* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-40949

ROSEMARY MCCULLOUGH

Plaintiff - Appellant

v.

HOUSTON COUNTY TEXAS; DAVID CERVANTES, Individually and In His

Official Capacity as Houston County District Attorney

Defendants - Appellees

Appeal from the United States District Court 

for the Eastern District of Texas

USDC No. 9:06-CV-21-TH

Before JOLLY, BARKSDALE, and HAYNES, Circuit Judges.

PER CURIAM:*

Rosemary McCullough sued Houston County, Texas and David Cervantes

(individually and in his official capacity as Houston County District Attorney)

(collectively “Appellees”) for racial and age discrimination and retaliation

pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)

(2003), 42 U.S.C. § 1983, and the Age Discrimination in Employment Act, 29

United States Court of Appeals

Fifth Circuit

F I L E D

October 16, 2008

Charles R. Fulbruge III

Clerk
No. 07-40949

1 To be clear, section 1983 “‘is not itself a source of substantive rights,’ but merely

provides ‘a method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 490

U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). Thus,

McCullough apparently seeks to use § 1983 as a method for vindicating federal rights conferred

to her under Title VII and the ADEA.

2

U.S.C. §§ 621-634 (2006) (“ADEA”).1 The district court granted Appellees’

motions for summary judgment on all of McCullough’s claims. McCullough

challenges these rulings on appeal. We hold that McCullough did not suffer an

adverse employment action. Therefore, she has failed to state a prima facie case

of discrimination. We further hold that McCullough has presented no evidence

that Houston County’s legitimate, nondiscriminatory reasons for reducing her

work responsibilities and terminating her from the District Clerk’s Office are

pretextual. Accordingly, we AFFIRM the district court’s dismissal of

McCullough’s discrimination and retaliation claims.

I. BACKGROUND

Houston County District Attorney (“DA”) Cindy Maria Garner hired

McCullough as a Grand Jury Clerk in March 2003. At that time, McCullough

was one of four clerical employees in the DA’s Office and the only AfricanAmerican. The other employees’ names were Patti, Janet, and Lisa.

On November 2, 2004, David Cervantes defeated Garner in an election for

DA. On November 3, 2004, Garner wrote to Cervantes in an e-mail that her

“first order of business” was to meet with her staff and talk with them about

their future with the DA’s Office. In the e-mail, Garner listed the names of her

staff members and their respective positions. Cervantes responded that he was

not planning on making any major personnel changes. Notwithstanding

Cervantes’s plans, McCullough told her co-workers that she did not want to work

for Cervantes. 

On November 28, 2004, Cervantes sent a fax to the DA’s office asking

Patti, Janet, and Lisa to call him and set up a time to discuss whether they
No. 07-40949

2

In an affidavit submitted to the district court, Lisa said that she had witnessed

McCullough in the past act discourteously toward Cervantes. Specifically, McCullough told

Lisa about one time when McCullough shut the door on Cervantes. 

3

wanted to work for him. Cervantes did not address the fax to McCullough. He

did not think McCullough would want to work for him in light of the way she

had treated him before he was elected.2 McCullough took Cervantes’s fax to

mean that he would not interview her for a position. At some point before her

last day of employment with the DA’s Office, McCullough accepted a part-time

position with the Houston County District Clerk’s Office. 

On November 29, 2004, Garner sent each of her four clerical employees a

“lay off letter” stating that the DA’s office was “down-sizing” and their last paid

day would be December 31, 2004. Garner did not actually intend to lay off

anyone; she intended to help her employees obtain unemployment benefits if

they chose not to continue employment with Cervantes. These letters were

never made a part of the employees’ official files. Cervantes was not aware that

Garner had “laid off” her four clerical employees until after he took office. 

On January 1, 2005, Cervantes was sworn in as the Houston County DA.

Cervantes understood that all of the employees in the DA’s Office would keep

their positions despite the change in leadership, and while he could make

employment changes as he saw fit, he could do so only after being sworn into

office. 

Cervantes’s first day of work as the new DA was January 3, 2005.

McCullough did not come to work that day or call in sick. Cervantes sent a

letter to Houston County Treasurer Dianne Rhone, the county employee

responsible for personnel matters, asking whether McCullough had resigned.

Rhone told Cervantes that McCullough had started work that day with the

Houston County District Clerk’s Office. Although clerical openings became
No. 07-40949

3 McCullough abandoned this claim in the district court.

4

available during Cervantes’s tenure, McCullough never reapplied to the DA’s

Office.

McCullough’s duties at the District Clerk’s Office included answering the

phone, assisting customers, and filing. On June 1, 2005, Carolyn Rains became

the District Clerk. Two months later, on August 3, 2005, McCullough filed a

charge of discrimination with the Equal Employment Opportunity Commission,

claiming she was discharged from the DA’s Office based on her race and her age,

and in retaliation for exercising her First Amendment rights. McCullough

alleged that she received a letter from Garner on November 29, 2004, notifying

her that she would be “down-sized” and that her employment with the DA’s

Office would cease after December 31, 2004. McCullough has not alleged any

discriminatory conduct or motivation on the part of Garner. Instead, she

acknowledged in her deposition that the purpose of Garner’s letter was to help

McCullough secure unemployment benefits if she did not continue to work in the

DA’s Office after Garner left office.

On January 20, 2006, McCullough filed suit in the district court pursuant

to § 1983, alleging (1) that Houston County discriminated against McCullough

based on her age and race in violation of Title VII, the ADEA, and 42 U.S.C. §

1983; and (2)that Houston County retaliated against McCullough for exercising

her First Amendment rights.3 McCullough based her discrimination claims on

Cervantes’s terminating her from, or alternatively Cervantes’s failure to rehire

her at, the DA’s Office. 

Meanwhile, McCullough continued her employment with the District

Clerk’s Office. On January 27, 2006, Rains assigned McCullough the

responsibilities of coordinating administrative activities for Judge Fletcher in

the 349th Judicial District Court. McCullough’s suit against Houston County
No. 07-40949

5

was still moving forward, and on April 28, 2006, McCullough gave deposition

testimony. On May 9, 2006, Judge Fletcher complained about McCullough’s

performance and requested that Rains reassign McCullough. Immediately

thereafter, Rains returned McCullough to answering phones, filing, helping

people that entered the District Clerk’s Office, and shredding. 

On July 17, 2006, McCullough faxed a physician’s note to the District

Clerk’s Office indicating that she would not be at work for four weeks due to

unspecified medical reasons. McCullough did not address the matter directly

with Rains. On July 21, 2006, Rains hired two part-time summer employees.

On July 26, 2006, Rains sent McCullough a letter detailing Houston County

leave policy. She reminded McCullough that, as a part-time employee, she did

not qualify for leave under the Family and Medical Leave Act, sick leave, or

vacation. Rains also forwarded McCullough a copy of the Houston County

employment manual. McCullough never responded.

On August 18, 2006, McCullough sent Rains another physician’s note with

the apparent intent of extending her time off work for an additional four weeks.

Given McCullough’s prolonged absence unaccompanied by much in the way of

an explanation, Rains assumed McCullough would not be returning to work.

Consequently, Rains committed to provide another one of the part-time summer

employees twenty hours of work per week during the fall.

On September 8, 2006, McCullough participated in mediation for her suit

against Houston County, which resulted in McCullough and Houston County

coming to an impasse. Later that day, McCullough contacted Rains for the first

time about coming back to work, asking if she could start back on September 11,

2006. While Rains knew about the lawsuit generally, she did not keep up-todate on specific proceedings, including the mediation. Rains allowed

McCullough to work sporadically through September and October, but on

October 12, 2006, Rains fired McCullough from the District Clerk’s Office.
No. 07-40949

4 McCullough’s retaliationclaim only pertained to Houston County;this was not a claim

against Cervantes in his individual or official capacity.

6

On December 22, 2006, McCullough amended her federal lawsuit against

Houston County to add an additional cause of action for retaliation arising out

of her termination from the District Clerk’s Office.4 McCullough claimed that

she was terminated for pursuing her discrimination lawsuit against Cervantes

and Houston County. 

Appellees filed two motions for summary judgment, one pertaining to

McCullough’s discrimination claims and the other pertaining to McCullough’s

retaliation claims. The district court granted summary judgment for Appellees

on McCullough’s discrimination claims, holding that McCullough failed to

establish a prima facie case of discrimination. The district court found that

Cervantes’s fax, which excluded McCullough from an invitation to interview, did

not constitute an adverse employment action. The district court emphasized the

following facts: (1) Garner, not Cervantes, gave the lay off letter to McCullough;

(2) before Cervantes took office, no one other than Garner had the authority to

terminate McCullough; (3) McCullough’s continued employment with the DA’s

Office was not contingent on interviewing with Cervantes; and (4) McCullough

never sought employment with Cervantes after he began his tenure. 

In a separate memorandum opinion and order, the district court likewise

granted summary judgment in favor of Appellees on McCullough’s retaliation

claims. The district court held that McCullough had not established a prima

facie case of retaliation because she failed to show a causal connection between

her termination from the Houston County Clerk’s Office and her protected

activity. The district court alternatively held that Houston County had

articulated a legitimate, nondiscriminatory reason for terminating McCullough

from the District Clerk’s Office, and McCullough had not rebutted Houston
No. 07-40949

7

County’s proffered reasons by demonstrating pretext. McCullough appeals from

both of the district court’s orders.

II. DISCUSSION

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

Travelers Cas. & Sur. Co. of Am. v. Baptist Health Sys., 313 F.3d 295, 297 (5th

Cir. 2002). Summary judgment is appropriate when there is no genuine issue

of material fact and the moving party is entitled to judgment as a matter of law.

Id.; see also FED. R. CIV. P. 56(c). A genuine issue of material fact exists if a

reasonable jury could enter a verdict for the non-moving party. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). We resolve all reasonable doubts

in favor of the nonmoving party. General Elec. Co. v. Joiner, 522 U.S. 136, 143

(1997).

A. Discrimination Claims

McCullough argues that she suffered an adverse employment action when

Cervantes sent the fax inviting her white, younger co-workers to interview with

him while excluding her from the invitation. According to McCullough, the fact

that Cervantes had not yet officially been sworn into office when he sent the fax

was “of little moment” because Cervantes was the “actual decisionmaker” as the

newly-elected DA. McCullough contends that by sending the fax, Cervantes

effectively terminated her, or alternatively, failed to rehire her. Under her

failure to rehire theory, McCullough contends that not applying for a job with

Cervantes does not preclude her claim because such efforts would have been

futile. 

Houston County responds that Cervantes did not cause McCullough to

suffer an adverse employment action. Houston County emphasizes that it was

Garner, not Cervantes, who “laid off” McCullough. Cervantes was never
No. 07-40949

5 Under Texas law, the failure to keep an employee when there is a change in

administration is considered a dismissal. County of Dallas v. Wiland, 216 S.W.3d 344, 354

(Tex. 2007). However, in Wiland, the new officeholder, Constable Dupree, sent a letter to the

plaintiffs after he took office stating that he would not rehire them. He also refused to swear

them in when they appeared at the office. Unlike Cervantes here, Dupree took affirmative

steps after taking office that the Court found constituted a dismissal.

6 McCullough’s pleadings under § 1983 do not alter this analysis. McDonnell, 411 U.S.

at 802-07 (dealing with Title VII claims); Russell, 235 F.3d at 222 (applying McDonnell to

ADEA claims); Lawrence v. Univ. of Tex. Medical Branch at Galveston, 163 F.3d 309, 311 (5th

Cir. 1999) (applying McDonnell to claims brought under § 1983).

8

McCullough’s employer, nor did he ever have the authority to terminate her.5

Employment discrimination claims may be established either through

direct or circumstantial evidence. Laxton v. Gap, Inc., 333 F.3d 572, 578 (5th

Cir. 2003). Absent direct evidence, we apply the burden-shifting framework

articulated by the United States Supreme Court in McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973). Russell v. McKinney Hosp. Venture, 235 F.3d 219,

222 (5th Cir. 2000).6

Under the McDonnell framework, the plaintiff has the initial burden of

establishing a prima facie case of discrimination. McDonnell, 411 U.S. at 802.

Where the alleged discriminaiton resulted in a failure to rehire, a prima facie

case requires the plaintiff to show that: (1) she is a member of a protected class;

(2) she sought and was qualified for an available employment position; (3) she

was rejected for that position; and (4) the employer continued to seek applicants

with the plaintiff’s qualifications. LaPierre v. Benson Nissan, Inc., 86 F.3d 444,

448 (5th Cir. 1996). Where the alleged discrimination resulted in termination,

a prima facie case requires the plaintiff to show that: “‘(1) [she] is a member of

a protected class; (2) [she] was qualified for her position; (3) [she] was subject to

an adverse employment action; and (4) [she] was replaced by someone outside

the protected class,’ or, in the case of disparate treatment, . . . ‘that others

similarly situated were treated more favorably.’” Okoye v. Univ. of Tex. Houston

Health Sci. Ctr., 245 F.3d 507, 512-13 (5th Cir. 2001) (quoting Shackelford v.
No. 07-40949

9

Deloitte & Touche, LLP, 190 F.3d 398, 404 (5th Cir. 1999)). For purposes of a

Title VII discrimination claim, “‘adverse employment actions include only

ultimate employment decisions such as hiring, granting leave, discharging,

promoting, or compensating.’” McCoy v. City of Shreveport, 492 F.3d 551, 559

(5th Cir. 2007) (quoting Green v. Adm’rs of Tulane Educ. Fund, 284 F.3d 642,

657 (5th Cir. 2002)). Although “adverse employment action” is defined more

broadly under § 1983 than it is under Title VII, its definition likewise includes

discharges and refusals to hire. Southard v. Tex. Bd. of Criminal Justice, 114

F.3d 539, 555 (5th Cir. 1997).

We hold that McCullough has failed to make a prima facie case of

discrimination. We easily dispose of McCullough’s claim that Cervantes’s fax

failed to rehire her. To establish a prima facie case of discrimination where the

alleged adverse employment action is failure to rehire, the plaintiff must have

actually sought the position she alleged to have been denied. LaPierre, 86 F.3d

at 448. McCullough concedes that she neither applied for nor was interested in

a position with the DA’s office during Cervantes’s tenure. McCullough justifies

her failure to apply by arguing that any attempts on her part to obtain

employment from Cervantes would have been futile. McCullough’s reliance on

the “futile gesture doctrine” is misplaced as this circuit “requires a showing that

the applicant . . . was deterred by a known and consistently enforced policy of

discrimination.” Shackelford, 190 F.3d at 406 (emphasis added). McCullough

has offered no evidence whatsoever to the effectthat Cervantes had a known and

consistently enforced policy of discriminating based on either age or race.

Nor has McCullough demonstrated to this court that Cervantes’s fax

effectively terminated her from the DA’s Office. Notwithstanding McCullough’s

allegations to the contrary, Cervantes’s fax did not “decline[ ] to allow”

McCullough to interview. Cervantes simply sent a fax to Garner’s office inviting

McCullough’s co-workers to meet with him, which is not the logical equivalent
No. 07-40949

10

of declining to interview McCullough. Even if Cervantes had “declined to allow”

McCullough to interview, it is uncontroverted that Cervantes had no actual

authority to terminate or hire anyone until he was sworn into office on January

1, 2005. It was McCullough who sought different employment prior to January

1, 2005, and it was McCullough who failed to show up for work on January 3,

2005 when Cervantes took office. 

At bottom, Cervantes never had the opportunity either to fail to rehire or

to terminate McCullough because she never gave him the opportunity. Thus,

because McCullough has not satisfied her initial burden of establishing a prima

facie case, our analysis under the McDonnell framework of McCullough’s

discrimination claims ends here.

B. Retaliation Claims

In addition to her discrimination claims, McCullough also alleges that she

was terminated from the District Clerk’s Office in retaliation for pursuing her

claims against Houston County arising out of her separation from the DA’s

Office. McCullough contends that her “work situation” deteriorated immediately

after she gave her deposition in her case against Houston County, that the

Monday following mediation of her case she was told there was no work left for

her to do, and that Rains ultimately terminated her within one month of her

mediation. These facts, according to McCullough, establish a causal link

between her suit against Houston County and her termination from the District

Clerk’s Office.

Houston County argues that no causal connection exists between

McCullough’s lawsuit and the adverse employment actions taken against her,

and that McCullough failed to present any evidence to the contrary. According

to Houston County, Rains reduced McCullough’s responsibilities to no longer

include working with Judge Fletcher because Judge Fletcher said McCullough

was incapable and requested that she be reassigned. Houston County further
No. 07-40949

11

contends that McCullough was terminated for the simple reason that she took

eight weeks of unapproved medical leave.

Like discrimination claims, we analyze retaliation claims using the

McDonnell framework. McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir.

2007). Thus, the plaintiff has the initial burden of establishing a prima facie

case. Id. To establish a prima facie case of retaliation, the plaintiff must show

that: (1) she engaged in a protected activity; (2) she suffered an adverse

employment action; and (3) a causal link existed between the protected activity

and the adverse employment action. Id. at 556-57. The Supreme Court recently

clarified in Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006), that

for purposes of Title VII, an “adverse employment action” is defined differently

in the retaliation context than it is in the discrimination context. Id. at 68. In

the retaliation context, it is an action that “a reasonable employee would have

found . . . [to be] materially adverse, which in this context means it well might

have dissuaded a reasonable worker from making or supporting a charge of

discrimination.” Id. (internal quotations omitted). The causal link required by

the third prong does not rise to the level of a “but for” standard at the prima

facie stage. Gee v. Principi, 289 F.3d 342, 345 (5th Cir. 2002). “Close timing

between an employee’s protected activity and an adverse action against [her]

may provide the ‘causal connection’ required to make out a prima facie case of

retaliation.” Swanson v. Gen. Servs. Admin., 110 F.3d 1180, 1188 (5th Cir.

1997); see, e.g., Richard v. Cingular Wireless LLC, 233F. App’x 334, 338 (5th Cir.

2007) (concluding that two and one half months is a short enough time period to

support an inference of a causal link); Raggs v. Miss. Power & Light Co., 278

F.3d 463, 471-72 (5th Cir. 2002) (holding that a five-month lapse, by itself, does

not support an inference of a causal link). 

Assuming the plaintiff establishes a prima facie case, then the burden

shifts to the employer to articulate a legitimate, nondiscriminatory reason for its
No. 07-40949

7

In order to satisfy his/her ultimate burden under the McDonnell burden-shifting

framework, it is now established that in Title VII discrimination cases, “a plaintiff need only

meet the ‘motivating factor’ standard even if the plaintiff is adducing only circumstantial

evidence.” Campbell v. England, 234 F. App’x 183, 186 n.4 (citing Desert Palace, Inc. v. Costa,

539 U.S. 90 (2003); Rachid v. Jack In The Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004))

(emphasis added). This court has not extended the holdings of either Desert Palace or Rachid

so as to apply the mixed-motives analysis to Title VII retaliation claims. Septimus, 399 F.3d

at 607 n.7; Campbell, 234 F. App’x at 186 n.4; Staten v. New Palace Casino, LLC, 187 F. App’x

350, 362 (5th Cir. 2006). This is particularly true where , as is this case here, neither party

raises the issue, both parties argue pretext, and both parties engage in a but-for analysis. See

Campbell, 234 F. App’x at 186 n.4. Accordingly, we apply the but-for analysis to determine

whether McCullough has satisfied her ultimate burden under third stage of the McDonnell

burden-shifting framework.

12

actions. McCoy, 492 F.3d at 557. If the employer articulates a legitimate

nondiscriminatory reason,then “any presumption of discrimination raised by the

plaintiff’s prima facie case vanishes.” Septimus v. Univ. of Houston, 399 F.3d

601, 609 (5th Cir. 2005).

In the final stage of the McDonnell framework, the plaintiff bears the

ultimate burden of demonstrating a genuine issue of material fact as to whether

the employer’s proffered reason is a pretext for a retaliatory purpose. See

McCoy, 492 F.3d at 557. The plaintiff must show that “the adverse employment

action taken against the plaintiff would not have occurred ‘but for’ her protected

conduct.” Septimus, 399 F.3d at 608.7 This court has expressly rejected the

notion that temporal proximity standing alone is sufficient to establish but-for

causation. Strong v. Univ. Healthcare Sys., 482 F.3d 802, 808 (5th Cir. 2007).

McCullough fails to point to any evidence that the District Clerk’s actions

were coordinated with or show a cognizance of what was happening in

McCullough’s lawsuit arising out of her separation from the DA’s Office.

However, even assuming arguendo that McCullough has established a prima

facie case of retaliation, we nonetheless affirm the district court’s grant of

summary judgment. See BMG Music v. Martinez, 74 F.3d 87, 89 (5th Cir. 1996)

(“This Court can affirm the district court’s decision based on any legally
No. 07-40949

13

sufficient ground, even one not relied upon by the district court.”). Houston

County articulated a legitimate, nondiscriminatory reason for reducing

McCullough’s job responsibilities shortly after her deposition – Judge Fletcher

complained that McCullough was incapable and requested that she be

reassigned. Houston County also articulated a legitimate, nondiscriminatory

reason for having no work for McCullough on the day of her mediation and

ultimately terminating McCullough shortly after her mediation – the fact that

McCullough took eight weeks of unapproved leave. 

Thus, the burden shifted back to McCullough to show that Houston

County’s proffered reasons were a pretextfor retaliation. McCullough’s attempt

at meeting her burden consisted of four points: (1) Rains hired a temporary

employee to fill in for McCullough while she took leave, (2) Rains permitted

another employee to wait six weeks before starting her position on September

11, 2006, (3) on the day of McCullough’s mediation, Rains told McCullough there

was no work for her to do, and (4) Rains fired McCullough approximately one

month after her mediation. 

McCullough’s four points fail to rebut Houston County’s proffered

legitimate nondiscriminatory reasons. McCullough’s rebuttal points are both

irrelevant and nonresponsive to the factthat, at Judge Fletcher’s request, Rains

removed McCullough’s administrative coordinating responsibilities because

Judge Fletcher found McCullough incapable. Neither the fact that Rains hired

another employee after McCullough took leave, nor the factthat Rains arranged

for a delayed start date with another employee who was pregnant when hired,

demonstrate that but for McCullough’s discrimination lawsuit she would have

kept her job. McCullough’s third and fourth points accomplish nothing more

than temporally juxtaposing the mediation of her suit against Houston County

with a reduction in her workload and her termination. In this circuit, temporal

proximity alone will not suffice to establish the requisite but-for causation. See
No. 07-40949

14

Strong, 482 F.3d at 808. McCullough has failed to raise a fact issue suggesting

pretext. We hold that the district court properly dismissed her retaliation claim

against Houston County.

III. CONCLUSION

Because we find that McCullough did not suffer an adverse employment

action, we also conclude that McCullough failed to make a prima facie case of

discrimination. Furthermore, McCullough presented no evidence that Houston

County’s legitimate nondiscriminatory reasons for reducing her work

responsibilities and ultimately terminating her from the District Clerk’s office

were pretextual. Accordingly, we AFFIRM both of the district court’s grants of

summary judgment in favor of Houston County and Cervantes.