                                 NO. 12-08-00322-CV

                       IN THE COURT OF APPEALS

          TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

PENNY TINER,                                      §           APPEAL FROM THE 402ND
APPELLANT

V.                                                §           JUDICIAL DISTRICT COURT
TEXAS DEPARTMENT OF
TRANSPORTATION,
APPELLEE                                          §           WOOD COUNTY, TEXAS


                                             OPINION
        Penny Tiner appeals from the trial court’s entry of summary judgment in favor of Appellee,
the Texas Department of Transportation. In two issues, Tiner contends the trial court erred in
granting summary judgment and dismissing her retaliation and discrimination claims. We affirm.

                                           BACKGROUND
        Tiner worked for the Texas Department of Transportation (TxDOT) from 1986 to 1998 and
again from 2000 until she resigned in November 2003. During her second period of employment
at TxDOT, Tiner and other of her coworkers had a problem with a coworker who was rude, abusive,
and generally obnoxious. Tiner complained about the coworker’s behavior to her supervisor in May
2003 and followed up with a written complaint on May 14, 2003. The coworker was fired in June
2003.
        Tiner made a further complaint when her supervisor slammed a door following an argument
with her. This led to a meeting attended by Tiner, her supervisor, and their regional supervisor.
Tiner alleges that, during the time between her first complaint about the coworker and her
resignation, her supervisor stopped talking to her and ended her access to his email account. Tiner
resigned in November 2003. In her letter of resignation, Tiner stated that she had decided to evaluate
her “current goals and investigate new opportunities.”
       In 2004, Tiner filed a complaint with the Civil Rights Division of the Texas Workforce
Commission. In 2005, Tiner filed a lawsuit in district court alleging that she was constructively
terminated and that she suffered discrimination based on her gender and retaliation for engaging in
a protected activity. TxDOT filed both traditional and no evidence motions for summary judgment,
and Tiner filed a response to each motion. After a hearing, the trial court granted TxDOT’s motion
for summary judgment and dismissed Tiner’s claims. Tiner filed a motion for a new trial. The trial
court denied that motion, and this appeal followed.


                                       SUMMARY JUDGMENT
       Tiner argues that the trial court erred in granting summary judgment against her. In her first
issue, she argues that her complaint was timely filed. In her second issue, Tiner argues that she
presented prima facie evidence of employment discrimination and retaliation.
Standard of Review
       The movant for traditional summary judgment has the burden of showing that there is no
genuine issue of material fact and that it is entitled to judgment as a matter of law. TEX . R. CIV . P.
166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). A defendant moving
for summary judgment must either conclusively negate at least one essential element of the
plaintiff’s cause of action or conclusively establish the elements of an affirmative defense.
Randall’s Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). Once the movant has
established a right to summary judgment, the nonmovant has the burden to respond to the motion
for summary judgment and to present to the trial court any issues that would preclude summary
judgment. See City of Hous. v. Clear Creek Basin Auth., 589 S.W.2d 671, 678–79 (Tex. 1979).
       Alternately, or in addition, after an adequate time for discovery has passed, a party without
the burden of proof at trial may move for a no evidence summary judgment on the ground that the
nonmovant lacks supporting evidence for one or more essential elements of its claim. TEX . R. CIV .
P. 166a(i). Once a no evidence motion has been filed in accordance with rule 166a(i), the burden
shifts to the nonmovant to bring forth evidence that raises a fact issue on the challenged evidence.
See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). We review a no evidence


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motion for summary judgment under the same legal sufficiency standards we use to review a directed
verdict. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750–51 (Tex. 2003). A no evidence
motion is properly granted if the nonmovant fails to bring forth more than a scintilla of probative
evidence to raise a genuine issue of material fact as to an essential element of the nonmovant’s claim
on which the nonmovant would have the burden of proof at trial. Id. at 751. More than a scintilla
of evidence exists if the evidence supporting a finding rises to a level that would enable reasonable,
fair minded persons to differ in their conclusions. Id. Less than a scintilla of evidence exists when
the evidence is so weak as to do no more than create a mere surmise or suspicion of a fact, and the
legal effect is that there is no evidence. Id.
        For both traditional and no evidence summary judgment motions, we review de novo the
entire record in the light most favorable to the nonmovant, indulging every reasonable inference and
resolving any doubts against the motion. Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006);
KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999).
If the trial court’s order does not specify the grounds on which it granted summary judgment, we
affirm the trial court’s ruling if any of the theories advanced in the motion are meritorious. State
Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993). When a party moves for both a
traditional and a no evidence summary judgment, we first review the trial court’s summary judgment
under the no evidence standards of rule 166a(i). See Ridgway, 135 S.W.3d at 600. If the no
evidence summary judgment was properly granted, we do not reach arguments relating to the
traditional motion for summary judgment. See id. at 602.
        Our review is limited by the issues presented to the trial court. See TEX . R. CIV . P. 166a(c).
When reviewing a summary judgment, courts of appeals should consider all summary judgment
grounds ruled on by the trial court and preserved for appellate review that are necessary for final
disposition of the appeal. See Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex.1996).
However, an appellate court may, in the interest of judicial economy, consider other grounds that the
movant preserved for review, despite the fact that the trial court did not rule on them. Id.
Applicable Law
        Texas law prohibits employment discrimination with respect to race, color, disability,
religion, sex, national origin, or age. TEX . LAB. CODE ANN . § 21.051 (Vernon 2006). This statute
was designed by the legislature to “provide for the execution of the policies of Title VII of the Civil

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Rights Act of 1964 and its subsequent amendments.” Id. § 21.001(1); see also Griggs v. Duke
Power Co., 401 U.S. 424, 431, 91 S. Ct. 849, 853, 28 L. Ed. 2d 158 (1971). Accordingly, Texas
state courts turn to analogous federal statutes and cases interpreting them to guide their reading and
interpretation of employment discrimination statutes. See Ysleta Indep. Sch. Dist. v. Monarrez, 177
S.W.3d 915, 917 (Tex. 2005).
        Section 21.051 of the Labor Code provides that


              [a]n employer commits an unlawful employment practice if because of race, color,
              disability, religion, sex, national origin, or age the employer:

              (1) fails or refuses to hire an individual, discharges an individual, or discriminates
              in any other manner against an individual in connection with compensation or the
              terms, conditions, or privileges of employment; or

               (2) limits, segregates, or classifies an employee or applicant for employment in a
              manner that would deprive or tend to deprive an individual of any employment
              opportunity or adversely affect in any other manner the status of an employee.



TEX . LAB. CODE ANN . § 21.051. To establish a prima facie case of gender discrimination, Tiner had
to prove that she 1) was a member of a class protected by the act, 2) she was qualified for her
position, 3) she was terminated, or suffered adverse action, and 4) she was treated less favorably than
similarly situated members of another class. See Ysleta, 177 S.W.3d at 918.1
        To establish a prima facie case of retaliation, Tiner had to show that she 1) 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. See Thomas
v. Clayton Williams Energy, Inc., 2 S.W.3d 734, 739 (Tex. App.–Houston [14th Dist. 1999, no
pet.); see also McCullough v. Houston County Tex., 297 F. App’x 282, 288–89 (5th Cir. 2008).



        1
           TxDOT argues, based on Meinecke v. H & R Block of Houston, 66 F.3d 77, 83 (5th Cir. 1995), that
Tiner cannot show gender discrimination because she was replaced by members of the same protected class. Tiner
responds, citing Septim us v. University of Houston, 399 F.3d 601, 609 (5th Cir. 2005), that she must show either
that she was replaced by a person outside her protected class or that another similarly situated person was treated
more favorably. W e note that the Texas Supreme Court has stated that the precise elements of the initial showing
required by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–05, 93 S. Ct. 1817, 1824–25, 36 L. Ed. 2d 668
(1973), vary depending upon the allegations. There is recent case law supporting TxDOT’s position. See Ptom ey v.
Tex. Tech Univ., 277 S.W.3d 487, 492 (Tex. App.–Amarillo 2009, pet. denied). Because Tiner suffered no adverse
employment action, we need not decide whether she was required to prove that she was replaced by a person from
another class.

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Analysis
       TxDOT’s motion for no evidence summary judgment was properly granted because Tiner
failed to provide summary judgment evidence showing that there was a genuine issue of material fact
as to whether she suffered adverse employment action. On appeal, Tiner argues that she did suffer
adverse employment action. Specifically, she argues that her supervisor ignored her complaint about
the coworker, she was required to attend a meeting with her supervisor and a regional supervisor,
her supervisor ignored her, but on one occasion got into a loud argument with her, her supervisor
ended her access to his email account, and that TxDOT constructively discharged her.
       Whether an employee has suffered adverse employment action is often not a contested part
of a discrimination or retaliation case. For example, in Ysleta, a case Tiner cites on this issue, the
defendant fired the two plaintiffs. That did not happen here. Tiner also did not suffer any of the
more common forms of adverse employment action in terms of being denied raises or promotions
or being given an unfavorable evaluation. Tiner acknowledges this and argues that she was
constructively discharged. See Passons v. Univ. of Tex. at Austin, 969 S.W.2d 560, 562 (Tex.
App.–Austin 1998, no pet.) (constructive discharge serves as legal substitute for discharge element
of prima facie case of discrimination).
       A constructive discharge occurs when an employee makes the reasonable decision to resign
because of unendurable working conditions. See Baylor Univ. v. Coley, 221 S.W.3d 599, 604–05
(Tex. 2007) (citing Pennsylvania State Police v. Suders, 542 U.S. 129, 141, 124 S. Ct. 2342, 2351,
159 L. Ed. 2d 204 (2004)). Tiner’s constructive discharge claim is based on the same underlying
facts that Tiner argues support her claim of discrimination and retaliation. Specifically, Tiner argues
that her decision to resign was compelled by the working conditions that included her supervisor’s
handling of the coworker and his treatment of her.
        In Wal-Mart Stores, Inc. v. Bertrand, 37 S.W.3d. 1, 9 (Tex. App.–Tyler 2000, pet. ref’d),
we considered a case where a manager alleged that he had been constructively discharged. In that
case, the worker had received unfavorable work evaluations, was asked if he wished to transfer, had
disciplinary procedures initiated against him, was refused permission to attend to personal matters
on his lunch break, and had a manager make derogatory comments to him. We concluded that this
was not evidence that the worker had been constructively discharged due to his age. Id. at 12.
       In Bertrand, we observed that an employer must be permitted to make reasonable personnel

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decisions and that critical statements must be allowed in the form of unfavorable work evaluations.
Id. at 9. As part of the burden shifting that applies, and in a summary judgment context, a plaintiff
may show that seemingly ordinary business decisions are, in fact, motivated by a discriminatory
motive. See M. D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 24 (Tex. 2000).
Furthermore, to constitute a constructive discharge, the employer’s actions must have been taken
with the intention of forcing the employee to resign. Bertrand, 37 S.W.3d. at 9 (citing Smith v.
Goodyear Tire & Rubber Co., 895 F.2d 467, 472 (8th Cir. 1990)).
       Whether an employee would feel forced to resign is case and fact specific, but the following
employment actions are relevant, singly or in combination: 1) demotion, 2) reduction in salary, 3)
reduction in job responsibilities, 4) reassignment to menial or degrading work, 5) reassignment to
work under a younger or less experienced/qualified supervisor, 6) badgering, harassment, or
humiliation by the employer calculated to encourage the employee’s resignation, or 7) offers of early
retirement (or continued employment on terms less favorable than the employee’s former status).
See Haley v. Alliance Compressor LLC, 391 F.3d 644, 649–50 (5th Cir. 2004) (citing Brown v.
Kinney Shoe Corp., 237 F.3d 556, 566 (5th Cir. 2001)).
       In this case, Tiner did not show that the working conditions were unbearable, or that her
employer was attempting to encourage her to resign. Tiner argues that the issue with the coworker
was handled improperly.      This was an ordinary management problem.            TxDOT began an
investigation about a week after Tiner’s written complaint, and the coworker was terminated about
a month after her complaint was made. This is not evidence that TxDOT sought to compel Tiner
to resign. The coworker’s conduct was wrong—he was abusive, threatening, and unpleasant—but
there is no basis to conclude that TxDOT somehow created unendurable working conditions,
especially when it fired him within a month of Tiner’s complaint. And there is no reasonable basis
on which to conclude that the situation with the coworker caused Tiner to resign months later.
       Nor do the other actions of TxDOT, when viewing the record in a light most favorable to
Tiner, show that TxDOT was attempting to encourage her to resign. The evidence that her
supervisor got into an argument with her, ended her access to his email, and stopped talking to her
does not rise to the level of conduct designed to badger, harass, or humiliate Tiner. Nor is there a
reason to conclude that the conduct was calculated to encourage her resignation. Indeed, Tiner was
given an annual job evaluation by her supervisor less than a month before she left TxDOT. The

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evaluation did not identify any areas in which she needed improvement, contained no negative
comments at all, and was generally complimentary of her work performance.
       The meeting with the regional supervisor likewise does not tend to show that TxDOT was
attempting to encourage Tiner to resign. It appears that management was attempting to assuage
Tiner’s concerns following the incident with the slammed door and, more generally, her concerns
about her supervisor. Tiner can point to no evidence that this single meeting was badgering,
harassing, or humiliating or that it was calculated to encourage her to resign. Indeed, the meeting
took place months before she resigned.          Accordingly, Tiner has not shown that she was
constructively discharged.
       For essentially the same reasons, we conclude that Tiner also failed to show adverse
employment action or that the actions complained of were motivated by retaliation or discrimination
on the basis of her gender. For purposes of discrimination, employer liability may result from a
refusal to hire an individual, a discharge of an individual, or discrimination in any other manner
against an individual in connection with compensation or the terms, conditions, or privileges of
employment. See TEX . LAB. CODE ANN . § 21.051(a)(1). For retaliation, the standard can be slightly
lower. In construing a federal antiretaliation statute, the Supreme Court held that actionable
retaliation includes actions that a “reasonable employee” would find to be “materially adverse,”
meaning that it “might well have dissuaded a reasonable worker from making or supporting” a
complaint. See Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 68, 126 S. Ct. 2405, 2415,
165 L. Ed. 2d 345 (2006). In Burlington, for example, the Court held that reassignment from a
forklift job to a track laborer job along with a thirty-seven day suspension without pay supported a
finding of retaliation. Id., 548 U.S. at 72–73, 126 S. Ct. at 2417–18. The Court recognized that it
was the nature of the employment action in context that was important when evaluating such claims,
but that relief was not available for trivial harms. Id., 548 U.S. at 68, 126 S. Ct. at 2415.
       The actions Tiner complains of here do not rise to this level. Contrary to her assertion that
her complaint about a coworker was ignored, the record shows that TxDOT initiated an investigation
and terminated the coworker the next month. Affording the required deference to Tiner’s factual
assertions, we cannot conclude that the meeting with the regional manager, which appears to have
occurred in July 2003, was an adverse employment action. The meeting was apparently called to
address Tiner’s concerns about the way the coworker situation had been handled. It was designed

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to dissuade her from making further complaints, but by listening to her concerns. There is no
evidence that Tiner was threatened or otherwise treated in a materially adverse way during this
meeting. On the basis of the summary judgment record, we are not persuaded that this single
meeting is an adverse employment action, or that it shows that TxDOT acted with a retaliatory or
discriminatory motive.2
         Tiner also argues that she was treated differently from the male coworker who was fired.
Specifically, she asserts that he was able to meet informally with his supervisor after she made the
oral complaint about him, whereas her meeting was more formal. There is no evidence that any
disparity was influenced by gender discrimination or that her supervisors were doing anything other
than attempting to address her concerns. And, once again, Tiner was given a favorable performance
evaluation, and her coworker was fired. In short, this case represents a disagreement in the
workplace as to how to manage a difficult employee. Tiner was not satisfied with the way her
supervisor handled the situation. This led to a disruption in the workplace that included unnecessary
actions by the supervisor–slamming a door–and actions the supervisor thought were necessary to
protect himself–limiting conversation and ending Tiner’s access to his email.
         These actions do not rise to the level of an adverse employment action. Tiner was not fired
or demoted, and she was not reassigned or suspended. The minor actions that did occur do not
represent meaningful changes in the conditions or privileges of her employment. And furthermore,
we do not conclude that these actions would dissuade a reasonable worker from making or
supporting a protected complaint. Finally, there is no evidence that her supervisor’s actions were
motivated by discrimination on the basis of the fact that Tiner is a female.
         For the foregoing reasons, we hold that Tiner did not produce more than a scintilla of
evidence to show that she suffered adverse employment action. Accordingly, the trial court did not
err in granting TxDOT’s motion for no evidence summary judgment and dismissing her lawsuit.
Tiner’s second issue is overruled. Therefore, we do not consider whether her claim was timely filed,
as she argues in her first issue, nor do we consider her arguments relating to TxDOT’s motion for
traditional summary judgment.


         2
           This is not to say that such a meeting could not be so confrontational that it could constitute retaliation or
be evidence of employment discrimination. W e mean to say, simply, that on the basis of the summary judgment
evidence, there is not evidence to show that this specific meeting was an adverse employment action.

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                                                      DISPOSITION
         We affirm the judgment of the trial court.




                                                                    SAM GRIFFITH
                                                                       Justice



Opinion delivered August 19, 2009.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                       (PUBLISH)




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