Lauri J. Anderson v. Limestone County, Texas--Appeal from 77th District Court of Limestone County

IN THE

TENTH COURT OF APPEALS

 

No. 10-07-00174-CV

Lauri J. Anderson,

Appellant

v.

Limestone County, Texas ,

Appellee

 

 

From the 77th District Court

Limestone County, Texas

Trial Court No. 27,819-A

MEMORANDUM Opinion

 

Lauri J. Anderson sued Limestone County for retaliation and gender discrimination. The County filed traditional and no-evidence motions for summary judgment, which the trial court granted. Anderson appeals, arguing that: (1) the trial court erred by granting the County s motion for summary judgment; (2) the County failed to disprove any element of her claims; (3) she produced more than a scintilla of evidence on each issue challenged by the County; and (4) the County s summary judgment evidence was defective. We affirm in part and reverse and remand in part.

FACTUAL BACKGROUND

Anderson was employed as an assistant prosecutor for Limestone County, working for District Attorney Roy DeFriend. When hired, Anderson was the only assistant and was allowed to maintain a private practice so long as it did not interfere with her work for the County. Anderson wrote and obtained a gun grant for the office, which allowed for the hiring of a new prosecutor, David Moore. Anderson also wrote and obtained a grant for a victim s assistant coordinator, which Tambra Lozano filled.

After Moore s arrival, Anderson noticed certain changes that led her to conclude that Moore was receiving favorable treatment. Moore received a higher supplemental pay, handled felony cases, maintained a private practice without limitation, and was allowed to place his name above Anderson s on the office letterhead. Furthermore, Anderson became the subject of various accusations, such as unethical and unprofessional conduct, insubordinate behavior, failure to follow instructions, and failure to cover dockets. She was also informed of complaints about her handling of court proceedings and using Lozano for civil practice matters on county time.

DeFriend and Anderson exchanged multiple written communications regarding these accusations. Anderson denied the allegations and disclosed her belief that she and Lozano were the recipients of disparate treatment, that Moore was a disruption, and that Moore received favorable treatment. In August 2003, she filed an internal grievance with DeFriend, complaining of gender discrimination. DeFriend found the grievance to be without merit.

In January 2005, two meetings occurred between DeFriend and Anderson. The district clerk attended these meetings as a witness. After the first meeting, Anderson filed a written response to DeFriend s allegations and stated her belief that she has been the target of disparate treatment and singled out and treated differently. She was terminated at the conclusion of the second meeting. After vacating her office, Anderson left the phrase, What goes around comes around on the screensaver of her computer.

That July, Anderson filed a charge of discrimination with the Texas Workforce Commission, alleging sexual harassment, gender discrimination, and retaliation. She subsequently filed suit alleging violations under the Whistleblower Act. After receiving a right to sue letter from the TWC, Anderson amended her petition to allege gender discrimination and retaliation. She dismissed her whistleblower action.

EVIDENTIARY ISSUES

In her fourth issue, Anderson contends that the County s summary judgment evidence is fatally defective. We consider this issue first in order to determine which evidence we may consider when addressing the merits. See Choctaw Props., L.L.C. v. Aledo Indep. Sch. Dist., 127 S.W.3d 235, 240 (Tex. App. Waco 2003, no pet.). Anderson filed numerous objections to the County s summary-judgment evidence.[1] The trial court made no express rulings on either these objections or Anderson s motion for order requesting written rulings on her objections. However, Anderson contends that the trial court implicitly overruled her objections.

[T]he granting of a summary-judgment motion does not necessarily provide an implicit ruling that either sustains or overrules objections to the summary-judgment evidence. Allen v. Albin, 97 S.W.3d 655, 663 (Tex. App. Waco 2002, no pet.). Objections to the form of summary-judgment evidence are preserved for appellate review only if those objections are made and ruled on in the trial court. See Choctaw Props., 127 S.W.3d at 241; Trusty v. Strayhorn, 87 S.W.3d 756, 762 (Tex. App. Texarkana 2002, no pet.). Substantive objections do not require a written ruling, and the objection may be raised for the first time on appeal. Choctaw Props., 127 S.W.3d at 241.

The trial court s judgment merely mentions that objections were filed. Even presuming that the trial court considered the objections, the record does not permit us to imply a ruling on the objections. See Trusty, 87 S.W.3d at 761; see also Choctaw Props., 127 S.W.3d at 241. Nor can we say that the trial court s failure to rule on Anderson s motion for order amounts to an implicit ruling on her objections. Accordingly, we will consider only those objections challenging the substance of the County s evidence.

Anderson s objections to the County s summary-judgment evidence include hearsay, hearsay upon hearsay, self-serving, irrelevant, based on assumptions, subjective opinions of/not competent evidence from an interested witness, authentication, verification, failure to state that facts are true and correct, uncertified copies of documents, internally inconsistent, not under oath, not an affidavit, statement unsigned, witness not identified, not competent, and lack of personal knowledge. These are all objections to form on which Anderson did not obtain a ruling. See Tri-Steel Structures, Inc. v. Baptist Found. of Tex., 166 S.W.3d 443, 448 (Tex. App. Fort Worth 2005, pet. denied) ( A defect is substantive if the summary judgment proof is incompetent; it is formal if the summary judgment proof is competent, but inadmissible. ). They are not preserved for appeal. See Choctaw Props., 127 S.W.3d at 241.

Anderson s remaining objections that the evidence is conclusory, based on legal or factual conclusions, based on qualifications, and unsupported by facts are substantive and may be considered for the first time on appeal. See id.; see also Tri-Steel, 166 S.W.3d at 448. However, Anderson s objectionsmerely quote various statements or cite various paragraphs in each document, labeling each sentence or paragraph as conclusory, based on conclusions or qualifications, or unsupported by facts. She does not provide a description of the particular basis for the objection. Stewart v. Sanmina Tex. L.P., 156 S.W.3d 198, 207 (Tex. App. Dallas 2005, no pet.). [W]e cannot tell how, according to [Anderson], these statements are conclusory or defective in any other way. Id.

Because her objections are not sufficiently specific, we reject Anderson s contention that the County s evidence is fatally defective and incompetent. Id.; see Womco, Inc. v. Navistar Int'l Corp., 84 S.W.3d 272, 281 n.6 (Tex. App. Tyler 2002, no pet.) ( objection that paragraph 11 contains unsubstantiated legal conclusions is itself conclusory and fails to offer any explanation to the trial court as to the precise bases for their objection ); see also Garcia v. John Hancock Variable Life Ins. Co., 859 S.W.2d 427, 434 (Tex. App. San Antonio 1993, writ denied) (objections to paragraph on grounds of speculation and conclusion failed to state the grounds supporting inadmissibility)).

SUMMARY JUDGMENT

In her first, second, and third issues, Anderson challenges the granting of the County s summary judgment motion.

Standard of Review

We review a trial court s summary judgment de novo. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). In reviewing a summary judgment, we must consider whether reasonable and fair-minded jurors could differ in their conclusions in light of all of the evidence presented. See Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007) (per curiam) (citing Wal-Mart Stores, Inc. v. Spates, 186 S.W.3d 566, 568 (Tex. 2006) (per curiam); City of Keller v. Wilson, 168 S.W.3d 802, 822-24 (Tex. 2005)). We must consider all the evidence in the light most favorable to the nonmovant, indulging every reasonable inference in favor of the nonmovant and resolving any doubts against the motion. See Goodyear Tire, 236 S.W.3d at 756 (citing Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006) (per curiam); Spates, 186 S.W.3d at 568).

A no-evidence summary judgment is reviewed under the same standard as a directed verdict. See Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581 (Tex. 2006). We review the evidence presented by the motion and response in the light most favorable to the party against whom the summary judgment was rendered, crediting evidence favorable to that party if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. Id. at 582. A no-evidence summary judgment will be defeated if the non-movant produces some evidence raising an issue of material fact on the elements challenged by the movant. Id.

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.[2]

Exhaustion of Administrative Remedies

The Labor Code requires that an aggrieved employee file an administrative complaint within 180 days of an unlawful employment practice. See Rice v. Russell-Stanley, L.P., 131 S.W.3d 510, 513 (Tex. App. Waco 2004, pet. denied); see also Schroeder v. Texas Iron Works, Inc., 813 S.W.2d 483, 486 (Tex. 1991); Tex. Lab. Code Ann. 21.202(a) (Vernon 2006).[3] This requirement is mandatory and jurisdictional; failure to comply deprives the court of subject matter jurisdiction. Schroeder, 813 S.W.2d at 486; Czerwinski v. Univ. of Tex. Health Sci. Ctr., 116 S.W.3d 119, 121 (Tex. App. Houston [14th Dist.] 2002, pet. denied).

Anderson s TWC complaint is dated July 20, 2005; any discriminatory or retaliatory acts must have occurred within the preceding 180 days, approximately January 21, 2005. Anderson s January 28, 2005 termination occurred within the 180-day period. In her complaint, Anderson alleged that she was subjected to sexual harassment, discharged, and discriminated against because of my sex/Female and in retaliation for opposing discriminatory practices. In her amended petition, she alleged a pattern and practice of discrimination, particularly in the areas of responsibility, pay, prestige, and prospects for promotion. These allegations are based on Anderson s complaints that she received reprimands, Moore s name was placed above hers on the office letterhead, she was assigned to lower level cases while Moore handled felonies, Moore received higher supplemental pay, and office policy limited her private practice, but not Moore s. Although these acts occurred outside the 180-day period, Anderson argues that they are timely under the continuing violation doctrine.[4]

This doctrine expands the scope of those discriminatory events that are actionable, as long as one of the events occurs within the 180-day period. Wal-Mart Stores v. Davis, 979 S.W.2d 30, 41 (Tex. App. Austin 1998, pet. denied) (citing Glass v. Petro-Tex Chem. Corp., 757 F.2d 1554, 1560-61 (5th Cir. 1985)). Under this doctrine, an unlawful employment practice manifests itself over time, rather than as a series of discrete acts. Id. at 41-42 (citing Webb v. Cardiothoracic Surgery Assocs. of N. Texas, P.A., 139 F.3d 532, 537 (5th Cir. 1998)). The 180-day period begins when acts supportive of a civil rights action are, or should be, apparent to a reasonably prudent person in the same or a similar position. Id. at 42. The focus is on what event should, in fairness and logic, have alerted the average layperson to act to protect his or her rights. Id.

[D]iscrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges. AMTRAK v. Morgan, 536 U.S. 101, 113, 122 S. Ct. 2061, 2072, 153 L. Ed. 2d 106 (2002) (emphasis added). Texas courts apply the doctrine where there is an organized scheme leading to and including a present violation, so that it is the cumulative effect of the discriminatory practice, rather than any discrete occurrence, that gives rise to the cause of action. Cooper-Day v. RME Petroleum Co., 121 S.W.3d 78, 87 (Tex. App. Fort Worth 2003, pet. denied) (emphasis added); see Ibezim v. Tex. Dep t of Health, No. 03-03-00308-CV, 2004 Tex. App. Lexis 6252, at *22-24 (Tex. App. Austin July 15, 2004, no pet.) (mem. op.); see also Vida v. Univ. of Tex. Houston Health Sci. Ctr., No. 14-01-01162-CV, 2002 Tex. App. Lexis 8432, at *2-3 (Tex. App. Houston [14th Dist.] Nov. 27, 2002, no pet.) (not designated for publication).

Anderson s complaints regarding pay and reprimands are discrete acts to which the continuing violation doctrine does not apply. See Cooper-Day, 121 S.W.3d at 87 (discrepancies in pay); see also Bowers v. Edgewood Indep. Sch. Dist., Civil Action No: SA-05-CA-404-XR, 2005 U.S. Dist. Lexis 32037, at *16 (W.D. Tex. Oct. 4, 2005) (disciplinary actions and reprimands). We construe her complaints regarding responsibility, prestige, lower level job assignments, and placement of Moore s name above hers on the office letterhead, as claims of demotion and failure to promote, both of which are discrete acts. See Morgan, 536 U.S. at 114, 122 S. Ct. at 2073 (failure to promote); see also Huckabay v. Moore, 142 F.3d 233, 239-40 (5th Cir. 1998) (demotion).

Moreover, Anderson s August 2003 grievance alleged gender discrimination based on the same pre-termination acts of which she now complains. Yet, she did not file her charge of discrimination until July 2005, nearly two years after she became aware that that these actions may be discriminatory.[5] Thus, even assuming that these acts are not discrete, the continuing violation doctrine is still inapplicable. See Cooper-Day, 121 S.W.3d at 87-88 ( Cooper-Day knew of these allegedly discriminatory pay rate decisions more than 180 days before she filed her administrative complaint ); see also Burrell v. Crown Cent. Petroleum, Inc., 255 F. Supp. 2d 591, 621-22 (E.D. Tex. 2003) ( the continuing violation doctrine only applies to a plaintiff who was not aware at the time of the unlawful employment act that the conduct was discriminatory ).

Anderson cannot recover for discrete incidents that occurred outside the 180-day period. See Morgan, 536 U.S. at 109-10, 122 S. Ct. at 2070-71. Neither does the continuing violation doctrine save any claims based on acts of which Anderson was aware prior to the 180-day period. SeeCooper-Day, 121 S.W.3d at 87-88; see also Burrell, 255 F. Supp. 2d at 621-22. The trial court did not err by granting summary judgment on Anderson s claim arising from pre-termination acts. Thus, we need not address whether Anderson s claims are within the scope of her TWC complaint. See Tex. R. App. P. 47.1.

Prima Facie Case of Discrimination

An employer may not, based on gender, discharge or discriminate in any other manner against an employee in connection with compensation, terms, conditions, or privileges of employment. See Tex. Lab. Code Ann. 21.051(1) (Vernon 2006). To establish a prima facie case of discrimination, the employee must show that: (1) he was a member of a protected class; (2) he suffered an adverse employment action; and (3) non-protected class employees were not treated similarly. Jenkins v. Guardian Indus. Corp., 16 S.W.3d 431, 437 (Tex. App. Waco 2000, pet. denied) (quoting Rios v. Tex. Commerce Bancshares, Inc., 930 S.W.2d 809, 818 (Tex. App. Corpus Christi 1996, writ denied)). The burden of persuasion remains continuously with the employee. Id. If the employee establishes a prima facie case, the employer must articulate legitimate, nondiscriminatory reasons for any allegedly unequal treatment. Id. If the employer establishes such reasons, the employee must show that the employer s articulated reasons are pretextual. Id. Here, the parties challenge whether Anderson: (1) suffered an adverse employment action; and (2) established pretext.

Adverse Employment Action

Because any pre-termination acts are time barred, Anderson s termination alone remains. The County concedes that termination constitutes an adverse employment decision. See Martin v. Kroger Co., 65 F. Supp. 2d 516, 535 (S.D. Tex. 1999) (adverse employment action includes firing); see also Fortier v. Ameritech Mobile Commc ns, Inc., 161 F.3d 1106, 1112 n.7 (7th Cir. 1998) ( materially adverse change might be indicated by a termination of employment ).

Pretext

Andersonconcedes that the County articulated legitimate nondiscriminatory reasons for her termination, but contends that these reasons are pretextual.

A fact question on pretext is raised when the non-movant presents evidence indicating that the non-discriminatory reason given by the employer is false or not credible, and that the real reason for the employment action was unlawful discrimination. Elgaghil v. Tarrant County Junior Coll., 45 S.W.3d 133, 140 (Tex. App. Fort Worth 2000, pet. denied). A plaintiff can avoid summary judgment if the evidence as a whole, creates a fact issue as to whether each of the employer s stated reasons was not what actually motivated the employer and creates a reasonable inference that [gender] was a determinative factor in the actions the plaintiff is now complaining about. Id.

According to DeFriend s affidavit, Anderson was terminated based on: (1) insubordination and subversiveness; (2) unprofessional conduct, statements, and courtroom decorum; (3) unethical conduct; (4) failure to cover dockets; (5) failure to follow instructions and accept directions, instructions or counseling; (6) misuse of office time, personnel and resources ; and (7) refus[al] to handle cases. To survive summary judgment, Anderson must rebut each of these nondiscriminatory reasons. See Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003).

 Insubordination and Subversiveness. According to DeFriend, Anderson yelled at him in his office and other employees overheard the yelling. Anderson admitted raising her voice, but claimed that DeFriend did likewise.

DeFriend also accused Anderson of complaining about him to the justice court judges and orchestrating a meeting with the judges without DeFriend s knowledge. According to Anderson, the judges informed her of the meeting and invited her to attend. Moreover, she began covering justice court cases in one court to prevent the judge from reporting DeFriend for failing to have a prosecutor available for that court.

Another dispute apparently arose over travel expenses. Anderson and an intern attended training at the Department of Public Safety Academy and planned to spend the night in the barracks. When the intern refused to sleep in the barracks, Anderson obtained a hotel room, but informed the intern that they would need to split the bill in the event DeFriend declined to pay the bill. Although DeFriend agreed to pay the bill, he later classified the bill as an unauthorized travel expense.

Andersondenied any acts of subversiveness or insubordination. Justice of the Peace Ray Jones provided an affidavit stating that he had never observed Anderson be disrespectful, disloyal, or in any manner attempt to undermine [DeFriend s] authority. Anderson obtained and maintained grants for DeFriend s office, attended commissioners meetings, took action to save one of the grants, and managed to make one position permanent.

 Unprofessional Conduct, Statements, and Decorum. Anderson represented J.W. in a custody dispute. The judge awarded custody to the child s grandmother, N.C., and instructed the parties to exchange information. In a written complaint to DeFriend, N.C. accused Anderson of crumpling her information sheet, calling her a bitch, and threatening to have her arrested for contempt. Moreover, in an unrelated case, Anderson obtained a protective order for B.G. against K.G. N.C. and K.G. were in a relationship. Anderson allegedly asked N.C. whether K.G. gave her herpes like he did B.G. N.C. s daughter, J.C., also filed a complaint confirming N.C. s account.

Andersondenied the allegations, claiming that N.C. mouthed off and called me a bitch and that J.C. was not present during the encounter. She admitted stating that she is paid to be a bitch. Bill Groth, one of DeFriend s employees, spoke with the district clerk regarding the confrontation. The district clerk recalled some hostility, Anderson and N.C. talking loudly, and Anderson crumpling a piece of paper, but not the specific words spoken between Anderson and N.C.

After making the ruling in N.C. s case, the district judge learned that Anderson threatened to file a mandamus. This comment was allegedly made in the district clerk s office and later relayed to the judge. Anderson claimed that the judge heard this, if at all, through Moore.

Kristine Cahill, one of DeFriend s employees, alleged that Anderson yelled at her in the courtroom. Anderson admitted that she may have raised her voice, but did so because of noise in the courtroom and the need to obtain Cahill s attention.

Cahill also accused Lozano of claiming that Anderson tape recorded a conversation she had with Cahill. The conversation allegedly related to a statement that Cahill provided to the State Bar Grievance Committee regarding Anderson. Although no such recording existed, Lozano admitted telling Cahill otherwise and accusing Cahill of lying in her statement.

Finally, a justice court clerk informed DeFriend that Anderson sometimes arrived late for the court docket. DeFriend learned that Anderson had been more than one hour late.

 Unethical Conduct. Anderson represented J.B. in a divorce. A criminal report was filed on both J.B. and K.B. In a written letter to DeFriend, K.B. s attorney, Jeff Stuver, claimed that the day before a hearing on K.B. s application for protective order, Anderson advised him to check on whether a warrant had been issued for K.B. Stuver met with Moore, who informed him that Anderson asked him to sign a complaint against K.B. Moore apologized, stating that he felt used by Anderson and would not have signed the complaint had Anderson not asked him to. Cahill claimed that she prepared files on both K.B. and J.B., Anderson told her that they would file on K.B. only, Anderson was pushing for the issuance of a warrant on [K.B.], Lozano told her that Moore needed to sign the complaint, and Moore reluctantly signed the complaint. The record contains a note from Anderson to Moore that states, I need you to sign the [K.B.] assault b/c her husband is my client. She hit him and then went and got an EX PARTE PO! The note further described K.B. as nuts.

Lozano stated that she gave K.B. s file to Cahill and told Cahill that Moore needed to handle the file because Anderson had a conflict. Anderson claimed that Cahill gave her K.B. s file, which she then gave to Moore, stating that she could not touch it. She denied instructing Moore to take any action on the file. Michael Martin, an intern who was present when Anderson received the file, confirmed Anderson s account. Anderson admitted telling Stuver that she thought an assault case had been filed against K.B. She withdrew around the same time that Stuver filed a motion to disqualify. She acknowledged that it would be a problem for K.B. if a warrant was issued the day before a hearing on her civil case. According to county court personnel, no warrant was issued for K.B.

At some point, Moore began representing K.B. K.B. filed a State Bar grievance against Anderson, which was later dismissed. Shirley Spivey, to whom Anderson referred J.B., believed that K.B. was persuaded by outside sources to file the grievance. Spivey was not informed of any criminal charges pending against K.B.

In another case, Anderson represented J.L. in a divorce and filed an application for protective order. J.L. had previously filed an assault report with the sheriff s department. DeFriend claimed that Anderson had Moore sign a complaint against H.L. and that H.L. s attorney, William Rice, approached DeFriend to express his concerns about a potential conflict. Rice also contacted Anderson, who subsequently withdrew. Anderson denied awareness of any conflict until contacted by Rice. However, the application for protective order states that J.L. report[ed] the incident to the police and a report was filed with the district attorney s office. Anderson admitted that, if this was the case, there would be a conflict and she should probably not have filed a civil case for J.L. She did not recall any contact with the criminal case against H.L.

Anderson also filed an application for protective order for C.D. and represented her in a divorce case. Anderson later signed a criminal information against C.D. s husband, D.D. D.D. s attorney contacted DeFriend about a potential conflict, after which Anderson withdrew. She admitted that her involvement in the case was a mistake in judgment, something she should have never done, and a conflict, but that she was acting as legal aid or pro bono at the request of a justice court judge.

In yet another case, Anderson represented G.F. in a divorce. After attempts to reconcile failed, G.F. brought family violence charges against J.F. The parties agreed to Anderson s continued representation of G.F. J.F. s attorney, Bobby Reed, later told DeFriend that G.F. agreed to dismiss the criminal case against J.F. as part of the divorce agreement. Reed stated that the parties had discussed G.F. filing an affidavit of non-prosecution and dismissing the charges against J.F. He also stated that DeFriend, not Anderson, handled and dismissed the criminal case, and that Anderson acted in a professional manner. Anderson claims to have told Reed that DeFriend had to decide whether to dismiss the charges.

On another occasion, K.G. complained to DeFriend that nothing was done on a complaint she filed against L.G. In a letter to Anderson, K.G. s attorney, Bobby Reed, informed Anderson that K.G. would be filing charges against L.G. and that this caused a potential conflict. K.G. was upset because she had met with Anderson about the charges against L.G. and Anderson disclosed the contents of this conversation to her client, L.G. Reed requested that Anderson withdraw. She ceased representing L.G. Reed stated that Anderson did not appear on L.G s behalf after this time. Anderson did not recall meeting with K.G. or informing L.G. of anything that K.G. might have said.

Justin M. and H.H. were a couple. Jeff M. and A.M. were married. The couples split and switched partners. At some point, Justin M. sought a protective order against Jeff M., but was told that he was not eligible. As assistant prosecutor, Anderson filed for a protective order against Justin M. on H.H. s behalf. Anderson subsequently represented A.M. in a divorce from Jeff M. DeFriend s office later filed for a protective order against Jeff M. on A.M. s behalf. Anderson withdrew from representing A.M. DeFriend received a complaint from Jeff M. accusing Anderson of telling A.M. that Justin M. once sought a protective order against him. Anderson did not recall disclosing this information to either A.M. or H.H.

A county judge approached DeFriend with another situation that arose in court. The judge informed DeFriend that Anderson s parents rented to a man who became a criminal defendant. During a hearing, Anderson commented that the man had not been paying rent.

Bobby Reed and Shirley Spivey both attested to Anderson s ethics. Reed stated that Anderson: (1) attempts to and does a good job of keeping her private practice separate, apart and distinct from her work with the County; (2) never, directly or indirectly, attempted to gain an advantage against me in a civil matter by virtue of her employment with the [] County []; (3) immediately withdraw[s] if a matter arises for which there could be a potential conflict; and (4) has been diligent in avoiding even the appearance of impropriety. Spivey stated that Anderson is an ethical attorney in every respect and always withdrew as soon as any conflict arose. She sees attorney s [sic] representing clients in criminal court against the DA s office with blatant conflict problems and the DA s office to my knowledge hasn t raised this issue except in cases involving Lauri Anderson. After Moore was hired, Spivey noticed that DeFriend s attitude towards Anderson changed, he treated Anderson like an enemy who was always suspect, he seemed to be after Anderson, and [n]o one ever seems to have a problem with conflicts when it comes to the good old boys. According to Spivey, the male attorney who replaced Anderson has a significant disciplinary history. She believed that Anderson had been the target of discrimination and would not have been terminated had she been a male. According to Anderson, three separate Bar grievances were filed against her, all of which were dismissed.

 Failure to Cover Dockets. DeFriend alleged that Anderson took vacation without arranging to cover her justice court docket. Some of these cases, part of Anderson s regularly scheduled docket, were to be tried. DeFriend became aware of this fact the day before trial. According to Anderson, she and DeFriend had discussed Anderson s vacation, she had informed Cahill that she would be out of town, and believed that the only case set for trial was to be resolved via guilty plea and payment of a ticket. She had been advised that this was the only case set for trial. DeFriend also alleged that Anderson left town without briefing him on her CPS cases. Anderson claimed that DeFriend did not ask for any information on these cases and that the files are not usually prepared until the day before the docket; thus, preparations are made the day before court.

On another occasion, a county court docket and justice court docket were scheduled for the same day and time. A felony trial was also scheduled that day. DeFriend claimed that Anderson made no attempts to re-schedule the dockets and that several county court cases were dismissed as a result. Anderson believed that she, DeFriend, and Moore could each handle a docket. She did not know that both DeFriend and Moore had to try the felony. By the time she discovered this fact, she could not re-schedule the dockets. The justice court judge would not excuse her to handle the county court docket.

 Failure to Follow Instructions or Accept Directions and Refusal to Handle Cases. DeFriend instructed Anderson and another assistant, K.C. Odom, to try the Leger felony case. He claims that Anderson unilaterally chose not to try the case. According to Odom, Moore, whom Anderson disliked, was Leger s attorney. Anderson explained that DeFriend originally instructed the attorneys to choose between Leger and another case. Anderson chose the other case and began preparing for trial. DeFriend later instructed that Leger be tried. Anderson declined to try Leger because she was not allowed to handle Moore s misdemeanor cases and presumed that she could also not handle Moore s felony cases.

In another instance, DeFriend instructed Anderson to try a particular case. Anderson later refused to accept the victim s affidavit, stating that she threw it in the garbage. She did not set the case for trial. On a different case, after the victim filed an affidavit, Anderson dismissed the case although the defendant had multiple offenses and a history of domestic violence. When the defendant assaulted the victim again, Anderson never set the case for trial. After yet another assault, Moore tried the case when Anderson refused to do so. Spivey was the defendant s attorney. Anderson did not recall ever being offered either of these cases.

After a pasture party where several minors were charged with minor in possession/minor in consumption, DeFriend instructed Anderson and Odom to treat all the cases the same and to contact the breath test analyst in case of any questions. Odom confirmed that he and Anderson were instructed that the cases should be handled uniformly and the minors should either plead or go to trial, with no special deals. Anderson subsequently granted pretrial diversion to one of the minors, A.R., and used DeFriend s signature stamp to sign the dismissal. The Sheriff told DeFriend that Anderson justified the dismissal because there was no offense report. DeFriend claimed that there was an offense report.

Anderson claimed that DeFriend gave no instructions on A.R. s case until after it was concluded. She testified that Judge Jones granted pretrial diversion because he was concerned that A.R. would receive no punishment, as defense counsel had filed a motion in limine regarding the breath test results and several witnesses claimed that A.R. was not drinking; only two witnesses claimed that A.R. was drinking. Moreover, the judge had met with some of the witnesses. Judge Jones confirmed making this decision because it is in the best interest of the juveniles that they not have a criminal record if that can be avoided. He imposed the same conditions on A.R. as those imposed in similar cases and A.R. completed these conditions. Because A.R. s case was dismissed without prejudice, Anderson told DeFriend that she could refile the case. Odom believed that there was no justification for pretrial diversion, which was in direct violation of DeFriend s instructions.

DeFriend instructed Anderson to watch for and not dismiss a particular case. The defendant s attorney, Benjie Reed, stated that Anderson agreed to dismiss the case if the defendant appealed to county court. Anderson testified that she did not dismiss the case and told Reed that DeFriend would have to approve a dismissal.

During the Price appeal, DeFriend wanted to divide the appeal into three parts, one for each attorney. Anderson refused to help prepare the appeal.

Finally, DeFriend claimed that he offered Anderson several different felony cases, but she chose not to participate in these cases. Anderson claimed no recollection of being offered at least five of these cases. Of the cases she remembered being offered, she claimed that DeFriend merely asked whether she want[ed] a piece of this. On one occasion, she could not participate because she was hospitalized. One another occasion, she knew the defendant s wife and felt uncomfortable participating in the case. Moreover, felony trials were scheduled for the same day and time as her regularly scheduled docket; thus, she could not participate because DeFriend would neither reschedule her docket nor instruct Moore to cover her docket.

Analysis

The County argues that there is a presumption against pretext because DeFriend both hired and fired Anderson. The same actor inference applies where the same actor both hires and fires the employee, giving rise to an inference that the termination was not motivated by discrimination. See Brown v. CSC Logic, Inc., 82 F.3d 651, 658 (5th Cir. 1996). The inference is enhanced if the actor is of the same protected class as the employee. See id.

Andersonclaims that she was hired by DeFriend s predecessor, Don Cantrell. She testified that DeFriend approached her about the job. The County contends that DeFriend recommended that Cantrell hire Anderson and Cantrell deferred to this recommendation because DeFriend was the incoming district attorney. The record certainly suggests that DeFriend at least participated and may have even been responsible for Anderson s hiring. Nevertheless, the same actor inference neither rule[s] out the possibility that an individual could prove a case of discrimination nor requires us to ignore any evidence of pretext. Brown, 82 F.3d at 658; see Menefee v. McCaw Cellular Commc n of Tex., No. 05-02-00142-CV, 2003 Tex. App. Lexis 2456, at *12 (Tex. App. Dallas March 24, 2003, no pet.) (mem op.) ( presumption does not require that Menefee s evidence of pretext be disregarded and summary judgment be sustained ).

We cannot say that Anderson failed to raise a fact issue as to pretext. See Goodyear Tire, 236 S.W.3d at 756; see also Tamez, 206 S.W.3d at 582. Her responses to the County s reasons for termination have cast doubt as to the credence of those reasons and whether her termination was motivated by something other than these reasons, i.e. gender discrimination. See Elgaghil, 45 S.W.3d at 140. Because genuine issues of material fact exist, summary judgment was improper on Anderson s claim of gender discrimination.

 Retaliation

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)).

Protected Activity

Anderson contends that she engaged in protected activity by opposing discriminatory practices in a June 2002 letter to DeFriend, the August 2003 grievance, and her response to DeFriend s December 2004 memorandum.

In her 2002 letter, Anderson expressed her concerns that Lozano was being treated as a second-class citizen and receiving disparate treatment and that both she and Lozano were being singled out for unfair treatment. The County argues that this letter did not raise any allegations of gender discrimination and is not evidence that Anderson opposed a discriminatory practice. We agree.

Engaging in a protected activity requires complaining of some sort of discrimination that is covered by the TCHRA. Spinks v. Trugreen Landcare, L.L.C., 322 F. Supp. 2d 784, 796 (S.D. Tex. 2004). A vague charge of discrimination will not invoke protection under the statute. Id. at 797. Anderson s letter did not allege disparate or unfair treatment on the basis of gender discrimination. See Harris-Childs v. Medco Health Solutions of Tex. LLC, 169 Fed. Appx. 913, 916 (5th Cir. 2006) (plaintiff could not show engagement in a protected activity, as her complaints of unfair treatment and harassment did not put the employer on notice that her complaint was based on racial or sexual discrimination ). The same can be said of her written response to DeFriend s memorandum, wherein she claimed to be the target of disparate treatment and singled out and treated differently. See id; see also Spinks, 322 F. Supp. 2d at 796.

However, in her grievance, Anderson alleged various acts of gender discrimination against both Lozano and herself. This document placed the County on notice that Anderson s allegations were based on gender discrimination. By specifically alleging gender discrimination in her grievance, Anderson engaged in protected activity. See Tex. Lab. Code Ann. 21.055; see also Thomann v. Lakes Reg l MHMR Ctr., 162 S.W.3d 788, 800 (Tex. App. Dallas 2005, no pet.) (plaintiff engaged in protected activity by filing an internal complaint alleging discrimination based on disability).

Adverse Employment Action

To establish an adverse personnel action, a plaintiff must show that:

a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S. Ct. 2405, 2415, 165 L. Ed. 2d 345 (2006); see Montgomery County v. Park, 246 S.W.3d 610, 612 (Tex. 2007) ( for a personnel action to be adverse within the meaning of the [Texas Whistleblower] Act, it must be material, and thus likely to deter a reasonable, similarly situated employee from reporting a violation of the law ); see also Niu v. Revcor Molded Prods. Co., 206 S.W.3d 723, 730-32 (Tex. App. Fort Worth 2006, no pet.) (applying BNSF to retaliation claim under 21.055 of the Labor Code). [T]ermination is clearly an adverse employment action, [] even under the new standard articulated in Burlington Northern. Dehart v. Baker Hughes Oilfield Operations, Inc., 214 Fed. Appx. 437, 442 (5th Cir. 2007) (citing BNSF, 548 U.S. at 68, 126 S. Ct. at 2415). Thus, we must determine whether a causal nexus exists between the protected activity and Anderson s termination.

Causal Nexus

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.

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 1511.

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 grievance.

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.

CONCLUSION

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 judgment is affirmed in all other respects.

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Chief Justice Gray dissents. A separate opinion will not issue.)

Affirmed in part; reversed and remanded in part

Opinion delivered and filed July 2, 2008

[CV06]

 

[1] One such objection to a handwritten note on grounds that it contained the handwriting of multiple persons and was not supported by a qualified expert was disposed of by a stipulation between the parties as to which part of the note was written by Anderson and which part was not.

[2] The County filed both traditional and no-evidence summary judgment motions. Anderson contends that the County s no-evidence motion failed to specify which elements of her discrimination claim lack evidentiary support. See Tex. R. Civ. P. 166a(i) (no-evidence motion must state the elements as to which there is no evidence ). The judgment does not specify whether it is based on traditional or no-evidence grounds. Thus, we must affirm the trial court s judgment if any of the theories advanced are meritorious. Western Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005); see Newkumet v. Allen, 230 S.W.3d 518, 521 (Tex. App. Eastland 2007, no pet.).

[3] Chapter 21 was entitled the Texas Commission on Human Rights Act until the abolishment of the Commission on Human Rights. See Little v. Tex. Dep t of Crim. Justice, 148 S.W.3d 374, 377-78 (Tex. 2004). In 2004, the powers and duties of the Commission on Human Rights were transferred to the Texas Workforce Commission Civil Rights Division. Tex. Lab. Code Ann. 21.0015 (Vernon 2006).

[4] Anderson contends that the continuing violation doctrine is analogous to a hostile work environment that manifests itself over time. In her reply brief, she expands this argument, stating that pre-termination acts are not discrete acts, but rather part of a continuing scheme which created a hostile work environment, she was subjected to a continuing discrimination, and as a consequence a hostile work environment, and [a] continuing violation is in essence a hostile work environment claim. (Emphasis added). The summary-judgment record does not indicate that the parties addressed a hostile work environment claim; thus, we may not consider it. See Tex. R. App. P. 33.1(a); see also Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 676-77 (Tex. 1979). Furthermore, the continuing violation doctrine applies irrespective of hostile work environment claims. Tex.Dep t of Crim. Justice v. Guard, No. 10-06-00065-CV, 2007 Tex. App. Lexis 2859, at *15 (Tex. App. Waco April 11, 2007, no pet.) (mem. op.).

[5] Moore resigned effective December 2003.