IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 01-20324

Summary Calendar ____________________

JOSE CARTAGENA

Plaintiff - Appellant

v.

AEGIS MORTGAGE CORPORATION, INC, ET AL

Defendant

AEGIS MORTGAGE CORPORATION, INC

Defendant - Appellee

_________________________________________________________________

Appeal from the United States District Court for the Southern District of Texas USDC No. H-00-CV-1548 _________________________________________________________________ October 16, 2001

Before KING, Chief Judge, and DAVIS and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Jose Cartagena appeals the district

court’s judgment in favor of Defendant-Appellee Aegis Mortgage

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Corporation on Cartagena’s claims of employment discrimination.

For the following reasons, we AFFIRM.

I. FACTUAL AND PROCEDURAL BACKGROUND

In May 1997, Defendant-Appellee Aegis Mortgage Corporation

(“Aegis”) hired Plaintiff-Appellant Jose Cartagena, a Hispanic

male, as manager of its government insurance department. Almost

two years later, in February 1999, Aegis discharged Cartagena.

On the day before Cartagena was discharged, he overheard

Jennifer Marquez, one of the employees working under him, tell

Suzanne Janzack, another employee working under him, about an

alleged affair between Janzack and Cartagena. Cartagena

approached Marquez and asked her to reveal the source of her

information. Marquez refused, and, according to Cartagena, he

told Marquez that they would discuss the matter the following

morning with the president of Aegis. After Cartagena left the

office, Marquez reported the incident first to Deborah Nelson,

who was then a vice president, and then, at Nelson’s suggestion,

to Terry Nagle, Cartagena’s immediate supervisor. Marquez told

Nelson and Nagle that Cartagena had threatened her when she

refused to reveal who had told her about Cartagena’s alleged

affair with Janzack.

Nagle related Marquez’s account of her encounter with

Cartagena to Robert Ward, an executive vice president of Aegis,

who agreed with Nagle that Cartagena should be discharged. Nagle

2 discharged Cartagena when he arrived at work on the morning of

February 11, 1999, the day following the incident with Marquez.

Pamela Whitford, a white female, worked as manager of the

government insurance department for one month after Cartagena’s

discharge. During that time, Whitford was not paid by Aegis, but

rather by the employment agency that Aegis had retained to fill

Cartagena’s position.

On May 5, 2000, Cartagena filed suit in federal district

court against Aegis,1 alleging various violations of Title VII of

the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title

VII”). Specifically, Cartagena claimed (1) racial and gender

discrimination in the form of unequal compensation and discharge

in violation of § 2000e-2(a)(1), and (2) retaliation for opposing

sexual harassment in violation of § 2000e-3(a). Each party filed

summary judgment motions, and on February 22, 2001, the district

court issued summary judgment against Cartagena on all his Title

VII claims and denied as moot all pending procedural motions,

including Cartagena’s motion for reconsideration of the district

court’s previous denial of his requests for interrogatories and

document production. Cartagena timely appealed, challenging the

summary judgment on each of his Title VII claims and the denial

of his discovery requests.

1 Cartagena also named Marquez and Nagle as defendants, but the district court dismissed them from the case on July 24, 2000. Cartagena does not challenge their dismissal on appeal.

3 II. PROPRIETY OF THE SUMMARY JUDGMENT DISMISSING THE TITLE VII CLAIMS

A. Standard of Review

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

novo, applying the same Rule 56 standard as the district court.

Blow v. City of San Antonio,

(5th Cir. 2001)

(citing FED. R. CIV. P. 56). “Although summary judgment is not

favored in claims of employment discrimination, it is nonetheless

proper when ‘there is no genuine issue as to any material fact

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

law.’” Waggoner v. City of Garland,

(5th

Cir. 1993) (quoting FED. R. CIV. P. 56(c)). In reviewing a

summary judgment decision, this court bears in mind that

“[c]redibility determinations, the weighing of the evidence, and

the drawing of legitimate inferences from the facts are jury

functions, not those of a judge.” Reeves v. Sanderson Plumbing

Prods., Inc.,

(2000) (quoting Anderson v.

Liberty Lobby, Inc.,

(1986)). Accordingly,

“[d]oubts are to be resolved in favor of the nonmoving party, and

any reasonable inferences are to be drawn in favor of that

party.” Evans v. City of Bishop,

, 589 (5th Cir.

2000).

If the moving party shows that there is no genuine issue of

material fact, then the burden shifts to the nonmoving party, who

“may not rest upon the mere allegations or denials of the

4 [moving] party’s pleadings,” but rather “must set forth specific

facts showing that there is a genuine issue for trial.” FED. R.

CIV. P. 56(e); see also Celotex Corp. v. Catrett,

(1986). After the nonmoving party has been given an

opportunity to raise a genuine factual issue, if no reasonable

juror could find for that party, summary judgment is proper. See

FED. R. CIV. P. 56(c); Anderson,

.

B. The McDonnell Douglas Analytical Framework

In McDonnell Douglas Corp. v. Green, the Supreme Court set

forth the burden-shifting framework for proving a claim of

intentional discrimination by circumstantial evidence. See

(1973). First, the plaintiff must establish a

prima facie case of discrimination.

. The elements of

the prima facie case vary depending on the type of adverse

employment action that the plaintiff claims was the result of

unlawful discrimination. See Siler-Khodr v. Univ. of Tex. Health

Sci. Ctr. San Antonio, No. 00-50092,

(5th Cir.

Aug. 24, 2001); see also McDonnell Douglas,

n.13

(“The facts necessarily will vary in Title VII cases, and the

specification above of the prima facie proof required from

respondent is not necessarily applicable in every respect to

differing factual situations.”).

By establishing a prima facie case, the plaintiff raises a

“mandatory inference of discrimination.” Russell v. McKinney

5 Hosp. Venture,

(5th Cir. 2000) (quoting Tex.

Dep’t of Cmty. Affairs v. Burdine,

, 255 n.10

(1981)). To rebut that inference of discrimination, the

defendant must produce evidence of a legitimate,

nondiscriminatory reason for the adverse employment action on

which the discrimination claim is based. McDonnell Douglas,

. The defendant’s burden “is only one of production,

not persuasion, involving no credibility assessments.” Russell,

; see also Burdine,

(“The ultimate

burden of persuading the trier of fact that the defendant

intentionally discriminated against the plaintiff remains at all

times with the plaintiff.”).

If the defendant defeats the inference of discrimination

raised by the plaintiff’s prima facie case, “the ultimate

question” remaining for the trier of fact is “whether [the]

plaintiff has proven [intentional discrimination].” Russell,

(citing St. Mary’s Honor Ctr. v. Hicks,

(1993)) (alterations in original). In most cases, a

plaintiff will make a showing of intentional discrimination

sufficient to survive summary judgment by relying on the prima

facie case and on evidence that the defendant’s nondiscriminatory

explanation for the adverse employment action is pretextual. See

Reeves,

; Russell,

.

C. Application of the Framework

6 Although Cartagena clearly failed to establish prima facie

cases of discriminatory compensation and retaliation, the

question whether he succeeded in establishing a prima facie case

of discriminatory discharge is less clear. However, summary

judgment was nevertheless proper because the district court

correctly concluded that Cartagena failed to present sufficient

evidence that Aegis’s nondiscriminatory explanation for

discharging Cartagena was a mere pretext for discrimination.

1. Discriminatory Discharge

To establish a prima facie case of discriminatory discharge,

Cartagena must show that (1) he is a member of a protected class,

(2) he was discharged, (3) he was otherwise qualified for the

position from which he was discharged, and (4) that he was

replaced by an individual outside his protected class. Reeves,

. Cartagena is a Hispanic male who was discharged

from a position for which he was qualified, and he was replaced

by Pamela Whitford, a white female. Aegis apparently argues that

the fourth element of the prima facie case is not met because

Whitford’s employer was an employment agency rather than Aegis.

Aegis claims that it hired Whitford for a different position,

after eliminating the position that Cartagena had held. We need

not determine the legal import of such circumstances to resolve

this appeal. Assuming Cartagena established a prima facie case,

summary judgment against him was still proper because he failed

7 to present sufficient evidence that Aegis’s nondiscriminatory

explanation was a pretext for discrimination.

Aegis met its burden of producing a nondiscriminatory,

legitimate reason for discharging Cartagena. According to Nagle

(Cartagena’s immediate supervisor) and Ward (the executive vice

president who approved Nagle’s decision to discharge Cartagena),

they agreed that Nagle should discharge Cartagena because they

believed Marquez’s claim that Cartagena had threatened her.

Nagle and Nelson (the then vice president to whom Marquez first

reported the incident) both stated in their depositions that

Marquez reported to them that Cartagena had told her that if she

would not reveal the source of the rumors about his alleged

affair, then “something would happen to her.” Nagle and Nelson

also both stated that Marquez appeared frightened when she came

into their offices after the incident with Cartagena.

Standing alone, Marquez’s allegation that Cartagena

threatened her satisfies Aegis’s burden of producing a

legitimate, nondiscriminatory reason that rebuts the inference of

discrimination raised by Cartagena’s prima facie case. However,

Aegis also points to prior incidents that it claims contributed

to its decision to discharge Cartagena. Nagle stated in her

deposition that one of the reasons why she believed Marquez’s

account was that Caryn Landauer, a former Aegis employee who had

also worked under Cartagena, had resigned because she was afraid

of Cartagena. According to both Nagle and Ward, Landauer was so

8 intimidated by Cartagena that she asked Ward and Nagle not to

tell Cartagena the reason for her resignation.

Nagle also stated that employees in addition to Landauer and

Marquez had reported that they “were afraid of [Cartagena]” and

that “he was rude to them, short with them, and occasionally

would not help them when they asked for help.” Nagle further

stated that she had questioned Cartagena’s managerial competence

several times throughout his employment with Aegis, such as when

she saw him touching female employees in inappropriate ways

(including Landauer), when he refused to turn his personal time

sheets in to her, when customers of Aegis complained about the

way Cartagena treated them, and when other supervisors complained

to her that Cartagena was instructing the employees in their

departments.

Where, as here, the defendant claims that it discharged the

plaintiff primarily because of complaints about the plaintiff by

fellow employees, the pretext “inquiry is limited to whether the

employer believed the [complaints] in good faith and whether the

decision to discharge the employee was based on that belief.”

Waggoner v. City of Garland,

(5th Cir.

1993).

Further, in undertaking the pretext inquiry, we must

consider Cartagena’s evidence in light of the fact that the same

individual —— Nagle —— both hired and discharged Cartagena. Such

circumstances create “an inference that discrimination was not

9 the employer’s motive in terminating the employee.” Faruki v.

Parsons S.I.P., Inc.,

, 320 n.3 (5th Cir. 1997)

(citing Brown v. CSC Logic, Inc.,

(5th

Cir. 1996)). In adopting the “same actor” inference in Brown, we

highlighted the Fourth Circuit’s explanation of the rationale

underlying the inference: “From the standpoint of the putative

discriminator, ‘[i]t hardly makes sense to hire workers from a

group one dislikes (thereby incurring the psychological costs of

associating with them), only to fire them once they are on the

job.’”

(quoting Proud v. Stone,

(4th Cir. 1991) (quoting John J. Donohue III & Peter Siegelman,

The Changing Nature of Employment Discrimination Litigation, 43

STAN. L. REV. 983, 1017 (1991))) (alterations in original).

Cartagena relied on four categories of evidence in his

attempt to establish that Aegis’s proffered explanation was a

pretext for discrimination. First, he stated in an affidavit and

in his deposition (1) that he did not threaten Marquez, but

rather merely stated that they would speak to Rick Thompson, the

president of Aegis, the next day, and (2) that he was not in fact

having an affair with Janzack. Even assuming both of those

claims to be true, as we must under a summary judgment analysis,

Aegis correctly argues that Cartagena may not rely on them to

establish pretext because they do not call into question that

10 Nagle and Ward decided to discharge Cartagena because they

believed Marquez.2

Second, Cartagena points to Aegis’s favorable evaluations of

his ability to manage the loan-insuring process effectively and

efficiently. Again, such evidence does not tend to undermine the

credibility of Aegis’s explanation for Cartagena’s discharge.

Nagle and Ward did not deny —— and in fact they acknowledged ——

that Cartagena succeeded at the “loan-insuring” aspect of his

job. Rather, Nagle and Ward claimed that the deficiency in

Cartagena’s performance was his misconduct, most significantly

toward his subordinates, but also toward customers and co-workers

outside his department. Evidence of Cartagena’s success in

getting loans insured cannot help Cartagena make a showing of

pretext because it is irrelevant to whether Nagle and Ward in

2 Also in support of his claims that he did not have an affair with Janzack and that he did not threaten Marquez, Cartagena points to the findings made by the Texas Workforce Commission in determining whether he was entitled to benefits under the Texas Labor Code. As explained above, those claims are irrelevant to the inquiry into whether Nagle and Ward believed Marquez. Moreover, as Aegis correctly points out, Texas law precludes the findings of the Texas Workforce Commission from being “used as evidence in an action or proceeding, other than an action or proceeding [before the Texas Workforce Commission], even if the action or proceeding is between the same or related parties or involves the same facts.” TEX. LAB. CODE ANN. § 213.007 (Vernon 2001); see also Waggoner,

(holding that article 5221b-9 of the Texas Revised Civil Statutes, the predecessor of section 213.007, rendered findings of the Texas Employment Commission inadmissible as evidence of the plaintiff’s age discrimination claim).

11 good faith believed the allegations of Marquez and other

employees that Cartagena had engaged in misconduct.

Third, Cartagena attempts to show pretext by arguing that

Aegis’s discrimination against him is evinced by a comparison of

Aegis’s treatment of him to its treatment of two white females

who were also in managerial positions, but who, unlike Cartagena,

were not discharged when Ward was made aware of deficiencies in

their job performances. Such disparate-treatment evidence is

relevant to a discrimination claim only if the employees outside

the plaintiff’s protected class are “similarly situated” to the

plaintiff. See Williams v. Trader Pub. Co.,

(5th Cir. 2000) (citing Polanco v. City of Austin,

(5th Cir. 1996)); cf. Nieto v. L&H Packing Co.,

,

623 n.5 (5th Cir. 1997) (“The Supreme Court has explained that

th[e] inquiry [into whether a similarly-situated employee outside

the plaintiff’s protected class was treated more favorably] is

especially relevant to a showing that the employer’s proffered

legitimate, non-discriminatory reason for its decision was

pretext for discrimination.”).

The district court properly concluded that Cartagena failed

to show that the two white females —— Debbie Poppe and Micki Bong

—— were similarly situated to Cartagena. Like Cartagena, Poppe

was accused of misconduct toward one of her subordinates, but,

12 unlike Cartagena, she was not discharged.3 Specifically, Poppe

allegedly stated that she “almost slapped” Donna McDowell and

that she “felt like she could slap a couple of other people in

[her] department.” Poppe’s situation was not sufficiently

similar to that of Cartagena, however, because, unlike Cartagena,

Poppe did not already have a history of misconduct when the

specific incident occurred. See Nieto,

(in

concluding that the plaintiff was not similarly situated to

another employee outside the plaintiff’s protected class,

pointing to evidence that the plaintiff had a prior disciplinary

record, but the other employee did not). Further, in relating

the incident to Ward, McDowell did not accuse Poppe of making a

threat or express that she was afraid of Poppe, as Marquez did

when she reported her encounter with Cartagena to Nagle.

Bong, the other white female who Cartagena claims was

treated differently than he, was placed on probation for sixty

days because she failed to obtain the necessary approval of a

loan. That, however, is a significantly different sort of

performance deficiency than behaving inappropriately toward

subordinates. Thus, like Poppe, Bong was not sufficiently

similarly situated to Cartagena. Cf. Nieto,

(in concluding that the plaintiff was not similarly situated to

3 Cartagena claims that Poppe was not subject to any disciplinary action, but according to Aegis, she was placed on probation.

13 another employee, noting that the other employee “did not disobey

a direct instruction from his supervisor,” as the plaintiff had

done, but rather failed to ensure that a subordinate had properly

followed his instructions).

Finally, Cartagena attempts to establish pretext by arguing

that discriminatory animus underlaid some of Nagle’s remarks and

thus that a jury could reasonably infer that such animus also

underlaid Nagle and Ward’s decision to discharge him. Cartagena

asserts that during a few staff meetings, Nagle admonished the

attendees to listen carefully to Cartagena because he did not

speak English well. Aegis argues that Nagle’s remarks are

irrelevant because they were not made in the context of

Cartagena’s discharge.

Although Aegis is correct that Nagle’s remarks are not

sufficient evidence to present a factual issue on pretext, the

reason is not, as Aegis contends, that Nagle did not make the

remarks in the context of Cartagena’s discharge. This court has

recognized that the Supreme Court “emphatically stat[ed] [in

Reeves] that requiring evidence of discriminatory animus to be

‘in the direct context’ of the employment decision is incorrect.”

Evans, 238 F.3d at 591 (citing Reeves,

).

Rather, “[t]he value of such remarks is dependent upon the

content of the remarks and the speaker.” Russell,

. Specifically, the speaker must be in a position to

influence the employment decision in question, and the content of

14 the remarks must indicate discriminatory animus. See

.

There is no question that Nagle had significant influence in

the decision to discharge Cartagena. Moreover, it is likely that

remarks such as Nagle’s could, under other circumstances, provide

support for a charge of discrimination based on national origin.

See EEOC Guidelines on Discrimination Because of National Origin,

(2001) (“The Commission defines national

origin discrimination broadly as including, but not limited to,

the denial of equal employment opportunity because of an

individual’s, or his or her ancestor’s, place of origin; or

because an individual has the physical, cultural or linguistic

characteristics of a national origin group.”) (emphasis added).4

In the instant case, however, given Cartagena’s failure to

present other evidence tending to undermine the credibility of

Aegis’s nondiscriminatory explanation for his discharge, Nagle’s

remarks at most create a weak factual issue. Standing alone, her

4 See also, for example, Fragante v. City and County of Honolulu,

(9th Cir. 1989) (noting that “[i]t would . . . be an easy refuge . . . for an employer unlawfully discriminating against someone based on national origin to state falsely that [the reason for the employment decision was] the candidate’s inability to measure up to the communications skills demanded by the job”); Carino v. Univ. of Okla. Bd. of Regents,

(10th Cir. 1984) (affirming the district court’s finding that “the decision to demote the Plaintiff . . . was made on the basis of his national origin and related accent”); and Berke v. Ohio Dep’t of Pub. Welfare,

(6th Cir. 1980) (affirming the district court’s finding “that the plaintiff was denied two positions . . . because of her accent which flowed from her national origin”).

15 remarks cannot defeat the inference created by the fact that

Cartagena was discharged by Nagle, the same individual who hired

him —— i.e., the inference that the discharge was not motivated

by discrimination. See Brown,

(concluding that

“the facts in this particular case are not sufficiently egregious

to overcome the [“same actor”] inference that [the defendant’s]

stated reason for discharging [the plaintiff] was not pretext for

age discrimination”).

Cartagena’s prima facie case of discriminatory discharge and

his other summary judgment evidence fail to raise a factual issue

on the question whether Aegis’s explanation for his discharge was

a pretext for discrimination. The district court thus properly

entered summary judgment against Cartagena on his discriminatory-

discharge claim.

2. Discriminatory Compensation

Cartagena argues that he presented sufficient evidence to

raise a factual issue on whether Aegis discriminated against him

in paying him less than Nelson, a white female. Aegis asserts

that Cartagena’s claim fails because Nelson’s job did not involve

substantially the same duties and responsibilities as

Cartagena’s.

Aegis misstates the law. In Plemer v. Parsons-Gilbane,

(5th Cir. 1983), we recognized that under the Supreme

Court’s decision in County of Washington v. Gunther,

(1981), a Title VII discriminatory-compensation claim is not

16 limited to cases in which the plaintiff can “show that he or she

was being paid less than an employee [outside the plaintiff’s

protected class] for performing equal, or substantially equal,

work.”

(citing Gunther,

).

However, we also recognized that courts are loath to undertake

the “subjective assessment of the value of the [relevant] jobs”

that would be necessary in order to evaluate a “Gunther”

discriminatory-compensation claim in the absence of direct

evidence of discrimination. We thus inferred from the Gunther

Court’s reasoning that to establish a prima facie case of

discriminatory compensation when the two relevant jobs are not

equal or substantially equal, a plaintiff must produce direct

evidence showing that the defendant would have paid the plaintiff

more if he or she were not in the protected class. See id. at

1133-34.5

5 The Gunther Court emphasized that such a subjective assessment was unnecessary in that case: Respondents’ claim is not based on the controversial concept of “comparable worth,” under which plaintiffs might claim increased compensation on the basis of a comparison of the intrinsic worth or difficulty of their job with that of other jobs in the same organization or community. Rather, Respondents seek to prove, by direct evidence, that their wages were depressed because of intentional sex discrimination, consisting of setting the wage scale for female guards, but not for male guards, at a level lower than [the defendant’s] own survey of outside markets and the worth of the jobs warranted.” Gunther,

(citations omitted).

17 At the time Cartagena was hired, Nelson was manager of the

closing department, and her salary was $500 less than

Cartagena’s. However, about nine months after Cartagena was

hired, Nelson was promoted to vice president, and she received a

raise. Consequently, at the time of Cartagena’s discharge,

Nelson was making $7600 more than he was. Six months after

Cartagena’s discharge, Nelson was again promoted, this time to

senior vice president and operations manager, and the

differential between their salaries increased to $17,600.

Cartagena also points out that Nelson consistently received

higher bonuses than he did.

Cartagena argues that because his and Nelson’s salaries were

essentially equal before Nelson was promoted, Aegis must have

assigned their two jobs essentially the same value. Those

relative values did not change as a result Nelson’s promotions,

he claims, because the additional responsibilities and duties

that Nelson took on did not justify an increase in the value of

her job beyond that of his job. Cartagena uses similar reasoning

in arguing that the differences in their jobs before Nelson was

promoted —— i.e., manager of the government insurance department

and manager of the closing department, respectively —— could not

have been the basis for Nelson’s receiving higher bonuses.

Under Gunther as interpreted by this court in Plemer,

Cartagena failed to establish a prima facie case of

discriminatory compensation because he did not base his claim

18 either on a showing that his job and Nelson’s job were

substantially equal in terms of the type of work involved (i.e.,

a “classic” discriminatory-compensation claim) or on direct

evidence of discrimination (such as Aegis’s own evaluation of the

relative value of the jobs, see supra note 5). Cartagena’s

conclusory assertion that the differences in their work did not

translate into a difference in the value of their jobs is

insufficient.6

The district court’s prima facie case analysis is correct as

applied to Cartagena’s claim of discriminatory compensation, and

the district court thus properly issued summary judgment against

Cartagena on his discriminatory-compensation claim.7

6 Even assuming Cartagena established a prima facie case of discriminatory compensation, he did not present sufficient evidence to raise a factual issue on whether Aegis’s explanation for the discrepancy between his salary and bonuses and those of Nelson was pretextual. According to Aegis, it increased Nelson’s salary because of her promotions, and she received higher bonuses because the employees in her department had not complained about her, as the employees in Cartagena’s department had complained about him. Cartagena’s claims about the relative value of their jobs, along with his other evidence discussed supra, Section C.1., is insufficient to withstand summary judgment. 7 In his brief on appeal, Cartagena relies entirely on Nelson’s situation as a basis for his discriminatory-compensation claim. In his summary judgment motion, Cartagena not only pointed to Nelson, but also to Pamela Whitford, the white female who replaced Cartagena as manager of the government insurance department. However, adding Whitford to our analysis would not change the result. It is undisputed that while Whitford was working as government insurance manager, she was paid by an employment agency, not by Aegis. Rather than presenting evidence of the amount that Aegis paid the employment agency for Whitford’s services, Cartagena presented evidence of the amount that Whitford received from Aegis after it dissolved Cartagena’s

19 3. Retaliation

To establish a prima facie case of retaliation, Cartagena

must show “(1) that [he] engaged in activity protected by Title

VII, (2) that an adverse employment action occurred, and (3) that

a causal link existed between the protected activity and the

adverse employment action.” Evans v. City of Houston,

(5th Cir. 2001) (quoting Long v. Eastfield Coll.,

(5th Cir. 1996)). Cartagena claims that in telling

Janzack about the alleged affair between Cartagena and Janzack,

Marquez was being “hostile and abusive,” thereby creating “a

hostile work environment” amounting to sexual harassment in

violation of Title VII. Thus, Cartagena contends, he engaged in

a protected activity when he confronted Marquez, and Aegis

retaliated against him when it discharged him because of that

activity. Aegis correctly argues that Cartagena failed to

establish the first and third elements of a prima facie case for

retaliation.

Cartagena engaged in a “protected activity” only if he “had

at least a ‘reasonable belief’ that the practices [he] opposed

were unlawful [under Title VII].” Long,

(citing

Payne v. McLemore’s Wholesale & Retail Stores,

,

former position and hired her as its compliance officer and licensing manager. Cartagena failed to present any direct evidence that a discriminatory motive underlaid the difference between his salary as manager of the government insurance department and Whitford’s salary as compliance officer/licensing manager.

20 1140 (5th Cir. Unit A Sept. 1981)). Cartagena admitted in his

deposition that when he confronted Marquez, he did not believe

that sexual harassment was occurring. Rather, he claimed that he

concluded in hindsight that sexual harassment had occurred and

that in confronting Marquez, he had attempted to prevent such

harassment. This court has not determined whether the “protected

activity” element of a retaliation claim includes a subjective

component as well as an objective component —— i.e., whether a

plaintiff must not only show that a belief is objectively

reasonable, but also that she or he held that belief in good

faith. See Payne,

n.11. We need not make that

determination here, however, because even if Cartagena believed

in good faith that he was opposing sexual harassment that was

unlawful under Title VII, that belief is objectively

unreasonable.

Even assuming that it would have been reasonable to believe

that Marquez was “hostile and abusive” toward Janzack, it would

not have been reasonable to believe that Marquez’s actions were

motivated by discrimination against Janzack because she was

female, and thus it would not have been reasonable to believe

that Marquez was sexually harassing Janzack. See 42 U.S.C.

§ 2000e-2(a)(1) (“It shall be an unlawful employment practice for

an employer . . . to discriminate against any individual . . .

because of such individual’s . . . sex . . . .”) (emphasis

added); see also Oncale v. Sundowner Offshore Serv’s, Inc., 523

, 81 (1998) (noting that to establish a Title VII claim of

sexual harassment, “the plaintiff . . . must always prove that

the conduct at issue was not merely tinged with offensive sexual

connotations, but actually constituted ‘discrimina[tion] . . .

because of . . . sex’”) (emphasis omitted).

Cartagena also failed to establish the third element of a

prima facie case of retaliation —— i.e., a causal link between

the alleged protected activity and his discharge. According to

Cartagena, Aegis retaliated against him by discharging him

primarily because of the Marquez incident. But there is no

causal link unless Aegis knew that Cartagena was engaging in a

protected activity. See Watts v. Kroger Co.,

(5th Cir. 1999) (holding that as a matter of law, the defendant

could not retaliate against the plaintiff “because [the

defendant] did not know [the plaintiff] had engaged in a

protected activity”). Given that Cartagena himself apparently

did not hold such a belief, it is difficult to see why Nagle or

Ward would. Moreover, Cartagena admitted in his deposition that

he did not tell Nagle or Ward that he confronted Marquez to stop

what he believed to be sexual harassment of Janzack.

Thus, the district court properly granted summary judgment

against Cartagena on his Title VII retaliation claim as well as

on his discriminatory-discharge and discriminatory-compensation

claims.

22 III. PROPRIETY OF THE DISCOVERY RULING

A. Standard of Review

We review a district court’s discovery rulings for abuse of

discretion. Duke v. Univ. of Tex. at El Paso,

(5th Cir. 1984). Although “discovery matters are committed

almost exclusively to the sound discretion of the trial Judge

. . . the Judge’s discovery rulings . . . are not entirely

sacrosanct.”

at 997 (quoting Burns v. Thiokol Chemical

Corp.,

(5th Cir. 1973)).

B. A District Court’s Discretion to Deny Discovery Before Granting Summary Judgment

Upon granting Aegis’s motion for summary judgment, the

district court denied as moot all the pending procedural motions,

including Cartagena’s motion for reconsideration of the district

court’s previous denial of his requests for interrogatories and

document production. Cartagena argues that the district court

abused its discretion by thus denying him the opportunity to

engage in further discovery.

A district court abuses its discretion if it “denies a party

an adequate opportunity to discover facts to oppose a motion for

summary judgment.” Willamson v. United States Dep’t of Agric.,

(5th Cir. 1987). Accordingly, in this case,

the district court should not have granted Aegis’s summary

judgment motion without permitting Cartagena to conduct further

discovery if Cartagena could have thereby “uncover[ed] one or

23 more substantial fact issues.”

. Rather than

specifying how his requested discovery could have aided him in

showing that there was a genuine issue of material fact

precluding summary judgment, Cartagena merely protests generally

the district court’s discovery ruling, claiming only that further

discovery was necessary because the district court had “strictly

controlled” discovery. It is clear from the record both (1) that

the discovery requested by Cartagena would not have been “likely

to produce the facts needed . . . to withstand . . . summary

judgment,”

, and (2) that the discovery the parties did

conduct pursuant to the district court’s orders provided

Cartagena with an adequate opportunity to oppose Aegis’s summary

judgment motion.

Thus, the district court did not abuse its discretion in

denying Cartagena’s discovery requests when it granted Aegis’s

summary judgment motion.

IV. CONCLUSION

For the foregoing reasons, the district court’s judgment in

favor of Defendant-Appellee is AFFIRMED.

24