Chapter § 4-18 § 21.055. Retaliation

• Jurisdiction: United States

4-18 § 21.055. Retaliation

An employer, labor union, or employment agency commits an unlawful employment practice if the employer, labor union, or employment agency 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.

4-18:1 Commentary

4-18:1.1 Supreme Court Lowers Threshold for Retaliation Action

Texas courts adhere to the United States Supreme Court decision in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006), in which the United States Supreme Court rejected the theory, adopted by the Fifth Circuit, that proof of retaliation claims requires that an employee engages in protected activity and that the employee suffers an ultimate adverse employment action as a result, such as termination, demotion, failure to promote, or similar action, often referred to as "ultimate employment actions." In Burlington Northern, the Supreme Court lowered the threshold. Now, a plaintiff need only show that the action may well have "dissuaded a reasonable worker from making or supporting a charge of discrimination," which is necessarily a fact-specific analysis. Texas courts agree.

• Texas Dep't of Public Safety v. Williams, No. 03-08-00466, 2010 Tex. App. LEXIS 1178 (Tex. App.—Austin Feb. 19, 2010) (trooper complained of race discrimination; later, he received different and less prestigious assignments, which affected his ability to earn overtime; Burlington standard met, even if there was no monetary loss to the plaintiff; note that being deprived of non-monetary perks would be sufficient to satisfy the requirement set out in Burlington Northern).

The burden of proof for a retaliation claim is a high one.

• Pineda v. United Parcel Service, Inc., 360 F.3d 483 (5th Cir. 2004) (TCHRA requires "but-for" causation standard for retaliation claims; consequently, even if an employer considered an employee's protected activity in deciding whether to impose a materially adverse employment action, the plaintiff must still establish that "but-for" the employer's retaliatory conduct, he would not have been terminated).

From time to time, plaintiffs' lawyers seek to convince courts that the proper standard is "motivating factor." It is not.

• Septimus v. University of Houston, 399 F.3d 601 (5th Cir. 2005) (error to instruct jury on "motivating factor" standard in retaliation case).

4-18:1.1a Protected Activity

To state a claim for retaliation, a plaintiff must engage in protected activity, namely protesting unlawful retaliation or by participating in a process associated with the filing or bringing of a claim. In 2017, the Texas Supreme Court gave good news on this front to employer.

• Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572 (Tex. 2017) (Texas Supreme Court reverses appeals court and holds that plaintiff, who alleged both race and national origin discrimination, did not engage in protected activity by merely asking a supervisor why another employee was treated differently than he believed he was; while employee was white, the question did not refer to any sort of discrimination; the court stated, "Federal courts do not require 'magic words,' but those same courts also say 'protected opposition must at least alert an employer to the employees reasonable belief that unlawful discrimination is an issue.'" (citing Brown v. United Parcel Service, 406 F. App'x 837 (5th Cir. 2015)).

4-18:1.2 Retaliation for Filing a Claim

From a technical standpoint, practitioners must remember to allege retaliation in any initial charge of discrimination, along with discrimination with respect to any protected characteristic. If not, then the employee is later precluded from claiming retaliation in a subsequent lawsuit, as discussed in University of Texas v. Poindexter, 306 S.W.2d 798 (Tex. App.—Austin 2009). But, what about the employee who files a charge alleging, say, only race discrimination, and is allegedly retaliated against for filing that charge? Must she then file a separate and new charge of discrimination? The Fifth Circuit says no, as do most Texas courts of appeal.

Plaintiffs should, however, argue that—in cases with a close temporal proximity between the protected activity and the adverse action—that the employer explain both the timing and the reason for the action.

• Newsome v. Collin County Community College, 189 F. App'x 353

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