      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                        NO. 03-04-00197-CV



                                  Jeanette Brizendine, Appellant

                                                   v.

                              Texas Department of Health, Appellee




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
          NO. GN102320, HONORABLE ROSE SPECTOR, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Appellant Jeanette Brizendine sued her employer Texas Department of Health (the

Department) alleging that she was retaliated against for filing a discrimination and retaliation

complaint. See Tex. Labor Code Ann. § 21.055 (West 1996). The Department sought a no-evidence

summary judgment which the trial court granted. Because Brizendine presents more than a scintilla

of evidence that she was retaliated against for filing a complaint, and because the Department failed

to establish a legitimate justification for repeatedly rejecting her revised job description, we reverse

the summary judgment.


                                   FACTUAL BACKGROUND

               The Department hired Jeanette Brizendine in 1986. She is currently classified as a

Graphic Designer II in the Bureau of Emergency Management.
                Although this case concerns events occurring after 1999, it is helpful to consider the

circumstances that served as a backdrop to the facts in question. Brizendine alleges that in 1992

Bureau Chief Gene Weatherall, now deceased, instructed her to escort Dr. Robert Bonham, a

member of the Texas Board of Health, for the evening. Brizendine alleges that Weatherall directed

her to pick up Dr. Bonham at the airport, take him to dinner, take him to a nightclub for drinks and

dancing, and escort him back to his hotel. Brizendine claims that Weatherall indicated that doing

so would benefit her professionally. She claims that when she refused to go out with Dr. Bonham,

Weatherall told her that she would never get another promotion or pay increase as long as she

worked in his bureau. Afterwards, Brizendine filed an internal complaint with the Department.

                In order for Brizendine to be eligible for promotions or merit-based pay increases at

the Department, her job must be reclassified. However, to reclassify her job she must first submit

a revised job description detailing all of the tasks she performs regularly, illustrating that her actual

duties and skills surpass those included in her current job classification. Since she declined to escort

Dr. Bonham in 1992, Brizendine claims that she has been denied the opportunity to resubmit her job

description. As a result, she has also been denied an accurate evaluation of her job performance, a

job reclassification, and merit-based pay increases. Consequently, in September 1999, Brizendine

filed a sex discrimination and retaliation complaint with the Texas Commission on Human Rights

(TCHR) and the Equal Employment Opportunity Commission (EEOC).

                At the beginning of November 1999, Brizendine again attempted to submit a revised

job description to her current supervisor Kelly Harrell. The revised description remained in Harrell’s

in-box for five months. In March 2000, Harrell returned Brizendine’s proposed job description

stating, “Nothing will happen with your job description until you have withdrawn your complaint.

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Your job description must stay the same as it was written (on 2/17/97).” On April 6, 2000, Harrell

again told Brizendine that unless she withdrew her complaint, she could not rewrite her job

description. On April 25, Brizendine filed another complaint with the TCHR and the EEOC

claiming retaliation. On May 24, 2001, the TCHR administratively dismissed Brizendine’s charge

and issued a right to sue letter. On August 3, the EEOC also issued a right to sue letter. Brizendine

then brought suit against the Department for retaliation pursuant to section 21.055 of the labor code.


                                          DISCUSSION

Standard of Review

               A no-evidence summary judgment is properly granted if the non-movant 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 any claim on which the non-movant would have the burden of proof at trial. See

Tex. R. Civ. P. 166(a)i; Merrell Dow Pharms., Inc. v. Havner, 953 S.W. 2d 706, 711 (Tex. 1997).

Thus, a no-evidence summary judgment is essentially a pretrial directed verdict, and we apply the

same legal sufficiency standard in reviewing a no-evidence summary judgment as we apply in

reviewing a directed verdict. Jackson v. Fiesta Mart, 979 S.W.2d 68, 70 (Tex. App.—Austin 1998,

no pet.). Our task is to determine whether the plaintiff has produced any evidence of probative force

to raise fact issues on the material questions presented. See id. We must consider all the evidence

in the light most favorable to the party against whom the no-evidence summary judgment was

rendered, every reasonable inference must be indulged in favor of the non-movant, and any doubts

resolved in its favor. Havner, 953 S.W.2d at 711.




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                Section 21.055 of the labor code prohibits an employer from discharging an employee

in retaliation for opposing a discriminatory practice, filing a charge or a complaint, or assisting in

any way in an investigation or proceeding.1 See Tex. Labor Code Ann. § 21.055. In retaliation cases

brought under this provision, an employee must first establish a prima facie case by showing that:

(1) she engaged in a protected activity, (2) an adverse employment action occurred, and (3) a causal

link existed between the protected activity and the adverse employment action. Raggs v. Miss.

Power & Light Co., 278 F.3d 463, 471 (5th Cir. 2002); Marsaglia v. Univ. of Texas, El Paso, 22

S.W.3d 1, 4 (Tex. App.—El Paso, 1999, pet. denied). The causal link required by the third prong

of the prima facie case of retaliation is less stringent than a “but for” standard. Long v. Eastfield

Coll., 88 F.3d 300, 305 (5th Cir. 1996); La Tier v. Compaq Computer Corp., 123 S.W.3d 557, 562

(Tex. App.—San Antonio 2003, no pet.). An employee need not prove that the protected activity

is the sole factor motivating the employer’s adverse employment action in order to satisfy the causal

element. Id. Once an employee establishes a prima facie case of retaliation, the burden shifts to the


       1
           Section 21.055 reads:

           An employer, labor union, or employment agency commits 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. Labor Code Ann. § 21.055 (West 1996).

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employer who must rebut the alleged retaliation by showing that there was a legitimate reason for

the adverse action. La Tier, 123 S.W.3d at 561 (citing M.D. Anderson Hosp. & Tumor Inst. v.

Willrich, 28 S.W.3d 22, 24 (Tex. 2000)). If the employer establishes a non-retaliatory reason for the

adverse action, the burden shifts back to the employee to present evidence showing that the

employer’s proffered reason for the adverse action was pretextual, and that, in fact, without the

protected activity, the employer’s adverse employment action would not have occurred when it did.

Id.; Texas Div.-Tranter, Inc. v Carrozza, 876 S.W.2d 312, 313 (Tex. 1994); Continental Coffee

Prods. v. Cazarez, 937 S.W.2d 444 (Tex. 1996).


Causal Link

               Although both parties discuss events prior to 1999 at length, in accord with

Brizendine’s lawsuit, we focus only on her 1999 complaint and the alleged retaliation that followed.

In evaluating the Department’s no-evidence summary judgment argument, we first consider whether

Brizendine successfully met her initial burden by making a prima facie showing that the Department

denied her access to employment review and advancement procedures because she filed a

discrimination and retaliation complaint with the TCHR and the EEOC. See La Tier, 123 S.W.3d

at 562. The plain language of section 21.055 identifies filing a complaint as a protected activity, see

Tex. Labor Code Ann. § 21.055, and the Department concedes that denying Brizendine the

opportunity to rewrite her job description is an adverse employment action. Thus, Brizendine

established the first two elements of her prima facie case. The Department contends that Brizendine

failed, however, to submit evidence establishing a causal link between her complaint and the adverse

employment action.


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               In order to meet her burden on the third prong of her prima facie case, Brizendine

must present more than a scintilla of evidence raising a genuine issue of material fact with respect

to whether her 1999 complaint is causally linked to the Department’s denial of her revised job

description. See Tex. R. Civ. P. 166(a)i; Havner, 953 S.W. 2d at 711 (Tex. 1997). First, close

temporal proximity between an employee’s protected activity and an adverse employment action may

provide a sufficient causal connection for a showing of retaliation. Armstrong v. City of Dallas, 997

F.2d 62, 67 (5th Cir. 1993). Less than two months passed between the filing of Brizendine’s

complaint and Harrell’s refusal to submit Brizendine’s revised job description. Depending on the

facts and circumstances, two months may be sufficiently proximate to establish a prima facie causal

link between an employee’s protected activity and an adverse employment action. Chemical Express

Carriers, Inc. v. Pina, 819 S.W.2d 585, 590 (Tex. App.—El Paso 1991, writ denied).

               Here, however, we have other evidence, besides the close temporal proximity that

bears on the causal link. After letting Brizendine’s revised job description sit in her in-box for five

months, Harrell returned it and informed Brizendine that it would not be accepted until Brizendine

withdrew her complaint. Approximately one month later, Harrell reiterated that she would not

accept a revised job description until Brizendine withdrew her complaint. Even assuming arguendo

that Brizendine’s other evidence–corroborating testimony from several co-workers–is hearsay or

incompetent as the Department urges, Harrell’s statements are direct evidence of retaliatory motive

and a causal link between the adverse employment action and Brizendine’s protected activity.

               The Department denies that this evidence establishes any causal link because Harrell

is not the final decision maker with respect to the Department’s employee advancement. See



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Marsaglia, 22 S.W.3d at 5 (affirming summary judgment where there was no evidence that

university president, who had authority over tuition decisions, knew about plaintiff’s sexual

harassment complaints). However, while Brizendine’s 1999 complaint focused on alleged retaliation

in the form of denied promotions and pay raises, this case is the result of retaliation following the

1999 complaint in the form of Harrell’s refusal to even accept and submit her revised job description

in order for Brizendine to be eligible for the type of review that could result in a promotion or a raise.

The State has conceded for purposes of this appeal that Harrell’s alleged refusal to submit

Brizendine’s revised job description alone constitutes an actionable adverse employment action.

And, even if Harrell was not the “final decision maker” with respect to this type of action, as the

Department contends, there is evidence that Weatherall had told Harrell not to submit the revised

job description. We have previously found legally sufficient evidence of retaliation based in part on

a superior’s ordering a plaintiff’s immediate supervisor to withhold an evaluation necessary for the

plaintiff to receive a merit pay increase. See Mayberry v. Texas Dep’t of Agric., 948 S.W.2d 312,

315-16 (Tex. App.—Austin 1997, writ denied). This evidence, along with Harrell’s statements that

she refused to submit the revised job description because Brizendine had filed a complaint against

the Department, especially when coupled with close temporal proximity, is sufficient to establish a

causal link for the purposes of the prima facie case.


Legitimate Reason

                Because Brizendine succeeds in establishing a prima facie case of retaliation, the

burden shifts to the Department to show that there was a legitimate reason for refusing to accept

Brizendine’s revised job description. La Tier, 123 S.W.3d at 561. Although the Department claims


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that financial constraints prevented it from offering Brizendine merit-based pay increases for the

period in question, it has offered no legitimate explanation for Harrell’s refusal to submit a revised

job description after Brizendine filed the 1999 complaint. Therefore, the Department fails in

meeting its burden to establish a legitimate reason for the adverse employment action.

Consequently, we need not progress to the third and final step of the burden-shifting analysis to

consider the issue of pretext. See id.

               Because Brizendine presented more than a scintilla of evidence that the Department

prevented her from submitting a revised job description in retaliation for the filing of her 1999

complaint with the TCHR and the EEOC, and because the Department failed to present a legitimate

non-retaliatory reason for doing so, we hold that the trial court improperly granted the Department’s

no-evidence summary judgment motion.


                                          CONCLUSION

               Having resolved Brizendine’s issue in her favor, we reverse the trial court’s summary

judgment and remand the cause for further proceedings.




                                               Bea Ann Smith, Justice

Before Justices Kidd, B. A. Smith and Pemberton

Reversed and Remanded

Filed: December 9, 2004


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