
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-05-00264-CV


Dalia Martinez, Appellant

v.

Daughters of Charity Health Services d/b/a Seton Medical Center, Appellee




FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT
NO. GN204497, HONORABLE GISELA D. TRIANA, JUDGE PRESIDING


M E M O R A N D U M   O P I N I O N


		Dalia Martinez appeals the district court's granting of Daughters of Charity Health
Services's ("Seton's") (1) motion for a no-evidence summary judgment on Martinez's retaliation claim. 
See Tex. Lab. Code Ann. § 21.055 (West 2006) (prohibiting employer from retaliating against
employee who, pursuant to Texas Commission on Human Rights Act, opposes discriminatory
practices, makes or files a charge, files a complaint, or testifies, assists, or participates in
investigation, proceeding, or hearing).  In three issues, Martinez contends that the district court erred
by (1) overruling her objection to Seton's untimely introduction of summary judgment evidence, (2)
holding that her evidence failed to establish a prima facie case of retaliation, and (3) holding that she
failed to demonstrate a genuine issue of material fact regarding whether she was constructively
discharged by Seton.  Because we hold that Martinez did not present any competent summary
judgment evidence that raised a genuine issue of material fact as to whether she engaged in a
protected activity, an essential element of a retaliation claim, we affirm the district court's judgment.

BACKGROUND
		Martinez began working at Seton as an admissions counselor in 1996.  In July 2001,
Elizabeth Garcia-Salcedo became Martinez's direct supervisor.  At that time, Martinez was working
as a financial counselor.  Over the next several months, Martinez complained to Robert Reed, the
Director of Admissions at Seton, and to Seton's human resources department that Garcia-Salcedo
and Linda Ytuarte, Garcia-Salcedo's supervisor, had created a hostile work environment, repeatedly
harassed Martinez and other employees, and threatened Martinez's employment.  On February 8,
2002, Martinez resigned.
		In December 2002, Martinez sued Seton alleging that she was constructively
discharged from her position as a financial counselor as a result of illegal retaliation by Garcia-Salcedo and Ytuarte.  In her amended petition, Martinez claimed, "The direct cause of the
constructive termination was the extremely hostile and, in fact, illegal employment practices engaged
in by supervisors Linda Ytuarte and Elizabeth Garcia-Salcedo."  During her August 26, 2003
deposition, Martinez testified that the harassment began in August 2001 and described several
incidents that she considered to be "illegal" acts of harassment.  The first incident involved Ytuarte
calling Martinez into her office and questioning her about why she appeared "sluggish" and "lax." 
Martinez admitted that she had been suffering from some medical problems that caused her to walk
slowly, but stated that her pain had not impaired her ability to perform at work.  Martinez e-mailed
Reed to complain that Ytuarte was inappropriately labeling her and that she feared Ytuarte may be
writing her up.  Martinez also noted several occasions on which either Garcia-Salcedo or Ytuarte
yelled at her, threw files at her, and reminded her that they had the authority to fire any employee at
any time.  Finally, Martinez testified that she was reprimanded for comforting a co-worker who
had just been fired. 
		On December 12, 2001, Martinez e-mailed her human resources representative and
the human resources site director to complain about what she described as a "major problem in the
leadership of the Admissions Department at Seton Medical Center of which upper management has
decided to ignore and look the other way, as long as they get the results they hope to achieve."  In
this e-mail Martinez also addressed a number of incidents that she characterized as "illegal
employment practices," one of which occurred shortly after Thanksgiving 2001.  Ytuarte had been
informed that some of the employees had closed down Seton's main admissions area early on the
day after Thanksgiving.  Ytuarte called a meeting at which she reprimanded Martinez and other
employees.  Martinez considered this to be unprofessional and abusive because the employees were
not given the opportunity to defend themselves.  Similarly, Martinez discussed a meeting during
which Garcia-Salcedo held her hand in front of an employee's face to keep them from talking during
the meeting.  Martinez stated that this type of humiliating behavior was commonplace.  
		In January 2002, Martinez became ill after an argument with Garcia-Salcedo. 
Martinez testified that, "When I went to [my physician], and I was sick, I was throwing up, and I was
very nervous.  I told her I couldn't sleep.  I was crying a lot.  You know, I was there with her, crying,
and she told me that day, you need to quit that job.  It's making you very ill, and you need to quit." 
Martinez's doctor also informed her that she was pregnant.  Shortly thereafter, Martinez resigned
from Seton.  Martinez testified further that she and her husband "couldn't trust that Elizabeth would
stop harassing me, and we didn't want to risk that child being lost, so I quit."  In addition, Martinez
e-mailed several of her co-workers on her last day at Seton and stated that she was leaving because
she found another job.  However, Martinez also testified that Garcia-Salcedo was the sole source of
stress for her at Seton and that she would not have left if Garcia-Salcedo had changed her behavior.
		In April 2002, Martinez filed a complaint with the Texas Commission on Human
Rights.  In her complaint, she alleged:

On or about July 2001, Linda Ytuarte and Elizabeth Garcia-Salcedo became
supervisors.  Immediately I began reporting instances of hostile environment and
harassment which were being forced on the employees who had faithfully served
Seton for decades were in turn reported to their supervisor, Robert Reed.  I continued
reporting the increasingly abusive treatment of employees.


Martinez's complaint also stated:

I was subjected to hostile, retaliatory and aggressive treatment by supervisors,
Elizabeth Garcia-Salcedo and Linda Ytuarte.  Human Resources and management
accepted and acquiesced to the discriminatory and retaliatory actions of my employer. 
I complained of the hostile working environment and the damages it was causing me
to suffer, including mental anguish, physical damages and stress which required
medical treatment.  I was constructively terminated in February 2002.  Similarly
situated employees were not subjected to the same hostile and aggressive treatment. 


		On February 28, 2005, Seton filed a no-evidence motion for summary judgment. 
Seton insisted that Martinez had presented no evidence of any of the essential elements of a
retaliation claim.  On March 17, Martinez filed a response to Seton's motion to which she attached
excerpted portions of her August 26, 2003 deposition, a copy of her complaint filed with the Texas
Commission on Human Rights, and an affidavit. (2)  In her affidavit, Martinez asserted:

[O]n or about August 2001, Elizabeth Garcia-Salcedo, made a comment to me
claiming "it was time for those people to leave Seton."  This statement was made
while I was researching an account for errors and was directed to the older employees
in my department.  In September of 2001, I reported to Elizabeth Garcia-Salcedo's
supervisor, Robert Reed, about the comments made by Elizabeth Garcia-Salcedo, and
that I felt my supervisors Elizabeth Garcia-Salcedo and Linda Ytuarte were targeting
older employees with hostile treatment and harassment in order to get rid of them. 
After which, my supervisors Elizabeth Garcia-Salcedo and Linda Ytuarte began
harassing me.


Martinez also stated in the affidavit that "On February 7, 2002, I resigned from my job against my
wishes and in compliance with my physician's advice and shortly thereafter, discovered that I had
suffered a miscarriage."  Martinez argued that the attached evidence created an issue of material fact
on each element of her retaliation claim.  
		Seton replied to Martinez's response on March 24.  Seton maintained that Martinez
had failed to produce any evidence that she had engaged in a protected activity or had suffered an
adverse employment action as a result.  Additionally, Seton objected to portions of Martinez's
affidavit based on its contention that the affidavit contained inadmissible hearsay. (3)  That day, the
district court held a hearing on the motion.  At the hearing, Seton argued that the affidavit was self-serving and could not create a genuine issue of material fact as to whether Martinez had engaged in
a protected activity when viewed alongside her prior deposition testimony.  Without stating the basis
for its decision, the district court granted Seton's motion and entered a take-nothing judgment in
Seton's favor.  This appeal followed.

STANDARD OF REVIEW
		We review de novo the district court's ruling on a motion for summary judgment. 
Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003).  A no-evidence
motion for summary judgment must be granted if, after an adequate time for discovery, (1) the
moving party asserts that there is no evidence of one or more essential elements of a claim or defense
on which an adverse party would have the burden of proof at trial, and (2) the nonmovant fails to
produce more than a scintilla of summary judgment evidence raising a genuine issue of material fact
on those elements.  Tex. R. Civ. P. 166a(i).  In reviewing a no-evidence summary judgment, we
"must examine the entire record in the light most favorable to the nonmovant, indulging every
reasonable inference and resolving any doubts against the motion" to determine whether more than
a scintilla of evidence was presented on the challenged elements of the nonmovant's claim.  City of
Keller v. Wilson, 168 S.W.3d 802, 825 (Tex. 2005); see Perdue v. Patten Corp., 142 S.W.3d
596, 604 (Tex. App.--Austin 2004, no pet.).  Because the summary judgment order does not specify
the ground or grounds on which the district court relied for its ruling, we must affirm the summary
judgment if any summary judgment ground is meritorious.  Browning v. Prostok, 165 S.W.3d
336, 344 (Tex. 2005). 



DISCUSSION

		Martinez argues that the district court erred in granting Seton's no-evidence motion
for summary judgment because her evidence was sufficient to satisfy her burden of establishing a
prima facie case of retaliation and because issues of material fact exist with regard to whether she
was constructively discharged and retaliated against for complaints she made about her supervisors. (4)

Retaliation

		To establish a prima facie case of retaliation, Martinez must show that (1) she
engaged in a protected activity, (2) an adverse employment action occurred, and (3) there was a
causal connection between participation in the protected activity and the adverse employment
decision.  Herbert v. City of Forest Hill, 189 S.W.3d 369, 376 (Tex. App.--Fort Worth 2006,
no pet.).  Section 21.055 of the labor code states that it is "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." 
Tex. Lab. Code Ann. § 21.055 (emphasis added).  The activities listed in section 21.055 are
protected activities for the purpose of establishing a prima facie case of retaliation.  Herbert,
189 S.W.3d at 376-77.  Martinez must establish that, absent her protected activity, the adverse
employment action would not have occurred when it did.  Id. at 377; McMillon v. Texas Dep't
of Ins., 963 S.W.2d 935, 940 (Tex. App.--Austin 1998, no pet.).  That is, Martinez must establish
a "but for" causal nexus between her protected activity and Seton's prohibited conduct.  Herbert,
189 S.W.3d at 377; McMillon, 963 S.W.2d at 940.  Martinez need not establish that the protected
activity was the sole cause of Seton's prohibited conduct.  Herbert, 189 S.W.3d at 377.  If Martinez
establishes a prima facie case of retaliation, the burden shifts to Seton to articulate a non-discriminatory reason for the adverse employment action.  McCoy v. Texas Instruments, Inc.,
183 S.W.3d 548, 555 (Tex. App.--Dallas 2006, no pet.). 
		Martinez argues that her pleadings, deposition testimony, complaint to the Texas
Commission on Human Rights, e-mails to Robert Reed and Seton's human resources department,
and March 17, 2005 affidavit demonstrate that she engaged in a protected activity.  We disagree.
		The record contains no competent summary judgment evidence establishing that
Martinez engaged in a protected activity.  Martinez's complaint to the Texas Commission on Human
Rights does not specifically state that she complained of any discriminatory practices.  It simply
contains vague allegations that she reported an increasingly hostile workplace environment and
harassment by her supervisors.  Because these reports do not relate to a practice prohibited by
chapter 21 of the labor code, they are not considered protected activities under section 21.055.  See
Tex. Lab. Code Ann. § 21.055 (prohibiting retaliation against a person who, "under this chapter,"
opposes a discriminatory practice, files a charge or complaint, or testifies, assists, or participates in
any manner in an investigation, proceeding, or hearing).  Likewise, Martinez's e-mails to Reed and
to Seton's human resources department do not contain any allegation relating to discrimination of
any kind.  These e-mails contain Martinez's concerns regarding what she considered harassment and
illegal actions by her supervisors.  Essentially, Martinez was expressing her frustration with her
supervisors' "unprofessional" behavior and their continuing affronts to her personally and to her job
performance.  Finally, in her August 2003 deposition, Martinez related many of the same incidents
she described in her e-mails.  She did not discuss any illegal discrimination nor did she state that she
had ever complained to anyone at Seton about any act prohibited by chapter 21 of the labor code.
		The only evidence potentially indicating that Martinez engaged in a protected activity
is found in her March 2005 affidavit.  In the affidavit, Martinez claims that she complained to Reed
that Garcia-Salcedo and Ytuarte were targeting older employees in order to "get rid of them." 
Discriminating against an employee based on age is prohibited by chapter 21 of the labor code. 
Tex. Lab. Code Ann. § 21.051 (West 2006).  Consequently, complaining about age discrimination
in one's workplace is a protected activity.  See id. § 21.055.  Martinez was repeatedly asked during
her deposition to explain and discuss any complaint she made or any illegal activity she witnessed
or experienced during the relevant time period.  She never testified about age discrimination and
never mentioned that she had complained to any person at Seton that her supervisors were illegally
targeting older employees.  Furthermore, she affirmatively asserted that the acts she did describe
during her deposition were the only acts that she would have characterized as illegal employment
activities. 
		The statements regarding the alleged illegal age discrimination found in Martinez's
affidavit contradict her earlier deposition testimony.  A party cannot file an affidavit to contradict
her own deposition testimony without any explanation for the change in the testimony.  See
Farroux v. Denny's Rests., Inc., 962 S.W.2d 108, 111 (Tex. App.--Houston [1st Dist.] 1997,
no pet.); see also Goeth v. Craig, Terrill & Hale, LLP, No. 03-03-00125-CV, 2005 Tex. App. LEXIS
2815, at *8 (Tex. App.--Austin April 14, 2005, no pet.) (mem. op.).  If a party's own affidavit
contradicts her earlier testimony, the affidavit must explain the reason for the change.  Farroux,
962 S.W.2d at 111.  Without such an explanation, we assume that the sole purpose of the affidavit
was to avoid summary judgment.  Id.  Accordingly, we hold that Martinez's affidavit presents
nothing more than a "sham" fact issue.  Id.; see also Goeth, 2005 Tex. App. LEXIS 2815, at *8. 
Without the affidavit, there is no evidence that Martinez engaged in protected activity.  Moreover,
there is no evidence to support the inference that her other complaints were sufficient to place Seton
on notice that she was either complaining about or opposing a discriminatory practice.  See
Azubuike v. Fiesta Mart, Inc., 970 S.W.2d 60, 65 (Tex. App.--Houston [14th Dist.] 1998, no pet.)
(holding that employee's letters containing various complaints, but failing to mention any
discriminatory act, were insufficient to place employer on notice that employee was engaging in
protected activity).  Consequently, Martinez failed to produce more than a scintilla of summary
judgment evidence raising a genuine issue of material fact that she engaged in a protected activity. 
See Tex. R. Civ. P. 166a(i).  Because Martinez was required to present some evidence that she
engaged in a protected activity to establish a prima facie case of retaliation, we hold that the district
court did not err in granting Seton's no-evidence summary judgment. (5)

CONCLUSION

		We hold that the record contains no competent summary judgment evidence that
creates a genuine issue of material fact with regard to whether Martinez engaged in a protected
activity.  Therefore, we affirm the district court's judgment granting Seton's no-evidence summary
judgment motion.



						__________________________________________
						W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices B. A. Smith and Pemberton
Affirmed
Filed:   November 30, 2006


1.   Daughters of Charity Health Services does business under the name Seton Medical Center. 
Consequently, we will refer to Daughters of Charity Health Services as Seton.
2.   The affidavit was signed and dated on the same day that Martinez filed her response to
Seton's no-evidence motion for summary judgment, March 17, 2005.
3.   The district court overruled Seton's hearsay objections and admitted the affidavit in its
entirety.
4.   Martinez also argues that the district court erred by considering evidence attached to
Seton's reply to Martinez's response to the summary judgment motion.  Seton's reply was filed on
the day of the hearing with excerpts of Martinez's deposition attached.  The district court accepted
and considered this evidence in granting Seton's summary judgment motion.  We do not need to
decide, however, whether the district court erred in permitting this evidence to be filed on the day
of the hearing, see Tex. R. Civ. P. 166a(c), because Martinez waived any error on this issue.  After
the district court granted summary judgment, Martinez moved for reconsideration and requested
leave to file additional evidence.  The district court granted her leave and accepted her additional
evidence, which consisted of her entire deposition, inclusive of the excerpts that had been submitted
in Seton's reply.  Because Martinez asked the court to admit the same evidence offered by Seton on
the day of the hearing, she cannot now complain that the district court erred by considering such
evidence.
5.   Because we hold that the district court properly granted Seton's no-evidence motion for
summary judgment based on Martinez's failure to raise a genuine issue of material fact on one of
the essential elements of a retaliation claim, we need not address whether she was constructively
terminated by Seton.
