REVISED DECEMBER 21, 2001 IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 00-51212 _____________________

SALOME FIERROS

Plaintiff - Appellant

v.

TEXAS DEPARTMENT OF HEALTH

Defendant - Appellee

_________________________________________________________________

Appeal from the United States District Court for the Western District of Texas, San Antonio _________________________________________________________________ November 21, 2001 Before KING, Chief Judge, and DUHÉ and BENAVIDES, Circuit Judges.

KING, Chief Judge:

Plaintiff-Appellant Salome Fierros appeals from the district

court’s summary judgment dismissing her Title VII retaliation

claim. For the following reasons, we REVERSE the district

court’s judgment and REMAND to that court for further

proceedings.

I. FACTUAL AND PROCEDURAL BACKGROUND

For over twenty-five years, Plaintiff-Appellant Salome

Fierros, a Hispanic female, worked as a laboratory technician for the Texas Center for Infectious Disease, a department of the

Texas Department of Health (“TDH”). In October 1996, Fierros

filed an internal complaint with TDH’s Office of Civil Rights

(“OCR”) against the Clinical Division Program Director, Douglas

Arnold, alleging that he had discriminated against her based on

her ethnicity and gender. Specifically, she claimed that Arnold

had discriminated against her by assigning her secretarial duties

that a Hispanic male and a white female who were also laboratory

technicians were not required to perform. Seven months later, in

May 1997, Arnold denied Fierros a merit pay increase of $57 per

month that had been recommended by her immediate supervisor,

Timothy Carter.

After confronting Arnold about his denial of the merit pay

increase, Fierros filed another internal complaint with the OCR

alleging that she had been denied the pay increase in retaliation

for filing the original OCR discrimination complaint against

Arnold. She then filed a charge with the Equal Employment

Opportunity Commission (“EEOC”) alleging gender and national

origin discrimination and retaliation in violation of 42 U.S.C.

§§ 2000e-2(a) and 2000e-3(a) (1994) (“Title VII”).

While her EEOC charge was pending, Fierros received two

disciplinary “counseling sessions,” one in September 1998

regarding purported abuse of the sick leave policy and another in

November 1998 regarding purported inappropriate sexual behavior

in the workplace. Fierros amended her EEOC charge to allege that

2 TDH also retaliated against her by subjecting her to these two

disciplinary actions. On June 4, 1999, the EEOC issued a

determination on Fierros’s charges, finding that “[b]ased upon

the totality of the evidence, there is reasonable cause to

believe that [TDH’s] employment decisions were [retaliatory] as

alleged with respect to [Fierros’s] being denied a merit increase

and subjected to written counselings because she complained of

discrimination.” However, the EEOC concluded that the evidence

did not support Fierros’s charge of gender and national origin

discrimination. Because it found that TDH had violated Title

VII, the EEOC recommended informal methods of conciliation.

The EEOC sent its determination of Fierros’s case to the

U.S. Department of Justice (“DOJ”) for review. On September 28,

1999, the Civil Rights Division of the DOJ sent Fierros a letter

giving her notice of her right to bring a Title VII action

against TDH within ninety days of receipt of the letter. On

December 16, 1999, Fierros timely filed suit against TDH in

federal district court, claiming that TDH had retaliated against

her in violation of 42 U.S.C. § 2000e-3(a). The district court

granted TDH’s motion for summary judgment on October 16, 2000,

dismissing Fierros’s retaliation claim. The district court

subsequently extended the deadline for filing a motion for

reconsideration of the summary judgment to November 10, 2000.

Fierros filed her motion for reconsideration three days late, and

the district court denied the motion.

3 On November 16, 2000, Fierros timely appealed the district

court’s summary judgment against her. On February 20, 2001, she

filed a motion with this court to supplement the record on appeal

with the exhibits that she had attached to her motion for

reconsideration of the district court’s summary judgment

decision. According to Fierros, those exhibits were “treated as

stricken” by the district court. This court denied her motion to

supplement the record on March 12, 2001.

II. SUMMARY JUDGMENT 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 making a summary

judgment determination, “[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). The Supreme Court recently emphasized

the paramount role that juries play in Title VII cases, stressing

that in evaluating summary judgment evidence, courts must refrain

from the making of “[c]redibility determinations, the weighing of

4 the evidence, and the drawing of legitimate inferences from the

facts,” which “are jury functions, not those of a judge.” Reeves

v. Sanderson Plumbing Prods., Inc.,

(2000)

(quoting Anderson v. Liberty Lobby,

(1986)).

III. TITLE VII RETALIATION CLAIM

Under 42 U.S.C. § 2000e-3(a), it is

an unlawful employment practice for an employer to discriminate against any of his employees . . . because [the employee] has opposed any practice made an unlawful employment practice by this subchapter, or because [the employee] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

42 U.S.C. § 2000e-3(a) (1994). In order to establish a prima

facie case of retaliation under § 2000e-3(a), a plaintiff must

demonstrate: “(1) that she 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)).

This court has determined that only “ultimate employment

decisions,” “such as hiring, granting leave, discharging,

promoting, and compensating” satisfy the “adverse employment

action” element of a prima facie case of retaliation. Dollis v.

Rubin,

(5th Cir. 1995) (citation omitted).

“‘[I]nterlocutory or mediate’ decision[s] which can lead to an

5 ultimate decision” are insufficient to support a prima facie case

of retaliation. Mattern v. Eastman Kodak Co.,

(5th Cir. 1997). Put differently, the “ultimate employment

decision” doctrine requires that actionable adverse employment

actions “have more than a ‘mere tangential effect on a possible

future ultimate employment decision.’” Mota v. Univ. of Tex.

Houston Health Sci. Ctr.,

(5th Cir. 2001)

(quoting Walker v. Thompson,

(5th Cir. 2000)).

The allocation of the burden of proof in Title VII

retaliation cases depends on the nature of the plaintiff’s

evidence supporting the causation element. If the plaintiff

seeks to establish causation by circumstantial evidence, the

tripartite burden-shifting framework of McDonnell Douglas

applies. See Portis v. First Nat’l Bank,

(5th

Cir. 1994) (“Because direct evidence is rare, a plaintiff

ordinarily uses circumstantial evidence to meet the test set out

in McDonnell Douglas[, which] establishes a prima facie case by

inference.”). Under the McDonnell Douglas framework, the

plaintiff carries the initial burden of establishing a prima

facie case of retaliation. See McDonnell Douglas Corp. v. Green,

(1973). At this threshold stage, the standard

for satisfying the causation element is “much less stringent”

than a “but for” causation standard. Long,

n.4.

A McDonnell Douglas prima facie showing establishes an

inference of retaliatory motive that the employer can rebut by

6 producing evidence of a legitimate, non-retaliatory reason for

the adverse action. Evans,

. If the employer

produces such evidence, then the plaintiff has the burden of

proving that the Title VII protected activity “was a ‘but for’

cause of the adverse employment decision.” Long, F.3d at 305

n.4. “If the plaintiff presents evidence supporting the prima

facie case, plus evidence that the reasons given by the employer

for the adverse employment action were pretextual, a jury may

infer” the existence of this “but for” causation. Mota,

-20 (citing Reeves,

).

If, on the other hand, the plaintiff presents direct

evidence that the employer’s motivation for the adverse action

was at least in part retaliatory, then the McDonnell Douglas

framework does not apply. See Moore v. U.S. Dep’t of Agric.,

(5th Cir. 1995) (noting that because the plaintiffs

presented direct evidence of discriminatory animus, they “are

entitled to bypass the McDonnell Douglas burden-shifting

framework commonly applied in discrimination cases and proceed

directly to the question of liability”). In such “direct

evidence” cases, “the burden of proof shifts to the employer to

establish by a preponderance of the evidence that the same

decision would have been made regardless of the forbidden

factor.” Brown v. E. Miss. Elec. Power Ass’n,

(5th Cir. 1993).

7 The district court’s summary judgment in favor of TDH rested

on two grounds. First, the district court held that Fierros

failed to establish the “adverse employment action” element of a

retaliation claim because the district court determined that a

denial of a pay increase does not, as a matter of law, amount to

an “adverse employment action” under this court’s decision in

Mattern.1 Second, the district court found that Fierros

presented insufficient evidence of the causation element because

she demonstrated only “a subjective belief that TDH’s actions

were retaliatory in nature.” We conclude that both of these

determinations are erroneous and that Fierros has introduced

sufficient evidence to entitle her to present her retaliation

claim to a jury.

A. Whether the Denial of a Pay Increase Can Be an “Adverse Employment Decision”

TDH argues that the district court properly interpreted

Mattern as holding that pay increase denials are not “ultimate

employment decisions” as a matter of law, and thus cannot form

the basis of a Title VII claim. Fierros contends that this court

should repudiate its “ultimate employment decision” doctrine

because it is contrary to the Supreme Court’s decisions in

1 In the district court, Fierros claimed that TDH retaliated against her by subjecting her to unjustified disciplinary actions (i.e., the two “counseling sessions”) as well as by denying her the merit pay increase. On appeal, however, she bases her retaliation claim only on the pay increase denial. Accordingly, we do not address whether the disciplinary counseling sessions constitute adverse employment actions for Title VII purposes.

8 Robinson v. Shell Oil Co.,

(1997), Burlington

Industries, Inc. v. Ellerth,

(1998), and Faragher v.

City of Boca Raton,

(1998). According to Fierros,

these three decisions indicate that this court’s “ultimate

employment decision” doctrine improperly narrows the scope of

Title VII by excluding employment actions such as pay increase

denials from the statute’s protection.2

2 In Robinson, Burlington Industries, and Faragher, the Supreme Court’s holdings expanded the category of “employment actions” that may provide the basis for liability under Title VII. In Robinson, the Court held that actions by former employers are included within the anti-retaliation provision of Title VII.

. In Burlington Industries and Faragher, the Court held that an employer may be held vicariously liable for an employee’s sexual harassment claim in cases in which a “tangible employment action” did not occur. See Burlington Indus.

; Faragher,

. In addition to the generally expansive nature of these cases, Burlington Industries and Faragher are noteworthy in the context of this court’s “ultimate employment decision” doctrine because the Supreme Court sets out a relatively broad definition of “tangible employment action”: “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Burlington Indus.,

; see also Faragher,

(stating that tangible employment actions include “hiring, firing, promotion, compensation, and work assignment”). In pointing to Burlington Industries, Fierros undoubtedly relies on the Court’s conclusion that “[i]n the context of this case, a tangible employment action would have taken the form of a denial of a raise or a promotion.” 524 U.S. at 761 (emphasis added). This court has recognized that the definition of “tangible employment action” developed in the sexual harassment context in Burlington Industries may be the proper “adverse employment action” standard for Title VII retaliation claims, but has not yet decided the issue. See Watts v. Kroger Co.,

, 510 n.4, 511 n.5 (5th Cir. 1999) (“We do not reach the question of whether ‘tangible employment action,’ as defined by [Burlington Industries], is identical to our definition of an ‘adverse employment action’ found in Mattern,” because “even if Burlington lowers the bar as to what qualifies as an adverse

9 Fierros paints with a broader stroke than is necessary to

decide this case. We need not evaluate whether the “ultimate

employment decision” doctrine is undermined by the Supreme

Court’s recent Title VII decisions because Mattern does not hold

that the denial of a pay increase can never be an “ultimate

employment decision.” Rather, Mattern establishes only that the

denial of the pay increase that occurred in that case was not an

“ultimate employment decision.” In reaching that conclusion, we

explained that the possibility of a pay increase was significant

to the plaintiff only because it was one of the necessary

conditions of passing a training program for a new position. The

plaintiff’s “conten[tion was] that . . . receiving poor

evaluations and a missed [pay] increase were ‘quickly leading to

the ultimate adverse employment action.’”

(emphasis in

original). In contrast, in the instant case, Arnold’s denial of

Fierros’s recommended pay increase is the employment action from

which Fierros sought relief in federal court.

The language of Title VII further supports our reading of

Mattern. Title VII’s anti-retaliation provision makes it

unlawful “for an employer to discriminate against any of his

employees” because the employee engaged in a protected activity.

42 U.S.C. § 2000e-3(a) (emphasis added). In Mattern we relied on

§ 2000e-2(a)(1) to ascertain the meaning of “discriminate” in

employment action, Watts cannot satisfy the definition of a tangible employment action as defined by Burlington.”) (citations omitted).

10 § 2000e-3(a). See Mattern,

. Subsection

2000e-2(a)(1) provides: “It shall be an unlawful employment

practice for an employer . . . to fail or refuse to hire or to

discharge any individual, or otherwise to discriminate against

any individual with respect to his compensation, terms,

conditions, or privileges of employment.” § 2000e-2(a)(1)

(emphasis added). This language clearly contemplates that the

denial of a pay increase can be an act of “discrimination”

against an employee.

Moreover, in cases since Mattern, we have held that a denial

of a pay increase and similar actions are “ultimate employment

decisions.” In Rubinstein v. Administrators of the Tulane

Educational Fund, this court upheld a jury verdict that the

employer had unlawfully retaliated against the plaintiff in

denying him a pay raise. See

(5th Cir. 2000).

Similarly, in Mota, we reasoned that the employer’s

discontinuation of the plaintiff’s stipend qualified as an

“ultimate employment decision” because it was “a compensation

decision.”

; see also

(concluding that the

employer’s denial of paid leave was an “ultimate employment

decision” for purposes of the plaintiff’s Title VII retaliation

claim).

Conceding that our cases recognize that employment actions

affecting compensation are often “ultimate employment decisions,”

TDH argues that such actions are “ultimate employment decisions”

11 only if the employee’s current compensation is reduced.

According to TDH, the employment action at issue in the instant

case, i.e., a “simpl[e] fail[ure] to receive a modest increase in

pay,” does not rise to the level of an “ultimate employment

decision.” This distinction is untenable. If Fierros had

received the merit pay increase, she would be making a higher

salary. The merit pay increase is important to her not only as a

recognition of her contribution to TDH as a laboratory

technician, but also as a source of income. As Fierros points

out, in light of her annual salary of $20,924.97, the $57-per-

month pay increase is not, as TDH claims, “de minimis.” It is

illogical to construe Title VII as prohibiting discriminatory

decreases in pay, but permitting discriminatory denials of pay

increases.

We hold that in light of our reasoning in Mattern, the

language of Title VII, and our post-Mattern jurisprudence, the

denial of a pay increase can be an “ultimate employment decision”

actionable under Title VII’s anti-retaliation provision. We

further conclude that in the instant case, Arnold’s denial of

Fierros’s merit pay increase was an “ultimate employment

decision.” Fierros seeks Title VII relief from the denial of the

pay increase itself, and not from any employment action that the

pay increase denial might lead to. Thus, she has established the

second element of a prima facie case for retaliation.

12 Because Fierros’s filing of the internal discrimination

complaint against Arnold is a Title VII “protected activity,”

Fierros has also satisfied the first element of the prima facie

case for retaliation. See Dollis,

(recognizing that the plaintiff’s use of her employer’s internal

administrative process to file an employment discrimination

complaint “is clearly protected activity” for purposes of a Title

VII retaliation claim). TDH does not attempt to argue otherwise.

Accordingly, Fierros is entitled to a jury trial if she presented

sufficient summary judgment evidence of the third element, i.e.,

that Arnold denied her the merit pay increase because she filed

the discrimination complaint against him.

B. Whether the Evidence of Causation Was Sufficient to Survive Summary Judgment

In addition to holding that Fierros failed to assert an

“ultimate employment decision,” the district court concluded that

Fierros failed to present any evidence other than her “subjective

belief” that Arnold had a retaliatory motive in denying her the

merit pay increase. Although TDH does not defend this second

ground of the district court’s summary judgment, TDH does insist

that we should not consider the evidence of retaliatory motive

that Fierros submitted with her motion for reconsideration of the

summary judgment. According to TDH, because Fierros did not file

that motion until after she filed her notice of appeal, and

because she does not attempt to argue in her brief that the

district court erred in denying that motion, she may not rely on

13 that evidence in urging this panel to reverse the summary

judgment against her.

We need not determine whether it would be appropriate to

consider the evidence that Fierros filed with her motion for

reconsideration. There is sufficient evidence in the record

relied upon by the district court to raise a genuine issue of

material fact regarding whether TDH retaliated against Fierros in

violation of Title VII. The summary judgment record includes an

affidavit in which Fierros states that Arnold told her that she

had been denied the pay increase because she filed a

discrimination complaint against him. Such an affidavit is

direct evidence that Arnold had a retaliatory motive because it

“is evidence which, if believed, proves the fact [of intentional

retaliation] without inference or presumption.” Brown,

.

Apparently, the district court concluded that the affidavit

evinced only Fierros’s “subjective belief” that a retaliatory

motive was behind Arnold’s decision to deny her the pay increase.

But Fierros does not attest to her belief that Arnold had a

retaliatory motive in her affidavit. She attests that Arnold

made a statement to her admitting that he had a retaliatory

motive. “In the context of Title VII, direct evidence includes

any statement or written document showing a discriminatory motive

on its face.” Portis,

; cf. Rubinstein,

(finding that a dean’s testimony that he denied a

14 professor a pay raise because the professor filed a

discrimination suit against the university “could be no more

direct on the issue of retaliation”). Further, in Portis, we

explicitly rejected the argument that the plaintiff’s testimony

regarding the employer’s discriminatory statements was merely

testimony “regarding [the plaintiff’s] subjective belief.”

. We noted that in contrast to testimony regarding

subjective belief, testimony regarding the employer’s statements

is direct evidence because it “require[s] no additional inference

to conclude that [the plaintiff] was [discriminated against].”

Unlike a case in which the plaintiff has presented only

circumstantial evidence of retaliatory animus, we do not apply

the McDonnell Douglas burden-shifting framework to determine

whether Fierros’s direct evidence presents a factual issue for a

jury. See Trans World Airlines, Inc. v. Thurston,

(1985) (“[T]he McDonnell Douglas test is inapplicable where

the plaintiff presents direct evidence of discrimination.”);

Portis,

(same). Fierros’s affidavit by itself

precludes summary judgment because it presents a genuine issue of

material fact regarding whether “[retaliatory] animus in part

motivated or was a substantial factor in the contested employment

action.” Brown,

; see also Vance v. Union

Planters Corp.,

(5th Cir. 2000) (noting that

even if the Title VII plaintiff “were the only witness to testify

15 about the [employer’s discriminatory] statements[,] that would

not warrant taking the case out of the jury’s hands”); Portis,

-30 n.10 (reversing the district court’s grant of the

employer’s post-verdict motion for judgment as a matter of law,

noting that “the plaintiff’s testimony on its own . . . is enough

to establish intentional discrimination”).

Our determination that Fierros has raised a jury question

about whether Arnold intended to retaliate against her when he

denied her the merit pay increase is further supported by

circumstantial evidence. See Vance,

(concluding

that while the testimony regarding the employer’s discriminatory

statements was sufficient direct evidence of discrimination to

support the jury’s verdict for the plaintiff, this direct

evidence was also supported by circumstantial evidence). First,

the person who was the subject of Fierros’s discrimination

complaint (Arnold) was the same person who denied her the pay

increase.

Second, the evidence that Fierros produced regarding the

two disciplinary “counseling sessions” that she received after

filing her EEOC charge further indicates the existence of a

retaliatory motive. Although we need not determine whether these

two disciplinary actions are “ultimate employment decisions,” see

supra note 1, even if the disciplinary actions do not amount to

ultimate employment decisions, they may still evince Arnold’s

retaliatory motive. The plaintiff in Thomas v. Texas Department

16 of Criminal Justice “presented evidence that after [she filed]

EEOC charges she was disciplined twice, and she had never

received any disciplinary actions in the 18 years prior to the

filing of her charges.”

(5th Cir. 2000).

Although this court held that the disciplinary actions taken

against the plaintiff were not “ultimate employment decisions,”

we noted that “[t]he jury could properly consider” the

disciplinary actions “as indications of [the employer’s

retaliatory] motives in . . . fail[ing] to promote or transfer

[the plaintiff],” i.e., the “ultimate employment decisions” at

issue.

at 394 & n.2.

Fierros’s evidence regarding the two counseling sessions is

similar to the evidence of disciplinary actions that this court

found persuasive in Thomas. Fierros was disciplined twice within

a two-month period after she filed a second internal

discrimination complaint with the OCR and her initial charge with

the EEOC. Fierros had been a highly-regarded employee at TDH for

over twenty years before she filed the discrimination charges.

It is undisputed that Carter recommended that Fierros receive the

merit pay increase because of her work performance, and Fierros

produced documentary evidence showing that she had maintained an

impressive performance record as a TDH employee. Further,

Fierros presented evidence that another employee who filed

discrimination charges against TDH was also given a counseling

session for abuse of the sick leave policy after she filed the

17 charges, and that an employee who had not filed any charges and

was otherwise similarly-situated to Fierros (i.e., who engaged in

the same conduct as that which formed the basis of the

disciplinary action taken against Fierros) was not given

counseling sessions.

Even assuming that Fierros had presented only circumstantial

evidence and thus that the McDonnell Douglas framework applied,

she would have raised a factual issue precluding summary

judgment. Fierros’s circumstantial evidence is certainly

sufficient under the initial “much less stringent than ‘but for’”

standard to establish a prima facie showing of causation. See

Long,

(concluding that in light of the evidence

that the employer knew about the protected activity and took the

adverse employment action thereafter, “we have no trouble finding

sufficient evidence, for prima facie case purposes, to establish

a causal link”). Because TDH has not offered a non-retaliatory

reason for denying Fierros the pay increase that would rebut the

inference of retaliatory animus raised by Fierros’s prima facie

case, Fierros need not establish more than a prima facie case of

retaliation to survive summary judgment.

IV. CONCLUSION

We conclude that (1) TDH’s denial of Fierros’s merit pay

increase is an “ultimate employment decision,” and (2) Fierros

presented sufficient direct evidence of causation to withstand

summary judgment. Thus, we REVERSE the district court’s judgment

18 in favor of TDH and REMAND to that court for further proceedings.

Costs shall be borne by TDH.

19