### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCUIT

No. 11-50003

SUSAN PENNINGTON, Plaintiff-Appellant

v. THE TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES, Defendant-Appellee

Appeal from the United States District Court for the

Western District of Texas USDC No. 1:09-cv-00287

Before BENAVIDES, STEWART, and GRAVES, Circuit Judges. Benavides, Circuit Judge: * Plaintiff-Appellant Susan Pennington (“Pennington”) brings suit against th e Texas Department of Family and Protective Services (“DFPS”), alleging that she was subject to a hostile work environment, and that she was forced to resign in retaliation for opposing ra c e and sex discrimination, all in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq . The district court granted summary judgment in favor of the DFPS on all claims. Pennington now appeals the district court’s ruling as to her retaliation claim. U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D March 29 , 20 12 Lyle W . Cayce Clerk

Purs uant to F IFT H C IR C UIT RUL E 47.5 , th e Court has det erm ined that this opi nion * sho uld not be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in FIFT H C IR C UIT RUL E47. 5.4. Case: 11-50003 Document: 00511805373 Page: 1 Date Filed: 03/29/2012I. FA C T UA L AN D P R O C E D U RA L BA C K G R O U N D

Pennington was hired as a Division Manager at DF P S on February 26, 2007. Heather Shiels (“Shiels”), th e Director of the Residential Contract Unit at DFPS, hired Pennington and was also her immediate supervisor. Shiels, in turn, reported to Jeannie Coale (“Coale”), the Assistant Commissi oner of Purchased Client Services. Pennington supervised fifteen residential contract managers located across Texas. As a n e w hire, Pennington had to serve a 12- month probationary period, during which time DFPS could dismiss her without advance notice or cause. Soon after Pennington joined the DFPS, in March 2007, Shiels asked her to hire a new res i d e ntial contract manager for the San Antonio DFPS office. Shiels told Pennington that the San Antonio office had suffered a high turnover and needed stability. Pennington interviewed four candidates for the position, and ranked Don na Rash (“Rash”) as the top candidate. Pennington had supervised Rash at another agency, and thought she was the best fit for the job. Rash was pregnant at the time of the interview, which Pennington knew. She also knew that Rash lived in Taylor, Texas, east of Austin, and thus would have a considerable commute to the DFPS office in San Antonio. On March 28, 2007, Pennington told Shiels that she had chosen Rash for the San Antonio position. From this point forward, the parties tell very different

ve r sions of what happened over the next few months. Pennington claims that Shiels said she had heard Rash was pregnant, and angrily confronted Pennington, saying “What are you thinking? A pregnant woman cannot handle the workload, you know what our workload is like. A pregnant woman can’t do this job.” Pennington says that she responded by praising Rash’s experience and competence, noting that she had worked with Rash before and felt she was the best candidate for the job. At this time, Pennington did not make any comments
2 Case: 11-50003 Document: 00511805373 Page: 2 Date Filed: 03/29/2012to Shiels about discrimination, because she did not want to anger Shiels further.

Shiels claims, however, that she did not know Rash was pregnant, and that she

was only concerned about the distance Rash l iv e d from San Antonio. Because she was dissatisfied with Pennington’s choice, Shiels called t o check the references for the next candidate on the list, but the references were not positive. Over the next week, Pennington alleges that she discussed hiring Rash several more times with Shiels, and that on at least one occasion, she told Shiels “words to the effect that ‘we can’t not hire Donna because she’s pregnant, it’s a civil rights issue,’ or ‘it’s blatant discrimination.’” On April 6, 2007, a week after Pennington had selected Rash as a residential contract manager in San Antonio, Shiels approved the hire. At th e same time that Rash was being interviewed and hired, Shiels voiced

concerns w ith Pennington’s job performance, including her failure to complete assignments on-time and to communicate with Shie l s regarding the status of assignments. On March 29, 2007, Shiels had a conference with Pennington regarding her job performance and workplace attitude. Then on April 4, 2007, Shiels sent an email to John Adamo (“Adamo”), legal counsel for DFPS, to discuss her concerns about Pennington and inquire ab o u t h e r options for disciplinary action. Shiels and Adamo met on the following day and after their meeting, Shiels began to document Pennington’s performance problems. Shiels also requested feedback from another employee regarding Pennington’s performance, and the feedback was at times negative. In late April or early May of 2007, DFPS internally posted a position for

an opening in the Austin field office, and Rash asked Penni ngton if she could apply. As a new hire, DFPS pol i c y required that Rash serve a probationary period of on e y e ar , during which time she could not apply and compete for internal open positi o ns unless the new position would result in an increase in
3 Case: 11-50003 Document: 00511805373 Page: 3 Date Filed: 03/29/2012pay or the Comm i ssioner approved a waiver of the policy as being in the best

interest of the agency. The Austin position would not have meant an increase in pay for Rash, and would have been essentially a lateral transfer. Rash had not framed the request to Pennington as an accommodation for her pregnancy, but simply as desirable because it was closer to her hom e . Th e r e f o re, when Pennington approached Shiels regarding Rash’s request, she did not relate the transfer to Rash’s p r e gnancy. Pennington alleges that Shiels responded, “absolutely not,” and told Pennington that Rash was her hire and she would “have to pick up [Rash’s] slack.” Later in May 2007, Rash again approache d P e nnington about transferring t o th e Austin office. This time, Rash said that her obstetrician ha d recommended that she travel less in her last trimester of pregnancy. Pennington was nervous about approaching Shiels again regar ding Rash’s

r e qu est, and she researched the DFPS policies before bringing the matter t o Shiels’s attention. According to Pennington, Shiels got very angry and allegedly

“ s ai d w o r d s t o the effect of ‘I told you she couldn’t do the job. A pregnant

– a pregnant woman can’t be a C o ntract Manager.’” Pennington states that she “knew this was discrimination but

. . . did not argue with [Shiels],” and instead “tried to be positive.” Pennington followed up on her conversation with Shiels by sending her an email requesting a management-directed transfer for Rash as a reasonable accommodation for her pregnancy complications. Sh e s ays that she also provided Shiels with a note from Rash’s doctor recommending that Rash reduce h e r driving and stay close to Austin. Rash testified that she gave the docto r ’ s note to Pennington, but Shiels testified that she did not receive a note until the end of June. DFPS produced a copy of the June note, but neither party produced the note from May.
4 Case: 11-50003 Document: 00511805373 Page: 4 Date Filed: 03/29/2012Shiels responded to Pennington in an email dated May 23, 2007, in which

she said that Rash could not transfer t o Au s tin until her probationary period

was over. Shie l s di d not mention that Rash was seeking the transfer as a reasonable accommodation, and testifies that the request was not framed as an accommodati o n for pregnancy-related medical complications and was not accompanied by any medical documentation. Shiels also emphasized the need for the San Antonio office to have stability. Pennington was frustrated by this
response, and she met with Shiels again regarding accommodating Rash. Pennington states that she believed Shiels was discriminating against Rash becaus e o f her pregnancy, and says that she told Shiels it was a “civil rights issue.” Shiels allegedly became angry again, and would not discuss the matter further. Pennington tried to approach Coale about R a s h ’s request for an accommodation, but Coale refused to discuss it. Pennington states that Shiels increased her scrutiny of both Pennington and Rash after the May request for an ac c o m m o dation, including accusing Pennington of allowing Rash to work from home and a local office, and requiring R a sh to submit an accounting of all of her work hours, assignments, and locations. Pennington testifies that she never allowed Rash to work from home

or a local office, while DFPS has produ ced a document written by another employee stating that she h e a r d that Rash had been working from home or in an Austin-area DFPS office at times. After doing further research regarding DFPS policies, Pennington located

a Reasonable Accommodation Request form online and forwarded it to Rash to fill out. Pennington also discussed the proper procedures for making a request with Orlando Smith (“Smith”) in the Health and Human Services Commission (“HHSC”) Office of Civil Rights, then added her information and s i gn at ure to Rash’s Reasonable Accommodation Reques t and forwarded it with a second
5 Case: 11-50003 Document: 00511805373 Page: 5 Date Filed: 03/29/2012doctor’s note to Shiels on June 29, 2007. This email appears in the record. On

the same day, Pennington tried to discuss the matter with Coales, as Shiels was out of the office and Pennington feared the r e qu e s t w ould cause controversy when Shiels returned. Again, Coale stopped Pennington, told her it was Shiels’s decision, and would not discuss the request. On Thursday, July 5, 2007, Pennington had not received a response from either Shiels or Coale regarding Rash’s accommodation request, so she forwarded it to Smith in the Office of Civil Rights. The following day, Shiels met with Pennington and told her: “I’ve had eno u gh of you going to my supervisor about me.” Shiels gave Pennington the choice of voluntarily resigning or being terminated. Shiels said she would put in writing that Pennington was resigning “for the good of the unit,” and agreed to pay her f o r all of her accrued compensatory time if she voluntarily resigned. Pennington chose to resign, and

r e m ained a DFPS employee through August 1, 2007. Shiels testified that s h e did not know that Pennington had submitted the Reasonable Accommodation Request to the Office of Civil Rights until after her resignation. In addition to alleging that DFPS retaliated against her for opposing pregnancy discrimination against Rash, Pennington alleges that the retaliation

was in response to her oppositio n t o race discrimination. In early June 2007, Pennington came across a budget spreadsheet that she felt showed that AfricanAm e rican employees in the division made significantly less money that n o n minority employees. She asked the team le a d a n d a n other employee if there

were legitimate reasons they were paid less, such as length of employment or job performance. Shortly after speaking with them, Pennington alleges that Shiels

came into her office “in a rage,” slammed the door, knocked things off her desk, and yelled “words to the effect of ‘what are you doing and why ar e you asking questions about thes e e m p loyees?’” Pennington testifies that she replied that
6 Case: 11-50003 Document: 00511805373 Page: 6 Date Filed: 03/29/2012the spreadsheet seemed to show compensation discrimination, and th at “M s .

Shiels shouted or screamed words to the effect that they

. . . were lazy and acceptant of their salaries and if they wanted more, they could apply for a job somewhere else.” Shiels denied being h o stile, and testified that she was not upset that Pennington was complaining ab o u t inequitable compensation, but because she was sharing salary information with peers, which Shiels felt was inappropriate. Pennington filed suit against HHSC and DFPS on Ap ril 1 5 , 2009. Her claims against HHSC were dismissed without prejudice and Pennington filed an amended complaint against DFPS, alleging that DFPS subjected her to a hostile

wo rk e nvironment and terminated her in retaliation for her opposition to discrimination, in violation of Title VII. DFPS filed a moti o n f o r s ummary judgment, and on November 23, 2010, the district court granted the motion. The court found that Pennington had failed to make out a prima facie case of retaliation, and that even if she had made out a prima facie case, she had failed to show that DFPS’s proffered reason for its action was pretext. The district court also held that Pennington had failed to present evidence sufficie nt to establish that she wa s s ubjected to a hostile work environment. Pennington ti m ely ap p e al e d , ch all e nging only the district court’s grant of summary j u dgm e nt on her retaliation claim. II. S TAN D A R D O F R E VI EW We review a district court’s grant of summary judgment de novo and apply the same standard as the district court. Holt v. State Farm Fire & Cas. Co. , 627 F

. 3 d 188, 191 (5th Cir. 2010). Under that standard, summary judgment is appropriate when “there i s n o g e n uine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). When reviewing a motion for summary judgment, we construe all the evi d e n ce and
7 Case: 11-50003 Document: 00511805373 Page: 7 Date Filed: 03/29/2012r e asonable inferences in the light most favorable to the nonmoving p arty .

Amazing Spaces, Inc. v. Metro Mini Stora ge , 608 F.3d 225, 234 (5th Cir. 2010) (quoting Xtreme Lashes, LLC v. Xtended Beauty, Inc. , 576 F.3d 221, 226 (5th Cir. 2009)). III. ANA LY S I S When a plaintiff alleges retaliation in violation of Title VII, a court applies the McDonnell Douglas burden-shifting framework. McDonnell Douglas Corp.

v. Green , 411 U.S. 792 (1973); LeMaire v. La. Dept. of Transp. and Dev ., 480 F.3d 383, 388 (5th Cir. 2007); Byers v. Dallas Morning News, Inc ., 209 F.3d 419, 427 (5th Cir. 2000). Under that framework, the plaintiff must first make out a prima facie case of retaliation, which requires showing that (1) she engaged in a protected activity; (2) s h e suffered an adverse employment action; and (3) a causal link exists between her activity and the employment action. M c Coy v. City of Shreveport , 492 F.3d 551, 556-57 (5th Cir. 2007). On c e th e plaintiff makes a prima facie showing, the burden shifts to the employer to articulate a legitimate, nonretaliatory reason for the adverse employment action. Id

. at 557. If the employer meets this burden of production, then the burden shifts back to the plaintiff to show that the employer’s proffere d e xp l a n ation is a pretext for retaliation. Byers , 209 F.3d at 427. At this stage, “a plaintiff must show that the adverse employment action would no t h av e occurred ‘but for’ the protected activity in order to prove unlawful retaliation.” Long v. Eastfield Coll. , 88 F.3d 300, 308 (5th Cir. 1996) (citation omitted). Here, Pennington argues that she presented sufficient e vidence to establish both a prima facie case of retaliation, and to raise a material issue of fact as to whether DFPS’s proffered reasons for her constructive discharge were

a p retext for discrimination. DFPS responds that the district court properly

8 Case: 11-50003 Document: 00511805373 Page: 8 Date Filed: 03/29/2012granted summary judgment because P e nnin gto n f ailed to show that she engaged in protected activity, or that a causal nexus exists between any alleged protected

a ctivity and her discharge. Furthermore, DFPS agrees with the district court that Pennington failed to demonstrate that its reasons for con structively discharging her were pretextual. As previously stated, the district court found that Pennington had failed to make out a prima facie case of retaliation, but went on to hold that even if she had successfully presented a prima f a cie case, she did not show that DFPS’s proffered reasons for her constructive discharg e were pretext for retaliation. Since our disp o s iti o n on pretext is determinative on appeal, we express no opi nions with respect to the district court’s findings as to Pennington’s prima facie case. The district court held that “Pennington h a s m a d e no showing that she

w o u l d n ot have been constructively discharged but for her assisting Rash i n filing her accommodation request or her opposition to discriminatory practices.” The court found that Pennington’s subjective belief that she was asked to resign in retaliation for her opposition to discrimination was in s u f f icient to survive

s u mmary judgment. The court also found that Pennington admitted that s h e often felt overwhelmed by the amount of work she was expected to perform, and that she had trouble meeting deadlines set by Shiels, such that she “concede[d] she could not meet her supervisor’s performance expectations.” Finally, the district court held that Pennington had offered no additi o n al evidence beyond the temporal p r o xi m ity between her protected activity and her constructive discharge to support a finding of pretext, such that her claim could not survive summary judgment. At the prete xt s t age, “the only question

. . . is whether the evidence of retaliation, in its totality, supports an inference of retaliation.” Shackelford v.
9 Case: 11-50003 Document: 00511805373 Page: 9 Date Filed: 03/29/2012Deloitte & Touche, LLP, 190 F.3d 398, 407 (5th Cir. 1999). As stated earlier, the

plaintiff must show that the employer’s adverse action would not have occurred “but for” her protected activities. Evans v. City of Hous ., 246 F.3d 344, 354 (5th Cir. 2001); Shackelford , 190 F.3d at 409; Long, 88 F.3d at 308. One way a plaintiff shows but-for causati o n i s b y providing “[p]roof that the defendant’s explanation is unworthy of credence.” Reeves v. Sanderson Plumbing Products, Inc. , 530 U.S. 133, 147 (2000). “Thus, a plaintiff’s prima facie case, comb ined with sufficient evidence to find that the employer’s asserted justification is false, may permit the trier of fact to c o n c lu d e that the employer unlawfully [retaliated].” Id

. at 1 4 8 ; see also St. Mary’s Honor Ctr. v. Hicks , 509 U.S. 502, 511 (1993). We agree with the district court that Pe nnington has produced insufficient evidence to show pretext, and to therefore permit an inference of retaliation. As the di s t ri c t court found, Pennington admitted that she often had difficulty meeting deadlines set by Shiels, and that she at times felt overwhelmed. While Pennington also testified that she felt that she performed “[e]xtremely well” in her position, Pennington’s personal belief regarding her job p e rformance is insufficient to raise a fact issue regarding DFPS’s proffered r e a s o n s for its action. See Mire v. Texas Plumbing Supply Co., Inc ., 286 F. App’x 138, 144 (5th Cir. 2008) (per curiam). As part of its justif

ic atio n f or co n s tructively di s ch ar gin g P e nnin gton, DFPS presented multiple examples of Pennington’s performance d e f i c iencies during her employment, including: Pennington mishandled the processing of a contract and the enactment of a contract suspension on April 3, 2007, and May 31, 2001; Pennington failed to notify staff of a conference call; Pennington failed to timely send out a contract to committee members; Pennington failed to notify s t af f of

a conference call; on multiple occasions, Pennington did not adequately review 10 Case: 11-50003 Document: 00511805373 Page: 10 Date Filed: 03/29/2012contracts before forwarding them to Shiels; on July 3, 2007, Pennington

instigated a confrontation between two contract m a n a g ers under her supervision; and, Pennington attempted to discuss work-related iss u e s w ith Coale, rather than going to Shiels first. Penni n gt o n f ails to deny the majority of these deficiencies, instead providing excuses. For instance, on April 9, 2007, Shiels ordered Penningto n to send out a draft contract to committee members before Pennington left town, which Pennington agreed to do. Pennington admits that she did not send out the contract, but says that she did so because members of the committee requested more time to review th e c o nt ract. Similarly, Pennington admits that she may have sent contrac t s to Shiels with errors in them, but she states that, “[g]iven the large number of contracts, emergency or rush situations, the number of staff i nvo lved and the nature of the process, it

was simply an unavoidable p ossibility tha t Shiels caught an occasional error.” The only DFPS allegati o n that Pennington denies is that she failed to inform staff members of the planned conference call; otherwise, she offers no evidence to dispute DFPS’s criticisms of her job performance. In her attempt to show pretext, Pennington relies on temporal proximity

a nd Shiels’s comments to Pennington when Pennington was forced to resi gn . Pennington points out that DFPS terminated her three days after she sent a copy of Rash’s formal reasonable accommodation request to Shiels, and that her termination also occurred close in time to other protected activity in which she engaged. This Court has held, however, that timing alone cannot establish pretext, once an employer has furnished a legitimate, nonretaliatory reason for it s actions. See Hernandez v. Yellow Transp., Inc., 670 F.3d 644, ___ (5th Cir . 2012); Roberson v. Alltel Infor. Se r v. , 373 F.3d 647, 656 (5th Cir. 2004). According to Pennington, Shiels’s alleged statement, “I’ve had enough of you going t o m y s upervisor about me,” serves as further evidence of pretext.
11 Case: 11-50003 Document: 00511805373 Page: 11 Date Filed: 03/29/2012Pennington sought to speak with Coale two times, and on both occasions she

attempted to discuss Rash’s request for an accommodation. Thus, Pennington alleges that despite DFPS’s assertion that her various missteps on the job were the reasons for h er constructive discharge, the only reason allegedly given by Shiels at the time of the discharge was an action related to Pennington’s
p rotected activity. However, Shiels’s statement is consistent with pr e vi o u s warnings she gave Pennington to bring problems she had with the unit directly to Shiels, instead of going over Shiels’s head to Coale. It is also consistent with DFPS’s p roffered reasons for constructively discharging Pennington. Rather than provide “[p]roof that the defendant’s explanation is unworthy of credence,” Shiels’s statement bolsters DFPS’s defense. Reeves , 530 U.S. at 147. We therefore find that Pennington has failed to offer “other significant evidence of pretext.” Shackelford , 190 F.3d at 409. Likewise, Pennington has failed to overcome her burden o f s h o wing pretext, and has failed to show that her o pposition to race discrimination was the real reason for her constructive discharge. She voiced her concerns regarding minority employee pay differentials in Ju n e 2 0 07, and was constructively discharged the following month. Beyond temporal proximity, she has produced no evidence that suggests th at her opposition to race discrimination was the “but-for” cause for her co n s tructive di scharge. “Temporal proximity, standing alone, is not enough” to create a material issue of fact regarding the reason for DFPS’s adverse employ m ent action. Hernandez , 670 F.3d at ___. “[T]he ultimate issue on summary judgment i s whether [Pennington] produced evidence which could support a finding that she would not have been fired in the absence of her having engaged in protected conduct.” Shackelford , 190 F.3d at 409. Pennington’s subjective be l ief that she was the victim of
12 Case: 11-50003 Document: 00511805373 Page: 12 Date Filed: 03/29/2012retaliation, even if that belief is genuine, is insufficient to carry her case without

further evidence of pretext. Sherrod v . Sears, Roebuck & Co. , 785 F.2d 1312, 1316 (5th Cir. 1986); Elliott v. Group Medical & Surgical Service , 714 F.2d 556, 567 (5th Cir. 1983). Furthermore, it is not this Court’s place to d e t e rmine whether DFPS ’ s expectations of Pennington were reasonable, and we will not “second-guess the business decisions of an employer, so long as those decisions

are not the result of discrimination.” Jackson v. Watkins , 619 F.3d 463, 468 n.5 (5th Cir. 2010) (per curiam). Accordingly, summary judgment in favor of DFPS was appropriate. IV. C O N C L U S I O N For the foregoing reasons, we AFFIRM the judgment of the district court. Carl E. Stewart, Circuit Judge, concurs in the judgment only.

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