IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-41414

EDILIO DEL BOSQUE, 

 Plaintiff - Appellant

v.

STARR COUNTY, TEXAS; RUBEN SAENZ, Starr County Commissioner, in 

his Official and Individual Capacity, 

 Defendants - Appellees

___________________________________________

VICTOR CANO; JOSE GERARDO GONZALEZ,

 Plaintiffs - Appellants

v.

STARR COUNTY, TEXAS; RUBEN SAENZ, Starr County Commissioner, in 

his Official and Individual Capacity, 

 Defendants - Appellees

Appeal from the United States District Court 

for the Southern District of Texas

USDC Nos. 7:14-CV-17, 7:13-CV-576

United States Court of Appeals

Fifth Circuit

FILED

November 23, 2015

Lyle W. Cayce

Clerk

 Case: 14-41414 Document: 00513283270 Page: 1 Date Filed: 11/23/2015
No. 14-41414

2

Before STEWART, Chief Judge, and BARKSDALE and PRADO, Circuit 

Judges.

PER CURIAM:*

This appeal arises from Starr County, Texas Commissioner Ruben 

Saenz’s decision to terminate Starr County employees Edilio Del Bosque, 

Victor Cano, and Jose Gerardo Gonzalez (collectively, the “Plaintiffs”). 

Plaintiffs filed suit against Saenz and Starr County, Texas (collectively, the 

“Defendants”), claiming that they were terminated in retaliation for reporting 

misuse of County resources by Saenz. All three Plaintiffs argue that such 

retaliation violates their free speech rights under the First Amendment. Del 

Bosque also argues that the alleged retaliation violates the Texas 

Whistleblower Act. Defendants filed motions for summary judgment, which 

the district court granted. For the reasons stated herein, we REVERSE and 

REMAND for further proceedings consistent with this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

The story of this case begins when Saenz was appointed Starr County 

Commissioner for Precinct 4 in September 2011. At the time, Del Bosque 

served as the Precinct 4 foreman, supervising 15–20 “roadhand”1 employees

including Cano and Gonzalez. As the Starr County Commissioner, Saenz had 

oversight authority over Del Bosque and his workers.

Alleged Misuse of Starr County Resources

Plaintiffs claim that, shortly after his appointment, Saenz began abusing

County resources. Two of the incidents involved using County resources for

 

* 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 “Roadhands” are something akin to manual laborers. Their responsibilities include 

tasks like picking up and dumping trash, driving tractors and trucks, and spreading caliche. 

“Caliche” is a sedimentary rock that is often used for road construction.

 Case: 14-41414 Document: 00513283270 Page: 2 Date Filed: 11/23/2015
No. 14-41414

3

Saenz’s own benefit. First, in approximately January 2012, Saenz ordered 

Gonzalez, Del Bosque, and other Starr County workers to cut mesquite 

firewood and deliver it to his house. Second, in January or February 2012, a

supervisor in Precinct 4, David Morales (“Supervisor Morales”), ordered Cano 

and others to drop off and spread caliche at Saenz’s private residence while he 

and Saenz supervised the work. 

The remaining three incidents involved using County resources to dump 

and spread caliche on private property for other individuals. In January 2012,

Saenz supervised the use of County resources to dump and spread caliche at 

the parking lot of Lane’s Café in San Isdro, Texas (the “San Isdro Incident”). 

Then, sometime in January or February 2012, Supervisor Morales ordered 

Cano, Gonzalez, and others to drop off caliche at the private residences of Cuco 

Alaniz and Irma Andrade.2 

None of the Plaintiffs reported their allegations of misuse of Starr 

County resources directly to Saenz. However, in approximately January or 

February 2012, Plaintiffs disclosed their allegations to a number of other

individuals, including the local District Attorney and several of Saenz’s 

advisors. For example, Cano told Del Bosque that he was ordered to spread 

caliche at Saenz’s private property. In response, Del Bosque called Municipal 

Judge Leo Lopez (“Judge Lopez”) to discuss Saenz’s misuse of Starr County 

resources. Judge Lopez served as an advisor to Saenz when he took office as 

Commissioner. Cano and Del Bosque also disclosed Saenz’s alleged misuse of 

County resources to Starr County’s Human Resource Director and Elections 

Administrator, Rafael Montalvo (“Montalvo”), and Saenz’s administrative 

assistant, Anita Hammond (“Hammond”). Montalvo was involved in the 

 

2 At his deposition, Saenz conceded that Cuco Alaniz and Irma Andrade are wellrespected in the community and that he would like to have their support in future elections. 

 Case: 14-41414 Document: 00513283270 Page: 3 Date Filed: 11/23/2015
No. 14-41414

4

termination process under consideration in this case, and Hammond 

interacted with Saenz every day, including on budget issues. Finally, Del 

Bosque and Gonzalez discussed the issue with Supervisor Morales; Morales 

met with Saenz behind closed doors daily.3

Around the same time period as these reports, in February 2012, the 

Starr County District Attorney’s Office (the “District Attorney”) began 

investigating Saenz for “abuse of official capacity” in relation to the San Isdro 

Incident. 

The Alleged Retaliation Against Plaintiffs

When Saenz took office in late 2011, he decided to set up his own staff, 

so he had all forty-four employees in his office reapply for their jobs. Of the 

forty-four employees to reapply, eleven—including Plaintiffs—were not 

rehired.4 Plaintiffs’ at-will employment with Starr County was officially 

terminated on March 19, 2012. Saenz consulted Judge Lopez regarding the 

terminations and Montalvo signed Plaintiffs’ termination letters. 

Procedural History

Del Bosque filed suit against the Defendants claiming that his 

termination was the result of illegal retaliation under Texas Government Code 

§§ 554.001–554.010 (the “Texas Whistleblower Act” or “Act”) and the First 

Amendment. Similarly, Cano and Gonzalez filed suit against the Defendants

for retaliation in violation of the First Amendment. Defendants filed motions

 

3 Cano also disclosed Saenz’s alleged misuse of County resources to other roadhands 

some time prior to March 2012. He believes some of the workers reported him to Supervisor 

Morales because, shortly after his disclosures, Supervisor Morales began treating him 

differently. 

4 Thus, Plaintiffs were technically not “rehired,” although the parties often use the 

term “terminated” interchangeably. Plaintiffs are skeptical that this “rehire” process 

actually occurred; however, Del Bosque testified to going through the reapplication process. 

Plaintiffs also obviously challenge the timing of and motivation behind Saenz’s decision not 

to rehire them. 

 Case: 14-41414 Document: 00513283270 Page: 4 Date Filed: 11/23/2015
No. 14-41414

5

for summary judgment in both actions. The cases were consolidated and the 

district court granted Defendants’ motions for summary judgment. 

II. STANDARD OF REVIEW

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

applying the same standard as did the district court.” Fowler v. Smith, 68 F.3d 

124, 126 (5th Cir. 1995). Summary judgment is proper “if the movant shows 

that there is no genuine dispute as to any material fact and the movant is 

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine 

dispute about a material fact exists when the evidence presented on summary 

judgment is such that a reasonable jury could find in favor of the non-moving 

party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). For purposes 

of this determination, “all fact questions are viewed in the light most favorable 

to the non-movant.” Hassan v. Lubbock Indep. Sch. Dist., 55 F.3d 1075, 1079

(5th Cir. 1995). 

III. DISCUSSION

A.

Plaintiffs argue that their terminations were the result of improper

retaliation under the First Amendment. To prove a First Amendment 

employment retaliation claim, a plaintiff must show that (1) he suffered an 

adverse employment decision; (2) his speech involved a matter of public 

concern; (3) his interest in commenting on matters of public concern outweighs 

the defendant’s interest in promoting efficiency; and (4) his speech motivated 

the adverse employment decision (i.e., causation). Beattie v. Madison Cty. Sch. 

Dist., 254 F.3d 595, 601 (5th Cir. 2001).

The district court here concluded that Plaintiffs failed to raise a genuine 

dispute of material fact as to the causation element. We evaluate causation in 

this context using a three-step analysis. First, the plaintiff has the initial 

burden of showing that his protected speech was a substantial or motivating 

 Case: 14-41414 Document: 00513283270 Page: 5 Date Filed: 11/23/2015
No. 14-41414

6

factor in the defendant’s adverse employment decision. Haverda v. Hays Cty., 

723 F.3d 586, 591 (5th Cir. 2013). The defendant may rebut this initial 

showing by demonstrating that it would have taken the same adverse 

employment action even in the absence of the protected speech. Id. at 591–92. 

The plaintiff may then refute that showing by presenting evidence that the 

defendant’s non-retaliatory explanation is merely pretextual. Id. at 592. 

Plaintiffs withstand summary judgment under this analysis.

1.

Plaintiffs made a sufficient prima facie showing of causation to survive 

summary judgment. The district court granted Defendants’ motions for 

summary judgment based solely on its finding that Plaintiffs had failed to 

make a prima facie showing of causation between their protected speech (their 

reports of Saenz’s alleged misuse of County resources) and their termination. 

In doing so, the district court explained that “Plaintiffs essentially provide no 

evidence of knowledge and only some vague testimony of temporal proximity” 

and that Plaintiffs “cannot simply rely on evidence that the employer’s [nonretaliatory explanation] is false.” 

As an initial matter, the district court erred in discounting Plaintiffs’ 

evidence of pretext. The district court found—and the Defendants argue—that 

pretext evidence is only relevant at the third stage of the causation analysis

(i.e., to rebut the defendant’s showing that it would have taken the same 

adverse employment action even in the absence of the protected speech). 

Although this court has occasionally considered evidence in this neatly 

separated manner, see, e.g., id. at 592–97, attempting to cabin pretext evidence

into the third prong is contrary to other precedent and commonsense. See, e.g., 

Jordan v. Ector Cty., 516 F.3d 290, 300–01 (5th Cir. 2008); Brady v. Fort Bend 

Cty., 145 F.3d 691, 713–14 (5th Cir. 1998); Click v. Copeland, 970 F.2d 106,

113–14 (5th Cir. 1992). Given that this evidence is relevant to the inquiry, and 

 Case: 14-41414 Document: 00513283270 Page: 6 Date Filed: 11/23/2015
No. 14-41414

7

presented at the summary judgment stage, the district court was required to 

view it in the light most favorable to the Plaintiffs.

Here, Plaintiffs present substantial and powerful evidence of pretext. 

Perhaps most striking of this evidence is Saenz’s inconsistent statements 

regarding his reasons for terminating Del Bosque. In a sworn interrogatory

response, Saenz stated that he chose Del Bosque for termination because he 

had to reduce payroll and “had heard rumors that [Del Bosque] had assaulted 

another employee during work hours.” However, during his later deposition, 

Saenz stated that his interrogatory answer was not accurate and that the 

alleged assault was not a factor in his decision. When pressed on his actual 

reasons, Saenz stated that he chose Del Bosque for termination because of “job 

performance.” However, Saenz was not able to point to any specific issues with 

Del Bosque’s job performance and ultimately admitted that he did not know 

why he chose to terminate Del Bosque in particular. Similarly, Saenz could 

not provide any specific reason for why he chose to terminate Cano or 

Gonzalez.5

Plaintiffs also offer affirmative evidence that at least partially 

undermines Defendants’ budgetary explanation for the terminations (and 

Defendants provide no other consistent independent explanation). For 

example, Hammond, who assists Saenz with the budget, testified that the 

budget did not clearly call for terminations. The County also hired three new 

 

5 Saenz’s testimony regarding other aspects of the case also indicate that there are 

material disputes of fact. For example, Saenz testified that he never met with Supervisor 

Morales in his office. However, Saenz’s assistant, Hammond, testified that the two met 

behind closed doors daily, including about the San Isdro Incident. Saenz also provided 

bizarre testimony regarding the caliche that was delivered to his house; Saenz admitted that 

a load of caliche was delivered to his private residence, but claimed that he did not know who 

delivered it or why they delivered it, and never asked anyone where it came from.

 Case: 14-41414 Document: 00513283270 Page: 7 Date Filed: 11/23/2015
No. 14-41414

8

roadhands within seven months of the terminations and still ran an overall 

$30,000 budget surplus for the fiscal year. 

Plaintiffs meet the rest of their burden on causation by relying on

circumstantial evidence to form “a chronology of events from which retaliation 

may plausibly be inferred”: (1) in January or February of 2012, Plaintiffs

began to notice Saenz’s misuse of County resources; (2) sometime between 

January and March 19, 2012, Plaintiffs reported this misconduct to a number 

of individuals who worked with Saenz on a regular basis, several of which also 

advised Saenz on the termination process;6 (3) around the same time, the 

District Attorney was investigating Saenz for misuse of County resources—the 

same issue that formed the basis of Plaintiffs’ reports—and Saenz was aware 

of this investigation; and (4) Plaintiffs were then terminated shortly after their 

reports, on March 19, 2012.7 See Brady v. Houston Indep. Sch. Dist., 113 F.3d 

1419, 1424 (5th Cir. 1997); Mooney v. Lafayette Cty. Sch. Dist., 538 F. App’x 

447, 454 (5th Cir. 2013). 

One remaining issue is that Plaintiffs have no direct evidence that Saenz

was aware of their reports. Obviously, causation requires evidence that the 

decision-maker have some predicate knowledge of a plaintiff’s protected 

 

6 At oral argument, counsel for Defendants acknowledged that there is contradictory 

evidence regarding whether and to what extent Plaintiffs reported Saenz’s alleged 

misconduct. This evidentiary conflict creates a genuine dispute of material fact that is not 

appropriate for summary judgment adjudication. See Fed. R. Civ. P. 56(a); Hassan, 55 F.3d

at 1079. 

7 The district court highlighted some uncertainty in the Fifth Circuit regarding when

temporal proximity between a report and an adverse employment decision alone is sufficient 

to make a prima facie showing of causation. Compare Strong v. Univ. Healthcare Sys., L.L.C., 

482 F.3d 802, 808 (5th Cir. 2007) (“[T]emporal proximity alone, when very close, can in some 

instances establish a prima facie case of retaliation.”), with Evans v. City of Houston, 246 

F.3d 344, 354 (5th Cir. 2001) (“[A] time lapse of up to four months has been found sufficient 

to satisfy the causal connection for summary judgment purposes” in Title VII retaliation 

cases). Regardless, Plaintiffs here are not relying solely on temporal proximity; it is one of 

several factors Plaintiffs argue in support of their complaint.

 Case: 14-41414 Document: 00513283270 Page: 8 Date Filed: 11/23/2015
No. 14-41414

9

speech. See Cabrol v. Town of Youngsville, 106 F.3d 101, 108 (5th Cir. 1997). 

However, we have consistently held that direct evidence of retaliatory motive 

is not necessary to show causation. See Houston Indep. Sch., 113 F.3d at 1424. 

Plaintiffs here provide circumstantial evidence that their reports were relayed 

to Saenz: they reported to individuals who regularly met with and advised

Saenz. Most notably, Plaintiffs reported the misconduct to Judge Lopez, and

Judge Lopez later advised Saenz regarding the actual terminations at issue.

Viewed in the light most favorable to the Plaintiffs, this is sufficient evidence

of knowledge at the summary judgment phase. Accordingly, we hold that 

Plaintiffs made a sufficient prima facie showing of causation to survive 

summary judgment.

2.

We now turn to Defendants’ non-retaliatory explanation for terminating 

Plaintiffs. “[A] public employee who is discharged or otherwise disciplined for 

engaging in constitutionally protected conduct is not entitled to any relief if 

the employer can prove that it would have taken the same action absent that 

conduct.” Scott v. Flowers, 910 F.2d 201, 209 (5th Cir. 1990). Defendants put 

forward a compelling budgetary explanation for the terminations. Several 

witnesses testified that, faced with the relevant budgetary numbers, Saenz 

decided to cut staff sometime between October and December 2011 (before any 

of the alleged reports). Notably, Defendants also terminated eight other 

employees in the same termination process. Thus, Defendants put forward a 

facially viable non-retaliatory explanation for the terminations.

3.

However, we conclude that Plaintiffs sufficiently refuted Defendants’

non-retaliatory explanation. “[I]f a plaintiff brings forth evidence of pretext, 

the determination whether the employer’s stated reasons are pretextual is a 

fact issue reserved for the jury.” Haverda, 723 F.3d at 595–96. As previously 

 Case: 14-41414 Document: 00513283270 Page: 9 Date Filed: 11/23/2015
No. 14-41414

10

discussed, Plaintiffs (1) point to a number of examples in the record where 

Saenz gave contradictory reasons for terminating Plaintiffs and (2) provide

affirmative evidence that at least partially undermines Defendants’ budgetary 

explanation. This evidence is sufficient to create an issue of fact. See id. at 

596–97.

Accordingly, we hold that Plaintiffs raised a genuine dispute of material 

fact on the causation element of their First Amendment retaliation claim. 

B.

Del Bosque also claims that his termination was the result of improper 

retaliation under the Texas Whistleblower Act. A governmental entity is liable 

for damages under the Act if it discriminates against a public employee who in 

good faith reports a violation of law to an appropriate law enforcement 

authority. See Tex. Gov’t Code Ann. §§ 554.002–.003 (West 2012); City of Fort 

Worth v. Zimlich, 29 S.W.3d 62, 67 (Tex. 2000). To state a claim, the employee

must show causation between his report and the employer’s discriminatory 

conduct. Zimlich, 29 S.W.3d at 67. However, the employee need only prove 

but-for causation; a plaintiff is not required to show that his report of illegal 

activity was the sole reason for the employer’s adverse action. See Tex. Dep’t 

of Human Servs. of State of Tex. v. Hinds, 904 S.W.2d 629, 634–36 (Tex. 1995).

Here, Del Bosque argues that he was terminated in retaliation for 

reporting Saenz’s misconduct to the District Attorney. The district court again 

found that Del Bosque failed to raise a genuine dispute of material fact as to 

causation, largely citing its analysis of Del Bosque’s First Amendment claim. 

We conclude, however, that Del Bosque did provide sufficient evidence 

to survive summary judgment on his Texas Whistleblower Act claim.8 Texas 

 

8 As a preliminary matter, Del Bosque is entitled to an initial presumption of 

causation under the Act because he was terminated within 90 days of his report. See Tex. 

Gov’t Code Ann. § 554.004 (West 2012). “However, the presumption does not shift the burden 

 Case: 14-41414 Document: 00513283270 Page: 10 Date Filed: 11/23/2015
No. 14-41414

11

courts have consistently held that “[c]ircumstantial evidence may be sufficient 

to establish a ca[us]al link between the adverse employment action and the 

reporting of illegal conduct.” Zimlich, 29 S.W.3d at 69; City of El Paso v. 

Parsons, 353 S.W.3d 215, 226 (Tex. App.—El Paso 2011). Such evidence 

includes the employer’s knowledge of the report of illegal conduct, evidence 

that the stated reason for the adverse employment action was false, and

temporal proximity between the report and the adverse action. Zimlich, 29 

S.W.3d at 69; Rogers v. City of Fort Worth, 89 S.W.3d 265, 281 (Tex. App.—

Fort Worth 2002).

Here, Del Bosque identifies the same temporal proximity and pretext 

evidence from his First Amendment claim. He also provided circumstantial 

evidence that Saenz was aware of his report to the District Attorney—namely, 

that (1) Del Bosque also told Saenz’s assistant, Hammond, about his report to 

the District Attorney, and (2) Saenz admitted that he was aware of the District 

Attorney’s investigation. Texas case law suggests that this circumstantial 

evidence is sufficient to create a genuine dispute of material fact. See Parsons, 

353 S.W.3d at 226–27 (plaintiff made sufficient showing of causation by relying

on (1) circumstantial evidence of the employer’s knowledge, (2) temporal 

proximity between the report and the adverse employment action, and (3) 

evidence that the employer’s non-retaliatory explanations were “pretextual 

and false.”); see also Senior Living Props., L.L.C. v. Cole, No. 10-06-00227-CV, 

2007 WL 2729567, at *3–7 (Tex. App.—Waco Sept. 19, 2007) (finding sufficient 

evidence of but-for causation where employer denied knowledge of report and 

plaintiff lacked direct evidence of employer’s knowledge, and noting that 

 

of proof and stands only in the absence of contrary evidence.” City of Houston v. Levingston, 

221 S.W.3d 204, 226 (Tex. App.—Houston [1st Dist.] 2006). Here, Defendants provided 

affirmative evidence showing a non-retaliatory motive. Thus, the burden of proof falls back 

on Del Bosque and the analysis proceeds “as if no presumption had ever existed.” Id.

 Case: 14-41414 Document: 00513283270 Page: 11 Date Filed: 11/23/2015
No. 14-41414

12

“[p]roof that the stated reasons for the discharge are false is sufficient to 

establish that the employee was terminated in retaliation for engaging in 

protected activity”).

Therefore, we conclude that Del Bosque raised a genuine dispute of 

material fact as to causation for his Texas Whistleblower Act claim. 

IV. CONCLUSION

For the foregoing reasons, we REVERSE the district court’s grant of 

summary judgment in favor of the Defendants and REMAND for further 

proceedings consistent with this opinion.

 Case: 14-41414 Document: 00513283270 Page: 12 Date Filed: 11/23/2015