cir. 2009)). But mere “petty slights” or
“minor annoyances” do not rise to the level of a materially adverse action.
See White, 548 U.S. at 68.
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Jones accused Martinez of making disparaging remarks about female
co-workers in a private meeting and through e-mail. Accordingly, those
accusations could not affect Martinez’s “prestige” or “change his standing
among co-workers.” Contrarily, a reasonable juror could find that Jones’s
filing the report alleging anti-Semitic remarks and her removing Martinez
from the Equity Committee would affect his standing among co-workers and
might have dissuaded him from making a charge of discrimination. Cf.
Velikonja v. Gonzales, 466 F.3d 122, 124 (D.C. Cir. 2006) (finding that a
“reasonable jury could find that the prospect of . . . an investigation could
dissuade a reasonable employee from making or supporting a charge of
discrimination”).
3.
The district court held that Martinez’s claim failed because he did not
establish a causal link between his protected activity and Jones’s retaliatory
acts. Focusing on Martinez’s spring 2018 e-mails, the court found that
“nearly a year passed” between the e-mails and Jones’s first retaliatory act—
her report of his alleged anti-Semitic remarks in April 2019. It further found
Martinez provided limited evidence regarding Jones’s retaliatory motive.
We disagree with the district court’s conclusion.
We begin by noting that “the standard for satisfying the [prima facie]
causation element is much less stringent than a but for causation standard.”
Ackel, 339 F.3d at 385 (quoting Fierros v. Tex. Dep’t of Health, 274 F.3d 187,
191 (5th Cir. 2001)). To demonstrate causation at the prima facie stage, “a
plaintiff must demonstrate that the employer’s decision ‘was based in part
on knowledge of the employee’s protected activity.’” Lyons v. Katy Indep.
Sch. Dist., 964 F.3d 298, 305 (5th Cir. 2020) (quoting Medina v. Ramsey Steel
Co., 238 F.3d 674, 684 (5th Cir. 2001)). When causation is based on “mere
temporal proximity,” that proximity must be “very close.” Id. (quoting
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Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001)). But when other
evidence of a causal link is presented, consideration of the time between the
protected activity and the adverse action is only “part of the analysis.”
Shirley v. Chrysler First, Inc., 970 F.2d 39, 44 (5th Cir. 1992) (finding that
fourteen-month delay between a protected activity and a termination will not
necessarily preclude a finding of causation when the plaintiff can adduce
other evidence suggesting a causal relationship).
By analyzing only the spring 2018 e-mails as protected activity, the
district court found there was “no temporal proximity giving rise to a causal
link.” However, when the October report is considered as a protected
activity, the lapse between the protected activity and the materially adverse
action shrinks from “nearly one year” to six months. Cf. Raggs v. Miss. Power
& Light Co., 278 F.3d 463, 471–72 (5th Cir. 2002) (suggesting that five
months between a protected activity and an adverse act might establish
causation when coupled with other evidence of retaliation).
And, importantly, Martinez has provided other evidence of a causal
link between the October report and Jones’s retaliatory acts. Immediately
after Martinez circulated the October report, Jones made a comment about
disbanding the Equity Committee.5 She then restructured the Equity
Committee by creating subcommittees, which Martinez alleges diluted his
responsibilities. Eventually, Martinez was removed from the Equity
Committee altogether. That progression is enough for a reasonable juror to
_____________________
5
Though many of these acts, as unexhausted, could not properly establish the
“materially adverse” element of Martinez’s prima facie case, see supra II.A., they may
nonetheless serve as evidence suggesting a causal link between Martinez’s protected
activity and Jones’s exhausted retaliatory acts. See Stewart v. Miss. Transp. Comm’n, 586
F.3d 321, 331 (5th Cir. 2009) (“This court has repeatedly approved of the introduction of
previous conduct to illuminate currently actionable issues in discrimination and
harassment cases.”).
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find a causal link between the October report and Jones’s retaliatory acts at
the prima facie stage, particularly coupled with the fact that the Office of
Inclusion and Equity determined that Martinez likely did not make the anti-
Semitic remarks Jones alleged. Accordingly, Martinez has met the “less
stringent standard” to establish causation, see Ackel, 339 F.3d at 385, and he
has therefore established a prima facie case of retaliation.
III.
The district court erred in granting summary judgment for UT.
Martinez has established a prima facie case of retaliation. The court did not
consider UT’s proffered non-retaliatory reasons for the alleged retaliatory
actions or reach the question of pretext. We decline to do so in the first
instance on appeal. The district court’s summary judgment is therefore
reversed, and the case is remanded for proceedings consistent with this
opinion.
REVERSED AND REMANDED.
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