Texas workers or Texas employees are protected from retaliation by Texas employers for opposing or complaining about sexual harassment or discrimination under Texas law. Retaliation may be proved by either direct or circumstantial evidence. McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir. 2007). “Direct evidence is evidence which, if believed, proves the fact without inference or presumption.” Jones v. Robinson Prop. Group, L.P., 427 F.3d 987, 992 (5th Cir. 2005). If the plaintiff presents circumstantial evidence, the familiar McDonnell Douglas burden shifting framework is used. McCoy, 492 F.3d at 556. Under McDonnell Douglas, the Plaintiff must first present a prima facie case of retaliation. Gee v. Principi, 289 F.3d 342, 345 (5th Cir. 2002). Once this occurs, the burden shifts to the employer to advance a legitimate, non-discriminatory reason for the adverse employment action. Id. To overcome an employer's legitimate, non-discriminatory reason, the plaintiff must show it is a pretext for discrimination. Id.

1. Prima facie case

A prima facie case of retaliation consists of: (1) the plaintiff engaging in a protected activity; (2) an adverse employment action; and (3) a causal connection that exists between the protected activity and the adverse employment action. LeMaire v. La. Dept. of Transp. & Dev., 480 F.3d 383, 388 (5th Cir. 2007). An employee has engaged in a “protected activity” if she has either (1) opposed any employment practice made unlawful by Title VII or (2) made a charge, testified, assisted, or participated in any manner in an investigation, proceeding or hearing under Title VII. Grimes v. Tex. Dept. of Mental Health & Mental Retardation, 102 F.3d 137, 140 (5th Cir. 1996). An adverse employment action is one that would dissuade a reasonable worker from making or supporting a charge of discrimination. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)

a. Protected activity

By way of example only, a complaining party engages in protected activities when she:

(1) Complains to her supervisor. See Foster v. Solvay Pharms., 160 F. App'x 385, 388 (5th Cir. Dec. 23, 2005) (finding that employee's email to human resources stating that he believed executive's selection of a male over a female for a company award constituted gender discrimination was a protected activity); Fierros v. Tex. Dep't of Health, 274 F.3d 187, 194 (5th Cir. 2001), abrogated on other grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90, 92, 123 S. Ct. 2148, 156 L. Ed. 2d 84 (2003) (noting that filing an internal discrimination complaint is a protected activity); Beckham v. Construction Materials, Inc., 2005 U.S. Dist. LEXIS 32418, 2005 WL 2177247, at *7 (W.D. La. Sept. 8, 2005) (finding that complaint to human resources of an inappropriate comment was a protected activity).

 (2) Files a sexual harassment and retaliation claim with EEOC and Texas Commission on Human Rights. Harvill v. Westward Commc'ns, L.L.C., 433 F.3d 428, 439 (5th Cir. 2005); and

(3) Files a lawsuit. See, Ogletree v. Glen Rose Indep. Sch. Dist., 2011 U.S. App. LEXIS 20630 (5th Cir. Tex. Oct. 11, 2011)(citing Vadie v. Miss. State Univ., 218 F.3d 365, 379 (5th Cir. 2000) 

This is not an exhaustive list but are simply a few examples.

b. Adverse employment action and causal connection

An adverse employment action is one that would dissuade a reasonable worker from making or supporting a charge of discrimination. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). The Supreme Court stated: “[T]his standard is phrased in general terms because the significance of any given act of retaliation will often depend upon the particular circumstances. Context matters. ‘The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed.’”Id. at 69. The 5th Circuit has found that formal discipline can be an adverse employment action. See Alvarado v. Tex. Rangers, 492 F.3d 605, 612 (5th Cir. 2007); Spicer v. Port Terminal R.R. Ass'n, 2010 U.S. Dist. LEXIS 13691 (S.D. Tex. Sept. 17, 2010) 

A few examples of adverse employment actions include:

 (1) Reprimand. See Breaux v. City of Garland, 205 F.3d 150, 157 (5th Cir. 2000) cert. denied, 531 U.S. 816, 121 S. Ct. 52, 148 L. Ed. 2d 21 (2000) (Adverse employment actions include reprimands)

 (2) Transfer, demotion or loss of overtime. See, Howard v. UPS, 2011 U.S. Dist. LEXIS 5126 (N.D. Tex. Jan. 18, 2011)

(3) Negative comments in an evaluation.

(4) Reassignment. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 70 (2006) (reassignment to more arduous duties is retaliatory adverse employment action)

Once again, this is not an exhaustive list and is simply a few examples.

As the final element of a prima facie case of retaliation, she must show that there was a causal connection between her protected activity and the adverse employment action. LeMaire, 480 F.3d at 388. Close timing between an employee's protected activity and an adverse action against her may provide the “causal connection” required to make out a prima facie case of retaliation." Swanson v. Gen. Serv. Admin., 110 F.3d 1180, 1188 (5th Cir. 1997) There is a lower standard of causation at the prima facie stage. Montemayor v. City of San Antonio, 276 F.3d 687, 692 (5th Cir. 2001),

If you are a Texas employee or worker who has opposed sexual harassment or discrimination by a co-worker or Texas employer in the workplace and have suffered a reprimand, demotion, been fired or been reassigned, you may have a claim for retaliation under Texas law. 

Jim M. Zadeh
Connect with me
Attorney at Law