Opinion issued October 15, 2013




                                       In The

                               Court of Appeals
                                      For The

                           First District of Texas
                            ————————————
                               NO. 01-12-00311-CV
                            ———————————
                    RAYMOND MICHAEL LEE, Appellant
                                         V.
             HARRIS COUNTY HOSPITAL DISTRICT, Appellee



                     On Appeal from the 80th District Court
                             Harris County, Texas
                         Trial Court Case No. 1000231


                          MEMORANDUM OPINION

      Appellant, Raymond Michael Lee, sued his former employer, the Harris

County Hospital District (“the District”), for discrimination, retaliation, and aiding

and abetting discrimination under the Texas Commission on Human Rights Act

(“TCHRA”). The trial court dismissed his discrimination and aiding and abetting
claims on the District’s motion for summary judgment, and a jury found in favor of

Lee on the retaliation claim. The trial court subsequently granted the District’s

motion for judgment notwithstanding the verdict (“JNOV”), rendering judgment

that Lee take nothing by his claim. In a single issue, Lee argues that the trial court

erred in granting the District’s JNOV because the evidence was legally sufficient

to establish that he opposed a discriminatory practice, that he filed a complaint, and

that a causal connection existed between his complaint and his termination.

      We affirm.

                                    Background

      Lee, a licensed architect, began working for the District in February 2007 as

a Senior Project Manager. Carl Johnson, the Director of Facilities and Planning,

was Lee’s direct supervisor.      Carl’s supervisor was Ron Johnson, the Vice-

President of Facilities Management.

      In February 2009, Lee, Carl, and Ron were returning from a meeting

together when Ron and Carl discussed “an incident involving two gay [athletes]

that occurred on the stretch of road they were driving on.” Lee alleges that Ron

and Carl “knew at the time of this discussion that [Lee] would find their remarks

offensive because he is gay and they are not.” Lee alleged that he reported to Carl

that he “was extremely offended by the comments” and that he did so “in

accordance with the [District’s] policies and procedures.” Lee further alleged that,


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in response to this report, Carl and Ron “began an aggressive campaign of

intimidation,” advising Lee that his “type” was a “weak link” and that “hiring his

type was the biggest mistake [they] had ever made.”

      In March 2009, Lee was involved in an incident with a co-worker in which

he took a photograph of her bare feet and legs under a table without her

permission. Lee alleged that Carl and Ron used this incident as a pretext for his

ultimate termination in March 2009. Lee sued the District, alleging causes of

action for discrimination, retaliation, and aiding and abetting discrimination.

      The District moved for summary judgment on all of Lee’s claims, arguing

that Lee’s discrimination claims failed as a matter of law because, like Title VII,

the TCHRA does not extend to discrimination based on sexual orientation and

because Lee could not establish a prima facie case for discrimination covered by

the statute. The District also argued that Lee’s retaliation claim failed because he

could not establish the causal link necessary between a protected activity and the

adverse employment action. It further argued that his claim for aiding and abetting

discrimination also failed because Lee had submitted no evidence in support of that

claim. The trial court granted summary judgment in part, dismissing Lee’s claims

for discrimination and aiding and abetting discrimination.          Lee’s claim for

retaliation proceeded to trial before a jury.




                                           3
      At trial, Lee provided evidence of his evaluations during the time he worked

for the District. Carl evaluated Lee in July 2007 and gave him 318 out of 400

possible points. In February 2008, Carl gave Lee 315 out of 400 possible points,

and on January 23, 2009, Carl gave Lee 260 out of 400 points. On February 12,

2009, Carl also gave Lee a “counseling form” providing guidance on areas that Lee

needed to improve.        The form and attached memorandum discussed Lee’s

workload, which Carl categorized as “not excessive,” and methods that Lee could

use to manage his time more effectively and make other improvements in his work.

Carl also informed Lee that failure to improve could eventually result in “demotion

and/or termination.”

      Lee also provided testimony regarding the February 23, 2009 incident.

According to Lee, while he was returning from a meeting with both Carl and Ron,

the group drove over the 610 overpass on Highway 59 and Ron said, “Isn’t this the

place where the football player committed suicide, and when they did the autopsy

they found one dickless and the other with a dick in his mouth?” Carl replied,

“Yeah, someone from the morgue called me about that.” Ron then said, “I didn’t

know he was like that.”

      Lee testified that he felt humiliated and that he “was being targeted,” but he

did not say so to Carl. He testified that Carl and Ron both knew, or should have

known, that he was gay because he had introduced them to his longtime partner at

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a fundraiser. Lee discussed the incident with other employees in the office, one of

whom told him that he needed to report it. Lee decided that, rather than filing a

written report with human resources, he would tape-record a meeting with Carl “so

that [the incident] could be solved and maybe locally and not escalate, and we

could just move on.”

      On March 10, 2009, Carl scheduled a meeting with Lee to discuss Lee’s job

performance relating to an on-going project that Lee was overseeing. At the end of

the meeting, Lee brought the February 23 incident up with Carl. Lee testified:

      I said to Carl, this is very disturbing, and to talk about. And I was
      offended, extremely offended by, you know, the comments. And I
      said, you know, the ballplayers, one of them being dickless and one
      with a dick in his mouth—I was just kind of nervous. I know he
      replied, you need to talk to Ron about it. You need to talk to Ron.

According to the recording made by Lee, the following exchange took place:

      [Lee]:       [I]t’s real disturbing to talk about this. And that is when
                   we were coming back from Wilson and Ron piped up in
                   the car about going over the 610 pass about the football
                   player. You know and you know, committed suicide and
                   ended up in the—whatever—the morgue. You know one
                   was dick and one was dickless. That was offensive to
                   me, extremely offensive.

      [Carl]:      Okay. Well, you need to have that conversation with
                   him.

      [Lee]:       No, I mean both of you were talking about it.

      [Carl]:      Mmmmm—no. But you need to have that conversation
                   with Ron.


                                         5
      [Lee]:       [talking at the same time] Right.

      [Carl]:      [talking at the same time] I didn’t say —

      [Lee]:       You’re my supervisor.

      [Carl]:      Okay. So, what did I say that offended you? [inaudible,
                   cut off]

      [Lee]:       No. I mean the whole subject matter offended me.

      [Carl]:      Okay. What did— [recording stops].

      Lee did not bring the incident up to Carl again or ask Carl to take any kind

of action. Lee testified that he was afraid of Ron and did not discuss the incident

with him at all. Lee did not create a written account of the incident at this time or

make any written complaint to Ron, Carl, or anyone else.

      Subsequently, at a team-building meeting on March 23, 2009, one of Lee’s

co-workers, Linda DeClouette, shared that one of her strategies for dealing with

difficult people was to put on her “power shoes.” Unbeknownst to DeClouette,

Lee used his cell phone to take a picture of DeClouette’s bare feet and legs

underneath a table, and he showed the photo to a male co-worker sitting next to

him. Lee then showed the picture to DeClouette and asked if it showed her “power

shoes.”

      DeClouette was uncomfortable with Lee’s taking a picture of her feet and

showing it to a co-worker without her knowledge or consent. She complained to

Carl, her supervisor, who asked her to submit a written account of the incident.
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Carl also asked Lee to provide a handwritten statement regarding the incident. The

next day, on March 24, 2009, Lee asked DeClouette whether she had filed a

complaint against him, and she told him that she had.             Lee apologized.

Meanwhile, Carl and Ron discussed the incident with human resources personnel.

      On March 25, 2009, Lee attended a meeting with Carl and Ron. They

provided Lee with a second employee counseling form and informed him that he

was being terminated immediately based on the incident with DeClouette.

Following his termination, Lee filed a formal complaint with the Equal

Employment Opportunity Commission that alleged that the District had

discriminated against him based on race, sex, and age and that he had been the

victim of retaliation based on incidents recounted above.

      The District moved for a directed verdict, arguing that Lee had failed to

establish a prima facie case of retaliation because he had not shown that he had

engaged in a protected activity. The trial court denied the motion for directed

verdict, and the case was submitted to the jury.

      Question 1 of the jury charge asked, “Did Raymond Michael Lee complain

to his supervisor of conduct he reasonably believed to constitute unlawful sexual

harassment and/or unlawful discrimination?” The jury was instructed regarding

what constituted “reasonable belief.” The jury answered, “Yes.”




                                          7
      Question 2 of the jury charge asked, “Did the Harris County Hospital

District discharge Raymond Michael Lee because of Raymond Michael Lee’s

complaint to his supervisor?” It instructed the jury that Lee “must establish that

without his complaint to his supervisor, [the District’s] discharge of him would not

have occurred when it did. There may be more than one cause for an employment

decision. [Lee] need not establish that his complaint to his supervisor was the sole

cause of [the District’s] discharge of him.” The jury answered, “Yes.”

      In response to Question 3, the jury awarded Lee $102,000 in back pay as

damages.

      The District moved for JNOV, arguing, in part, (1) that Lee failed to show

that he engaged in a protected activity because his complaint to Carl did not

specify a form of discrimination made unlawful by the TCHRA and (2) that Lee

failed to establish a causal connection between his alleged protected activity and

his termination or (3) that the District’s legitimate, non-discriminatory reason was

a pretext for discrimination.

      The trial court granted the District’s motion for JNOV and entered a take-

nothing judgment on Lee’s retaliation claim. This appeal followed.

                                      JNOV

      In his sole issue, Lee argues that the trial court erred in granting the

District’s motion for JNOV.


                                         8
A.    Standard of Review

      A trial court may grant a motion for JNOV if a directed verdict would have

been proper, and it may disregard any jury finding on a question that has no

support in the evidence. TEX. R. CIV. P. 301. A trial court may disregard a jury

finding and render JNOV if the finding is immaterial or if there is no evidence to

support one or more of the findings on issues necessary to liability. Tiller v.

McLure, 121 S.W.3d 709, 713 (Tex. 2003); Spencer v. Eagle Star Ins. Co. of Am.,

876 S.W.2d 154, 157 (Tex. 1994). A trial court properly enters a directed verdict

(1) when a defect in the opposing party’s pleadings makes them insufficient to

support a judgment; (2) when the evidence conclusively proves a fact that

establishes a party’s right to judgment as a matter of law; or (3) when the evidence

offered on a cause of action is insufficient to raise an issue of fact.        M.N.

Dannenbaum, Inc. v. Brummerhop, 840 S.W.2d 624, 629 (Tex. App.—Houston

[14th Dist.] 1992, writ denied). In such a case, the issue should not be submitted to

the jury. See id.

      In reviewing the rendition of JNOV, the reviewing court must determine

whether there is any evidence upon which the jury could have made the finding.

See Tiller, 121 S.W.3d at 713; see also B & W Supply, Inc. v. Beckman, 305

S.W.3d 10, 15 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (holding that we

review JNOVs under no-evidence standard). The reviewing court must view the


                                         9
evidence in the light most favorable to the verdict, crediting favorable evidence if

reasonable jurors could and disregarding contrary evidence unless reasonable

jurors could not. City of Keller v. Wilson, 168 S.W.3d 802, 822, 827 (Tex. 2005);

see Tiller, 121 S.W.3d at 713 (holding that, in reviewing “no evidence” point,

court views evidence in light that tends to support finding of disputed fact and

disregards all evidence and inferences to contrary); Bradford v. Vento, 48 S.W.3d

749, 754 (Tex. 2001).

      To sustain a challenge to the legal sufficiency of the evidence to support a

jury finding, the reviewing court must find that (1) there is a complete lack of

evidence of a vital fact; (2) the court is barred by rules of law or evidence from

giving weight to the only evidence offered to prove a vital fact; (3) there is no

more than a mere scintilla of evidence to prove a vital fact; or (4) the evidence

conclusively established the opposite of a vital fact. Volkswagen of Am., Inc. v.

Ramirez, 159 S.W.3d 897, 903 (Tex. 2004).

B.    The TCHRA

      Under the TCHRA, an employer may not discriminate against or discharge

an employee based on “race, color, disability, religion, sex, national origin, or

age.” TEX. LAB. CODE ANN. § 21.051(1) (Vernon 2006). The TCHRA is modeled

after federal civil rights law. Id. § 21.001(1) (Vernon 2006) (stating that one

express purpose of act is to “provide for the execution of the policies of Title VII


                                        10
of the Civil Rights Act of 1964 and its subsequent amendments”); Wal-Mart

Stores, Inc. v. Lane, 31 S.W.3d 282, 295 (Tex. App.—Corpus Christi 2000, pet.

denied).   Thus, we look to analogous federal precedent for guidance when

interpreting the TCHRA. NME Hosps., Inc. v. Rennels, 994 S.W.2d 142, 144 (Tex.

1999); Lane, 31 S.W.3d at 295.

      In a retaliation action brought under the TCHRA, a plaintiff is required to

establish that (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.    TEX. LAB. CODE ANN. § 21.055 (Vernon 2006) (providing

examples of protected activities); Dias v. Goodman Mfg. Co., 214 S.W.3d 672, 676

(Tex. App.—Houston [14th Dist.] 2007, pet. denied) (stating elements of

retaliation claim); Niu v. Revcor Molded Prods. Co., 206 S.W.3d 723, 730 (Tex.

App.—Fort Worth 2006, no pet.) (stating same). Protected activities consist of (1)

opposing a discriminatory practice; (2) making or filing a charge; (3) filing a

complaint; or (4) testifying, assisting, or participating in an investigation,

proceeding, or hearing. TEX. LAB. CODE ANN. § 21.055; Dias, 214 S.W.3d at 676.

      First, to establish that he opposed a discriminatory practice, the employee

must demonstrate a good faith belief that the employer’s underlying discriminatory

practice violated the law. Cox & Smith, Inc. v. Cook, 974 S.W.2d 217, 224 (Tex.

App.—San Antonio 1998, pet. denied) (citing Payne v. McLemore’s Wholesale &

                                         11
Retail Stores, 654 F.2d 1130, 1140–41 (5th Cir. 1981)). The employee is not

required to prove an actual unlawful practice; he must only show that he held a

reasonable, good faith belief that the employer engaged in an activity made

unlawful by Title VII or the TCHRA. Id.; see also Rollins v. State of Fla. Dep’t of

Law Enforcement, 868 F.2d 397, 400 (11th Cir. 1989) (per curiam) (holding that

anti-retaliation statute shields employee from retaliation regardless of merit of his

complaints so long as he can show good faith, reasonable belief that challenged

practice was unlawful).

      Second, the employee must demonstrate that he reported the challenged

activity to the employer. Cook, 974 S.W.2d at 224. Filing a grievance or making

an informal complaint can constitute a protected activity. See Lane, 31 S.W.3d at

296 (holding that informal complaint to supervisor of sexual harassment was

protected “complaint” for purposes of section 21.055(3)); see also Fye v. Okla.

Corp. Comm’n, 516 F.3d 1217, 1228 (10th Cir. 2008) (noting that “[p]rotected

opposition can range from filing formal charges to voicing informal complaints to

superiors”).   However, “[a] vague charge of discrimination will not invoke

protection under [the TCHRA].” Spinks v. Trugreen Landcare, L.L.C., 322 F.

Supp.2d 784, 797 (S.D. Tex. 2004); see Azubuike v. Fiesta Mart, Inc., 970 S.W.2d

60, 65 (Tex. App.—Houston [14th Dist.] 1998, no pet.) (“A vague charge of

discrimination will not invoke protection under the statute.”). Not every incident

                                         12
of rude or offensive behavior implicates Title VII or the TCHRA. See Evans v.

Tex. Dep’t of Transp., 547 F. Supp. 2d 626, 654–55 (E.D. Tex. 2007) (citing Webb

v. Cardiothoracic Surgery Assocs. of N. Tex., P.A., 139 F.3d 532, 539 (5th Cir.

1998) (commenting that not every insult, slight, or unpleasantness gives rise to

valid Title VII claim)), overruled on other grounds by Burlington N. & Santa Fe

Ry. Co. v. White, 548 U.S. 53, 126 S. Ct. 2405 (2006).

      Thus, for a complaint filed with an employer to constitute a protected

activity, “the complaint must indicate the discrimination occurred because of sex,

race, national origin, or some other protected class.”      Tomanovich v. City of

Indianapolis, 457 F.3d 656, 663 (7th Cir. 2006); see Morrison v. Dallas Cnty.

Cmty. Coll., 273 F. App’x 407, 410 n.3 (5th Cir. 2008) (per curiam) (citing

Tomanovich with approval).          “Merely complaining in general terms of

discrimination or harassment, without indicating a connection to a protected class

or providing facts sufficient to create that inference, is insufficient.” Tomanovich,

457 F.3d at 663. A complaint of unfair treatment and harassment does not “put the

employer on notice that [the employee’s] complaint was based on . . . sexual

discrimination.” Harris-Childs v. Medco Health Solutions, Inc., 169 F. App’x 913,

916 (5th Cir. 2006) (per curiam).




                                         13
C.    Analysis

      Here, Lee argued that he engaged in a protected activity when he

complained to Carl about the February 23, 2009 comments regarding the football

player’s suicide. However, Lee’s statement to Carl, as represented in his testimony

at trial and in the recording of his meeting with Carl, revealed only that Lee found

the comments “extremely offensive.” Citing rude or offensive behavior, by itself,

does not put an employer on notice of a complaint implicating the TCHRA. See

Webb, 139 F.3d at 539; Harris-Childs, 169 F. App’x at 916. Lee did not make any

charge of discrimination against Carl or Ron during this conversation, much less a

“vague charge of discrimination”; indeed, he did not refer to discrimination at all.

See Azubuike, 970 S.W.2d at 65 (“A vague charge of discrimination will not

invoke protection under the statute.”). Lee did not suggest in his conversation with

Carl that Carl’s or Ron’s conduct was related to his own sexual orientation or any

characteristic protected by the TCHRA.         See Evans, 547 F. Supp. 2d at 654

(“Specifically, although Evans complained of a purportedly hostile work

environment, at no time did she suggest that McCray’s conduct was related to

Evans’s race, sex, age, disability, or other characteristic protected by Title VII.”).

      Lee argues that he was not required “to use legal terms or buzzwords when

opposing discrimination.” See Yanowitz v. L’Oreal USA, Inc., 116 P.3d 1123,

1134 (Cal. 2005). However, the employee’s complaint must be specific enough to


                                          14
put the employer on notice that it was based on some form of discrimination the

employee reasonably believed was prohibited by the TCHRA. See Tomanovich,

457 F.3d at 663.

      Lee also argues that we must look to the context of his complaint in

determining whether it was a complaint for purposes of section 21.055(3). See

Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct. 1325, 1335 (2011)

(analyzing antiretaliation provision of Fair Labor Standards Act); see also Kanida

v. Gulf Coast Med. Pers. LP, 363 F.3d 568, 577 (5th Cir. 2004) (holding that

analysis under FLSA employs same analytical framework as Title VII).              The

Kasten Court held, “To fall within the scope of the antiretaliation provision [of the

FLSA], a complaint must be sufficiently clear and detailed for a reasonable

employer to understand it, in light of both content and context, as an assertion of

rights protected by the statute and a call for their protection.” 131 S. Ct. at 1335.

Assuming, without deciding, that this reasoning applies here, it does not support

Lee’s argument.

      As we have already discussed, Lee’s statement to Carl that he was extremely

offended by the story Ron told regarding the circumstances surrounding the

football player’s suicide is not sufficiently clear or detailed, or directly related to

Lee’s employment, for a reasonable employer to understand it as an assertion of

rights under the TCHRA. Examining Lee’s statement in light of the content and

                                          15
context does not alter this conclusion.       Lee made the statement that he was

offended by Ron’s and Carl’s comments in the context of a meeting that Carl had

requested to evaluate Lee’s job performance relating to an on-going project. This

context would not put a reasonable employer on notice that the employee was

asserting rights under the TCHRA.       The content of Lee’s comments to Carl

addressed a story regarding the suicide and apparent sexual orientation of a third

person who was not known personally to any of the people involved in this lawsuit.

Lee did not request that Carl take any action based on his complaint, nor did Lee

himself take any further action based on his complaint until later, after he had been

terminated. Even crediting Lee’s assertion that he presented some evidence that

Carl was aware of his sexual orientation, nothing in the context or content of Lee’s

verbal statement connected his own sexual orientation with the discussion. See

Tomanovich, 457 F.3d at 663.

      Viewing the evidence in the light most favorable to the jury’s verdict, we

conclude that the trial court properly granted a JNOV because Lee presented no

evidence that he had engaged in a protected activity—i.e., by filing a complaint of

sexual discrimination—under the TCHRA. See City of Keller, 168 S.W.3d at 822.

In the absence of a statutorily protected activity, there can be no cognizable

retaliation claim under the TCHRA. See Dias, 214 S.W.3d at 676. Thus, we




                                         16
conclude that the trial court did not err in granting the District’s motion for JNOV

on this ground. See TEX. R. CIV. P. 301; Ramirez, 159 S.W.3d at 903.

                                   Conclusion

      We affirm the judgment of the trial court.




                                             Evelyn V. Keyes
                                             Justice

Panel consists of Justices Keyes, Higley, and Bland.




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