Causal Nexus Element
A “‘but for’ causal nexus [must exist] between the protected activity and the employer’
s prohibited conduct.” Herbert v. City of Forest Hill, 189 S.W.3d 369, 377 (Tex. App.
—Fort Worth 2006, no pet.). A plaintiff must show that “without his protected activity,
the employer’s prohibited conduct would not have occurred when it did.” Id. “The
plaintiff need not establish that the protected activity was the sole cause of the
employer’s prohibited conduct.” Id. “The burden then shifts in the same manner as it
does with regard to discrimination claims.” Id.
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)
motion to dismiss for want of jurisdiction dismissed as moot
(Justice Willett not sitting)
Anderson challenges the County’s grounds for summary judgment, contending that: (1) she established a
prima facie case of both gender discrimination and retaliation; (2) she exhausted administrative remedies;
(3) her claims fall within the scope of her charge of discrimination; and (4) DeFriend’s reasons for
termination were pretextual.... Having found that fact issues exist as to Anderson’s gender discrimination
claim, we reverse the judgment on the discrimination claim and remand this cause to the trial court for
further proceedings consistent with this opinion.
The County argues that the eighteen-month time lapse between Anderson’s grievance and her termination
“suggests that a retaliatory motive…was highly unlikely.” In reliance on Shirley v. Chrysler First, Inc., 970 F.
2d 39 (5th Cir. 1992), Anderson contends that a time lapse is not conclusive proof negating causation. In
Shirley, the Fifth Circuit found that a fourteen month time lapse was insufficient to negate causation. See id.
at 43-44. However, in Clark County School District v. Breeden, 532 U.S. 268, 121 S. Ct. 1508, 149 L. Ed.
2d 509 (2001), the United States Supreme Court found that a twenty-month lapse between the protected
activity and the employer’s prohibited conduct is “by itself, no causality at all.” 532 U.S. at 274, 121 S. Ct. at
Again relying on Shirley, Anderson contends that she was subjected to “closer scrutiny,” “discriminatory
treatment,” and “retaliatory discharge” after alerting DeFriend to his discriminatory practices. The Fifth
Circuit noted, “We find it surprising that suddenly, after Shirley filed her EEOC complaint, problems with her
work surfaced.” Shirley, 970 F.2d at 43 (Shirley never received a reprimand until after filing her charge of
discrimination). Unlike Shirley, this is a situation where problems arose long before Anderson filed her
Anderson also argues that basing her termination on acts dating back to “the earliest days of [her]
employment” establishes DeFriend’s “long standing animus” against her that “exceed[ed] the 18-month
period between [her] grievance and her termination.” However, the relevant question is whether a causal
nexus exists between the protected activity and the prohibited conduct. See Herbert, 189 S.W.3d at 377. In
light of the eighteen-month lapse between her grievance and her termination and absent other evidence of
retaliatory motive, Anderson has not raised a fact issue as to the causation element of retaliation and so
cannot raise a fact issue as to a prima facie case of retaliation. See Breeden, 532 U.S. at 274, 121 S. Ct. at
1511. Summary judgment was proper on her retaliation claim.