                             NUMBER 13-08-00003-CV

                             COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


MIRANDA MONTALVO,                                                             Appellant,

                                            v.

COUNTY OF REFUGIO, TEXAS,                                                      Appellee.


                    On appeal from the 267th District Court
                          of Refugio County, Texas.



                        MEMORANDUM OPINION
                Before Justices Yañez, Rodriguez, and Garza
                  Memorandum Opinion by Justice Yañez
       Appellant, Miranda Montalvo, appeals from a summary judgment granted in favor

of appellee, the County of Refugio, Texas (“the County”). By four issues, Montalvo

contends the trial court erred in: (1) granting summary judgment (issues one and two); (2)

overruling her objections to the affidavit of Earl Petropoulos, Sheriff of the County (issue

three); and (3) sustaining the County’s objections to her affidavit (issue four). We affirm.
                                                    I. Background

        Montalvo was formerly employed as jail administrator for the County Jail. When

Petropoulos was elected sheriff and took office in January 2005, he demoted her to

correctional officer and replaced her with Officer Ted Arcand. In July 2005, Montalvo filed

a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”),

alleging race and gender discrimination. After Montalvo was terminated on December 13,

2005, she amended her charge of discrimination to include a retaliation claim. She sued

the County in May 2006, alleging claims of sexual harassment, gender discrimination, and

retaliation.1

        The County filed a traditional and no-evidence motion for summary judgment.2 In

its no-evidence motion, the County argued that: (1) with respect to her sexual harassment

claim, Montalvo had no evidence that she was subjected to unwelcome sexual

harassment; and (2) with respect to her retaliation claim, Montalvo had no evidence of a

causal connection between her filing a charge of discrimination and her termination. The

County filed a traditional motion for summary judgment with regard to Montalvo’s claims

of gender discrimination. The County attached as summary judgment evidence: (1) an

affidavit by Petropoulos with exhibits3; and (2) Montalvo’s deposition. Montalvo filed a

response and attached: (1) her own affidavit; and (2) the depositions of several current or

former County Sheriff’s Department employees, including Arcand, Sergeant Johnny Repka,

Lieutenant Raymond Silvas, and Sergeant Rebecca Tanguma.


        1
            See T EX . L ABO R C OD E A N N . §§ 21.051, 21.055 (Vernon 2006).

        2
            See T EX . R. C IV . P. 166a(c), (i).

        3
         The exhibits include: (1) Arcand’s report as jail adm inistrator; (2) Arcand’s report regarding
Montalvo; (3) Officer R ebecca Tangum a’s written statem ent regarding Montalvo; and (4) Sergeant Johnny
Repka’s written statem ent regarding Montalvo.

                                                          2
        The trial court held a hearing on the County’s motion on September 24, 2007.

Following the hearing, the trial court issued an order which: (1) granted summary judgment

on Montalvo’s sexual harassment and gender discrimination claims; (2) sustained the

County’s objections to Montalvo’s affidavit on the bases that it contained hearsay and

conclusory statements; (3) overruled Montalvo’s objections to Sheriff Petropoulos’s

affidavit; and (4) granted summary judgment as to Montalvo’s remaining claim of

retaliation.

        At the hearing, Montalvo’s counsel advised the trial court that Montalvo “agreed” that

summary judgment was proper as to her claims for sexual harassment and gender

discrimination. The following statement was made by Montalvo’s counsel:

        Your Honor, we agreed in terms of the initial discrimination claim, the
        gender-based discrimination, and with regard to the sexual harassment
        claim, that summary judgment should be granted as to those claims, as we
        told them that in mediation. I just didn’t make it clear in our response. So
        that the sole argument that we have here now is the harassment and
        retaliation related to the filing of the claim, which would include the wrongful
        discharge, and that would simplify everything.

The trial court then granted summary judgment as to Montalvo’s gender discrimination and

sexual harassment claims, and stated it would hear the County’s argument regarding

Montalvo’s retaliation claim.

        We therefore conclude that Montalvo waived any challenge to the order granting

summary judgment as to her sexual harassment and gender discrimination claims.4

Accordingly, we review only whether the trial court erred in sustaining the County’s

objections to Montalvo’s affidavit and in granting the County’s no-evidence motion for

summary judgment as to her retaliation claim.

        4
          See Bluestar Energy, Inc. v. Murphy, 205 S.W .3d 96, 101 (Tex. App.–Eastland 2006, pet. denied)
(noting that a party m ay not invite error by asking som ething of a court and then com plain that the court erred
in granting the request).

                                                        3
                                II. Standards of Review and Applicable Law

A. Summary Judgment

           Whether a motion for summary judgment was brought on no-evidence or traditional

grounds determines our standard of review.5                         A no-evidence summary judgment is

equivalent to a pre-trial directed verdict, so we apply the same legal sufficiency standard

of review.6 We review a no-evidence summary judgment for evidence that would enable

reasonable and fair-minded jurors to differ in their conclusions.7 We “examine the entire

record in the light most favorable to the non[-]movant, indulging every reasonable inference

and resolving any doubts against the motion.”8

           A no-evidence motion for summary judgment must be granted if: (1) the moving

party asserts that there is no evidence of one or more specified elements of a claim or

defense on which the adverse party would have the burden of proof at trial; and (2) the

respondent produces no summary judgment evidence raising a genuine issue of material

fact on those elements.9 The burden of producing evidence is entirely on the non-movant;

the movant has no burden to attach any evidence to the motion.10 We may not consider

any evidence presented by the movant unless it creates a fact question.11


           5
        See T EX . R. C IV . P. 166a(c), (i); see also Ortega v. City Nat’l Bank, 97 S.W .3d 765, 771 (Tex.
App.–Corpus Christi 2003, no pet.).

           6
               Mack Trucks, Inc. v. Tamez, 206 S.W .3d 572, 581-82 (Tex. 2006); Ortega, 97 S.W .3d at 772.

           7
         Hamilton v. W ilson, 249 S.W .3d 425, 426 (Tex. 2008) (citing City of Keller v. W ilson, 168 S.W .3d
802, 822 (Tex. 2005)).

           8
               Sudan v. Sudan, 199 S.W .3d 291, 292 (Tex. 2006) (per curiam ) (quoting City of Keller, 168 S.W .3d
at 823).

           9
               See T EX . R. C IV . P. 166a(i); Sudan, 199 S.W .3d at 292.

           10
                See T EX . R. C IV . P. 166a(i).

           11
                Binur v. Jacobo, 135 S.W .3d 646, 651 (Tex. 2004).

                                                             4
B. Retaliation

        Section 21.055 of the labor code establishes that an employer commits an unlawful

employment practice if the employer retaliates or discriminates against a person who files

a charge of discrimination.12 “The elements of a retaliation claim are (1) the employee

engaged in a protected activity, (2) the employer took action against the employee, and (3)

a causal connection between the employee's protected activity and the adverse

employment decision.”13 This Court has recognized the Fifth Circuit’s articulation of the

standard for retaliation claims:

        The causal link required by the third prong does not rise to the level of a “but
        for” standard at the prima facie stage. “Close timing between an employee’s
        protected activity and an adverse action against [her] may provide the
        ‘connection’ required to make out a prima facie case of retaliation.” Swanson
        v. Gen. Servs. Admin., 110 F.3d 1180, 1188 (5th Cir. 1997); see, e.g.,
        Richard v. Cingular Wireless LLC, 233 F. App'x 334, 338 (5th Cir. 2007)
        (concluding that two and one half months is a short enough time period to
        support an inference of a causal link); Raggs v. Miss. Power & Light Co., 278
        F.3d 463, 471-72 (5th Cir. 2002) (holding that a five-month lapse, by itself,
        does not support an inference of a causal link).

        Assuming the plaintiff establishes a prima facie case, then the burden shifts
        to the employer to articulate a legitimate, nondiscriminatory reason for its
        actions. If the employer articulates a legitimate nondiscriminatory reason,
        then “any presumption of discrimination raised by the plaintiff's prima facie
        case vanishes.”

        In the final stage of the McDonnell framework,[14] the plaintiff bears the
        ultimate burden of demonstrating a genuine issue of material fact as to
        whether the employer's proffered reason is a pretext for a retaliatory
        purpose. The plaintiff must show that “the adverse employment action taken


        12
             See T EX . L ABO R C OD E A N N . § 21.055 (Vernon 2006).

        13
           Cox v. W aste Mgmt.of Tex., Inc., 300 S.W .3d 424, 437 (Tex. App.–Fort W orth 2009, pet. denied)
(quoting Niu v. Revcor Molded Prods. Co., 206 S.W .3d 723, 730 (Tex. App.–Fort W orth 2006, no pet.); see
also Villarreal v. D el Mar College, No. 13-07-00119-CV, 2009 Tex. App. LEXIS 2052, at *15 (Tex.
App.–Corpus Christi 2009, pet. denied) (m em . op.) (citing McCullough v. Houston County, Tex., 297 F. App’x
282, 288-89 (5th Circ. 2008)).

        14
             See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

                                                           5
       against the plaintiff would not have occurred ‘but for’ her protected conduct.”
       This court has expressly rejected the notion that temporal proximity standing
       alone is sufficient to establish but-for causation.[15]

                                           III. Analysis

A. Objections to Montalvo’s Affidavit

       In her fourth issue, Montalvo contends the trial court erred in sustaining the County’s

objections to her affidavit. The County filed written objections to Montalvo’s affidavit,

specifically objecting to certain statements as hearsay and to others as vague and

conclusory. The County objected to the following statements on the basis of hearsay: (1)

“After [Sheriff] Petropolous was elected, I had learned that he had stated that he did not

want a female running his jail”; (2) “After being demoted, I was told by other individuals the

Sheriff had stated he did not want a female running his jail”; and (3) “Arcand had written

me up and suspended me without proper reason, as he later admitted.” As to the last

statement, the County notes that insofar as the statement suggests that Arcand “admitted”

something to Montalvo, it conflicts with Montalvo’s earlier statement that Arcand had

stopped talking to her. However, insofar as the statement suggests that Arcand “admitted”

something to a third party, any such “admission” is hearsay.

       The County also objected to the following statements as vague and/or conclusory:

(1) “After I filed my complaint, everyone, including the Sheriff and Arcand[,] stopped talking

to me. The Sheriff and Arcand changed their attitudes towards me and displayed a

negative attitude”; and (2) “I believe that I suffered retaliation based on my filing my EEOC

charge and complaint and was eventually terminated based on my charge and




       15
           Villarreal, 2009 Tex. App. LEXIS 2052, at *16-17 (quoting McCullough, 297 F. App’x at 288-89
(som e internal citations om itted)).

                                                  6
complaint.”16

        With regard to the County’s hearsay objections, Montalvo asserts in her brief that

the challenged statements are “admissible as statements against interest and admissions

by a party opponent, which are exceptions to the hearsay rule.”

        At the summary judgment hearing, after hearing arguments of counsel, the trial court

announced: “I’m going to disregard the statements in the first paragraph, [and] last

paragraph that are based on hearsay and that are conclusory, and I will consider the rest

of what the affidavit has to say.” Thus, the trial court did not consider the first and second

statements that the County objected to on the basis of hearsay, but did consider the third

statement. As to the statements the County objected to on the basis that they were vague

and/or conclusory, the trial court considered the first statement, but did not consider the

second. We therefore address whether the trial court erred in refusing to consider the first

and second statements challenged on the basis of hearsay and the second statement

challenged as vague and/or conclusory.

        We first address the trial court’s refusal to consider the statements challenged on

the basis of hearsay. The relevant portion of the first hearsay-challenged statement is, “I

had learned that [Sheriff Petropolous] had stated . . . .” The relevant portion of the second

hearsay-challenged statement is “I was told by other individuals the Sheriff had stated . .

. .”   The County argues that when Montalvo’s affidavit “refers to a third party who

supposedly heard the Sheriff say something[,] it becomes hearsay within hearsay and the

        16
           W e note that the County also objected to Montalvo’s purported statem ent that “she was told m atters
regarding her term ination.” W e assum e the County is referring to the following statem ents in Montalvo’s
affidavit:

        Eventually, I was told I was term inated based on an investigation that was not even
        com pleted until the day after I was term inated. I was told the investigation was the basis for
        m y term ination when som e of the people who supposedly supplied statem ents for the
        term ination did not m ake the statem ents until the day after I was term inated.

                                                       7
statement against interest and admission exceptions do not apply to the second hearsay.”

        Hearsay within hearsay is admissible “if each part of the combined statements

conforms with an exception to the hearsay rule . . . .”17 Here, with respect to the first

statement, Montalvo does not say that Sheriff Petropolous told her directly what he said.

Rather, she says only that she “learned” from unidentified others what the Sheriff

purportedly said. Thus, without knowing the identity of the declarant, we cannot say that

the first part of the statement qualifies as any exception to the hearsay rule.18 Because not

all levels of hearsay contained within the statement satisfy an exception to the hearsay

rule, we conclude that the trial court did not abuse its discretion in sustaining the County’s

hearsay objection to this statement.

        Similarly, the first level of hearsay in Montalvo’s second statement identifies the

declarants only as “other individuals” who told Montalvo what the Sheriff said. Montalvo

has offered no hearsay exception applicable to these “other individuals.” Thus, we

conclude the trial court did not abuse its discretion in sustaining the County’s hearsay

objection to the second statement.

        In her brief, Montalvo does not address the trial court’s decision to disregard as

conclusory her statement, “I believe that I suffered retaliation based on my filing my EEOC

charge and complaint and was eventually terminated based on my charge and complaint.”

Accordingly, any issue regarding the trial court’s decision to disregard this statement is

inadequately briefed, and Montalvo has waived any error.19 Regardless, we agree with the
            S




        17
            e
            e




                T   EX .   R. E VID . 805; Knox v. Taylor, 992 S.W .2d 40, 64 (Tex. App.–Houston [14th Dist.] 1999,
no pet.).

        18
                                  8
                                  0
                                  5




             See T EX . R. E VID .     .

        19
             See T EX . R. A PP . P. 38.1(i).

                                                            8
trial court that the statement is conclusory. A plaintiff’s subjective belief as to the reason

for her termination is not competent summary judgment evidence.20 We conclude the trial

court did not abuse its discretion in sustaining the County’s objections to Montalvo’s

affidavit. We overrule Montalvo’s fourth issue.

B. No Evidence of Causation in Retaliation Claim

       By her first and second issues, Montalvo contends the trial court erred in granting

summary judgment as to her claim of retaliation. As noted, the County asserted that

Montalvo had no evidence of a causal connection between her filing a charge of

discrimination and her termination. We agree.

       In her response to the County’s motion, Montalvo devoted a single sentence to the

causation element: “Plaintiff has met her burden in establishing a causal connection.”

Montalvo does not explain on appeal how this assertion relates to any of her claims, nor

does she provide any argument or cite any evidence or authority.21

       Nonetheless, we have reviewed the evidence attached to Montalvo’s response: her

own affidavit and the depositions of Officers Arcand, Repka, Silvas, and Tanguma. In her

affidavit, Montalvo notes that “everyone” (presumably, in the Sheriff’s Department) was

informed that she had filed a charge of discrimination. As noted above, the trial court

rejected the County’s objection that the following statement was “vague, general, and

conclusory”: “After I filed my complaint, everyone, including the Sheriff and Arcand[,]

stopped talking to me. The Sheriff and Arcand changed their attitudes towards me and

displayed a negative attitude.”                Without addressing whether the trial court erred in



       20
            See M.D. Anderson Hosp. & Tumor Inst. v. W illrich, 28 S.W .3d 22, 25 (Tex. 2000).

       21
            See T EX . R. A PP . P. 38.1(i).

                                                       9
overruling the County’s objection, and without addressing whether the alleged “negative

attitude” displayed toward Montalvo constituted an adverse employment action, we hold

that neither this statement nor any other statement in Montalvo’s affidavit22 established a

causal link between filing her charge of discrimination and her termination.23

        Officer Arcand’s deposition establishes that he knew of Montalvo filing a charge of

discrimination because the Sheriff told him about it. Arcand also stated in his deposition

that in December 2005, he recommended to the Sheriff that Montalvo be terminated

because of complaints he had received about her from other officers. Officer Tanguma

and other officers reported that Montalvo had said she “was not going to do what was

asked of her” and “wasn’t going to listen” to her fellow officers.

        Officer Repka’s deposition states that he did not know Montalvo had filed a charge

of discrimination. Officer Silvas’s deposition states that he was unaware of Montalvo’s

charge of discrimination in July 2005, but that he “eventually” heard about it. Silvas also

discussed his written statement, in which he noted that Montalvo’s conduct was causing

a security risk due to her reported statements that she would not cooperate with or obey

her fellow officers. Officer Tanguma’s deposition states that she knew of Montalvo filing

a charge of discrimination. She also discussed her written statement, in which she

described Montalvo telling her that she (Montalvo) would never help Officer Tanguma if

asked to do so, and also would never help Officers Arcand or Repka if asked to do so.



        22
           In separate paragraphs, without explaining when any of the alleged events occurred, Montalvo also
com plained that she was “written up,” “suspended without pay,” was not offered a position as corporal, and
finally, was term inated based on an investigation which she contends was pretextual.

        23
           See Raggs v. Miss. Power & Light Co., 278 F.3d 463, 471-72 (5th Cir. 2002) (holding that a
five-m onth lapse, by itself, between em ployee’s protected activity and adverse em ploym ent action does not
support an inference of a causal link).

                                                    10
         We conclude that the officers’ deposition testimony constituted no evidence of any

causal link between Montalvo’s filing of her charge of discrimination and her termination.

Moreover, we conclude that even if Montalvo had established prima facie causation, her

own evidence established that the County offered legitimate non-retaliatory reasons for its

decision to terminate her.24 Montalvo argues that the County’s “investigation” of her, in

which Officer Arcand questioned other officers about her, is a “pretense” because some

of the officers’ written statements were submitted the day after she was terminated. We

disagree.         The fact that the officers’ written statements documenting the reported

information were dated the day after Montalvo’s termination does not establish that the

County’s legitimate, non-retaliatory reason for terminating Montalvo was pretextual. We

hold that the trial court did not err in granting the County’s motion for summary judgment

on no-evidence grounds with regard to Montalvo’s retaliation claim.                We overrule

Montalvo’s first and second issues.

                                              IV. Conclusion

         We need not address Montalvo’s remaining issue, as it is not dispositive to this

appeal.25 We affirm the trial court’s order granting summary judgment in the County’s

favor.


                                                               _______________________________
                                                               LINDA R. YAÑEZ,
                                                               Justice

Delivered and filed the
29th day of April, 2010.


         24
              See Villarreal, 2009 Tex. App. LEXIS 2052, at *16-17.

         25
              See T EX . R. A PP . P. 47.1.

                                                      11
