* District Judge of the Western District of Louisiana, sitting by designation. United States Court of Appeals

Fifth Circuit



## FILED

February 16, 2004

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

____________

No. 03-50268

____________

LORENZO PINEDA, III,

Plaintiff-Appellee.

versus

UNITED PARCEL SERVICE, INC.,

Defendant - Appellant.

Appeal from the United States District Court

for the Western District of Texas

Before DAVIS and EMILIO M. GARZA, Circuit Judges, and LITTLE * , District Judge.

EMILIO M. GARZA, Circuit Judge:

United Parcel Services’ petition for rehearing is GRANTED. The opinion of the court issued

on December 30, 2003, at 353 F.3d 414 (5th Cir. 2003), is withdrawn, and the fo l lowing is

substituted:

Lorenzo Pineda III brought this retaliation suit under the Texas Commission on Human Rights

Act all eging that United Parcel Services (“UPS”) terminated his employment in retaliation for his2

engaging in certain protected activity. The jury found for Pineda. The district court denied UPS’s

motion for a judgment as a matter of law, but it remitted the jury’s compensatory damages award.

In this appeal, UPS challenges the jury verdict and seeks further remittitur of the damage award. In

light of the Texas Supreme Court’s recent decision in Wal-Mart Stores, Inc. v. Canchola , 121

S.W.3d 735 (Tex. 2003), we find there is insufficient evidence to support the jury’s verdict.

I

Lorenzo Pineda worked as a business manager for UPS at its El Paso, Texas distribution

center. Pineda suffers from diabet es and t o o k a ten month medical leave of absence to treat his

condition. While on leave, Pineda filed a charge of disability discrimination against UPS for allegedly

delaying his return to work. Shortly thereafter he gave a deposition in a discrimination case brought

by another UPS employee. Pineda was subsequently transferred to a UPS facility in Del Rio, Texas.

While Pineda was working at the Del Rio facility, UPS human resources manager Kenny

Walker investigated charges that Pineda had threatened violence agai nst three of his coworkers.

Pineda denied making any such threats. Walker first suspended and later fired Pineda.

Pineda filed this retaliation suit under Texas law in state court and UPS removed to federal

court. Pineda alleged he was fired because he had engaged in the pro t ect ed activities of filing a

discrimination charge and testifying in a discrimination case. When UPS countered that it fired

Pineda pursuant to charges by Pineda’s coworkers alleging that he had made threats of vio lence,

Pineda asserted that the in vest igat ion was a pretext for UPS’s retaliatory purpose. To support his

contention, Pineda presented testimonial evidence that the alleged threats of violence never occurred

and that UPS had not pursued similar charges of violence and threatened violence with similar vigor.

The jury found for Pineda and awarded damages, including $400,000 worth of compensatory1 This is a diversity action, federal civil rights law is not implicated.

3 damages. Following the jury verdict, UPS renewed its motion for a judgment as a matter of law and

sought remittitur of the compensatory damages award. The district court refused to disturb the jury

verdict but remitted the compensatory damage award to $202,500. UPS now seeks review of both

rulings.

II

We re view a district court’s denial of a motion for judgment as a matter of law d e novo

.

Thomas v. Texas Dep’t of Criminal Justice

, 220 F.3d 389, 392 (5th Cir. 2000). A mo t ion for

judgment as a matter of law should be granted if “there is no legally sufficient evidentiary basis for

a reasonable jury to find for a party.” F E D

. R. C IV

. P. 50(a). Thus, “if reasonable persons could differ

in their interpretations of the evidence, then the motion should be denied.” T homas

, 220 F.3d at 392

(citing Baltazor v. Holmes

, 162 F.3d 368, 373 (5th Cir. 1998)). “A post-judgment mot ion for

judgment as a matter of law should only be granted when ‘the facts and inferences point so strongly

in favor of the movant that a rational jury could not reach a contrary verdict.’” Id. (quoting Waymire

v. Harris County, Texas

, 86 F.3d 424, 427 (5th Cir. 1996)). The jury’s verdict is afforded great

deference. Thus, when evaluating the sufficiency of the evidence, we view all evidence and draw all

reasonable inferences in the light most favorable to the verdict. Id.

Pineda brought his ret aliation claim under § 21.055 of the Texas Commission on Human

Rights Act (“TCHRA”). 1 S ee T EX

. L AB

. C ODE § 21.055 (Vernon 1996) (“An employer commits an

unlawful employment practice if the employer retaliates against a perso n who (1) opposes a

discriminatory practice; (2) makes or files a charge; (3) files a complaint; or (4) testifies, assists, or

participates in any manner in an investigation, proceeding, or hearing.”). The purpose the TCHRA2 Texas courts have articulated the same elements for establishing a prima facie case of

retaliation as federal courts. See Wal-Mart Stores, Inc. v. Lane , 31 S.W.3d 282, 295 (Tex. 2000).

4 is to provide for the execution of the policies of Title VII of the Civil Rights Act of 1964. T E X

. L AB

.

C ODE § 21.001(1) (Vernon 1996); Quantum Chem. Corp. v. Toennies

, 47 S.W.3d 473, 476 (Tex.

2001). Thus, “analogous federal statutes and the cases interpreting them guide” the reading of the

statute. Quantum , 47 S.W.3d at 476.

In a retaliation case, the plaint iff must first make a prima facie showing: 1) that he is engaged

in a protected activity; 2) that an adverse employment action occurred; a nd 3) that a causal l i nk

existed between the protected activity and the adverse action. 2 Gee v. Principi

, 289 F.3d 342, 345

(5th Cir. 2002). Once the plaintiff makes a p rima facie case, “the burden then shifts to the defendant

to demonstrate a legitimate nondiscriminatory purpose for the employment action.” I d. I f the

defendant meets this burden, then the “the plaint iff must prove that the employer’s stated reason for

the adverse action was merely a pretext for the real, discriminatory purpose.” I d. When there has

been a t rial on the merits, the evaluation process is streamlined and we proceed directly “to the

ultimate question of whether the plaint iff present ed enough evidence for a jury to find that

discrimination occurred.” T homas

, 220 F.3d at 393. To satisfy this burden, the plaintiff must offer

“ some evidence

. . . that permits the jury to infer that the proffered explanation was a pretext fo r

discrimination. The trier of fact may not simply choose to disbelieve the employer’s explanation in

the absence of any evidence showing why it should do so.” S wanson v. General Services Admin.

,

110 F.3d 1180, 1185 (5th Cir. 1997).

We have consistently held that in retaliation cases where the defendant ha s proffered a

nondiscriminatory purpose for the adverse employment action the plaint iff has the burden of proving3 The jury in this case was instructed to apply the “but for” standard.

5 that “but for” the discriminatory purpose he would not have been terminated. S ee Medina v. Ramsey

Steel Co., Inc.

, 238 F.3d 674, 685 (5th Cir. 2001) (Plaintiff “must demonstrate that h e would not

have been terminated ‘but for’ engaging in the protected activity.”); Long v. Eastfield College , 88

F.3d 300, 305 n.4 (5th Cir. 1996) (“[E]ven if a plaint iff’s protected conduct is a substantial element

in a defendant’s decision to terminate an employee, no liability for unlawful retaliation arises if the

employee would have been terminated even in the absence of the protected conduct.”).

Relying on

t he Texas Supreme Court’s decision in Q uantum Chemical Corp. v. Toennies

,

Pineda argues that for employment discrimination cases brought under the TCHRA, and in contrast

to similar cases brought under Title VII, “the employer commits an unlawful employment practice

if discrimination was a mo t ivating factor for [the] employment practice, even if other factors also

motivated the practice.” Quantum

, 47 S.W .3d at 479-80 (i nternal quotati ons om

itted). Thus, he

argues, the applicable causation requirement under the TCHRA is t he less stringent “motivating

factor” test, rather than the more stringent “b ut for” test applicable under Title VII. 3 Pineda

incorrectly applies Quantum to this case.

In Quantum

, the Texas Supreme Court sought to determine the proper standard of causation

for both “pretext” and “mixed motive” employment discrimination suits brought under the TCHRA.

See id. at 474. The Texas Supreme Court initially determined that “the proper standard of causation

for [the plaint iff’s] suit would be the ‘but for’ test that courts originally used for pretext claims.” I d.

at 479. However, it further determined that § 21.125(a) of the TCHRA defines the causation

requireme nt such that the discrimination need only be “a motivating factor” in the adverse

employment decision to establish liability. Id. at 479-80; see T EX

. L AB

. C ODE § 21.125(a) (Vernon4 The central issue i n Q uantum was whether the causation requirement was different for a

“pretext case” than it was for a “ mixed-motive case.” S ee Quantum

, 47 S.W.3d at 476- 80.

Therefore, when the Texas Supre me Court stated that “a motivating factor” was the causation

requirement for all employment discrimination cases, the court meant that the standard was t he

applicable standard in bot h pretext and mixed motive employment discrimination cases where §

21.125(a) was applicable.

5 In Quantum the Texas Supreme Court looked to § 21.125(a) for guid a nce because the

plaintiff alleged age discrimination.

6 1996). Not finding “relevant textual restrictions on t he applicability of this section to unlawful

employment practices,” it further found that “‘a motivating factor’ is the correct standard of causation

. . . in all TCHRA unlawful employment practice claims . . . .” 4 Quantum , 47 S.W.3d at 479-80.

This holding is not as broad as it first appears. Section 21.125(a) is no t applicable in all

employment discrimination cases under the TCHRA. Section 21.125(a) provides that “[e]xcept as

otherwise provided by this chapter, an unlawful employ ment practice is established when the

complainant demonstrates that race, color, sex, national origin, rel igion, age, or disability was a

motivating factor for an employment practice

. . . .” T EX

. L AB

. C ODE § 21.125(a) (emphasis added).

Section 21.055 forbids employment discrimination based on certain protected conduct rather than on

any of the protected characteristic s outlined i n § 21.125(a). 5 S ee T EX

. L AB

. C ODE § 21.055.

Therefore, § 21.125(a) is inapplicable to employment discrimination cases brought under § 21.055

because § 21.125(a), by its own terms, is only applicable when the alleged discrimination is based on

race, color, sex, national origin, religion, age, or disability

. S ee T EX

. L AB

. C ODE § 21.055; T EX

.

L AB

. C ODE § 21.125 (defining its purpose as clarifying prohibition against employ m ent discrimination

based on race, color, sex, national origin, religion, age, or disability).

As § 21.125(a) is inapplicable to this case, Pineda must show that “but for” UPS’s

discriminatory conduct he would not have been fired. S ee Quantum

, 47 S.W.3d at 479 (“[I]f section7

21.125 does not apply

. . . the proper standard of causation

. . . would be the ‘but for’ test.”); see also

Menefee v. McCaw Cellular Communications of Texas, Inc.

, 2003 WL 1461 469 at *3, 6 (Tex.

App. ) Dallas, March 24, 2003, no pet.) (unpublished) (requiring the plaintiff meet the “but for”

standard to establish pretext in a post Q uantum case under § 21.055). T herefore, “[a] plaint iff

asserting a retaliation claim must establ ish t hat without [his] protected activity, the employer's

prohibited cond u ct would not have occurred when it did.” McMillon v. Texas Dept. of Ins. , 963

S.W.2d 935, 940 (Tex. 1998)

.

Applying the “but for” causation standard, there is insufficient evidence for the jury to have

found that UPS retaliated against Pineda because he engaged in protected activity. Both parties agree

that Pineda engaged in protected activity, filing a discrimination complaint and giving a deposition

in a separate employment discrimination suit brought against UPS. They further agree that Pineda

was subsequently transferred and that UPS eventually terminated his employment. UPS asserts that

Pineda was fired after an investigation headed by human resources manager Kenny Walker pursuant

to allegations made by Pineda’s co-workers that he had threatened them with physical violence, in

violation of company policy. If believed, this explanation is sufficient to establish an alternate,

legitimate justification for Pineda’s termination that would negate causation. See Long

, 88 F.3d at

305 n.4 (“[N]o liabilit

y for unlawful retaliation arises if t he employee would have been terminated

even in the absence of the protected conduct.”).

Pineda argues that he presented sufficient evidence for the jury to determine that he was fired

because he engaged in protected activity rather than because of any alleged threats of violence. Pineda

presented evidence that Walker, the human resources manager who fired him, was aware that Pineda

had engaged in the protected activity. Pineda additionally testified that he did not make the alleged8

threats of violence that UPS claims justified his termination. Two of Pineda’s coworkers further

testified that, during the time period when the threats allegedly occurred, they knew of no incidences

where Pine da had t hreatened a coworker. Further they testified that he was not a violent person.

Pineda also presented evidence that in the two decades he worked for UPS he had never previously

been accused of threatening violence. Finally, Pineda presented testimony from his coworkers that

UPS employees regularly yelled at each other using profanity, that other alleged incidences of verbally

abusive behavior were not invest igated, and that multiple contemporaneous alleged incidences of

workplace violence at UPS went unpunished.

To establish retaliation, Pineda relies solely on evidence suggesting that UPS’s investigation

came to an incorrect conclusion and was potentially motivated by concerns other than the prevention

of workplace violence. The Texas Supreme Court, however, while considering a factually similar

case, recently held that to establish that an investigation into an alleged violation of a workplace

policy was a pretext for discrimination it is “not sufficient [for the plaint iff] to present evidence that

the

. . . investigation was imperfect, incomplete, or arrive d at a possibly incorrect conclusion. He

must show that the reason proffered by [the defendant] is ‘false, an d discrimination was the real

reason.’” Canchola , 121 S.W.3d at 740.

In Canchola v. Wal-Mart

, the Texas Supreme Court overturned a jury verdict in a disabilit y

discrimination case brought under the TCHRA. Id. Canchola claimed that he was fired because of

his heart condition. I

d. at 737-38. Wal-Mart claimed that it fired Canchola after an investigation

determined that he had sexually harasse d a coworker. I d. at 739. Canchola countered that “WalMart’s investigation into the charges against him was inadequate and one-sided, thus constituting6 The Texas Supreme Court applied the less stringent “motivating factor” test because

Canchola alleged disability discrimination. See § 21.125(a); Quantum , 47 S.W.3d at 479-80.

9 som e evidence that Wal-Mart was motivated by his disability.” 6 I d. H e pointed to “evidence

[suggesting] that if Wal-Mart had conducted a more thorough and balanced investigation, it could

have uncovered exculpatory evidence.” Id. Canchola presented additional evidence questioning the

credibility of his accuser and testimony from his coworkers suggesting that he had not engaged in the

alleged sexual harassment. I d. at 739-40. “Finally, Canchola argue[d] that Wal-Mart did not apply

its harassment policy uniformly citing evidence that a non-salaried employee at a different location

was demoted rather than terminated after being accused of harassment.” Id. at 740.

The Texas Supreme Court found that “[t]he evidence that Canchola cites . . . assails the

quality of Wal-Mart’s investigation and does not, by itself, prove that Canchola’s heart condition was

a motivat ing fact o r in his termination. An at-will employer does not incur liability for carelessly

forming its reasons for termination.” I d. The court emphasized that because Canchola was an “atwill employee” he could have been fired for poor performance, “for the sexual harassment accusations

made against him, or for no reason at all.” I d. Noting that “even if the reasons Wal-Mart cited for

terminating Canchola were false, he still bore the ultimate burden to prove that Wal-Mart

discriminated against him because of his disability,” the court counseled that “[t]he relevant inquiry

is not whether the compla int s made against Canchola were a pretext,” but whether they were a

pretext for prohibited discrimination. See id. F inding that Canchola presented no evidence other than

the alleged infirmit

ies with Wal-Mart’s investigation of the sexual harassment claims against him to

establish discrimination, the Texas Supreme Court determined that he “offered no evidence to show

that Wal-Mart management was motivate d to terminate hi m b ecause of his heart condition,” and7 Although we apply the “but for”causation standard in this case, Pineda’s claim would also

fail under the “motivating factor” test applied in Canchola

.

8 Although the Texas Supreme Court based its conclusions in Canchola on its interpretation

of the Supreme Court’s decision in Reeves v. Sanderson , 530 U.S. 133, 120 S. Ct. 2097 (2000), it

did so for purposes of th e TCHRA only . As only Texas law is implicated in this case, we do not

consider whether the Texas Supreme Court correctly interpreted Reeves

. Further, our ruling in this

case should not be interpreted as an adoption of Canchola for purposes of federal civil rights law.

9 We do not reach the remittitur issue because it is moot.

10 ruled that there was insufficient evidence to support the jury’s verdict. Id.

In this case, Pineda presented evidence suggesting that he did not commit the acts alleged by

his coworkers and that UPS selectively investigated and terminated him. However, he presented no

evidence that independently suggests that UPS falsely and selectively fired him because he engaged

in protected activity, or that had he not engaged in that activity he would not have been terminated.

It is Pineda’s burden to present evidence demonstrating that he was fired for a prohibited reason. S ee

id. Pineda presented no such independent evidence to the jury. 7 Thus, as a matter of Texas law, he

cannot establish a retaliation claim under the TCHRA and, consequently, there is insufficient evidence

to support the jury’s verdict in his favor. 8

III

The district court’s ruling denying UPS’s motion requesting a judgment as a matter of law

is REVERSED. This case is remanded to the dist rict co urt for entry of judgment in favor of the

defendant. 9