REVISED August 3, 2018

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-41115

Summary Calendar

FRANCISCO JAVIER RODRIGUEZ,

Plaintiff-Appellant

v.

BROWNSVILLE INDEPENDENT SCHOOL DISTRICT,

Defendant-Appellee

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 1:16-CV-157

Before BENAVIDES, SOUTHWICK, and COSTA, Circuit Judges. 

PER CURIAM:*

Plaintiff-Appellant Francisco Javier Rodriguez (“Rodriguez”) appeals the 

district court’s grant of summary judgment in favor of his employer, 

Brownsville Independent School District (“BISD”), on his claims of sex and 

disability discrimination, retaliation, and failure to promote. Finding no 

reversible error, we AFFIRM.

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

June 22, 2018

Lyle W. Cayce

Clerk

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I. FACTUAL AND PROCEDURAL HISTORY

In August of 2012, Rodriguez began working as a teacher at Rivera High 

School in BISD. While filling out his employment papers, Rodriguez listed his 

domestic partner as his emergency contact. Rodriguez states that he did not 

tell BISD that he was gay until after he was hired. In 2013, Rodriguez 

disclosed that he was disabled and obtained leave benefits under the Family 

and Medical Leave Act for his medical condition. Rodriguez explained that 

during flare-ups of his condition, he needed to take intermittent leave for 

treatments. BISD granted his request for accommodations—such as to be 

placed near a restroom.

On August 14, 2014, Rodriguez had a conversation with Christina 

Garzoria (“Garzoria”), the school’s Career Placement Officer, in which he 

inquired about teaching upper division classes. Rodriguez states that Garzoria 

responded, asking “doesn’t your 504 (disability accommodation) require that 

you be near a restroom?” Garzoria also informed Rodriguez that the position 

in question had already been filled. Rodriguez admitted that he did not apply 

for the position and that no one prevented him from applying for the position. 

The next day, Rodriguez sent an email to a human resources officer

complaining that Garzoria’s statements constituted discrimination based on 

his disability and denied him the opportunity to obtain the position. He states 

that he never received a response to his email. 

Rodriguez had ongoing problems with two female colleagues, Garzoria 

and a fellow teacher, Michael Ann Rivera (“Rivera”). Rodriguez received two 

reprimands that stemmed from these personal clashes. On September 11, 

2014, Rivera emailed a complaint about Rodriguez to the principal, Aimee 

Garza-Limon (“Principal”). In that email, Rivera referenced the meeting that 

she and Rodriguez had with the Principal at the end of the previous school year 

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when they all agreed to “put anything in the past behind us and move forward 

as a team within our Education and Training program.” Rivera stated that 

although she had attempted to follow the directives, “Rodriguez is continuing 

to personally attack me in front of students in an attempt to either humiliate 

me or cause me harm.” More specifically, she stated that a student told her 

that Rodriguez had asked what work they were doing in Rivera’s class, and the 

student showed Rodriguez the journal he was keeping for Rivera’s class. 

Rodriguez “held up the journal and asked his class if that journal looked like 

high school work. He then laughed at the work [Rivera] had been giving them 

in front of the entire class.” Rivera stated that she was “furious that Mr. 

Rodriguez continues to behave in such a manner towards [her].” She further 

stated that she “no longer feel[s] safe as I have a number of students who were 

his last year who are among my new students this year. [Her] concern is that 

he will someone [sic] convince one of them to cause some kind of harm to me, 

my family or my students.” In a separate communication with the Principal, 

Rivera also reported that Rodriguez had transported a student in his personal 

vehicle in violation of school policy. 

The Principal confirmed with the students and Rodriguez that Rodriguez 

had made disparaging comments to the students about the work assigned in 

Rivera’s class and that Rodriguez had given a student a ride in his personal 

vehicle. However, Rodriguez claimed he had permission from the student’s 

parents. The Principal gave Rodriguez a verbal warning and asked him to 

“refrain from indirectly or directly sharing his opinion about other teachers’ 

instructional practices in front of the students to avoid conflict with faculty 

members.” She reminded him that she had previously given notice to teachers 

that they were not to transport students in their personal vehicles. She also 

informed him that he would need proper documentation to be able to transport 

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students. Later, during Rodriguez’s deposition, he testified that he did not 

believe this reprimand was based on discrimination.

Approximately two weeks later, on October 1, Rodriguez was involved in 

a second incident, and this incident resulted in a written reprimand. Garzoria 

was questioning students who were in the hall after the tardy bell rang. 

Rodriguez “suddenly came out of [his] classroom and raised [his] voice at her 

demanding that she stop talking to these students. Then, [he] positioned 

[himself] in front of her, raised [his] hand at her and directed students to leave 

the area.” The Principal confirmed these events with the hall monitor, who 

witnessed the incident. The Principal wrote a reprimand because Rodriguez 

had left his classroom unattended and had shown disrespect toward his 

colleague. Subsequently, Rodriguez admitted during his deposition that the

Principal was justified in writing a reprimand based on this behavior. 

On December 22, Rodriguez filed a charge of discrimination with the 

Equal Employment Opportunity Commission (“EEOC”) against BISD in which 

he named Garzoria. Several months later in February of 2015, Rodriguez and 

Garzoria were driving their cars and nearly collided on a road outside the 

school. They accused each other of attempting to cause a collision, and 

Rodriguez filed a police report alleging that Garzoria had attempted to run him 

off the road. 

At some point, the Principal learned that the Texas Department of 

Family and Protective Services (“DFPS”) had begun investigating Rodriguez 

based on allegations of abuse or neglect of students. Rodriguez believes that 

Garzoria made the complaint to the DFPS.1 Rodriguez does not allege that the 

 

1 During her deposition, the Principal testified that she did not know who filed the 

report with DFPS. Rodriguez claims an email shows that the Principal knew Garzoria filed 

the report, and thus, he asserts that she lied. Rodriguez does not provide a citation to the 

record for the email. There is an email from the Principal in which she refers to the 

investigation and stated that Garzoria’s name was included in the report. Although Garzoria 

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Principal or Assistant Superintendent made these allegations to the DFPS. 

Ultimately, DFPS concluded that the evidence did not show that the alleged 

abuse occurred. 

The Principal sent an email to Assistant Superintendent Carlos Guerra 

(“Assistant Superintendent”) requesting that Rodriguez be transferred or 

placed on administrative leave because the situation had escalated such that 

it had become a safety issue and was affecting the campus climate. The 

Assistant Superintendent testified that he moved both Garzoria and Rodriguez 

to different schools because there was a personality conflict. He further stated 

he moved both of them to other schools within BISD because he did not want 

to be perceived as “favoring anyone over the other.” The transfers occurred 

without interruptions to their service or adjustment to their pay rate. 

On June 29, 2016, Rodriguez filed a complaint in federal district court 

against BISD, alleging BISD discriminated against him based on his age, sex, 

and disability by not promoting him and by transferring him to another school. 

The complaint also alleged that BISD retaliated against him for filing 

complaints. BISD filed a motion for summary judgment, which the district 

court granted. Rodriguez now appeals.

II. STANDARD OF REVIEW

We review a grant of summary judgment de novo, applying the same 

standards as the district court. Am. Home Assurance Co. v. United Space 

Alliance, LLC, 378 F.3d 482, 486 (5th Cir. 2004). “A summary judgment 

motion is properly granted only when, viewing the evidence in the light most 

favorable to the nonmoving party, the record indicates that there is no genuine 

 

may have filed the report with DFPS, we do not read the email as indicating that the 

Principal had actual knowledge that Garzoria filed the report. 

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

as a matter of law.” Id.; see also FED. R. CIV. P. 56(a).

III. ANALYSIS

A. Retaliation Claims

Rodriguez appeals the district court’s grant of summary judgment in 

favor of BISD on his retaliation claims. Title VII prohibits an employer from 

taking an adverse employment action against an employee because he has filed 

an employment discrimination charge. See 42 U.S.C. § 2000e-3(a); Burlington 

N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 62 (2006). Rodriguez contends 

that BISD unlawfully retaliated against him in response to his filing a 

complaint, and argues that BISD’s decision to transfer him and deny him a 

promotion shows retaliation. 

To establish a prima facie case of retaliation under Title VII, a plaintiff 

“must establish that: (1) he participated in an activity protected by Title VII; 

(2) his employer took an adverse employment action against him; and (3) a 

causal connection exists between the protected activity and the adverse 

employment action.” McCoy v. City of Shreveport, 492 F.3d 551, 556–57 (5th 

Cir. 2007). Pursuant to the framework set out in McDonnell Douglas Corp. v. 

Green, 411 U.S. 792, 802 (1973), “[i]f the employee establishes a prima facie 

case, the burden shifts to the employer to state a legitimate, non-retaliatory 

reason for its decision. After the employer states its reason, the burden shifts 

back to the employee to demonstrate that the employer’s reason is actually a 

pretext for retaliation.” LeMaire v. La. Dep’t of Transp. & Dev., 480 F.3d 383, 

388–89 (5th Cir. 2007) (internal citation omitted).

An employee establishes pretext by showing that the adverse action 

would not have occurred but for the employer’s retaliatory reason for the 

action. Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 362 (2013). In 

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order to avoid summary judgment, the plaintiff must show “a conflict in 

substantial evidence” on the question of whether the employer would not have 

taken the action “but for” the protected activity. Long v. Eastfield Coll., 88 

F.3d 300, 308 (5th Cir. 1996) (internal quotation marks omitted). 

Rodriguez asserts that he participated in protected activity when he filed 

internal complaints with BISD and an EEOC charge. The district court 

concluded that Rodriguez did not offer any evidence that BISD was aware of 

the EEOC charge at the time of the alleged retaliatory acts. Rodriguez does 

not point to any evidence on appeal showing that BISD was aware of the EEOC 

charge at the relevant time. Thus, Rodriguez fails to establish a prima facie 

case of retaliation with respect to the EEOC charge.

With respect to the internal complaints, the evidence shows that the 

decision makers at BISD were aware of those complaints. Rodriguez contends 

that BISD’s failure to promote him to an upper level teaching position was an 

adverse employment action. However, an employee’s failure to apply for a 

promotion will bar a failure-to-promote claim unless there is a showing that 

such an application would have been a futile gesture. Shackelford v. Deloitte 

& Touche, LLP, 190 F.3d 398, 406 (5th Cir. 1999). To show applying would 

have been futile “usually requires a showing that the applicant for the 

promotion was deterred by a known and consistently enforced policy of 

discrimination.” Id. Here, Rodriguez did not apply for the promotion. 

Moreover, he has failed to show that BISD had a “known and consistently 

enforced policy of discrimination” that would have deterred him from applying. 

Id. Accordingly, he has failed to establish that the failure to promote him was 

an adverse employment action. Thus, he has not established a prima facie case 

of retaliation with respect to his failure to promote claim. 

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Rodriguez also argues that BISD retaliated against him by transferring 

him to a different position. He contends that the transfer was an adverse 

employment action because it was a less prestigious position, and the students 

were more difficult at the new school. We will assume arguendo that Rodriguez 

could establish a prima facie case of retaliation based on the transfer. 

However, he has not shown a conflict in substantial evidence with respect to 

whether BISD would not have transferred him but for his filing a complaint. 

Long v. Eastfield Coll., 88 F.3d at 308. The undisputed evidence previously set 

forth shows that Rodriguez had an extremely contentious relationship with 

two of his coworkers, Rivera and Garzoria. The Principal issued a verbal 

reprimand based on his disrespectful conduct toward Rivera and a written 

reprimand based on his disrespectful conduct toward Garzoria. Rodriguez does 

not dispute the validity of the two reprimands. During his deposition, 

Rodriguez admitted that the Principal was justified in issuing the written 

reprimand and that he did not consider the verbal reprimand to be evidence of 

discrimination. Moreover, BISD also transferred Garzoria. Under these 

circumstances, Rodriguez has not shown a conflict in substantial evidence that 

BISD would not have transferred him but for his filing a complaint.

B. Discrimination Claims

1. Disability Discrimination

Rodriguez argues that BISD discriminated against him because of his 

disability in violation of the Americans with Disabilities Act (“ADA”). To make 

a prima facie showing of discrimination, a plaintiff must establish that: (1) he 

is disabled; (2) he is qualified for the job; (3) he was subjected to an adverse 

employment action because of his disability; and (4) he was replaced by a nondisabled employee. McInnis v. Alamo Comm. Coll. Dist., 207 F.3d 276, 279-80

(5th Cir. 2000). “Once the plaintiff makes his prima facie showing, the burden 

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then shifts to the defendant-employer to articulate a legitimate, nondiscriminatory reason for the adverse employment action.” Id. at 280. The 

burden then “shifts back upon the plaintiff to establish by a preponderance of

the evidence that the articulated reason was merely a pretext for unlawful 

discrimination.” Id. 

Rodriguez argues that he was not offered an upper level teaching 

position because of his disability in violation of the ADA. This is the same 

position discussed in the analysis of the retaliation claim. Rodriguez asserts 

that when he called to inquire about the position, he was asked about whether 

his disability accommodation required him to be near a restroom. It is 

undisputed that Rodriguez is disabled. However, as previously set forth, 

Rodriguez admits that he never actually applied for the job. Indeed, at the 

time that he inquired regarding the position, it had already been filled. Thus, 

he has failed to show that he was subject to an adverse employment action,

and this claim fails.

2. Sex Discrimination

Rodriguez next claims that BISD discriminated against him based on his 

“gender non-conformity or because he was gay.” To establish a prima facie case 

of sex discrimination, a plaintiff must show that he: (1) belongs to a protected 

class; (2) was qualified for the position; (3) suffered an adverse employment 

action; and (4) was replaced by a similarly qualified person who was not a 

member of his protected group. McCoy v. City of Shreveport, 492 F.3d 551, 556 

(5th Cir. 2007). We will assume arguendo for purposes of this appeal that 

sexual orientation is a protected class for Title VII claims.2 Nevertheless, this 

claim fails because Rodriguez does not show that any decision-maker at BISD 

 

2 “Title VII in plain terms does not cover ‘sexual orientation.’” Brandon v. Sage Corp.,

808 F.3d 266, 270 n.2 (5th Cir. 2015). As in Brandon, we do not now decide whether sexual 

orientation is a protected class. Id. 

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discriminated against him based on his sexual orientation. The allegations he 

makes about “anti-gay comments” and accusations that he had inappropriate 

relationships with the students involve his co-workers—not the Principal, the

Assistant Superintendent, or the Superintendent.3 The Principal and the 

Assistant Superintendent recommended that Rodriguez be transferred, and 

the Superintendent was the ultimate decision-maker. Rodriguez has failed to 

show any discriminatory animus on the part of the decision makers. Rios v. 

Rossotti, 252 F.3d 375, 382 (5th Cir. 2001) (explaining that statements by nondecision-makers fail to satisfy a plaintiff’s burden of establishing a prima facie 

case). This claim is without merit.4 

IV. CONCLUSION

For the above reasons, the judgment of the district court is AFFIRMED.

 

3 In the Statement of Facts section of his brief, Rodriguez claims that the Assistant 

Superintendent testified that the accusations against him “raised a red flag” because there 

have been instances of inappropriate relationships between students and teachers across the 

state. We will assume arguendo that the substance of this testimony would be sufficient 

evidence of discrimination. However, Rodriguez’s cite to the deposition in the record does not 

reveal that testimony. Our precedent is clear that unsupported allegations are insufficient 

to preclude a motion for summary judgment. Clark v. America’s Fav. Chicken Co., 110 F.3d 

295, 297 (5th Cir. 1997). In other words, the lack of evidence does not create a material 

question of fact to defeat summary judgment. 4 Rodriguez does not adequately brief a claim of age discrimination, and therefore it 

is forfeited. Yohey v. Collins, 985 F.2d 222, 224–225 (5th Cir. 1993) (citing FED.R.APP.P. 28).

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