                                  COURT OF APPEALS
                               EIGHTH DISTRICT OF TEXAS
                                    EL PASO, TEXAS


                                              §
 VASHTI E. MADDEN,                                            No. 08-13-00169-CV
                                              §
                  Appellant,                                    Appeal from the
                                              §
 v.                                                            34th District Court
                                              §
 EL PASO INDEPENDENT SCHOOL                                 of El Paso County, Texas
 DISTRICT,                                    §
                                                            (TC# 2012-DCV01483)
                  Appellee.                   §

                                       OPINION

       Appellant Vashti Madden filed suit alleging that her employer, the El Paso Independent

School District, discriminated against her on the basis of her national origin and gender, then

retaliated against her for filing a complaint with the Equal Employment Opportunity

Commission. The trial court rendered summary judgment in favor of the District. We affirm

                                     BACKGROUND
                                   Factual Background
                         Appellant’s Employment with the District

       Appellant began her employment as a teacher with the District in 2003, and was

transferred to Irvin High School in 2005, where she taught mathematics. Per the terms of her

contract, “[t]he District shall have the right to assign or reassign the Employee to positions,

duties, or additional duties and to make changes in responsibilities, work, transfers, or
classification at any time during the contract term.” In 2008, Appellant became certified to teach

Spanish. Appellant was the only teacher in the math department who was also certified in

Spanish.

                                        The 2010-2011 School Year

        Appellant alleged that in June 2010, Marina Rocha, assistant principal of curriculum and

instruction, offered to let Appellant keep her math stipend in exchange for teaching a

combination of three Spanish and three math classes, rather than only math classes, during the

upcoming school year. Appellant accepted that arrangement.

        In August 2010, Luis Loya became the new principal and began making personnel

changes. According to Appellant’s affidavit, one math teacher left the District, and Loya hired

six new math teachers, two of whom transferred to different schools the following school year.

One of the teachers was a new math coach to replace a previous coach who was transitioned

back into the classroom prior to her retirement. Appellant alleged that Loya also terminated two

Spanish teachers in May 2011. During this time, in May and June 2011, Appellant asked Loya

to write her a letter of recommendation. He declined, saying he did not know her well enough

and did not know what to say.

        Appellant alleged that when the ex-math coach who had been transitioned back into the

classroom retired in December 2011, Loya replaced her with another, younger math teacher who

was not certified in January 2012, and that overall, three of the teachers were not certified to

teach high school math.1 Appellant also alleged that although she had ten years’ experience

teaching high school math and a bachelor’s degree in mechanical engineering, Loya assigned


1
  Appellant does not name those teachers in her affidavit. However, she did attach State Board of Education
licensing information for five teachers as part of the summary judgment record. Three of those teachers are male.
The licensing information shows that as of January 2012, all three male teachers had either probationary or standard
licenses allowing them to teach mathematics for grades 8 through 12.

                                                         2
higher-level math classes to younger male teachers instead of her.

       On April 6, 2011, Appellant received a new salary card electronically with the options

“agree” and “do not agree.” She signed the card, and the next day received notification that she

had been changed from math to Spanish. On May 16, 2011, at the close of the 2010-2011 school

year, Associate Superintendent Robert Almanzan signed Appellant’s assignment letter for the

upcoming school year. Appellant’s assignment is listed as “High School Spanish Combination.”

The letter also states that “your assignment may change within your school as the schedule is

reviewed and developed. If any of these changes occur, you will be notified of your assignment

sometime during the summer.”

                                  The 2011-2012 School Year

       That summer, the school notified Appellant that she would be teaching six Spanish

classes and not the mixed Spanish and math course-load she had originally been assigned.

Appellant disputed her assignment and began contacting various school officials. On June 14,

2011, a representative from the El Paso Federation of Teachers and Support Personnel e-mailed

Jeannie Meza-Chavez, the District’s human resource director of secondary personnel and

recruiting, on Appellant’s behalf, asking if Appellant needed to sign anything relinquishing her

math stipend since she would no longer be teaching math.             Meza-Chavez responded that

Appellant would be teaching three math and three Spanish courses for the upcoming school year,

and that “[p]aperwork to address this is being filled out [.]” On August 10, 2011, Loya e-mailed

Appellant and stated that she had been assigned to teach Spanish full-time for the school year.

       The school year began on August 22, 2011. Appellant testified in her affidavit that on

that day, she found out she would be teaching five Spanish courses and a geometry course.

Three days later, on August 25, she learned that the geometry class included special education



                                                3
inclusion students. On August 26, Appellant received a revised assignment letter, backdated to

August 22, 2011 and effective April 6, 2011, from Jeannie Meza-Chavez confirming that

Appellant was to teach “HS Math Combo” 2011-2012 school year. Appellant testified that Loya

failed to provide her with professional development, a textbook, or an inclusion teacher for ten

days after school began. The inclusion students were later removed from the class.

        On September 19, 2011, Appellant filed a grievance against Loya, seeking “to

immediately be given the other 3 Math classes promised to her in Ms. Meza-Chavez’s email.”

The grievance was denied September 30, 2011. Appellant alleged that after filing her grievance,

she experienced five walk-throughs from September 28 through October 31 when two other

teachers had one walk-through each in the month of October, and that Appellant ultimately went

through seven walk-throughs in five months.

        Appellant filed a discrimination complaint with the EEOC on November 22, 2012. Loya

performed a walk-through on February 28, 20122 that Appellant characterized as negative. She

alleged that this occurred on the same day the District’s school board was scheduled to talk about

her pending litigation in executive session.

        At deposition, Appellant conceded that no one in the administration had ever made any

racially or sexually discriminatory comments toward her.

                                          Procedural Background

        Appellant filed suit against the District under the Texas Commission on Human Rights

Act (TCHRA).          In her petition, Appellant alleged that by reassigning her from purely

mathematics classes to a combination of mostly Spanish classes and one mathematics class

without her consent, delaying full payment of her math stipend, and conducting “excessive”


2
  In her affidavit, Appellant stated the walk-through happened on February 28, 2011. However, an email confirming
the walk-through lists the evaluation date as February 28, 2012.

                                                       4
walk-throughs, the District discriminated against her because she was a woman and because she

was of Mexican origin and then retaliated against her for opposing discriminatory treatment.

           The District answered and moved for traditional summary judgment,3 contending that

Madden failed to raise fact issues establishing discrimination or retaliation under the McDonnell

Douglas4 pretextual employment action framework. The trial court granted summary judgment

for the District. This appeal followed.

                                                 DISCUSSION

           In one issue, Appellant contends the trial court erred in rendering summary judgment

against her because she raised preclusive fact issues on sex and national origin discrimination

and on retaliation.5 We disagree.

                                              Standard of Review

           We review summary judgment grants de novo. Merriman v. XTO Energy, Inc., 407

S.W.3d 244, 248 (Tex. 2013). On traditional summary judgment review, we determine whether

the movant has established that no genuine issue of material fact exists and that she is entitled to

judgment as a matter of law. TEX.R.CIV.P. 166a(c). If so, the movant is entitled to summary

judgment. Id.

                                                    Analysis

           “The TCHRA prohibits employment discrimination with respect to compensation or the


3
  The District characterized its motion for summary judgment as a hybrid motion for summary judgment raising
traditional and no-evidence grounds. Although the issue is not dispositive, we construe the District’s summary
judgment motion as presenting only traditional grounds because the alternative no-evidence grounds presented in the
motion were too general to meet the TEX.R.CIV.P. 166a standard.
4
    McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973).
5
  Appellant also raises an age discrimination argument in her brief. However, because age discrimination was not
pleaded in the trial court, and because Appellant does not make clear how we may otherwise address this unpleaded
claim, that claim cannot form the basis of reversal on appeal, and we do not address any age discrimination points
Appellant raises here.

                                                         5
terms, conditions, or privileges of employment because of race, color, disability, religion, sex,

national origin, or age.” Bowen v. El Paso Elec. Co., 49 S.W.3d 902, 908 (Tex.App.--El Paso

2001, pet. denied). In interpreting the TCHRA, we may resort to federal court interpretations of

analogous federal anti-discrimination laws. Id. Here, Appellant presents both discrimination

and retaliation claims. We address her claims in turn by type.

                                             1.
                           National Origin and Sex Discrimination

       Appellant presents discrimination claims on two separate grounds: national origin and

sex.

       In a case such as this where there is no direct evidence of discrimination, we employ the

three-step McDonnell Douglas discrimination pretext test.        See Quantum Chem. Corp. v.

Toennies, 47 S.W.3d 473, 477 (Tex. 2001). First, the plaintiff must establish a prima facie case

of discrimination. Id. A plaintiff establishes a prima facie discrimination case by showing she

“(1) is a member of a protected class; (2) was qualified for the position; (3) was subject to an

adverse employment action; and (4) was replaced by someone outside the protected class, or, in

the case of disparate treatment, shows that other similarly situated employees were treated more

favorably.” Bryan v. McKinsey & Co., Inc., 375 F.3d 358, 360 (5th Cir. 2004); see also Bowen,

49 S.W.3d at 908. If the plaintiff overcomes this hurdle, discrimination is presumed, and the

burden shifts to her employer to “articulate some legitimate, nondiscriminatory reason for the

employee’s rejection.” Quantum Chem. Corp., 47 S.W.3d at 477. Once an employer offers an

ostensibly legitimate reason for their actions, the presumption disappears, and “[t]he burden then

shifts back to the complainant to show that the employer’s stated reason was a pretext for

discrimination.” Id. “A plaintiff can avoid summary judgment if the evidence taken as a whole

creates a fact issue as to whether the employer’s stated reason was not what actually motivated

                                                6
the employer and creates a reasonable inference that discriminatory intent was a determinative

factor in the adverse employment decision.” [Emphasis in original]. Bedgood v. Tex. Educ.

Agency, No. 03–14–00030–CV, 2015 WL 739635, at *2 (Tex.App.--Austin Feb. 19, 2015, pet.

denied)(mem. op.).

        Neither party disputes that Appellant is part of two protected classes based on sex and

national origin, nor do they dispute she was qualified for her position. Assuming without

deciding that Appellant passed the prima facie threshold by showing disparate treatment and

establishing that class reassignment from math to Spanish, a later-remediated reduction in a math

stipend, and multiple walk-throughs constituted adverse employment actions,6 the record does

not show that Loya or other Irvin High administrators undertook these actions against Appellant

because she was Hispanic or because she was a woman. The District provided a legitimate

reason for the administrators’ decisions, and Appellant failed to raise a fact issue suggesting the

reason was pretextual.

        “To establish a fact question on the issue of pretext, the non-movant must present

evidence indicating that the non-discriminatory reason given by the employer is false or not

credible, and that the real reason for the employment action was unlawful discrimination.”

Elgaghil v. Tarrant Cnty. Jr. Coll., 45 S.W.3d 133, 140 (Tex.App.--Fort Worth 2000, pet.

denied).

        Appellant asks us to infer national origin discrimination based on the fact that she is

Hispanic and she was asked to teach a Spanish class. However, Appellant is certified to teach

Spanish, and her contract states that the District may reassign her at any time. The evidence also


6
  Cf. Burlington Indust., Inc. v. Ellerth, 524 U.S. 742, 761-62, 118 S.Ct. 2257, 2268-69, 141 L.Ed.2d 633,
(1998)(noting in federal context that a “tangible employment action [that] constitutes a significant change in
employment status,” including “reassignment with significantly different responsibilities[] or a decision causing a
significant change in benefits” can constitute an adverse employment decision under certain circumstances).

                                                        7
shows that two Spanish teachers left Irvin High School, and that of all the math teachers at the

school, Appellant was the only one also certified in Spanish. The District’s claim that, under the

contract, it reassigned Appellant to fill vacant Spanish positions given her certification in the

language is credible.      In light of these factors, Appellant’s bare assertion that the District

discriminated against her because she was Hispanic by assigning her to teach mostly Spanish

classes is mere conjecture. Appellant raised no fact issue to defeat summary judgment on her

national origin discrimination claim.

       Likewise, Appellant cannot raise an ultimate fact issue on sex discrimination. Appellant

testified in her affidavit that Loya hired three new, unlicensed male math teachers and gave them

advanced math courses while transferring her to teach Spanish despite her seniority and degree in

mechanical engineering. But Appellant’s claim that the male teachers were not licensed is at

best unsupported by the record and at worst belied by it: Appellant’s own summary judgment

evidence shows licensing information for three unidentified male teachers who had either

probationary or standard licenses to teach high school mathematics.          Further, the District

provided a credible explanation for Loya’s decision to have Appellant teach five Spanish courses

and one geometry course—Appellant was licensed in Spanish, there were vacant positions in the

Spanish department, and Appellant had already been teaching three Spanish classes the previous

school year. As with her national origin discrimination claim, Appellant has failed to raise a fact

issue showing that this explanation was not worthy of credence and that Loya’s true intent was

sexually discriminatory.

       Appellant’s “subjective belief” that the District’s “evidence is false and its reasons

pretextual, sincere as that belief may be, does not create a fact issue to defeat summary

judgment.” Carlton v. Hous. Cmty. Coll., No. 01-11-00249-CV, 2012 WL 3628890, at *14



                                                  8
(Tex.App.--Houston [1st Dist.] Aug. 23, 2012, no pet.)(mem. op.). Absent evidence that goes

beyond bare assertions, we cannot reverse summary judgment and remand for trial on

discrimination.

                                                 2.
                                             Retaliation

        Finally, we address Appellant’s retaliation claim.

        “An employer also commits an unlawful employment practice if it retaliates or

discriminates against a person who, pursuant to the TCHRA, (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.” Bedgood v. Tex. Educ. Agency, No.

03–14–00030–CV, 2015 WL 739635, at *2 (Tex.App.--Austin Feb. 19, 2015, pet. denied)(mem.

op.)(citing TEX.LAB.CODE ANN. § 21.055 (West 2015)). To establish a prima facie case for

retaliation, the employee must show “(1) he engaged in a protected activity, (2) an adverse

employment action occurred, and (3) a causal link existed 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). “An adverse employment action short of discharge will support a

claim for retaliation if a reasonable employee would have found the challenged action materially

adverse[.]” Niu v. Revcor Molded Prods. Co., 206 S.W.3d 723, 731 (Tex.App.--Fort Worth

2006, no pet.). A materially adverse action is one that would “dissuade a reasonable worker

from making or supporting a charge of discrimination.” El Paso Comm. Coll. v. Lawler, 349

S.W.3d 81, 88 (Tex.App.--El Paso 2010, pet. denied). The materially adverse standard ensures

that only significant harms “is judged from the standpoint of a reasonable employee” can be

redressed in court. Niu, 206 S.W.3d at 731. The standard is also general enough to provide

flexibility in assessing harm because “context matters” and “the significance of any given act of

                                                   9
retaliation will often depend upon the particular circumstances[.]” Id.

       It is undisputed that Appellant engaged in the protected activity of filing an EEOC

complaint. However, as the District points out, the only alleged negative employment action that

Appellant alleged occurred after her filing of an EEOC charge on November 22, 2011, were two

walk-throughs occurring on December 7, 2011, and February 2012. Those two walk-throughs

did not constitute materially adverse employment actions as contemplated by the TCHRA, as the

District’s summary judgment evidence shows that walk-throughs are required under state law,

and that other foreign language teachers were also subject to two walk-throughs in one month.

Based on the evidence before us, a reasonable employee might assign significance to a walk-

through, but not consider it materially adverse to the point of dissuading a complaint. Cf.

Lawler, 349 S.W.3d at 88. Even if the walk-throughs did rise to the level of materially adverse

employment actions, Appellant cannot raise any non-speculative evidence linking the walk-

throughs to her EEOC complaint. Again, the District is required to perform walk-throughs, and

the number of post-complaint walk-through Appellant experienced was no higher than those of

other foreign language instructors.

       Appellant cannot raise a fact issue on retaliation.

                                         CONCLUSION

       Issue One is overruled. The judgment of the trial court is affirmed.



July 22, 2015
                                              YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rodriguez, J., and Larsen, Senior Judge
Larsen, Senior Judge (Sitting by Assignment)




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