### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 14

- 41414

EDILIO DEL BOSQUE,

Plaintiff

- Appellant

v. STARR COUNTY, TEXAS; RUBEN SAE NZ, Starr County Commissioner, i n 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: 11/23/2015No. 14

- 41414

2 Before STEWART, Chief Judge, and BARK SDALE and PRADO, Circuit Judges

. PER CURIAM: * This appeal arises from Starr County , Texas Comm issioner Ruben Saenz’s deci sion to terminate Starr County employees Edilio Del Bosque, Victor Cano , and Jo se Gerardo Gonzalez (co llectively, the “Plaintiffs ”). Plaintiffs filed suit agains t Saenz and Starr County, Texas (collect ively, the “Defendants ”) , claiming that they were terminated in retaliation for reporting misuse of County resources by Saenz. All three Plaintiffs argue that such retalia tion 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 judg ment, which the district c ourt 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, De l Bosque

s erved 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 Cou nty resources for

* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . 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: 11/23/2015No. 14

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3 Saenz ’s own benefit . First, i n 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 involve d using County resources to dump and spread caliche on private property for other individuals

. I n 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 o thers to drop off caliche at the private re sidences 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 th eir allegations to a number of other individuals , including the local District A ttorney 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 (“Jud ge Lopez”) to discuss Saenz’s misuse of Starr County

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

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

2 At his deposition, Saenz conceded that Cuco Alaniz and Irma Andrade are well

respected in the community and that he would like to have their support in future elections. Case: 14-41414 Document: 00513283270 Page: 3 Date Filed: 11/23/2015No. 14

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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 A round 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
I ncident. The Alleged Retaliation A gainst Plaintiffs When Saenz took office in late 2011 , he decided to set up his own sta ff, 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

. Sae nz consulted Ju dge 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 su it 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 rep orted him to Superv isor 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 tha t this “reh ire” 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: 11/23/2015No. 14

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5 for summary judg ment in both actions. The cases were consolidated and t he district c ourt granted Defen dants’ motions for summary judg ment. II. STANDARD OF REVIEW

“ We review a district court’s grant of summary judgment de novo , applying the same s tandard 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 purp oses 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 o f public concern outweighs the d efendant’s interest in promoting efficiency; and (4) his speech motivated the adv erse employment decision ( i.e. , causation)

. Beattie v. Madison C ty. 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 causa tion in this context using a three

- step analysis

. First, t he plaintiff has the initial burden of showing that h is protected speech was a substantial or motivating Case: 14-41414 Document: 00513283270 Page: 5 Date Filed: 11/23/2015No. 14

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6 factor in the defendant’s adverse employment decision. Haverda v. Hays C ty. , 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 p laintiff 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

summar y judg ment

. The district c ourt granted Defen dants’ motions for summary judg ment based solely on its finding that Plaintiffs had failed to make a prima facie showing of causation between their protected speech ( their reports of S a e nz’s alleged misuse of C ounty resources) and their termination. In doing so, the d istrict c ourt expl ained that “Plaintiffs essentially provide no evidence of knowledge and only some vague testimony of temporal proximity” and that Plaintiffs “cannot simply rely on e vidence that the employer’s [non

re taliatory explanation] is false

. ” As an initial matter, the district court erred in discounting Plaintiffs’ evidence of pretext. The district c ourt found

— and the Defendants argue

— that pretext evidence is only rel evant at the third stage of the causation analysis ( i.e. , to rebut the defend ant’s showing that it would have taken the same adverse employment action even in the abs ence of the protected speech). Although t his court has occasionally considered evidence in this neatly separated manner, see, e.g. , id. at 592

– 97 , attempting to cabin pretex t evidence into the third prong is contrary to other precedent and commonsense. See, e.g. , Jordan v. Ector C ty. , 516 F.3d 290, 300

– 01 (5th Cir. 2008); Brady v. Fort Bend C ty. , 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 i s relevant to the inquiry, and Case: 14-41414 Document: 00513283270 Page: 6 Date Filed: 11/23/2015No. 14

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7 presente d at the summary judgment stage, the district c ourt was required to view it in the light most favorable to the Plaintiffs

. Here, Plaintiffs present substantial and p owerful evidence of pretext. Perhaps m o st striking of this evidence is Saenz’s inconsistent state ments 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 f actor 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 ad mitted that he did not know why he chose to te rminate 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 unde rmines Defendants’ budgetary explanation for the terminations (and Defendant s provide no other consistent independent explanation). For example, Hammond, who ass ists Saenz with the budget, testified that the budget did not clearly call for termin ations. The County also hired three new

5 Saenz ’s testimony regarding other a spects 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 b ehind closed doors daily, including about the San Isdro I ncident. 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 h e 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: 11/23/2015No. 14

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8 roadhands within seven months of the terminations and still ran an overal l $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 c hronology of events from which retali ation may plausibly be inferred ” : (1) i n 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 ind ividuals who worked with Saenz on a regular basis, sever al of which also advised Saenz o n 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 t heir reports, on March 19, 2012. 7 See Brady v. Houston Indep. Sch. Dist. , 113 F.3d 1419, 1424 (5th Cir. 1997); Moone y 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 predica te knowledge of a plaintiff’s protected

6 At oral argume nt, 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 n ot appropriate for summary judg ment adjudication. See Fed. R. Civ. P. 56(a); Hassan , 55 F.3d at 1079

. 7 The district c ourt 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 suff icient 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: 11/23/2015No. 14

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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 mo tive 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 suffici ent prima facie showing of ca usation to survive summary judg ment

. 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

. S everal 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 conclud e that Plaintiffs sufficiently refuted Defendant s ’

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: 11/23/2015No. 14

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10 discussed, Plaintiffs (1) point to a n umber of examples in the record where Saenz gave contradictory reasons for terminating Plaint iffs and (2) provide affirmative evide nce that at least partially undermines Defendants ’ b udgetary explanation. T his evidence is sufficient to create an issue of fact. See id. at
59 6

– 9 7

. Accordingly, we hold that Plaintiff s raised a genuine dispute of material fact on the causation element of their Firs t 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 viola tion 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 wa s 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 fac t as to causation , largely citing its analysis of Del Bosque’s First Amendment claim.
We conclude, however , that Del Bosque did provide sufficient e vidence to survive summary judg ment on his Texas Whistl eblower Act claim

. 8 Texas

8 As a preliminary matter, Del Bos que is entitled to an initial presumption of causation under the Act because he was terminate d 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: 11/23/2015No. 14

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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 Fi rst 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 t hat he was aware of the District Attorney’s investigation. Texas case law suggests that this circumstantial evidence is suff icient to create a genuine dispute of material fact. See Parsons , 353 S.W.3d at 226

– 27 ( plainti ff made sufficient showing of causation by relying

on (1) circumstantial evidence of the employer’s knowledge, (2) temporal proximity between th e report and the adverse employment action, and (3) evidence that the employer’s non

- retaliatory explanations were “pretextual and false

. ” ) ; see also Senior Living Prop s

. , 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 show ing 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.” I d. Case: 14-41414 Document: 00513283270 Page: 11 Date Filed: 11/23/2015No. 14

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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 genui ne dispute of material fact as to causation for his Texas Whistleblower Act claim. IV. CONCLUSION For the foregoing reasons , we REVERSE the distric t court’s grant of summary judg ment 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