San Antonio Water Sys. v. Nicholas

Decision Date23 October 2013
Docket NumberNo. 04–12–00442–CV.,04–12–00442–CV.
Citation441 S.W.3d 382
PartiesSAN ANTONIO WATER SYSTEM, Appellant v. Debra NICHOLAS, Appellee.
CourtTexas Court of Appeals

Ellen B. Mitchell, Cora C. McGowan, Donna K. McElroy, Cox Smith Matthews Incorporated, San Antonio, TX, for Appellant.

Jeff Small, Law Office of Jeff Small, Alex Katzman, Katzman & Katzman, San Antonio, TX, for Appellee.

Sitting: SANDEE BRYAN MARION, Justice, MARIALYN BARNARD, Justice, LUZ ELENA D. CHAPA, Justice.

OPINION

Opinion by: SANDEE BRYAN MARION, Justice.

Appellee Debra Nicholas sued appellant The San Antonio Water System (SAWS) for retaliation under the Texas Commission on Human Rights Act based upon two alleged adverse employment actions: SAWS terminated her employment and SAWS refused to consider her or offer her employment for other positions with the company that she applied for after her employment was terminated. Nicholas claimed both adverse actions arose from her opposition to a discriminatory practice when she counseled and reprimanded another employee for sexual harassment. A jury returned a verdict favorable to Nicholas on both of her retaliation claims. We affirm.

STANDARD OF REVIEW

Nicholas brought her retaliation claims under the Human Rights Act, which provides that [a]n 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.” Tex. Lab.Code Ann. § 21.055 (West 2006). To establish a prima facie case of retaliation, a plaintiff must show that: (1) she engaged in a protected activity; (2) the employer took an adverse employment action against her; and (3) it did so because of her participation in the protected activity. Herbert v. City of Forest Hill, 189 S.W.3d 369, 376 (Tex.App.-Fort Worth 2006, no pet.). It is the plaintiff's burden to prove that without her protected activity, the employer's prohibited conduct would not have occurred when it did. See Tex. Dep't of Human Servs. v. Hinds, 904 S.W.2d 629, 636 (Tex.1995) (applying standard to retaliation complaint under Whistleblower Act); McMillon v. Tex. Dep't of Ins., 963 S.W.2d 935, 940 (Tex.App.-Austin 1998, no pet.) (applying standard to retaliation complaint under Human Rights Act). In other words, the plaintiff must establish a “but for” causal nexus between her protected activity and the employer's prohibited conduct. McMillon, 963 S.W.2d at 940. The plaintiff need not establish, however, that her protected activity was the sole cause of the employer's prohibited conduct. Id.

On appeal, SAWS asserts Nicholas failed to carry her burden of establishing a “but for” causal link between the alleged protected activity and the adverse action about which she complains. SAWS also asserts the evidence is factually insufficient to support the jury's findings that Nicholas engaged in a protected activity and that SAWS retaliated against her.

We first address Nicholas's contention on appeal that her prima facie case of retaliation creates a “legally mandatory inference of discrimination” that prevails unless SAWS produces a legally sufficient reason for her discharge. Nicholas argues that because SAWS provided only a generalized reason for her discharge—that her position was eliminated due to a company reorganization—it failed to rebut the presumption created by her prima facie case and, thus, the burden never shifted to her to show pretext or falsity. Nicholas's argument presupposes that the allocation of burdens and order of presentation of proof in a case alleging discriminatory treatment set forth by the U.S. Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), applies here. For the reasons set forth below, we disagree.

In McDonnell Douglas, the United States Supreme Court prescribed a burden-shifting analysis in Title VII employment discrimination cases. The plaintiff first has the burden of proving by a preponderance of the evidence a prima facie case of discrimination. Id. at 802, 93 S.Ct. 1817. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant “to articulate some legitimate, nondiscriminatory reason for the employee's rejection.” Id. Third, if the defendant carries this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant are not its true reasons, but were a pretext for discrimination. Id. at 804, 93 S.Ct. 1817. While the burden of production shifts, the burden of persuasion that the employer intentionally discriminated against the employee remains always with the employee. See Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).

“But when a discrimination case has been fully tried on its merits, as in this case, a reviewing court does not engage in a burden-shifting analysis.” WalMart Stores, Inc. v. Canchola,

121 S.W.3d 735, 739 (Tex.2003) (per curiam); Claymex Brick and Tile, Inc. v. Garza, 216 S.W.3d 33, 36 (Tex.App.-San Antonio 2006, no pet.) (holding same). [W]e need not now parse the evidence into discrete segments corresponding to a prima facie case, an articulation of a legitimate, nondiscriminatory reason for the employer's decision, and a showing of pretext.” Rubinstein v. Administrators of Tulane Educ. Fund, 218 F.3d 392, 402 (5th Cir.2000). ‘When a case has been fully tried on the merits, the adequacy of a party's showing at any particular stage of the McDonnell Douglas ritual is unimportant.’ Id. (internal citation omitted). Instead, we inquire whether the evidence is sufficient to support the jury's ultimate finding. Canchola, 121 S.W.3d at 739.

When, as here, a party challenges the legal sufficiency of the evidence to support an issue on which it did not have the burden of proof at trial, that party must demonstrate on appeal that there is no evidence to support the jury's adverse finding. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex.1983). In reviewing for legal sufficiency of the evidence, we consider all of the evidence in the light most favorable to the verdict, indulging every reasonable inference that would support it. See City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex.2005). “But if the evidence allows of only one inference, neither jurors nor the reviewing court may disregard it.” Id. To determine whether legally sufficient evidence supports a challenged finding of fact, the reviewing court must credit favorable evidence if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not. Id. at 827. Evidence is legally sufficient if it would enable reasonable and fair-minded people to reach the verdict under review. Id. Evidence is legally insufficient only if (1) there is a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence conclusively establishes the opposite of the vital fact. Id. at 810. If there is more than a scintilla of evidence to support the finding, the no-evidence challenge fails and must be overruled. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex.2002). The fact-finder is the sole judge of the credibility of the witnesses and the weight to give their testimony. City of Keller, 168 S.W.3d at 819.

If a party is attacking the factual sufficiency of the evidence to support an adverse finding on an issue on which the other party had the burden of proof, the attacking party must demonstrate that there is insufficient evidence to support the adverse finding. Westech Eng'g, Inc. v. Clearwater Constructors, Inc., 835 S.W.2d 190, 196 (Tex.App.-Austin 1992, no writ). In addressing a factual sufficiency of the evidence challenge, an appellate court must consider and weigh all of the evidence in a neutral light. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986) (per curiam). The verdict should be set aside only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id. However, this court is not a fact finder, and we may not pass upon the credibility of the witnesses or substitute our judgment for that of the trier of fact, even if a different answer could be reached upon review of the evidence. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex.1998).

PROTECTED ACTIVITY

The Human Rights Act protects an employee from retaliation or discrimination by an employer because the employee “opposed a discriminatory practice.” Tex. Lab.Code § 21.055(1). Opposition to a discriminatory practice is a protected activity under the Human Rights Act, irrespective of the merits of the underlying discrimination claim. City of Waco v. Lopez, 259 S.W.3d 147, 151 (Tex.2008). To establish that the employee opposed a discriminatory practice, the employee must demonstrate a good faith reasonable belief that the underlying discriminatory practice of the employer violated the law. Cox & Smith Inc. v. Cook, 974 S.W.2d 217, 224 (Tex.App.-San Antonio 1998, pet. denied) (employee is not required to show actual existence of unlawful practice, only that she held a good faith reasonable belief that employer engaged in activity made unlawful by the Human Rights Act).

In Cook, a panel of this court held that the term “reasonable belief” includes both subjective and objective components. 974 S.W.2d at 225. A plaintiff must show that she subjectively (that is, in good faith) believed her employer was engaged in unlawful employment practices, and her belief was objectively reasonable in light of the facts and record presented. Id. at 225–26. Following Cook, we will evaluate...

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    ...of the labor code does not comprise "compensatory damages" subject to section 21.2585(d) ’s cap. See San Antonio Water Sys. v. Nicholas , 441 S.W.3d 382, 404 (Tex. App.—San Antonio 2013) ("[B]ecause front pay is a form of equitable relief, it is not limited by the statutory cap on compensat......
  • San Antonio Water Sys. v. Nicholas
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    • Texas Supreme Court
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    ...in sexual harassment and that her belief was objectively reasonable in light of the record presented.” San Antonio Water Sys. v. Nicholas, 441 S.W.3d 382, 391 (Tex.App.–San Antonio 2013). We disagree. We first clarify the scope of the conduct that may be considered. On appeal, Nicholas poin......
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    ...of causation. Especially where a defendant retaliates at the first opportunity that is presented.” San Antonio Water Sys. v. Nicholas, 441 S.W.3d 382, 392–93 (Tex.App.–San Antonio 2013), rev'd on other grounds,461 S.W.3d 131 (Tex.2015) (internal citations omitted); see alsoFields v. Teamste......
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4 books & journal articles
  • Texas Commission on Human Rights Act: Procedures and Remedies
    • United States
    • James Publishing Practical Law Books Archive Texas Employment Law. Volume 1 - 2016 Part V. Discrimination in Employment
    • July 27, 2016
    ...69 S.W.3d 634 (Tex. App.—Corpus Christi 2002), rev’d other grounds, 144 S.W.3d 438 (Tex. 2004); San Antonio Water Sys. v. Nicholas, 441 S.W.3d 382 App.—San Antonio 2013), rev’d 461 S.W.3d 131 (Tex. 2015); City of Houston v. Levingston, 221 S.W.3d 204, 234 (Tex. App.—Houston [1st Dist.] 2006......
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    • United States
    • James Publishing Practical Law Books Texas Employment Law. Volume 1 Part V. Discrimination in employment
    • May 5, 2018
    ..., 69 S.W.3d 634 (Tex. App.—Corpus Christi 2002), rev’d other grounds , 144 S.W.3d 438 (Tex. 2004); San Antonio Water Sys. v. Nicholas , 441 S.W.3d 382 (Tex. App.—San Antonio 2013), rev’d 461 S.W.3d 131 (Tex. 2015); City of Houston v. Levingston, 221 S.W.3d 204, 234 (Tex. App.—Houston [1st D......
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    • United States
    • James Publishing Practical Law Books Archive Texas Employment Law. Volume 1 - 2017 Part V. Discrimination in employment
    • August 9, 2017
    ..., 69 S.W.3d 634 (Tex. App.—Corpus Christi 2002), rev’d other grounds , 144 S.W.3d 438 (Tex. 2004); San Antonio Water Sys. v. Nicholas , 441 S.W.3d 382 (Tex. App.—San Antonio 2013), rev’d 461 S.W.3d 131 (Tex. 2015); City of Houston v. Levingston , 221 S.W.3d 204, 234 (Tex. App.—Houston [1st ......
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