law-employment-retaliation-claim | Whistleblower Act claim in public employment |
RETALIATION CLAIMS IN EMPLOYMENT CONTEXT
09‑0796 JERRY GUMPERT AND MARTIN COYNE v. ABF FREIGHT SYSTEM, INC., BARRY SIRCY, TOMMY
WALKER, ROBERT GRAVES, GEORGE WARREN, PERRY WAYNE MIDDLEBROOK, RICHARD CRAWFORD,
RICHARD FISER, DAN NOONKESTER, RICHARD MARTINEZ, RICHARD PASSMORE AND LEONARD ESNER;
from Dallas County; 5th district (05‑07‑01717‑CV, 293 SW3d 256, 05‑20‑09, pet denied Nov. 2009)(defamation
claim fails, civil conspiracy likewise in the absence of underlying tort) (same-sex harassment, employment
retaliation claim)
We next address Gumpert and Coyne's claims against ABF for retaliation under section 21.055 of the TCHRA.
Section 21.055 prohibits employers from retaliating against their employees for engaging
in protected activities such as opposing a discriminatory practice, making a charge, or
filing a complaint. Tex. Lab. Code Ann. § 21.055 (Vernon 2006). In an action arising under section 21.055,
the plaintiff must make a prima facie showing that: (1) he engaged in a protected activity, (2) an adverse
employment action occurred, and (3) there was a causal link 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).
ABF argues that Gumpert and Coyne failed to provide any evidence of an adverse action taken against them by
the company or a causal link between a protected activity and any alleged adverse action. We agree.
For an adverse action to be causally linked to the protected conduct, a plaintiff must
show that the action would not have occurred but for the protected conduct. See Strong v.
University HealthCare System, L.L.C., 482 F.3d 802, 806 (5th Cir. 2007). Mere temporal proximity between the
adverse action and the protected conduct is insufficient evidence to show a causal link for the purposes of
summary judgment. Id. at 807. Moreover, subjective belief as to the motivation for the action is insufficient to
defeat summary judgment. See Bartosh v. Sam Houston State Univ., 259 S.W.3d 317, 330 (Tex. App.-Texarkana
2008, pet. denied).
The only alleged “adverse action” taken by ABF against Coyne was a purported disciplinary action taken after
this case was filed. Coyne was told in 2007 that he was going to receive a warning letter in response to a
complaint by a courtesy van driver in Laredo. The driver alleged that Coyne made crude remarks to him including
suggestive comments about his wife and daughter. Although Coyne told his supervisor he never made the
alleged remarks, Coyne states that his supervisor told him he had already decided Coyne was guilty. Coyne
denied ever receiving a copy of the warning letter.
First, we note that this single alleged disciplinary action does not amount to a materially adverse employment
action necessary to support a claim for retaliation. See Grice v. FMC Techs. Inc., 216 Fed. Appx. 401, 407 (5th
Cir. 2007) (alleged retaliatory actions cannot be mere trivial harms). And second, even if the warning letter could
be considered a sufficiently adverse action, Coyne has made no showing that the letter was linked in any way to
his complaints about sexual harassment. Coyne makes a vague allegation in his brief that ABF knew the
complaint against him was false and “proceed[ed] from a retaliatory motive.” Coyne provides no evidence to
support this allegation, however. Indeed, in his deposition testimony made part of the summary judgment record,
Coyne stated he did not know of any action taken by ABF in retaliation against him.
Gumpert contends he was constructively discharged in retaliation for his sexual harassment complaints.
Gumpert concedes that he submitted the necessary paperwork to retire voluntarily from his employment with ABF,
but states he resigned from his job earlier than the paperwork indicated after all four of the tires on his personal
vehicle were slashed. Gumpert goes on to argue that the offensive postings combined with the destruction of his
personal property created an atmosphere so intolerable that he felt compelled to leave. The postings and alleged
vandalism, however, were committed by Gumpert's co-workers, not ABF. See Barrow v. New Orleans S.S. Ass'n,
10 F.3d 292, 297 (5th Cir. 1994) (factors relevant to constructive discharge include badgering, harassment, or
humiliation by the employer calculated to encourage employee's resignation). In his deposition testimony,
Gumpert stated that his managers and supervisors at ABF treated him the same after he filed his complaint as
before any of the problems started.
To the extent Gumpert suggests that ABF failed to take appropriate measures to remedy the harassment, thus
allowing the hostile work environment to exist, ABF's alleged failure to respond appropriately began long before
Gumpert engaged in any protected activity. Accordingly, Gumpert cannot show a causal link between his
harassment complaints and ABF's alleged failure to act. Based on the foregoing, we conclude the trial court
properly granted summary judgment on Gumpert and Coyne's claims against ABF for retaliation and constructive
discharge under section 21.005.