Case: 14-40371    Document: 00513078781        Page: 1   Date Filed: 06/15/2015




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                     No. 14-40371                  United States Court of Appeals
                                                                            Fifth Circuit

                                                                          FILED
ALVIN JACKSON,                                                        June 15, 2015
                                                                     Lyle W. Cayce
             Plaintiff - Appellant                                        Clerk

v.

FRISCO INDEPENDENT SCHOOL DISTRICT,

             Defendant - Appellee




                Appeal from the United States District Court
                     for the Eastern District of Texas


Before BARKSDALE, SOUTHWICK, and HIGGINSON, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
      Primarily at issue in this appeal from a summary judgment is whether
a genuine dispute of material fact exists for the reasons given for nonrenewal
of a teacher’s contract.     Alvin Jackson challenges the summary judgment
awarded Frisco Independent School District (FISD) against his claims that, in
violation of Title VII of the Civil Rights Act of 1964 and the Texas Commission
on Human Rights Act (TCHRA), 42 U.S.C. § 2000e et seq.; Tex. Labor Code
§§ 21.051, 21.055, FISD discriminated against him because of his race and
retaliated   against   him     for    reporting   such   claimed    discrimination.
AFFIRMED IN PART; REVERSED IN PART; REMANDED.
    Case: 14-40371    Document: 00513078781       Page: 2   Date Filed: 06/15/2015



                                No. 14-40371
                                         I.
      During his first year (2010–2011) at Frisco High School in Texas,
Jackson was one of four black teachers, as well as the only black coach, in a
faculty of approximately 100 teachers. During that first year, Jackson received
generally positive reviews, including a positive annual appraisal from his
supervisor, associate-principal Smith.
      In August 2011, Jackson complained to Smith about difficulties in
working with another coach, Reiter. Smith advised Jackson not to contact the
human resources department (HR).              The parties dispute whether this
complaint constituted a report of racial discrimination. In any event, in his
declaration, Jackson states: he advised Smith he wanted to file a formal
complaint with HR regarding race-based discrimination; Smith instructed him
not to contact HR; and Smith never investigated the claimed discrimination.
      Three weeks after Jackson complained to Smith, Smith performed a
walkthrough evaluation of Jackson’s classroom, noting a number of
deficiencies. That October, Smith conducted and prepared an observation
summary appraisal of Jackson, ranking him as “below” or “unsatisfactory” in
a number of teaching areas. And, that November, Jackson was placed on an
intervention plan for teachers in need of assistance (TINA). Following several
walkthrough evaluations, he was found non-compliant with the TINA.
      Earlier in the fall of 2011, after Jackson’s unsuccessful attempt to have
Smith address his August complaint, Jackson complained about race-based
discrimination to the principal, Palacios. In her deposition, Palacios admitted
Jackson claimed Reiter’s conduct was on account of Jackson’s race. After
Jackson stated to Palacios that he was considering filing a grievance with HR,
Palacios convinced him to wait.    And, in her deposition, Palacios recalled
stating to Jackson: “[M]aybe FISD was not the fit for him”. Similarly, in his
declaration, Jackson claims Palacios stated he was “not a ‘good fit’ for ‘this
                                         2
    Case: 14-40371    Document: 00513078781     Page: 3    Date Filed: 06/15/2015



                                 No. 14-40371
school district’”. There is a genuine dispute regarding exactly what Palacios
stated; but, again, she admits she stated “maybe FISD was not the fit for him”.
Moreover, Palacios admits not investigating Jackson’s complaint.
      By its 10 April 2012 letter, FISD’s board informed Jackson that his
contract would be recommended for nonrenewal. He responded by a 23 April
letter, in which he charged race-based discrimination and retaliation. He
requested being provided any evidence of failure as a teacher or
insubordination, as well as a public hearing under Texas Education Code
§ 21.207(a).
      Regarding Jackson’s claims of discriminatory and retaliatory treatment,
FISD promised to investigate the claims and sought permission from Jackson
to postpone the nonrenewal hearing until after the investigation. Jackson
refused to delay the hearing.
      During an 8 May hearing, each party was initially permitted only 45
minutes to present their case, during which they were allowed to make opening
statements, present witnesses and exhibits, cross-examine witnesses, and
make closing arguments. A brief extension of time was granted, and each party
exceeded the 45-minute limit. Although the record does not indicate by exactly
how much time the parties exceeded 45 minutes, the examiner stated he was
willing to exceed the limits by five or 10 minutes, but not 30.
      On 18 and 23 May, Jackson requested dismissal, by nonsuit, of his
challenge to his nonrenewal. But, rather than the challenge being dismissed,
the hearing officer issued written findings of fact, conclusions of law, and
recommendations that: there was insufficient evidence of racial discrimination
and retaliation; and FISD had legitimate, non-discriminatory reasons for
nonrenewal of Jackson’s contract.
      On 18 June, relying on the hearing-examiner’s recommendations for
nonrenewal, the school board voted unanimously not to renew Jackson’s
                                       3
    Case: 14-40371     Document: 00513078781      Page: 4    Date Filed: 06/15/2015



                                  No. 14-40371
contract. Jackson did not challenge the nonrenewal before the commissioner
of education or in state court; instead, he filed this action.
      Following discovery, during which FISD did not depose Jackson,
summary judgment was requested by FISD.             Regarding FISD’s asserting
collateral estoppel based on Jackson’s administrative hearing, the district
court ruled: Jackson did not have a fair opportunity to litigate his claims in
that hearing; and, therefore, his claims were not collaterally estopped. Jackson
v. Frisco Indep. Sch. Dist., No. 4:12-CV-318, slip op. at 8–11 (E.D. Tex. 

). Although the court ruled Jackson established a prima-facie case for
racial discrimination and retaliation, it ruled he failed to show a genuine
dispute of material fact regarding the requirement that he show pretext on the
part of FISD for unlawful discrimination or retaliation. 

                                        II.
      A summary judgment is reviewed de novo, by the same standards as
applied by the district court. E.g., Rogers v. Bromac Title Servs., L.L.C., 

, 350 (5th Cir. 2014) (citation omitted).           Summary judgment is
appropriate “if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law”. Fed.
R. Civ. P. 56(a). “The evidence should be viewed in the light most favorable to
the non-moving party, and this court should refrain from making credibility
determinations or from weighing the evidence.” Gray v. Powers, 

,
354 (5th Cir. 2012) (citation and internal quotation marks omitted). A genuine
dispute of material fact exists “if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party”. Anderson v. Liberty Lobby,
Inc., 

, 248 (1986).
      The summary-judgment record includes, inter alia: Jackson’s lengthy
and extremely detailed declaration; numerous evaluations of Jackson and
other teachers at Frisco High School; correspondence between Jackson, school
                                         4
    Case: 14-40371     Document: 00513078781     Page: 5   Date Filed: 06/15/2015



                                  No. 14-40371
officials, and school-board officials; excerpts of depositions, including of Smith
and Palacios; Jackson’s term contract; and the 8 May 2012 hearing-examiner
transcript (at which Jackson did not testify). As 

, not included
in the summary-judgment record is a deposition of Jackson, because FISD did
not depose him. Furthermore, although FISD moved unsuccessfully for the
district court to strike portions of Jackson’s declaration, it did not renew that
challenge on appeal.
                                       A.
      FISD claims collateral estoppel bars Jackson’s claims because:           he
requested, and received, an administrative, nonrenewal hearing before an
independent hearing examiner; and the examiner issued findings, conclusions,
and recommendations, which are final and binding.
      In Texas, teachers employed by term-contracts who are notified of a
possible nonrenewal of their contracts may request a hearing. Tex. Educ. Code
§ 21.207(a). After Jackson requested the hearing, and in accordance with
Texas law, FISD appointed a hearing examiner to conduct the evidentiary
hearing and issue findings, conclusions, and recommendations.                 See
§§ 21.207(b), 21.254–257. During the hearing, a teacher has the right to:
representation of his or her choice; hear the evidence on which the charges are
based; cross-examine adverse witnesses; and present evidence. § 21.256(c).
      After the school board receives the examiner’s recommendations, it
considers them and the record, and allows each party to present oral argument.
§ 21.258(b).   Following the board’s decision, a teacher may appeal to the
commissioner of education, who may substitute his judgment if the board’s
decision is arbitrary, capricious, unlawful, or not supported by substantial
evidence. § 21.209. And, either party may appeal the commissioner’s decision
to one of two designated state district courts. § 21.307(a).


                                        5
    Case: 14-40371     Document: 00513078781     Page: 6   Date Filed: 06/15/2015



                                  No. 14-40371
      FISD asserts: Jackson failed to exhaust this administrative process by
not appealing the examiner’s findings, conclusions, and recommendations; the
examiner’s findings and conclusions are therefore final and binding; and,
accordingly, collateral estoppel precludes Jackson’s discrimination and
retaliation claims.
      “Generally, the issue of whether to apply collateral estoppel is a question
of law, making our review de novo.” Bradberry v. Jefferson Cnty., Tex., 

, 549 (5th Cir. 2013) (emphasis added) (citing United States v.
Brackett, 

, 1398 (5th Cir. 1997)). “Collateral estoppel prevents
litigation of an issue when: ‘(1) the identical issue was previously adjudicated;
(2) the issue was actually litigated; and (3) the previous determination was
necessary to the decision.’” 

(quoting Pace v. Bogalusa City Sch. Bd.,

, 290 (5th Cir. 2005)). “Issues are not identical if the second action
involves application of a different legal standard, even though the factual
setting of both suits may be the same.” B&B Hardware, Inc. v. Hargis Indus.,
Inc., 

, 1306 (2015) (alteration, citation, and internal quotation
marks omitted).
      When the initial proceeding is a state administrative hearing, whether
such a proceeding is “usable in federal court” for collateral-estoppel purposes
hinges on the “treatment” such “proceedings would receive in the courts of the
state . . . in which those prior proceedings were held”. 

(quoting Norris v. Hearst Trust, 

, 460–61 (5th Cir. 2007)).
      Texas administrative agency decisions, including the decision at issue,
have preclusive effect “‘when the agency is acting in a judicial capacity and
resolves disputed issues of fact properly before it which the parties have had
an adequate opportunity to litigate’”. Mullinax v. Texarkana Indep. Sch. Dist.,

, 

, at *2 (5th Cir. 2 Apr. 2001) (unpublished)
(emphasis added) (quoting Muckelroy v. Richardson Indep. Sch. Dist., 884
                                        6
    Case: 14-40371      Document: 00513078781      Page: 7    Date Filed: 06/15/2015



                                   No. 14-40371
S.W.2d 825, 830 (Tex. App. 1994)); see also 

(“Texas
law applies collateral estoppel to administrative agency orders when the
agency is acting in a judicial capacity and resolves disputed issues of fact
properly before it which the parties have had an adequate opportunity to
litigate.” (citation and internal quotation marks omitted)).          “[T]he correct
inquiry is whether the procedures used in the first proceeding were
fundamentally poor, cursory, or unfair”. B&B Hardware, 

(citation omitted). As discussed infra, and because Jackson did not have
an adequate opportunity, in the administrative hearing, to litigate the
discrimination, retaliation, and nonrenewal issues, the school board’s decision
does not have preclusive effect.
      The Supreme Court has held: “Congress did not intend unreviewed state
administrative proceedings to have preclusive effect on Title VII claims.” Univ. of
Tenn. v. Elliott, 

, 796 (1986). Although FISD states Jackson failed
to challenge the school board’s determination by not exercising his statutory
right to pursue a judicial appeal, see Tex. Admin. Code § 21.307, neither party
cites, let alone analyzes, Elliott’s applicability vel non. Elliott interpreted
whether unreviewed administrative agency decisions resolving Title VII
claims fall under the auspices of 28 U.S.C. § 1738, the statutory analogue to
the Constitution’s Full Faith and Credit 

. Therefore, to
the extent that holding applies to the facts in this matter, unreviewed administrative
agency decisions are not entitled to preclusive effect in Title VII matters. Because
neither party briefed this issue, however, and because Jackson did not have an
adequate opportunity to litigate his claim, we pretermit a thorough assessment of
Elliott’s applicability and hold, as discussed below, that Jackson is not collaterally
estopped from pursuing his two Title VII claims.



                                          7
    Case: 14-40371    Document: 00513078781     Page: 8   Date Filed: 06/15/2015



                                 No. 14-40371
                                       1.
      In opposing application of collateral estoppel by the district court,
Jackson asserted that, during the administrative-hearing process, he twice
invoked 19 Tex. Admin. Code § 157.1056(b), which allows a petitioner at any
time to nonsuit a hearing before the Texas commissioner of education. In its
collateral-estoppel analysis, however, the court noted, but did not address, the
nonsuit issue. But, because the court ruled correctly that Jackson did not have
an adequate opportunity in the administrative hearing to litigate the issues
concerning nonrenewal, we need not reach the nonsuit issue.
                                       2.
      As noted, for collateral estoppel to apply in Texas, a litigant must have
had an adequate opportunity to litigate his claim. E.g., 

; Mullinax, 

, at *2. The district court considered that
Jackson was represented by counsel and had an opportunity to cross-examine
witnesses at the hearing, and that the hearing examiner applied the rules of
evidence, but it ruled Jackson had an inadequate opportunity to litigate the
issues relating to nonrenewal because he had only 15 days to prepare for the
hearing and less than 24 hours’ notice of the hearing date. Jackson also
requested a copy of his personnel file on 23 April but did not receive a complete
copy until 4 May. He was then notified on 7 May that the hearing would take
place on 8 May. Essentially for the reasons stated by the district court, Jackson
did not have an adequate opportunity to litigate his pending discrimination
and retaliation claims before the hearing examiner. Jackson, slip op. at 8–11.
Accordingly, FISD’s collateral-estoppel claim fails.
                                       B.
      Jackson claims FISD discriminated and retaliated against him, in
violation of Title VII and the TCHRA. “The Supreme Court of Texas has
consistently held that the analogous federal statutes and the cases interpreting
                                       8
    Case: 14-40371    Document: 00513078781     Page: 9   Date Filed: 06/15/2015



                                 No. 14-40371
Title VII guide its reading of the TCHRA.” Satterwhite v. City of Hous., No.
14-20240, 

, at *3 (5th Cir. 

) (alterations and
internal quotation marks omitted) (quoting Mission Consol. Indep. Sch. Dist.
v. Garcia, 

, 633–34 (Tex. 2012)). Therefore, the federal and
state claims are addressed concurrently.
                                       1.
      Needless to say, discriminating against an employee on the basis of race
violates federal law. 42 U.S.C. § 2000e-2. “Under the [long-established and
well-known] burden-shifting framework established in McDonnell Douglas
Corp. v. Green, 

(1973)”, if, as in this instance, the employee lacks
direct evidence of discrimination, he must “establish a prima facie case of
discrimination using circumstantial evidence”. Wheeler v. BL Dev. Corp., 

, 405 (5th Cir. 2005) (citation omitted). To do so for his claim of
discrimination, Jackson must demonstrate: membership in a protected class;
qualification for the position held; an adverse employment action; and either
replacement by persons outside of the protected class or disparate treatment
of others outside the protected class who are similarly situated. 

      “The burden then shifts to the employer to demonstrate a legitimate,
non-discriminatory reason for the termination”; and, if the employer succeeds,
“the presumption of discrimination dissipates, leaving the plaintiff with the
ultimate burden of establishing . . . that the employer discriminated against
the employee because of the employee’s protected status”.           

      The district court ruled Jackson established a prima-facie case because
FISD failed to contest the first three elements and Jackson satisfied his burden
on the fourth. FISD disputes only that fourth element: whether similarly
situated individuals outside Jackson’s protected class were treated more
                                       9
   Case: 14-40371     Document: 00513078781     Page: 10   Date Filed: 06/15/2015



                                 No. 14-40371
favorably. “[T]o establish disparate treatment a plaintiff must show that the
employer gave preferential treatment to another employee under nearly
identical circumstances; that is, that the misconduct for which the plaintiff was
discharged was nearly identical to that engaged in by other employees”. Okoye
v. Univ. of Tex. Hous. Health Sci. Ctr., 

, 514 (5th Cir. 2001)
(alterations, citations, and internal quotation marks omitted).
      FISD asserts that negative employment evaluations are not adverse
employment actions under Title VII in this circuit; rather, only employment
actions concerning hiring, granting leave, discharging, promoting, and
compensating may be considered legally adverse.        Therefore, according to
FISD, because the board has not taken an adverse employment action against
a similarly situated employee, these comparators were not “treated more
favorably”. But, as noted above, in assessing the fourth prima-facie element,
courts analyze the similarity vel non of the misconduct that is the impetus for
the adverse employment action. E.g., 

the merits of the parties’ claims regarding the fourth
element for a prima-facie case, and essentially for the reasons stated by the
district court, Jackson, slip op. at 12–13, Jackson satisfied his burden because
he demonstrated that similarly-situated, non-protected class members were
treated more favorably than he.       As noted, the assessment requires an
employer to give “preferential treatment to another employee under nearly
identical circumstances; that is, that the misconduct for which the plaintiff was
discharged was nearly identical to that engaged in by other employees”. 

.
      For example, the summary-judgment record contains 11 evaluations
school employees performed for Jackson from 2011–2012. Several different
evaluators assessed him, including Smith and Palacios, whose evaluations


                                       10
   Case: 14-40371     Document: 00513078781      Page: 11   Date Filed: 06/15/2015



                                  No. 14-40371
were markedly more negative than those of their colleagues, which were
otherwise quite positive.
      To demonstrate nearly identical claimed misconduct, Jackson cites
evaluations of four coaches and educators whose contracts were renewed. For
example, the most negative reviews are those of another coach and teacher
(coach/teacher), whose negative conduct is nearly identical to Jackson’s
purported shortcomings.
      The coach/teacher had over 15 years’ experience.          His evaluations
consisted of both positive and highly negative feedback, with the negative
evaluations paralleling those made about Jackson and including, inter alia:
failure to provide adequate direction; failure to ask quality questions; students’
being off-task and disengaged; lack of structure; and lack of clarity of the
learning objectives conveyed to students. Although the coach/teacher had
numerous years of experience in the classroom compared to Jackson, he
received negative evaluations regarding his teaching abilities. Because the
standard is whether the comparators are nearly identical, and not identical,
the coach/teacher and Jackson are similarly situated. At bottom, Jackson’s
nonrenewal and the coach/teacher’s renewal satisfy the fourth element of the
prima-facie requirement. Therefore, because the fourth element for a prima-
facie case is satisfied, and because the first three elements are not in dispute,
Jackson has shown a prima-facie case of discrimination.
      The second step in the burden-shifting framework is whether FISD
presented a legitimate, non-discriminatory reason for the adverse employment
action. 

. “The burden on [the employer] to produce a
legitimate nondiscriminatory reason for terminat[ion] . . . is one of production,
not persuasion; it can involve no credibility assessment.” Sandstad v. CB
Richard Ellis, Inc., 

, 898 (5th Cir. 2002) (citation and internal
quotation marks omitted). This second step is not in dispute.
                                       11
   Case: 14-40371    Document: 00513078781      Page: 12   Date Filed: 06/15/2015



                                 No. 14-40371
      At the third step, Jackson has the burden, for summary-judgment
purposes, of showing a genuine dispute of material fact for whether FISD
discriminated against him because of his protected status. 

. FISD admitted at oral argument in our court that, were this action
against Smith or persons at the “Smith level” (which, obviously, would include
Palacios), a genuine dispute of material fact would exist, making summary
judgment inappropriate. In short, this would preclude summary judgment
were this action either against actors on the Smith level, or, for the following
reasons, if their alleged animus could be imputed to FISD.
      When a person with discriminatory animus has influence over the final
decisionmaker, that animus may be imputed to that decisionmaker. E.g.,
Haire v. Bd. of Supervisors of La. State. Univ. Agric. & Mech. Coll., 

, 366–67 & n.11 (5th Cir. 2013). Here, the hearing examiner considered
Jackson’s negative evaluations, which were performed primarily by Smith and
Palacios, and Smith’s and Palacios’ testimony before the hearing examiner,
which the examiner found credible. In its brief, FISD states the hearing
examiner’s findings and conclusions “caused the school board to vote to
[nonrenew] Jackson’s teaching contract. . . ”. Therefore, because Smith and
Palacios had influence over the examiner’s recommendations, which the board
adopted, there is a genuine dispute of material fact whether Smith’s and
Palacios’ allegedly discriminatory animus may be imputed to the board.
      In addition, there is a genuine dispute of material fact whether FISD had
actual knowledge of Jackson’s claims of discrimination and retaliation. See
Mullinax v. Texarkana Indep. Sch. Dist., 48 F. App’x 917, 

,
at *3 (5th Cir. 12 Sept. 2002).    A genuine dispute exists regarding when
Jackson informed school officials, and the school board, about the claimed
discrimination and retaliation. Jackson contends he initially complained to
Smith about the discriminatory conduct in a meeting in August 2011. He
                                      12
   Case: 14-40371     Document: 00513078781      Page: 13    Date Filed: 06/15/2015



                                  No. 14-40371
further claims: he complained to Palacios in January 2012 about the original
discriminatory   conduct    and   Smith’s    subsequent      retaliatory   negative
walkthrough evaluations; he complained to Elmore, director of secondary
personnel for FISD, regarding the incidents in question; and he provided HR
“names and specific instances of discrimination and retaliation”. On the other
hand, FISD contends Jackson’s 23 April letter requesting a nonrenewal
hearing was FISD’s first notice of Jackson’s discrimination and retaliation
claims. But, based on the deposition of FISD’s assistant superintendent for
HR, Dr. Bass, she knew of Jackson’s complaint in March to Elmore (the date
she learned of the complaint is unclear, and she contests its contents), even
though she did not see a complaint in writing until the 23 April letter.
      Moreover, Jackson met with Dr. Bass and another school official on 4
May to discuss his claims. By a 7 May letter to Jackson, Dr. Bass stated she
was unable to complete the investigation because Jackson “chose not to provide
any information and/or evidence in support of [his] allegations”. Dr. Bass,
however, as 

, admits Jackson met with Elmore in March 2012,
prior to writing his 23 April letter, and provided Elmore with “a listing of
events that he was concerned about”. Further, in Dr. Bass’ deposition, she
states Jackson informed her that the evidence Jackson possessed was in the
form of emails; and she admits that, even though these emails were accessible
to her, she did not retrieve them, and instead relied on Jackson’s failure to
provide them as a basis for claiming she could not complete the investigation.
      In   any    event,    the   board     adopted    the     hearing-examiner’s
recommendation, which, as noted, contained Smith’s and Palacios’ adverse
testimony and relied on Smith’s and Palacios’ negative evaluations.            The
examiner found Jackson’s “[d]eficiencies pointed out in observation reports,
appraisals or evaluations”, “[f]ailure to fulfill duties or responsibilities”, and
“[i]nsubordination or failure to comply with official directives”, all stated in
                                       13
    Case: 14-40371    Document: 00513078781       Page: 14   Date Filed: 06/15/2015



                                  No. 14-40371
Smith’s and Palacios’ evaluations, justified the nonrenewal recommendation.
Again, there is, therefore, a genuine dispute of material fact whether Smith’s
and Palacios’ allegedly discriminatory animus is imputed to the board.
      Accordingly, because FISD conceded at oral argument that there is a
genuine dispute for pretext at the Smith level, and because a genuine dispute
of material fact exists for whether the allegedly discriminatory animus at that
level is imputed to FISD, it is not entitled to summary judgment against
Jackson’s discrimination claim.
                                         2.
      For the reasons that follow, FISD is also not entitled to summary
judgment against Jackson’s retaliation claim. In that regard, for the earlier
discussed, requisite burden-shifting analysis, and because Jackson presented
no direct evidence of retaliation, he must, at the first of the three steps, present
a prima-facie case, consisting of three elements. E.g., Banks v. E. Baton Rouge
Parish Sch. Bd., 

, 575 (5th Cir. 2003).
      For the first element, he must demonstrate he participated in an activity
protected by Title VII. 

has engaged in protected activity if
she has opposed any practice made an unlawful employment practice. . . ”.
Gorman v. Verizon Wireless Tex., L.L.C., 

, 170–71 (5th Cir. 2014)
(citation and internal quotation marks omitted).
      For the second element, the employee must show his employer took an
adverse employment action against him. E.g., 

. An
adverse employment action is an action that is “materially adverse”, that
“might have dissuaded a reasonable worker from making or supporting a
charge of discrimination”. Burlington N. & Santa Fe Ry. Co. v. White, 

, 68 (2006) (citation and internal quotation marks omitted).
      For the third, and final, element for a prima-facie case, a causal
connection must exist between the protected activity and the adverse
                                        14
    Case: 14-40371    Document: 00513078781       Page: 15   Date Filed: 06/15/2015



                                  No. 14-40371
employment action. E.g., 

. “We have determined that,
in order to establish the causation prong of a retaliation claim, the employee
should demonstrate that the employer knew about the employee’s protected
activity.” Manning v. Chevron Chem. Co., LLC, 

, 883 (5th Cir.
2003) (citations omitted).
      Continuing with the next two steps in the burden-shifting analysis, and
if Jackson presents a prima-facie case, the burden shifts to FISD in the second
step to articulate a legitimate, non-retaliatory reason for the adverse
employment action. E.g., Gee v. Principi, 

, 345 (5th Cir. 2002).
And, for summary-judgment purposes, “if that burden is satisfied, the burden
then ultimately falls to the employee [in the third, and final, step] to . . . [show
a genuine dispute of material fact for whether] the employer’s stated reason is
actually a pretext for unlawful retaliation”. 

(citation
omitted). “Showing pretext requires a plaintiff to produce substantial evidence
indicating that the proffered legitimate nondiscriminatory reason is a pretext
for discrimination . . . . [and] the plaintiff must show that the protected activity
was the ‘but for’ cause of the retaliation.” Willis v. Cleco Corp., 

,
318 (5th Cir. 2014) (citations and internal quotation marks omitted).
      Regarding the first element of the prima-facie-case requirement, and as

, Jackson engaged in a protected activity by complaining about
race-based discrimination to his superiors. “An employee that files an internal
complaint of discrimination engages in a protected activity.” Rodriquez v. Wal-
Mart Stores, Inc., 540 F. App’x 322, 328 (5th Cir. 2013) (citing Fierros v. Tex.
Dep’t of Health, 

, 194 (5th Cir. 2001)).
      FISD does not contest the second element for a prima-facie showing: an
adverse employment action (the nonrenewal of Jackson’s contract).
      The third, and final, element for a prima-facie case is whether there is a
causal link between the adverse employment action and the protected activity.
                                        15
    Case: 14-40371    Document: 00513078781      Page: 16    Date Filed: 06/15/2015



                                  No. 14-40371
E.g., 

. Along that line, Jackson first has the burden of
showing FISD knew about the protected activity, e.g., 

, which he satisfied, as 

.
      For this third element for a prima-facie showing, a causal link exists
when the evidence demonstrates the adverse employment action was taken in
part based on knowledge of the employee’s protected activity. E.g., Medina v.
Ramsey Steel Co., Inc., 

, 684 (5th Cir. 2001). Whether the adverse
employment action was taken in part based on the knowledge of Jackson’s
complaint of discrimination, and whether, in the third step of the burden-
shifting analysis, there is a genuine dispute of material fact for pretext, require
an overlapping evidentiary assessment of the decisionmaker’s motive. In the
light of FISD’s concession that there is a genuine dispute of material fact
regarding pretextual motives at the Smith level, and our conclusion that a
genuine dispute of material fact exists for whether those motives are imputed
to FISD, the third element for the prima-facie case (whether the action was
taken in part based on knowledge of the protected activity) is satisfied.
Therefore, at the first step of the burden-shifting analysis, Jackson has
demonstrated a prima-facie case of retaliation.
      Jackson does not contest the second step for the burden-shifting analysis
for his retaliation claim (a legitimate, non-retaliatory reason for the adverse
employment action).
      For the third step for the burden-shifting analysis (pretext), and as
noted, FISD conceded at oral argument the existence of a genuine dispute of
material fact at the Smith level regarding pretext, relying instead on the
claimed separation between that level and the school board, supposedly
created by the hearing examiner, to shield the board from liability.          But,
because there is a genuine dispute of material fact for whether the conduct by


                                        16
   Case: 14-40371     Document: 00513078781     Page: 17    Date Filed: 06/15/2015



                                 No. 14-40371
the Smith-level actors was retaliatory and can be imputed to the board, there
is a genuine dispute of material fact as to pretext.
      Last, as part of the third, and final, step in the burden-shifting analysis,
Jackson must prove that, but for FISD’s retaliatory animus, the adverse
employment action would not have occurred. 

. Because
there is a genuine dispute of material fact for why Jackson’s contract was
nonrenewed, resolution of the but-for causation issue is also unavailable
through summary judgment.
                                       III.
      For the foregoing reasons, the judgment is AFFIRMED IN PART and
REVERSED IN PART; and this matter is REMANDED for further
proceedings consistent with this opinion.




                                       17