holding evidence of subordinates' animus precluded summary judgment regarding final decision maker's liability when subordinates recommended plaintiffs' termination and directed other employees to prepare written statements presented to final decision maker, and the only explanation plaintiffs received from final decision maker regarding their discharge was that he "made a decision to uphold the recommendation of your supervisor[s] to terminate your employment"
How later courts described this case
- holding evidence of subordinates' animus precluded summary judgment regarding final decision maker's liability when subordinates recommended plaintiffs' termination and directed other employees to prepare written statements presented to final decision maker, and the only explanation plaintiffs received from final decision maker regarding their discharge was that he "made a decision to uphold the recommendation of your supervisor[s] to terminate your employment"
- concluding that if the innocent supervisor Adid not conduct his own independent investigation, and instead merely >rubber stamped= the recommendation of [the discriminatory supervisors], the causal link between [the employees=] protected activities and their subsequent terminations would remain intact.@
- concluding that if the innocent supervisor “did not conduct his own independent investigation, and instead merely ‘rubber stamped’ the recommendation of [the discriminatory supervisor], the causal link between [the employees’] protected activities and their subsequent terminations would remain intact.”
- concluding that in light of the evidence that the employer knew about the protected activity and took the adverse employment action thereafter, “we have no trouble finding sufficient evidence, for prima facie case purposes, to establish a causal link”
Written by the judges who cited it.
The opinion
*310 DeMOSS, Circuit Judge,
concurring in part and dissenting in part.
I concur in Part II.B. of the panel opinion wherein in the majority affirms the district court’s grant of summary judgment in favor of Eastfield College on the hostile work environment claims of both Long and Reavis. I respectfully dissent, however, from Part II.A. of the panel opinion which reverses the grant of summary judgment by the district court in favor of Eastfield College on the “unlawful retaliation” claims of Long and Reavis.
I write to express my utter amazement at the conundrum which the panel opinion creates: On the one hand, the panel concludes (I think correctly) that no reasonable jury could conclude that the facts and circumstances alleged by Long and Reavis could constitute a hostile work environment based on sex or race. But on the other hand, the panel concludes (I think incorrectly) that the same reasonable jury could conclude that Long and Reavis had a “reasonable belief’ that the alleged actions constituted discrimination based on race or sex sufficient to support a retaliation claim against their employer.
There is nothing in the text of 42 U.S.C. § 2000e-3(a) which could possibly suggest that the subjective “reasonable belief’ of an employee can suffice as the basis for that employee’s opposition or protest as to an unlawful employment practice. The statutory text is clear and unambiguous: “because he has opposed any practice made an unlawful employment practice by this chapter.” The statute says “made.” It does not say “because he has opposed any practice which he reasonably thinks or believes is an unlawful employment practice.” This is one of those classic cases where the courts (including regrettably our own Fifth Circuit) have, in my view, read into a statutory provision a circumstance that is not there in the language of the statute itself.
Furthermore, I have great difficulty in seeing that the “opposition” clause of § 2000e-3(a) was intended to give the employee victim another ground of recovery. Obviously, the employee who thinks he is the victim of racial or sexual discrimination would quite normally have a feeling of “opposition” to the practices that he feels are discriminatory. Rather, I would say the “opposition” clause is intended to protect third party employees who are not themselves the victim of the “unlawful employment practice” but who “oppose” that practice by speaking out against it or writing reports against it or by orally reporting to a superior the circumstances constituting an “unlawful employment practice.” The opposition clause is in effect a form of “whistle blower” relief.
Finally, if we are going to work with the “reasonable belief’ element, we should make clear that the test is not whether Long and Reavis subjectively entertained a reasonable belief, but rather whether the average person similarly situated in the circumstances asserted by Long and Reavis would reasonably believe that an unlawful employment practice existed. Given (1) the limited nature of the references to race or sex in this case; (2) the infrequency in time of the incidents in this case; (3) the lack of specificity in the claims of Long and Reavis; (4) the period of time which elapsed between the events which Long and Reavis asserted to be unlawful and the registering of their complaints and between the registering of their complaints and their final termination; and (5) that the summary judgment evidence showed that the decision to terminate them was made by Dr. Agüero and there is nothing in that summary judgment evidence to indicate that Dr. Agüe-ro was aware of any of the alleged complaints by Long and Reavis of hostile environment based on race or sex, I would hold that no rational juror could conclude that a reasonable employee in the same circumstances could reasonably believe that they were discharged for opposing unlawful employment practice. I would affirm the district court’s grant of summary judgment in favor of East-field College on the retaliation claims.