Often Texas employers argue that even though the employer retaliated against the employee, the retaliation claim fails because the sexual harassment claim was insufficient as a matter of law. However, courts in Texas have held that a retaliation claim survives even if the sexual harassment or discrimination complaint fails if the employee has a reasonable belief that the employer harassed or discriminated against her.
Even if a Court finds that a complaining person’s sexual harassment or discrimination allegations are insufficient as a matter of law because they were not sufficiently severe or pervasive, this holding does not mean that person’s complaints and filings were not a protected activity. See Ordogne v. AAA Tex., LLC, 2011 U.S. Dist. LEXIS 32019, 27-28 (S.D. Tex. Mar. 28, 2011) (finding that even though the record showed Plaintiff’s work environment was not hostile as a matter of law, there is a fact issue as to whether there was a reasonable belief that her employer discriminated against her); Foster v. Solvay Pharms., 160 F. App'x 385, 388-389 (5th Cir. Dec. 23, 2005) (finding that an employee's email to human resources stating that he believed an executive's selection of a male over a female for a company award constituted gender discrimination was a protected activity and also finding that there was no evidence that his complaint resulted in an adverse employment decision); Long v. Eastfield College, 88 F.3d 300, 305-06, 308-09 (5th Cir. 1996) (finding that the plaintiff's complaint about a supervisor's treatment was a protected activity while finding no hostile work environment); Beckham v. Construction Materials, Inc., 2005 U.S. Dist. LEXIS 32418, 2005 WL 2177247, at *7 (W.D. La. Sept. 8, 2005) (finding that a complaint to human resources about an inappropriate comment was a protected activity and also finding that there was no evidence of a causal connection between the complaint and the termination of the plaintiff's employment).
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).
Given the minimal burden to present a prima facie case, Guthrie v. Tifco Indus., 941 F.2d 374, 377 (5th Cir. 1991), if a person can identify sufficient evidence to show she was engaging in a protected activity and that she subjectively and objectively had a reasonable belief that the employer violated the sexual harassment or discrimination policy, then the retaliation claim survives under Texas law.
So, if you are a Texas employee who suffered retaliation for making a complaint or claim that you reasonably believed was sexual harassment or other form of discrimination, you may have a claim for retaliation even if your sexual harassment or discrimination claim fails.
