law-retaliation-employment | anti-discrimination laws in the workplace | workers compensation retaliation


Retaliation Claim

An employer . . . commits an unlawful employment practice if the employer . . . retaliates or discriminates
against a person who, under this chapter:

(1) opposes a discriminatory practice;
(2) makes or files a charge;
(3) files a complaint; or
(4) testifies, assists, or participates in any manner in an investigation, proceeding, or hearing.[1]

Tex. Lab. Code Ann. § 21.055 (Vernon 2006).  The purpose of the Texas Commission on Human Rights
Act is to provide for the execution of the policies of Title VII of the Civil Rights Act of 1964.  See Tex.
Lab. Code §  21.001(1) (Vernon 1996); Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 476 (Tex.
2001).  Thus, Aanalogous federal statutes and the cases interpreting them guide" the reading of the
statute.  Quantum, 47 S.W.3d at 476.

09-0287          
YIQING FENG v. SABIC AMERICAS, INC.; from Harris County; 14th district
(
14-07-00699-CV, ___ SW3d ___, 03-17-09, pet. denied June 2009) (employment-retaliation-claim-but-
for-causal-connection-pretext-protected-activity) (
employment law, retaliation) as redrafted
To establish a prima facie case of retaliation, a claimant must show that (1) he engaged in a protected
activity, (2) an adverse employment action occurred, and (3) there was a causal connection between
participation in the protected activity and the adverse employment decision.  See Thomas v. Clayton
Williams Energy, Inc., 2 S.W.3d 734, 739 (Tex. App.- Houston [14th Dist. 1999, no pet.).  The burden
then shifts to the employer to rebut this presumption by articulating a legitimate, nondiscriminatory
reason for the adverse employment action. See id.  Upon the employer's articulation of a legitimate,
nondiscriminatory reason, the presumption raised by the prima facie case is rebutted.  See id.  At this
point the claimant carries the burden of proving that the employer's proffered reason is a pretext and
that engaging in the protected activity was the but-for cause of the adverse employment action.  See
Pineda v. United Parcel Serv., 360 F.3d 483, 485 (5th Cir. 2004); Chaney v. New Orleans Pub. Facility
Mgm't, 179 F.3d 164, 167 (5th Cir. 1999); Quantum, 47 S.W.3d at 479.  


An employer may not retaliate or discriminate against an employee who: (1)
opposes a discriminatory practice; (2) makes or files a charge;  (3) files a
complaint; or  (4) testifies, assists, or participates in any manner in an
investigation, proceeding, or hearing.  Tex. Lab. Code Ann. § 21.055 (Vernon
2006).  
An employee establishes a prima facie case of retaliation by showing that: (1) he engaged in a
protected activity; (2) an adverse employment action occurred; and (3) a causal link exists between the
protected activity and the adverse action.  Dias v. Goodman Mfg. Co., L.P., 214 S.W.3d 672, 676 (Tex.
App.—Houston [14th Dist.] 2007, pet. denied) (citing Pineda v. United Parcel Serv., Inc., 360 F.3d 483,
487 (5th Cir. 2004)).
08‑0664  LIMESTONE COUNTY, TEXAS v. LAURI J. ANDERSON; from Limestone County; 10th district
(
10-07-00174-CV, ___ SW3d ___, 07‑02‑08)(employment law, termination of employment, sex discrimination, retaliation
claim, adverse employment action, causal nexus, filing deadline for administrative complaint under Texas Labor Code,
exhaustion of administrative remedies)


08-0461  
THOMAS LOUIS v. MOBIL CHEMICAL COMPANY, A DIVISION OF EXXON MOBIL OIL CORPORATION,
JAMES BOWSER AND RANDALL ROY; from Jefferson County; 9th district (09-06-00568-CV, 254 SW3d
602, 05-01-08, pet denied Aug. 1 2008) (Justice O'Neill not sitting)(employment law)
After his employment with Mobil Chemical Company ceased, Thomas Louis sued his former employer
and two supervisors, James Bowser and Randall Roy, for
intentional infliction of emotional distress,
defamation, and retaliation. The trial court granted summary judgment for all defendants. The four
issues raised by Thomas on appeal contend material fact issues exist as to each of the claims and that
the trial court erred in granting summary judgment. We find no error and affirm the judgment.

08-0461
THOMAS LOUIS v. MOBIL CHEMICAL COMPANY, A DIVISION OF EXXON MOBIL OIL CORPORATION,
JAMES BOWSER AND RANDALL ROY; from Jefferson County; 9th district (09-06-00568-CV, 254 SW3d
602, 05-01-08, pet denied Aug. 1 2008) (Justice O'Neill not sitting) (
employment dispute, IIED,
defamation, workers compensation retaliation for filing claim)
In his third issue, Louis contends the trial court erred in granting summary judgment on his workers'
compensation retaliation claim. The Texas Labor Code prohibits an employer from discharging an
employee for filing a workers' compensation claim in good faith. Tex. Lab. Code Ann. § 451.001(1). "To
prove a
'retaliatory discharge' claim, the employee must show that the employer's action would not
have occurred when it did had the employee's
protected conduct -- filing a workers' compensation
claim -- not occurred." Haggar Clothing Co. v. Hernandez, 164 S.W.3d 386, 388 (Tex. 2005).
Circumstantial evidence and reasonable inferences from the evidence can establish the
causal
connection
. Cont'l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 451 (Tex. 1996). If the employee
can establish a causal link, the employer must rebut the alleged retaliation by showing that there was a
legitimate reason for the discharge. Id. Although not elements of retaliation, circumstantial evidence
offered to establish a causal link may include: "(1) knowledge of the compensation claim by those
making the decision on termination; (2) expression of a negative attitude toward the employee's injured
condition; (3) failure to adhere to established company policies; (4) discriminatory treatment in
comparison to similarly situated employees; and (5) evidence that the stated reason for the discharge
was false." Aust v. Conroe Indep. Sch. Dist., 153 S.W.3d 222, 228 (Tex. App.--Beaumont 2004, no pet.).
The discrepancies in Louis's paperwork surfaced before Louis's chest began to hurt and there is no
evidence in the summary judgment record to indicate that the investigation and subsequent decision to
terminate Louis's employment was a
pretext to disguise a retaliatory discharge. Thus, although Louis
produced some evidence that a Mobil employee discouraged Louis from filing a claim for workers'
compensation, there is no evidence that either directly or inferentially connects the nurse's comment to
Louis's discharge from employment or that shows that Mobil did not have a
legitimate non-
discriminatory reason
to terminate Louis's employment. The trial court did not err in granting motion
for summary judgment for all defendants on Louis's retaliation claim. We overrule issue three.