* 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.

1 United States Court of Appeals

Fifth Circuit



## FILED

April 8, 2005

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________________

No. 04-20199

__________________________

WALTER BREGON,

Plaintiff - Appellant,

versus

AUTONATION USA CORPORATION; ET AL

Defendants,

AUTONATION USA CORPORATION; AUTONATION USA; AUTONATION INC

AUTONATION INC, formerly known as Mercedes Benz of Houston Greenway; HOUSTON

AUTO IMPORTS GREENWAY LTD; HOUSTON AUTO IMPORTS GREENWAY LTD, also

known as Park Place Motorcars South; HOUSTON AUTO IMPORTS GREENWAY LTD, also

known as Mercedes Benz of Houston Greenway,

Defendants - Appellees.

___________________________________________________

Appeal from the United States District Court

For the Southern District of Texas, Houston

(No. 4:02-CV-192)

___________________________________________________

Before JOLLY, DAVIS, and CLEMENT, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge: *

Plaintiff-appellant Walter Bregon appeals the district court’s grant of defendants’ motion for

summary judgment and denial of Bregon’s M ot ion for Leave to Extend Time and his Motion to1 Bregon first was employed with Mercedes Benz of Houston – Greenway, which was

owned by Park Place Motor Cars of Houston, Ltd. In 1999, that dealership was purchased by

Houston Auto Imports Greenway, Ltd., a subsidiary of AutoNation. Bregon concedes that he has

no complaint against any of the Park Place defendants and has indicated he will dismiss them from

his complaint.

2 Reopen Discovery, Amend Designation of Experts and Third Moti on to Compel. For the following

reasons, we reverse and remand for proceedings consistent with this opinion.

I.

Walter Bregon, an Hispanic ma le, wo rked from 1997 until March 20, 2001 as a Sales

Consultant at Houston Auto Im ports Greenway, Ltd. (HAIG). 1 Bregon was an effective if abrupt

salesman, garnering the Mercedes Benz USA Star Achiever Award in 2000 for his “significant role

in making [his] dealership successful.” In November 2000, as Bregon began to agit at e for a

managerial position at the Dealership, he contemporaneously began to receive disciplinary warnings

about his behavior. On March 13, 2001, he filed a co mplaint with the Equal Employment

Opportunity Commission (“EEOC”) for discriminatory failure to prom ote. One week later, he was

fired. He amended his complaint to include retaliatory discharge.

Bregon filed suit in district court alleging disc riminatory failure to promote,

discriminatory/retaliat o ry t ermination under the Texas Commission on Human Rights Act

(“TCHRA”), Tex. Lab. Code Ann. § 21.001 et seq.

, and Title VII of the Civil Rights Act of 1964

(“Title VII”), 42 U.S.C. § 2000e et seq.

, intentional inflict ion of emotional

dist ress, and negligent

hiring, retention and supervision under state law. Defendants moved for summary judgment.

The district court, adopting the magistrate judge’s findings and recommendations, concluded

that Bregon failed to provide competent summary judgment evidence that he was directly employed

by defendants AutoNation USA Corporati on, AutoNation USA, AutoNation, Inc., and AutoNation,3

Inc., formerly known as Mercedes Benz of Houston-Greenway. Those entities were dismissed from

the suit, leaving only HAIG. The district court’s order also dismissed all of the state law claims.

Bregon does not raise these issues on appeal, and these matters therefore are not before us.

The district court also dismissed Bregon’s discriminatory failure to prom ote and the

discriminatory/retaliatory termination cl aims. The district court concluded that Bregon failed to

sa t isfy the third prong of the M cDonnell Douglas burden-shifting requirement for discriminatory

failure to prom ote, failed to make a prima facie case for discrimina tory termination, and fai l ed to

make a prima facie case for retaliatory termination. See McDonnell Douglas Corp. v. Green , 411

U.S. 792 (1973). For the reasons contained in Part III, those decisions are reversed.

The district court denied Bregon’s motions to compel based on the reasons set forth in its

conclusions regarding the discrimination and retaliation claims. To the extent that the denials of the

motions rely on the reasoning now reversed, those denials are vacated. We remand those motions

with instructions to reconsider in a manner consistent with this opinion.

II.

This Court reviews a grant of summary judgment de novo

. P rice v. Fed. Express Corp.

, 283

F.3d 715, 719 (5th Cir. 2002). Summary judgment must be granted if “the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there

is no g enuine issue as to any material fact and that the moving party is entitled to judgment as a

matter of law.” F E D

. R. C IV

. P. 56(c); see also Price , 283 F.3d at 719. “On a motion for summary

judgment, a court must review the facts in the light most favorable to the non-movant.” Id

.

III.

The analysis of Title VII claims under the McDonnell Douglas framework is as follows:4

First, the plaint iff must establish a prima facie case of discrimination.

. . . . The burden

the[n] shift[s] to respondent to produc[e] evidence that the plaint iff was rejected, or

someone else was preferred, for a legitimate, nondiscriminatory reason.

. . . [Finally]

the plaint iff

. . . must be afforded the opportuni ty to prove by a preponderance of the

eviden ce that the legitimate reasons offered by the defendant were not its true

reasons, but were a pretext for discrimination.

Reeves v. Sanderson Plumbing Prods., Inc.

, 530 U.S. 133, 142–43 (2000) (internal quotati ons and

citations omitted). Claims of discrimination under the TCHRA are evaluated under the same burden

shift ing analysis as Title VII claims. Shackelford v. Deloitte & Touche, L.L.P. , 190 F.3d 398, 404

n.2 (5th Cir. 1999).

A. Discriminatory Failure to Promote

The district court determined that Bregon met his prima facie case for discriminatory failure

to prom ote. HAIG responded with testimony from the dealership’s general manager, Mike Sullivan,

that he believed Bregon to be unqualified for the position because he “had a temperament problem”

and “exploded at other employees.” For the final prong of the M cDonnell Douglas burden-shifting

test, Bregon must show that the employer’s reason is pretext either by offering evidence that would

disprove the reason or demonstrate ulterior motive. R eeves

, 530 U.S. at 147–48. The district court

concluded that “there is no evidence that Sullivan denied Plaint iff a promotion because of his national

origin, which is the only issue before the court.” In fact, Bregon offered testimony from another of

his supervisors, Matt Burkholder, that Bregon had a good relationship with Burkholder, his

colleagues, and the customers. This evidence contradicts defendant’s stated reason that Bregon was

unqualified. Further, Bregon provided evidence that other minorities had complained about

promotion discrimination. Therefore, we conclude that Bregon had presented sufficient evidence to

find that HAIG’s asserted justification is false, which may permit a trier of fact to conclude that HAIG

unlawfully discriminated. See id. at 148.5

B. Discriminatory Termination

The district court concluded that Bregon failed to make a prima facie case that he was fired

because of race discrimination. Bregon must demonstrate that he (1) is a member of a protected class,

(2) he was qualified for the position, (3) he was discharged, and (4) his employer filled the position

with a person who is not a member of the protected class, or in a disparat e treatment case, was

treated less favorably than a similarly situated employee of another race. See, e.g.

, Okoye v. Univ.

of Tex. Houston Health Sci. Ctr.

, 245 F.3d 507, 512–13 (5th Cir. 2001). We conclude that Bregon

has made a prima facie case and has provided evidence that, when “taken as a whole[,] (1) creates

a fact issue as to whether each of the employer’s state d reasons was what actually motivated the

employer and (2) creates a reasonable inference that [race] was a determinative factor in the actions

of which plaint iff complains.” R hodes v. Guiberson Oil Tools

, 75 F.3d 989, 994 (5th Cir. 1996) (en

banc). The district court dismissed this claim in error and Bregon should be allowed to present his

discriminatory termination claim to the trier of fact.

C. Retaliatory Termination

The distric t court concluded that Bregon had not made a p rima facie case for retaliatory

termination. Specifically, it found that he failed to show that “there was a causal connection between

t he participation in the protected activity . . . and the adverse employment action.” W ebb v.

Cardiothoracic Surgery Assocs., P.A. , 139 F.3d 532, 540 (5th Cir. 1998). However, Bregon was

fired only a week after he filed his complaint and he offered evidence that people at work were likely

aware of his complaint. This Court has held that the combination of t emporal proximity and

possibility of knowledge of the complaint is sufficient to satisfy a defendant’s prima facie burden for

a retaliation claim. S ee, e.g.

, Evans v. Houston

, 246 F.3d 344, 354 (5th Cir. 2001) (finding a prima6

facie case when plaintiff was fired five days after complaint filed); Sw anson v. Gen. Servs. Admin.

,

110 F.3d 1180, 1188 (5th Cir. 1997) (one day); see also Handzlik v. United States , 93 Fed. Appx.

15, 19 (5th Cir. 2004) (unpublished) (two months). Bregon satisfied this burden.

IV.

For the foregoing reasons, we REVERSE, VACATE and REMAND the grant of summary

judgment on the issues of discriminatory failure to prom ote and discriminatory and retaliatory

discharge under the TCHRA and Title VII. We VACATE the denial of Bregon’s motions to compel,

with instructions to reconsider them in a manner consistent with this opinion.