     Case: 11-50016     Document: 00511527609         Page: 1     Date Filed: 07/01/2011




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

                                                                            FILED
                                                                            July 1, 2011

                                     No. 11-50016                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



TERESA KAY THOMPSON,

                                                  Plaintiff-Appellant
v.

SOMERVELL COUNTY, TEXAS,

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 6:10-CV-62


Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
        Plaintiff Teresa Thompson (“Thompson”) appeals from the district court’s
grant of summary judgment to Defendant Somervell County (“Somervell County”
or “County”). Because Thompson failed to establish a prima facie case of Title
VII retaliation, we AFFIRM the judgment of the district court.




        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
   Case: 11-50016     Document: 00511527609   Page: 2   Date Filed: 07/01/2011



                                 No. 11-50016

I. Background
      Thompson began employment with Somervell County in May 1995 and
became an Assistant County Auditor the next year. In August 2005 she alleged
that Darrell Morrison (“Morrison”), the County Auditor, had sexually harassed
her. Although Thompson filed a written report with Ken Thrasher (“Thrasher”),
the County’s Personnel Director, she ultimately decided not to pursue her
complaint after Morrison apologized to her and signed a statement to that effect.
Although she alleges that she continued to feel uncomfortable working with
Morrison, Thompson remained at the County Auditor’s office for three more
years without incident.
      In 2008, Thompson transferred to the Somervell County Expo Center.
Thompson does not deny that she struggled with her responsibilities in this new
position. She had difficulties keeping the bank account balanced and failed to
keep a deposit ledger as she had been instructed. Her supervisor at the Expo
Center, Mike Dooley (“Dooley”), discussed these problems with her, but he did
not discipline her.    However, due to her difficulties at the Expo Center,
Thompson began looking for other positions. On May 4, 2009, Thompson asked
Thrasher for her personnel file, including the written report of her sexual
harassment complaint. Thompson told Thrasher that she “was going to do
whatever it took to make this right.” Thompson testified that she wanted the
paperwork “to explain why [she] had to take [the Expo Center] job. [She] simply
wanted to find a job in the County for which [she] was better suited.” She
received the personnel file on May 11.
      On May 18, 2009, Dooley reprimanded Thompson for her poor work quality
for the first time. The next day, he sent her a Work Deficiencies Memorandum
(“Memorandum”), detailing her errors in drafting contracts and balancing the
bank account.    The letter stated that “[t]here are several deficiencies in



                                         2
   Case: 11-50016    Document: 00511527609         Page: 3   Date Filed: 07/01/2011



                                  No. 11-50016

[Thompson’s] work that must be corrected” and that Thompson could not “hold
[the] position if the errors are not corrected.”
      After receiving the Memorandum, Thompson continued to submit
contracts with substantive errors. In one contract, Thompson failed to verify the
dates for shows and rehearsals as directed. As a result, all twenty dates in the
contract were wrong. Dooley directed Thompson to have co-worker Abe Comacho
help her, but when Dooley discussed the matter with Comacho, Comacho
indicated that Thompson had not sought his assistance. On June 1, 2009,
Dooley told Thompson that she would have to resign by the end of the next day
or she would be terminated. Thompson did not resign, and Dooley fired her as
indicated.
      Thompson claims that her relationship with Dooley became less warm and
more professional after she requested her paperwork. She also claims that
during this time, when discussing an incident in which a patron of an Expo
Center event was injured, Dooley opined that an employee would be more likely
than an outsider to sue the County.
      Thompson brought suit against Somervell County alleging that she was
fired in retaliation for requesting the documentation of her sexual harassment
report from 2005. After discovery, the County filed a motion for summary
judgment, arguing that Thompson had not engaged in a protected activity and
that there was no evidence of a causal link between her request and her
termination. The district court granted the County’s motion, and Thompson
timely appealed.
II. Analysis
      This court reviews a district court’s grant of summary judgment de novo,
applying the same standard as the district court. Brumfield v. Hollins, 551 F.3d
322, 326 (5th Cir. 2008). Summary judgment is appropriate where the evidence



                                         3
   Case: 11-50016      Document: 00511527609         Page: 4    Date Filed: 07/01/2011



                                      No. 11-50016

demonstrates that there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law. Id.
       Thompson’s suit alleges that Somervell County retaliated against her for
engaging in activity protected by Title VII.             See 42 U.S.C. § 2000e-3(a).
Specifically, Thompson alleges that the County fired her because she asked for
the paperwork detailing Morrison’s sexual harassment toward her. Where a
plaintiff alleges unlawful retaliation in violation of Title VII, the court employs
the burden-shifting analysis the McDonnell Douglas1 burden-shifting
framework. See Long v. Eastfield College, 88 F.3d 300, 304 (5th Cir. 1996).
       Under the first step of the McDonnell Douglas framework, the plaintiff
must make a prima facie case of discrimination.                  See Turner v. Baylor
Richardson Med. Ctr., 476 F.3d 337, 348 (5th Cir. 2007). To make a prima facie
case of retaliation, Thompson “must demonstrate that: (1) she engaged in
protected activity; (2) an adverse employment action occurred; and (3) a causal
link exists between the protected activity and the adverse employment action.”
Id. The district court determined that Thompson had failed to make a prima
facie case of retaliation under Title VII because she failed to establish that she
had engaged in protected activity or that there was a causal connection between
her termination and her claimed protected activity.
       A. Protected Activity
       “An employee has engaged in protected activity when she has (1) ‘opposed
any practice made an unlawful employment practice’ by Title VII or (2) ‘made a
charge, testified, assisted, or participated in any manner in an investigation,

       1
        McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Under the McDonnell
Douglas framework, an employee must first establish a prima facie case of retaliation.
Hockman v. Westward Commc’ns., LLC, 407 F.3d 317, 330 (5th Cir. 2004). If successful, then
the employer must demonstrate a legitimate, nonretaliatory reason for the adverse
employment action. Id. If the employer meets this burden, the burden then shifts to the
employee to show that the employer’s stated rationale is pretextual and that engaging in the
protected activity was the but-for cause of the adverse employment action. Id.

                                             4
   Case: 11-50016     Document: 00511527609      Page: 5    Date Filed: 07/01/2011



                                   No. 11-50016

proceeding, or hearing’ under Title VII.” Douglas v. DynMcDermott Petroleum
Operations Co., 144 F.3d 364, 372 (5th Cir. 1998) (internal citations omitted).
As noted by the Supreme Court, “oppose” is undefined by Title VII and therefore
“carries its ordinary meaning.”       Crawford v. Metro. Gov’t of Nashville &
Davidson Cnty., Tenn., 129 S. Ct. 846, 850 (2009). Though the Court rejected a
definition of “oppose” that requires the opposition to be “active [and] consistent,”
id. at 851, it is clear that opposition nonetheless must be purposive. See id.
(“[W]e would call it ‘opposition’ if an employee took a stand against an employer’s
discriminatory practices not by ‘instigating’ action, but by standing pat, say, by
refusing to follow a supervisor’s order to fire a junior worker for discriminatory
reasons.”) (emphasis added); id. at 853 (Alito, J., concurring) (“The primary
definitions of the term ‘oppose’ . . . require conduct that is . . . purposive.”).
      In this case, Thompson emphasizes that, when requesting the
documentation of her sexual harassment report from four years earlier, she told
Thrasher that she “was going to do whatever it took to make this right,” arguing
that this constituted an “opposition” statement. See id. at 851 (“When an
employee communicates to her employer a belief that the employer has engaged
in . . . a form of employment discrimination, that communication virtually
always constitutes the employee’s opposition to the activity.” (internal quotation
marks and citation omitted) (alteration in original)). We conclude that the
district court did not err in finding this statement insufficient to qualify as
“opposition” given that Thompson’s admitted reason for requesting the
documentation was because she “simply wanted to find a job in the County for
which [she] was better suited.” This stated reason is also consistent with the
timing of the request, having been made nearly four years after the incident at
issue and more than three years after she signed a “no action” letter. Because
Thompson admits that her sole intent in requesting the documentation of her
sexual harassment complaint was to find another position within the County, no

                                          5
   Case: 11-50016    Document: 00511527609      Page: 6   Date Filed: 07/01/2011



                                  No. 11-50016

reasonable jury could find that the request was made with intent “to contend
against[,] confront[,] resist [or] withstand” any long ago discriminatory practices
by the County or its officials.      See id. at 850 (quoting WEBSTER’S NEW
INTERNATIONAL DICTIONARY 1710 (2d ed. 1958)); cf. Payne v. McLemore’s
Wholesale & Retail Stores, 654 F.2d 1130, 1136-37 (5th Cir. 1981) (affirming
district court’s finding of opposition where there was “substantial evidence . . .
that the purpose of the boycott and picketing was to opposed defendant’s
discrimination against blacks in certain employment opportunities”). Therefore,
Thompson’s request did not constitute opposition to an unlawful practice under
Title VII.
      B. Causal Link
      Thompson also failed to establish the third prong of a prima facie
retaliation case, a causal link between the alleged protected activity and the
adverse employment action. To establish the causal link between her request
for the sexual harassment documentation and her termination, Thompson relies
exclusively on the fact that she received the Memorandum within one week of
requesting the report and was terminated within one month of requesting the
report. However, even at the prima facie stage, temporal proximity can only
establish a causal link when it is connected to the decision maker’s knowledge
of the protected activity. See Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273
(2001) (per curiam) (“The cases that accept mere temporal proximity between an
employer’s knowledge of protected activity and an adverse employment action as
sufficient evidence of causality to establish a prima facie case uniformly hold
that the temporal proximity must be very close.” (emphasis added) (internal
quotation marks and citation omitted)); Cothran v. Potter, 398 F. App’x 71, 73-74
(5th Cir. 2010) (unpublished) (“The combination of temporal proximity and
knowledge of a protected activity may be sufficient to satisfy a plaintiff’s prima
facie burden for a retaliation claim”); Ramirez v. Gonzalez, 225 F. App’x 203, 210

                                        6
   Case: 11-50016   Document: 00511527609     Page: 7   Date Filed: 07/01/2011



                                 No. 11-50016

(5th Cir. 2007) (unpublished) (“Fifth Circuit precedent requires evidence of
knowledge of the protected activity on the part of the decision maker and
temporal proximity between the protected activity and the adverse employment
action.”); see also Brungart v. BellSouth Telecomms., Inc., 231 F.3d 791, 799
(11th Cir. 2000) (“[T]emporal proximity alone is insufficient to create a genuine
issue of fact as to causal connection where there is unrebutted evidence that the
decision maker did not have knowledge that the employee engaged in protected
conduct.”).
      In this case, Dooley testified that he was unaware that Thompson had
requested documentation of her sexual harassment report at the time that he
fired her, and his testimony is uncontroverted on this matter. Indeed, Thompson
admits that she has no evidence that Dooley knew that she had requested her
documentation other than to rely on the inference of temporal proximity.
Therefore, even if we were to assume that Thompson’s request for
documentation of her prior sexual harassment report constituted a protected
activity, Thompson has failed to establish even a prima facie causal link between
her request and her termination.
      III. Conclusion
      For the above reasons, we AFFIRM the district court’s summary judgment.




                                       7
