IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-51111

Summary Calendar

GEORGE CHAVEZ, 

 Plaintiff – Appellant,

v.

CITY OF SAN ANTONIO, 

 Defendant – Appellee.

Appeal from the United States District Court

for the Western District of Texas

USDC No. 5:14-CV-84

Before HIGGINBOTHAM, ELROD, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

George Chavez, a police officer for the City of San Antonio, alleges that 

he was subjected to harassment after he began dating his supervisor’s ex-wife, 

and to retaliation after he complained about the harassment, including most 

significantly his transfer out of the police academy. Chavez appeals the district 

court’s summary judgment in favor of the City, arguing that 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.

United States Court of Appeals

Fifth Circuit

FILED

July 29, 2016

Lyle W. Cayce

Clerk

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No. 15-51111

2

applied an overly stringent but-for causation requirement to his Title VII 

retaliation claim. Because the district court applied the correct standard and 

Chavez has not raised a genuine issue of material fact as to pretext, we 

AFFIRM.

We review a grant of summary judgment de novo, viewing all evidence 

in the light most favorable to the nonmoving party and drawing all reasonable 

inferences in that party’s favor. Kariuki v. Tarango, 709 F.3d 495, 501 (5th 

Cir. 2013). Summary judgment is proper if the evidence shows that there is no 

genuine issue as to any material fact and that the moving party is entitled to 

a judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 

(1986).

To establish actionable retaliation under Title VII, a plaintiff must first 

make a prima facie showing that he engaged in a protected activity, that an 

adverse employment action occurred, and that a causal link existed between 

the protected activity and the adverse action. Hernandez v. Yellow Transp., 

Inc., 670 F.3d 644, 657 (5th Cir. 2012). The burden then shifts to the employer

to demonstrate a legitimate non-discriminatory purpose for the employment 

action. Id. If the employer does so, the plaintiff in order to survive summary 

judgment must raise a genuine issue of material fact as to whether the 

employer’s stated reason for the adverse action was merely a pretext for the 

real, discriminatory purpose. Gee v. Principi, 289 F.3d 342, 345 (5th Cir. 

2002)).

The district court, adopting the magistrate judge’s report and 

recommendation, found that Chavez had established a prima facie case but 

had not raised a fact issue as to whether the City’s proffered reasons for its 

actions were pretext for retaliation. The crux of Chavez’s appeal is that the 

district court erred in determining that to establish pretext, Chavez had to 

produce evidence that retaliation was more than a motivating factor for the 

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adverse employment action. We assume for the sake of argument that Chavez 

established a prima facie case of retaliation based on his transfer out of the 

police academy after he filed a complaint with the EEOC.1

The Supreme Court has recently explained that “Title VII retaliation 

claims must be proved according to traditional principles of but-for causation,” 

which “requires proof that the unlawful retaliation would not have occurred in 

the absence of the alleged wrongful action or actions of the employer.” Univ. 

of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013). The Court 

expressly rejected application of the less stringent “motivating factor” test used 

for discrimination claims under Title VII. Id. Chavez argues that the Court’s 

subsequent decision in Burrage v. United States, 134 S. Ct. 881 (2014), 

modified this standard, but Burrage, which quoted Nassar in its discussion of 

the causation requirement in the Controlled Substances Act, neither altered 

Nassar’s but-for causation requirement nor involved Title VII. Because Nassar

is directly on point and controls, the district court did not err in requiring 

Chavez to produce evidence that retaliation was more than merely a 

motivating factor for his transfer.

As the district court correctly found, the City produced evidence that the 

most important reason for Chavez’s transfer was that he was “apparently 

incapable or unwilling to control his emotions, anger, and speech, especially 

when considering the cadets,” despite having been repeatedly counseled and 

warned about his profane and abusive language over the course of more than 

 

1 Chavez alleges a series of harassing or retaliatory events, many of which are timebarred or do not relate to activities or characteristics protected by Title VII. On appeal, 

Chavez fails to clearly identify the particular adverse employment actions for which he 

argues he has raised a genuine issue of material fact as to pretext, nor does his argument 

cite to the evidence that purportedly raises a fact issue. Although the City disputes that 

Chavez was subjected to any adverse employment action, we need not decide this issue in 

light of Chavez’s failure to establish a fact issue on pretext.

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two years. Chavez admitted using profane language. Despite making 

conclusory arguments that there is abundant evidence of pretext, he cites to no 

evidence suggesting that his EEOC complaint was even a motivating factor in 

his transfer, much less that he would not have been transferred but for his 

filing of the complaint. In fact, the uncontroverted evidence is that the 

ultimate decisionmaker, Chief William McManus, was unaware that Chavez 

had filed an EEOC complaint when he approved the transfer.2

Accordingly, we AFFIRM the district court’s summary judgment in favor 

of the City of San Antonio.

 

2 Assuming, arguendo, that any of Chavez’s internal complaints were protected 

conduct under Title VII, he likewise has not presented evidence suggesting that they were 

but-for causes of his transfer.

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