Sidna B. Gee v. Anthony Principi, Secretary, Department of Veterans Affairs

EMILIO M. GARZA, Circuit Judge,

dissenting:

This Title VII retaliation case requires us to determine if the appellant, Sidna Gee, has made the requisite prima facie showing of causation in order to survive Anthony Prineipi’s motion for summary judgment. Specifically, we must discern whether Gee has established a causal link between her protected conduct in filing a harassment claim against Dr. John Bryan *349 with the Equal Employment Opportunity Commission, and her non-selection for a new employment position at the VA Medical Center where the person charged with filling that position, Lee Gibbs, had no knowledge of Gee’s previous harassment claims. The majority essentially contends that because Bryan and Wallace Hopkins, who knew of Gee’s previous harassment claim, made negative comments to Gibbs at a meeting in which the new employment position was discussed, Gee has established such a causal link.

In contrast to the majority, I believe that although Gibbs, the ultimate decision maker, may have received information allegedly tainted by impermissible retaliatory motives, his subsequent independent investigation severed the connection between Bryan’s and Hopkins’ retaliatory animus and his ultimate decision not to appoint Gee to the new position. I agree with the district court’s conclusion that a reasonable jury could not have found that Gibbs was merely Bryan’s or Hopkins’ “cat’s paw,” or that the review process was a sham or conduit for their alleged retaliatory motives. Instead, the evidence establishes that Gibbs conducted a full and thorough review before reaching his decision not to appoint Gee to the new position.

As the majority points out, we have previously considered retaliation cases in which the person with the retaliatory motive is distinct from the person making the adverse employment decision. Long v. Eastfield College, 88 F.3d 300 (5th Cir.1996). In Long , two supervisors, who had previously had sexual discrimination charges filed against them, recommended that two of their female employees, who had filed the complaints, be terminated for illegally duplicating several keys. The supervisors submitted their recommendations to the president of the college, who made the final termination decision. We held that, in order to survive summary judgment, the plaintiffs had to create a genuine issue of material fact as to whether the ultimate decision maker exercised independent judgment in reaching his decision. We stated: “If [the president] based his decision on his own independent investigation, the causal link between [the supervisors’] allegedly retaliatory intent and [the employees’] terminations would be broken.” Id. at 307 . We went on to say, however, that “[i]f, on the other hand, [the president] did not conduct his own independent investigation, and instead merely ‘rubber stamped’ the recommendations of [the supervisors], the causal link between [the employees’] protected activities and their subsequent terminations would remain intact.” Id.

The facts of this case are analogous to those in Long . As in Long , Gibbs was not motivated by impermissible retaliatory motives. Gee presented evidence, however, that both Bryan and Hopkins allegedly recommended that Gibbs not appoint Gee to the new position. 1 Given these facts, the majority, without any further analysis, simply concludes that Gee has established a causal link between Bryan’s and Hopkins’ alleged retaliatory actions and Gee’s non-selection.

The majority’s conclusion conflicts with our decision in Long. Long stands for the proposition that a decision maker who is *350 improperly influenced can nevertheless purge the taint of retaliatory motives by conducting a subsequent independent investigation. Thus, under Long , once Gee established that Gibbs was improperly influenced by persons with retaliatory motives, the question then becomes whether Gibbs conducted an independent investigation.

Here, even though Gibbs may have received negative recommendations from Bryan and Hopkins, Gibb’s independent investigation severed the causal nexus between the statements and Gee’s non-selection for the position. Gee acknowledges and the majority concedes that Gibbs consulted with the candidates’ supervisors. Gibbs also spoke with several employees within his own department and who had worked closely with Gee. Gibbs also interviewed both Gee and Linda Boyd, the candidate who ultimately obtained the position. Based on this information, Gibbs concluded that Gee was a good employee, but often absent for a variety of reasons. Thus, he decided that Gee was not the most qualified candidate for a position which apparently placed a premium on daily interaction with other employees. Gibbs further testified that although he took into account the recommendations made by all of the people he spoke with, the decision to hire Boyd was his own. Given this uncontested evidence, no reasonable jury could find that Gibbs merely “rubber stamped” the recommendations of Hopkins and Bryan. As such, Gee has failed to establish her prima facie case.

For the foregoing reasons, I would AFFIRM the judgment of the district court.

. Principi argues that Bryan and Hopkins had no retaliatory motive at all, focusing on the fact that the original sexual harassment complaint occurred two years earlier. Viewing the facts in the light most favorable to Gee, we should presume that such animus continued to exist. Nevertheless, because Gibbs conducted his own independent investigation, the causal connection between Bryan's and Hopkins’ impermissible retaliatory motives and the adverse employment action was severed.