IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-51349

FLORENCIO PUENTE SAUCEDA, 

 Plaintiff–Appellant,

v.

CITY OF PEARSALL, TEXAS, 

 Defendant–Appellee.

Appeal from the United States District Court

for the Western District of Texas

USDC No. 5:13-CV-784

Before PRADO, SOUTHWICK, and GRAVES, Circuit Judges.

PER CURIAM:*

The district court granted summary judgment to Defendant–Appellee 

City of Pearsall, Texas, (the “City”) and dismissed Plaintiff–Appellant 

Florencio Puente Sauceda’s Title VII retaliation claim. Because we hold that 

Sauceda failed to rebut the City’s legitimate, non-retaliatory reason for 

suspending and ultimately terminating him, we affirm.

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

November 19, 2015

Lyle W. Cayce

Clerk

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I. FACTUAL AND PROCEDURAL BACKGROUND

Sauceda was hired by the City of Pearsall as its City Manager on March 

20, 2012. When Sauceda assumed this position, he entered a city government 

with issues of harassment and inappropriate behavior. For instance, in June 

2011, Rebecca Maldonado, a city employee, filed a complaint against City 

Councilman Ronaldo Segovia alleging discrimination, harassment, retaliation, 

and physical abuse. Another employee, Amy Diaz, also filed a complaint 

regarding Segovia’s alleged harassment. In response, the City Council publicly 

censured Segovia. 

According to Sauceda, shortly after he was hired, Segovia began 

pressuring him to engage in illegal and improper conduct. Sauceda states that 

Segovia “ordered me to terminate Ms. Rebecca Maldonado” because Segovia 

was upset that Maldonado had made a complaint against him. Sauceda also 

states that Segovia “ordered me not to hire certain females” and “ordered me 

to terminate” another employee because he “was ‘too old.’” Sauceda alleges that 

because he refused to comply with Segovia’s demands, he was targeted for 

termination. 

Sauceda stated in his deposition that in the summer of 2012, four 

members of the City Council, including Segovia, confronted him at his office in

City Hall and demanded that he resign and threatened to fire him. Sauceda 

says that he believes the reason they demanded his resignation was because 

he had failed to comply with Segovia’s commands that he fire certain 

employees. When pressed further, however, Sauceda concedes that no 

demands to fire anyone were made at that meeting and the City Council 

members stated they were asking for his resignation because they “did not like 

[his] management style” and “had lost confidence in [him].”

Sauceda, however, was not immune from allegations of improper 

conduct. Approximately a month after he was hired, two female employees filed 

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complaints alleging that Sauceda had made inappropriate statements. These 

complaints were later dismissed by the City’s Ethics Commission. In October 

2012, several more female employees made complaints against Sauceda. 

Rhonda Gonzalez stated that in July 2012, Sauceda inappropriately referred 

to her as having “a gift” because she had a long tongue. To corroborate her 

allegation, Gonzalez provided a July 6, 2012, email sent from Sauceda to 

Gonzalez and four other employees in which Sauceda referred to Gonzalez as 

“Ms. Gift.” Audry Jones alleged that Sauceda had made inappropriate 

comments to her during her interview, stating that he had told her, “‘Your [sic] 

really pretty, you look so exotic, you have pretty eyes.’” Delicia Hernandez 

complained that Sauceda made lewd comments about her tongue ring, 

commented on her looks, and inferred that she must be experienced at 

intercourse because she had three children, repeatedly saying that “‘everyone 

knows how to dance, you have 3 kids don’t you’ . . . like ‘dancing in bed.’”

Finally, Lupita Lopez complained that Sauceda “told her that she needed to 

put on makeup” and wear high heels.

These complaints were made to the City’s Director of Human Resources, 

Cathleen Taylor. Taylor in turn reported the complaints to the City’s Special 

Counsel, Robert J. Perez. According to the City Council members, Perez 

delivered a report on his findings regarding the complaints against Sauceda. 

Based on Perez’s report, the City Council unanimously voted to suspend 

Sauceda without pay.1

According to the minutes from the November 12 City Council meeting, 

prior to the meeting, the City received a letter from Sauceda’s attorney. This 

letter stated that Sauceda had filed a Charge of Discrimination with the Equal 

 

1 The City’s Mayor, Albert Alvarez, was not present at this meeting. Accordingly, 

Segovia acted as Mayor Pro Tem and did not participate in the vote.

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Employment Opportunity Commission (EEOC) against the the City and 

Segovia and requested that the executive session be open to the public.2

On November 13, the day after the City Council voted to suspend him, 

Sauceda’s attorney sent a letter to Perez alleging that Sauceda’s suspension 

was unjustified and in violation of the Texas Whistleblower Act. According to 

this letter, Sauceda alleged that his suspension was in retaliation for reporting 

possible legal violations to the Frio County Attorney, Hector Lozano. The basis 

for this claim was a November 9 email sent by Sauceda to Lozano in which 

Sauceda alleged that City Council member Conrad Corassco “may have 

received goods and services from a city employee . . . in violation of City policy, 

ordinance, and/or state law.” Neither the letter from his attorney, nor 

Sauceda’s email, mentioned the complaints made against him or challenged

their veracity. Sauceda was terminated as City Manager on November 27, 

2012. 

Sauceda filed the instant suit in August 2013. Following the close of 

discovery, the City moved for summary judgment in August 2014. In November 

2014, the district court granted the City’s motion for summary judgment and 

dismissed Sauceda’s suit. The district court found that while Sauceda had 

made a prima facie case of retaliation, he had failed to show that the City’s 

proffered non-retaliatory reason for suspending and terminating him—the 

complaints of improper sexual conduct—was pretext. Namely, the district 

court held that Sauceda had not rebutted the sworn declarations of the City 

Council members who asserted that they decided to take action against 

Sauceda based solely on the complaints that he had made inappropriate 

 

2 Sauceda’s EEOC complaint recites the allegations that Segovia had ordered him not 

to hire females for certain positions and to fire several employees for allegedly illegal reasons. 

It also states that “[b]ecause I have refused to carry out Mr. Segovia’s wishes, he has placed

me on the City Council’s agenda for termination.” The EEOC dismissed Sauceda’s complaint 

in June 2013. 

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comments of a sexual nature to a number of female employees. Accordingly, 

the district court concluded that the City was entitled to judgment as a matter 

of law. 

II. JURISDICTION AND STANDARD OF REVIEW

The district court had jurisdiction pursuant to 28 U.S.C. § 1331. The 

district court entered judgment on October 21, 2014. Sauceda timely filed a 

notice of appeal. This Court has jurisdiction under 28 U.S.C. § 1291.

“We review a district court’s grant of summary judgment de novo.”

Morris v. Equifax Info. Servs., LLC, 457 F.3d 460, 464 (5th Cir. 2006). A court 

should grant summary judgment if no genuine issue of material fact exists and 

the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 

56(a). A fact is material if it “might affect the outcome of the suit under the 

governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). On 

a motion for summary judgment, while “[t]he evidence of the non-movant is to 

be believed, and all justifiable inferences are to be drawn in his favor,” id. at 

255, to avoid summary judgment, “[t]he non-movant must go beyond the 

pleadings and come forward with specific facts indicating a genuine issue for 

trial,” Piazza’s Seafood World, LLC v. Odom, 448 F.3d 744, 752 (5th Cir. 2006).

III. DISCUSSION

Sauceda raises one issue on appeal: Whether the district court erred in 

finding that he had failed to show that the City’s legitimate, non-retaliatory

reason for suspending and terminating him was pretext.

Sauceda’s claim of retaliation in violation of Title VII is analyzed under 

the McDonnell Douglas burden-shifting framework. Royal v. CCC & R Tres 

Arboles, L.L.C., 736 F.3d 396, 400 (5th Cir. 2013) (citing McDonnell Douglas 

Corp. v. Green, 411 U.S. 792, 807 (1973)). Pursuant to this framework:

(1) first, the employee must demonstrate a prima facie case of 

retaliation; (2) the burden then shifts to the employer, who must 

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state a legitimate non-retaliatory reason for the employment 

action; and (3) if that burden is satisfied, the burden then 

ultimately falls to the employee to establish that the employer’s 

stated reason is actually a pretext for unlawful retaliation.

Id.

Here, the parties agree that Sauceda established a prima facie case of 

retaliation and Sauceda does not challenge the district court’s conclusion that 

the City met its burden of proffering a legitimate, non-retaliatory reason for 

suspending and terminating him. Accordingly, the burden falls to Sauceda to 

“demonstrate a material issue of disputed fact as to whether the [City’s] 

proffered explanation was merely a pretext for retaliation.” Gee v. Principi, 289 

F.3d 342, 347 (5th Cir. 2002). This requires more than showing a causal 

connection between the protected activity and the adverse employment action. 

See McMillan v. Ruse Coll., Inc., 710 F.2d 1112, 1116 (5th Cir. 1983). “In order 

to avoid summary judgment, the plaintiff must show ‘a conflict in substantial 

evidence’ on the question of whether the employer would not have taken the 

action ‘but for’ the protected activity.”3 Feist v. La., Dep’t of Justice, Office of 

the Atty. Gen., 730 F.3d 450, 454 (5th Cir. 2013) (quoting Long v. Eastfield 

Coll., 88 F.3d 300, 308 (5th Cir.1996)).

The district court held that Sauceda had not met this burden because he 

had failed to rebut the declarations of the City Council members or show the 

existence of a conflict in the evidence. Sauceda contends that this was in error

because the district court focused too narrowly on the harassment complaints 

while ignoring the broader context of his allegations. We disagree.

 

3 “An employee has engaged in protected activity when [he or] 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, proceeding, or hearing’

under Title VII.” Douglas v. DynMcDermott Petroleum Operations Co., 144 F.3d 364, 372 (5th 

Cir. 1998) (quoting 42 U.S.C. § 2000e-3(a)).

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Here, five of the City Council members who participated in the vote to 

suspend and ultimately terminate Sauceda submitted declarations under 

penalty of perjury testifying that they decided to take these actions based on 

Special Counsel Perez’s investigation and report regarding the complaints that 

Sauceda had made improper sexual comments to female employees. According 

to these declarations, the City Council members were persuaded the 

complaints had merit and warranted termination. Each of these City Council 

members also declared that prior to voting, they were unaware of Sauceda’s 

allegations that Segovia had pressured him to engage in allegedly unlawful 

and discriminatory conduct or that Sauceda had purportedly refused to comply 

with these demands. 

In response, Sauceda contends that a conflict in the evidence exists 

because he testified in his deposition that Segovia had threatened to terminate 

him numerous times if he didn’t fire certain female employees and that three

other City Council members took part in this threat in the summer of 2012 

when they confronted Sauceda in his office. However, Segovia did not 

participate in the vote to suspend or terminate Sauceda,4 and five of the other 

City Council members assert that they terminated Sauceda solely due to the 

complaints of improper sexual conduct that had been made against him. These 

declarations directly undermine Sauceda’s argument that his protected 

activities were a “but for” cause of the adverse actions taken against him. 

Because Sauceda failed to present evidence sufficient to rebut these 

 

4 In his appellate brief, Sauceda argues for the first time that Segovia’s alleged 

retaliatory intent should be imputed to the other City Council members because he had 

influence over, or control of, a majority of the City Council votes. Because this argument was 

not properly raised before the district court we will not consider it here. See Keelan v. Majesco 

Software, Inc., 407 F.3d 332, 339 (5th Cir. 2005) (“If a party fails to assert a legal reason why 

summary judgment should not be granted, that ground is waived and cannot be considered 

or raised on appeal.” (quoting Keenan v. Tejada, 290 F.3d 252, 262 (5th Cir. 2002))).

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declarations, he did not show a conflict in substantial evidence on the issue of 

whether his protected activities were a but for cause of his suspension and 

termination. Rather, the record shows that Sauceda was suspended and 

terminated for an entirely independent reason—his alleged inappropriate 

sexual conduct. Accordingly, Sauceda failed to raise a genuine issue of material 

fact as to whether the City’s legitimate, non-retaliatory reason was pretext, 

and judgment as a matter of law against him was appropriate. 

IV. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the district court 

and DISMISS Sauceda’s appeal.

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