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.